OFFICE        OF THE ATTORNEY     GENERAL     OF TEXAS
                         AUSTIN




Bonoreblo X. I,. Shelton
County Xuditor
Johnson Couzity
Claburne, Toxee
Dssr   Sir:




                                             varfld b.y the Peti-
                                               C. Johxsn end
                                            .presuntad to aad
                                            by the Rio Viotn
                                            ar;riot Eoerc! of ?33y


                                   f roG%nt   dab3 and f'rOn an
                                    in tho ikpertmnt      of Zdu-
                                   the fol1oxir.q  facts:
                             or to 1906 ocrtain terri-
                            y oonstitutsd     the Mustang
                   rfct,   which apparently enjoyad
                   of a cmxzon school district.          Long
                     ft he5 been disoontiuue@      as E
                  triat arid its territory      wee loft
                           czhool diotrlot.      Includad
                         Lohool Distriot    is the Joseph
       Dickson survey which wes edjaoent to the 0.
       %oore Survey.     The latter   survey lies pertly in
       Johnson Courrty et-id Fartly in Hill County.
               On !Zay 28, 1906, a najorlty of tho quel-
       iffod    votera llvlne within tho bounds of the
                                                                          .._
                                                                                205


       :




Hon. IX. I:. Shelton,   Pa&   ;Z



     ,foccph Dickeon Swvey ana ocou_~ying 5 portion
     of3.tklat surVeyI filed s petition   with tha prasi-
     dC%lt Cf the Eoard of Y’rusteec o.f the Rio viste
     Independent School DI.Etrict, which district       ms
     locstaa xithln the boutida of Johnson Cocnty,
     doclnring their dcslre to beoorw a pert of the
     RIO vista Scf1ool District,     I~uYsuent to tll1.s
     peti,tion,  ths Eosrd of Trustees of the Rio Vps-
     te Indopcndent School District,     by resolution,
     inoorgoratsa   into and nm?e jxrt of ths Rio
     Vista Tndependant school. L’istrict   thlo perti-
     oulsr portion of the Joseph Dlckscu Survey.
     This reuplxtion,   whiah is recorded in the oounty
     oourt records,   roads as follows:
             “On this the 25th day of Zag 1905 the
      Presiilent of the Board of 4.?rusteas eubmj.ttsa to the
      board the petition        Fn writing of 3. C. Johnson end
      fivo other persons xixioh l;etit;isn hsd hem duly fllod
      with the Prcoident of the Eoal’d, preyin? that the
      territory    hereinafter     desoribed bo roceivea        ns an
      addition to ma to beoo!.w pnrt of the Rio Vista
      Independent School District,          and the board heQlng
      coneidered     suid petition     the affiaarit       of threo
      of the subscribers        thereof ottachea thereto,         end
      all the fects In conzc%ion           therei.ith    is of the
      opinion ad upon Inve.:tigatioo           finds the fects
      to bb~ that thu proposad aadltion will not in-
      creaoe t&o oozporate lldte           of bsia Rio Vists Snde-
     .pendent School liistrict        60  thst the Dhole whsf, thus
      inorecised, v;ill not eroaed ‘I’iwnty Yivs S.n,usre/ T..!ilf?~,
      &nd tllat the signers of.seid         petition     Constitute   8
      mjor:ty     of the re.,,-*dent qilalifiua      voters of said
      territory;     therefore,    me it Resolved by the Ijoard
      of y;ustcos     of’ the stlia R,lo Vista Iriiel>endent
      fichool District      that the fclloviing      described ter-’
      rltory,abeinp,     the some territory       which is described
      in aala petl.tfon be, sna the nsme heraby is r3-
      ce.iQed .es E,n sdirition to and to beocmc a part of
      the co;por6to      limits of the mid Rio Yists %aepon-
      Cent Yohool Diotrict.R
            Subsequently,    on ootober 16, 1906, under znd
      by virtue of an order issued by the County Ju@Ge of
      Hill cowkty, an eloot.lon was hsla at ijlun, Texas,
      v&i& spperently     hr;a EiS its objsotivo tho formtion
Hon. E. L. Shelton,       Pa@? 3



