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                THEA             ~EZNJ~Y       GENERAL

                                OF    %-EXAS




     Honorable J. W. Edgar               Opinion No. WW-1094
     Commissioner of Education
     Austin, Texas                       Re:   Validity of a provision
                                               in a deed to a school
                                               district that if the prop-
                                               erty is sold the proceeds
                                               above the purchase price
                                               paid by the school district
                                               shall be divided between
                                               the school and its grantor
                                               under the facts stated and
     Dear Dr. Edgar:                           related question.
               Your letter of March 14, 1961, asking for an opin-
     ion from this office reads as follows:
                   "For long prior to July, 1946, the
              Waco Independent School District existed
              and operated as a municipally controlled
              (City of Waco) independent school dis-
              trict pursuant to Articles 2768, 2798,
              et seq., Vernon's Civil Statutes. Its
              schools were administered under a board
              of school trustees of the municipal dis-
              trict locally appointed or elected. Acts
              21st Leg., R.S., Soec. L. 1889 (Gammel's
              vol.     9, p. 1373).
                    "On July 6, 1946, the City of Waco
               conveyed by deed to such Board of Trustees
               a tract approximating twenty-five (25)
               acres with buildings thereon for $100,000,
               $10,000 with interest to be paid annually
               for ten years, with the further condition
               and consideration that should the grantee
               sell the property so conveyed, all moneys
               over $100,000 shall be divided and paid
               equally between grantor and grantee.
Honorable J. W. Edgar, page 2 (WW-1094)


              'In 1948, we are advised, by city
         charter amendment and presumably pur-
         suant to Article 2783a, the Waco Inde-
         pendent School District was divorced
         from control of the City of Waco, and
         the Waco Indpendent School District since
         and currently exists as an independent
         school district separate, apart and free
         from city control. Article 2815g-43,
         paragraph 6, V.C.S.
              "In 1957, an election in the Waco
         Independent School District authorized
         the issuance and sale of six and one-half
         million dollars in bonds for the 'purchase,
         construction, repair, or equipment of pub-
         lic free school buildings, within the limits
         of said district, and the purchase of neces-
         sary sites therefor , . .I It has become
         necessary currently for this district to
         plan and construct a new classroom building
         on said premises, at an expenditure of about
         one million dollars out of such bond proceeds
         to be realized.
              "Further, a portion of the tract in
         question will soon be required for right-
         of-way purposes for Interstate Highway
         No. 35.
              'In the light of the facts above
         stated, we would appreciate receiving
         an opinion from your office on the fol-
         lowing submitted questions:
               "1 .   Is the deed clause providing
                      for a division of the pro-
                      ceeds of the sale of the
                      property valid? If invalid,
                      Is the remainder of the deed
                      valid?
               "2 .   If the deed and clause are
                      both valid, may the district
                      legally spend the bond pro-
                      ceeds as mentioned to improve
                      said premises under the 'pur-
                      poses' provision quoted from
                      the bond election order above?"
Honorable J. W. Edgar, Page 3 (WW-1094)


          When the City of Waco executed a deed to the Board
of Trustees of the municipally controlled independent school
district purporting to convey the land in question for the
consideration stated, Section XXXII, Article 311 of the
Charter of the City of Waco read as follows:
               "The territory added to the City
          of Waco by any extension of the city
          limits thereof shall thereby become
          attached to the Independent School
          District composed of the City of Waco
          and the pro rata Public Free School
          Fund of the pupils enrolled from said
          district shall be paid to the trustees
          thereof and the title to all of the
          Public Free School property situated
          in the territory so attached to said
          Waco Independent School District shall
          immediately become vested in the trus-
          tees of the Waco Independent School
          District and said trustees shall assu;e
          and pay off all indebtedness thereon.
          Article 2772, Vernon's Texas Civil Statutes reads,
in part, as follows:
               "In every city or town in this
          State which has or may assume the ex-
          clusive control and management of public
          free schools within Its limits, and which
          has or may determine that such exclusive
          control and management shall be In a
          board of trustees, and organized under
          an Act of the Sixteenth Legislature, ap-
          proved April 3, 1879, and Acts amendatory
          thereto, the title to all houses, lands
          and other property owned, held, set apart,
          or in any way dedicated to the use and
          benefit of the public free schools of
          such city or town, including property
          heretofore acquired as well as that which
          may hereafter be acquired, shall be vested
          in the board of trustees and their succes-
          sors in office, in trust for the use and
          benefit of the public free schools in such
          city or town; . . .
Also see Articles 2756, 2783a, Section 4, V.C.S. Hamilton v.
Bowers, 146 S.W. 629 (Civ.App. 1912, error ref.).
Honorable J. W. Edgar, page 4 (WW-1094)


          Since by virtue of the statutes and city charter
provision cited above, the title to the property in question
was already in the board of trustees, the deed to the prop-
erty in question, and consequently the covenant forming part
of the consideration, is a nullity and of no legal signifi-
cance.
          In view of our answer to your question No. 1, it
becomes unnecessary to answer your question No. 2.

                          SUMMARY
                 Since Article 2772, V.C.S., and
            provisions of Waco City Charter places
            title to land in question in Board of
            School Trustees, a subsequent deed from
            city to said trustees, purporting to
            convey the same la4idis a nullity.
                          /      Yours very truly,
                                 WILL WILSON
                                 Attorney General of Texas




                                     Assistant
JCP:lJb
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Elmer McVey
Dudley McCalla
Tim Timmons
J. Arthur Sandlin
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbitt
