- I 

TamAmOF TEXAS 

GPRICEDANIEL 

AlTORNeY GENERAL 

Aue~m 1% TEZXAS 

October 9, I.951 

Eon. J. W. Edgar, Coriunlssloner .i 

Texas Education Agency 

Austin, Texee opinion ?io~~k-l308 

'he: Lleblllty of &m&all 

Independent School 

Ms*rlct for paving 

assessments for streets 

Dear Sir: adjolnlxg its property. 

Your request for an oplnlon'relates to the 

llablllty of the Marshall Independent School Dl&rlct, 

a munlclpally controlled district, for the.pavj+g of 

streets adjolnfng the school district% property. 

YOUl' f8Ctld pW%.le'ptRti~ ii3 '88 fOllOWI 

: 

*me Marshali Independent School Mstrlct 

Is munlclpally controlled Zn that the mmbepa of the Board of Education a&e appointed 

by the City Gcmmlesim except when ttu?Ce Is 

a reslgnatlon of a board member before the 

expiration of his appointed term of office, 

in which case lt Ls the prerogaflve of ths 

school board to appoint a member to complete 

the term of office. 

‘f 

. . . 

"The title for.property owned.by the Marshall Independent School Dlstrlct is vested 

in the Board of Education. 

18 

. . . 

"The Marshall School Board as authorized 

through the City Charter, may contract, be 

contracted with, sue, be sued, pleaa, be 

Impleaded, may receive gifts, grants, conveyances, rloru7tlon8, and devises . . . provided, however, the sale of any property 

for a value of<$ZtOOO or more isfirst epproved and affirmed by the Commission ~of 

the City of Marshall. 
. . 

Hon. J.'W, Edgar, Page 2 (V-1308) 

"On February 23, 1951, Prendergast & 

Prendergest, Attorneys, WEII'SbEtll, TeXaS, 

enclosed with 8 letter of explanation 

an InVo'Lce for proposed street paving 

of Lots 1.3-23, i;l.ock 2, College Heights 

Addition, frontln~ 240 feet on DniVercity Avenue. The invoice was billed 

to the Marshal.1 School Doard for worlc 

to be dOne by H. R. Henderson Company 

for the City pf MarslX311. 

"On the basis of the fact5 stated above, 

we subnit the following questlOn8: 

“1. 18 the MarhsalL' Independent 

School District obligated to pay for 

the pavlng.of streets adjoining its 

property? 

. 

"2. If your aIMW& tb the first 

question la ln the negative, does the 

‘toard of trustees have the authorltg; 

to voluntarily pay for such pavQ@ 

You have inform& us that the property On 

account of which the asseasrrent was made.%8 Used 

as e public achoo;l site. 

Article XI,'Section 9, of the Constitution 

of Texas 18 as follows: 

'IThe property of countlea, cttles 

and.towns, owned and held Only for public 

such as.publlr hulldlng5 and 

~~"%% therefor.isiC]' 3.2’8 E%l&Il88 alla 

the. furniture thereoi, &XI all property 

used, or intended for extln@sh~ flre8, 

public grounds ano all other property deVoted exclusively to the use and benefit 

of the pubI& shall be exempt from forced 

sale and frdm taxation, provided, notbm 

herein 5h511,prevent the etiorcement of 

the vendors lien, the mechanics or bul$ders lien, or other lien5 now exfstiq. 

In Dower Colorado River Authorit: 

cal B8nk & %USt CO.,. 144 T 

TidChemL326 190 S W 4u 

ng45] the COUFt tieId thate~~OPeriY Of the bder 

Colore~o River Authority used in the execution 
Hon. J. W. Edgar, Page 3 (V-1308) 

of the purposes for which the agency was created was 

exempt from taxation by virtue of Section 9 of Article XI. The court stated: 

"It thus appears from the provisions 

of our Constitution and legislative enactments thereunder, as they have been construed by;!our courts, that LCRA is a governmental ,a$ency serving a public purpose 

in controlling and storing the flood waters 

of the Colorado River and that all benefits 

derived from its efforts are public benefits. Hence, its property is public property devoted~ exclusively to public use and 

is exempt from taxation under Art. XI, Sec. 

9, of the Constitution; and the proviso 

contained in Sec. 48, Art. 7150, supra, requiring payments 'ii1 lieu of ta~xes,' is 

void because contrary to the Constitution." 

Prom this case, we conclude that the exemption accorded by this constitutional provision extends to the property of any governmental agency 

which is devoted exclusively to the public use. An 

independent school district is a political subdivision of the State, and property used for the siteof 

a public schools building is devoted exclusively to 

the use and benefit of the public. 

