      -       I




                   TamAm-                           G-
                                   OF TEXAS
                                   Aue~m     1% TEZXAS
PRICEDANIEL
AlTORNeYGENERAL
                                 October 9, I.951



          Eon. J. W. Edgar, Coriunlssloner    .i
          Texas Education Agency
          Austin, Texee            opinion ?io~~k-l308

                                            'he: Lleblllty of &m&all
                                                 Independent School
                                                 Ms*rlct for paving
                                                 assessments for streets
          Dear Sir:                              adjolnlxg its property.

                   Your request for an oplnlon'relates to the
          llablllty of the Marshall Independent School Dl&rlct,
          a munlclpally controlled district, for the.pavj+g of
          streets adjolnfng the school district% property.
          YOUl' f8Ctld      pW%.le'ptRti~    ii3 '88 fOllOWI
          :
                  *me Marshali Independent School Mstrlct
                  Is munlclpally controlled Zn that the mm-
                  bepa of the Board of Education a&e appointed
                  by the City Gcmmlesim except when ttu?Ce Is
                  a reslgnatlon of a board member before the
                  expiration of his appointed term of office,
                  in which case lt Ls the prerogaflve of ths
                  school board to appoint a member to complete
                  the term of office.
                  ‘f. . .

                  "The title for.property owned.by the Mar-
                  shall Independent School Dlstrlct is vested
                  in the Board of Education.
                  18
                   . . .

                  "The Marshall School Board as authorized
                  through the City Charter, may contract, be
                  contracted with, sue, be sued, pleaa, be
                  Impleaded, may receive gifts, grants, con-
                  veyances, rloru7tlon8, and devises . . . pro-
                  vided, however, the sale of any property
                  for a value of<$ZtOOO or more isfirst ep-
                  proved and affirmed by the Commission ~of
                  the City of Marshall.
                                                        ..




Hon. J.'W, Edgar, Page 2 (V-1308)



     "On February 23, 1951, Prendergast &
     Prendergest, Attorneys, WEII'SbEtll,
                                        TeXaS,
     enclosed with 8 letter of explanation
     an InVo'Lce for proposed street paving
     of Lots 1.3-23,i;l.ock2, College Heights
     Addition, frontln~ 240 feet on DniVer-
     city Avenue. The invoice was billed
     to the Marshal.1 School Doard for worlc
     to be dOne by H. R. Henderson Company
     for the City pf MarslX311.

     "On the basis of the fact5 stated above,
     we subnit the following questlOn8:

         “1.   18
                the MarhsalL' Independent
     School District obligated to pay for
     the pavlng.of streets adjoining its
     property?                  .
         "2. If your aIMW& tb the first
     question la ln the negative, does the
     ‘toard of trustees have the authorltg;
     to voluntarily pay for such pavQ@

         You have inform& us that the property On
account of which the asseasrrent was made.%8 Used
as e public achoo;l site.

         Article XI,'Section 9, of the Constitution
of Texas 18 as follows:

           'ITheproperty of countlea, cttles
     and.towns, owned and held Only for public
                 such as.publlr hulldlng5 and
     ~~"%%       therefor.isiC]' 3.2’8 E%l&Il88 alla
     the. furniture thereoi, &XI all property
     used, or intended for extln@sh~           flre8,
     public grounds ano all other property de-
     Voted   exclusively to the use and benefit
     of the pubI& shall be exempt from forced
     sale and frdm taxation, provided, notbm
     herein 5h511,prevent the etiorcement of
     the vendors lien, the mechanics or bul$d-
     ers lien, or other lien5 now exfstiq.

         In Dower Colorado River Authorit: TidChemL-
cal B8nk & %USt  CO.,. 144 T    326 190 S W     4u
ng45]   the COUFt tieId thate~~OPeriY Of the bder
Colore~o River Authority used in the execution
Hon. J. W. Edgar, Page 3 (V-1308)


of the purposes for which the agency was created was
exempt from taxation by virtue of Section 9 of Ar-
ticle XI. The court stated:
         "It thus appears from the provisions
     of our Constitution and legislative enact-
     ments thereunder, as they have been con-
     strued by;!ourcourts, that LCRA is a gov-
     ernmental ,a$encyserving a public purpose
     in controlling and storing the flood waters
     of the Colorado River and that all benefits
     derived from its efforts are public bene-
     fits. Hence, its property is public prop-
     erty devoted~exclusively to public use and
     is exempt from taxation under Art. XI, Sec.
     9, of the Constitution; and the proviso
     contained in Sec. 48, Art. 7150, supra, re-
     quiring payments 'ii1lieu of ta~xes,'is
     void because contrary to the Constitution."
         Prom this case, we conclude that the exemp-
tion accorded by this constitutional provision ex-
tends to the property of any governmental agency
which is devoted exclusively to the public use. An
independent school district is a political subdivi-
sion of the State, and property used for the siteof
a public schoolsbuilding is devoted exclusively to
the use and benefit of the public.
                                    =%Y&i;+;,
School Trustees of Willacy County, 33 S.              .
civ. App. 1.933,error ref.); Daugherty v. Thompson,
71 Tex. 192, 9 S.W. 99 (1888). The conclusion that
the exemption extends.!.to
                         the property of an independ-
ent school district is eupported~also by the decision
in State v. City of San Antonio, 147 Tex. 1, 209 S.W.
2d m$),which        held that this provision exempted
from taxation property boughtin by the City of San
Antonio and the San Antonio Inuependent School Dis-
trict on foreclosure for delinquent city and school
district taxes.
           In Harris County v. Boyd, 73 Tex. 237, 7 S.W.
71.3 (1888j, it was held that the exemption in Article
XI, Section 9, included special assessments for street
improvements. The court said:
      Ifn P . there is no apparent reason why
      the exernpiionfin the.constitution should
      not be taken in the ordinary and more
      comprehensive sense, so as to include
rion.J. ‘ir.
           Ed,,yar,
                  P,lge11 (v-1338)



     ~71.1.taxation, special.as well as gen-
     eral. The purposes of the exemption
     obtain equa~!.ly     ezainst special.asess-
     me xt s 5 5 a ‘~1
                   rv ;i.
                       nst general taxation.
     T!ke inhibit:f~on    zgalnst sa1.ewould.seem
     to negative the power to assess. . . .
         “The court ho1.d.s ‘chatthe sction of
     the city authorities in essessing the
     tax qsinst the courthouse site, 2nd in
     attempting to hind.the county 2s the
     owner, 11~s inhibited :I? section 9, ert.
     II.,of the constitution of the state.
     It wes without authority   as well. as
     rgalnst the count;r2s azzinst the prop-
     er4.g.”
         In v5.e~of tk foregoing aut??or?.tle~,:.t;.s
               t the City of IkrslWl.1.
our opinion tliz                      ,?oesn,>t!.k?r-c
              to l.evyan essessment 2,Ta~l.net
t5.e?utliGr;.t:‘r                           :i7n?ert:,:
Llser;~
     ?.Sa puLJ1.I.c     site unless the fart th7t t!:
                 sc~~.ool.
Marshi21.1.
         Independent School District is a munici?:!1,::
control.I.ed
           c?istrictca~l.1~
                          for the ,appl.Lcation
                                              of r
c’ifferentrule. On June 31, 1.$&g,:the City of Ker-
      adopteti;Icharter amendment provi6i.n~y
sh.71.1.                                    t~l?.,?
                                               t t.-me
improvement of :itsstreets sh0ul.dtie,govemefiby t;:e
7rov3.sion.5
           of p,rtic!.e
                      1.1.351d,
                             V.C.E. This ctrtutk
,-uthorizesthe governi.nzboclyof tlk city to prov:i<e
for the cost of such improvements ‘:jy
                                     the c!t:;o? Frrt-
I.7by the city 2nd partly by cssessments a,:z?nstpi-~?-
&rtg Sbuttin,?on the street to be improve?. I;^t;,ie
school.d.istrirtis merely a branch of the tit;-gov-
ernment an’?does not heve e sepzrete Wentit::, i:.t
mizht be argued.that it would be proper for the ci.t::
,governin,q
          hod,?to 2utk;orizepayment of part of tile
co-t out of school.fun&.
         Uni’~er
               l.tscharter, tLe City of f42rs321.1.
                                                  5-s
consti.tuteC2n infiepenA.ent
                           sc!iool.
                                  aistrict, ?nr‘~its
8c!:ool.e
        cnrep1.2   tinc’ie
               cec?~   r the ~rq~ement znr:, contr2S.
0;’i‘zc!lool.
            boprrlappointed~by the city commi.ss~.on,
               o,fthe city charter, the E cl:oo!.
3g Suction I.:>),:-                             trar-
tees are incorporated ,-ndmF.de3,b0d.ycorpor$te in
12~ un:?erWe neme of “Marshall.School.i3oar(l,.” Sy
$:ct!.on1.05,the Pbsolute tit1.ean<!~1.1.
                                        ri+ts to
,:l.!.
    nro2erty for school.purposes ere vestei;:intij.e
i:orr;o? trustees.
,




