                       The Attorney                  General of Texas
                                                November     10,      1980
MARK WHITE
Attorney General
                   Honorable Donald L. Wilson                      Opinion No. NW-266
                   Callahan County Attorney
                   Callahan Courthouse                             Re:    Procedure     for holding a school
                   Baird, Texas   79504                            consolidation    election

                   Dear Mr. Wilson:

                           The Hamby, Clyde and Abilene Independent          School Districts    are
                   contiguous,   and each district has boundaries in two or more counties.        At
                   least twenty days prior to April 5, 1980, petitions requesting consolidation   of
                   the Hamby and Clyde school districts were presented to the county judges in
                   each county in which the districts are located.    During the same time period,
                   petitions calling for consolidation   of the Hamby and Abilene school districts
                   were presented     to the county judges of the relevant         counties.    Your
                   questions are essentially as follows:

                               1. Should the county judges schedule   elections   on
                                  both petitions for the same day or for different
                                  days?

                               2. If the former:

                                  (a) Should separate   voting places, judges, tallies,
                                      etc., be maintained    for each proposal in the
                                      Hamby district?

                                   (b) If  both proposals      are approved,    could the
                                       commissioners     courts declare the new consoli-
                                       dated district    to be the one carrying by the
                                       largest   majority    in Hamby, or should the,
                                       election results be determined      in some other
                                       manner?

                                   (c) If an election is declared void, will the one-
                                       year prohibition  as to a second election   be
                                       operative?

                               3. May a consolidation      election     be held in November,
                                  1980?

                   The adequacy   of the petitions   is not disputed.




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Honorable    Donald L. Wilson - Page Two          (MW-266)




       Statutes governing school district     consolidations are contained in the Education
Code in sections 19.231 to .24’7 (formerly    article 2806, V.T.C.S.). Section 19.232 thereof
provides that:

             A petition      signed by 20 or a majority of the legally qualified
             voters    of each of the several          contiguous  school districts
             proposed     to be consolidated      and praying for an election       to
             authorize     the consolidation    shall be presented   to the county
             judge of the county in which the school districts are located; or
             if one or more districts        to be consolidated    is a county-line
             district,   to the county judge of the respective           county or
             counties having jurisdiction     thereof.

Section    19.233 provides that upon receipt      of a petition   fulfilling   the requirements     of
section   19.232, each county judge shall:

             (1) issue an order for a [sic] election to be held on the same day
             in each       district included   in the    proposed   consolidated
             district;. . .

The statutes    do not specify the procedure          to be followed       in the   event   that   two
petitions involving the same district are filed.

      The law was settled    that under former     article   2806, V.T.C.S.,   a county judge:

             acquired     jurisdiction    to call an election    on a question      of
             consolidating     school districts immediately   upon the presentation
             and acceptance       by him of a proper petition therefor.

                  Upon the presentation   of the petition for an election. . . it
             was the ministerial     duty of the County Judge to order the
             election.

                                            , 211 S.W. 2d 238, 240 (Tex. Civ. App. -
                                            Independent  School District v. Thomerson,
223 S.W. 2d 314, 319 (Tex. Civ. App. - San Antonio 1949, writ dism’d), the court stated
the rule in this manner:

             . . .exclusive jurisdiction   of a tribunal. . . is fixed when the first
             legal step or action required by the statute             authorizing  the
             creation     of the proposed      district  is actually     taken.   Art.
             2806. . . does require the filing of a petition,          and when such
             petition    is filed exclusive jurisdiction    is fixed in the county
             judge or judges with whom the same is filed.

See also Griesenbeck v. Schindler, 552 S.W. 2d 203 (Tex. Civ. App. - Eastland 1977, writ
rerd.e.);     Rhea Common School District v. Bovina Ind. School District, 214 S.W. 2d




                                          p.846
Honorable     Donald L. Wilson - Page Three              (MW-266)




660 (Tex. Civ. App. - Amarillo 1948, writ dism’d). Since the legislature            did not alter
the relevant    statutory   language    when it enacted       sections   19.231 to .247 of the
Education    Code, this rule remains       intact.    Accordingly,     when the county judges
accepted   the Hamby-Clyde       or the Hamby-Abilene       petition,   whichever   act occurred
first, they acquired jurisdiction    over that petition and had a ministerial duty to order
an election upon it. The question is whether the act of accepting               the first petition
deprived the judges of authority to schedule an election upon the second petition until
the first matter had been resolved.

