DAN MORALES

ATTORNEYGENERAL 

# QMfice of tip !&tornep @met-at Mate of 25exae
June 17. 1994
Mr. Kenneth H. Ashworth Commissioner Texas Higher Education Coordinating Board P.O. Box 12788 Austin, Texas 78711 Opinion No. DM-297
Re: Whether the Wharton County Junior College District may disammx the Needville Independent School District (RQ-545)

Dear Mr. Ashworth:
You have asked us to interpret the law of disamtexation under chapter 130 of the Texas Education Code. We understand that you ask this question at the behest of the Needville Independent School District (“NISD”), which apparently desires to dissolve its participation in the Wharton County Junior College District. Specifically, you ask the following questions:

1) Are there steps the [NISD] can follow to dissolve the district’ s participation in the Wharton County Junior College District. If so, what are they? 2) If NSD] can remove itself from the junior college district, does NSD] have to establish or join another junior college district? Article VII, section 1 of the Texas Constitution requires the legislature “to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” Attorney General Opinion M-1235 (1972) at 4. Based on article VII, section 1 and case law thereunder, this office previously has determined that, unless another constitutional provision provides to the contrary, the legislature has the sole discretion to determine the method of annexation or disamtexation of the territory comprising junior college districts. Id. at 5. In addition, article VII, section 3-b of the Texas Constitution “recognizes that the Legislature may authorize changes in the boundaries of junior college districts so long as outstanding bonds are not abrogated, cancelled or invalidated. ” Id. Thus, a junior college district may disamtex territory only if the legislature statutorily authorizes it to do so and only in the manner that the legislature has provided. You cite two sections of the Education Code in which the legislature expressly has provided for the disannexation of territory comprising a junior college district: sections 130.069 and 130.070. Section 130.069(a), which the legislature enacted in 1963 (see Acts 1963, 58th Leg., ch. 465, at 1180), authorizes a junior college district to disamtex any territory lying within its borders that also lies within the borders of another junior college district. You indicate that this situation does not exist here.

p. 1586Mr. KennethH. Ashworth - Page 2 (DM-297)

Section 130.070(a) authorizes a countywide independent school district junior college district1 to disannex the territory of an independent school district in an adjoining county ifthe independent school district was the only school district armexed to the junior college district and if the junior college district has no outstanding bonded indebtedness that it incurred a&r annexing the independent school district. Furthermore, section 130.070(a) rarely mentions disannexation without also mentioning “creation of a separate junior college district.” In our opinion, therefore, section 130.070(a) requires the disamxxed independent school district to create a separate independent school district junior college district.~ In summary, an independent school district may dissolve its

(1) anilMkp&nscbooldistrictjuaioroollege; (2) a city jmdor college; (3) a nrdonjmior college; (4) a countyjunior college; (5) ajointumIy junior adlege; and (6) apobUcjmioradlegeesaptordivisionofa@onslwIlege diatria Chapter130dthEducationCodcprovides~fortbecstablishmmtof~hautborizcdtype(d plblicjonhrcoU~ SeeEduc~Ccdech.l3O,subch.B@nwidingforcstab~ofindqmdQlt schooldblrictorcity

juniorc&legs);id. sub&. C @mvidiq forcstablishamt ofunion, county,orjointanmtyjunioradleges). (ln1985thelc&lamenpealalsubchapterFofthcEducationCade,which putaid IO

IheesIablishmwtof regionalcollegediskts. Sre Acts MS, 69th Leg., ch. 302, &? 3.) By “counpdcindcpmdentachooldibtrictjuniorcollegc~wc wderawd seaioo 130.070(a) due Educakm C& to indicate a junior adleg districtthat is au&or&d by @on 130.004(a)(l) ood tstaMirhdwderchapbrl30,subchPpterBaadthatisbwnded,asistheindependcntscbDoldiariqby IlEcfamIyunes.
ZTbc legishm enactedse&on 130.070in 1972. See Acts 1972,62d Leg.,4th C.S., ch. 16.0 1, at 37. NoIatdy, prior to the emadmwt of EccIial 130.070, Ihis ooicc issued AtInrncy General opinioo M-1073 (1972), io which we coti&&, amongo&r things whaher the Ckkws JuniorCollegeDi#rict migludisaMexIheMidIand IndepardentschoolDiict,IherehycrcaIingIheMidIaodlndqrcadeot SchoolDimict as a seprak juniorcollegedkict. Attorney General OpinionM-1073 (1972) at 1. By thatthe, ofworse, tk legislature had enactedsection 130.069of the Education code, but it had notyet emackdse&m 130.070. This 05%~determined that no UristinS