    Ron. J. W. Edgar, Page 5 (v-1308)     *


             These charter provisions are consistent with
    the general.sta~tutes&verning municipally control.l.ed’
    school.districts. Article,2772, V.C.S., provid,es:
              “In every city .or town in this State
         which has or may a~ssumethe exclusive con-
         trol.and management of public freeY’school.s
         ?7ithin.itsl3.mlts,and which has or may
         tieterminetha,tsuch excl.usivecontrol a,nd
         m2 mm‘ement sh~1.1.be in a board of trustees,
         c-r,9or;:anizedunder an Act of the Sixteenth
         ;              approved.April 3, 1.879,and,
         Lter~Isl.a.ture,.
         Acts cmenda, tory thereto, the tit1.eto al.1
         houses, lands and other property~owned, held,
         set apart, or in any way dedicated to the
         use and benefit of the pubI.icfree schoo1.s
         of such c%ty or town, including property
         heretofore acquired as well.as that which
         may hereafter be acquired, shall be vested
         in the :,oa~r3~of trustees and thefr succes-
         sors in office, in trust for the use and
         benefit of the public free schools in such
         c1tg or town; and such board.of trustees
         shall.have and ,exercise the exclusFve con-
         trol and management of such school.prop-
         erty, and sha.l.1 have a.nd~
                                    exercise the ex-
         cl.usive‘1possession thereof for the purpose
         a~foresa.lcl;. . .I’
               Lrkewise, ArtLcle 2780, V.C.S., states that
    the trustees “shall have the exclusive power to man-
    age and f’overnsaid sclio~!.s,  and all.ri&its and titles
    to property for school purposes hsretofore vested in
    the r?L?“OP . city councils. or school.trustees . . .
    sha:I.i be GesteI’in said board of trustees and the3.r
    s:~c~~‘::~~ys in office.I’ In Temple Independent School.
    DLs:!;o 7.;
             I Pr:0~t,or 97 s.w.2cl7047,-1.p.
    ToTi” error ref. I, the. court held that this statute
    z~+~lie3 to all.trustees of independent districts,
    “whether appointed by the city council.or elected by
    popular vote .‘I T’ne court further sta,tedthat the
    statutes relating to municipal.1.g  controlled school.
    districts manifest a clear legisl.ativeintent that
    where a board of trustees has control of such schools
    the3rTontrol.is to be exclusive.
                                                   ‘.




Hon. J. W. Edgar, Page 6 (V-1308)


         Thus, by the charter provisions as well as
by the general statutes, the title to the property
of the Marshall public schools has been vested in
the board of trustees. The City of Marshall as a
municipal corporation levies and collects the taxes
by which its school system,& operated, but the
management and disposition of these funds are under
the control of the school board. Under these facts,
it is our conclusion that the City of MarEhall has
no power, in its municipal capacity, to levy an as-
sessmen: against the property of the school district,
          Passing to your second question, it is our
opinion, based upon the holding in a letter addressed
to Hon. Gibb Gilchrist dated May 15, l.951, that the
Marshall Independent School District may voluntarily
pay for such paving if the board of trustees  deter-
mine 9, in the exercise of its sound discretion, that
the paving is necessary in the conduct of the public
schools. In the opinion above referred to, it was
statedi
         "It is our opinion that the answer
     to the question which you present is
     controlled by the statements found in
     a letter opinion from the Attorney Gen-
     eral to the County Attorney of Mont-
     gomery County, dated March 1, 1940, and
     attached hereto. There the question
     under discussion was whether the Conroe
     Independent School District could use
     its local school funds to pay for con-
     crete sidewalks built on property ad-
     jacent to school property but owned by
     a private individual in which the School
     District had no character of interest,
     the sidewalks to be used by pupils going
     to and from school. The statute in-
     volved in that opinion is Section 2 of
     Article 2827, Vernon's Civil Statutes,
     which provides in parts
         "-he public free school.funds shall
     not be expended except for the following
     pur ww3s I
         "'2. Local school funds from district
     taxes, tuition fees of pupils not entitled
     to free tuition and other local sources
      .      .




          lion.J. W. Edgar, Page 7 (v-1308)
‘\
 “\              may be used for the purposes enumerated
                 for state and county funds and for pur-
                 chasing appliances and supplies, for the
                 payment of insurance premiums, janitors
                 and other employees, for buying school
                 sites, buying, bui;.dinSand repairing
                 and renting school houses, and for.other
                 purposes necessary in the conduct of t)?e
                  ublic schools to be determined by th
                  oard of Trustees . . .' (Emphasis adied.)
                     "Based upon this statute it was held
                 that the Board of Trustees was authorized
                 to use local funds forthe necessary pav-
                 ing."
                                 SUMMARY
                     The Marshall Independent School Dis-
                 trictis not obli.Satedfor the paving of
                 streets~adjoining a school site: however,
                 the board of tru      of the district
                 may voluntarily ay for the paving if
                 the board finds that the paving is neces-
                 sary in the conduct of the public schools.
          APPROVED:                           Very truly yours,

          J. C. Davis, Jr.                      PRICE DARIEL
          County Affairs Division             Attorney General.

          Jesse P. Luton, Jr.
          Reviewing Assistant
          Everett Hutchinson                                      /
          Executive Assistant                    rna;yic:W&
                                                 Mary K. Wall.
          BW:MKW:awo                               Assistants