     of the Dlu~ Indopandent Sahool District.
     Ze have asoertained   fro= the Departmnt
     of Xducotlon  that the klu5 %3hOOl    District
     becmie an indepcn:dent School district     on
     their rccorda 1.n Novezber, 1900.     The onti.re
     Yoseph Dickson Survey, includkn.~ th5t portion
     thsl*2of which hcd prericnlsly pctitioncd     to
     becom a part of the Rio Vista ImieRen~ant
     School   District,    v&=ia medo     a   part   or   t113   E3i?
     Elurn Indegencient School          Distriot     by virtue
     Of that election.
          The Rio Yiata School District    in
     Johnson County was lncoryoratod    In 1903
     as a tom for school purI>osaa only, undar
     pme,ral law,   5n 002q7licnoe w;ith tho kct
     of 1075, acoordlnr to tho recordo of the
     DepaTt~3ut Of Education, and ia still. a
     valid indcpcndent school distriat.
               You submit fork the opinion of this               dapartaent
t\vOC&e~ti~.!lLi,   vihich vie quote BE f'OilO%S:
           n1.a Upon the baois of the f&0%6 presented,
     doos the Elm School Distriot   have a lceol and
     lewful claim to that part of the Joseph Dickcon
     Survey that is covered by the patition   of E. C.
     Johnson and othe~a as presented to end coceyted
     by the Rio Vista School Doard of Xay %5th, 19067

           "2.   If the Blum Sahool District   does
     not and cannot estcbllsh    legal Ovihership of
     said territory   In quostfon,   can the Rio Vista
     School District   bring suit and collect   the
     school taxes that,have beea paid to the Elan
     School District   by the people reslcing   within
     the wtes end bounds of said disputed terri-
     tory for the laet twenty-five     years or lon$7er?*
           * It is apparent from a readinS of the resolution
adopted by the fiovrd of Trustees of the Rio Vista Indepen-
dent School District       and fro:3 facts contained ?m your
latter that such Eoard and t!:c petitioners         in the dis-
puted portion of the Jo~-sph Diokcon Survey sourht t0 OOIX-
ply v;::it,hthe provisions    of Sao. 153, Chsp. 134, Acts Of
1905, 29th Legislature,       pp.- "03,304, in their effort8    to
Eon:E.   L. Shelton,     Page 4



extend the district  boundaries.       to inolude that area.
Thf~; sootion which was oarri.ed       unohnnced into the re-
vision of 1911 8s Article   2065       and into the revioion
of 1925 as ktiale   2765, prior        to its repeal in 1929,
refid 85 foilo~~:
            Vhenever the terr-itory          heretofore    incor-
     pO2Htt:a, or vihlch may herc;F;ftor ba j.ncorpo-
     rated, for free SOhO pLWpOS%S,shall c0ntol.n
     10Sa than twenty-five          square miles; and there-
     after the majority of ths inhebftanto,               qualified
     to vote for members of the Legislature,               of ony
     territory     sdjoininy, the limits of the town and
     ville~e    50 incorporated,        shall denim such
     territory     to be added to and become a part of
     such &mzporutea          tom or wimp          ITOF froa s0h051
     purposes only, and a mjorltp             o? such yualiriari
     voters    S~FJIR JMtitiOn t0 that Gffect,            sny three
     of such quelificO        voters xxy file ~3iti-1 tb,o prt30-
     ident of the Poard of Trustees of sunh insorpo-
     rated toun or vilfege         the said petition,       fully
     desorib?ng by metes and bounds the territory
     proposad to to annexed and shoyJin@: ito location
     with reference      to the existing       territory    of tho
     town or village       dreaay     incorporated,      pOdha
     that sslG territory        proposed to be added must be
     contitg~ous to one line of said corporation.
     Upon so filinc: said petition,           dxaavits      nud dca-
     ariptions,     said president       shall submit the same
     to the board* and, if upon investigation               by the
     Eoard it is found that the proposed addition
     vii11 not increase the oorporsto           Limits RO that
     the :shole, Vihsn so inoreased will exca?d t:;lonty-
     five squzrc miles, the said board 5T trustees,
     by resolution      d~uly entered upon its minutes, may
     rec~lvo suoh propo3ad territory            0s an addition to,
     en:'. become R part of, the ooqporate 1imitS Of suoh
     t5vn or village;       a copy of v;hlch resolution,          oon-
     tain3ng, a doscrdption        of the c-iadea tersltory,       shall
     be ffl&     for record in the county clork15 OffiOe Of
     the county in whioh eaid to&n or villn@                 is ait-
     uatea, aftor whidh the tar-itory             80 received
     shall be ‘0. part of said toyin or villofo;             . . ."
           Before entering      into a discussion of the lepality
of the eation 0s ~1% flill      County snd Hum School District
Bon. E. L. Shelton,            Pege 5



