JIM MAlTOX 

Attorney General 

Supreme Court Suildlng 

P. 0. Box 12549 

Austin, TX. 79711.2549 

5121475-2501 

Telex 91OlS74.1387 

Telecopier 512147W286 

714 Jackson, Suite 7W 

Dallas, TX. 752024506 

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El Paso, TX. 799052793 

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ston, TX. 77002-3111 

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Lubbock, TX. 79401-3479 

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San Antonio. TX. 782052797 

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An Equal Opportunity/ 

Affirmative Action Employer 

The Attorne,y General of Texas 

September 10, 1986 

Honorable John E. Chamberlain 

Ball County Attorney 

P. 0. Box 699 

Memphis, Texas 79245 

opinion No. m-541 

R.2: Whether Childress County is 

authorized to annex a portion of 

the Estelline School District 

which lies in Ball County 

Dear Mr. Chamberlain: 

You ask whether section 19.021 of the Texas Education Code 

authorizes one county to annex an entire county-line school district 

without the consent of the other county affected. You indicate that 

the Childress County Commissioners Court annexed the entire Estelline 

Independent School District to the Childress Independent School 

District without t1.e consent of the Hall County Commissioners Court. 

Approximately 75% cf the Estelline School District is located within 

Hall County. You assert that article 19.021 does not authorize 

Childress County to take action affecting property lying in another 

county without the -onsent or action of the other county. 

Section 19.021 of the Texas Education Code provides, in part: 

(a) Tw commissioners court of any county may 

create enlarged districts by annexing one or more 

common sc'~~~ol districts 'or one or more independent 

school dis.tricts having less than 250 students in 

membership on the last day of the preceding school 

year to an independent school district having 150 

or more students in membership on the last day of 

the prece'iing school year. 

The question at han,i is not simply whether section 19.021 expressly or 

impliedly requires the consent of both counties where more than one 

county is affected. The dispositive issue is whether section 19.021 

authorizes one county to take action outside of its boundaries. If it 

does not, the other county's concurrent action over territory within 

its boundaries is essential. 

Counties hold 'only those powers granted expressly or by necessary 

implication in the! Texas Constitution and statutes. Canales v. 

Laughlin, 214 S.W.;:d 451. 453 (Tex. 1948). Section 19.021 does not 

expressly authorize the annexation of a school district which lies 

partly within anot:xr county. The Education Code provisions which 

p. 2491 
Ronorable John E. Chamberlatn - Page 2 (JM-541) 

authorize actions affecting two different counties usually do so 

expressly. See, e.g., 519.051(b). Further, sections which authorize 

actions affecting two or more counties require the concurrence of each 

affected county. See OS19.022, 19.054. Section 19.021 addresses the 

special situation presented by school districts with a small number of 

students by authorizing thf! annexation of a district with less than 

250 students without a peti.tion of the district's registered voters. 

See Griesenbeck v. Schindle!r, 552 S.W.Zd 203, 205 (Tex. Civ. App. - 

Eastland 1977, writ ref'd nE.e.); Neil1 v. Cook, 365 S.W.2d 824, 829 

(Tex. Civ. App. - Eastland 1963, writ ref'd n.r.e.), app. dism'd for 

want of juris., 376 U.S. 202 (1964). Changes in the boundaries of 

school districts which hare a larger number of students require 

petitioas from the register~?d voters of the district. See Educ. Code 

5519.022 (detachment and am~exation of territory); 19.052 (petition 

for consolidation of school districts). Just because a voter petition 

is not required does not mean that the consent of both counties is 

unnecessary. The limited purpose of section 19.021 is significant in 

determining whether it contiiins the implled authority for a county to 

act outside of its boundaric!s and to do so without the consent of the 

other county or counties affected. 