School Trustees of Willacy County, 33 =%Y&i;+;, S. . 

civ. App. 1.933, error ref.); Daugherty v. Thompson, 

71 Tex. 192, 9 S.W. 99 (1888). The conclusion that 

the exemption extends.!.to the property of an independent school district is eupported~ also by the decision 

in State v. City of San Antonio, 147 Tex. 1, 209 S.W. 

2d m$),which held that this provision exempted 

from taxation property boughtin by the City of San 

Antonio and the San Antonio Inuependent School District on foreclosure for delinquent city and school 

district taxes. 

In Harris County v. Boyd, 73 Tex. 237, 7 S.W. 

71.3 (1888j, it was held that the exemption in Article 

XI, Section 9, included special assessments for street 

improvements. The court said: 

If n P . there is no apparent reason why 

the exernpiion fin the. constitution should 

not be taken in the ordinary and more 

comprehensive sense, so as to include 
rion. J. ‘ir. Ed,,yar, P,lge 11 (v-1338) 

~71.1. taxation, special. as well as general. The purposes of the exemption 

obtain equa~!.ly ezainst special. asessme xt s 5 5 a rv ;i. ‘~1 nst general taxation. 

T!ke inhibit:f~on zgalnst sa1.e would. seem 

to negative the power to assess. . . . 

“The court ho1.d.s ‘chat the sction of 

the city authorities in essessing the 

tax qsinst the courthouse site, 2nd in 

attempting to hind. the county 2s the 

owner, 11~s inhibited :I? section 9, ert. 

II., of the constitution of the state. 

It wes without authority as well. as 

rgalnst the count;r 2s azzinst the proper4.g. ”

In v5.e~ of tk foregoing aut??or?.tle~, :.t ;.s 

our opinion tliz tthe City of IkrslWl.1. ,?oes n,>t !.k?r-c 

t5.e ?utliGr;.t:‘r to l.evy an essessment 2,Ta~l.net :i7n?ert:,: 

Llser;~ ?.S a puLJ1.I.c sc~~.ool. site unless the fart th7t t!: 

Marshi21.1. Independent School District is a munici?:! 1,:: 

control.I.ed c?istrict ca~l.1~ for the ,appl.Lcation of r 

c’ifferent rule. On June 31, 1.$&g, :the City of Kersh.71.1. adopteti ;I charter amendment provi6i.n~y t~l?.,? t t.-me 

improvement of :its streets sh0ul.d tie ,govemefi by t;:e 

7rov3.sion.5 of p,rtic!.e 1.1.351d, V.C.E. This ctrtutk 

,-uthorizes the governi.nz bocly of tlk city to prov:i<e 

for the cost of such improvements ‘:jy the c!t:; o? FrrtI.7 by the city 2nd partly by cssessments a,:z?nst pi-~?- 

&rtg Sbuttin,? on the street to be improve?. I;^ t;,ie 

school. d.istrirt is merely a branch of the tit;- government an’? does not heve e sepzrete Wentit::, i:.t 

mizht be argued. that it would be proper for the ci.t:: 

,governin,q hod,? to 2utk;orize payment of part of tile 

co-t out of school. fun&. 

Uni’~er l.ts charter, tLe City of f42rs321.1. 5-s 

consti.tuteC 2n infiepenA.ent sc!iool. aistrict, ?nr‘~ its 

8 c!:ool.e cnre p1.2 cec?~ tinc’ie r the ~rq~ement znr:, contr2S. 

0;’ i‘ zc!lool. boprrl appointed~ by the city commi.ss~.on, 

3g Suction I.:>),:- of the city charter, the E cl:oo!. trar - 

tees are incorporated ,-nd mF.de 3, b0d.y corpor$te in 

12~ un:?er We neme of “Marshall. School. i3oar(l,.” Sy 

$:ct!.on 1.05, the Pbsolute tit1.e an<! ~1.1. ri+ts to 

,:l.!. nro2erty for school. purposes ere vestei; :in tij.e 

i:orr; o? trustees. 
, 

Ron. J. W. Edgar, Page 5 (v-1308) * 

These charter provisions are consistent with 

the general. sta~tutes &verning municipally control.l.ed’ 

school. districts. Article, 2772, V.C.S., provid,es: 

“In every city .or town in this State 

which has or may a~ssume the exclusive control. and management of public freeY’school.s 

