ELmarable J. A. Guest CountyAttorney camp couuty Pittsburg,

Texas

Dear SFr: 

### opiIlion Be. o-llo6 Re:Independent

school district

taking over schoolsof a city under Article 2783b has the right to cdlect &liwWent t-axes assessed by the city for schoolpurposes.

we have your letter in which you say2
9% city of Pittsburg has been operating forthepast forty years under &Mole 2783b, Civil Statutes, and has been lavyingOneDo~rf~school~~uon~cbOneB[~ed Dellarsvaluation. An election was held April, 1938, at which election

the 8cparation

of the schools from the city was a* author

ised. There is now, on the city's tax rolls, sona Twenty-five

Thousand

Dollars in delinWent twea that were leviedby the city for schoolpurpeses. The Board of Trusteesef Plttaburg Independent

SchselDistrict,

elected since the divorcement ef the city and scheels,are desirous of collecting

the delinment school taxes now on the city's '3.a~ rolls. Since they have assumedthe outstandingbonds and indebtedness

againstthe school district, they think they have authority te collectsaid delinquent taxes and. slpply same for schoolpurposes."

As ve understand

it the territory

of the district

has not been changed. You desireto know uhether mr net the presentPittsburg Independent

School District

has the right to collectthe taxes that were assessed and levied for s&eel purposes by the ci* of Pittoburg prior to the change in the s&eel district's

organization

in 1938 and that have not yet been ma.
1n1905 theLegislature pclssedalaw-as SenateBill 218 oftbe29th Legislature,

Regular

Sassian,

which still renminsen the statute be&s of Texas as Article2768 muI 2771, BevisedCivil Statutes, and which read as folleus:- -

Honorable

J. A. Ciuest,

Page #2 (O-1106)

“Article 2768. Any city or town in this State may acquire the exclusive

control

of the public free schools within its limits. Any city or townwhich has heretofore, under the Act of March 15, 1875, or any subsequent lav, assumedcentral d the public free schools vithin its limits, and has oontinued

to exercise

the same until the presenttime, or any city or townwhich may hereafter determine

so to do by majori* vote of theproperty tax payersof mid city or town voting at an election held for that purpose, amy have exclusive

controlof the publicfree schoels vithin its limits."
"Article

2771. Schoolsthua organized and provided

for by incorporated

citiesand towas shallbe subjeotto the general laws, so far as the sameare applicable; but each city or tam having controlof schools,within its limits shall constitute a separate schooldistrict, ,and may providefor the organization of schoolsand the appropriatiom of its school fuuds in such manner as may,bebest suited to its population and condition."
The authority

for these statutesis f0ma In Article VII, Sectlen 3, and Article

XI. Section 10, of the Constitution of T-8, which read in part as folkws:

"Sec. 3. ~. . . the Legislaturermyalsoprovideforthe formationof school district (8) by generallaws:

. . ."

"sec. 10 The Legislature may constitute

any city or tovn a separate and independent schooldistrict.

. . ."
1n 1935 the Legislature passeda lmr known as House Bill 831 d the 44th Legislature,

Regular Session,

which is now condified as Article2783b, Vernon's

Annotated

Civil Statutes

of Texas. It provides in section 1, 2, 3, and 4 that "the term %nmicipol schooldistrict'

. . . ahall include any city or town constituting a separate

and independent

school district under authority

of Sectien 3, of Article VII of the Constitution, and/ or Section 10, Article XX, of the Constitutiom, boundaries

of the school corporation

being the sama as the boundaries of the city or town" in those cases vhere the uity has a populatien of 30,000 or less, and that "whenany Qaunicipal schooldistrict'

. . . shall desire to have the public schoolvithin its limitsseparated from muuieipal

control"

the same shall be dome by one hmudredvoterspetitioming for am election,

and an election being held in which all of the qualified voters decide

whether or not the schoolashouldbe seprated from the city, and if a majority vote for such a separation

then an indepandent scheoldistrictis therebycreated, and said law (&use sill 831, 44th Jag.) then providesin sections5, 7, 8, and 9, as fell&:Honorable J. A. Sues+.,

Page #3 (0-llO6)

"sec. 5. Exceptas herein denied or limited, all the power8 conferred

upon independentsohooldistricts and/or twns and villageeincorporated for free schoolpurposes only,by Title 49, of the RevisedCivil Statutes of Terss, of 1925, andawndm2nt.s thereto,lncludingtherightto anuexccmt~us ~rltoryfcaschool~~es,andthcri~ttolevyb~ and issue

bonds for schoolFUXpOseS, as provided by Senaral Law, are hereby conferred upon any independent schooldistrict separated

from municipal

control

under the provisions of this Act;
. . ."
"Sec. 7. That the Board of Education or board of trustees of such independent

school district,

after separation

from municipal~control, shallhave authority to provide for the taxes of said independent schooldistrict

to be assessed

by the Assessorand Collector of Texas of the city of vhich such schooldistrict

vas formerly

a part, or to have the taxes of said district

assessed

and collected

by an assessor

and collector

appointed

by the board of trustees. Such assessor and collector

shallbe sllowed

and paid such compensation as is now or may be hereafter provided

by law."

"sec. 8. The title and rights to all proparty owned,held, set apart or iu any way dedicated tc the use of the public schoolsof the city or town, and/orheretofore vested in such city or tomand/orthemayor, chairmanoftha commission, city council,

city cossission

or board of schooltrusteea of such city or town,prior t- separation from municipal controlas hereinauthorized and provided,

shall be and are hereby invested

in the Board of Education or board of trustees of such independent schooldistrict,

after separation

from municipal

control,

and shallbe managedand controlled by the Board of Education or board of trusteesthereof, as is mm or may hereafter

be provided

by law."

