Hon. Dudleg Davis         Opinion Ro. V-1280
District Attorney
123rd Judiclal,District   Re: Present composition
Center, Texas                 of Joaquin Indepen-
                              dent School District
                              under the submitted
                              facts respecting
                              orders passed by the
                              County School Trus-
                              tees of Shelby Coun-
Dear Sir:                     tY.
          We quote from your recent letter in part
as follows:
         "The County School Trustees of Shelby
    County on October 1, 1949, passed an order
    by which said trustees undertook to form a
    county line rural high school district by
    annexing Jackson Common School District
    Ro. 77 and Fellowship Consolidated Common
    school District mo. 72 of Shelby County,
    Texas, and Eagle Mill County Line Common
    School District Ro. 36 of Shelby and Pen-
    ola Counties, Texas, to Joaquin Indepen-
    dent School District No. 38 of Shelby
    County, Texas, and to name the district
    which they thus undertook to create "Cen-
    tral Consolidated Rural High School Dis-
    trict Ro. 36 of Shelby County, Texas".
    Said Board also appointed trustees for
    the district. The validity of this order
    has been subject to litigation. The Sup-
    reme Court by Its majority opinion written
    b Justice Calvert and rendered on April
    18 1951, held that said order was void
    an; those appointed trustees of said dis-
    trict by said order are acting as such
    without legal authority. State ex rel.
    Childress v. School Trustees of Shelby
    County, 239 S.W. 26 777 (Tex. Supp. 1951).
    Motion for rehearing was denied on June
    13, 1951.
            c
                                                         .   ”




Hon. Dudley Davis, page 2 (v-1280)


         "On April 25, 1951, after the majority
    o inion in this case was announced on April
    l[ 1951, the County School Trustees of
    ShAlby County passed an order annexing Fel-
    lowship Consolidated Common School District
    No. 72 and Jackson Common School District
    NO. 77 to the Joaquin Independent School
    District No. 38 under Article 2922a, V.C.S.,
    and enlarged Joaquin Independent School
    District under said statute and in accord-
    ance with the majority opinion of the case
    cited above.
         "The Legislature passed House Bill
    814 which became effective on June 28,
    1951, validating such school districts.
    Our case was not in litigation on June
    28th, the effective date of the Act,
    since our request for rehearing was
    denied on June 13, 1951. Thereafter,
    on July 9, 1951, the County School Trus-
    tees passed an order by which they at-
    tempted to set aside and rescind their
    prior order of annexation of said dis-
    tricts dated April 25, 1951.
          "Please advise at the earliest pos-
     sible date your opinion as to the fol-
     lowing questions, to-wit:
          "1. Did the County School Trustees
    of Shelby County have legal authority to
    rescind the order of annexation of said
    districts by its order dated July 9,
    1951?
         '2. Is the Joaquin Independent School
    District now an enlarged independent school
    district composed of the original Joaquin
    School District, Fellowship Consolidated
    Common School District and Jackson Common
    School District?"
          The county school board order, dated October
1, 1949, purported to annex the Jackson, the Fellow-
ship, and the Eagle Mills Common School Districts to
the Joaquin Independent School District and to declare
such composftion a rural high school district. That
          c                          c
Hon. Dudley Davis, page 3 (V-1280)


order was held void in State ex rel. Childress v.
School Trustees of Shelby County, 239 S.W. 28 777
TTex. Sup. April 18, 1951). As a result of the in-
validity of that order, the status of the four
named districts was that of distinct, separate
school district entities, as if the order of Octo-
ber 1, 1949, had never been passed.
          However, on April 25, 1951, which was
about one week after the Supreme Court decided the
Shelby County case suora, the county school board
passed a second order involving three of the named
districts. You state that the county board, .act-
ing under the annexation provisions of Article
2922a, V.C.S., attempted in Its April 25 order to
act in conformity with Article 2922a as construed
in the Shelby County case. That order annexes the
Jackson and the Fellowship Common School Districts
to the Joaquin Independent School District and de-
clares the resultant composition as creating an
enlarged Joaquin Independent School District.
          The annexation portion of Article 2922a,
V.C.S., reads as follows:
          ,t. . . provided, also, that the
     county school trustees may annex one
     or more common school districts or
     one or more independent school dis-
     tricts having less than two hundred
     fifty (250) scholastic population to ~:
     a common school district having four
     hundred (400) or more scholastic p~opu-‘
     lation, or to an independent district
     having two hundred fifty (25C) or more
     scholastic population.”
         Article 2922b, ,V.C.S., provides in part:
           11 . . provided that all indepen-
     dent school districts enlarged by the
     annexation thereto of one or more corn-
     mon school districts, as provided for
     in Article 2922a shall retain its sta-
     tus and name as en Independent school
     district, and shall continue to oper-
     ate as an independent school district
     under the provisions of the existing
     laws and the laws hereafter enacted
     governing other Independent school
     districts, except as otherwise pro-
     vided herein.”
Hon. Dudley Davis, page 4 (v-1280)