authorities    let US first detemine    vihether or not there
existed at thst time any stetutory      or ooustitutlohal
authority   for tho annexation of the disputed area to the
Rio Viste Independent School    Glstrict.
           In’l906, Sec. 3 OS Article VII of the Consti-
tution, diioh authorized the Le@lature    to farm school
districtG  road GS folloi’;s:

                  . and the L6piSlatUre
                r..                      may ulso
      provide  Sor the formation of school dlstj?iots
      withfic all or any of the counties OS this
      State by @m.eral or specie1 lav<s .    .‘I
                                             l




             In addl.tion to Seatton X5:5, whfr,ohwe qv,oted
above, thera ~33 on th3 statute books at that tlm a pro-
vision fez the Somotion       OS school districts   cmitaining
pa&s of Tao or mare counties,        conea oounty-line    school
districts.     Nction    55, Chapter 1;: 4, Acts OS 1905, 29th
Le~~lsla’;ur6.   These two stututr;s were intagral parta OS
the “6chool Code”.
            Eo speoiffo    lan$uege is to be Sound in %otion 158
pormittiniT, the ext ension OS Independent Sahool Dlstriot
boundariss to includa territory        in more than a sln~lc oounty,
but the fact that seotion tit, dealt with the same ~.eneral
subjeot and was contained in the sme body OS ~RIY jiave
those districts,     under rano&zed      rules of statutory con-
struction,    3.~1plied authority to so extend their bourdarien.
Carlton Independent Sohool District        v. Jordon, ot nl, (31~.
App.,   Eastland,   1928)  0 S.  3’
                                  . (2a)  384; rcveraed in part,
(co~m.~ &q.,     EFC. )J, 1930) E5 6. I;‘. (2d) 610. Cea also 39
Tex. Jur., Sootion 13r3.
           ln 1906, however, the Guproloe Court d,eternlued
that the Legislature    bad no authority    to authorize the
Somatfon of school distr$cts       lyin@ partly in diSSerent
COUntiet3, or no-called   oou.uty-line  districts,   and that
seation 3 OS /.rtiqle   VII of the Constitution    required that
all school districts    be kept wvithin county boundaries.
Parks v. Xeet, 102 Tex. ll, 111 9. ‘8. 726.
                All    acts
                    by the Legislature      authorizing. the
fomation        of      containing
                      tij.atri0t.a     parts. of tw3 or Icore
oo~ties   wore thus held UncWstitUtiOnal.        Reocssarily
any Implied authority attributed      to independent clistr@ts
 iion. E. L. Shelton,   Page 0