"Sec. 9. Allbouda issuedbyaxdoutstanding againstany such city or town, as a mnicipal school district, and all obligations,

contracts

and indebtedness

existing

againstthe city or town, as a nuuicfpalschool districtshall become tha obligations

and debts of the independent school district

at the time of its separation from municipal

control,

and the said independent

schooldistrict,

after separation

from municipal control,

shallbe held to have assumedthe discharge of all such obligati6ns,

contracts,

and indebtedness,

.aud:,tha

same shall be eniorceable

aud collqztible

from, paid off and.dischar@ by thq said independent

schools district,

as,if originally

created.by

it as a separate

land independent

schooldistrict;

and it shall not be necessary

to call an election within and for-such district

for the purposeof assumingsuch bonds and other indebtedness."Honorable J. A. Guest,Page # 4 (0-1106)

We assume that the publicschoolsin the city of Pittsburg were controlled by the city under the a~l:hority of Arr:.icle

VII, Section 3. and Article XI, Section 10, of tha Constitution, and Articles

2768 and 2771 of the Statutes (quoted

above),and that the change of the control of the schools from the city to the newly created independent schooldistrict

was under the authority

and procedure

of Article27&b, which did not become a law until 1935.

We think that.prior to the change in the control of the Pittsburg

schools, by a vote of the people, in 1938, the city of Pittsburg constituted

a school district,

and that its statusas a schooldistrict was distinct from its statusas a municipality, even thoughthe same city councilor governing

bodygoverned the schoolsend the muMcipalityj and when the changeoccurredin 1938 it merely amounted to changing

the form and name of the school district. The nev independent schooldistrict

was the sama district

as the former city schooldistrict, having a different name and a different governing

organization.This belief on our pert is supported

by the case of Temple Independent, SchoolDistrict

v. Proctor, (Tex.Civ. App.) fl 9. W. ,(2) 1051, in which the court, speaking through Justice

Daugh, said:

-... . It is now settled, however,that,where such city does assums control

of its schools,

such control,

so far as the schoolsare concerned, doas not becomemerged into ani become a part of the municipal government

as such. And where the tilts commissiq~rs or city council retain control

of its public schools it acta in a dual capacity-- one as a governing body of the city in ita statusas a municipality, and the other as the controlling

or governing

board of its schools. The two capacities

are not to be confused. City of Rockdale v. Cureton,111Tex. 136, 139, 229 9. W. 852; City of Fort Worth v. Zane-Cetti (Tex.Corn. App.) 278 S. W. 183. In so far as it acts in its strictly municipal

governmental capacity,

its powers are referable to Article 11 of the Constitution

and title 28 of the B. S. (Article 961 et saq., as amended (Vernon's

Ann. Civ. St..Art. 961 et seq.). Whereas, in the management

and control

of its schools,its powers are refaable toArticle 7 of the Constitution and.title

49 of the R. 9. (Article 2584 et sea,., as amended (Vernon's Ann. Civ. St. Art. 2584 et seq.)

. .."

It is apparentfrom a readingof Article2783-0 that the board of trustees of the independent

schooldistricts

created

under the act have all of the ordinary

powers of a schooldistrict governing

body, including"authority to providefor taxes",and that "the title and rights to all property owned,held or in any,way dedicated

to the use of the public schoolsof the city

. . . prior to the separation from municipal

control"

vests and passe8 to the new independent school district

and 18 subjectto ItSi control,

when such new districtis created, and that the bonds and indebtedness

and obligations

of such city, "as a municipal,school district",Honorable J.A. Guest,Page #5 (O-1106)

areasszaed

and teken over by the newly createdindependent school district. We think this indicates that it was the intention of the legislature for the new independent schooldistrict

to take the place of the old city district

and for the new district to take over everything, both tangible and intangible, from the old district, including

assets and liabilities. We can not conceive of the legislature intending

for the new district to be obligated

to pay the old district's debtswithouthaving the right to collectthe money due the old district. When one person takes over another

person's

business

he ordinarily

acquires

the "accounts

receivable" as well as the "bills payable". We have been unable to find any Texas appellate

court case on this particular question,

but we do find significant languagein 56 CorpusJuris 271, as follows:
"

. . . Where a districtis dissolved, abolished,

or destroyed,

and one or more new districts are created from the territory

thereof,

or its territory

is annexed to one or more existing districts,

the new or other district

or districts.

in the absenceof contrary statute, become and are entitled to all the propertyand rights of the old district,

. . ."
The authority

to collectthese delinquent taxeswas clearlyone of the vrights

of the old district," and the new district is entitled to that right.

Our answer to your questionis that, under the facts you have given us, the present

Pittsburg

Independent

SchoolDistrict

has the right to collect the taxes that was assessed and levied for schoolpurposes by the city of Pittsburg

prior to the change in the school district's organization in 1938 and that have not yet been paid.

Yours very truly
A!Pl!ORREY

-oFTExAs s/CECIL c. ROTSCH

By CECIL C. RCPSCH

Assistant
CCR:PL-ldw

APPROVED

AUG. 15, 1939 s/ GESALDc. l4m-N ATTORNEYCgloERALmTExAs
APPROVED OPINIOACOhQiRTSS BY R. w. l?.cHAIRMAR