Untitled Texas Attorney General Opinion ( 1986 )

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
,B., 2494