Central Ed. Agency v. Independent School Dist. of City of El Paso

• Decision Date: 14 January 1953
• Docket Number: No. A-3666,A-3666
• Citation: 152 Tex. 56,254 S.W.2d 357
• Parties: CENTRAL EDUCATION AGENCY et al. v. INDEPENDENT SCHOOL DIST. OF CITY OF EL PASO.
• Court: Texas Supreme Court

Page 357

254 S.W.2d 357

152 Tex. 56

CENTRAL EDUCATION AGENCY et al. v. INDEPENDENT SCHOOL DIST. OF CITY OF EL PASO.

No. A-3666.

Supreme Court of Texas.

Jan. 14, 1953.

Rehearing Denied Feb. 11, 1953.

Price Daniel, Atty. Gen., and Charles D. Mathews, Chester E. Ollison and E. Jacobson, Asst. Atty. .gen., Austin, for petitioners.

Jones, Hardie, Grambling & Howell, El Paso, Ralph W. Yarborough and J. C. Hinsley, Austin, for respondent.

GRIFFIN, Justice.

This suit involves the construction of Article 2756b, Vernon's Annotated Civil Statutes, hereinafter referred to as Senate Bill 274, and Section 5, Article 2922-16, Vernon's Annotated Civil Statutes (a part of the popularly denominated Gilmer-Aikin Act). Specifically, it was brought by the School District against the Education Agency to compel the Agency to consider the area of the Fort Bliss Military Reservation as part of the School District in calculating and determining the amount of local funds to be charged the School District under Section 16 of Article 2922, Vernon's Annotated Civil Statutes.

In 1935 the Legislature passed Senate Bill 274, Acts 44th Leg., Ch. 112, p. 299, authorizing and empowering the State Board of Education to establish independent school districts upon any military reservation located within the State of Texas. The pertinent provisions of said Act are as follows:

'Section 1. That the State Board of Education is hereby authorized and empowered to establish independent school districts upon any military reservations located within the State of Texas, upon such terms and conditions as may be agreed upon by the State Board of Education and the military authorities; and such districts may be entitled to enumerate its scholastics, to share in the State per capita apportionment, and such other privileges as are now granted to independent and common school districts.

'And provided, that wherever in the opinion of the State Board Education, the number of children resident upon any military reservation is not sufficient to warrant the establishment of a separate school district, that such military reservation shall for the purpose of this Act be included in any other school district under such regulations as the Board of Education may determine. Provided further, that the Board of Trustees of such district shall have the authority to transfer to any other independent or common school district maintaining adequate facilities and standards for elementary, junior or senior high schools, as set up by the State Department of Education and Southern Association, any school children who can not be provided for by the district of their residence.

'* * * The laws pertaining to independent school districts shall govern said district so far as the same may be applicable, but the State Board of Education may make such special regulations and orders for the government of such districts as they may deem expedient.' (Emphasis added.)

By a unanimous order entered December 4, 1939, the State Board of Education attached the Fort Bliss Military Reservation to the Independent School District of the City of El Paso, Texas, 'as a part of said school district; upon filing of written consent of the Military Authorities with the Board'. The order makes no mention of a transfer of children to another district, nor to the 'inclusion' of children in another district. Paragraph One of the order recites the power of the State Board of Education to establish independent school districts upon any military reservation upon terms agreed upon between the Board and the military authorities; Paragraph Two recites the power of the Board to include the military reservation in any other school district when, in the opinion of the Board, there are not a sufficient number of children resident upon the military reservation to warrant the establishment of a separate district upon the reservation; Paragraph Three recites that the trustees of the El Paso Independent School District have made written application requesting the annexation of the military reservation; Paragraph Four is a finding by the Board that there are not a sufficient number of children residing upon the reservation to establish a separate district; Paragraph Five recites that upon the filing of written consent of the military authorities with the Board, 'that said Reservation be attached to the independent school district of the City of El Paso, Texas, as a part of said school district,' and Paragraph Six provides:

'Be It Further Resolved that the children of legal scholastic age living in the Fort Bliss Military Reservation shall be entitled to be enumerated as scholastics of the State of Texas and share in the State Per Capita Apportionment and such other privileges as are now granted to independent and common school districts.' (Emphasis added.)

