OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Bonoreblo X. I,. Shelton 

County Xuditor 

Johnson Couzity 

Claburne, Toxee 

Dssr Sir: 

varfld b.y the 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 arid its territory wee loft 

czhool diotrlot. Includad 

Lohool Distriot is the Joseph 

Dickson survey which wes edjaoent to the 0. 

%oore Survey. The latter survey lies pertly in 

Johnson Courrty et-id Fartly in Hill County. 

On !Zay 28, 1906, a najorlty of tho queliffod votera llvlne within tho bounds of the 
: 

.._ 

205 

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

,foccph Dickeon Swvey ana ocou_~ying 5 portion 

of3.tklat surVeyI filed s petition with tha prasidC%lt Cf the Eoard of Y’rusteec o.f the 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 

RIO vista Scf1ool District, I~uYsuent to tll1.s 

peti,tion, ths Eosrd of Trustees of the Rio Vpste Indopcndent School District, by resolution, 

inoorgoratsa into and nm?e jxrt 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: 

“On this the 25th day of Zag 1905 the 

Presiilent of the Board of 4.?rusteas eubmj.ttsa to the 

board the petition Fn writing 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, and the 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?~, 

&nd tllat the signers of.seid petition Constitute 8 

mjor:ty of the re.,, -*dent qilalifiua voters of said 

territory; therefore, me it Resolved by the Ijoard 

of y;ustcos of’ the stlia R,lo Vista Iriiel>endent 

fichool District that the fclloviing described ter-’ 

rltory,abeinp, the some territory which is described 

in aala petl.tfon be, sna the nsme heraby is r3- 

ce.iQed .es E,n sdirition 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@Ge of 

Hill cowkty, an eloot.lon was hsla at ijlun, Texas, 

v&i& spperently hr;a EiS its objsotivo tho formtion 
Hon. 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.n Novezber, 1900. The onti.re 

Yoseph Dickson Survey, includkn.~ th5t portion 

thsl*2of which hcd prericnlsly pctitioncd to 

becom a part of the Rio Vista ImieRen~ant 

School District, v&=ia medo a part or t113 E3i? 

Elurn Indegencient School Distriot by virtue 

Of that election. 

The Rio Yiata School District in 

Johnson County was lncoryoratod In 1903 

as a tom for school purI>osaa only, undar 

pme,ral law, 5n 002q7licnoe 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 fork the opinion of this dapartaent 

t\vO C&e~ti~.!lLi, vihich vie quote BE f'OilO%S: 

n1.a Upon the baois of the f&0%6 presented, 

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 and othe~a as presented to end coceyted 

by the Rio Vista School Doard of Xay %5th, 19067 

"2. If the Blum Sahool 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 end bounds 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 and fro:3 facts contained ?m your 

latter that such Eoard and t!:c petitioners in the disputed portion of the Jo~-sph Diokcon 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 to 
Eon: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 85 foilo~~: 

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 may herc;F;ftor ba j.ncorporated, for free SOhO pLWpOS%S, shall c0ntol.n 

10Sa than twenty-five square miles; and thereafter the majority of ths inhebftanto, qualified 

to vote for members of the Legislature, of ony 

territory sdjoininy, the limits of the town and 

ville~e 50 incorporated, shall denim such 

territory to be added to and become a part of 

such &mzporutea tom or wimp ITOF froa s0h051 

purposes only, and a mjorltp o? such yualiriari 

voters S~FJI R JMtitiOn t0 that Gffect, sny three 

of such quelificO voters xxy file ~3iti-1 tb,o prt30- 

ident of the Poard of Trustees of sunh insorporated toun or vilfege the said petition, fully 

desorib?ng by metes and bounds 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. 

Upon so 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 RO that 

the :shole, Vihsn so inoreased will exca?d t:;lontyfive squzrc miles, the said board 5T trustees, 

by resolution d~uly entered upon its minutes, may 

rec~lvo suoh propo3ad territory 0s an addition to, 

en:'. become R part of, the ooqporate 1imitS Of suoh 

t5vn or village; a copy of v;hlch resolution, oontain3ng, a doscrdption of the c-iadea tersltory, 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 80 received 

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

Before entering into a discussion of the lepality 

of the eation 0s ~1% flill County snd Hum School District 
Bon. E. L. Shelton, Pege 5 

authorities let US first 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. 3 OS Article VII of the Constitution, diioh authorized the Le@lature to farm school 

districtG road GS folloi’;s: 

r.. . and the L6piSlatUre may ulso 

provide Sor the formation of school dlstj?iots 

withfic all or any of the counties OS this 

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 OS school districts cmitaining 

pa&s of Tao or mare counties, conea oounty-line school 

districts. Nction 55, Chapter 1;: 4, Acts OS 1905, 29th 

Le~~lsla’;ur6. These two stututr;s were intagral parta OS 

the “6chool Code”. 

Eo speoiffo lan$uege is to be Sound in %otion 158 

pormittiniT, the ext ension OS Independent 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 and was contained in the sme body OS ~RIY jiave 

those districts, under rano&zed rules of statutory construction, 3.~1plied authority to so extend their bourdarien. 

Carlton Independent Sohool District v. Jordon, ot nl, (31~. 

