                                The Attorne,y General of Texas
                                                 September 10, 1986
JIM MAlTOX
Attorney General


Supreme Court Suildlng         Honorable John E. Chamberlain          opinion No. m-541
P. 0. Box 12549
Austin, TX. 79711.2549
                               Ball County Attorney
5121475-2501                   P. 0. Box 699                          R.2: Whether Childress County is
Telex 91OlS74.1387             Memphis, Texas   79245                 authorized to annex a portion of
Telecopier   512147W286                                               the Estelline School District
                                                                      which lies in Ball County
714 Jackson, Suite 7W
Dallas, TX. 752024506          Dear Mr. Chamberlain:
214/7426344
                                    You ask whether section 19.021 of the Texas Education Code
                               authorizes one county to annex an entire county-line school district
4824 Alberta Ave., Suite 160
El Paso, TX. 799052793
                               without the consent of the other county affected. You indicate that
91515333494                    the Childress County Commissioners Court annexed the entire Estelline
                               Independent School District to the Childress Independent School
                               District without t1.econsent of the Hall County Commissioners Court.
ml    Texas. Suite 700         Approximately 75% cf the Estelline School District is located within
     ston, TX. 77002-3111
                               Hall County. You assert that article 19.021 does not authorize
I &?23-5a66
                               Childress County to take action affecting property lying in another
                               county without the -onsent or action of the other county.
806 Broadway, Suite 312
Lubbock, TX. 79401-3479             Section 19.021 of the Texas Education Code provides, in part:
8061747-5238

                                           (a) Tw commissioners court of any county may
4309 N. Tenth, Suite S                  create enlarged districts by annexing one or more
McAllen, TX. 78501.MS5                  common sc'~~~ol
                                                      districts 'orone or more independent
512/582-4547                            school dis.trictshaving less than 250 students in
                                        membership on the last day of the preceding school
200 Main Plan, suite 400                year to an independent school district having 150
San Antonio. TX. 782052797              or more students in membership on the last day of
512/225-4191                            the prece'iingschool year.

                               The question at han,iis not simply whether section 19.021 expressly or
An Equal Opportunity/
Affirmative Action Employer
                               impliedly requires the consent of both counties where more than one
                               county is affected. The dispositive issue is whether section 19.021
                               authorizes one county to take action outside of its boundaries. If it
                               does not, the other county's concurrent action over territory within
                               its boundaries is essential.

                                    Counties hold 'onlythose powers granted expressly or by necessary
                               implication in the! Texas Constitution and statutes. Canales v.
                               Laughlin, 214 S.W.;:d451. 453 (Tex. 1948). Section 19.021 does not
                               expressly authorize the annexation of a school district which lies
                               partly within anot:xr county. The Education Code provisions which



                                                         p. 2491
Ronorable John E. Chamberlatn - Page 2   (JM-541)




authorize actions affecting two different counties usually do so
expressly. See, e.g., 519.051(b). Further, sections which authorize
actions affecting two or more counties require the concurrence of each
affected county. See OS19.022, 19.054. Section 19.021 addresses the
special situation presented by school districts with a small number of
students by authorizing thf! annexation of a district with less than
250 students without a peti.tionof the district's registered voters.
See Griesenbeck v. Schindle!r,552 S.W.Zd 203, 205 (Tex. Civ. App. -
Eastland 1977, writ ref'd nE.e.); Neil1 v. Cook, 365 S.W.2d 824, 829
(Tex. Civ. App. - Eastland 1963, writ ref'd n.r.e.), app. dism'd for
want of juris., 376 U.S. 202 (1964). Changes in the boundaries of
school districts which hare a larger number of students require
petitioas from the register~?dvoters of the district. See Educ. Code
5519.022 (detachment and am~exation of territory); 19.052 (petition
for consolidation of school districts). Just because a voter petition
is not required does not mean that the consent of both counties is
unnecessary. The limited purpose of section 19.021 is significant in
determining whether it contiiinsthe implled authority for a county to
act outside of its boundaric!sand to do so without the consent of the
other county or counties affected.

