We 'refer. to your letter of reoent date, ao- kowledged 'by the Attorney General on July 25; 1947,' requesting an opinion of thts office‘oonoernlng persons who'may vote In an election called to change or lncor- porate a.oommon sohool district Into sn Independent school district under the provisions of 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 oom- mon'.school. districts could be Incorporated: orchanged into an independent'school district. Any oommon school district not ~~clnlcipally controlled and containing seven.hundred or'more inhabitants oould; and still may, be changed or incorporated Into an Independent school district by 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'or a majority of the resident qua~if'ied voters of~such a district praying for an election on the mat-

'This statute further provides that only qualified rs-who are restdents of the corrmon school district shall be entitled to vote at said election, and lf'a 'majority of the-votes cast favor the proposed inoorpo- ration, the county ji@.ge'shall so find and enter.hls order to that effect.

A second method by whlc~h~such a change might have been effected prior to the 1947 amendment w&a

Hon. W. K. Baldridge - Page 2

provid@d by:Artiole 2742j.i ,Sectlon l,‘V.C.S., enacted In Aotti.1930, 4lst Legisl&Ure; 5th:called sesslbn, 3. B. 19; oh. 5. Under thie 1930~ Act, any oommba sohool district, irrespective the number of its inhabitants, could be changed or incorporated lntp an~lndependent school dlstriCt." A. Q.,Oplnlons Hos. 0;6190 and O-3424. Under S. B. 19, whenever S majority of the legally qual- ified property taxpaying voters, togethbr with a major- ity of the trust&es of the district, petitioned the county board of'trustees to change or incorporate the oonmon schbol distriot into an independent sohool dis- trict and furnished ~suIYlclent evidence to said county board that the district when Incorporated would be fl- nanoially able to carry-out high school work at a rea- sonable 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 district without 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 maintained a first class hi h school of twelve (12> gradas, offer- ing sixteen (1 ) 2 or more.oredlts." In a common school district, caning within. the.'speo~lfic provlalons of Ari title 2742j, Section 1, amended, the county judge, upon presentation bf a petition properly signed by twen- ty or's majority of the legally quallfled property tax- paying voters residing in the district, shall call an election for the purpose of oonverting the common school district Into an lndependekt shhool district. Said a- mended Act further provides,that if the'majority of the votes cast favor the ohange, the county board of trus- tees shall~pass an order creating said independent sohool~distriot and appoint a boar&of seven trustees who shall serve until the next,regular trustee eleo- tion under the laws of this State, at which time seven members shall be elected a8 provided by law.

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

:: v-348 ~’ Hon. W . IS. Baldridge - ! Page Btno b ~a l otaeol dirtSot bavtw retm hundred or more Znhabitants nay ln6erporato i&or Article 2742j, Seotion 1, as mended, or uuder Art,iole 875p and Arti- cle 2757 provide8 that la buoh an slectlon qurlifled voters who ar% residents of the oommop sohool diEtriot proposed to be lnoorporatbd shall be entitled to vote,” we can conceive of no logical legal basis or reason for construing Article 2742 , Srotion 1, as amended,,as re- quiring that only legal I y qualified property taxpaying voters resldi in the di6trict of that particular Qtiar- actor ace anti led to vote in an elect Ion held th%Feun- n&

der . Certainly, th% Leglslaturo in smending Article 27423, Section 1, aaae no such qualifloatloa, nor, 40 we believe, should any such llmltation be lmpllad.

It is our opinion, therefore, that rll pbr- sons who are qualified voters and who are rerident8 of a common school district falling withio.the Uerignation Article 27425, Section 1, as amended, ar% entitled to vote ,‘in an election held 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 districts whlch,conteraplate coo- naFting or Incorporating. into independent school dls- tricts to the case styled,: Bigfoot Independent School District v. Gernard, 116, 9. W. (2d) 804, affirmed by the Supreme court of T%xas in 129 s. WI (2d) 12l3, hold- ing that where, after a common school district has vot- ed a maintenance tax, the district was regularly con- verted Into an Independent school district, the inde- pendent school district could not impose the malntenancs tax without having first obtained the approvsl of the votrrs of the new diatriot, notwfthstandlng the inde- pendent district embraced the identical territory whloh formed the common school dirtriot.

All pqreons who am quallfled voters and who are residents of a comon sohool UiStriCt of the derl nation and descrlptlon fret out in AiWole 274 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 oonvrrrlon of such a common sohool *4 -.. - Page 4

Hon. w. 1c. B8ldrldge

dlstriot Into rn independent dohool dls- trict . 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