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## TamAmOF TEXASGPRICEDANIEL 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?CeIs 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 isvested 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<$ZtOOOor 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'Lcefor 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.1School 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 ‘toardof trustees have the authorltg; to voluntarily pay for such pavQ@

You have inform& us that the property On account of which the asseasrrentwas made.%8 Used as e public achoo;lsite.

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 de**Voted** 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** tieIdthate~~OPeriY Of the bder Colore~o River Authority used in the executionHon. J. W. Edgar, Page 3 (V-1308)

of the purposes for which the agency was createdwas exempt from taxationby virtue of Section 9 of ArticleXI. 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$encyserving a public purpose in controllingand storing the floodwaters of the ColoradoRiver 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 taxationunder 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 accordedby this constitutionalprovision extends to the property of any governmentalagency 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. **=%Y&i;+;,**

**.** SchoolTrustees of Willacy County, 33 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 taxationproperty 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 inArticle XI, Section 9, included special assessments for street improvements. The court said: If n P

. there is no apparent reason why the exernpiion

finthe.

constitution should not be taken in the ordinary and more comprehensivesense, so as to includerion. J. ‘ir. Ed,,yar,

P,lge11(v-1338)

~71.1. taxation, special. as well as general. The purposes of the exemption obtain equa~!.ly

ezainst special.

asessmexts 55 arv;i.

‘~1 nst general taxation. T!keinhibit:f~on

zgalnst sa1.e

would.seem to negative the power to assess. . . . “The courtho1.d.s

‘chatthe sction of the city authorities in essessing the tax qsinst the courthouse site, 2nd in attempting to hind.the county 2s the owner, 11~sinhibited :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

t the 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;~ ?.Sa puLJ1.I.c

sc~~.ool.

site unless the fart th7t t!: Marshi21.1.

IndependentSchool 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, :theCity ofKersh.71.1. adopteti;Icharter amendment provi6i.n~y t~l?.,? t t.-me improvementof :itsstreets sh0ul.d tie,govemefi

by t;:e 7rov3.sion.5

ofp,rtic!.e

1.1.351d, V.C.E. This ctrtutk ,-uthorizes

the governi.nz

boclyof 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 cssessmentsa,: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 itwould 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.tscharter, tLe City of f42rs321.1. 5-s consti.tuteC

2n infiepenA.ent

sc!iool.

aistrict, ?nr‘~

its 8c!: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 Ecl:oo!. trar- tees are incorporated ,-nd mF.de3,

b0d.ycorpor$te in 12~ un:?er

We neme of “Marshall. School.

i3oar(l,.”

Sy $:ct!.on1.05,

the Pbsolute tit1.e an<!~1.1.

ri+ts to ,:l.!. nro2erty for school. purposes ere vestei;:intij.e i:orr;o? trustees.,

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

These charterprovisions are consistentwith the general.

sta~tutes

&verning municipally control.l.ed’ school. districts. Article,2772,V.C.S., provid,es:

“In every city .ortown in this State which has ormay a~ssumethe exclusive control. and management of public freeY’school.s ?7ithin.itsl3.mlts, and which has or may tieterminetha,t

such excl.usive

control a,nd m2mm‘e ment sh~1.1.

be in a board of trustees, c-r,9 or;:anized

under an Act of the Sixteenth ; Lter~Isl.a.ture,.

approved.

April 3, 1.879,

and, Acts cmenda,

tory thereto, the tit1.eto 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, includingproperty heretofore acquired as well.as that which may hereafter be acquired, shall be vested in the :,oa~r3~

of trustees 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 ,exercisethe 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 “shallhave the exclusivepower to manage and f’overnsaid 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 trusteesand 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 courtheld that this statute z~+~lie3 to all.trustees of independentdistricts, “whetherappointed by the city council. or elected by popular vote.‘IT’necourt further sta,tedthat the statutes relating to municipal.1.g controlled school. districtsmanifest a clear legisl.ative intent that where a board of trusteeshas control of such schools the3rTontrol.

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 theMarshall public schoolshas been vested in the board of trustees. The City ofMarshall 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 itsmunicipal 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 datedMay 15, l.951, that the Marshall Independent School District may voluntarily pay for such paving if the board of trustees determine9, 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 controlledby the statements found in a letter opinion from the Attorney General to the County Attorney ofMontgomery County, datedMarch **1,** 1940, and attachedhereto. There the question under discussionwas whether the Conroe Independent School District could use its local school funds to pay for concrete sidewalksbuilt on property adjacent to school property but owned by a private individual in which the School Districthad 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** purww3sI
"'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 andfor purchasingappliances and supplies, for the payment of insurancepremiums, janitors and other employees, for buying school sites, buying, bui;.dinS and repairing and renting schoolhouses, and for.other purposes necessary in the conduct of t)?e ublic schools to be determinedby th oard of Trustees

. . .' (Emphasisadied.)
"Basedupon 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~adjoininga 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. CountyAffairs Division PRICE DARIEL Attorney General.

Jesse P. Luton, Jr. ReviewingAssistant

Everett Hutchinson Executive Assistant

BW:MKW:awo / rna;yic:W& Mary K. Wall. Assistants