Honorable T. D. Sansing 

County Attorney 

Hanaford County 

Spearma, Texas 

Dear Sir: Opinion No. O-6554 

Re: Whether Spearman Independent 

School District is authorized 

to sell lots belonging to the 

district without the consent 

of the State Board of Education. 

Your request for opinion has been received and 

carefully considered by this department. We quote from 

your request as follows: 

"The Spearman Independent School District desires to sell two lots owned by it 

in the town of Spearman, Texas, and.the 

question has 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 considerably and 

am unable to determine to my satisfaction 

whether or not the district has such 

authority. I would, therefore, appreciate 

an opinion from your office on the matter. 

'The Spearman Independent School District was created by a special act of the 

3rd called session 36th Legislature. The 

district is not operated by the City of 

Spearman. It includes all of the city and 

extends several miles 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. This building was moved to 

the lots which the district now desires to 

sell. The Legion placed a lien on the 
Hon. 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 School District. This was 

done in 1938 and the lots have r;Mn;d 

vacant and unused ever since. 

trict had no idea of ever using same for 

school purposes, as they are not suited 

to be used in such manner, but had in 

mind selling the lots as a means of partly 

salvaging the loss on the building sole 

to the Legion. 

"The district 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 Education before it can 

sell said two lots? 

"2 . If such sale is made, must it be 

at public sale?" 

Spearman Independent School District in Hansford 

County, Texas, was created by 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 schools within said district is hereby vested in a board of trustees, which 

board shall be composed of five persons, 

resident citizens and qualified voters within said district, and each member of the 

board, before entering upon the diseharge 

of his duties, shall make 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. The board of trustees of the Spearman Independent School District shall be a 
Hon. T. D. Sensing, Page 3, O-6554 

body politic and corporate in law, and aa 

such may contract and be contracted with, 

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 devise made for the use of 

public schools of the district, as provided 

by the laws of the State of Texas governing independent school districts. 

"4. The board of trustees of said 

district shall manage and control the public 

free schools within 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 vested with 

the general supervisory authority to in-. 

struct said board, 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, their manner 

;f=z;eating debts, levyfng and collecting 

except when the same is in conflict 

with Che provisions of this Act." 

Article 2773, Vernon's Annotated Texas Civil 

Statutes, reads as follows: 

"Any houses or lands held in trust 

by any city or town for publfc free school 

purposes may be sold for the purpose of 

investing in more convenient and desirable 

school property, with the consent of the 

State Board, by the board of trustees of 

such city or town, and, in such case, the 

president of the school board shall execute 

his deed to the purchaser for the same, reciting the resolution of the State Board 

giving consent thereto and the resolution 

of the board 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 school district, 

upon the order of the county trustees prescribing 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 the building 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 school districts. 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 contract with the school 

board, because no order had been made by 

the Commissioners' Court of the county prescribing the terms of the sale, as required 

by Article 2846, R. S. (1911) (Now Art. 2753), 

nor had the consent of the State Board of 

Education to such sale been obtained, as requ;re;7;;)article 2873, R. S. (1911) (now 

. . 

"Article 2846 has no application, because the school district was an independent 

school district. Said article appears in 

the Revised Statutes in chapter 15, title 48. 

This chapter relates to common school districts. Originally this article was section 

86 of chapter 124, Acts of the Twenty-Ninth 

Legislature, p. 263. It there appears under 

the subtitle 'School Houses and School 

Supplies' of the title 'Common School Districts.1 

It is thus manifest that this article relates 

to the sale of property belonging to common 

school districts. 

"The sale of school property belonging 

to the Lingleville independent school district 

is, however, governed by 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 sale which might be 

made of the land by the school board, and was 

sufficiently comprehensive to authorize the 

school board 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 agreement between 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 school building to Brown, but 

in this connection it will be noted that this 

resolution was adopted subsequent to the date 

of the contract between the school board and 

Brown. Since said consent of the state board 

did not exist at the time of the contract with 

Brown, appellees contend he did not obtain the 

title to the building, and was therefore not 

the owner thereof, so as to enable him to fix 

a lien thereon for materials furnished. We do 

not think that a deed to a house or land executed by the board of trustees of an independent school district without the previously 

obtained consent of the State Board of Education would be such an absolute nullity as 

would preclude the application of the principles 

of ratification. Undoubtedly, however, it would 

be lacking in an essential necessary to its 

complete validity, viz. The consent of the 

State Board to the sale, but if such consent be 

subsequently obtained, then we 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 theretofore made between the board of trustees and 

Brown; it operated retroactively, ,and made the 

contract with Brown as effective as though it 

had been authorized previous to its making. 

It may be conceded that, at the time the material 

was furnished to Brown by appellants, Brown's 

title to the house was lacking in complete 

validity because 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'right or title to 

the property, which was ,afterwards perfected. 

. . . . 

"Article 2873, R. Z., says the president 

of the school board 'shall execute his deed to 

the purchaser for the same, reciting the resolution of the State Board 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 

agreement between the board of trustees and 

Brown recited no such resolutions. It is not 

believed it was the intention that such provision should nullify completely a deed executed without reciting the resolutions 

mentioned. It was intended, doubtless, that 

the deed upon its face should disclose the 

authority by which it was executed; but this 

provision is regarded as directory and not 

msndatorg, and a failure to incorporate such 

resolutions in a conveyance does 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 State Board of Education 

would be needed before the purchaser of said lots from 

the Zpearman Independent School District would obtain 

good and merchantable title thereto, 

We think the better and safer practice 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 could be had at either private or public sale. 

Notice of public sale could be advertised for a reasonable 

time, such as, e.g., the length of time provided by statute 

for sales of land under execution. 

Yours very truly 

APPROVED MAY 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-