The Attorney General of Texas 

November 10, 1980 

MARK WHITE 

Attorney General 

Honorable Donald L. Wilson 

Callahan County Attorney 

Callahan Courthouse 

Baird, Texas 79504 

Dear Mr. Wilson: 

Opinion No. NW-266 

Re: Procedure for holding a school 

consolidation election 

The Hamby, Clyde and Abilene Independent School Districts are 

contiguous, and each district has boundaries in two or more counties. At 

least twenty days prior to April 5, 1980, petitions requesting consolidation of 

the Hamby and Clyde school districts were presented to the county judges in 

each county in which the districts are located. During the same time period, 

petitions calling for consolidation of the Hamby and Abilene school districts 

were presented to the county judges of the relevant counties. Your 

questions are essentially as follows: 

1. Should the county judges schedule elections on 

both petitions for the same day or for different 

days? 

2. If the former: 

(a) Should separate voting places, judges, tallies, 

etc., be maintained for each proposal in the 

Hamby district? 

(b) If both proposals are approved, could the 

commissioners courts declare the new consolidated district to be the one carrying by the 

largest majority in Hamby, or should the, 

election results be determined in some other 

manner? 

(c) If an election is declared void, will the oneyear prohibition as to a second election be 

operative? 

3. May a consolidation election be held in November, 

1980? 

The adequacy of the petitions is not disputed. 

p. 845 
Honorable Donald L. Wilson - Page Two (MW-266) 

Statutes governing school district consolidations are contained in the Education 

Code in sections 19.231 to .24’7 (formerly article 2806, V.T.C.S.). Section 19.232 thereof 

provides that: 

A petition signed by 20 or a majority of the legally qualified 

voters of each of the several contiguous school districts 

proposed to be consolidated and praying for an election to 

authorize the consolidation shall be presented to the county 

judge of the county in which the school districts are located; or 

if one or more districts to be consolidated is a county-line 

district, to the county judge of the respective county or 

counties having jurisdiction thereof. 

Section 19.233 provides that upon receipt of a petition fulfilling the requirements of 

section 19.232, each county judge shall: 

(1) issue an order for a [sic] election to be held on the same day 

in each district included in the proposed consolidated 

district;. . . 

The statutes do not specify the procedure to be followed in the event that two 

petitions involving the same district are filed. 

The law was settled that under former article 2806, V.T.C.S., a county judge: 

acquired jurisdiction to call an election on a question of 

consolidating school districts immediately upon the presentation 

and acceptance by him of a proper petition therefor. 

Upon the presentation of the petition for an election. . . it 

was the ministerial duty of the County Judge to order the 

election. 

, 211 S.W. 2d 238, 240 (Tex. Civ. App. - 

Independent School District v. Thomerson, 

223 S.W. 2d 314, 319 (Tex. Civ. App. - San Antonio 1949, writ dism’d), the court stated 

the rule in this manner: 

. . .exclusive jurisdiction of a tribunal. . . is fixed when the first 

legal step or action required by the statute authorizing the 

creation of the proposed district is actually taken. Art. 

2806. . . does require the filing of a petition, and when such 

petition is filed exclusive jurisdiction is fixed in the county 

judge or judges with whom the same is filed. 

See also Griesenbeck v. Schindler, 552 S.W. 2d 203 (Tex. Civ. App. - Eastland 1977, writ 

rerd.e.); Rhea Common School District v. Bovina Ind. School District, 214 S.W. 2d 

p.846 
Honorable Donald L. Wilson - Page Three (MW-266) 

660 (Tex. Civ. App. - Amarillo 1948, writ dism’d). Since the legislature did not alter 

the relevant statutory language when it enacted sections 19.231 to .247 of the 

Education Code, this rule remains intact. Accordingly, when the county judges 

accepted the Hamby-Clyde or the Hamby-Abilene petition, whichever act occurred 

first, they acquired jurisdiction over that petition and had a ministerial duty to order 

an election upon it. The question is whether the act of accepting the first petition 

deprived the judges of authority to schedule an election upon the second petition until 

the first matter had been resolved. 

The cases in this area are inconclusive. Most involve jurisdictional disputes 

between coordinate tribunals, i&., a county judge and a county school board. In this 

context, the settled rule is that where coordinate tribunals have jurisdiction over the 

same subject matter, the tribunal which first acquires jurisdiction has the right to 

retain it until it disooses of the matter free from interference from the other tribunal. 

