              THELI~~~ORNEY                      GENERAL
                               OF-XAS




                                May 5, 1959

Dr. J. W. Edgar
Commissioner   of Education
Texaa Education   Agency
A,ustin, Texas
                                   Opinion      No. WW-617

                                   Re:    Where an Bria or community
                                          is now included        within the”
                                          botihd&rl&s of a munidipally
                                          controlled      independent
                                          schbol    district     for ‘sdhool
                                          purpose& only, &id. that
                                          cotimunitt ihctirpoFat.eB~ihto
                                          a dity. or town; will          such
                                          fncorporatlon’      aiitoiatlcally
                                          affect    any~‘rightb ‘that thb~
                                          muni~lpally      controlled       dib-
                                          triot    may”have to exe*ci&e
                                          and’ continue      jurisdidtion
                                          theticlln for school       purposes
Dear Dr.   Edgar:                         onl)?

            We quote    from your     request    at3 follows:

                    "Fadtual situatiofi:        There is a munioi-
            pally controlled      lndependent’schtiol         district.
            The oity cbtiprising       that’city     contrblled       in-
            dependent echo01 district           ha8 ~bn several       oo-
            OabionE    extended hits city’ boundaries          fbr
            sohool    purposes 6nly ufider~Atitlole         2803, so
            that till-: ,lty  conttibllsd      dohool district
            boundiii*r=Y bxtend btfond the”botindaHes               of
            the oitJ ,‘or~ city     purposds ~to include         con-
            stderbti&e area not ‘a pert ol’ the city~ proper.
            A Oom~~r(,.rt~ has de%loPe~d In’ this area not a
            paFt of thC city      prbper~ but within’ the boun-
            darlea~ of city oontrblli?d         school   sytititi as
            extended for schbol        p,tirposes L Purri aant to
            Articles    1133, et seq., V. T. C. S., an eletid
            tidn has been called        to lncorpbrate       this oom-
            munity, to make of It an incorporated                city.
Dr.    J. W. Edgar,       page 2 (WW-617)



                     “We have needy for and would           appre-
              ciate   an oplnlon’from  your office           on the
              following   question:

                                “Where an area or community ia
                        now Included’ within the boundaries
                        of ‘a municipally        controlled     inde-
                        pendent school        dlstrlct     for school
                        purposes     only,    and that communify~
                        Incorporates       into a city or town,
                        will    such~ Incorporation        automatic-
                        allyaffect       any rights       that’ the
                        municipally      ~bnt~olled”dlitrict’
                        may have-to ‘exercise          and continue
                        jurisdict.fonthereln           for school
                        purposes     only. ’

           It is elementary     that school    districts    may be
organized  or- abolished   and’ the ‘boundaries    thereof   altered
only in accordance     with the constitution      or stat,utes.

              Section    10 of     Article    XI of   the Texas   Constitu-
tion    provides   that:

                     “The ‘Legislature   ‘may ‘constitute   any
              city or town a separate        and independent
              school   district.     . . .‘I

              Article       2768, Revised     Civil   Statutes,    provides:

                      “Any city or town in this~ State
              may acquire      the exclusive     control     of
              the publics free ‘schools       within     its “limits.
              Any city” or town which has heretofore,
              under the Act’ of Marc’h 15;’ 1875, or any
              subsequent     law, assumed c’ontfol         of the puol3.c
              free’ schools ‘within     its Iimlts,        and’ has con-
              tinued~ to eierc3se”the       same- until      the”
              present    time,: or any”dity      or town’~tifilch”may
              hereafter     determineso      to’ d&by majority
              vote 0T the ‘property       tax”payers      ~of said
              tiity~ or~townvoflng      atan     eletition’held
              for’th~at ~‘purpose;~ may h;iVi? exc1iisivo        “’ “’
              control    of ‘tke pubIic free schools          within
              its limits.       Acts 1905, p. 263.”
Dr.     J. W. Edgar,    page 3      (W-617)


             The special   nature of a ,munlcipal school'dlstrlct
is illustrated    by thelanguage      used by the court In the
case of Towh of Sunnyvale;       Texas'v.  DallasCounty    Board
of School Trustees,      283 S.W.2d 296 (Clv.    App. 1955) as
folLows:

                      'The adjudicated         ca,ses lead us to
              the~tionclusion        that ~a municipal        school
              dintrict     whlch'lncludes~a11           the.terrl-
              tory within 'the "limits' of'~a city~~or"
              town and which meets all the'reqiiire-
              tierit    of Art'. 2768, R;C'iS;',' cannot be
              changed inoofar         as the'territory         with;~
              In Its city       Ilmits' lKcohcerned;~exce~t
              by"the~vote       or consentof         'a majority     of
              the Citizens        of the-town'as~       a whole.
              Tn~other words; it"canhot               be changed by
              the vote of ~the persons residing                only
              In a portionof          the-towh     who seek to'
              disannex"suCh"portion'from               the"balance
              of the munidlpal          school    dl.atrltit   within
              the'city     llmlts     of"the    tbwn;~ or by the
              County'Board        of' School Trustees         based
              on such a vote byonly             the'qualifled
              voters     of the territory         dlsannexed.

                    "Underthe   record,     if the trials
              court had jurisdiction      of'this   proceed-
              ing we should sustainappellant's          conten-
              tion in its asserted      question  for review."

             The incorporation      of a city or town pursuant to
Artidles~ 1133 et'seq,'Vernon's          'Civil   Statbtes,'does'not~
automatically~glve       the'municipality'so~formed            control   of
then s~hools'i~cated"withln'its           corporate    limits.     ~The'
mode of organlslng~munl~lpally            controlled     tichool districts
as prescribed      by Article   2768 is exclusive.
              Your question       is   therefore     answered      In the   nega-
tive.

                                        SUr.lPlARY

                  Where an area or community is now
                  Included   within the boundaries        of
                  amunicipally       controlled    independ-,
                  ent school-district         for school  pur-
                  poses only,    and that area or com-
Dr.   J.   W. Edgar,    page 4    (W-617)


                   mtinity incorporates        into a~ city
                   or town, such lntiorporatloti'will
                   not atitomatically       affect   ai-iy
                   rights   that the mtitilci~~lly'coh-
                   trolled'   distl'ict  'ti&y'have to'ei-
                   &clsKand~      cdntihue~jurlsdicflo~.
                   therein   for school      purposes only.


                                        Very   truly   yours,

                                        WILLSWILSON~
                                        Attorney General        of   Texas




                                        -"   Leonatid~ Passmore
                                             Assistant

LP:rm:sd

APPROVED:

OPINION COMFTITTEE
Geo. P. Blackburn, Chairman

Zellner     J.   Turllngton

Robert     H. Walls

Llnward     Shivers
REVIEWEDFOR'THE~ATTORNEYGENERAL
BY: W. V. Geppert
