R-475

‘RICE DANIEL -:. ,lro- GBNERAL July 16, 1947

Hon. John C. Marburger Oplnlon Ro. y-304 County Attorney Fayette County Re: Finality! of a decision La Grange, Texas of the State .Boardor Raucation sustaining

Dear Sir:

.- action of a Cot&y Sohool Board ~oloslngan ~elementary school.

We -referto your’ letter of June’26,.1947, in which you ask us to review-your.lnqulry-‘o$ May 8, 1947, in which-.yousubmittedthe following:.. ~,

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time during the year l94k, by order of the County Board of Sohoo.1 Trustees of Fayette County, Texas,’the Willow Springs Common School District and the Fayettgvllle : Common Sahool ‘Districtand other contiguous.

. :. doramon

school alstrlatswere grouped and formed the FayettevllleRural High Sohool District; Arter this .grouplng byethe County Board of School Trustees, an elementary ~Schoolwas maintained ,atthe Willow Springs School for ‘theyear 1944-1945. During this school year some eight grades were taught wlth’about 53 pupils in attendance,malntalnlng an average dally attendance for said school year far above twenty. “During the later part of the X944- ,1945school year, the- Board of .Trusteesfor the Fayettevllle Rural High School Dlstriot by’Its order closed the Willow Springs Elementary Sbhool .forthe coming 1945-46 school year and ordered the elementary pu- ~~11sof the Wll4oy .Sp,rlngs District to attend eohool at.the .Fayettevllle Rural High School’. The majority of the tax payers Andy patrons of the Willow Sprl,ngs Distrlot i protested to the Trustees of the Fayetteville Rural High School District, because .,9f the oloslng of the Willow Springs School,Hon. John C. Marburger, Page 2, V-304

and finally the matter was taken to the State Superintendentat Austin, Texas. On April 1, .1946,

the Willow Springs Elementary School was again opened and six grades were taught In said school for some forty days, being the remainder of said school year. During these forty days that the Willow Springs Schoolwas reopened,.saidschool aid not maintain an average daily attend-.' :~ ante of at least twenty pupils for ~various reasons, such as,parents did not.want to. '~'transfer

their children from one school to anotherWith only eight weeks of schoolre-

,. _~.. .malning,,anaothers.had transferred their childrenout of the district.

"At the ena of the school year 1945- J946, the Board of Trustees of the Faveftevllle~,Rural

High School District again entered Its order closing the Willow Springs School for the 1946-1947 school vear for the reason that the average dally attendanae

recedingyear of 1945-1946was be-

-You&k .whetheror not action of the .varlous Boards was legal,.ln &osl~ng .theschool.~After recelvlng your,lnqulry.we .lea.rned.,that the action of the Trustees .of,tpeFayettevllle Rural High School.Dlstrlct, the subject of your Inquiry,was,reviewedand affirmed by the State Superintendent of Public Instruction and the State Board of Education.,.sndthat no appealwas taken from the decision of the State Board. We are enclosing copy of each of said decisions ,foryour lnfornation. ,.

The Wlllow'Sprlngs School was changed to a six grade.elementary school.. No aRpeal..was taken from the order of.

the,School Board which so dlasslfled the school'. .Inthe.appeal from the or.der,closing the school the Stat.?

Superintendent found, as a fact, that when all of the .&hlldrenIn the districtwithinthe first six grades,.

counting those'who attended the Willow Springs School,,and also those who attended the Fayettevllle School, the av.erage dally attendancewas less'than'twentY. The evidence showed'that, some childrenwho live In an adjoining county attended the,WllLow Springs School before the co'nsolldation.Hon. John C. Marburger,. Pa~ge3,.v-304. ;'

,Rlghtof appeal andthetrlbunals of-such appeals is provided for In Articles 2656and 2686 of Vernonls.Clvll Stat~utes. The Interested partles.haQ the choice~ofappellate tribunals and,chose to app.eal:t.othe State Superintendent of Public In§tructionLanathe State Board.of Educatlon;.any right whioh they ever had on the faots are foreolosedby the 'finalde~olslons of those agencies.

