Honorable T. D. Sansing
County Attorney
Hanaford County
Spearma, Texas
Dear Sir:          Opinion No. O-6554
                   Re: Whether Spearman Independent
                        School District is authorized
                        to sell lots belonging to the
                        district without the consent
                        of the State Board of Educa-
                        tion.

          Your request for opinion has been received and
carefully considered by this department. We quote from
your request as follows:
          "The Spearman Independent School Dis-
     trict desires to sell two lots owned by it
     in the town of Spearman, Texas, and.the
     question has arisen as to whether or not
     same can be sold without the consent of the
     of the State Board of Education. I have
     checked into the matter considerably and
     am unable to determine to my satisfaction
     whether or not the district has such
     authority. I would, therefore, appreciate
     an opinion from your office on the matter.
          'The Spearman Independent School Dis-
     trict was created by a special act of the
     3rd called session 36th Legislature. The
     district is not operated by the City of
     Spearman. It includes all of the city and
     extends several miles each way out into the
     country.
          "Prior to 1938 the district sold a
     wooden building to the local American Legion,
     all, it seems on credit. No lien was taken
     by the district. This building was moved to
     the lots which the district now desires to
     sell. The Legion placed a lien on the
Hon. T. D. Ssnsing, Page 2, 0-6554


     buildings and lots in favor of a Lumber
     Company. The loan was not paid and the
     lien was foreclosed. As the lumber
     company got the amount of its losn from
     the sale of the building, it gratut-
     iously deed the lots to the Spearman
     Independent School District. This was
     done in 1938 and the lots have r;Mn;d
     vacant and unused ever since.
     trict had no idea of ever using same for
     school purposes, as they are not suited
     to be used in such manner, but had in
     mind selling the lots as a means of partly
     salvaging the loss on the building sole
     to the Legion.
          "The district can sell these lots now
     at a good price, and the question, or
     rather two questions arise:
          "1. Must the Spearmen Independent
     School District Secure the consent of the
     State Board of Education before it can
     sell said two lots?
          "2. If such sale is made, must it be
     at public sale?"
          Spearman Independent School District in Hansford
County, Texas, was created by H.B. 70, Acts of the 36th
Legislature of Texas, 1920, 3rd Called Session. Section 1
of the Act creates the district and sets out the bo.undaries
thereof. Sections 2, 3, 4 and 21 of the Act provide as
follows:
          "2. The management and control of the
     public free schools within said district is here-
     by vested in a board of trustees, which
     board shall be composed of five persons,
     resident citizens and qualified voters with-
     in said district, and each member of the
     board, before entering upon the diseharge
     of his duties, shall make and subscribe to
     the usual oath for the faithful and impartial
     discharge of the duties of his offiee, as pro-'
     vided by the general laws of the State of
     Texas, governing independent school districts.

           "3. The board of trustees of the Spear-
     man Independent School District shall be a
Hon. T. D. Sensing, Page 3, O-6554


    body politic and corporate in law, and aa
    such may contract and be contracted with,
    sue and be sued, plead and be impleaded in
    any court of this State of proper juris-
    diction, and may receive any gift, grant,
    donation or devise made for the use of
    public schools of the district, as provided
    by the laws of the State of Texas govern-
    ing independent school districts.
         "4. The board of trustees of said
    district shall manage and control the public
    free schools within said district to the
    exclusion of every other authority, except-
    ing in so far as the State Superintendent
    of Education (Fublic Instruction) end the
    State Board of Education may be vested with
    the general supervisory authority to in-.
    struct said board, as provided by the laws
    of the State governing independent school
    districts.
         "21. The provisions of this Act shall
    be cumulative of all general laws now in
    force, or to be hereinafter enacted, govern-
    ing independent school district, their manner
    ;f=z;eating debts, levyfng and collecting
           except when the same is in conflict
    with Che provisions of this Act."
          Article 2773, Vernon's Annotated Texas Civil
Statutes, reads as follows:
         "Any houses or lands held in trust
    by any city or town for publfc free school
    purposes may be sold for the purpose of
    investing in more convenient and desirable
    school property, with the consent of the
    State Board, by the board of trustees of
    such city or town, and, in such case, the
    president of the school board shall execute
    his deed to the purchaser for the same, re-
    citing the resolution of the State Board
    giving consent thereto and the resolution
    of the board of trus,teesauthorizing such
    sale."
          Article 2753, Vernon's Annotated Texas Civil
Statutes, found in Title 49, Chapter 13, Section 1, Common
School Districts, reads as follows:
Hon. T. D. Sansing, Page 4, O-6554