 t0 extend their boundarien.earosfi    county lines     under
 Saction 153 v;es also unconstitutional.
              Tha l@slatLVe     authority under which the Rio
 vista Indepeni'iont school llistriot      puxportad to act being
 unconstituti.ona.1;   its atte;a,;it to mnax the dQjput&     6r~a
 in tlill County was 3Skewlse in.v:ilid and did not aSfact
 th3 St~ltUQ of t!i9t eTEti arj Ullclcimcd    territory.  The
 IT40 vista   dictriat   had no p2Z.w cl.tiim to this urea, and
.thb R111111district   hc;d a Pi&h%, at that time, to include
 it v?ithln its boundaries.
            ~?GWVer, aftor the decision     in Parke Q. Xeot,,
SeCtiOn 3 Of hrticle     lt13 of the Constitution,     was a;l:%udod
on &otember 24, 1.909. Thu a:G:atiant,        in e.ddition   to
supplying thr; nscoscory oonstitutlonal       authoritv    to the
Lc~l~loturs   to provlc?o for the formation of sch.;)01 d.is-
tricts   oomposud of ports of two or more counties,         vali-
datsd all prior sxisting      county-line  districts.
              The portion of the anendnent pi-ovidiog the
 Le&lature      with authority  to form dfstcicts  crossing
 GOUnty   li.naS was pUr@ly  enabling and ~8s in no sense
 f3elf-exucutla~,   as pointed out in Carlton independent
'Gohool District    v. Jordan, supru:
            YIad ths Legislature     nwor seen fit
      (thereafter)     to provide for the formation
      of districts     lying partly in two or more
      oountfws, none twtir oould have lawfully
      existaa,   ssve and except those which by
      the same aonstitationnl      amendment had been
      expressly    validated.**
           The Legislature    did not exorcise      its power
under the emendrm!nt until 1911, at which time it provided
for the formation of county-line       districts    in Ch,rptor LOO,
p. 200, Canaral Ls:is of 1Yl.l.. The provisions         OS Zaction
155, Acts of 1905, varz at thet time re-enacted,           u.nchanFed,
in the oodification   of 1911 as Artiale       2865, OS notad above.
Thus prior to 1911 no authority      existed     <n the Texos sta-
tutes SOP the Somation     of districts      composed of two or
more counties or POP the extansion of district           boundaries
aoross county lines.     Carlton  Independent      sohoG   District
v. Jordon, nupra.
Hon. E. L. Shelton,            Pa@ 7



           SSnce. thelegislative    sots, ex@essly       or
impliedly permitting    county-line  districts     were invalid
at the time of their enactment, no subseuent           amendment
to the Constitution,    outhorixikq  the Legislature      to pro-
vide for the formation of county-line       distriots,    would
have the effect   to re-enaot then end thus to infuse life
into e thlnr tbct never had eriatenoe.         Senooa XininC
Co. r. Secratzry of State, 02 Xich. 573, 47 17. 2. 23, 9
L. R. A. 770; Mnaz v. :%litb, 133 Gel. 102, 65 I?. 3CQ(
StBta 3x ssl ~tCnw2son V. %Ifly, 20 t&Q. 427,          22 p.
1054, 19 Am. St. iiep. 374; Carlton Ind. Sohool, Mat. v.
Jorcon,  supra.
            'Se turn nox to the valldsrinh; portion of the
amendment of lQG9, Nhiah appearsin       our present oonsti-,
tution as section 3a of Article     VII.   This section rezds
88 followsr
             TZvery school district heretofore formed,
      whether formed under the Cenaral la%% ar by
      apeoia1 act, and whether the territory   embraced
      within its boundaries lies wholly within a
      slnr,le county~or Fartlg in two or more aountiea,
      is hereby dcoltred   to be, and from its forma-
      tion to hare been, a valid and~lawful district.   . .*
            It was held by the Supreme Court in Gillespie
et al v. Li&htf"oot, Attorney Cenersl, 103 Tex. 359, 127
S. i:!. 799 (1910), thut the~defect    in county-line   dis-
tricts   due to want of oonstitutional    authority   to form
them was cured by this portion of the amendment of 1909,
and that all suoh dintriots,     whioh had not been pre-
viously disnolved by IeCal means, tsere thareby declared
to have been valid from the time of the5.r formation.
            The oourt in that case WDEooncerned with a county-
lfne district   wh~oh wns Eom~sd as such.      Yie have been Un-
eble to fin& eny ease which involved the question of
whether the anm&nant of 1909 would ala0 havo tho effeOt
of validating   a district,    wholly within a county at the
time of i<s formation,      as to territory  In another county
added prior to the adoption of the amendment but after its
formation.
          It ie our opinion,           however, that the amdndment
did not hova that effect  for          three reaaonsr

              1.     Seotion3e     of Article VII is limited    in
its   soap*   to   districts     which had no valid existenoe    in
 Ron. E. L. Shelton,     Peg9 8


 the 11&t of Parks v. !7ast bcoauso no valid          lam
 euthorized their-form&ion.

