Untitled Texas Attorney General Opinion

• Court: Texas Attorney General Reports
• Decided: July 2, 1994
• Docket: DM-297
• Status: Published

Opinion

QMficeof tip !&tornep @met-at Mate of 25exae DAN MORALES ATTORNEYGENERAL June 17. 1994

Mr. Kenneth H. Ashworth Opinion No. DM-297 Commissioner Texas Higher Education Re: Whether the Wharton County Junior Coordinating Board College District may disammx the Needville P.O. Box 12788 Independent School District (RQ-545) Austin, Texas 78711

Dear Mr. Ashworth:

You have asked us to interpret the law of disamtexation under chapter 130 of the Texas Education Code. We understand that you ask this question at the behest of the Needville Independent School District (“NISD”), which apparently desires to dissolve its participation in the Wharton County Junior College District. Specifically, you ask the following questions: 1) Are there steps the [NISD] can follow to dissolve the district’s participation in the Wharton County Junior College District. If so, what are they?

2) If NSD] can remove itself from the junior college district, does NSD] have to establish or join another junior college district?

Article VII, section 1 of the Texas Constitution requires the legislature “to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” Attorney General Opinion M-1235 (1972) at 4. Based on article VII, section 1 and case law thereunder, this office previously has determined that, unless another constitutional provision provides to the contrary, the legislature has the sole discretion to determine the method of annexation or disamtexation of the territory comprising junior college districts. Id. at 5. In addition, article VII, section 3-b of the Texas Constitution “recognizes that the Legislature may authorize changes in the boundaries of junior college districts so long as outstanding bonds are not abrogated, cancelled or invalidated. ” Id.

Thus, a junior college district may disamtex territory only if the legislature statutorily authorizes it to do so and only in the manner that the legislature has provided. You cite two sections of the Education Code in which the legislature expressly has provided for the disannexation of territory comprising a junior college district: sections 130.069 and 130.070. Section 130.069(a), which the legislature enacted in 1963 (see Acts 1963, 58th Leg., ch. 465, at 1180), authorizes a junior college district to disamtex any territory lying within its borders that also lies within the borders of another junior college district. You indicate that this situation does not exist here.

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Section 130.070(a) authorizes a countywide independent school district junior college district1 to disannex the territory of an independent school district in an adjoining county ifthe independent school district was the only school district armexed to the junior college district and if the junior college district has no outstanding bonded indebtedness that it incurred a&r annexing the independent school district. Furthermore, section 130.070(a) rarely mentions disannexation without also mentioning “creation of a separate junior college district.” In our opinion, therefore, section 130.070(a) requires the disamxxed independent school district to create a separate independent school district junior college district.~ In summary, an independent school district may dissolve its

(1) anilMkp&nscbooldistrictjuaioroollege; (2) a city jmdor college;

(3) a nrdon jmior college;

(4) a county junior college;

(5) ajointumIy junior adlege; and

(6) apobUcjmioradlegeesaptordivisionofa@onslwIlege diatria

Chapter130dthEducationCodcprovides~fortbecstablishmmtof~hautborizcdtype(d plblicjonhrcoU~ SeeEduc~Ccdech.l3O,subch.B@nwidingforcstab~ofindqmdQlt school dblrict or cityjunior c&legs); id. sub&. C @mvidiq for cstablishamt of union, county, orjoint- anmtyjunioradleges). (ln1985thelc&lamenpealalsubchapterFofthcEducationCade,which putaid IOIhe esIablishmwt of regionalcollege diskts. Sre Acts MS, 69th Leg., ch. 302, &? 3.) By “counpdcindcpmdentachooldibtrictjuniorcollegc~wc wderawd seaioo 130.070(a) due Educakm C& to indicate a junior adleg district that is au&or&d by @on 130.004(a)(l) ood tstaMirhdwderchapbrl30,subchPpterBaadthatisbwnded,asistheindependcntscbDoldiariqby IlEcfamIyunes.

