The Honorable M. L. Brockette                    Opinion   No.   H- 555
Commissioner,    of Education
Texas Education Agency                           Re: Voting status of county
201 East 11th Street                             line independent school district
Austin,  Texas   78701                           residents and procedure for
                                                 detaching and annexing school
The Honorable George E. Dowlen                   district territory.
Criminal District Attorney
Randall County
Canyon, Texas    79015

Gentlemen:

          You have asked whether persons residing in Randall County but
living within the boundaries    of the Amarillo    Independent School District
are permitted to vote for the offices of Randall County Board of School
Trustees.      The Amarillo Independent School District,       a county-line
district,   is under the administrative    control of Potter County pursuant
to-section 17.01, Education Code.       Attorney General Opinion V-591 (1948),
based on section 8 of article 2742b. V. T. C. S., decided that such residents
of an independent school district could not vote in elections to fill county
school trustee posts for the county which did not have administrative
control of the school district in which they lived. Subsequently         statutory
changes have prompted reconsideration         of that conclusion.

        In 1969 Titles 1 and 2 of the Texas Education Code were ad~opted.
Article  2742b, V. T. C. S. was expressly  repealed.. Many of its provisions
were incorporated    into various sections of the new Education Code, but
not the provision of section 8 upon which Opinion V-591 was based.

         Former article 2745a,    V. T. C. S. spoke directly to the election of
county school trustees,   permitting   residents  of a school district to vote
for the’county school trustees having management        and control of the school
district regardless  of the county in which *lived.        Its successor,  section
19.104 of the Education Code, now reads:




                                   p.   2494
The Honorable   M. L. Brockette
The Honorable   George E. Dowlen         page 2   (H-555)




                     All persons who are otherwise qualified to-vote in
                an election involving a school district question and who
                reside in a county line school district shall be entitled
                to vote at any such election involving the school district
                regardless    of whether or not such voters reside in the
                county having management     and control of the county. line
                district.

         No definition is given of “a school district question” or “any such
election involving the school district, ” but we think it remained the
intention of the Legislature   to permit persons situated in areas under the
management and control of particular      trustees to have a voice in their
selection.   In fact, the Equal Protection   Clause of the federal constitution
may require it. Hadley v. Junior College District,       397 U.S. 50 (1970);
Avery v. Midland County,      390 U.S. 474 (1968).

         Section 17.02 of the Education Code specifies      that “unless otherwise
provided by~law” the county board of school trustees        of a county shall be
composed of five members,         one of whom shall be elected from each of the
four commissioners      precincts   of the county by the qualified voters of such
precincts,    and one from tbe county at large.     Inasmuch as section 19.104
of the Education Code permits voters living outside a county to vote in any
election for the county school trustees of that county if those trustees
administer    and control a county-line    school district,  the “unless otherwise
provided by law” language of section 17.02 is applicable.

        ’ Tbe Texas Con~stitution deems every person a qualified elector who
is of the requisite age, who has resided in Texas one year, and who has
resided in the county or district     in which he or she offers to vote for the
last six months prior to the election.      Art. 6, § 2, Tex. Const.   The
Legislature    cannot prescribe  a different standard unless the Constitution
authorizes   it.  King v. Carlton Ind. Sch. Dist.,    295 S. W. 2d 408 (Tex.
Sup. 1956).

         In our opinion, persons residing in a county line school district
but not in the county having management     and control of the school district
offer to vote in the school district when they seek to vote for county school
trustees   pursuant to section 19.104 of the Electi,on Code.  This concept




                                    p.   2495
The Honorable   M. L. Brockette
The Honorable   George E. Dowlen         page 3   (H-555)




is supported by subsections    (d) and (e) of section 17.03 of the Code
which governs the manner of holding elections for county and other
school trustees.    Those subsections    provide that the order for such
elections must designate as voting places in each school district the
same places used for voting on district trustees and they specify that
residents of a commissioners      precinct may thereby validly be required
to vote at polling places outside that precinct.     See Teeple v. Beedy,
316 S.W.ad 31 (Tex. Civ. App. --Amarillo      1958, norit).

        We are therefore   of the opinion that persons may vote only for
those county school trustees who have management and control of the
school district in which they reside,   and may not vote for county school
trustees who do not have such power, even though they reside in the county
for which the school trustees   are to be elected.   Persons residing within
the Amarillo   Independent School District may not cast votes in elections
for county school trustees of Randall County.

         Each of you has also addressed   a situation arising from the desire
of a land developer located in the City of Amarillo,    but within Randall
County and the Canyon Independent School District,      to have sixty acres
of land detached from the Canyon Independent School District and annexed
to the Amarillo   Independent School District.‘  Mr. Dowlen has posed these
questions:

                    (1) May the Randall County School Board detach
                land from the Canyon Independent School District
                without its consent?

                    (2) Does the Randall County School Board have
                any authority to detach or annex land without pre-
                viously having been given approval by the Amarillo
                Independent School District?

                     (3) Assuming   that all conditions have~been met
                prior to the hearing set out in Article 19.261,    Texas
                Education Code, must the Randall County School Board
                detach and annex the land as sought in the petition,     or
                is it purely a discretionary    function on their part?




                                    p.   2496
The Honorable   M. L., Brockette
The Honorable   George E. Dowlen            page 4   (H-555)




        The procedure for detaching territory from one school district
and annexing it to another is set out in Chapter 19 of the Texas Education
Code, Subchapter I.    The various provisions     of sub,chapters J and K
either do not apply or do not affect the results.     Section 19.261 reads:

                     (a) The county school trustees or county board
                of education,   as the case may be, in each county of
                this state shall have the authority,  when duly peti-
                tioned as herein provided and in compliance     with
                the limitations   of Subchapter K of this chapter,  to
                detach fro@       annex to any school district territory
                contiguous to the common boundary line of the two
                districts.