No reported cases interpret section 19.021. Several cases, 

however, iateroret the statutes which ureceded section 19.021. In 

Foulks ;. Chi& Spring Independent School District, 452 S.W.Zd 763 

(Tex. Civ. App. - Waco 1970, writ ref'd), the court held that a 

unilateral annexation of a r;c:hool district located in one county to a 

school district located primarily in another county is ineffective and 

void without the consent of the other county. The coure dealt with 

article 2922a. V.T.C.S., an early predecessor to section 19.021. See 

Acts 1969, 61st Leg., ch. (;89, at 2735 (repealing article 2922a and 

substituting. in part, section 19.001); Acts 1983, 68th Leg., ch. 285, 

51. at 1380 (replacing m!ctioas 19.001 and 19.261 with section 

19.021). The court stated l:hai "'[IIt is fundamental that the county 

trustees of one county cannot alone create a district composed of 

territory lying in two counties.'" 

School Trustees of Runnels 

452 S.W.2d at 766 (quoting County 

CEunt y v. State, 95 S.W.2d 1001, 1003 (Tex. 

Civ. App. - Austin 1936, writ dism'd); see also County School Trustees 

of Lubbock County v. Harral County Line Independent School District, 

95 S.W.2d 204, 206 (Tex. Cl;. App. - Amarillo 1936, no writ); County 

School Trustees of Leon County v. Leon Independent School District, 

336 S.W.2d 809 (Tex. Civ. Ajz~. - Waco 1960, no writ); Lorena Independent School District No. 90'7 v. Rosenthal C ommon School District No. 

007, 421 S.W.2d 491 (Tex. Cl;. App. - - Waco 1967, writ ref'd n.r.e.). 

The statutory language at issue in Foulks referred to the power 

of school trustees "la e3ch organized county" to annex school 

districts with less than 250 students to another district. Section 

19.021 refers to "any" county rather than to "each" county. It has 

been suggested that this ch~lge was intended to remove any requirement 

that both counties must act in concert. However, a minor change in 

phrasing made when the various civil statutes relating to one topic 

p. 2492 
Honorable John E. Chamberla:iu - Page 3 (JM-541) 

are consolidated into one code is aot presumed to indicate a change 

in meaning. See Sutherland; Statutory Construction, 928.10 (4th ed. 

1985). Accorzgly, the reasoning in Foulks also applies to section 

19.021. As indicated, counties hold only those powers granted 

expressly or by necessary implication in the Texas Constitution and 

statutes. Section 19.021 does not expressly authorize annexation of a 

school district which lies within another county; it merely authorizes 

annexation of a district with less than 250 students without a 

petition of the district's registered voters. The court in Foulks 

suggested that the use of "each" county indicated that the provision 

may have been intended to apply only to school districts located 

within the same county. 452 S.W.2d at 766. 

Texas case law suggests that the legislature cannot grant 

counties power to act unilaterally outside their boundaries without 

constitutioaal amendment. :See Tex. Const. art. V, 518; Burke v. 

Hutcheson, 537 S.W.2d 312, !x (Tex. Civ. App. - Eastland 1976, writ 

ref'd n.r.e.); Ellis v. Hacks, 478 S.W.2d 172, 176 (Tex. Civ. App. - 

Dallas 1972, writ ref'd rE7.e.). Article V, section 18, commits 

county business to each county's comissioners court. In Burke and 

Ellis the courts each held zhat a county commissioners court lacks the 

authority to order a 1oca:l option election pursuant to the Liquor 

Control Act in cities locate: d partly in two different counties. See 

Burke 537 S.W.2d at 314-15'; Ellis, 470 S.W.Zd at 177; see a= 

Attorney General Opinion m-468(1986). 

Your question, however, dpes not require reliance on whether the 

legislature may authorize me county to take unilateral action over 

territory lying within another county without running afoul of article 

V, section 18, of the Texas Constitution. Section 19.021 fails to 

provide the express or implied authority for a county to take action 

outside of its boundaries. Accordingly, fhe concurrent action of the 

other affected county under section 19.021 is essential. 

SUMMARY 

Section 19.021 of the Texas Education Code does 

not authorize one county to take action affecting 

territory lying in another county without the 

concurrent action of the other county. 

JACK HIGHTOWER 

First Assistant Attorney General 

p. 2493 
Honorable John E. Chamberla:tn - Page 4 (JM-541) 

MARY KELLER 

Executive Assistant Attorne:? General 

.RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jennifer Riggs 

Assistant Attorney General 

,B., 2494