June 1, 1939
HonorableF. E. Mitchell County Attorney CallahanCounty 'I Raird,T&as
Dear sir: opinionHo. o-778 Be: Election8to consolidatedistricts with anotherconsolidationelection pending.
We are in receiptof your letter of May 27, 1939,in which you request the opinionof this Departmentupon the questionbased upon the ~followlngfacts.
The CountyJudge of CallahanCounty upon proper petitionha8 orderedan electionto determinewhether or not BairdRidependentSchoolDistrict and Midway Comon School Districtshall be consolidated.Another ~ petitionis now being circulatedin Clyde IndependentSchoolDistrict and in Midmy CommonSchool Districtfor ths purposeof callingan electionto determinewhether the MidwayCommon SchoolDistrictend the Clyde IndependentSchoolDistrictshall consolidate.
You wish to know whether the CountyJudge should order an electionto determinewhether the Clyds and Midway Districtsshall consolidate upon presentationof the proper petition,in view of the fact that he has alreadyorderedthe electionfor the Raird-Midwayconsolidation.
Article2806,RevisedCivil Statutes,1925,.provides,in part, as follows:
"On the petitionof twenty (20) or a majorityof the legally qualifiedvoters of each of severalcontiguouscommonschool districts,or contiguousinaepandentschool districts,praying for the consolidation of such districtsfor school pmposes, the County Judge shall issue an order for an electionto be held on the same day in each such district.. . . Comaion school districts may iulike mannerbe consolidatedwith contiguousindependentschool districts.. ."
Our SupremeCourt in State, ex rel Georgevs. Raker, 40 S,.W. (2d) 41, held:
"TO our minds, this suit presentsbut one question: Did the County Board of Trusteeshave the Rower to defeat the right of the people to by vote, determinethe questionas to whether HonorableF. E. Mitchell,June 1, 1939,page#2 (o-778)
the districtshouldbe incorporated by re-districting the territoryinvolvedafter the electionhas been duly and legallyor&red and advertised,and while such election was still pending? We think to state the questionis to give a negativeanswer thereto.
"It is our opinion,that even if it be concededthat the orders of the CountyBoard with referenceto the territoryof District #16 would have been in all respectslegal in the absenceof the pendingelection,still the right of the people to vote 01 incorporation, having been first lawfullyinvoked,would not be interferedwith or defeatedby the CouutyBoard pending the holdingof the election,and the declerationof its result8."
We recognizethat the foregoingcase i8 not specificallyin point,but the 8itW3tiOn8are somewhatanalogous. When an electionhas been calledand the right of the people to vote upon the que8tioT.T of whether two districtsshall consolidate,has attached,their right to freelyexpresstheir will should not be interferedwith or embarrassedby callinga second electionto determinewhether one of these districtsshould,conaolidate with a third. We find no authorityin the statutesfor holdingboth election6at the sams time as suggestedin your letter.
This~Departmentis of the opinionthat the County Judge shouldnot call au electionbased upon the Clyde-Midwaypetitionuntil the electorateof the Baird IndependentSchoolDistrictand Midway CommonSchoolDistricthave had au opportunityto vote upon the questionof whether the Baird end Midway district8shell consolidate.
Yours very truly,
ATTOHWEY-0FTEJLA6
='/ Cecil C. Camneck
Bs Cecil C. Camack Assistant
APPROVED S/wC.m A- -0Fw
APPROVEDOPINIONCO-E BY H. Q. B. CHAIRMAN