                    (b) The petition    requesting     detachment   and
                annexation must:

                     (1) be signed by a majority of the qualified voters
                residing in the territory  to be detached from one
                district and added to the other; and

                    (2) give the metes and bounds of the territory to
                be detached from one district and added to the other.

                    (c) The proposed annexation must be approved by
                a majority of the board of truetees of the district to
                which the annexation is to be made.

                     (d) Unless the petition is signed by a majority of
                the trustees of the district from which the territory
                is to be detached,     no school district territory  may
                be detached where the ratio       of the number of scho-
                lastics residing in the district from which the territory
                is ~to be detached is less than one-half the ratio of the
                assessed    valuation (based on preceding year valuations)
                in the territory    to be detached to the total assessed
                valuation (based on the preceding year valuations)       of
                the district from which the area is to be detached.




                                       p.   2497
The Honorable   M. L. Brockette
The Honorable   George E. Dowlen           page    5   (H-555)




                     (e) No school district may be reduced       to an area
                of less than nine square miles.

                    (f) Upon receipt of the petition and notice of the
                approval as required by this section,    the county
                governing board shall notify the trustees of any
                other common school districts     which may be affected
                by any contemplated   change and ,specify the place and
                date at which a hearing on the matter shall be held
                and at which the trustees   of any common school district
                to be affected shall be given an opportunity to be heard.

                     (g) After tbe conclusion   of the hearing,  the county
                governing board may pass an order transferring          the
                territory   and redefining the boundaries    of the district
                affected by the transfer.     Tbe order shall be recorded
                in the minutes of the county governing board.

                    (h) Any outstanding indebtedness  affected by a
                change in boundaries shall be adjusted by the county
                governing board as provided in Subchapter N of this
                chapter.

          We are advised by the attorney for the Canyon Independent School
District that no scholastics     resided in the territory    sought to be detached
at the time of the last scholastic     census.    We have not been advised of the
most recent assessed      valuation in the territory,    but it obviously must have
been assigned some value.        We do not resolve.disputed      fact issues,    but if
it is correct that the scholastic     population of that territory at the time of
the last scholastic   census was sero,      then the ratio of the number of scholastics
residing the’re to the total number of scholastics       residing   in the Canyon
Independent School District must be less than one-half the ratio             of the
assessed    valuation of the territory to the assessed      valuation of the whole
district,  and the territory   could not be detached unless the petition to
detach is signed by a majority of the trustees of the Canyon Independent
School District as required by subparagraph         (d) of section 19.261.     Also,




                                     -p.    2498
The Honorable M. L.      Brockette
The Honorable.George      E. Dowlen         page   6     (H-555)




-see Lakeview Common School District v.            County School         Board   of Trustees
 of San Saba County, 38 S. W. 2d 598 (Tex.             Civ.   App.   --Austin    1931, no writ).

           The remaining two questions are answered by the plain language of
 section 19.261 subparagraphs       (c) and (g) set out above.   A proposed annexa-
 tion must be approved by a majority of,the board of trustees to which the
~annexation is to be made.       Also
                                 --    see section 19.332 of the Education Code
 (Subchapter K).      In a proper case after a hearing a Board of County School
 Trustees     may, but is not required to detach or annex land as sought in a
 petition assuming that all legal requirements        have been satisfied.     The
 decision of the trustees     can be appealed administratively,    but the final
 administrative     decision is reviewable in court only for an abuse of discre-
 tion or a lack of substantial’evidence     to support the decision made. Educa-
 tion Code § 11.13: Wylie Independent School District v. Central Education
Agency,      488 S. W. 2d 166 (Tex. Civ. App. --Austin      1972. writ ref.,    n. r. e.).
Also see the two cases styled County Board of School Trustees              of Leon
 County v. Leon Independent School District,         328 S. W. 2d 928 (Tex. Civ. App.
 --Waco     1959, no writ)~, and 336 S. W. 2d 809 (Tex. Civ. App. --Waco         1960,
 no writ).

                                   SUMMARY

                      Residents  of county-line independent school districts
                  may not vote in elections for county school,trustees    of a
                  county which does not have administration    and control of
                  the school district in which they reside.

                     Where territory   sought to be detached from an
                 independent school district contained no scholastics
                 according to the last scholastic  census,  it can not be
                 detached unless a majority of the trustees of the district
                 from which it is to be detached sign the petition to detach.

                       Any proposed annexation of territory  to an independent
                  school district pursuant to section 19.261 of the Texas
                  Education Code must be approved by a majority of the
                  trustee& of the receiving district.




                                       p.   2499
 The Honorable   M. L. Brockette
 The Honorable   George E. Dowlen            page     7   (H-555)




                      A county board of school trustees,       after hearing
                 a petition to detach and annex territory from one school
                 district to another may order, but is not compelled to
                 order,   such detachment and annexation.         Such an order
                 is reviewable administratively      but the final administra-
                 tive decision is reviewable   in court only for abuse of
                 discretion   or’lack or substantial   evidence.

                                                          Very   truly yours,




                                                          Attorney   General    of Texas

&=PROVED:
  ‘.
  $&Jib&!                          tq
 DAVID M.. KENDALL,        First   Assistant




 C. ROBERT HEATH,        Chairman
 Opinion Committee




                                        p.     2500
