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DAN MORALES
 ATTORNEYGENERAL                           June 17. 1994

     Mr. Kenneth H. Ashworth                      Opinion No. DM-297
     Commissioner
     Texas Higher Education                       Re: Whether the Wharton County Junior
      Coordinating Board                          College District may disammx the Needville
     P.O. Box 12788                               Independent School District (RQ-545)
     Austin, Texas 78711

     Dear Mr. Ashworth:

             You have asked us to interpret the law of disamtexation under chapter 130 of the
     Texas Education Code. We understand that you ask this question at the behest of the
     Needville Independent School District (“NISD”), which apparently desires to dissolve its
     participation in the Wharton County Junior College District. Specifically, you ask the
     following questions:
               1) Are there steps the [NISD] can follow to dissolve the district’s
                  participation in the Wharton County Junior College District. If
                  so, what are they?

               2)   If NSD] can remove itself from the junior college district, does
                    NSD] have to establish or join another junior college district?

             Article VII, section 1 of the Texas Constitution requires the legislature “to
     establish and make suitable provision for the support and maintenance of an efficient
     system of public free schools.” Attorney General Opinion M-1235 (1972) at 4. Based on
     article VII, section 1 and case law thereunder, this office previously has determined that,
     unless another constitutional provision provides to the contrary, the legislature has the
     sole discretion to determine the method of annexation or disamtexation of the territory
     comprising junior college districts. Id. at 5. In addition, article VII, section 3-b of the
     Texas Constitution “recognizes that the Legislature may authorize changes in the
     boundaries of junior college districts so long as outstanding bonds are not abrogated,
     cancelled or invalidated. ” Id.

              Thus, a junior college district may disamtex territory only if the legislature
     statutorily authorizes it to do so and only in the manner that the legislature has provided.
     You cite two sections of the Education Code in which the legislature expressly has
     provided for the disannexation of territory comprising a junior college district: sections
     130.069 and 130.070. Section 130.069(a), which the legislature enacted in 1963 (see
     Acts 1963, 58th Leg., ch. 465, at 1180), authorizes a junior college district to disamtex
     any territory lying within its borders that also lies within the borders of another junior
     college district. You indicate that this situation does not exist here.




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Mr. KennethH. Ashworth - Page 2 (DM-297)




        Section 130.070(a) authorizes a countywide independent school district junior
college district1 to disannex the territory of an independent school district in an adjoining
county ifthe independent school district was the only school district armexed to the junior
college district and if the junior college district has no outstanding bonded indebtedness
that it incurred a&r annexing the independent school district. Furthermore, section
 130.070(a) rarely mentions disannexation without also mentioning “creation of a separate
junior college district.” In our opinion, therefore, section 130.070(a) requires the
disamxxed independent school district to create a separate independent school district
junior college district.~ In summary, an independent school district may dissolve its



                (1) anilMkp&nscbooldistrictjuaioroollege;
                (2)    a city jmdor college;

                 (3)   a nrdon jmior college;

                 (4)   a county junior college;

                 (5)   ajointumIy    junior adlege; and

                 (6)   apobUcjmioradlegeesaptordivisionofa@onslwIlege
           diatria

Chapter130dthEducationCodcprovides~fortbecstablishmmtof~hautborizcdtype(d
plblicjonhrcoU~         SeeEduc~Ccdech.l3O,subch.B@nwidingforcstab~ofindqmdQlt
school dblrict or cityjunior c&legs); id. sub&. C @mvidiq for cstablishamt of union, county, orjoint-
anmtyjunioradleges). (ln1985thelc&lamenpealalsubchapterFofthcEducationCade,which
putaid IOIhe esIablishmwt of regionalcollege diskts. Sre Acts MS, 69th Leg., ch. 302, &?      3.) By
“counpdcindcpmdentachooldibtrictjuniorcollegc~wc                 wderawd seaioo 130.070(a) due
Educakm C& to indicate a junior adleg district that is au&or&d by @on 130.004(a)(l) ood
tstaMirhdwderchapbrl30,subchPpterBaadthatisbwnded,asistheindependcntscbDoldiariqby
IlEcfamIyunes.

