R-693 

### 265

OFFICE OF

A~STM, 

## TEXAS

Hon. W. K. Baldrldge Opinion No. V-340 County and District Attorney Re: Persons qualified Denton County '. to.'vote In an elecDenton, Texas tion held under Article 27425, Sec. 1, V.C.S., as amended by Acts 1947,

. ,y&L$Ij;: s* 30,

We 'refer.

to your letter of reoent date, aokowledged 'bythe AttorneyGeneral on July 25; 1947,' requestingan opinionof thts office‘oonoernlng persons who'may vote In an election called to change or lncorporate a.oommon sohool district Into sn Independent 6 school district under the provisionsof Article 27423, &ction l;V.C,Q,, as amended, by Acts 1947, 5Cth Leg-' lslature,

R;. S., S.:B. 182; Ch. ,311.
Prior to the recent amendment of Article '27423, there existed two methods by which certain oommon'.school.

districtscould be Incorporated: orchanged into an independent'school district. Any oommon school district not ~~clnlcipally controlledand containing seven.hundred

or'more inhabitantsoould; and still may, be changed or incorporated Into an Independentschool districtby conformance with the provisions of Article 2757, V.C.S.' Article-2757 requires that a petition for that purpose be presented to the county judge signed by twenty'ora majority of the resident qua~if'ied voters of~such a districtpraying for an election on the mat- 'This statute further provides that only qualified rs-who are restdentsof the corrmon school district shall be entitled to vote at said election,and lf'a 'majority

of the-votescast favor the proposed inoorporation, the county ji@.ge'shall so find and enter.hls order to that effect.

A secondmethod by whlc~h~such a change might have been effectedprior to the 1947 amendmentw&aHon. W. K. Baldridge - Page 2 v-348

provid@dby:Artiole2742j.i ,Sectlon

l,‘V.C.S.,

enacted In Aotti.1930,

4lst Legisl&Ure; 5th:calledsesslbn, 3. B. 19; oh. 5. Under thie 1930~ Act, any oommba sohool district, irrespective of the number of its inhabitants, could be changed or incorporatedlntp an~lndependent school dlstriCt."A. Q.,OplnlonsHos. 0;6190 and O-3424. Under S. B. 19, whenever S majority of the legallyqualified property taxpayingvoters, togethbrwith a majority of the trust&es of the district,petitionedthe county board of'trusteesto change or incorporate the oonmon schbol distriot into an independent sohool district and furnished~suIYlclent evidenceto said county board that the districtwhen Incorporated would be flnanoiallyable to carry-outhigh school work at a reasonable cost per capita, the county board of trustees had authdrlty to pass an.order incorporating the"sald district;and the same would become an independent school districtwithout the necessity of an election.

This second method of incorporation h+? been amended by the 5Cth~Legislature in S. B. 182. Article m42j, Section 1, as amended,, now applies only to “any common school district ih which there is maintaineda first class hi h school of twelve (12>gradas, offering sixteen (1 )

2 or more.oredlts." In a common school district,

caning within.

the.'speo~lfic

provlalonsof Ari title 2742j, Section 1, as amended, the county judge, upon presentation

bf a petitionproperly signed by twenty or's majority of the legally quallfledproperty taxpaying voters residing in the district, shall call an election for the purpose of oonvertingthe common school district Into an lndependektshhool district. Said amended Act further provides,thatif the'majority of the votes cast favor the ohange, the county board of trustees shall~passan order creating said independent sohool~distriot

and appoint a boar&of seven trustees who shall serve until the next,regulartrustee eleotion under the laws of this State, at which time seven members shall be elected a8 providedby law.

Thus, under the present laws governing the ohange or incorporation of sohool districts,a common school district as described or designatedin Artlole 2742j, Section 1, as amended,may incorporateIn accordancewith the provls:,Sons of said amended statute by an election, or, if it has seven hundred or more inhabitants,it may elect to .Ind'orporate in accordanoe with the provisions of Article 2757, bg'an eleotion.

## ::

Hon. W

. IS.

Baldridge - !Page 3 v-348 

## ~’

Btn ob ~a l otaeol dirtSot bavtw retm hundred or more Znhabitants nay ln6erporatoi&or Article 2742j, Seotion 1, as mended, or uuder Art,iole 875p and Article 2757 provide8 that la buoh an slectlon qurlifled voters who ar% residents of the oommop sohool diEtriot proposed to be lnoorporatbdshall be entitled to vote,” we can conceive of no logical legal basis or reason for construing

Article 2742 quiring that only legal I , Srotion 1, as amended,,asrevoters resldi y qualifiedproperty taxpaying

n& in the di6trict of that particularQtiaractor ace anti led to vote in an elect Ion held th%Feunder

. Certainly,th% Leglslaturo in smendingArticle 27423, Section 1, aaae no such qualifloatloa, nor, 40 we believe, should any such llmltationbe lmpllad.

It is our opinion, therefore,that rll pbrsons who are qualifiedvoters and who are rerident8 of a common school district fallingwithio.theUerignation of Article 27425, Section 1, as amended,ar% entitled to vote ,‘in

an electionheld under’ and for the pur se set out In said amended statute. See Article 295 , : $ V.C.S.

It:

+#a@ not be amiss to direct the attention of those common school districtswhlch,conteraplatecoonaFting or Incorporating. into independentschool dlstricts to the case styled,: BigfootIndependent School District v. Gernard, 116, 9. W. (2d) 804, affirmedby the Supreme court of T%xas in 129 s. WI (2d) 12l3, holding that where, after a common school district has voted a maintenancetax, the districtwas regularlyconverted Into an Independentschool district, the independent school district could not impose the malntenancs tax without having first obtained the approvsl of the votrrs of the new diatriot,notwfthstandlng the independent district embraced the identicalterritory whloh formed the common school dirtriot.

All pqreons who am quallfledvoters and who are residents of **a** comon sohool **UiStriCt** of the derl AiWole 274 8nation and descrlptlonfret out in j, Sec. 1, V.C.S., as amixImI .bj ACtD 1947, 50th Leg., R. S., 9. B. 162, am entitled to vote in an election roqulred there**under** for the oonvrrrlonof such a common sohool-..

Hon. w. 1c. B8ldrldge - Page 4 v-340

dlstriot Into rn independent dohool dlstrict

. Arts. 2757, 2955, V.C.S. verj truly your8 ATTORNEY'QXRHW, OF T'I&Aer



### Ohe8ter E. Ollh~On

Alslstrnt CEO:djm:jt
APPROVED;

T ASSISTARP