          "The trustees of any school district,
     upon the order of the county trustees pre-
     scribing the terms thereof, when deemed
     advisable, may make sale of any property
     belonging to said school district, and apply
     the proceeds to the purchase of necessary
     grounds, or to the building or repairing
     of schoolhouses, or place the proceeds to
     the credit of the available school fund of
     the district."
          Article 2753, supra, relates to common school
districts and does not apply to independent school dis-
tricts. R. B. Spencer & Co. v. Brown, 198 S. W. 1179.
          We quote from the court's opinion in the case
of R. B. Spencer & Co. v. Brown, 198 S.W. 1179, as follows:
          II   . But appellees further contend
     that BGok did not become the owner of the
     building under his contract with the school
     board, because no order had been made by
     the Commissioners' Court of the county pre-
     scribing the terms of the sale, as required
     by Article 2846, R. S. (1911) (Now Art. 2753),
     nor had the consent of the State Board of
     Education to such sale been obtained, as re-
     qu;re;7;;)article 2873, R. S. (1911) (now
        .      .
          "Article 2846 has no application, be-
     cause the school district was an independent
     school district. Said article appears in
     the Revised Statutes in chapter 15, title 48.
     This chapter relates to common school dis-
     tricts. Originally this article was section
     86 of chapter 124, Acts of the Twenty-Ninth
     Legislature, p. 263. It there appears under
     the subtitle 'School Houses and School
     Supplies' of the title 'Common School Districts.1
     It is thus manifest that this article relates
     to the sale of property belonging to common
     school districts.
          "The sale of school property belonging
     to the Lingleville independent school district
     is, however, governed by the provisions of
     article 2873, R. 3. (lgll), which requires
     the consent of the State Board of Education.
     The State Board of Education did adopt a
_   -




        Hon. T. C. Zansing, Page 5,   o-6554



             resolution, which was quoted above. This reso-
             lution did not in any wise undertake to pre-
             scribe the details of the sale which might be
             made of the land by the school board, and was
             sufficiently comprehensive to authorize the
             school board to make the sale thereof in the
             form of applying the value thereof to the con-
             struction of a new building. That is what was
             done by the agreement between the school
             trustees and Brown. This resolution of the
             State Board of Education constituted sufficient
             authority to the board of trustees to pass
             title to the school building to Brown, but
             in this connection it will be noted that this
             resolution was adopted subsequent to the date
             of the contract between the school board and
             Brown. Since said consent of the state board
             did not exist at the time of the contract with
             Brown, appellees contend he did not obtain the
             title to the building, and was therefore not
             the owner thereof, so as to enable him to fix
             a lien thereon for materials furnished. We do
             not think that a deed to a house or land exe-
             cuted by the board of trustees of an inde-
             pendent school district without the previously
             obtained consent of the State Board of Educa-
             tion would be such an absolute nullity as
             would preclude the application of the principles
             of ratification. Undoubtedly, however, it would
             be lacking in an essential necessary to its
             complete validity, viz. The consent of the
             State Board to the sale, but if such consent be
             subsequently obtained, then we are of opinion
             and hold that it would operate as a ratification
             of an act done without authority. In the in-
             stant case, the consent of the State Board of
             Education given in October, authorizing the
             board of trustees of the Lingleville school dis-
             trict to sell all or any part of the land, was
             sufficient to validate the contract sale there-
             tofore made between the board of trustees and
             Brown; it operated retroactively, ,and made the
             contract with Brown as effective as though it
             had been authorized previous to its making.
             It may be conceded that, at the time the material
             was furnished to Brown by appellants, Brown's
             title to the house was lacking in complete
             validity because of the failure to obtain the
             previous consent of the State Board of Education,
Hon. T. C. Sasing, Page 6, O-6554


     but he at least had an inchoate'right or title to
     the property, which was ,afterwardsperfected.
     . . . .
          "Article 2873, R. Z., says the president
     of the school board 'shall execute his deed to
     the purchaser for the same, reciting the reso-
     lution of the State Board of Education giving
     consent thereto, and the resolution of the
     board of trustees authorizing such sale.' In
     this connection, the point is made that the
     agreement between the board of trustees and
     Brown recited no such resolutions. It is not
     believed it was the intention that such pro-
     vision should nullify completely a deed exe-
     cuted without reciting the resolutions
     mentioned. It was intended, doubtless, that
     the deed upon its face should disclose the
     authority by which it was executed; but this
     provision is regarded as directory and not
     msndatorg, and a failure to incorporate such
     resolutions in a conveyance does not nullify
     the same. . . .'
          In view of the court's opinion in Spencer vs.
Brown, supra, we are inclined to believe that the con-
sent or ratification of the State Board of Education
would be needed before the purchaser of said lots from
the Zpearman Independent School District would obtain
good and merchantable title thereto,

          We think the better and safer practice would
be to secure the consent of the State Board of Edu-
cation in advance by proper resolution and incorporate
same in the deed.

          It is our further opinion that a proper con-
veyance could be had at either private or public sale.
Notice of public sale could be advertised for a reasonable
time, such as, e.g., the length of time provided by statute
for sales of land under execution.
                             Yours very truly
APPROVED MAY 16, 1945                                 APPROVED
                         ATTORNEY GENERAL OF TEXAS
                                                      OPINION
/s/ Grover Sellers         /s/ Wm. J. Fanning         COMMITTEE
ATTORNEY GENERAL OF TEXASBy      Wm. J. Fanning       BY B.W.B.
WJF:bt:eac                         Assistant           CH-