statutg au&r&d the OdessaJunior College District to disanaar the Midland hdqmdent School District. Id. at 2. The opinion further statcdtbat,ascx.istinglawsdidnotauthoriz.esuchadisannexaIion,

the only reworse would be le&lative action. Any law authori?& such di~tionwouldhwetobcagmallaw,underi\lticleUI,Scctioo56ofthe Texasconstitution. Similarly,territory

disan~& under a valid law could be formedinto a ncwdistria,butthatmustbedoneunderaMilablegcnerallawandnotby~ ataMe. Id

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participation in a junior college district pursuant to section 130.070(a) if the attendant ciramitances satisfy the following prerequisites:

(1) The junior college district annexed the independent school district. See Educ. Code $5 130.064 - 130.068 (providing for annexation of territory to junior college district). (2) The independent school district is the only school district that the junior college district has annexed. (3) The independent school district is in a county that adjoins t&e junior dege district. (4) The junior college district is an independent school district junior college district, established pursuant to chapter 130, subchapter B of the Education Code. (5) The junior college district is countywide. (6) The junior college district has paid off any bonded indebtedness it huxured since the junior college district annexed the independent school district. (7) The independeatt school district will create a separate junior college district.

Senate Bill 19, which, when mmctcd,arkkd section 130.070 to tbc Education Code, was itadwed atthe fomthcalledsessionofthe 62d Legislature.This officecomdered, in AttomeyGeneraI OpinionM-1235 (1972), the applicability of kste Bii 19 aad its compnnion bii, HouseBiU 33. llmt ~inionquotrdthcfou~~factsfromthe~~sleaatothis~~:

In their application,[SenateBill 19 and Homx Bii 331, these biUswill applyonlytotbeOdez%JtiorCdlegeDiict. Apartoftbatdistrict comprisingthMidlaad~ntScboolDistrictwantsalegal~ra dimnnexitselffromtheOdessa Junior College District. AttorocyGamal Opinion M-1235 (1972) al 1. In answerto tk requestor’s inquiries regading the applicabiityofthebills, the opinionconcluded that“the bills in questionapplyto anyidependent school d&rid which is the only school districtthat has been amxxed to a county-wideimkpendent school dislrict junior college districtin an adjoiningcounty.” Id. at 6. The opinion tkttheradvisedthat “the provisionsof these bii wiU apply to deannedon procedun of territories of an idepdent school district which is theonly schooldistrict thathasbeenamxxcd toa cwMywide independent schooldistrict junior wllegc districtin an adjoining county, whether such territory has been annexed prior to or wbseqowttothe mmcbnent ofthesebills.” Id.

p. 1588Mr. **Kenneth** H. A&worth - Page 4 **W-297)**

If all of these criteria are met, section 130.070(b) - (t) provides a procedure by which

“[t]he proposed disanne.xation and creation of a separate junior college district” must occur.3
We note that Needville lies in Fort Bend County, a county adjoining Wbarton County. However, we have not been advised whether the ciraunstances sat@ the prerequisites to the application of section 130.070(a) of the Education Code. See supru at 3 @sting prerequisites for the application of section 130.070(a)). Accordingly, we cannot detemtine whether section 130.070(a) authorizes the Wharton County Junior College District to disaMe!x NISD. If NED is, in fact, “the only school district that has been ammxed to a countywide independent school district junior college district in an adjoining county.” and if “the countywide independent school district junior college district has no outstandhq bonded indebtedness which was incurred a&r the annexation of NED, then section 130.070 authorizes the disannexation, and NISD must comply with the procedures for disannexation and creation of a separate junior college district that section 130.070 articulates. See supm note 3 (describing procedure).