Griesenbeck v. Schindler, w Mt Enterprise Ind. School District v. Colley, 424 S.W. 

2d 650 (Tex. Civ. App. - Tyler 1968, no writ). See also Attorney General Opinion O778 (1939) (county judge should not order election on Clyde-Midway consolidation 

.propceal because- he had already scheduled election on- Midway-Baird petition). 

However, this rule has not been applied in the few cases wherein a single county judge 

received both petitions and there was no conflict between tribunals. For example, in 

Rhea, m, elections on petitions requesting consolidation of the Oklahoma and 

ma school districts and the Rhea and Bovina school districts were scheduled for the 

same day, although the county judge received the Oklahoma-Bovina petition four days 

before the Rhea-Bovina petition. In a suit for declaratory judgment following defeat 

of the former proposal and approval of the latter, the court rejected the argument that 

the filing of the Oklahoma-Bovina petition gave voters in those districts a prior and 

exclusive right to vote on that consolidation; the court did, however, state that as a 

practical matter, the Rhea-Bovina election should have been scheduled for a later 

date. See also West End Rural High School District v. Columbus Ind. School District, 

221 S.W. 2d 777 (Tex. 1949). 

Your situation has elements common to both lines of cases discussed above, and 

therefore neither line conclusively disposes of the question before us. However, 

careful analysis of the reasoning employed in those cases leads us to conclude that the 

principles stated in Griesenbeck and Mt. Enterprise and reflected in the court’s 

suggestion in m, are sounder and would most likely be applied in the event of a legal 

contest. We have noted that the act of accepting the first of these petitions vested 

exclusive jurisdiction over that petition in the county judges, who at that point 

acquired a duty to order an election upon that petition. London Ind. School District v. 

Thomerson, w; Garrett v. Unitv Common School District, m. We think it would 

be consistent with the concept of exclusive jurisdiction for the iudaes to hold the 

second petition in abeyance until the first proposal is approved or rejected by the 

voters. See Attorney General Opinion O-778 (1939). Accordingly, we conclude that the 

county Igges of Taylor, Jones, Callahan and Shackelford aunties must determine 

which petition was the first to be filed and accepted in all four counties and then 

schedule an election upon that petition. If the election on the first petition results in 

consolidation of those districts, the second petition would become invalid. West End 

p. 847 
. 

Honorable Donald L. Wilson - Page Four (Mw-266) 

Rural High School District v. Columbus Ind. School District, e. The question of 

which petition was filed and accepted first is a fact question to be resolved by the four 

county judges involved. 

Parenthetically, we observe that even if both elections could be scheduled for 

the same day, there is a convincing practical reason for not doing so. The election 

contest omcedure set forth in the Election Code is available to contest school 

elections. Eke. Code arts. 9.01, .30. See Roberts v. Brownsboro Ind. School District, 

575 S.W. 2d 371 (Tex. Civ. App. - Tyx 1978, writ dism’d). If both proposals were 

approved, a court might be compelled-to void the elections on the ground that it would 

be impossible to ascertain the true results thereof, Elec. Code art. 9.15. 

Our disposition of the first question renders consideration of your second 

question unnecessary. 

Your last question is whether a consolidation election may be held in November, 

1980. Article 2.01b(a) of the Election Code provides that in even numbered years 

elections of certain officers and amendments to the Texas Constitution are the only 

issues that may be submitted to the voters in November. Thus, we conclude that a 

school consolidation election may not be held in November, 1980. 

SUMMARY 

The county judges of Taylor, Callahan, Jones and 

Shackelford counties must determine whether the Hamby-Clyde 

or the Hamby-Abilene petition was filed and accepted first, and 

then schedule an election upon that petition. An election on the 

second petition may not be ordered until the first matter is 

resolved. A school consolidation election may not be held in 

November, 1980. 

Very truly yours, 

&s2izGd& 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

p. 848 
Honorable Donald L. Wilson - Page Five m-266) 

APPROVED: 

OPINION COMMlTTEE 

Susan L. Garrison, Acting Chairman 

Jon Bible 

Walter Davis 

Rick Gilpin 

Bruce Youngblood 

p. 849