Untitled Texas Attorney General Opinion ( 1948 )

EATTYDECNEY GENERAL
TEXAS
AUSTIN 11. -rExAs
PRICE DANIEL
ATTORNEYGENERAL
August 27, 1948
Hon. Looney E. Lindsey Opinion No. V-672
County Attorney
Upshur County Re: Withdrawal of Bethle-
Gilmer, Texas hem Common School Dis-
trict from the Indian
Rock Consolidated
School District.
Dear Sir:
We refer to your letter requesting an opinion
from which we quote, in part, as follows:
"More than three years ago Rev Beth-
lehem Common School District of Upshur
County was consolidated with the Indian
Rock Common School District of Upshur
County, Texas, to form Indian Rock Con-
solidated School District of Upshur Coun-
ty, Texas.
"At this time New Bethlehem seeks to
withdraw from the Indian Rock Consolidated
School District, Pursuant to this desire
this community has presented to the Coun-
ty Judge of Upshur County a petition sign-
ed by more than twenty qualified voters
of the old Rew Bethlehem Common School Dis-
trict (now a part of the Indian Rock Con-
solidated School District) asking that an
election be held in the 016 Rev Bethlehem
District to determine whether or not Rew
Bethlehem should dissolve or vithdraw from
the Indian Rock Consolidated School Dis-
trict.
'Laboring under the impression that
Art* 2815 (b) of the Revised Civil Stat-
utes of Texas, was still in effect, the
County Judge has ordered the election to
be held on August 31, 1948, I am enclos-
ing a copy of the election order and a
copy of the notices which have been posted,
Hon. Looney E. Lindsey, page 2 (V-672)
"The matter has been brought to my
attention and after studying the situation
and the law, I have reached the following
conclusions, on the correctness of which
I desire your opinion D D e
"An election held in only one of the
original districts which comprise a con-
solidated district to determine the ques-
tion of dissolution would be a void elec-
tion and the Commissioner's Court would
not be authorized to canvass said elec-
tion or declare the results of said elec-
tion.
"The County Judge who ordered the
election under a mistake of law has the
power to rescind said order.
Article 2815, V. C. S., as amended by H. B.
544, 48th Legislature, Acts 1943, provides:
"Article 2815. Dissolution.
"(a) Such consolidated districts may,
in the same manner provided for their con-
solidation, be dissolved and the districts
included therein restored to their original
status, except that it shall not be neces-
sary to provide polling places in each dis-
trict. Bach such district when so restored
shall assume and be liable for its prorata
part of the outstanding financial obliga-
tions of the consolidated district, such
prorata part to be based on the relation
the total assessed valuation of all proper-
ty in the district bears to the total as-
sessed valuation of property in the consol-
idated district, as shown by the assessment
rolls of the district for the current year.
No election forkthe dissolution of said con-
solidated distriats shall be held until three
(3) years have elapsed after the date of the
election at which such districts were con-
solidated,
"(b) On the petition of twenty (201,
or a majority, of the legally qualified
voters of any common school district9 or in-
Hon. Looney E. Lindsey, page 3 (V-672)
dependent school district, praying for the
withdrawal from a consolidated district,
If three (3) years have elapsed after the
date of the election at which such districts
were consolidated, the County Judge shall
issue an order for an election to be held
in the district desiring withdrawal. The
County Judge shall give notice of the date
of such election by publia8tion of the or-
der in some newspaper published in the coun-
ty for twenty (20) days prior to the date on
which such elections are ordered, OP by post-
ing a notice of such election in the district
desiring the election, The Commissioners
Court shall at its next meeting canvass the
returns of such election, and if the votes
cast in said district show a majority in
favor of withdrawing from the consolidation,
the Court shall declare the district sever-
ed and it sffall,berestored to its original
status. e 0
The present procedure for the dissolution~of
an entire consolidated school district located within
one county is set out in Article 2815(a), V. C. S, as
amended, and Article-b V. C. S. Subsection (b) of
said Act, which authorize1 and provided the procedure-
for the wlthdrawal from a consolidated district of a
district composing a part of such consolidation, was re-
pealed by Section 3 of S. B. 181, 50th Legislature, Acts
1947.
Under the present law, therefore, although a
consolidated school district may be dissolved complete-
ly, there is no provision authorizing a district com-
goslng a part of the consolidated school district to
wlthdraw.therefrom, There can only be a complete dls-
solution of the consolidated district under and In ac-
cordance wl,$hArticles 2815(a), as amended, and 2815W,
v. c. so; there cannot be a partial dissolution of same,
It is elementary that the power of the Legislature to
provide by general laws for the creation, changing OP
dissolution of the school districts of Texas is plenary.
Consolidated Common School District 180,5 v, Wood, 112
S,W.(2d) 235, writ refused.
The authority previously placed and existing
in the County Judge under subsection (b) of Article
2815 to order an election to be held in the district
. .
Hono Loeney E. Lindsey, page 4 (V-672)
do8irUg withdr8wal fpor the consolidates district upoa
presentment of petition of twenty 4~ a majority of the'
qualified voters of the district praying for withdrawal
do4s.n4t now exist by virtue of the repeal of said sub-
section (b).
We are umable to find any provision of law,
now existing, whieh authorizes the qualified voters in
a distrlat composing a part of a consolidated school
district to initiate a petition for withdrawal of their
district from the consolidation, or which authorizes the
Countr Judge upon presentment of such a petition to or-
der an election for the purpose in question. The power
to dissolve the consolidated district and thereby re-
establish the formerly existing compound districts is
now delegated upon the condition that it be done in the
same manner provid4d for their consolidation. Consoli-
dated Common School District No. 5 v. Wood,, supra.
It has been held that there can be no valid
election if the sane has not been called by lawful auth-
ority, for the right to hold or order an election cannot
exist or be lawfully exercised without express grant of
power by the Constitution or Le islature. Count2 v0 MitT
chell, 120 Tex. 324, 38 S.W.(2d7 773.
,It follows that the election order under con-
sideration herein is ineffective and void, Clearlg, un-
der such oircumstances, the election order unauthorized
and void may be set aside or rescinded, McLemore v*
Stanford, 176 S,W.(2d) 770, at page 773; Holden'v, Phil-
lips, 132 s.w,(2d) 519*
An election proposed to be held In
only one of the original districts which
comprise a consolidated school district,
for the purpose of withdrawing from the
consolidation, would be a void election.
Countz v. Mitchell, 120 Tex. 324, 38 SOW,
(28) 773; Article 2815, V. C. S., as amend-
ed by H, B. 544, 48th Legislature, Acts
1943; Section 3 of S. B. 1.81, 50th,Leg.,
Acts 1947o