Case Information
*1 ELmarable J. A. Guest
County Attorney
camp couuty Pittsburg, Texas opiIlion Be. o-llo6
Dear SFr: Re:Independent school district taking over schools of a city under Article 2783b has the right to cdlect &liwWent t-axes assessed by the city for school purposes.
we have your letter in which you say2
9% city of Pittsburg has been operating forthe past forty years under &Mole 2783b, Civil Statutes, and has been lavyingOneDo~rf~school~~uon~cbOneB[~ed
Dellars valuation. An election was held April, 1938, at which election the 8cparation of the schools from the city was a* author ised. There is now, on the city's tax rolls, sona Twenty-five Thousand Dollars in delinWent twea that were levied by the city for school purpeses. The Board of Trustees ef Plttaburg Independent Schsel District, elected since the divorcement ef the city and scheels,are desirous of collecting the delinment school taxes now on the city's '3.a~ rolls. Since they have assumed the outstandingbonds and indebtedness against the school district, they think they have authority te collect said delinquent taxes and.
slpply same for school purposes." As ve understand it the territory of the district has not been changed. You desire to know uhether mr net the present Pittsburg Independent School District has the right to collect the taxes that were assessed and levied for s&eel purposes by the ci* of Pittoburg prior to the change in the s&eel district's organization in 1938 and that have not yet been ma.
1n1905 theLegislature pclsseda law-as SenateBill 218 oftbe29th Legislature, Regular Sassian, which still renmins en the statute be&s of Texas as Article 2768 muI 2771, Bevised Civil Statutes, and which read as folleus:
- - Honorable J. A. Ciuest, Page #2 (O-1106)
“Article 2768. Any city or town in this State may acquire the exclusive control of the public free schools within its limits. Any city or town which has heretofore, under the Act of March 15, 1875, or any subsequent lav, assumed central d the public free schools vithin its limits, and has oontinued to exercise the same until the present time, or any city or town which may hereafter determine so to do by majori* vote of theproperty tax payers of mid city or town voting at an election held for that purpose, amy have exclusive control of the public free schoels vithin its limits." "Article 2771. Schools thua organized and provided for by incorporated cities and towas shall be subjeot to the general laws, so far as the sameare applicable; but each city or tam having control of schools,within its limits shall constitute a separate school district, ,and may provide for the organization of schools and the appropriatiom of its school fuuds in such manner as may,be best suited to its population and condition." The authority for these statutes is f0ma In Article VII, Sectlen 3, and Article XI. Section 10, of the Constitution of T-8, which read in part as folkws:
"Sec. 3. ~. . . the Legislaturermyalsoprovideforthe formationof school district (8) by general laws: . . ." "sec. 10 The Legislature may constitute any city or tovn a separate and independent school district. . . ."
1n 1935 the Legislature passed a lmr known as House Bill 831 d the 44th Legislature, Regular Session, which is now condified as Article 2783b, Vernon's Annotated Civil Statutes of Texas. It provides in section 1, 2, 3, and 4 that "the term %nmicipol school district' . . . ahall include any city or town constituting a separate and independent school district under authority of Sectien 3, of Article VII of the Constitution, and/ or Section 10, Article XX, of the Constitutiom, boundaries of the school corporation being the sama as the boundaries of the city or town" in those cases vhere the uity has a populatien of 30,000 or less, and that "when any Qaunicipal school district' . . . shall desire to have the public schoolvithin its limits separated from muuieipal control" the same shall be dome by one hmudred voterspetitioming for am election, and an election being held in which all of the qualified voters decide whether or not the schoola should be seprated from the city, and if a majority vote for such a separation then an indepandent scheol district is thereby created, and said law (&use sill 831, 44th Jag.) then provides in sections 5, 7, 8, and 9, as fell&:
Honorable J. A. Sues+., Page #3 (0-llO6)
"sec. 5. Except as herein denied or limited, all the power8 conferred upon independentsohooldistricts and/or twns and villagee incorporated for free school purposes only, by Title 49, of the Revised Civil Statutes of Terss, of 1925, andawndm2nt.s thereto, lncludingtherightto anuexccmt~us
~rltoryfcaschool~~es,andthcri~ttolevyb~ and issue bonds for school FUXpOseS, as provided by Senaral Law, are hereby conferred upon any independent school district separated from municipal control under the provisions of this Act; . . ."
"Sec. 7. That the Board of Education or board of trustees of such independent school district, after separation from municipal~control, shall have authority to provide for the taxes of said independent school district to be assessed by the Assessor and Collector of Texas of the city of vhich such school district vas formerly a part, or to have the taxes of said district assessed and collected by an assessor and collector appointed by the board of trustees. Such assessor and collector shall be sllowed and paid such compensation as is now or may be hereafter provided by law."
"sec. 8. The title and rights to all proparty owned, held, set apart or iu any way dedicated tc the use of the public schools of the city or town, and/or heretofore vested in such city or tomand/orthemayor, chairmanoftha commission, city council, city cossission or board of schooltrusteea of such city or town, prior t- separation from municipal control as herein authorized and provided, shall be and are hereby invested in the Board of Education or board of trustees of such independent school district, after separation from municipal control, and shall be managed and controlled by the Board of Education or board of trustees thereof, as is mm or may hereafter be provided by law."
