OFFICE OF THE ATTORNEY GENERAL OF TEXAS
**AUSTIN**

Bonoreblo X. I,. Shelton County Xuditor Johnson Couzity Claburne, Toxee
Dssr **Sir:**

varfld b.ythe PetiC. Johxsn end .presuntad to aad by the Rio Viotn ar;riot Eoerc! of ?33y

f **roG%nt** dab3 and **f'rOn** an in tho ikpertmnt of Zduthe fol1oxir.q facts:

or to 1906 ocrtain terriy oonstitutsd the Mustang rfct, which apparently enjoyad of a cmxzon school district. Long ft he5 been disoontiuue@ as E triat aridits territory wee loft

czhool diotrlot. Includad Lohool Distriot is the Joseph Dickson survey which wes edjaoent to the 0. %oore Survey. Thelatter survey lies pertly in Johnson Courrty

### et-idFartly in Hill County.
On!Zay28, 1906, anajorlty of tho queliffod votera llvlne within tho bounds of the: .._ 

### 205

Hon. IX.I:. Shelton, Pa& ;Z

,foccph Dickeon Swvey ana ocou_~ying 5portion of3.tklat surVeyI filed s petition with tha prasidC%ltCf the Eoard of Y’rusteec o.fthe Rio viste Independent School DI.Etrict, which district ms locstaa xithln the boutida of Johnson Cocnty, doclnring their dcslre to beoorw a pert of the RIOvista Scf1ool District, I~uYsuentto tll1.s peti,tion, ths Eosrd of Trustees of the Rio Vpste Indopcndent School District, by resolution, inoorgoratsa into andnm?ejxrt of ths Rio Vista Tndependant school. L’istrict thlo pertioulsr portion of the Joseph Dlckscu Survey. This reuplxtion, whiah is recorded in the oounty oourt records, roads as follows:

“Onthis the 25th day of Zag 1905 the Presiilent of the Board of 4.?rusteas eubmj.ttsa to the board the petition Fnwriting of 3. C. Johnson end fivo other persons xixioh l;etit;isn hsd hem duly fllod with the Prcoident of the Eoal’d, preyin? that the territory hereinafter desoribed bo roceivea ns an addition to ma to beoo!.w pnrt of the Rio Vista Independent School District, andthe board heQlng coneidered suid petition the affiaarit of threo of the subscribers thereof ottachea thereto, end all the fects In conzc%ion therei.ith is of the opinion ad upon Inve.:tigatioo finds the fects to bb~that thu proposad aadltion will not increaoe t&o oozporate lldte of bsia Rio Vists Snde- .pendent School liistrict 60 thst the Dhole whsf,thus inorecised, v;ill not eroaed ‘I’iwnty Yivs S.n,usre/ T..!ilf?~, &ndtllat the signers of.seid petition Constitute 8 mjor:ty of the re.,, -*dent qilalifiua voters of said territory; therefore, meit Resolved by the Ijoard of y;ustcos of

’ the stlia R,loVista Iriiel>endent fichool District that the fclloviing described ter-’ rltory,abeinp, the some territory which is described in aala petl.tfon be, sna the nsmeheraby is r3- ce.iQed.es E,nsdirition to and to beocmc a part of the co;por6to limits of the mid Rio Yists %aeponCent Yohool Diotrict.R Subsequently, on ootober 16, 1906, under znd by virtue of an order issued by the County Ju@Geof Hill cowkty, an eloot.lon was hsla at ijlun, Texas, v&i& spperently hr;a EiS its objsotivo tho formtionHon. E. L. Shelton, Pa@? 3

of the Dlu~ Indopandent Sahool District. Ze have asoertained fro= the Departmnt
of Xducotlon that the klu5 %3hOOl District becmie an indepcn:dent School district on their rccorda 1.nNovezber, 1900. Theonti.re Yoseph Dickson Survey, includkn.~ th5t portion thsl*2of which hcd prericnlsly pctitioncd to becom apart of the Rio Vista ImieRen~ant
School District, v&=ia medo a part or t113 E3i? ElurnIndegencient School Distriot by virtue Ofthat election.
TheRio Yiata School District in Johnson County was lncoryoratod In 1903 as a tom for school purI>osaa only, undar pme,ral law, 5n002q7licnoe w;ith tho kct of 1075, acoordlnr to tho recordo of the DepaTt~3ut Of Education, and ia still. a valid indcpcndent school distriat.