        The cases in this area are inconclusive.                 Most involve jurisdictional        disputes
 between coordinate         tribunals, i&., a county judge and a county school board. In this
 context, the settled rule is that where coordinate               tribunals have jurisdiction       over the
 same subject matter,           the tribunal which first acquires jurisdiction           has the right to
 retain it until it disooses of the matter free from interference               from the other tribunal.
 Griesenbeck     v. Schindler, w            Mt Enterprise Ind. School District v. Colley, 424 S.W.
 2d 650 (Tex. Civ. App. - Tyler 1968, no writ). See also Attorney General Opinion O-
 778 (1939) (county judge should not order election                    on Clyde-Midway        consolidation
.propceal     because- he had already            scheduled     election    on- Midway-Baird        petition).
 However, this rule has not been applied in the few cases wherein a single county judge
 received both petitions and there was no conflict between tribunals.                     For example, in
 Rhea, m,          elections      on petitions    requesting    consolidation     of the Oklahoma          and
ma         school districts and the Rhea and Bovina school districts were scheduled for the
 same day, although the county judge received the Oklahoma-Bovina                      petition four days
 before the Rhea-Bovina           petition.   In a suit for declaratory      judgment following defeat
 of the former proposal and approval of the latter, the court rejected the argument that
 the filing of the Oklahoma-Bovina             petition gave voters in those districts a prior and
 exclusive right to vote on that consolidation;              the court did, however, state that as a
 practical    matter,     the Rhea-Bovina       election should have been scheduled             for a later
 date.    See also West End Rural High School District v. Columbus Ind. School District,
 221 S.W. 2d 777 (Tex. 1949).

        Your situation has elements common to both lines of cases discussed above, and
therefore     neither     line conclusively   disposes of the question before us. However,
careful analysis of the reasoning employed in those cases leads us to conclude that the
principles     stated    in Griesenbeck     and Mt. Enterprise      and reflected      in the court’s
suggestion in m,           are sounder and would most likely be applied in the event of a legal
contest.    We have noted that the act of accepting            the first of these petitions vested
exclusive     jurisdiction     over that petition    in the county judges, who at that point
acquired a duty to order an election upon that petition.             London Ind. School District v.
Thomerson, w;            Garrett v. Unitv Common School District, m.                We think it would
be consistent       with the concept of exclusive jurisdiction          for the iudaes to hold the
second petition        in abeyance until the first proposal is approved or rejected            by the
voters. See Attorney General Opinion O-778 (1939). Accordingly,                  we conclude that the
county Igges         of Taylor, Jones, Callahan and Shackelford            aunties    must determine
which petition        was the first to be filed and accepted        in all four counties and then
schedule an election upon that petition.          If the election on the first petition results in
consolidation      of those districts, the second petition would become invalid.             West End




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Honorable   Donald L. Wilson - Page Four                  (Mw-266)




Rural High School District v. Columbus Ind. School District, e.           The question of
which petition was filed and accepted first is a fact question to be resolved by the four
county judges involved.

        Parenthetically,    we observe that even if both elections   could be scheduled for
the same day, there is a convincing practical        reason for not doing so. The election
contest     omcedure     set forth in the Election    Code is available    to contest  school
elections.     Eke. Code arts. 9.01, .30. See Roberts v. Brownsboro Ind. School District,
575 S.W. 2d 371 (Tex.         Civ. App. - Tyx   1978, writ dism’d). If both proposals were
approved, a court might be compelled-to       void the elections on the ground that it would
be impossible to ascertain the true results thereof,      Elec. Code art. 9.15.

       Our disposition    of   the    first    question      renders    consideration     of your   second
question unnecessary.

        Your last question is whether a consolidation    election may be held in November,
1980. Article 2.01b(a) of the Election Code provides that in even numbered years
elections   of certain officers and amendments      to the Texas Constitution   are the only
issues that may be submitted      to the voters in November.      Thus, we conclude that a
school consolidation    election may not be held in November, 1980.

                                              SUMMARY

                 The     county    judges     of Taylor,     Callahan,    Jones  and
             Shackelford    counties must determine      whether the Hamby-Clyde
             or the Hamby-Abilene       petition was filed and accepted first, and
             then schedule an election upon that petition.        An election on the
             second petition     may not be ordered until the first matter is
             resolved.     A school consolidation    election may not be held in
             November, 1980.

                                                          Very truly yours,


                                                   &s2izGd&
                                                      MARK              WHITE
                                                      Attorney         General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney         General

Prepared    by Jon Bible
Assistant   Attorney General




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Honorable   Donald L. Wilson - Page Five      m-266)




APPROVED:
OPINION COMMlTTEE

Susan L. Garrison,   Acting   Chairman
Jon Bible
Walter Davis
Rick Gilpin
Bruce Youngblood




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