Hon. Jhlnia zimmernlann OpinionHO. V-1193

County Attorney Swisher County Re: Eligibilityto vote in Tulla, Texas ii elections to convert rural high school distrlcts into independent Dear Sir: school districts.

We refer to your request for an opinion of this office concerningeligibilityto,vote in an electton to ccnvert a Pural high school district into an independent school district. S .B. 316, Acts 52nd Leg., R S. 1951, ch. 42, p. 69, codified In Vernon’s Civil Statutes as Art. 2922&(5) l Article 29221(5), supra, provides in part as follows:

‘Section 1. Upon a petitionproperly signed by twenty (20), or a majority, of the legally qualifiedproperty taxpayingvoters residing in any rural high school district In which there is maintaineda first-class high school of twelve (12) grades, offering sixteen (16) or more credits, the County Judge of said county shall issue an order calling for an election to be held not less than twenty (20) nor more than thirty (30) days from the date of filing of said petition, for the purpose of convertingthe rural high school district into an independent school district for school purposes. After said election is held, the CammIssioners Court shall canvass the re,turns thereofas in other similar elections,and if the majority of the votes cast favor the change from a rural high school district into an Independentschool district, then said Con&ssioners Court shall enter its order'to that effect and Incorporating said independentschool district.

. . . Thereupon, such ‘independent school district’ shall thereafterbe regarded as duly incorporatedfor free school purposes only and shall have and is.. .

Hon. Dennis Zlmmermann,page 2 (V-1193)

hereby vested with al.1 the rights, powers and privilegesconferredand imposedby the General Laws of this State upon independentschool districts.

"

. . . 'Sec. 4. All bonds issuedby and outstandingagainst any such rural high school district;as a school district,and all obligatlozs, contractsand indebtedness existing against the rural high school district,shall become the obligations and debts of the lndependent school district at the time of Its incorporation;

and the said independentschool district,after same has been Incorporated, shall be held to have assumed the discharge of all such obligations,contractsand lndebtedness, and the same shall be enforceable and collectible

from, paid off and dischargedby, the said Independentschool dlstM.ct,as if or1ginallgcreatedby it as an independent school district;and it shall not be necessary to call an electionwithin tind for such district for the purpose of assuming such bonds and other indebtedness.

. . ." (Emphasis added.)

In connectionwith that law, you ask these queations:

1. Is the election limited to only qualified propertytaxpayingvoters?

2. Who Is to pay for the expenses of holding the election?

It is observed that Article 2922&(5)provides
that the petition invokingpower In a county judge to call
sucn an incor by twenty (20

Poration electionmust be "properlysigned
or a majority, of the legally qualified propertytaxpailngvoters residing In any rural high school district"designatedtherein. But the law does not state the quallflcatlon

of voters who may vote ln a called election. It simply states that "If the majority of votes cast favor the change

. . . said Conrmlssioners Court shall enter its order to that effect."

A similar situation is apparent in Article 2742j, V.C.S.,as amended. That law proOides for the incorporation of certain common school districts into independent. .

Ecn. Dennis Zlmmermann,page 3 (V-1193)

school districts. In an opinion of this office concerning qualifiedvoters under Article 27423, It was held that all personswho are qualifiedvoters and who are residents of a common school district as designatedin that law, are entitled to vote In an electionheld under and for the purpose set out therein, citingArticle 2955 on the matter of qualification. Att'y Gen. Op. V-348 (1947). Under that holding, qualifiedvoters were not restricted to qualifiedproperty taxpayingvoters. The slmllaritybetween the provisionsand wording of Section 1 of Article 2742j and Section 1 of Article 2922l.(5)

is so strikingas to make It apy;ear that the latter was patternedafter the former.

Unless therefore, the presence of Section 4 in Article 2922115) which does not appear In Article 27425, imposes ~ome'restrlctionon the qualificationof voters under Article 29221(5), the holding in Opinion V-348 should control the znswer to your first question.