          ThsSupreme Court records reflect that mo-
tion for rehearing in the Shelby County case
was denied June 13, 1951, Ehat no subsequent9=3
                                              mo ion
was submitted, and that mandate has been issued and
sent to the trial court. Thus, the status ~of the
school districts involved in that case ~were’not in
litigation therein on June 28, 1951, the effective
date of the school validation Act, House Bill 814,
Acts 52~ Leg., 1951, ch. 504, p. 1488.
          House Bill 814, supra, provides in part
as follows:
          “Section 1. All school districts,
     including any . . . independent school
     districts . . . and all other school
     districts, or parts of districts, wheth-
     er established, organized, and/or created
     by vote of the people residing In such
     districts, . . . or by action of the
     county school boards, . . . and hereto-
     fore recognized by either State or coun-
     ty authorities as school districts, are.
     hereby validated in all respects as
     though they had been duly and legally
     established in the first instance.
          “All acts of the county boards of
     trustees of any and all counties in . . .
     annexing . . . any and allysuch school
     dqstricts, or incnoasing or decreasing
     the area thereof, . . . or in creating
     new districts out of parts of existing
     districts or otherwise . . . are hereby
     In all things validated. . ,...
          “Sec. 3. This law shall not apply
     to any district which 1s~now Involved in
     litigation in any district court of this
     State, the Court of Civil Appeals, or
     the Supreme Court of Texas,,in which
     litigation the validity of the organiza-
     tion or creation of such district or the
     consolidation or annexation of territory
     In or to such’district is attacked. . .
     Provided further, that this Act shall
     not apply to any district which has here-
     tofore been declared invalid by a court
     of competent jurisdiction of the State
                                                       f
        .




    .




            Hon. Dudley Davis, page 5 (~-1.280)

c               or which may have been established ,and
                which was lat;r returned to.Its original
                status. . . .        ,,        _~
                      The so-called Central Consolidated Rural’.
            High School District No. 36.of Shelby County, pur- ,,
            ported to be created by the’aforementioned order
            dated October 1, 1949, of course, was not validated
            by House Bill 814, supra. Section 3 excepts from
            its provisions any district heretofore declared ln-
            valid by a Texnr’court of competent jurisdiction,
            But the Joaquln Independent School District as en-
            larged by the county~school board order dated April
            25, 1951, does come within:and was .vall.datedunder
            the provisions of Rouse Bill 814. We,are not ap-
            prised that the etatus of ‘the district enlarged ‘by,
            the order of Aprils25~was in l~itigationprior,to
            June.28, 1951, ‘the.effect.ive
                                         date of.,.thatbill, and’
            we assume It was not.                        _’
                      Therefore, un1es.sthe county school board
            order dated July 9,.1951, can be given the legal
            effect of rescinding the annexation order ,ofA.pril
            25, thereby restoring the three lnvolved~districts~
            to their former status, it follows that the Joaquin
<           Independent School District as enlarged by the order
            of April 25,an,dcomposing the area of .the former
            Jackson and Fellowship commonsdistricts and the Joa-
            quin independent district exists as an enlarged in-
            de endent school district validated by House Bill
            81$          The question,becomes: Does .author%ty.,-
            lie’l.%%&nty    school board to’rescind its former
            order creating a valid enla~rgedschool:distrlct
            under the annexation prov~is@Ls of.Article 2922a~?,:“.?
            swra,  or,validated
                     .~         hy subsequent
                                    .~.,      legislation?  ; .(. ”
                      A countg school‘board is a creature “of .
            statute. Art. 2676, V.C:.S -.It1~selementary that.
            it has only such~powers :.concerningthe:changing of
            school districtsor boundariesas have been expres-
            sly granted by.statute or which’may necessarily be
            implied ther~efrom. While .Article 2922a .does em-
            power a county school board to enlarge an indepen-
            dent or common schoolsdistrictsto the extent there-
            in prescribed, neither that statute nor any mother
            law of which we are apprised authorizes such board
            to diminish or change an enlarged district by re-
            scission of its prior order creating~the enlarged
            district.