      No reported cases interpret section 19.021. Several cases,
 however, iateroret the statutes which ureceded section 19.021. In
 Foulks ;. Chi& Spring Independent School District, 452 S.W.Zd 763
 (Tex. Civ. App. - Waco 1970, writ ref'd), the court held that a
 unilateral annexation of a r;c:hool
                                   district located in one county to a
 school district located primarily in another county is ineffective and
void without the consent of the other county. The coure dealt with
 article 2922a. V.T.C.S., an early predecessor to section 19.021. See
Acts 1969, 61st Leg., ch. (;89,at 2735 (repealing article 2922a and
 substituting. in part, section 19.001); Acts 1983, 68th Leg., ch. 285,
 51. at 1380 (replacing m!ctioas 19.001 and 19.261 with section
 19.021). The court stated l:hai"'[IIt is fundamental that the county
 trustees of one county cannot alone create a district composed of
 territory lying in two counties.'" 452 S.W.2d at 766 (quoting County
 School Trustees of Runnels CEunty v. State, 95 S.W.2d 1001, 1003 (Tex.
 Civ. App. - Austin 1936, writ dism'd); see also County School Trustees
 of Lubbock County v. Harral County Line Independent School District,
 95 S.W.2d 204, 206 (Tex. Cl;. App. - Amarillo 1936, no writ); County
 School Trustees of Leon County v. Leon Independent School District,
 336 S.W.2d 809 (Tex. Civ. Ajz~.- Waco 1960, no writ); Lorena Indepen-
 dent School District No. 90'7v. Rosenthal Common School District No.
-007, 421 S.W.2d 491 (Tex. Cl;. App. - Waco 1967, writ ref'd n.r.e.).
     The statutory language at issue in Foulks referred to the power
of school trustees "la e3ch organized county" to annex school
districts with less than 250 students to another district. Section
19.021 refers to "any" county rather than to "each" county. It has
been suggested that this ch~lge was intended to remove any requirement
that both counties must act in concert. However, a minor change in
phrasing made when the various civil statutes relating to one topic


                               p. 2492
Honorable John E. Chamberla:iu- Page 3 (JM-541)




are consolidated into one code is aot presumed to indicate a change
in meaning. See Sutherland; Statutory Construction, 928.10 (4th ed.
1985). Accorzgly,    the reasoning in Foulks also applies to section
19.021. As indicated, counties hold only those powers granted
expressly or by necessary implication in the Texas Constitution and
statutes. Section 19.021 does not expressly authorize annexation of a
school district which lies within another county; it merely authorizes
annexation of a district with less than 250 students without a
petition of the district's registered voters. The court in Foulks
suggested that the use of "each" county indicated that the provision
may have been intended to apply only to school districts located
within the same county. 452 S.W.2d at 766.

     Texas case law suggests that the legislature cannot grant
counties power to act unilaterally outside their boundaries without
constitutioaal amendment. :See Tex. Const. art. V, 518; Burke v.
Hutcheson, 537 S.W.2d 312, !x (Tex. Civ. App. - Eastland 1976, writ
ref'd n.r.e.); Ellis v. Hacks, 478 S.W.2d 172, 176 (Tex. Civ. App. -
Dallas 1972, writ ref'd rE7.e.). Article V, section 18, commits
county business to each county's comissioners court. In Burke and
Ellis the courts each held zhat a county commissioners court lacks the
authority to order a 1oca:l option election pursuant to the Liquor
Control Act in cities locate:d partly in two different counties. See
Burke 537 S.W.2d at 314-15'; Ellis, 470 S.W.Zd at 177; see a=
Attorney General Opinion m-468(1986).

     Your question, however, dpes not require reliance on whether the
legislature may authorize me county to take unilateral action over
territory lying within another county without running afoul of article
V, section 18, of the Texas Constitution. Section 19.021 fails to
provide the express or implied authority for a county to take action
outside of its boundaries. Accordingly, fhe concurrent action of the
other affected county under section 19.021 is essential.

                             SUMMARY

             Section 19.021 of the Texas Education Code does
          not authorize one county to take action affecting
          territory lying in another county without the
          concurrent action of the other county.




JACK HIGHTOWER
First Assistant Attorney General



                               p. 2493
Honorable John E. Chamberla:tn- Page 4     (JM-541)




MARY KELLER
Executive Assistant Attorne:?General

.RICK GILPIN
 Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




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