You submit forkthe opinion of this dapartaent t\vOC&e~ti~.!lLi, vihich viequote BEf'OilO%S:

n1.a Uponthe baois of the f&0%6presented, doos the Elm School Distriot have a lceol and lewful claim to that part of the Joseph Dickcon Survey that is covered by the patition of E. C. Johnson andothe~a as presented to end coceyted by the Rio Vista School Doard of Xay %5th, 19067
"2. If the BlumSahool District does not and cannot estcbllsh legal Ovihership of said territory In quostfon, can the Rio Vista School District bring suit and collect the school taxes that,have beea paid to the Elan School District by the people reslcing within the wtes endbounds of said disputed territory for the laet twenty-five years or lon$7er?*

* It is apparent from a readinS of the resolution adopted by the fiovrd of Trustees of the Rio Vista Independent School District andfro:3 facts contained ?myour latter that such Eoard andt!:c petitioners in the disputed portion of the Jo~-sphDiokcon Survey sourht t0 OOIXply v;::it,h

the provisions of Sao. 153, Chsp. 134, Acts Of 1905, 29th Legislature, pp.-"03,304, in their effort8 toEon:E. L. Shelton, Page 4

extend the district boundaries. Thf~;sootion which was oarri.ed vision of 1911 8s Article 2065 of 1925 as ktiale 2765, prior refid 85foilo~~: to inolude that area. unohnnced into the reand into the revioion to its repeal in 1929,

Vhenever the terr-itory heretofore incorpO2Htt:a, or vihlch mayherc;F;ftor ba j.ncorporated, for free SOhO pLWpOS%S,shall c0ntol.n 10Sa than twenty-five square miles; andthereafter the majority of ths inhebftanto, qualified to vote for membersof the Legislature, of ony territory sdjoininy, the limits of the town and ville~e 50incorporated, shall denim such territory to be added to andbecome a part of such 

### &mzporutea tom or wimp ITOF froa s0h051 purposes only, anda mjorltp o? such yualiriari
voters S~FJIRJMtitiOn t0 that Gffect, sny three of 

### such quelificO voters xxy file ~3iti-1tb,o prt30- ident of the Poard of Trustees of sunh insorporated toun or vilfege the said petition, fully desorib?ng by metes andbounds the territory proposad to to annexed and shoyJin@:ito location with reference to the existing territory of tho town or village 

### dreaay incorporated, 

### pOdha that sslG territory proposed to be added must be contitg~ous to one line of said corporation. Uponso filinc: said petition, 

### dxaavits nud dcaariptions, said president shall submit the same to the board* and, if upon investigation by the 

### Eoard it is found that the 

### proposed addition vii11 not increase the oorporsto Limits ROthat the :shole, Vihsnso inoreased will exca?d t:;lontyfive squzrc miles, the said board 

### 5T trustees, by resolution d~ulyentered upon its minutes, may rec~lvo suoh propo3ad territory 0s an addition to, en:'.become Rpart of, the ooqporate 1imitS Ofsuoh t5vn or village; a copy of v;hlch resolution, oontain3ng, a doscrdption of the 

### c-iadeatersltory, shall be ffl& for record in the county clork15 OffiOe Of the county in whioh eaid to&n or villn@ is aituatea, aftor whidh the tar-itory 80received 

### shall be ‘0.part of said toyin or villofo;

. . ."
Before entering into adiscussion of the lepality of the eation 0s ~1%flill County snd HumSchool DistrictBon. E. L. Shelton, Pege 5

authorities let USfirst detemine vihether or not there existed at thst time any stetutory or ooustitutlohal authority for tho annexation of the disputed area to the Rio Viste Independent School Glstrict.

In’l906, Sec. 3OSArticle VII of the Constitution, diioh authorized the Le@lature to farm school districtG road GSfolloi’;s:

r..

. andthe L6piSlatUre mayulso provide Sor the formation of school dlstj?iots withfic all or any of the counties OSthis State by @m.eral or specie1 lav<s

. l .‘I

In addl.tion to Seatton X5:5,whfr,oh we qv,oted above, thera ~33 on th3 statute books at that tlm a provision fez the Somotion OSschool districts cmitaining pa&s of Taoor mare counties, conea oounty-line school districts. Nction 55, Chapter 1;:4, Acts OS1905, 29th Le~~lsla’;ur6. These two stututr;s were intagral parta OS the “6chool Code”

.

