                            October    11, 1972


Rep. Charles H. Jungmichel                   Opinion   No.     M-1235
Chairman, House Committee on
    Public   Education                       Re:   Constitutionality        of statute
Texas House of Representatives                     authorizing     voters     of an in-
State Capitol    B;;;f;ng                          dependent school        district
Austin,    Texas                                   within a junior       college
                                                   district    to vote themselves
                                                   out of the junior        college
                                                   district,    and related
                                                   questions     involving      S.B. 19
                                                   and H.B. 33, b2nd Leg.,           1972,
Dear Mr. Jungmichel:                               4th C.S.

           Your   request    for    an opinion     reads      as follows:

            "Senate Bill     19 and House Bill   33 are before
     the Legislature      at this time and they are being
     considered    by the House Committee on Public Edu-
     cation   of which I am Chairman.       A question    con-
     cerning    the legality    of this proposed   legislation
     has arisen    which I feel needs some clarification.

            "In their applicatio~n,         these bills     will
     apply only to the Odessa Junior College                District.
     A Dart of that district          comprising      the Midland
     Independent    School District         wants a legal basis
     to disannex    itself     from the Odessa Junior College
     District   and establish        a new Junior College         Dis-
     trict.    This propo~sed disannexation            and creation
     of the separate       Junior College       District    will be
     voted on by the qualified           voters   of the indepen-
     dent school    districts.        Those voting       on the dis-
     annexation    question      are a numerical       minority    in
     the Junior College        District.       The vote,    if
     taken under this bill,          would make it possible
     for the numerical       minority     to decide      the question
     for all the voters        in the Odessa Junior College
     District.

            "The questions         to be answered      are:


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        Hon. Charles         H. Jungmichel,     page   2          (M-1235)



                     1.
                      II
                           Is it constitutional     for the voters   of
             an independent      school    district within a junior
             college    district    to vote themselves    out of the
             junior   college    district?

                      “2.       Does the bill cover        only    the   Odessa
             Junior         College  Taxing District?

                    “3.   If parts of the bill apply to other
             than the Odessa Junior College     Taxing District,
             specifically    what applies to other districts?
                   114. What effect     would this bill               have on
             subsequent  junior   college    annexation              and dis-
             annexation  procedures?
                     115. Is this a precedent         in junior   college
             annexation    and disannexation        procedures    in so
             far as geographic       integrity,     i.e.    could any
             governmental    entity     vote itself      out of a dis-
             trict    at an election     called   by a petition      signed
             by 5% of the voters        without   a vote of the whole
             district?”

                   S.B. 19 and H.B. 33, b2nd Leg.                   4th C.S., are companion
        bills  amending Subchapter d, Chapter 51,                   Texas Education Code;
        by adding 51.069 reading as follows:

                  “Section 51.069. DISANNEXATIONOF
             TERRITORY COMPRISINGAN INDEPENDENTSCHOOL
             DISTRICT.

                     “(a)    The territory        of an independent
             school     district      which is the-only          school
             district      that has been annexed to a county-
             wide independent           school    district     junior
             college      district      in an adjoining        county may
             be disannexed         from such countywide            independent
             school     district      junior     college    district      and
             constituted        as a separate         independent      school
             district      junior     college     district     in accordance
             with the provisions            of this section,         provided
             that the countywide             independent     school     district
             junior     college      district     has no outstanding
             bonded indebtedness            which was incurred          after
             the annexation          of such independent           school   dis-
             trict.

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Hon. Charles    H. Jungmichel,        page    3         (M-1235)



             “(b)  The proposed       disannexation     and crea-
     tion of a separate          junior   college   district
     shall     be initiated      by a petition     signed by
     not less than five percent             of the qualified
     taxpaying     electors      of the independent       school
     district     seeking     disannexation.       The petition
     shall be presented          to the board of trustees        of
     the independent         school   district    seeking to be
     disannexed,       which shall pass upon the legality
     and genuineness        of the petition       and forward
     the petition,        if approved,      to the coordinating
     board.

