Honorable T. D. Sansing

County Attorney Hanaford County Spearma, Texas

Dear Sir: OpinionNo. O-6554 Re: Whether Spearman Independent School District is authorized to sell lots belonging to the districtwithout the consent of the State Board of Education.

Your request for opinionhas been received and carefully consideredby this department. We quote from your request as follows:

"The Spearman Independent School District desires to sell two lots ownedby it in the town of Spearman, Texas, and.the questionhas arisen as to whether or not
same can be sold without the consent of the of the State Board of Education. I have checked into the matter considerablyand
am unable to determine to my satisfaction whether or not the districthas such authority. Iwould, therefore, appreciate
an opinion from your office on the matter.

'The Spearman IndependentSchool Districtwas createdby a specialact of the 3rd called session 36th Legislature. The district is not operatedby the City of Spearman. It includes all of the city and extends severalmiles each way out into the country.

"Prior to 1938 the district sold a wooden building to the local American Legion, all, it seems on credit. No lien was taken by the district. Thisbuilding was moved to the lots which the districtnow desires to sell. The Legion placed a lien on theHon. T. D. Ssnsing, Page 2, 0-6554

buildings and lots in favor of a Lumber Company. The loan was not paid and the lien was foreclosed. As the lumber company got the amount of its losn from the sale of the building, it gratutiously deed the lots to the Spearman Independent SchoolDistrict. This was done in 1938 and the lots have r;Mn;d vacant and unused ever since. tricthad no idea of ever using same for schoolpurposes, as they are not suited to be used in suchmanner, but had in mind selling the lots as a means of partly salvaging the loss on thebuilding sole to the Legion.

"Thedistrict can sell these lots now at a good price, and the question, or rather two questions arise:

"1. Must the Spearmen Independent School District Secure the consent of the State Board of Educationbefore it can sell said two lots?

"2

. If such sale ismade, must it be at public sale?"

Spearman IndependentSchool District in Hansford County, Texas,was createdby H.B. 70, Acts of the 36th Legislature of Texas, 1920, 3rd Called Session. Section 1 of the Act creates the district and sets out the bo.undaries thereof. Sections 2, 3, 4 and 21 of the Act provide as follows:

"2. The management and control of the public free schoolswithin said district is hereby vested in a board of trustees,which board shallbe composed of five persons, resident citizens and qualifiedvoterswithin said district, and each member of the board, before enteringupon the diseharge of his duties, shallmake and subscribe to the usual oath for the faithful and impartial discharge of the duties of his offiee, as pro-' vided by the general laws of the State of Texas, governing independent school districts.

"3. Theboard of trustees of the Spearman IndependentSchool District shallbe aHon. T. D. Sensing,Page 3, O-6554

body politic and corporate in law, and aa suchmay contract and be contractedwith,
sue and be sued,plead and be impleaded in any court of this State of proper jurisdiction, and may receive any gift, grant, donation or devisemade for the use of public schools of the district, as provided by the laws of the State of Texas governing independent schooldistricts.

"4. The board of trustees of said district shallmanage and control the public free schoolswithin said district to the exclusion of every other authority, excepting in so far as the State Superintendent of Education (Fublic Instruction)end the State Board of Education may be vestedwith the general supervisoryauthority to in-. struct saidboard, as provided by the laws of the State governing independent school districts.

"21. The provisions of this Act shall be cumulative of all general laws now in force, or to be hereinafter enacted, governing independent school district, theirmanner ;f=z;eatingdebts, levyfng and collecting exceptwhen the same is in conflict with Che provisions of this Act."

Article 2773,Vernon's Annotated Texas Civil Statutes,reads as follows:

"Anyhouses or landsheld in trust by any city or town for publfc free school purposesmay be sold for the purpose of investing inmore convenient and desirable schoolproperty,with the consent of the State Board, by theboard of trustees of such city or town, and, in such case, the president of the schoolboard shall execute his deed to the purchaser for the same, reciting the resolution of the State Board giving consent thereto and the resolution of theboard of trus,tees authorizing such sale."

Article 2753,Vernon's Annotated Texas Civil Statutes, found in Title 49, Chapter 13, Section 1, Common School Districts, reads as follows:Hon. T. D. Sansing,Page 4, O-6554

"The trustees of any schooldistrict, upon the order of the county trusteesprescribing the terms thereof,when deemed advisable,may make sale of any property belonging to said school district, and apply the proceeds to the purchase of necessary grounds, or to thebuilding or repairing of schoolhouses,or place the proceeds to the credit of the available school fund of the district."

Article 2753, supra, relates to common school districts and does not apply to independent schooldistricts. R. B. Spencer & Co. v. Brown, 198 S. W. 1179.