        ZTbclegishm      enactedse&on 130.070 in 1972. See Acts 1972,62d Leg., 4th C.S., ch. 16.0 1,
at 37. NoIatdy, prior to the emadmwt of EccIial 130.070, Ihis ooicc issued AtInrncy General opinioo
M-1073 (1972), io which we coti&&, among o&r things whaher the Ckkws JuniorCollege Di#rict
migludisaMexIheMidIand IndepardentschoolDiict,IherehycrcaIingIheMidIaodlndqrcadeot
School Dimict as a seprak junior college dkict. AttorneyGeneralOpinion M-1073 (1972) at 1. By
that the, ofworse, tk legislaturehad enactedsection 130.069 of the Educationcode, but it had not yet
emackdse&m 130.070. This 05%~determinedthat no UristinSstatutg au&r&d the Odessa Junior
College District to disanaar the Midland hdqmdent    School District. Id.at 2. The opinion further
statcdtbat,ascx.istinglawsdidnotauthoriz.esuchadisannexaIion,

           the only reworse would be le&lative action. Any law authori?& such
           di~tionwouldhwetobcagmallaw,underi\lticleUI,Scctioo56ofthe
           Texas constitution.

                Similarly, territorydisan~& under a valid law could be formed into a
            ncwdistria,butthatmustbedoneunderaMilablegcnerallawandnotby~
            ataMe.
Id



                                                  p.   1587
bfr. KennethH. Ashworth - Page 3            (DM-297)




participation in a junior college district pursuant to section 130.070(a) if the attendant
ciramitances satisfy the following prerequisites:

                 (1) The junior college district annexed the independent school
           district.  See Educ. Code $5 130.064 - 130.068 (providing for
           annexation of territory to junior college district).
                (2) The independent school district is the only school district
           that the junior college district has annexed.
               (3) The independent school district is in a county that adjoins
           t&ejunior dege district.

                (4) The junior college district is an independent school district
           junior college district, established pursuant to chapter 130,
            subchapter B of the Education Code.

                 (5) The junior college district is countywide.

               (6) The junior college district has paid off any bonded
           indebtedness it huxured since the junior college district annexed the
           independent school district.
                 (7) The independeatt school district will create a separate junior
            college district.




        Senate Bill 19, which, when mmctcd,arkkd section 130.070 to tbc Education Code, was
itadwed at the fomth called session of the 62d Legislature. This office comdered, in AttomeyGeneraI
Opinion M-1235 (1972), the applicabilityof kste Bii 19 aad its compnnionbii, House BiU 33. llmt
~inionquotrdthcfou~~factsfromthe~~sleaatothis~~:

                In their application, [Senate Bill 19 and Homx Bii 331, these biUs will
            applyonlytotbeOdez%JtiorCdlegeDiict.                Apartoftbatdistrict
            comprisingthMidlaad~ntScboolDistrictwantsalegal~ra
            dimnnex itself fromthe OdessaJuniorCollegeDistrict.
Attorocy Gamal Opinion M-1235 (1972) al 1. In answer to tk requestor’sinquiries regading the
applicabiity of the bills, the opinion concludedthat “thebills in questionapplyto any idependent school
d&rid which is the only school district that has been amxxed to a county-wide imkpendent school
dislrictjunior college districtin an adjoining county.” Id.at 6. The opinion tkttheradvised that “the
provisions of these bii wiU apply to deannedon procedun of territoriesof an idepdent             school
districtwhich is the only school districtthat has been amxxcd to a cwMywide independentschool district
junior wllegc district in an adjoining county, whether such territoryhas been annexed prior to or
wbseqowttothe mmcbnentof thesebills.” Id.




                                              p. 1588
Mr. KennethH. A&worth         - Page 4     W-297)




If all of these criteria are met, section 130.070(b) - (t) provides a procedure by which
“[t]he proposed disanne.xation and creation of a separate junior college district” must
occur.3

         We note that Needville lies in Fort Bend County, a county adjoining Wbarton
County. However, we have not been advised whether the ciraunstances sat@ the
prerequisites to the application of section 130.070(a) of the Education Code. See supru at
3 @sting prerequisites for the application of section 130.070(a)). Accordingly, we cannot
detemtine whether section 130.070(a) authorizes the Wharton County Junior College
District to disaMe!x NISD. If NED is, in fact, “the only school district that has been
ammxed to a countywide independent school district junior college district in an adjoining
county.” and if “the countywide independent school district junior college district has no
outstandhq bonded indebtedness which was incurred a&r the annexation of NED, then
section 130.070 authorizes the disannexation, and NISD must comply with the procedures
for disannexation and creation of a separate junior college district that section 130.070
articulates. See supm note 3 (describing procedure).




