JIM MAlTOX Attorney General

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorne,y General of Texas

September10,1986

Honorable John E. Chamberlain Ball CountyAttorney P. 0. Box 699 Memphis, Texas 79245 opinionNo. m-541

R.2: Whether ChildressCounty 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 CommissionersCourt annexed the entire Estelline Independent School District to the Childress Independent School District without t1.econsent of the Hall County CommissionersCourt. 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 countywithout the -onsentor action of the other county.

Section 19.021of the Texas EducationCode provides, inpart:

(a) Tw commissioners court of any countymay create enlarged districtsby annexing one or more common sc'~~~ol

districts 'orone ormore independent school dis.tricts

having less than 250 students in membership on the last day of thepreceding school year to an independent school district having 150
or more students inmembership on the last day of the prece'iing

schoolyear.

The question at han,iis not simplywhether section 19.021expresslyor impliedly requires the consent of both counties where more than one county is affected. The dispositive issue is whether section 19.021 authorizesone county to takeaction outside of itsboundaries. If it does not, the other county's concurrent action over territorywithin itsboundaries is essential.

Countieshold 'onlythosepowers granted expresslyor by necessary implication in the!Texas Constitution and statutes. Canales v. Laughlin, 214 S.W.;:d451. 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. 2491Ronorable John E. Chamberlatn- Page 2 (JM-541)

authorize actions affecting two different counties usually do so expressly. See, e.g., 519.051(b). Further, sectionswhich authorize actions affecting two ormore countiesrequire the concurrenceof each affected county. See OS19.022, 19.054. Section 19.021 addresses the special situationpresentedby schooldistrictswith a smallnumber of students by authorizing thf!annexation of a district with less than 250 studentswithout a peti.tionof the district's registeredvoters. 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 consolidationof schooldistricts). 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 determiningwhether 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 annexationof a r;c:hool district located in one county to a school district locatedprimarily in another county is ineffectiveand void without the consent of the other county. The coure dealt with article 2922a.V.T.C.S., an earlypredecessor 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, 68thLeg., 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.'" SchoolTrustees of Runnels 452 S.W.2d at 766 (quotingCounty CEunt y v. State, 95 S.W.2d 1001, 1003 (Tex. Civ. App. - Austin 1936,writ dism'd); seealso County SchoolTrustees 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 Common 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~lgewas 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

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are consolidated into one code is aot presumed to indicate a change inmeaning. 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 19.021does not expresslyauthorizeannexationof a schooldistrictwhich lieswithin another county; itmerely 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. :SeeTex. 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 eachheld zhata county commissionerscourt lacks the authority to order a 1oca:loption 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 GeneralOpinionm-468(1986).

Your question,however, dpes not require reliance on whether the legislaturemay authorize me county to take unilateral action over territory lyingwithin another countywithout 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 countyunder section 19.021 is essential.

SUMMARY

Section 19.021of theTexas EducationCode does not authorize one county to take action affecting territory lying in another county without the concurrentaction of the other county.

JACK HIGHTOWER First AssistantAttorney General

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MARY KELLER ExecutiveAssistantAttorne:? General

.RICK GILPIN Chairman,OpinionCommittee
Preparedby JenniferRiggs AssistantAttorney General

,B., 2494