The Commanding General of Fort Bliss, at the time, immediately consented and concurred in such action by the Board. At that time Fort Bliss Military Reservation contained an area of 8.98 square miles. No objection to this order, nor appeal therefrom, was taken by any interested party. On July 15, 1949, in response to a telegram sent the State Board by the Fort Bliss Military Authorities, the State Board of Education unanimously adopted a resolution which set out in full its order of December 4, 1939, and provided, among other things, as follows:

'Whereas, since such proceedings were had the Fort Bliss Military Reservation has been recognized as a part of the El Paso Independent School District of the City of El Paso, Texas;

'Now, Therefore, Be It Resolved And Ordered, by the State Board of Education in session this, the 15th day of July, 1949, under the authority vested in this Board by Article 2756b, Vernon's Annotated Civil Statutes (Acts 1935, 44th Legislature, p. 299, Chapter 112) that all Federal owned lands in El Paso County, Texas, included in, composing, making up, or constituting the Fort Bliss Military Reservation be, and the same hereby are, included in the El Paso Independent School District of the City of El Paso, Texas, and same shall hereafter be a part of the El Paso Independent School District of the City of El Paso, Texas, for all purposes and that the children of scholastic age residing on said Fort Bliss Military Reservation shall be enumerated in the scholastic census as being in the El Paso Independent School District and shall be entitled to the same rights and privileges as other children of scholastic age residing within said El Paso Independent School District; * * *.' (Emphasis added.)

This resolution provided it was to be effective when Fort Bliss Military Authorities filed their written acceptance of the terms, with the Secretary of the State Board of Education. The Fort Bliss Military Authorities filed this written consent July 16, 1949, and attached thereto a plat prepared by the Post Engineer showing the military reservation to contain 64,720.45 acres, or approximately 101 square miles.

At the time the Federal government enlarged the area of the Fort Bliss Military Reservation, the added area was a part of various school districts in El Paso County, other than El Paso Independent School District. The taking over of this area by the Federal government did not remove such area from the respective school districts, nor did it serve to change the boundaries of these districts. It is true that the state and all of its subdivisions lost all power to tax or control the area and the property situated thereon, except as may be agreed upon by the State and Federal authorities. But for the two orders passed by the State Board of Education attaching and including such area to the El Paso Independent School District, the area would have remained in, and as a part of, those other school districts to which it belonged at the time of the taking over of such area by the Federal government.

In determining the amount of the local funds to be charged to a school district to finance the Foundation School Program under the Gilmer-Aikin Act, a credit is provided for in Article 2922-16, as follows: 'in any district containing * * * Federal-owned military reservations * * * the amount assigned to such school district shall be reduced in the proportion that the area included in the above-named classifications bears to the total area of the district. * * *' If the orders of the State Board of Education, as above set out, are valid and binding and all of Fort Bliss is included in the El Paso Independent School District, the School District will have a credit of $315,000.00 on its part of the Foundation School Program. The State Commissioner of Education, the State Comptroller and the Central Education Agency, refused to allow this credit, and this litigation resulted. The trial court held the order void and ineffective to make the military reservation a part of the School District for the purpose of computing the charge because (a) the State Board of Education had no authority to enter such an order, and (b) Senate Bill 274 was invalid in so far as it attempted to confer such power on the State Board of Education, the caption of the Act not containing such power. On appeal the Court of Civil Appeals at Austin reversed the judgment of the trial court, and rendered judgment for the School District. 247 S.W.2d 597. The Central Education Agency, et al. applied for and was granted a writ of error to review such judgment.

Petitioners assign three points of error and we will discuss these under only two headings as these two points control this cause.

First, it is contended that Senate Bill 274 did not authorize the State Board of Education to transfer territory of a military reservation from one school district to another for local credit purposes. Under this point it is contended that the Senate Bill only authorizes the State Board of Education to transfer children residing upon a military reservation to another school district where a separate school...