Honorable T. M. Trimble
First Assistant
State Superintendent of Public
         Instruction
Austin,   Texas                           Opinion Nmber   O-5552

Dear Sir-r                                Rer Can the bounds of the City of
                                              Houston be extended to include
                                              the Independent School District
                                              of Galena Park?

       We reply to your letter of August 17, 1943, attaching a letter from
Dr. Walton Hinds, Superintendent of Galena Park Schools, in which he advises
that the City of Houston has by ordinance, under its Hcme Rule Charter,
annexed approximately 91 square miles of contiguous territory, including
valuable territory within the Galena Park Independent School District; that
in 1923 the Houston School District divoroed itself fromthe City of Houston,
and in said year we.8 incorporated as the Houston Independent School Dis-
trict by special Act of the Legislature, Said special Act provides in part
a.5follows:

          "If at anytime the City of Houston extends its boundaries,
          the boundaries of the Houston Independent School District
          will automatically follow the boundaries of the city."

       Dr. Hinds further advises that the Galena Park Indpendent School Dis-
trict was created under general law by a majority vote of its qualified
voters on May 24, 1930, being created a Cannon School District with the same
boundaries, and has mere than 500 scholastic population.

       An opinion is requested from this department as to whether the above
quoted provision of said s ecial Act of 1923 is enforceable upon another in-
dependent school district P.
                           without its consent), or is in conflict with
other statutes having "a precedence," or is in conflict with the Canstituti-
on of Texas.

       By Special Act approved %rch 18, 1905, the City of Houston was grant-
ed a new charter. (H. B. 503, Chap. 17, Special Laws, R.S., 29th Leg.).
Section 14 of Article 2 of said Act provided that;

          "The City of Houston shall constitute an independent school
          district, subject to the general laws afthe State, exe@
          where in conflict with this Act," etc.
Honorable T. M. Trimble, Page 2 (O-5552)



       By Specie.1Act approved t$rch 20, 1923, Section 14 of Article 2
aforesaid was repealed, and the Houston Independent School District,
separate and apart fran the municipal government of the City of Houston,
was created. (S. B. 402, Chap. 91, Spec. Laws, R.S. 38th Leg.). Section
3 of this last Act provides as follows;

      "In the event of the extension of the City limits of the
      municipality of the City of Rmston after the wssage of
      this Act, the territory taken into said City by such ex-
      tention shall autcmatically become a part of the %uston
      Independent School District and subject to the provisions
      of this Act."

       In 1927, the Fortieth Legislature enacted S.B. 375, Chapter 82, p.
124, General and Special Laws,which 1~898 general law end applied to all
counties in Texas having 210,000 population or more, according to the last
preceding Federal Census. (Article 2815a, V. A. C. S.). Section 1 of said
article was amended in 1935 by Chapter 26, 44th Leg., but said amendment
did not change any of the provisions of said Act hereinafter referled to
and discussed. This Act became applicable to Harris County since the Feder-
al Census of 1930, whereas it only applied to Dallas County before that time.

       Said Act of 1927, before and after the 1935 amendment, provides for a
Board of seven County School Trustees, whereas the general law for other ooun-
ties only-ides     for five. It vests in said Board of seven trustees broad
powers with reference to creating school districts, consmting     school dis-
tricts, annexing and detaching territory from one or more districts, and
changing the boundary lines of school districts, being different in many res-
pects from counties having .apopulation of less than 210,000.

       Said Act of 1927 contains, among others, the following provisions:

       "The words, 'school district,' as herein used, shall refer
       to common school districts or independent school districts,
       however created." (Emphasis curs.)

       "Provided that the territory of no indpendent school dis-
       trict having more than five hundred (500) scholastics shall
       be changed without the consent of its board of trustees."

       From the first quoted provision of said 1927 Ad, it is clear that no
school district in counties with a population of 210,000 or more w*s except-
ed from its provisions.

       The second provision of said Act, being in negative form, and oon-
taining negative words, shows it to be mandatory rather than directory.

       we assume, and have been reliably informed, that soon after Chapter 82,
above referred to, became effective in Harris County upon completion of the
1930 Federal Census, said county proceeded to elect and organize a sevenmember
Board of County School Trustees, and has since functioned and is still func-
tioning under said Act and by said Board.
Honorable T. M, Trimble, Page 3 (O-5552)



       We now obserm that the provision of the 1923 Houston Independent
School District Act, providing that the territory annexed to the City of
Houstin in event of the extension of its city limits, "she.11autmatical-
ly become a part of the Houston Independent School District," is in direct
conflict with the following provision of the later Act of 1927 (effective
in Harris County in 1930)s

       "Provided that the territory of no independent school dis-
       trict having more than five hundred (500) scholastics shall
       be changed without the consent of its board of trustees."

       It is also to be observed that Section 11 of the 192'7Law (Chapter 82
aforesaid) reads as follcws:

      "All laws and parts --
                          of laws, general and special, in
      conflmwmthis       Act are hereby repealed."

       It is clear therefore that said Section 11 of the 1927 Law repeals
Section 3 of the 1923 Law, which Section 3 provides for the automatic ex-
tension of the boundaries of the Houston Independent School District to
include territory taken into the City of %uston in the event its city lim-
its are extended.

       It is, therefore, the opinion of this department that, since Section
3 of the 1923 Law hereinabove referred to has been repealed, the extension of
the City of Houston of its city limits would not automatically extend the
boundaries of the Houston Independent School District to include the territo-
ry taken into said city.

       Neither could the Board of County School Trustees of iiarrisOounty
change the boundaries of the Galena Park Independent School District without
the consent of its hoard of trustees. To do so would be in direct conflict
with that provision of the 1927 Law which provides that8

       "The territory of no independent school district having more
       than five hundred (500) scholastics shall be changed without
       the consent of its board of trustees."

       See Smith v. City of Dallas, (Civ. App.) 36 S.W.    (2d) 547, error
dismissed. Also Art. 2815~~.V.A.C.S.

       In view of the foregoing, it becomes unnecessary to pass on the
constitutionality of Section 3 of said 1923 Act.

                                                Very truly yours
LIrJ-s:egw
                                           ATTORNBY GENERAL OF TEXAS
APPROVED SEP 10, 1943
/s/GERALD C. MANN                           By /s/L.   H. Flewellen
ATTORNEX GZ3XFXhLOF TEXAS
APPROVED Opinion Cmmittee                         L. H. Flewellen
By B.W.B. Chairman                                      Assistant