App., Eastland, 1928) 0 S. 3’. (2a) 384; rcveraed in part, 

(co~m.~ &q., EFC. )J, 1930) E5 6. I;‘. (2d) 610. Cea also 39 

Tex. Jur., Sootion 13r3. 

ln 1906, however, the Guproloe Court 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, and that 

seation 3 OS /.rtiqle VII of the Constitution required that 

all school districts be kept wvithin county boundaries. 

Parks v. Xeet, 102 Tex. ll, 111 9. ‘8. 726. 

All acts by the Legislature authorizing. the 

fomation of tij.atri0t.a containing parts. of tw3 or Icore 

oo~ties wore thus held UncWstitUtiOnal. Reocssarily 

any Implied authority attributed to independent clistr@ts 
iion. E. L. Shelton, Page 0 

t0 extend their boundarien.earosfi county lines under 

Saction 153 v;es also unconstitutional. 

Tha l@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 and did not aSfact 

th3 St~ltUQ of t!i9t eTEti arj Ullclcimcd territory. 

IT40 vista dictriat 

The 

had no p2Z.w cl.tiim to this urea, and 

.thb R111111 district hc;d a Pi&h%, at that time, to include 

it v?ithln its boundaries. 

~?GWVer, aftor the decision in Parke Q. Xeot,, 

SeCtiOn 3 Of hrticle lt13 of the Constitution, was a;l:%udod 

on &otember 24, 1.909. Thu a:G:atiant, in e.ddition to 

supplying thr; nscoscory oonstitutlonal authoritv to the 

Lc~l~loturs to provlc?o for the formation of sch.;)01 d.istricts oomposud of ports of two or more counties, validatsd all prior sxisting county-line districts. 

The portion of the anendnent pi-ovidiog the 

Le&lature with authority to form dfstcicts crossing 

GOUnty li.naS was pUr@ly enabling and ~8s in no sense 

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 same aonstitationnl amendment had been 

expressly validated.** 

The Legislature did not exorcise its power 

under the emendrm!nt until 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 OS Zaction 

155, Acts of 1905, varz at thet time re-enacted, u.nchanFed, 

in the oodification of 1911 as Artiale 2865, OS notad above. 

Thus prior to 1911 no authority existed <n the Texos statutes SOP the Somation of districts composed of two or 

more counties or POP the 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 had eriatenoe. Senooa XininC 

Co. r. Secratzry of State, 02 Xich. 573, 47 17. 2. 23, 9 

L. R. A. 770; Mnaz v. :%litb, 133 Gel. 102, 65 I?. 3CQ( 

StBta 3x ssl ~tCnw2son V. %Ifly, 20 t&Q. 427, 22 p. 

1054, 19 Am. St. iiep. 374; Carlton Ind. Sohool, Mat. v. 

Jorcon, supra. 

'Se turn nox to the valldsrinh; portion of the 

amendment of lQG9, Nhiah appearsin our present oonsti-, 

tution as section 3a of Article VII. This section rezds 

88 followsr 

TZvery school district heretofore formed, 

whether formed under the Cenaral la%% ar by 

apeoia1 act, and whether 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, and from its formation to hare been, a valid and~lawful district. . .* 

It was held by the Supreme Court 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 want of oonstitutional authority to form 

them was cured by this portion of the amendment of 1909, 

and that all suoh dintriots, whioh had not 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~oh wns Eom~sd as such. Yie have been Uneble to fin& eny ease which involved the question of 

whether the anm&nant of 1909 would 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 amendment but 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 no valid existenoe in 
Ron. 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 Maine purpose of the amendment, 

‘was to save from,destruction the countyl.+nc distrlots affooted by the decision 

referred to. That muoh Is 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.n Parks v. 33st ant those whose valid 

existence was unquestioned needed no suoh sesiotanoe. 

2. The amendment did 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 had no valid existowe. 

“Its (Sec. 39. of Art. VII) interpretation 

literally mi(-ht establish the validity past and present 

of evary school district that had at any tima before its 

adoption beon formed in Texas by general or speoial le:?, 

although it may IOn& a~0 haVt? passed out of existence 

and been absorbed by other organizations. Of course, 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 

and not to’destroy riGhta.* Cillssyfe v. Lightfoot, silpra. 

3. The amendment, as we hsve noted, did not 

havo the effect ,oP validating the statutes daolared unoonstitutional by Parks 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 amendment until 

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 

and that lts,~pUrported annexation of suoh territory Was 
Ron. 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 Glum School. 

Rlstrict a+.: the tir.lJ it acted liZid the right to include it xithin its boundaries and that if all the 

requirements of Cectlon 149, Aats 1905 wore complied 

t,4th, (and we have no reason to believe they .i’iere not.), 

its aotion in LO dOinp, was Valid and the entli.re Joseph 

Rickson Su:vey then became part of that. district. 

Althouch we base ouii oonclusio?l OII the oonstruction that. the valifi.nting portion. of the Axend.ment 

of 1909 WY intended to j.nfuse lift into distrrots 

\;hose valid existence YV’ES denied by the deoision in 

Parks v. ‘cast; end ;:‘Rs not concorned v;i-:th add.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 53 years. 

The Elum Independent 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 u Article 2802a, Article 27021 and Artiole 27423, Sac. 2. 

Oux conslusion in regard to your first question 

makes unnecessary an answr to youx second question. 

Trusting that the foregoing information will. 

fully answer your inquiry, we me 

Yours very truly 

i ,: ., .< 

Roberj!@ E. kepke 

‘..i~,,.:;~,,7.~,, I,~ Assistant