            “(c)    If the petition        is found to be in
     order and all statutory            provisions       have been
     complied     with,    the coordinating         board shall
     approve the petition           and notify      the board of
     trustees     of the independent          school     district
     seeking     to be disannexed,         of such approval.
     The board of trustees           of the independent
     school    district      seeking disannexation           shall
     then order an election            to be held in the
     school    district     within a time not less than
     20 days nor more than 30 days after                  the order
     is issued.        At the election        the ballots        shall
     be nrinted       to Drovide for votine           for or against
     the’ proposition:          ‘Disannexation
                                             atiog of the         -
                                 Independent ent School District
     Tram the                              Junior
                                             unior College        District,
     and creation         f the                         Junior
     Colleee     District     wit Vcoterminous
                                             ariescoterminous
     with the boundaries          of the
     Independent        School District.’          (the blanks to
     be filled      in as appropriate).            All expenses
     incurred      in holding      the election       shall be paid
     by the independent          school district         ordering
     such election.

             “(d)  The board of trustees         shall make a
      canvass of the returns          and declare      the result
      of the election      within 10 days after           holding
      the election     and shall enter an order on the
      minutes of the board as to the result                of the
      election.     If a majority        of the votes cast
      are in favor of disannexation            and creation
      of a separate      junior    college   district,       such
      independent     school    district    shall be deemed

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    Hon.   Charles     H. Jungmichel,        page     4       (M-1235)



           disannexed     and constituted            as a separate
           junior   college   district.

                  “(e)     If the creation        of the separate
           junior     college     district     is approved,        it shall
           be governed        by the provisions         of this code
           relating      to independent         school    district     junior
           colleges.        The offices       of the representatives
           of the disannexed           independent      school     district
           of the governing          body of the countywide            in-
           dependent       school    district      junior    college     dis-
           trict     shall    be terminated,         and the remaining
           members of that governing               body shall      continue
           to serve for the terms for which they were
           elected.

                  “(f)   Any petition     for disannexation        and
           creation     of a separate     junior   college     district
           may also incorporate        a request    for the proper
           authorities,     in the event an election            is ordered
           for the creation       of a new district,        to submit
           at the same election,         either   as a part of the
           disannexation      issue or as a separate          issue,
           the questions     of issuing      bonds and levying
           bond taxes and levying         maintenance      taxes,    in
           the event the district          is created,     not to ex-
           ceed the limits       provided    in Section      51.102 of
           this code .‘I

                    Section   1 of    Article     VII of    the   Constitution   of   Texas
    provides    :

                  “A general   diffusion    of knowledge being
           essential     to the preservation      of the liberties
           and rights     of the people,    it shall    be the duty
           of the Legislature       of the State to establish
           and make suitable      provision    for the support
           and maintenance     of an efficient      system of
           public    free schools.”

                   In construing     the above quoted provision,       it was held
    in Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31 (1931) , that the
    liberal     rules   of construction       of this constitutional     provision
    should apply in determining            the power of the Legislature        in
    organizing      a public    school    system.    It was further   held that
    legislative       determination     of methods,    restrictions   and regula-
    tions    in organizing      a State educational       system is final    except

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        Hon. Charles     H. Jungmichel,       page   5         (M-1235)



        when so arbitrary       as to be violative        of   a constitutional       right.

                       Junior college     districts    constitute     a part of the svstec
        of public      free schools:      Shepherd v. San Jacinto-Junior          College
        District,        363 S.W.2d 742 (Tex.Sup.       1963).     Therefore     unless
        regulated      by some other constitutional         provision,     it is within
        the sole discretion        of the Legislature       to determine     the method
        of annexation        or deannexation      of the territory     comprising    junior
        college     districts.     Section    3-b of Article      VII of the Consti-
        tution    of Texas provides       in part:

                     “NO tax for the maintenance             of public     free
              schools   voted in any independent             school   district
              and no tax for the maintenance              of a junior      college
              voted by a junior       college     district?      nor any bonds
              voted in any such district,             but unissued,      shall
              be abrogated,     cancelled      or invalidated        by
              change of any kind in the boundaries                thereof.
              After any change in boundaries,               the governing
              body of any such district,            without the necessity
              of an additional      election,        shall have the power
              to assess,    levy and collect          ad valorem taxes on
              all taxable     property     within     the boundaries       of
              the district     as changed,       for the purposes        of
              the maintenance      of public       free schools      or the
              maintenance     of a junior      college,      as the case
              may be, and the payment of principal                of and
              interest    on all bonded indebtedness             outstanding
              against,    or attributable,         adjusted,     or allo-
              cated to, such district          or any territory
              therein,    in the amount, at the rate,             or not
              to exceed the rate,        and in the manner authorized
              in the district      prior    to the change in its
              boundaries,     and further      in accordance        with the
              laws under which all such bonds, respectively,
              were voted;     . . .‘I

                       Section    3-b of Article     VII recognizes       that the Legis-
        lature    may authorize        changes in the boundaries        of junior      college
        districts      so long as outstanding        bonds are not abrogated,            can-
        celled    or invalidated.          Since the bills    in question       only apply
        “provided      that the county-wide        independent     school    district
        junior    college     district     has no outstanding     bonded indebtedness
        which was incurred          after   the annexation    of such independent
        school    district”,       the bonded indebtedness       of the junior        college
        district     could not be and is not abrogated,             cancelled      or in-
        validated      by the provisions        of the bills    in question.

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    Hon. Charles      H. Jungmichel.       page    6       (M-1235)



                   It may be argued that the electors                 comprising      the
    entire    junior    college     district     should be permitted          to vote on the
    deannexation      of the independent          school     district    since all the
    taxable    property      within    the boundaries        of the junior       college
    district     is subject      to taxation      for the present        junior     college
    district.       Nevertheless,        this is a question         that is solely        within
    the discretion       of the Legislature          and is not required          by any
    constitutional       provision.          You are accordingly        advised,      in answer
    to your first       and fifth      questions,      that it is constitutional             for
    the Legislature        to authorize        the voters     of an independent          school
    district     within    a junior      college    district     to vote to deannex the
    territory      comprising      the independent        school district        and creating
    a new junior      college      district.

                  Finally,      in connection      with our consideration    of your
    first    question      concerning   constitutionality,       we have concluded
    that the form of the ballot            and the proposition      to be submitted
    to the voters,         although   duplicitous,      is not confusing  and is
    legally     sufficient      to inform the voter of the purpose of the
    election     and the effect       of an affirmative      vote and is thus con-
    stitutional.         The form of ballot        will be uuheld if not mislead-
    ing to the voters.            Beeman v. Mays, 163 S.k. 358 (Tex.Civ.App.
    1914, error ref.).

                 fin answer to your second and third questions,                   the
    bills    in question     apply to any independent          school    district     which
    is the only school         district      that has been annexed to a county-
    wide independent        school     district   junior  college     district     in an
    ad ‘oining    county.      At the present       time we are unaware of any
    SCII001 districts       other than the Midland Independent              School Dis-
    trict    annexed to the Odessa Junior College              District     to which
    these bills      apply.

               In answer to your fourth          question,   you are advised
    that the provisions     of these bills       will apply to deannexation
    procedure  of territories     of an independent        school    district
    which is the only school      district      that has been annexed to a
    countywide   independent   school     district    junior   college     district
    in an adjoining    county,  whether such territory          has been annexed
    prior  to or subsequent    to the enactment of these bills.

                                     SUMMARY

                  S.B. 19 and H.B. 33 of the b2nd Leg. 4th
           C.S.,   relating   to deannexing    territories      of
           certain    independent   school  districts      from


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Hon.   Charles     H. Jungmichel,     page     7     (M-1235)



       certain     junior   college   districts    are   consti-
       tutional.




Prepared     by John Reeves
Assistant     Attorney General

APPROVED:
OPINION COMMITTEE

Kerns    Taylor,    Chairman
W. E.    Allen,    Co-Chairman
Gordon    Cass
Gerald    Ivey
James    McCoy
Roger    Tyler

SAMUELD. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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