                                              .,
Hon. Dudley Davis, page 6 (v-1280)


          Article 2922a specifically authorizes a
county board to abolish a rural high school district
created thereunder upon presentation of a petition
signed by the majority of the voters of each elemen-
tary district composing the rural high school dls-
trict. But no similar authority is granted therein
to abolish an enlarged school district. An express
grant of such power concerning rural high school
districts would preclude,~we think an inference of
such power In the board concerning enlarged dis-
tricts.
          Article 2767,V.C .S., authorizes the .abol-
ishment of certain independent school districts, but
this may be accomplished only through a county judge
acting on a proper petition requesting an election
in the district wherein qualified voters of the dls-
trlct may vote on the abolition proposition. Article
2742f, Section 1, V.C.S., authorizes a county school
board to detach area from one district and attach it
to another contiguous district. But again this au-
thoritv is predicated upon the initiation of a peti-
tion prescribed in that law, the presentation of
which vests jurisdiction in the county board to act.
           The closest Texas case found in which is
questioned the authority of a county school board to
affect changes In the status of school districts or
their boundaries by rescission order Is Weinert In-
dependent School District. v. Ellis, 52 S .W.. 26 370
     . Civ. A . 1932). I th t case a petition was
prI:entsd to’:he Haskell bounty School Board pray-
ing that a portion of Pleasant Valley Common School
District be detached therefrom and attached to the
Weinert Independent School District. On April 11,
1931, the county board passed the order prayed for.
Thereafter, the said board rescinded the order en-
tered, the rescinding order providing that the
boundaries of both the independent and common school
districts remain as they were prior to Aprll.11,
1931. The court held that the county school trus-
tees had no authority to rescind their former action
after adjournment of the session at which the action
was’ taken, and quoted in support thereof from Cor-
pus Juris, Vol. 56, p, 239, as follows:
          ‘After an order creating or alter-
     ing a school district or other local
     school organization has become final.a.nd
     effective It cannot be rescinded, except
     by following the procedure prescribed by
    Hon. Dudle;-Davis, page 7.(V-1283)


         stetute   f'or
                     d~issolvin;:
                                or altering dis-. _.
         tricts, end subject to any restrictions'.
         thereby imposed."
              SEe also Kermit Independent School District
    v. State; 2'32S.W. ?d 717 (Tex. Civ. App. 1948);F,iathis
    Independent Pchoo!.District V. Odem Indeoendent School
    District  222 S.W. 2d 273 (Tex. C!.v.A!, . 1949);.Att'y
    Gen. Op.'V-'3"-(19&q). send 3-34?5 (lgl!l
                                            P.
            .' Accordi-ngly,we are of the.opinion that the
    county school board~ol:Shelby County did not have au-
    thority to rescind its order of annexation,,ofApril
    25, lq[:l,'by its subsequent order dated~July 9, 1951.
    The rescindin,?order of July 9, 1951, is invalid in
    that it in no-way complies with the school laws rel-
    ative to changing the boundaries or composition Of
    school districts.
                          SUNMARY
              The Joequin Independependent School
         District of Shelby County as enlarged by
         the annexation order of the county school
         boe~rddsted April 25, 1.951,actin& under
         Article 29?2a, V.C.S., is now an enlarged
         independent school district composed of
         the area of the former Joaquin Indegendent
         School District, the former Fellowship
         Consolidated Common School District, and
         the former Jackson Common School District.
         House Bill 814, Acts 52nd Leg., 1951, ch.
         5Ok, p. 1488; State ex rel. Childrese v.
         School Trustees of Shelby,County, 239 S.W.
         2d 777 (Tex. Sup. 1951).
              The county school board order dated
         July 9, 1951, attempting to rescind its
         annexation order of April 25, 1951, is
         invalid and of no effect because it in
         no way complies with the school laws
         relative to changing the boundaries or
         comoosition of Texas school districts.
         Weinert Indenendent School District V.
         EL;l;is,
                52 S.W. 2d 573 (Tex. Civ. App.
         1932): Kermit Independent S:hool District
         ~;,:~",~~D,~~,~~?S~~~~;               'Iv '

c        District v. Odem Ind. School.District,222
Hon. Dudleg Davis, page 8 (v-1280)



     S.W. 26 (270 Tex. Civ. App. 1949);
     Att'y Gen. 0 s. V-877 (1949) and
     o-3445 (1941P .
APPROVED:                   Yours very truly,
J. C. Davis, Jr.              PRICE DANIEL
County Affairs Division     Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant         &--&s.zfU
                            BY
Everett Hutchinson          Chester E. Olllson
Executive Assistant                  Assistant

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