EATTYDECNEY GENERAL

TEXAS

AUSTIN 11. -rExAs PRICE DANIEL ATTORNEY

GENERAL August 27, 1948

Hon. Looney E. Lindsey CountyAttorney Upshur County Gilmer, Texas OpinionNo. V-672

Re: Withdrawal of Bethlehem Common School District from the Indian Rock Consolidated School District.

Dear Sir:

We refer to your letter requesting an opinion from which we quote, in part, as follows:

"More than three years ago Rev Bethlehem Common School District of Upshur County was consolidatedwith the Indian Rock Common School District ofUpshur County, Texas, to form IndianRock ConsolidatedSchool District ofUpshur County, Texas.

"At this time New Bethlehem seeks to withdraw from the Indian Rock Consolidated School District, Pursuant to this desire this communityhas presented to the County Judge of Upshur County a petition signed by more than twenty qualified voters of the old Rew Bethlehem Common School District (nowa part of the Indian Rock Consolidated School District) asking that an electionbe held in the 016 Rev Bethlehem District to determinewhether or not Rew Bethlehem should dissolve or vithdraw from the IndianRock ConsolidatedSchool District.
'Laboringunder the impression that Art* 2815 (b) of the Revised Civil Statutes of Texas, was still in effect, the CountyJudge has ordered the election to be held onAugust 31, 1948, I am enclosing a copy of the election order and a copy of the notices which have been posted,Hon. Looney E. Lindsey,page 2 (V-672)

"Thematterhas been brought to my attention and after studying the situation and the law, I have reached the following conclusions,on the correctnessof which I desire your opinion D D e

"An electionheld in only one of the originaldistrictswhich comprisea consolidateddistrict to determine the question of dissolutionwould be a void election and the Commissioner's Courtwould not be authorized to canvass said election or declare the results of said election.

"The CountyJudge who ordered the election under a mistake of law has the power to rescind said order.

Article 2815, V. C. S., as amendedby H. B. 544, 48th Legislature,Acts 1943, provides:

"Article 2815. Dissolution.

"(a) Such consolidateddistrictsmay, in the samemanner provided for their consolidation,be dissolved and the districts included therein restored to their original status, except that it shallnot be necessary to provide polling places in each district. Bach such districtwhen so restored shall assume and be liable for its prorata part of the outstanding financial obligations of the consolidateddistrict, such prorata part to be based on the relation the total assessed valuation of all property in the districtbears to the total assessed valuation of property in the consolidated district, as shownby the assessment rolls of the district for the current year. No election forkthe dissolution of said consolidateddistriats shallbe held until three (3)years have elapsed after the date of the election at which such districtswere consolidated,

"(b) On the petition of twenty (201,
or a majority, of the legally qualified voters of any common school district9 or in-Hon. Looney E. Lindsey,page 3 (V-672)

dependent school district,praying for the withdrawal from a consolidateddistrict, If three (3)years have elapsed after the date of the election at which such districts
were consolidated,the CountyJudge shall issue an order for an election to be held in the district desiring withdrawal. The CountyJudge shall give notice of the date of such electionby publia8tion of the order in some newspaper published in the county for twenty (20)days prior to the date on which such elections are ordered, OP by posting a notice of such election in the district desiring the election, The Commissioners Court shall at its next meeting canvass the returns of such election, and if the votes cast in said district show a majority in favor of withdrawing from the consolidation, the Court shall declare the district severed and it sffall,be restored to its original status. e 0

The present procedure for the dissolution~of
an entire consolidated school district locatedwithin
one county is set out in Article 2815(a),V. C. S, as amended, and Article-b saidAct, which authorize 1 V. C. S. Subsection (b) of and provided the procedurefor the wlthdrawal from a consolidateddistrict of a district composing a part of such consolidation,was repealedby Section 3 of S. B. 181, 50th Legislature,Acts 1947.

Under the present law, therefore, although a consolidated school district may be dissolved completely, there is no provision authorizing a district comgoslng a part of the consolidated school district to wlthdraw.therefrom, There can onlybe a completedlssolution of the consolidateddistrict under and In accordancewl,$h

Articles 2815(a), as amended, and 2815W,

v. c. so; there cannotbe a partial dissolution of same, It is elementary that the power of the Legislature to provideby general laws for the creation, changing OP dissolution of the school districts of Texas is plenary. Consolidated Common School District 180,5 v, Wood, 112 S,W.(2d) 235, writ refused.

The authoritypreviously placed and existing in the CountyJudge under subsection (b) of Article 2815 to order an election to be held in the districtHono Loeney E. Lindsey,page 4 (V-672) . .

do8irUg withdr8walfpor the consolidatesdistrict upoa presentment of petition of twenty 4~ a majority of the' qualifiedvoters of the district prayingfor withdrawal do4s.n4tnow existby virtue of the repeal of said subsection **(b).**

We are umable to find any provision of law,
now existing,whieh authorizes the qualifiedvoters in

a distrlat composinga part of a consolidatedschool district to initiate a petition for withdrawal of their districtfrom the consolidation,or which authorizes the Countr Judge upon presentment of such a petition to order an election for the purpose in question. The power to dissolve the consolidateddistrict and thereby reestablish the formerly existing compounddistricts is

now delegatedupon the condition that it be done in the
samemanner provid4d for their consolidation. Consolidated Common School District No. 5 v. Wood,, supra.

It has been held that there canbe no valid election if the sane has not been calledby lawful authority, for the right to hold or order an election cannot exist or be lawfully exercisedwithout expressgrant of power by the Constitutionor Le islature. chell, 120 Tex. 324, 38 S.W.(2d 7 Count2 v0 MitT 773.

,Itfollows that the election order under considerationherein is ineffectiveand void, Clearlg,under such oircumstances,the election order unauthorized and void may be set aside or rescinded, Stanford, 176 S,W.(2d) McLemore v* lips, 132 s.w,(2d) 519*770, at page 773; Holden'v, PhilAn electionproposed to be held In only one of the original districtswhich comprisea consolidated schooldistrict, for the purpose of withdrawing from the consolidation,would be a void election. Countz v. Mitchell, 120 Tex. 324, 38 SOW, (28) 773; Article 2815, V. C. S., as amended by H, B. 544, 48th Legislature,Acts 1943; Section 3 of S. B. 1.81, 50th,Leg., Acts 1947o