        ‘~130.070@)requiresapetitionsignedbyatleadfivepacmtdtbe~~
elcdors~tbcindependemrbooldistri~psJ;ingdisanmcatontoinitiatcthcpmposcddisanmcation
andcreationofasepamtejuniorwllegedistrkt    Tlxpetitionmustbepmmntedtotbboardofbustecs
(tbe=bcd”)oftkiadepadeatscbwldi6lriuseekioglobc-                  Bduc.Code~130.070@). If
thcboardappmvestbepetition,itmustforwardthcpditiontotbccoOrdinating~Tcxascdlcgeand
UniversitySystem(the %oonUwtingboard”).Id.

        Tkmordiaptiogboardmuslapprnvcutepctitionifthcwnnumningboardflmtstbepetitionm
k io o&r and ifalls&totmyprovisions     bavcbcw wmpliedwith. Id.0 130.070(c). After the
     . .
txlomaqboardhssnotifledtbebwrdoflheeoordinatingboard’sapprovaltbcboardmuaorderao
ekdionndlcasibao2Odaysnormorethao3Odaysaftertheorderisissual.          Id. Electionballctsto
~fmvidcvding~nrcrc~          tk prtqcsih mnst pIwide as follows: lxion          oftk -
                           ~JmdorC!oUegeD&ict,andcreationofthe~               Junior College
Disnietwiulbwndsriescotamiowswitbtibmmdarieadtht       -     rodependentMoo1 Distkt.” Id.

        Within1Odaysafterholdingtheelection,theboardmustcanvam            theretorosand&clarea
tradt.Id.p 130.070(d). “lf a majorityof the votes cast are in favor of d&me&on and creationof a
sqamte jmdor wllege distrid, such imkpendent school district shall be deemed disanncxcd and
wwtitutedasasepamtejuniorwllegedistrict.” Id.Chapter130,subchapterBoftheEducation &de,
ptahiog to Utcestablishmentof aa independentschool districtjunior college district(see supa nctc 1).
pmvi&a the pmwdmv, the independentschool district must use to wzate the sqamte junior wllege
district.
       Id # 130.070(e).

         Any of&r mpresentbtgthe disaonexedindependentschool districton the governingbody of the
amntywik indepeodeot school district junior college ditict is terminated,althougJ~the remaining
membersof the goveming body continue to servefor the termsfor which they were elected. Id.Finally,
any petition for dkmmexationand cm&on of a sepamtejunior wllege districtmay include a requestfor
a0 election to &ctdc whether the seyate junior wllege districtmay issue bonds, levy bond taxes, and
lmy msi&nmw taxes in the event thejunior college districtis cxated. Id.5 130.070(f).




                                             p. 1589
Mr. Kenneth H. A.&worth _ Page 5        (DM-297)




         In addition to sections 130.069 and 130.070 of the Education Code, article 2815~
V.T.C.S., ccmtinues to authorize the board of trustees of a joint-cmmty junior college
district (see Educ. Code 4 130.004(a)(S); see &o id. ch. 130, sub&. C (providing for
establishment of joint-county junior college)) to disannex any territory located more than
55 miles i?om the location of the junior college, if a majority of the property owners in the
territory desiring disammxation have petitioned the joint-county junior college district to
be disannexed and ifthe board of the junior college district consents to the disannexation.
NeedviUe is located less than 55 miles from the location of the Wharton County Junior
College. Consequently, article 2815p, V.T.C.S., does not apply in this situation.

                                   #UMMA.RY

                 Three statutory provisions authorize the disammxation of
           territory from a junior college district: sections 130.059 and 130.070
           of the Education Code, and article 2815p, V.T.C.S. Neither section
           130.069 of the Education Code nor article 2815~ V.T.C.S.,
           authorizes Wharton County Junior College District to disa~ex
           Needville Independent School District. We are not presented with
           sufbient fitcts to determine whether section 130.070 of the
           Education Code authorizes the disamtexation. If section 130.070 of
           the Education Code is indeed applicable to the situation, that statute
           governs the procedure for the diwmexation.




                                                      DAN MORALES
                                                      Attorney General of Texas




                                         p. 1590
Mr. KennethH. Ashworth - Page 6      (DM-297)




JORGE VEGA
Fii fbsimnt Attorney Gene-d

DREWDURHAM
Deputy Attorney General for Crimind Justice

WILL. PRYOR
specialcounsel

RENEAHIcKs
State Solicitor

SARAH J. SHIRLEY
Chair, Opiion Committee

prepared byKymbedy K. Oltrogge
Assistant Attorney General




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