Dr. J. W. Edgar

Commlsslonerof March 20, 1970

Education Opinion No. N- 599
Texas EducationAgency 201 East 11th Street Austin, Texas 78711

Dear Dr. Edgar: Re: Authorityof SunnyvaleTown 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 requestingan opinion from this office, you submit the following facts:

“In 1953, Sunnyvale IndependentSchool Districtwas created a ntunlclpal school dlstrlct pursuant to Article 2768, et seq., V.C.S. Town of Sunnyvalev. 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 operationalauthority and management of the Sunnyvale IndependentSchool Districtunder a Resolutionadopted at a special meeting of the council.

. . . "Our latest InformationIs that the Town Council has been meeting as a school board since last summer. According to the school principal, everythinghas been peaceful and the school Is operating smoothly. II

. e . "ThisAgency la concernedas to the authority, If any, of the SunnyvaleTown Council to serve and

-285%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 IndependentSchool District. Personnelof this Agency have visited to&'a;- thorltles for their reactionwith respect thereto. Locally nothing Is being done to change the situation;counsel for the town feeling that the town councilhas full authorityas such to act as a school board, in lieu of the elected school board It purportedby 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 officeswhich normallywill expire In April, 1970." Other considerations deemed pertinent to the proper dispositionof this matter are disclosedby a decision In the case of Town of Sun vale v. Dallas County-Boardof 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 validatedby Ch. 177, p. 492, Acts' 53rd Leg., 1953, Vernon'sAnn.Clv.St.art. 966c. The Town of Sunnyvaleboundarieswere thereafter duly extended,under authority of Art. 1139, R.C.S., by an annexation ordinanceafter petition of a majority of the InhabitantsIn the territory to be annexed. On Nov. 21, 1953, by a vote of 47 to 5, Sunnyvaleassumed and took exclusive control of the public free schoolswithin Its limits under Art. 2768, R.C.S., and Sec. 10, Art. 11, of the Texas Constitution, Vernon'sAnn.St. effectiveDec. 31, 1953.

. . .' The Resolutionenactedby 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:

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“1. That all authority In connectionwith the school system of the Town of Sunnyvaleheretofore delegated to the Board of School Trustees of Sunnyvale IndependentSchool Districtbe and the same Is hereby rescindedand 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 undertakenby the Board of School Trustees of Sunnyvale IndependentSchool District In connection with the operationof a Ninth Qrade for the ensuing scholasticyear be and they are hereby vetoed) nullified,and voided; “3. That all presentlyexisting contracts heretoforemade by the said School Board, save and except any obligations undertaken In connection with the operation of the Ninth Grade for the ensulng scholasticyear, be and they are hereby adopted and validatedby 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 Committeeand such other persons as may be designated, shall Immediately take charge of all physicalpropertiesand other assets pertaining to the school system, and proceed to operate the Schools up to and Including the Eighth Qrade for the coming scholasticyear; 11 II

. . . In view of all of the foregoing,you ask the following question: “If no authority lies In the five member SunnyvaleTown Council to act or serve as the Board of Trustees of the municipal Sunnyvale IndependentSchool District, should this Agency continue to forward to the district state school funds while it 1s so operated?”

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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 effectiveon September 1, 1969, and now controls Sunnyvale IndependentSchool District.Article 2768, Vernon's Civil Statutes,under which the Sunnyvale IndependentSchool Districtwas created, IS repealed by Sec. lg.161 of the Texas Education Code on the same subject. However, from a conslderatlon.of the general.lawsnow repealed (Articles2768, 2771, 2774(a), 2772, 2773(a), 2773, V.C.S.),we must conclude that even prior to the enactmentof the Texas Education Code the Town Council of Sunnyvalehad no authorityto enact a resolutionpurportingto assume the operationand control of the schools of the Sunnyvale IndependentSchool District to the exclusion of the elected Board of Trustees.