?7ithin .its l3.mlts, and which has or may 

tietermine tha,t such excl.usive control a,nd 

m2 mm ‘e me nt sh~1.1. be in a board of trustees, 

c-r,9 or;:anized under an Act of the Sixteenth 

; Lter~Isl.a.ture,. a pproved. April 3, 1.879, and, 

Acts cmenda, tory thereto, the tit1.e to al.1 

houses, lands and other property~ owned, held, 

set apart, or in any way dedicated to the 

use and benefit of the pubI.ic free schoo1.s 

of such c%ty or town, including property 

heretofore acquired as well. as that which 

may hereafter be acquired, shall be vested 

in the :,oa~r3~ oftrustees and thefr successors in office, in trust for the use and 

benefit of the public free schools in such 

c1tg or town; and such board. of trustees 

shall. have and ,exercise the exclusFve control and management of such school. property, and sha.l.1 have a.nd~ exercise the excl.usive possession thereof for the purpose ‘1 a~foresa.lcl; . . .I’ 

Lrkewise, ArtLcle 2780, V.C.S., states that 

the trustees “shall have the exclusive power to manage and f’overn said sclio~!.s, and all. ri&its and titles 

to property for school purposes hsretofore vested in 

the r?L?“OP . city councils. or school. trustees . . . 

sha:I.i be GesteI’ in said board of trustees and the3.r 

s:~c~~‘::~~ys in office .I’ In Temple Independent School. 

DLs: !; o 7.; I Pr: 0~ t,or 97 s.w.2cl7047,-1.p. 

ToTi” error ref. I, the . court held that this statute 

z~+~lie3 to all. trustees of independent districts, 

“whether appointed by the city council. or elected by 

popular vote .‘I T’ne court further sta,ted that the 

statutes relating to municipal.1.g controlled school. 

districts manifest a clear legisl.ative intent that 

where a board of trustees has control of such schools 

the3r Tontrol. is to be exclusive. 
‘. 

Hon. J. W. Edgar, Page 6 (V-1308) 

Thus, by the charter provisions as well as 

by the general statutes, the title to the property 

of the Marshall public schools has been vested in 

the board of trustees. The City of Marshall as a 

municipal corporation levies and collects the taxes 

by which its school system,& operated, but the 

management and disposition of these funds are under 

the control of the school board. Under these facts, 

it is our conclusion that the City of MarEhall has 

no power, in its municipal capacity, to levy an assessmen: against the property of the school district, 

Passing to your second question, it is our 

opinion, based upon the holding in a letter addressed 

to Hon. Gibb Gilchrist dated May 15, l.951, that the 

Marshall Independent School District may voluntarily 

pay for such paving if the board of trustees determine 9, in the exercise of its sound discretion, that 

the paving is necessary in the conduct of the public 

schools. In the opinion above referred to, it was 

statedi 

"It is our opinion that the answer 

to the question which you present is 

controlled by the statements found in 

a letter opinion from the Attorney General to the County Attorney of Montgomery County, dated March 1, 1940, and 

attached hereto. There the question 

under discussion was whether the Conroe 

Independent School District could use 

its local school funds to pay for concrete sidewalks built on property adjacent to school property but owned by 

a private individual in which the School 

District had no character of interest, 

the sidewalks to be used by pupils going 

to and from school. The statute involved in that opinion is Section 2 of 

Article 2827, Vernon's Civil Statutes, 

which provides in parts 

"-he public free school. funds shall 

not be expended except for the following 

pur ww3s I 

"'2. Local school funds from district 

taxes, tuition fees of pupils not entitled 

to free tuition and other local sources 
. . 

‘\ 

“\ 

lion. J. W. Edgar, Page 7 (v-1308) 

may be used for the purposes enumerated 

for state and county funds and for purchasing appliances and supplies, for the 

payment of insurance premiums, janitors 

and other employees, for buying school 

sites, buying, bui;.dinS and repairing 

and renting school houses, and for.other 

purposes necessary in the conduct of t)?e 

ublic schools to be determined by th 

oard of Trustees . . .' (Emphasis adied.) 

"Based upon this statute it was held 

that the Board of Trustees was authorized 

to use local funds forthe necessary paving." 

SUMMARY 

The Marshall Independent School Districtis not obli.Sated for the paving of 

streets~adjoining a school site: however, 

the board of tru of the district 

may voluntarily ay for the paving if 

the board finds that the paving is necessary in the conduct of the public schools. 

APPROVED: Very truly yours, 

J. C. Davis, Jr. 

County Affairs Division 

PRICE DARIEL 

Attorney General. 

Jesse P. Luton, Jr. 

Reviewing Assistant 

Everett Hutchinson 

Executive Assistant 

BW:MKW:awo 

/ 

rna;yic:W& 

Mary K. Wall. 

Assistants