We quote from the court's opinion in the case of R. B. Spencer & Co. v. Brown, 198 S.W. 1179, as follows:

II

.But appellees further contend that BGok did not become the owner of the building under his contractwith the school board, because no orderhad been made by the Commissioners'Court of the countyprescribing the terms of the sale, as required by Article 2846, R. S. (1911) (NowArt. 2753),
nor had the consent of the State Board of Education to such salebeen obtained,as requ;re;7;;)article 2873, R. S. (1911) (now

. . "Article 2846 has no application,because the school districtwas an independent schooldistrict. Said article appears in the Revised Statutes in chapter 15, title 48. This chapter relates to common school districts. Originally this articlewas section 86 of chapter 124, Acts of the Twenty-Ninth Legislature,p. 263. It there appearsunder the subtitle 'SchoolHouses and School Supplies' of the title 'CommonSchoolDistricts.1 It is thusmanifest that this article relates to the sale of propertybelonging to common schooldistricts.

"The sale of schoolpropertybelonging to the Lingleville independent schooldistrict is,however, governedby the provisions of article 2873,R. 3. (lgll),which requires the consent of the State Board of Education. The State Board of Education did adopt a_ -

Hon. T. C. Zansing, Page 5, o-6554

resolution,which was quoted above. This resolution did not in any wise undertake to prescribe the details of the salewhich might be made of the land by the schoolboard, and was sufficiently comprehensiveto authorize the schoolboard to make the sale thereof in the form of applying the value thereof to the construction of a new building. That is what was done by the agreementbetween the school trustees and Brown. This resolution of the State Board of Education constituted sufficient authority to the board of trustees to pass title to the schoolbuilding to Brown,but in this connection it will be noted that this resolutionwas adopted subsequent to the date of the contractbetween the schoolboard and Brown. Since said consent of the stateboard did not exist at the time of the contractwith Brown, appellees contendhe did not obtain the title to the building, and was thereforenot the owner thereof, so as to enablehim to fix
a lien thereon for materials furnished. We do not think that a deed to a house or land executedby theboard of trustees of an independent school districtwithout the previously obtained consent of the State Board of Educationwould be such an absolutenullity as would preclude the application of the principles of ratification. Undoubtedly,however, it would be lacking in an essentialnecessary to its completevalidity, viz. The consent of the State Board to the sale,but if such consentbe subsequentlyobtained, thenwe are of opinion and hold that it would operate as a ratification of an act done without authority. In the instant case, the consent of the State Board of Education given in October, authorizing the board of trustees of the Lingleville school district to sell all or any part of the land, was sufficient to validate the contract sale theretoforemade between the board of trustees and Brown; it operatedretroactively,,andmade the contractwith Brown as effective as though it had been authorizedprevious to itsmaking. Itmay be conceded that, at the time the material
was furnished to Brown by appellants,Brown's title to the house was lacking in complete validitybecause of the failure to obtain the previous consent of the State Board of Education,Hon. T. C. Sasing, Page 6, O-6554

but he at least had an inchoate'rightor title to the property,which was ,afterwards perfected.

. . . . "Article 2873, R. Z., says the president of the schoolboard 'shallexecutehis deed to the purchaser for the same, reciting the resolution of the StateBoard of Education giving consent thereto, and the resolution of the board of trustees authorizing such sale.' In this connection, the point is made that the agreementbetween the board of trustees and Brown recitedno such resolutions. It is not believed it was the intention that suchprovision shouldnullify completelya deed executedwithout reciting the resolutions mentioned. Itwas intended,doubtless, that the deed upon its face should disclose the authorityby which it was executed;but this provision is regarded as directory and not msndatorg, and a failure to incorporate such resolutions in a conveyancedoes not nullify the same.

. . .'

In view of the court's opinion in Spencer vs. Brown, supra,we are inclined to believe that the consent or ratification of the StateBoard of Education would be needed before the purchaser of said lots from the Zpearman IndependentSchool District would obtain good and merchantable title thereto,

We think the better and saferpractice would be to secure the consent of the State Board of Education in advance by proper resolution and incorporate
same in the deed.

It is our further opinion that a proper conveyance couldbe had at eitherprivate or public sale. Notice of public sale couldbe advertised for a reasonable time, such as, e.g., the length of time providedby statute for sales of land under execution.
Yours very truly APPROVEDMAY 16, 1945 ATTORNEY GENERAL OF TEXAS APPROVED
/s/ Grover Sellers /s/ Wm. OPINION J. Fanning COMMITTEE ATTORNEY GENERAL OF TEXASBy Wm. J. Fanning BY B.W.B. WJF:bt:eac Assistant CH-