"Sec. 9. Allbouda issuedbyaxdoutstanding against any such city or town, as a mnicipal school district, and all obligations, contracts and indebtedness existing against the city or town, as a nuuicfpalschool district shall become tha obligations and debts of the independent school district at the time of its separation from municipal control, and the said independent school district, after separation from municipal control, shall be held to have assumed the discharge of all such obligati6ns, contracts, and indebtedness, .aud:,tha same shall be eniorceable aud collqztible from, paid off and.dischar@ by thq said independent schools district, as,if originally created.by it as a separate land independent school district; and it shall not be necessary to call an election within and for-such district for the purpose of assuming such bonds and other indebtedness." *4 Honorable J. A. Guest, Page # 4 (0-1106)
We assume that the public schoolsin the city of Pittsburg were controlled by the city under the a~l:hority of Arr:.icle VII, Section 3. and Article XI, Section 10, of tha Constitution, and Articles 2768 and 2771 of the Stat- utes (quoted above), and that the change of the control of the schools from the city to the newly created independent school district was under the authority and procedure of Article 27&b, which did not become a law until 1935.
We think that.prior to the change in the control of the Pittsburg schools, by a vote of the people, in 1938, the city of Pittsburg constituted a school district, and that its status as a school district was distinct from its status as a municipality, even though the same city council or governing bodygoverned the schools end the muMcipalityj and when the change occurred in 1938 it merely amounted to changing the form and name of the school district. The nev independent school district was the sama district as the former city school district, having a different name and a different governing organization. This belief on our pert is supported by the case of Temple Independent, School District v. Proctor, (Tex. Civ. App.) fl 9. W. ,(2) 1051, in which the court, speaking through Justice Daugh, said:
-.. . . It is now settled, however, that, where such city does assums control of its schools, such control, so far as the schools are concerned, doas not become merged into ani become a part of the municipal government as such. And where the tilts commissiq~rs or city council retain control of its public schools it acta in a dual capacity -- one as a governing body of the city in ita status as a municipality, and the other as the controlling or governing board of its schools. The two capacities are not to be confused. City of Rockdale v.
Cureton, 111Tex. 136, 139, 229 9. W. 852; City of Fort Worth v. Zane-Cetti (Tex. Corn. App.) 278 S. W. 183. In so far as it acts in its strictly municipal governmental capacity, its powers are referable to Article 11 of the Constitution and title 28 of the B. S. (Article 961 et saq., as amended (Vernon's Ann. Civ. St..Art. 961 et seq.). Whereas, in the management and control of its schools, its powers are refaable toArticle 7 of the Constitution and.title 49 of the R. 9. (Article 2584 et sea,., as amended (Vernon's Ann. Civ. St. Art. 2584 et seq.) . .." It is apparent from a reading of Article 2783-0 that the board of trustees of the independent school districts created under the act have all of the ordinary powers of a school district governing body, including "authority to provide for taxes", and that "the title and rights to all property owned, held or in any,way dedicated to the use of the public schools of the city . . . prior to the separation from municipal control" vests and passe8 to the new independent school district and 18 subject to ItSi control, when such new district is created, and that the bonds and indebtedness and obligations of such city, "as a municipal,school district",
Honorable J.A. Guest, Page #5 (O-1106)
areasszaed and teken over by the newly created independent school district. We think this indicates that it was the intention of the legislature for the new independent school district to take the place of the old city district and for the new district to take over everything, both tangible and intangible, from the old district, including assets and liabilities. We can not conceive of the legislature intending for the new district to be obligated to pay the old district's debts without having the right to collect the money due the old district. When one person takes over another person's business he ordinarily acquires the "accounts receivable" as well as the "bills payable". We have been unable to find any Texas appellate court case on this particular question, but we do find significant language in 56 Corpus Juris 271, as follows:
" . . . Where a district is dissolved, abolished, or destroyed, and one or more new districts are created from the territory thereof, or its territory is annexed to one or more existing districts, the new or other district or districts. in the absence of contrary statute, become and are entitled to all the property and rights of the old district, . . ."
The authority to collect these delinquent taxes was clearly one of the vrights of the old district," and the new district is entitled to that right.
Our answer to your question is that, under the facts you have given us, the present Pittsburg Independent School District has the right to collect the taxes that was assessed and levied for school purposes by the city of Pittsburg prior to the change in the school district's organization in 1938 and that have not yet been paid.
Yours very truly A!Pl!ORREY -oFTExAs s/CECIL c. ROTSCH By CECIL C. RCPSCH Assistant CCR:PL-ldw
APPROVED AUG. 15, 1939
s/ GESALD c. l4m-N
ATTORNEY CgloERALmTExAs
APPROVED OPINIOA COhQiRTSS
BY R. w. l?.cHAIRMAR