    OFFICE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

    JOHN     CORNYN




                                                 January 22,2001



Mr. Jim Nelson                                                 Opinion No. JC-0332
Commissioner of Education
Texas Education Agency                                         Re: Whether a school district may operate
170 1 North Congress Avenue                                    a school outside the district’s geographic
Austin, Texas 78701-1494                                       boundaries (RQ-0273-JC)


Dear Commissioner       Nelson:

        You have requested our opinion as to whether the Boles Independent School District may
operate a school outside the district’s geographic boundaries.’ For the reasons set forth below, we
conclude that it may not do so.

        You indicate that the Boles Independent School District, a school district located in Hunt
County, wishes to operate a formerly private school, the Phoenix Campus, as a satellite campus.*
The Phoenix Campus is located within the geographic boundaries of the Greenville Independent
School District. See Exhibit “c”, note 2, at 1; Request Letter, note 1, at 1. You state that the Texas
Education Agency (“TEA”) “has concluded that nothing in Texas law precludes a school district
Tom operating an educational program outside of its geographic boundaries, provided that the school
board has concluded that a public purpose is served that warrants the expenditure of its funds.”
Request Letter, note 1, at l-2. Furthermore, “[tlhe agency has advised school districts that have
inquired that it is permissible to operate educational programs outside of the geographic boundaries
of the district, and is aware of several instances in which that has happened.” Id. at 2.

        Section 11.15 l(b) of the Education Code places the exclusive control of the public schools
in the school districts of the state:

                 (b) The trustees as a body corporate have the exclusive power and
                 duty to govern and oversee the management of the public schools
                 of the district. All powers and duties not specifically delegated by
                 statute to the agency or to the State Board of Education are reserved



         ‘See Letter from JimNelson, Commissioner of Education, to Honorable John Comyn, Texas Attorney General
(Aug. 22,200O) (on tile with Opinion Committee) [hereinafter Request Letter].

        ‘See Exhibit “c” attached to Request Letter (Letter from Sara Hardner Leon, Powell & Leon, L.L.P., to Jim
Nelson, Commissioner of Education (Aug. 16, 2000)) [hereinafter Exhibit “C”].
Mr. Jim Nelson    - Page 2                          (X-0332)




                 for the trustees, and the agency may not substitute its judgment      for
                 the lawful exercise of those powers and duties by the trustees.

TEX. EDUC. CODE ANN. 5 11.151(b) (V ernon 1996). In addition, section 7.003 provides:

                         An educational function not specifically delegated to the
                 agency or the board under this code is reserved to and shall be
                 performed by school districts or open-enrollment charter schools.

Id. 5 7.003. You apparently suggest that such “reserved” powers authorize the district, in the
situation you pose, to operate the Phoenix Campus outside the limits of its geographic boundaries.

          It is well established that an independent school district, such as the Boles Independent
School District, “only possesses the powers expressly conferred on it by law or necessarily implied
t?om the powers so conferred.” Harlingen Indep. Sch. Disk v. C.H. Page & Bro., 48 S.W.2d 983,
986 (Tex. Comm’n App. 1932, judgm’t adopted); see also, Mesquite Zndep. Sch. Dist. v. Gross, 67
S.W.2d 242, 245 (Tex. 1934); Texas Roofing Co. v. Whiteside, 385 S.W.2d 699, 701 (Tex. Civ.
App.-Amarillo       1964, writ ref d n.r.e.); Royse Indep. Sch. Dist. v. Reinhardt, 159 S.W. 1010, 1011
(Tex. Civ. App.-Dallas 1913, writ ref d). Clearly, a district has no express authority to operate a
school outside the district’s geographic boundaries. Although subsection (b) of section 11.15 1
grants to the trustees of an independent school district “the exclusive power and duty to govern and
oversee the management of the public schools of the district,” the ultimate question is whether a
school beyond a district’s geographic boundaries may be said to constitute a public school “of the
district.” See TEX. EDUC. CODE ANN. 5 11.15 l(b) (Vernon 1996) (emphasis added).