ZTbclegishm enactedse&on 130.070 in 1972. See Acts 1972,62d Leg., 4th C.S., ch. 16.0 1, at 37. NoIatdy, prior to the emadmwt of EccIial 130.070, Ihis ooicc issued AtInrncy General opinioo M-1073 (1972), io which we coti&&, among o&r things whaher the Ckkws JuniorCollege Di#rict migludisaMexIheMidIand IndepardentschoolDiict,IherehycrcaIingIheMidIaodlndqrcadeot School Dimict as a seprak junior college dkict. AttorneyGeneralOpinion M-1073 (1972) at 1. By that the, ofworse, tk legislaturehad enactedsection 130.069 of the Educationcode, but it had not yet emackdse&m 130.070. This 05%~determinedthat no UristinSstatutg au&r&d the Odessa Junior College District to disanaar the Midland hdqmdent School District. Id.at 2. The opinion further statcdtbat,ascx.istinglawsdidnotauthoriz.esuchadisannexaIion,

the only reworse would be le&lative action. Any law authori?& such di~tionwouldhwetobcagmallaw,underi\lticleUI,Scctioo56ofthe Texas constitution.

Similarly, territorydisan~& under a valid law could be formed into a ncwdistria,butthatmustbedoneunderaMilablegcnerallawandnotby~ ataMe. Id

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participation in a junior college district pursuant to section 130.070(a) if the attendant ciramitances satisfy the following prerequisites:

(1) The junior college district annexed the independent school district. See Educ. Code $5 130.064 - 130.068 (providing for annexation of territory to junior college district). (2) The independent school district is the only school district that the junior college district has annexed. (3) The independent school district is in a county that adjoins t&ejunior dege district.

(4) The junior college district is an independent school district junior college district, established pursuant to chapter 130, subchapter B of the Education Code.

(5) The junior college district is countywide.

(6) The junior college district has paid off any bonded indebtedness it huxured since the junior college district annexed the independent school district. (7) The independeatt school district will create a separate junior college district.

Senate Bill 19, which, when mmctcd,arkkd section 130.070 to tbc Education Code, was itadwed at the fomth called session of the 62d Legislature. This office comdered, in AttomeyGeneraI Opinion M-1235 (1972), the applicabilityof kste Bii 19 aad its compnnionbii, House BiU 33. llmt ~inionquotrdthcfou~~factsfromthe~~sleaatothis~~:

In their application, [Senate Bill 19 and Homx Bii 331, these biUs will applyonlytotbeOdez%JtiorCdlegeDiict. Apartoftbatdistrict comprisingthMidlaad~ntScboolDistrictwantsalegal~ra dimnnex itself fromthe OdessaJuniorCollegeDistrict. Attorocy Gamal Opinion M-1235 (1972) al 1. In answer to tk requestor’sinquiries regading the applicabiity of the bills, the opinion concludedthat “thebills in questionapplyto any idependent school d&rid which is the only school district that has been amxxed to a county-wide imkpendent school dislrictjunior college districtin an adjoining county.” Id.at 6. The opinion tkttheradvised that “the provisions of these bii wiU apply to deannedon procedun of territoriesof an idepdent school districtwhich is the only school districtthat has been amxxcd to a cwMywide independentschool district junior wllegc district in an adjoining county, whether such territoryhas been annexed prior to or wbseqowttothe mmcbnentof thesebills.” Id.

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If all of these criteria are met, section 130.070(b) - (t) provides a procedure by which “[t]he proposed disanne.xation and creation of a separate junior college district” must occur.3

We note that Needville lies in Fort Bend County, a county adjoining Wbarton County. However, we have not been advised whether the ciraunstances sat@ the prerequisites to the application of section 130.070(a) of the Education Code. See supru at 3 @sting prerequisites for the application of section 130.070(a)). Accordingly, we cannot detemtine whether section 130.070(a) authorizes the Wharton County Junior College District to disaMe!x NISD. If NED is, in fact, “the only school district that has been ammxed to a countywide independent school district junior college district in an adjoining county.” and if “the countywide independent school district junior college district has no outstandhq bonded indebtedness which was incurred a&r the annexation of NED, then section 130.070 authorizes the disannexation, and NISD must comply with the procedures for disannexation and creation of a separate junior college district that section 130.070 articulates. See supm note 3 (describing procedure).