‘~130.070@)requiresapetitionsignedbyatleadfivepacmtdtbe~~ elcdors~tbcindependemrbooldistri~psJ;ingdisanmcatontoinitiatcthcpmposcddisanmcation andcreationofasepamtejuniorwllegedistrkt Tlxpetitionmustbepmmntedtotbboardofbustecs (tbe=bcd”)oftkiadepadeatscbwldi6lriuseekioglobc- Bduc.Code~130.070@). If thcboardappmvestbepetition,itmustforwardthcpditiontotbccoOrdinating~Tcxascdlcgeand University

System(the %oonUwting board”).Id. Tkmordiaptiogboardmuslapprnvcutepctitionifthcwnnumningboardflmtstbepetitionm k io o&r and if

all s&totmy provisions

bavc bcw wmplied

with.Id.

0 130.070(c). After the

. . txlomaqboardhssnotifledtbebwrdoflheeoordinatingboard’sapprovaltbcboardmuaorderao ekdionndlcasibao2Odaysnormorethao3Odaysaftertheorderisissual. Id.Electionballctsto ~fmvidcvding~nrcrc~ tk prtqcsih mnstpIwide as follows: lxion oftk - ~JmdorC!oUegeD&ict,andcreationofthe~ JuniorCollege Disnietwiulbwndsriescotamiowswitbtibmmdarieadtht - rodependent Moo1 Distkt.” Id. Within1Odaysafterholdingtheelection,theboardmustcanvam theretorosand&clarea tradt. Id. p 130.070(d). “lfa majority of the votescastarein favorof d&me&on and creationof a sqamte jmdor wllege distrid, such imkpendent school district shall be deemed disanncxcd and wwtitutedasasepamtejuniorwllegedistrict.” Id.Chapter130,subchapterBoftheEducation &de, ptahiog to Utcestablishment ofaa independent

schooldistrict

juniorcollegedistrict(see supa nctc 1). pmvi&a the pmwdmv,the independentschool districtmust use to wzate the sqamte junior wllege district. Id # 130.070(e). Anyof&r mpresentbtg

the disaonexedindependent schooldistrict

on the governing

bodyofthe amntywik indepeodeot school district junior college ditict is terminated,althougJ~ the remaining members of the goveming bodycontinueto serveforthe termsforwhich theywereelected. Id. Finally, anypetitionfordkmmexationand cm&on of a sepamte juniorwllege district

may includea request

for a0 electionto &ctdc whetherthe seyate junior wllege districtmay issue bonds, levy bond taxes, and lmy msi&nmw taxesin theeventthe juniorcollegedistrict

is cxated. Id.

5 130.070(f).

p. 1589Mr. Kenneth H. A.&worth

_ Page 5 (DM-297)

In addition to sections 130.069 and 130.070 of the Education Code, article 2815~ V.T.C.S., ccmtinues to authorize the board of trustees of a joint-cmmty junior college district (see Educ. Code 4 130.004(a)(S); see &o id. ch. 130, sub&. C (providing for establishment ofjoint-county junior college)) to disannex any territory located more than 55 miles i?om the location of the junior college, if a majority of the property owners in the territory desiring disammxation have petitioned the joint-county junior college district to be disannexed and ifthe board of the junior collegedistrict consents to the disannexation. NeedviUe is located less than 55 miles from the location of the Wharton County Junior College. Consequently, article 2815p, V.T.C.S., does not apply in this situation.
#UMMA.RY
Three statutory provisions authorize the disammxation of territory from ajunior college district: sections 130.059 and 130.070 of the Education Code, and article 2815p, V.T.C.S. Neither section 130.069 of the Education Code nor article 2815~ V.T.C.S., authorizes Wharton County Junior College District to disa~ex Needville Independent School District. We are not presented with sufbient fitcts to determine whether section 130.070 of the Education Code authorizes the disamtexation. If section 130.070 of the Education Code is indeed applicable to the situation, that statute governs the procedure for the diwmexation.

DAN MORALES Attorney General of Texas

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JORGE VEGA Fii fbsimnt Attorney Gene-d
DREWDURHAM Deputy Attorney General for Crimind Justice

WILL. PRYOR specialcounsel
RENEAHIcKs State Solicitor
SARAH J. SHIRLEY Chair, Opiion Committee prepared byKymbedy K. Oltrogge Assistant Attorney General

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