Dr. J. W. Edgar 

Commlssloner of 

March 20, 1970 

Education 

Opinion No. N- 599 

Texas Education Agency 

201 East 11th Street 

Austin, Texas 78711 

Dear Dr. Edgar: 

Re: Authority of Sunnyvale Town 

Council to serve as the 

Board of Trustees of the 

munlclpal Sunnyvale Independent School District and to 

forward to the district state 

school funds while so serving. 

In your letter requesting an opinion from this office, 

you submit the following facts: 

“In 1953, Sunnyvale Independent School 

District was created a ntunlclpal school dlstrlct pursuant to Article 2768, et seq., V.C.S. 

Town of Sunnyvale v. Dallas County Board of 

School Trustees, 283 S.W.2d 296. So far as we 

have been able to ascertain, It has had a school 

board of seven members; three or two members are 

elected annually for three year terms. The 

school board operated Its school system (8 grades) 

until August 18, 1969 when the Town Council of 

Sunnyvale assumed full operational authority and 

management of the Sunnyvale Independent School 

District under a Resolution adopted at a special 

meeting of the council. . . . 

"Our latest Information Is that the Town 

Council has been meeting as a school board since 

last summer. According to the school principal, 

everything has been peaceful and the school Is 

operating smoothly. 

II 

. e . 

"This Agency la concerned as to the authority, 

If any, of the Sunnyvale Town Council to serve and 

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Dr. J. W. Edgar, page 2 (M-599) 

to continue to act, as It currently Is, In the 

capacity of a school board for the municipal 

Sunnyvale Independent School District. 

Personnel of this Agency have visited to&'a;- 

thorltles for their reaction with respect thereto. Locally nothing Is being done to change the 

situation; counsel for the town feeling that the 

town council has full authority as such to act as 

a school board, in lieu of the elected school 

board It purported by resolution to depose. 

"The time for election of school trustees 

Is fast approaching. If legally the town oouncll 

may not serve as a school board then perhaps the 

district should be Immediately apprlsed of the 

necessity for holding a trustee election to fill 

those offices which normally will expire In April, 

1970." 

Other considerations deemed pertinent to the proper 

disposition of this matter are disclosed by a decision In the 

case of Town of Sun vale v. Dallas County-Board of School 

Trustees, et al., 2 S.W.2d 296 (Tex.Clv.Apm3 , no writ), 

wherein th e Court stated at page 297 the following: 

I, 

e s . The facts were not In dispute. 

Appellant Is a town duly Incorporated under 

Ch. II, Title 28, R.C.S. of Texas, Vernon's 

Ann.Clv.St. art. 1133, et seq.; Its Incorporation 

having been validated by Ch. 177, p. 492, Acts' 

53rd Leg., 1953, Vernon's Ann.Clv.St. art. 966c. 

The Town of Sunnyvale boundaries were thereafter 

duly extended, under authority of Art. 1139, 

R.C.S., by an annexation ordinance after petition 

of a majority of the Inhabitants In the territory 

to be annexed. On Nov. 21, 1953, by a vote of 

47 to 5, Sunnyvale assumed and took exclusive 

control of the public free schools within Its 

limits under Art. 2768, R.C.S., and Sec. 10, Art. 

11, of the Texas Constitution, Vernon's Ann.St. 

effective Dec. 31, 1953. . . .' 

The Resolution enacted by the Town Council of Sunnyvale 

on August 18, 1969, reads, In part: 

"NOW TREREFORE, BR IT RESOLVED BY THE 

TOWN COUNCIL OF TRR TOWN OF SURRYVALE: 

-2856- 
Dr. J. W. Edgar, page 3 (M-599) 

“1. That all authority In connection with 

the school system of the Town of Sunnyvale heretofore delegated to the Board of School Trustees 

of Sunnyvale Independent School District be and 

the same Is hereby rescinded and terminated, and 

the entire operation of the Schools within the 

corporate limits of the Town of Sunnyvale is 

hereby reposed and placed In the Town Council 

of the Town of Sunnyvale, and. such committees 

as It may designate to manage, control and 

operate such schools, effective lmmedlately; 

“2. That any and all actions heretofore 

undertaken by the Board of School Trustees of 

Sunnyvale Independent School District In connection with the operation of a Ninth Qrade for the 

ensuing scholastic year be and they are hereby 

vetoed) nullified, and voided; 

“3. That all presently existing contracts 

heretofore made by the said School Board, save 

and except any obligations undertaken In connection with the operation of the Ninth Grade for 

the ensulng scholastic year, be and they are 

hereby adopted and validated by the Town Council 

of the Town of Sunnyvale, which will be substituted 

therein for the said School Board; 

‘4. That the Town Council, acting through 

the Chairman of Its School Committee and such other 

persons as may be designated, shall Immediately 

take charge of all physical properties and other 

assets pertaining to the school system, and proceed to operate the Schools up to and Including 

the Eighth Qrade for the coming scholastic year; 

11 II 

. . . 