          Courts ofotherjurisdictions     have consistently construed the term “district” to mean a specific
geographic area. In City ofAurora v. Rhodes, 689 P.2d 603 (Colo. 1984), for example, the Supreme
Court of Colorado said that the “term ‘district,’ as used in article II, section 16 [ofthe Colorado State
Constitution], and as applicable to a municipal court prosecution for an ordinance violation in a
multi-county municipality, should be interpreted to mean the area served by the municipal court or,
in other words, the territorial boundaries of the city.” Aurora, 689 P.2d at 610 (emphasis added).
In Jones v. Falcey, 222 A.2d 101 (NJ. 1966), the Supreme Court ofNew Jersey held that “the very
concept of a ‘district’.     is, that it must embrace an area with a single set of boundaries rather than
be a collection of geographically isolated oases.” Falcey, 222 A.2d at 106. See also Hammond Y.
Young, 117 N.E.2d 227,23 1 (Ohio C.P. 1953) (District “describes a special geographical area over
which specific authority, executive, legislative or judicial is exercised by properly constituted
officers.“); Hemmingson v. Libby, McNeil & Libby, 89 F. Supp. 502,504 (D. Alaska 1950) (district
means “‘division’ in a geographical sense”). Furthermore, section 12.011 of the Education Code,
which authorizes a school district to adopt a “home-rule school district charter,” specifically provides
that the adoption of such a charter “does not affect.        the district’s boundaries.” TEX. EDUC. CODE
ANN. 5 12.011 (Vernon 1996). These authorities lend credence to the principle that, unless the
legislature clearly indicates otherwise, a public school “ofthe district” should be construed to mean
a public school within a school district’s geographic boundaries.
Mr. Jim Nelson     - Page 3                             (X-0332)




          This view is buttressed by an example in which the legislature has made specific provision
for unusual arrangements involving public education. Since 1999, for instance, the board of trustees
of a junior college district has been authorized to operate “branch campuses, centers, or extension
facilities” only “within the junior college district’s service area.” Id. 5 130.086(a) (Vernon Supp.
2000). Prior to 1999, however, a junior college district could operate such facilities “without regard
to the geographical bounds of the junior college district.“’ Junior college districts that operated
branch campuses prior to September 1, 1999, apparently may continue to do so by virtue of
subsection (g) of section 130.086. See id. 5 130.086(g). The point is that the legislature, when it
wishes to authorize a district to operate a school facility outside its geographical area, knows how
to do so, and has done so in the past. The fact that it has not done so with respect to independent
school districts indicates, we believe, that such entities may not operate branch campuses outside
their geographic boundaries. See also id. § 130.006 (Vernon 1991) (independent school district and
community college district may enter into contract to hold college courses in school district’s
facilities).

         We must also consider the conclusion of the TEA that “nothing in Texas law precludes a
school district from operating an educational program outside its geographic boundaries.” See
Request Letter, supra note 1, at 1. It is of course settled law that the construction of a statute by the
administrative agency charged with its enforcement is entitled to serious consideration, so long as
the construction is reasonable and does not contradict a statute’s plain language. See Tarrant
Appraisal Dist. Y. Moore, 845 S.W.2d 820,823 (Tex. 1993); Gerst v. Oak CliffSaw. & Loan Ass ‘n,
432 S.W.2d 702,706 (Tex. 1968). As we have indicated, however, a school district does not have
untrammeled powers. Its authority derives from express or implied statutory language. The TEA
has not explained the basis for its conclusion, nor any statute t?om which the authority to do so might
be implied. The mere absence in Texas law of a prohibition on doing some act does not in itself
furnish authority to perform that act. Nor, in our opinion, does the amorphous reference to
“reserved” educational functions found in both section 11.151 and section 7.003 provide such
authority. We therefore conclude that TEA’s interpretation of Texas law in this instance-that         the
Boles Independent School District may operate a school outside its geographic boundariesdoes
not meet the Texas Supreme Court’s test of reasonableness formulated in Moore and elsewhere.

        In summary, it is our opinion that the Boles Independent School District may not operate the
Phoenix Campus, a school outside the district’s geographic boundaries. In view of our answer to
your first question, we need not address your second question.




         ‘Act of May 3 1,19?5,64th    Leg., RX, ch. 689, $1,1975   Tex. Gen. Laws 2109,   amended by Act of May 26,
1999, 76th Leg., R.S., ch. 1424, 5 1, 1999 Tex. Gen. Laws 4863.
Mr. Jim Nelson     - Page 4                        (JC-0332)




                                        SUMMARY

                         The Boles Independent    School District may not operate the
                 Phoenix Campus, a school         outside the district’s geographic
                 boundaries.




                                                 Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