‘~130.070@)requiresapetitionsignedbyatleadfivepacmtdtbe~~ elcdors~tbcindependemrbooldistri~psJ;ingdisanmcatontoinitiatcthcpmposcddisanmcation andcreationofasepamtejuniorwllegedistrkt Tlxpetitionmustbepmmntedtotbboardofbustecs (tbe=bcd”)oftkiadepadeatscbwldi6lriuseekioglobc- Bduc.Code~130.070@). If thcboardappmvestbepetition,itmustforwardthcpditiontotbccoOrdinating~Tcxascdlcgeand UniversitySystem(the %oonUwtingboard”).Id.

Tkmordiaptiogboardmuslapprnvcutepctitionifthcwnnumningboardflmtstbepetitionm k io o&r and ifalls&totmyprovisions bavcbcw wmpliedwith. Id.0 130.070(c). After the . . txlomaqboardhssnotifledtbebwrdoflheeoordinatingboard’sapprovaltbcboardmuaorderao ekdionndlcasibao2Odaysnormorethao3Odaysaftertheorderisissual. Id. Electionballctsto ~fmvidcvding~nrcrc~ tk prtqcsih mnst pIwide as follows: lxion oftk - ~JmdorC!oUegeD&ict,andcreationofthe~ Junior College Disnietwiulbwndsriescotamiowswitbtibmmdarieadtht - rodependentMoo1 Distkt.” Id.

Within1Odaysafterholdingtheelection,theboardmustcanvam theretorosand&clarea tradt.Id.p 130.070(d). “lf a majorityof the votes cast are in favor of d&me&on and creationof a sqamte jmdor wllege distrid, such imkpendent school district shall be deemed disanncxcd and wwtitutedasasepamtejuniorwllegedistrict.” Id.Chapter130,subchapterBoftheEducation &de, ptahiog to Utcestablishmentof aa independentschool districtjunior college district(see supa nctc 1). pmvi&a the pmwdmv, the independentschool district must use to wzate the sqamte junior wllege district. Id # 130.070(e).

Any of&r mpresentbtgthe disaonexedindependentschool districton the governingbody of the amntywik indepeodeot school district junior college ditict is terminated,althougJ~the remaining membersof the goveming body continue to servefor the termsfor which they were elected. Id.Finally, any petition for dkmmexationand cm&on of a sepamtejunior wllege districtmay include a requestfor a0 election to &ctdc whether the seyate junior wllege districtmay issue bonds, levy bond taxes, and lmy msi&nmw taxes in the event thejunior college districtis cxated. Id.5 130.070(f).

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In addition to sections 130.069 and 130.070 of the Education Code, article 2815~ V.T.C.S., ccmtinues to authorize the board of trustees of a joint-cmmty junior college district (see Educ. Code 4 130.004(a)(S); see &o id. ch. 130, sub&. C (providing for establishment of joint-county junior college)) to disannex any territory located more than 55 miles i?om the location of the junior college, if a majority of the property owners in the territory desiring disammxation have petitioned the joint-county junior college district to be disannexed and ifthe board of the junior college district consents to the disannexation. NeedviUe is located less than 55 miles from the location of the Wharton County Junior College. Consequently, article 2815p, V.T.C.S., does not apply in this situation.

#UMMA.RY

Three statutory provisions authorize the disammxation of territory from a junior college district: sections 130.059 and 130.070 of the Education Code, and article 2815p, V.T.C.S. Neither section 130.069 of the Education Code nor article 2815~ V.T.C.S., authorizes Wharton County Junior College District to disa~ex Needville Independent School District. We are not presented with sufbient fitcts to determine whether section 130.070 of the Education Code authorizes the disamtexation. If section 130.070 of the Education Code is indeed applicable to the situation, that statute governs the procedure for the diwmexation.

DAN MORALES Attorney General of Texas

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JORGE VEGA Fii fbsimnt Attorney Gene-d

DREWDURHAM Deputy Attorney General for Crimind Justice

WILL. PRYOR specialcounsel

RENEAHIcKs State Solicitor

SARAH J. SHIRLEY Chair, Opiion Committee

prepared byKymbedy K. Oltrogge Assistant Attorney General

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