In view of all of the foregoing, you ask the following 

question: 

“If no authority lies In the five member 

Sunnyvale Town Council to act or serve as the 

Board of Trustees of the municipal Sunnyvale 

Independent School District, should this Agency 

continue to forward to the district state school 

funds while it 1s so operated?” 

-2857- 
. 

Dr. J. W. Edgar, page 4(M-599) 

H.B. 534, Acts 61st Leg., Regular Session, 1969, enacted the Texas Education Code. The Code became effective on 

September 1, 1969, and now controls Sunnyvale Independent School 

District. 

Article 2768, Vernon's Civil Statutes, under which the 

Sunnyvale Independent School District was created, IS repealed 

by Sec. lg.161 of the Texas Education Code on the same subject. 

However, from a conslderatlon.of the general.laws now repealed 

(Articles 2768, 2771, 2774(a), 2772, 2773(a), 2773, V.C.S.), we 

must conclude that even prior to the enactment of the Texas Education Code the Town Council of Sunnyvale had no authority to 

enact a resolution purporting to assume the operation and control 

of the schools of the Sunnyvale Independent School District to 

the exclusion of the elected Board of Trustees. 

Chapter 24 of the Texas Education Code Is entitled 

"Munlclpal School Dlstrlcts' and Is comprised of Sections 24.01- 

24.07. Section 24.01 repeals Article 2783c, Vernon's Civil 

Statutes, on the same subject and provides as follows: 

"The term 'municipal school district' Includes 

any Independent school district existing under the 

authority of Article VII, Section 3, or Article XI, 

Section 10, of the Texas Constitution, which Is 

municipally assumed or controlled; regardless of 

whether the same'18 a city or town school district, 

where the boundaries of the dlstrlct and the city 

or town are cotermlnous, or whether It Is an extended Independent school district, where the city 

or town has extended Its limits for school purposes 

only." 

Section 24.02 repeals Article 2761a, Vernon's Civil 

Statutes, on the same subject and provides as follows: 

"Municipal school districts, regardless of 

the manner In which they came Into existence and 

regardless of whether or not the boundaries have 

been extended for school purposes only, are 

classlfled as Independent school districts. 

Once a municipal school district has been established, It shall continue to be an Independent 

school dlstFlct even though the city or town 

which assumed or accepted control of the school 

district abolishes Its corporate existence as 

a municipal corporation. Except as specifically 

-2858- 
. 

Dr. J. W. Edgar, page 5 (M-599) 

provided otherwise In this chapter, municipal 

school districts shall be governed and shall 

function in compliance with the general law 

relative to Independent school dlstrtcts as 

provided In Chapter 23 of this code, 

Section 24.03 provides as follows: 

“A municipal school district shall be 

governed In the general admlnlstratlon of Its 

schools by a board of seven trustees, selected 

as provided In Section 24.04 of this code." 

Section 24.04 repeals Article 2774, Vernon's Civil 

Statutes, on the same subject. The provision of this Section 

applicable to the Sunnyvale Independent School District reads 

as follows: 

'The trustees of a municipal school dlstrlct are elected as provided in Chapter 23 of 

this code. . . ." 

Section 24.05 which repeals Article 2772, Vernon's 

Civil Statutes, on the same subject provides as follows: 

"(a) The board of trustees of a municipal 

school district shall have the general powers 

and duties prescribed In this section. 

"(b) The board shall have the exclusive 

control and management of the schools of the 

district. 

'(c) Title to all houses, land, and other 

property owned, held, set apart, or In any way 

dedicated to the use and benefit of the public 

schools of the city or town, whether acquired 

before or after the establishment of the municipal 

school district, shall be vested in the board of 

trustees and their successors In office, In trust 

for the use and benefit of the public schools In 

the city or town. 

"(d) The board shall constitute a body corporate and shall have full power to protect the 

title, possession, and use of all school property 

within the llmlts of the municipal school dlstrfct, 

-2859- 
. . 

Dr. J. W. Edgar, page 6(M-599) 

and may bring and maintain suits in lar or In 

equity In any court of competent jurlsdlctlon 

when necessary to recover the title or possession 

of any school property adversely held In the 

district. 