              *It is oesy to see that a purpose,
       probably the Mainepurpose of the amendment,
      ‘was to save from,destruction    the county-
       l.+nc distrlots   affooted by the decision
       referred to.    That muoh Is certati   from
      .the history as well aa from the lanCua~,e
       of the amendment.” Gillesplo     v. LiChtfoot (
       sgra.
             Those distriots  wbioh wre not so affeotod         by
 the decision   1.n Parks v. 33st ant those whose valid
 existence was unquestioned needed no suoh sesiotanoe.
              2.   The amendment did not concern itself    wf.th
  valid.aCi,ng unauthorized actions by validly   existj,ng
  districts,   but only with circumvont~ng original     laok
  of aonstitutional    authority for the formation of those
.rhich had no valid existowe.
             “Its (Sec. 39. of Art. VII) interpretation
 literally   mi(-ht establish    the validity   past and present
 of evary school district      that had at any tima before its
 adoption beon formed in Texas by general or speoial le:?,
 although it may IOn& a~0 haVt? passed out of existence
 and been absorbed by other organizations.           Of course, i.ts
 purpose was not so comprehenoivs.          Unquestionably,   it was
 intended to give oonstltutional        and local sanotion to
 such districts    an for want of it v!ara invalid,      to save
 and not to’destroy     riGhta.*    Cillssyfe   v. Lightfoot,   silpra.

             3. The amendment, as we hsve noted, did not
 havo the effect ,oP validating  the statutes daolared un-
 oonstitutional  by Parks V. Kest.    Those statutes under
 which the Blo Vista distriot   purported to act wore ‘un-
 oonatitutional  at the time of the annexstion and continued
 to be invalid after the adoption of the amendment until
 thefr re-enactment.   Corlton Independent School Dlstrfct
 9. Jordan, supra.
            $7~ oonolude, therefore,   that the Rio Viota
 Independent Sohool Distriot    whiah at the time, lay ;!holly
 in Johnson County had no authority~jn      1906 to incorporate
 Uithin ita boundaries territory     thut lay in Fiill County
 and that lts,~pUrported annexation of suoh territory      Was
Ron. E. L. Shelton,       Page 9


I,nvalid.   Since the disputed portion of the Joseph
Dickson Survey could not have been validly           annexed
to that district,      It follows that the Glum School.
Rlstrict   a+.: the tir.lJ it acted liZid the right to in-
clude it xithin its boundaries and that if all the
requirements of Cectlon 149, Aats 1905 wore complied
t,4th, (and we have no reason to believe        they .i’iere not.),
its aotion in LO dOinp, was Valid         and the entli.re Joseph
Rickson Su:vey then became part of that. district.
            Althouch we base ouii oonclusio?l OII the oon-
struction   that. the valifi.nting portion. of the Axend.ment
of 1909 WY intended to j.nfuse lift         into distrrots
\;hose valid existence    YV’ES  denied by the deoision    in
Parks v. ‘cast; end ;:‘Rs not concorned v;i-:th add.itfons of
territory   to vel.id districts,     we ncsd not rol.g exclu-
a-lvcly on that wound.
          i’u’edo not believe that any court :~tlll look with
favor on a claim such as this which has been permitted to
lie dormant for more than 53 years.
             The Elum Independent School Ristricc     became a
rural hi& school distriot      in 1929.   Suoh distriots   were
validated    $n all respeots by tb.ree enactments o’r the 4lst
LeOislsturo.     Qee Article
                 u            2802a, Article  27021 and Arti-
ole 27423, Sac. 2.
          Oux conslusion in regard to your first question
makes unnecessary an answr to youx second question.
            Trusting that the foregoing        information     will.
fully   answer your inquiry, we me
                                         Yours very    truly




                                                Roberj!@ E. kepke
    ‘i..i~,,.:;~,,7.~,,
        ,: ., .< I,~                                   Assistant