In the.cas.e;.of Blalr.~.~Board.of Trustees, Trinity Independent School District, 161 S.W.(2d). 1030, the Court quotes ftimthe opinionwritten by Judge Alexander while a member of the ,Waco Court of Civil Appeals, In Gragg v. Bill, 58 S..W. 28 150; (Writ refused) as follows:

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.. . "By the'provlslons of the above statute

(Art. 2656, R. S.1925) the Leglslat,ure has Y

. committed to the state superintendent, ,as.one specially tralnea'ana experlenoed;i.n school matters, ~theresponsibility of .decidlng.all questions relating to ,theinternal affairs and management of the public sohools of Texas. His decisions In such matters are..flnal unless ireversedby the state board of edt.icatlon,the decision of that board becomes final and cannot -andwill not be Interferedwith by the courts .un.less

such board acts arbitrarily or ls,actu- .ated by fraud or abuses Its, dlsaretlon. The findings of such board on matters comm1tte.d to Its jurisdiction,when not arbitrary or &aprlclolls, are prima facie true and are 8s~ binding
on the courts as Is the verdict of a .jury;and the .oourt

wlll"not.put itself In the position of the board'ana try-the ~questlonanew for the purpose of testing the expediency or wisdom of the decision of,the board, nor forithe purpose of detelmlnlngwhether or not under slmllar testimony It-would have made a similar or :a different ruling.*

We are of the opinion that the~faot Issues involved In the closing of the Willow Springs Elementary S,chool

and transferring its scholastics to the Fayette- ,vllle School have been finally adjudlaat.ea and are not subjeot to~revlew.
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Appealsmay be taken from tbe..flnal decisions of the State.Board of Eduaatl.on to the courts, to review law.questlons, If suoh appeals be prosecuted In a reasonable time.

### 24 Hon. John C. Marburger, Page 4, V-304

No timebeing fixed In which appeals'maybe taken from the State Board to :thecourts, the lnterested partieshad a reasonable time, after juagment, In which to make such appeal for review of any law question .lnvolved. The judgmentof the State Board of~Edueatlon
was renderedonFebruary.6,, 1947, and no such appeals have been taken as of this date.

In Trustees of Chlllicothe IndependentSchool Di'strlct

v. Dudney,,142 S. ~W.1007, the,Cou?ct had the question of the time all'owed for appealwhere no time Is fixed land;In that regard, said:

"In the absence 'of. any such a rule, the sole Inquiry Is: What Is a reasonabletime under al.1conditions surroundingthe Instant case? The district judge,after a full hearing, has decided that 30 days was a reasonable time within whlch:appellee herein should have prosecuted hls'a'ppeal to the State Superintend.ent.By reason.ofthe.chaotic condition of the affalrs'exlstlng In the Chllllcothe School, appellee should have'proseautedhis ~appealwlth.all reasonable dispatch." : ',:' It had been shown in that case, that the appeal could have.been mad,e In 18'days. " : In Watkins v.. Huff) 63 S.W. 922., the Court sala, concerning the time ror~suoh'appeals:

"The Statutes providing for such appeals : .are silent as to prooedure, and prescribe no time within whlch.to perfect the appeal. A reasonabletlme;without unnecessarydelay, Is the rule In such cases. Harkness v. Hutcherson, ':90Tex; 385, 38 S.W. 1120." '~

We are of the opinion thatmore than a reasonable time inwhich to appeal to the oourts has elapsed since February 6, 1947, by reason of which the decision of the'State Board'of Eduaatlon, renderedon that datej closing the Willow Springs Elementary School, has bec~ome final'onall justlclable issues of~both, fa,ct and Law+

. . SUMMABP

Where the Trustees of the Fayettevllle Rural High School Dls,triatclosed the. Willow

: _~-,Hon. John C. Marburger, Page'.5,'V+X)4- ,;~ 

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Springs Elementary School in Fayette CoUnty and those~opposea to such action appealed.to the State Superintendent of.Publlo Instruotlon, and to the State Board of Education, both of ~whomaffirmed such action and final dealslon of the State Board was rendered on February.6, 1947, and no appeal therefromwas taken, all lssues.of.bothlaw and fact .concdrnlngthe closing of said school are now foreclosed.

Yours very truly

ATTORNEXGENER& QFTEXAS

BY

ATTORNEYGENEUL ViTW:djm:jrb

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