"(e) Except where specific provision Is made 

with regard to the conducting of the affairs of a 

munlcfpal school district, the board of trustees 

of a mwnlclpal school district may exercise any 

power speclflcally granted~ or reasonably implied 

to the board of trustees of an Independent school 

district." 

In view of the plain and unambiguous language of 

Sections 24.01-25.05 of the Code, the Town of Sunnyvale presently 

has no authority to take any action by resolution, ordinance or 

by-law to usurp the responsibility of the Board of~Trwstee8 for 

the exclusive control an3 management of the schools of the dlstrlct. Moreover In Thomas, et al. v. Abernathy County Line 

I.S.D., etal., 290 S.W. 152 (Com.App. 1927) the Court stated 

at page 133 the following: 

"In our opinion the offices of school 

trustee and alderman are Incompatible. . . . 

'If the same person could be a school trustee 

and a member of the city council or board of 

aldermen at the same time, school policies In 

many Important respects would be subject to 

direction of the council or aldermen Instead 

of that of the trustees."' 

In accord, Attorney Qeneral Opinion No. O-1071 (1939). Consequently, you are advised that the Sunnyvale Town Council Is 

not authorized to act In the capaalty of a school board for the 

Sunnyvale Independent School District. 

Chapter 16 of the Education Code contains the provisions of the Foundation School Program. Sectloti 16.01 repeals 

Article 2922-11, Vernon's Civil Statutes, on the same subject and 

reads as follows: 

"The purpose of the Foundation School 

Program Is to guarantee to each child of school 

age In Texas the avallablllty of a MIniplum Foundation School Program for nine full months of the 

year and to establish the eliglblllty requirements 

for the public school districts of Texas as In 

connection therewith." 

-2860- 
., - 

Dr. J. W. Edgar, page 7 (M-599) 

Section 16.02 repeals Article 2922-12, Section 1 

on the same subject and reads as follows: 

"Appropriations enacted by the leglslature for the promotion of the educational 

opportunities afforded by this state under 

this Foundation School Program shall be paid 

In accordance with the requlreme~ts and In the 

manner provided In this chapter. 

In relation to the admlnlstratlon of the Foundation 

School Program, Section 16.79 of the Code, which repeals Article 

2922-20, Vernon's Civil Statutes, on the same subject, provides 

In part, as follows: 

"(a) It shall be the duty of the State 

Board of Education, State Board for Vocational 

Education, and the state commlssloner of education to take such action, require such reports, 

and make such rules and renulatlons consistent 

with the terms of this chapter 

to carry out Its provlslons. 

as may be necessary 

II 11 

. . . 

The provlslons of Article 

_-- . 

2922-20, Vernon's Civil 

Statutes, were not materially cnanged In the Article's codlflcatlon of Section 16.79 of the Code. 

154 Tex. 632, 282 S.W.W 691 (1955), 

the following: 

"The duties of the Commlssloner of Education to certify the funds to which a school 

district Is entitled and of the State Comptroller 

to Issue and transmit warrants therefor are purely 

mlnlsterlal and mandatory. Article 2922-20, V.A.T.S.; 

Article 2663, R.C.S.; Austin Independent School 

Dlst. V. Marrs. 121 Tex. 72, 41 S.W.2d 9. The 

Injunction against these parties was properly 

denied. To this all parties agree. 

,! I' 

. . . 

Consequently, under the authority In the holding of 

McKlnney V. Blankenshlp, su ra, it Is our opinion that the State 

Commissioner of Education+ oes not have the discretion under 

the facts submitted to withhold Foundation School Program funds 

from the Sunnyvale Independent School District. 

-2861- 
. . . - 

Dr. J. W. Edgar, page 8 (M-599) 

SUMMARY 

The Town of Sunnyvale has,no authority to 

take any action by resolution, ordlnence or by-~ 

law to usurp the reaponslblllty of the Board 

of’ Trustees for the exclusive oontrsl and management of the schools of the dietriot. Conseq9kuatly, 

you are advised that the Sunnyvale Town Counc$~l 

Is not authorized to act In the oapaclty of a 

school board for the Sunnyvale Independent School 

Dlskrlct. 

Under the authority In the holding of McKlnne 

v. Blankenshlp, suprs, It Is our opinion tha 7-d 

State Commlssloner of Education does not have the 

discretion under the facts submitted to withhold 

Foundation School F+rogr@m fbnds Wcm the Sunnyvale 

Independent School District, 

Atto ey B&era1 of Texas 

Prepared by Ivan R. Wllllans, Jr. 

Assistant Attorney Qetaeral 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Acting Co-Chairman 

W. 0. Shultz 

Ray WcQregor 

John Reeves 

Wardlow Lane 

MKADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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