# The Attorney General ofTexas

November 10, 1980 MARKWHITE 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 aschool 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 inwhich the districts are located. During the same time period, petitions calling for consolidation ofthe Hamby and Abilene school districts were presented to the county judges of the relevant counties. Your questions are essentially asfollows:

1. Should the county judges schedule elections on both petitions for the same day or for different days? 2. Ifthe 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 aconsolidation election beheld inNovember, 1980? The adequacy ofthe petitions isnot disputed.

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Statutes governing school district consolidations are contained in the Education Code insections 19.231to .24’7(formerly article 2806, V.T.C.S.). Section 19.232thereof 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 ofthe county inwhich 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 ofapetition fulfilling the requirements of section 19.232, each county judge shall:

(1) issue anorder for a[sic] election tobeheld onthe 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 wassettled that under former article 2806, V.T.C.S., acounty judge: acquired jurisdiction to call an election on a question of consolidating school districts immediately upon the presentation and acceptance byhim ofaproper petition therefor. Upon the presentation of the petition for an election.

..it was the ministerial duty of the County Judge to order the election.

, 211S.W. 2d 238, 240 (Tex. Civ. App. - Independent School District v.Thomerson, 223S.W. 2d 314,319(Tex. Civ. App. -San Antonio 1949,writ dism’d), the court stated the rule inthis manner:

...exclusive jurisdiction of atribunal.

..isfixed 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 orjudges with whom the same isfiled. See also Griesenbeck v.Schindler, 552S.W.2d203(Tex. Civ. App. -Eastland 1977,writ rerd.e.); Rhea Common School District v.Bovina Ind. School District, 214S.W. 2d

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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 aministerial 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 acounty 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 ofthe matter free from interference from the other tribunal. Griesenbeck v.Schindler, w Mt Enterprise Ind. School District v.Colley, 424S.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 inthe few cases wherein asingle 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 asuit for declaratory judgment following defeat ofthe former proposal and approval ofthe latter, the court rejected the argument that the filing of the Oklahoma-Bovina petition gave voters in those districts aprior 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, 221S.W.2d777 (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 inthose cases leads usto conclude that the principles stated in Griesenbeck and Mt. Enterprise and reflected in the court’s suggestion inm, are sounder and would most likely beapplied inthe event ofalegal contest. Wehave 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 aduty to order an election upon that petition. London Ind. School District v. Thomerson, w; Garrett v. Unitv Common School District, m. Wethink 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, weconclude 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. Ifthe election onthe first petition results in consolidation ofthose districts, the second petition would become invalid. West End

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Rural High School District v. Columbus Ind. School District, e. The question of which petition wasfiled and accepted first isafact question to beresolved bythe 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, acourt might be compelled-to void the elections onthe ground that it would beimpossible 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 aconsolidation election may be held inNovember, 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 beheld inNovember, 1980. SUMMARY The county judges of Taylor, Callahan, Jones and Shackelford counties must determine whether the Hamby-Clyde orthe Hamby-Abilene petition wasfiled and accepted first, and then schedule anelection upon that petition. Anelection onthe 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 ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAY III Executive Assistant Attorney General Prepared byJon Bible Assistant Attorney General

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APPROVED: OPINION COMMlTTEE Susan L.Garrison, Acting Chairman Jon Bible Walter Davis Rick Gilpin Bruce Youngblood

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