Eospeoiffo lan$uege is to be Sound in %otion 158 pormittiniT, the extension OSIndependent Sahool Dlstriot boundariss to includa territory in more than a sln~lc oounty, but the fact that seotion tit,dealt with the same~.eneral subjeot andwas contained in the sme body OS~RIYjiave those districts, under rano&zed rules of statutory construction, 3.~1pliedauthority to so extend their bourdarien. Carlton Independent Sohool District v. Jordon, ot nl, (31~. App., Eastland, 1928) 0S. 3’

. (2a) 384; rcveraed in part, (co~m.~&q., EFC.)J, 1930) E56. I;‘

. (2d) 610. Cea also 39 Tex. Jur., Sootion 13r3.

ln 1906, however, the GuproloeCourt d,eternlued that the Legislature bad no authority to authorize the Somatfon of school distr$cts lyin@ partly in diSSerent COUntiet3,or no-called oou.uty-line districts, andthat seation 3OS/.rtiqle VII of the Constitution required that all school districts be kept wvithin county boundaries. Parks v. Xeet, 102Tex. ll, 111 9. ‘8. 726.

All acts by the Legislature authorizing. the
fomation of tij.atri0t.a containing parts. of tw3or Icore oo~ties wore thus held UncWstitUtiOnal. Reocssarily any Implied authority attributed to independent clistr@tsiion. E. L. Shelton, Page 0

t0 extend their boundarien.earosfi county lines under Saction 153v;es also unconstitutional.

Thal@slatLVe authority under which the Rio vista Indepeni'iont school llistriot puxportad to act being unconstituti.ona.1; its atte;a,;it to mnax the dQjput& 6r~a in tlill County was 3Skewlse in.v:ilid anddid not aSfact th3 St~ltUQ of t!i9t eTEti arj Ullclcimcd territory.
IT40 vista dictriat The hadnop2Z.w cl.tiimto this urea, and .thb R111111

district hc;da Pi&h%, at that time, to include it v?ithln its boundaries.

~?GWVer, aftor the decision in Parke Q. Xeot,, SeCtiOn 3Ofhrticle lt13of the Constitution, was a;l:%udod on &otember 24, 1.909. Thua:G:atiant, in e.ddition to supplying thr; nscoscory oonstitutlonal authoritv to the Lc~l~loturs to provlc?o for the formation of sch.;)01d.istricts oomposud of ports of twoor more counties, validatsd all prior sxisting county-line districts.

Theportion of the anendnent pi-ovidiog the Le&lature with authority to form dfstcicts crossing GOUnty li.naS was pUr@ly enabling and ~8s in nosense f3elf-exucutla~, as pointed out in Carlton independent 'Gohool District v. Jordan, supru:

YIad ths Legislature nwor seen fit (thereafter) to provide for the formation of districts lying partly in two or more oountfws, none twtir oould have lawfully existaa, ssve and except those which by the sameaonstitationnl amendmenthad been expressly validated.**
The Legislature did not exorcise its power under the emendrm!ntuntil 1911, at which time it provided for the formation of county-line districts in Ch,rptor LOO, p. 200, Canaral Ls:is of 1Yl.l.. The provisions OSZaction 155, Acts of 1905, varz at thet time re-enacted, u.nchanFed, in the oodification of 1911 as Artiale 2865, OSnotad above. Thusprior to 1911 no authority existed <nthe Texos statutes SOP the Somation of districts composed of twoor more counties or POPthe extansion of district boundaries
aoross county lines. Carlton Independent sohoG District

v. Jordon, nupra.Hon. E. L. Shelton, Pa@ 7

SSnce. thelegislative sots, ex@essly or impliedly permitting county-line districts were invalid at the time of their enactment, no subseuent amendment to the Constitution, outhorixikq the Legislature to provide for the formation of county-line distriots, would have the effect to re-enaot then end thus to infuse life into e thlnr tbct never haderiatenoe. Senooa XininC Co. r. Secratzry of State, 02Xich. 573, 47 17.2. 23, 9 L. R. A. 770; Mnaz v. :%litb, 133 Gel. 102, 65I?. 3CQ( StBta 3x ssl ~tCnw2son **V.** %Ifly, 20 **t&Q.** 427, **22 p.**  1054, 19Am.St. iiep. 374; Carlton Ind. Sohool, Mat. v. Jorcon, supra.

'Seturn nox to the valldsrinh; portion of the amendmentof lQG9, Nhiah appearsin our present oonsti-, tution as section 3a of Article VII. This section rezds 88followsrTZvery school district heretofore formed, whether formed under the Cenaral la%%ar by apeoia1 act, andwhether the territory embraced within its boundaries lies wholly within a slnr,le county~or Fartlg in two or more aountiea, is hereby dcoltred to be, andfrom its formation to hare been, a valid and~lawful district.