Chapter 24 of the Texas Education Code Is entitled "MunlclpalSchool Dlstrlcts'and Is comprisedof Sections 24.01- 24.07. Section 24.01 repeals Article 2783c,Vernon's Civil Statutes,on the same subject and providesas follows:

"The term 'municipal school district' Includes any Independentschool district existingunder the authority of ArticleVII, Section 3, or Article XI, Section 10, of the Texas Constitution, which Is municipallyassumed or controlled;regardlessof 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 Independentschool district,where the city or town has extended Its limits for school purposes only." Section 24.02 repealsArticle 2761a,Vernon's Civil Statutes, on the same subject and provides as follows:

"Municipalschool districts,regardlessof the manner In which they came Into existenceand regardlessof whether or not the boundarieshave been extended for school purposes only, are classlfledas Independentschool 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 corporateexistenceas a municipal corporation. Except as specifically

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

provided otherwise In this chapter,municipal school districts shall be governed and shall function in compliancewith the general law relative to Independentschool 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 schoolsby 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 applicableto the Sunnyvale IndependentSchool 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 establishmentof the municipal school district, shall be vested in the board of trustees and their successorsIn office, In trust for the use and benefit of the public schools In the city or town. "(d) The board shall constitutea body corporate and shall have full power to protect the title, possession,and use of all schoolproperty within the llmlts of the municipal school dlstrfct,

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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 adverselyheld In the district. "(e) Except where specificprovision Is made with regard to the conductingof the affairs of a munlcfpal school district, the board of trustees of a mwnlclpal school districtmay exerciseany power speclflcally granted~

or reasonably implied to the board of trustees of an Independentschool district."
In view of the plain and unambiguouslanguage of Sections 24.01-25.05of the Code, the Town of Sunnyvalepresently has no authority to take any action by resolution,ordinanceor by-law to usurp the responsibility of the Board of~Trwstee8for 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 Importantrespects would be subject to directionof the council or aldermen Instead of that of the trustees."'
In accord,Attorney Qeneral OpinionNo. O-1071 (1939). Consequently,you are advised that the Sunnyvale Town Council Is not authorizedto act In the capaalty of a school board for the Sunnyvale IndependentSchool District.

Chapter 16 of the Education Code contains the provisions of the FoundationSchool Program. Sectloti 16.01 repeals Article 2922-11,Vernon's Civil Statutes, on the same subject and reads as follows:

"The purpose of the FoundationSchool Program Is to guaranteeto each child of school age In Texas the avallabllltyof a MIniplumFoundation School Program for nine full months of the year and to establish the eliglbllltyrequirements for the public school districtsof Texas as In connectiontherewith."

-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

enactedby the leglslature for the promotion of the educational opportunities

afforded by this state under this FoundationSchool Program shall be paid In accordancewith the requlreme~tsand In the manner provided In this chapter.
In relation to the admlnlstratlon of the Foundation School Program, Section 16.79 of the Code, which repealsArticle 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 commlsslonerof education to take such action, require such reports, and make such rules and renulatlonsconsistent with the terms of this chapter to carry out Its provlslons. as may be necessary

II **11**

**. .**  **.** The provlslonsof 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 Commlsslonerof Education to certify the funds to which a school district Is entitled and of the State Comptroller to Issue and transmitwarrants therefor are purely mlnlsterlaland mandatory. Article 2922-20,V.A.T.S.; Article 2663, R.C.S.; Austin IndependentSchool Dlst. **V.** Marrs. 121 Tex. 72, 41 S.W.2d 9. The Injunctionagainst 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 Commissionerof Education+ oes not have the discretionunder the facts submittedto withhold FoundationSchool Program funds from the Sunnyvale IndependentSchool District.

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

SUMMARY The Town of Sunnyvalehas,no authority to take any action by resolution,ordlnence or by-~ law to usurp the reaponslblllty of the Board of’ Trustees for the exclusiveoontrsl and management of the schools of the dietriot. Conseq9kuatly, you are advised that the SunnyvaleTown Counc$~l Is not authorizedto act In the oapaclty of a school board for the Sunnyvale IndependentSchool Dlskrlct. Under the authority In the holding of McKlnne 7-d v. Blankenshlp,suprs, It Is our opinion tha State Commlsslonerof Educationdoes not have the discretionunder the facts submittedto withhold FoundationSchool F+rogr@m fbnds Wcm the Sunnyvale IndependentSchool District,

Atto ey B&era1 of Texas Preparedby Ivan R. Wllllans, Jr. AssistantAttorney 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 ExecutiveAssistant
NOLA WHITE First Assistant

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