The purpose of Article 29221(5) is singular. It is to provide for the lncorporatloii by election of a rural high school district (classified as co!mon under Article 2922b, V.C.S.) into an Independentschool district. The boundaries of the successordistrict resulting from such an election favoring the conversion will be cotermlnous

with those of the former rural high school dletrlct. The obligations,bonded and other indebtedness. of the originaldistrfct will become those of the successor district to discharge. Section 4 so provides. A school district can no more escaue its o~l~i~ations br incoroorntlcn or conversion than it~could by vdissoluti~n.-f Mount IndependentSchool Mat. v. Jackson, 152 S.W.26 00 lTex.Clv.App.lgql:-errorr%?TIndeed, Section 6 of Article 2786b,V.C.S. speclfical3.y

provitles a8 follows:

"Xr. each insts.nce

wherein a common school district 5~s been or shnll hereafter be converted into 8n lndeuendentschool dist;c; rdaln each instancewherein a disf ny kind or class has been converted into a district of s.ny kind or class the 'boundaries

of said original districtand of said successordistrict being Cotermlnous, the inflebtedness

of said originaldistrict shallbe ~leld

and.consideredand is hereby declared to be the indebtednessof said 8uccesaor districtwithout the necessity of an- .

Hon. Dennis Zimmerman,page 4 (V-1193)

election of any characterfor the assumption of such indebtedness, and the duty is hereby Imposed on the governing board of such successor district to levy and collectannually taxes against all of the property in said dlstrlct, sufficientto pay the interest and to pay or provl.de

a proport&$nate

part of the principal thereof.

. . . (Emphasisadded.)
Thus, Section 4 of Article 29221 4 5) merely expresses the law as set forth in Article 27 6b with respect to the obligationsof a school district converted without change of boundaries Into another type of school district,and makes it c;.early applicableto rural high school districts converzteQiato independentschool districts. Section 4 states that all bonds outstanding againstany such rural high school district,as a school district shall become the debts of the successor indemchool district. The underscoredphrase constitutes a limitationon the assumptionof bonded indebtedness under this law, and prohibits the assumption of outstanding

bonded Indebtednessof elementarydistricts of the rural high school districtwhich had not previously been assumed by the rural high school district,as such, under an election as provided in Article 292211 V.C.S. It appears that Section 4 of Article 29221(51was carefullyand successfullyframed to avoid violatTonof Section 3a of ArticleVI, Constitutionof Texas. Clearly, It is not the purpose of Section 4 or any part of Article 29221(F) to authorize thereinan election for the assumptionoT bmded or other indebtedness.

Since the avowed Intent of Article 29221(s) is not to authorizean election for the assumptionOT a debt, bonded or otherwise,its sole purpose being to provide an election for the conversionof a rural high school Bistrict, It is our opinion that all persons who are quallfied voters under Article 2955, V.C.S., and who are residents of the rural high school district are entitled to vote in an electionheld for the purpose set out in Artlcle 2922&(5). See also Art. 2954, V.C.S.

With respect to your second submittedquestion, Article 2746b, V.C.S., provides In part as follows:

WAll expenses Incurred In connection with or incidentalto any school district election In connectionwith the public school within such school district shall be paid out- .

Hon. Dennis Zinrmermann, page 5 (V-1193)

of the availablemaintenance fund belonging to such district

. . .'

See Att'y Gen. +a. O-623 (1939),O-4919 (1942), O-7187 (1945) *

It may not be amiss to direct the attention of those rural high school districtswhich contemplateconverting or Incorporatinginto independentschool districts to the case styled Bigfoot IndependentSchool Dist. v. Genard, 116 S.W.28 804 -3 (1939). ffirmed in 133 Tex. 368 129 S.W.

It heidathatwhere

tai, after a co&on school districthas voted a maintenance the districtwas regularly converted into an independentschool district, the independentschool district could not impose the maintenance tax without having first obtained the approval of the property taxpayingvoters of the new district,notvithstanding the independentdistrict embraced the Identical territory which formed the common school district. Also see Pyote IndependentSchool Diet. v. Dyer, 34 S.W.2d 578 (Tex 8omm.A~~. 1931)

.

All persons who are qualifiedvoters and who are residents of a rural high school district of the designationand descriptlcmset out in Senate Bill 316, Acts 52nd Lsg., R.S. 1951, ch. 42, p. 69 (Art. 29221(5),V.C.S.),
are entitled to vote in an eleztlonheld thereunder for the oonverslan of such a rural high school district into an Independentschool:dls2955, u'.C.S.;

Att'y Gen.

Under Article 27&b, V.C.S., the expenses of such an election shall be paid out of the availablemaintenance fund belonnlne to the district. Attig beni opa. 0-623v(1339j, o-4919 (lg42), 0-7187 (1946).

APPROVED: Yours very truly,

J. C. Davis, Jr. PRICE DANIEL County Affairs Mvlslon Attorney General
Jesse P. Luton, Jr. Reviewing Assistant Charles D. Mathews First Assistant CEO:mw Chester E. Ollison Assistant