. .*
It was held by the SupremeCourt in Gillespie et al v. Li&htf"oot, Attorney Cenersl, 103 Tex. 359, 127 S. i:!. 799 (1910), thut the~defect in county-line districts due to wantof oonstitutional authority to form themwas cured by this portion of the amendmentof 1909, andthat all suoh dintriots, whioh hadnot been previously disnolved by IeCal means, tsere thareby declared to have been valid from the time of the5.r formation.

The oourt in that case WDE ooncerned with a countylfne district wh~ohwnsEom~sdas such. Yiehave been Uneble to fin& eny ease which involved the question of whether the anm&nant of 1909would ala0 havo tho effeOt of validating a district, wholly within a county at the time of i<s formation, as to territory In another county added prior to the adoption of the amendmentbut after its formation.
It ie our opinion, however, that the amdndment did not hova that effect for three reaaonsr

1. Seotion3e of Article VII is limited in
its soap* to districts which had novalid existenoe inRon. E. L. Shelton, Peg9 8

the 11&t of Parks v. !7ast bcoauso no valid lam euthorized their-form&ion.

*It is oesy to see that a purpose, probably the Mainepurpose of the amendment,

‘was to save from,destruction the countyl.+nc distrlots affooted by the decision referred to. That muohIs certati from .the history as well aa from the lanCua~,e of the amendment.” Gillesplo v. LiChtfoot ( sgra.
Those distriots wbioh wre not so affeotod by the decision 1.nParks v. 33st ant those whose valid existence was unquestioned needed no suoh sesiotanoe.

2. The amendmentdid not concern itself wf.th valid.aCi,ng unauthorized actions by validly existj,ng districts, but only with circumvont~ng original laok of aonstitutional authority for the formation of those .rhich hadnovalid existowe.

“Its (Sec. 39.of Art. VII) interpretation literally mi(-ht establish the validity past andpresent of evary school district that had at any tima before its adoption beon formed in Texas by general or speoial le:?, although it mayIOn&a~0haVt?passed out of existence andbeen absorbed by other organizations. Ofcourse, i.ts purpose was not so comprehenoivs. Unquestionably, it was intended to give oonstltutional and local sanotion to such districts an for want of it v!ara invalid, to save andnot to

’destroy riGhta.* Cillssyfe v. Lightfoot, silpra.

3. The amendment, as wehsve noted, did not havo the effect ,oPvalidating the statutes daolared unoonstitutional byParks V. Kest. Those statutes under which the Blo Vista distriot purported to act wore ‘unoonatitutional at the time of the annexstion and continued to be invalid after the adoption of the amendmentuntil thefr re-enactment. Corlton Independent School Dlstrfct 9. Jordan, supra.

$7~oonolude, therefore, that the Rio Viota Independent Sohool Distriot whiah at the time,lay ;!holly in Johnson County had no authority~jn 1906 to incorporate Uithin ita boundaries territory thut lay in Fiill County andthat lts,~pUrported annexation of suoh territory WasRon. E. L. Shelton, Page 9

I,nvalid. Since the disputed portion of the Joseph Dickson Survey could not have been validly annexed to that district, It follows that the GlumSchool. Rlstrict a+.:the tir.lJ it acted liZid the right to include it xithin its boundaries andthat if all the requirements of Cectlon 149, Aats 1905wore complied t,4th, (and wehave no reason to believe they .i’iere not.), its aotion in **LO dOinp,**  **was Valid**  andthe entli.re Joseph Rickson Su:vey then became part of that. district.

Althouch webase ouii oonclusio?l OIIthe oonstruction that. the valifi.nting portion. of the Axend.ment of 1909WY intended to j.nfuse 

### lift into distrrots \;hose valid existence YV’ES denied by the deoision in Parks v. ‘cast; end ;:‘Rsnot concorned v;i-:thadd.itfons of territory to vel.id districts, we ncsd not rol.g exclua-lvcly on that wound.

i’u’e do not believe that any court :~tlll look with favor on a claim such as 

### this which has been permitted to lie dormant for more than 53years.

TheElumIndependent School Ristricc became a rural hi& school distriot in 1929. Suoh distriots were validated $n all respeots by tb.ree enactments o ’r the 4lst LeOislsturo. Qee Article 2802a, Article 27021 andArtiu ole 27423, Sac. 2.

Ouxconslusion in regard to your first question makesunnecessary an answr to youx second question.

Trusting that the foregoing information will. fully answer your inquiry, wemeYours very truly

i,:., .< Roberj!@E. kepke

‘..i~,,.:;~,,7.~,,

I,~ Assistant