Kennedy v. Burnet Independent School District

• Decision Date: 24 November 1971
• Docket Number: No. 11884,11884
• Citation: 474 S.W.2d 742
• Parties: T. R. KENNEDY et al., Appellants, v. BURNET INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

Page 742

474 S.W.2d 742

T. R. KENNEDY et al., Appellants, v. BURNET INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 11884.

Court of Civil Appeals of Texas Austin.

Nov. 24, 1971.

Davis & Nobles, Ronald S. Driver, Austin, for appellants.

J. C. Hinsley, Austin, for appellee.

O'QUINN, Justice.

Appellants brought this lawsuit to enjoin the Burnet Independent School District from assessing and collecting taxes within the district as it was constituted following an election in April of 1970 called for the purpose of consolidating the Bertram Independent School District with the Burnet district.

Two of the appellants in this case were plaintiffs in a suit contesting validity of the consolidation election, which resulted in a judgment in 1970 that the election was valid. After the judgment in that case became final, appellants brought this action for injunction and attacked the corporate existence of the Burnet Independent School District.

Burnet district filed pleas to the jurisdiction and in abatement, contending that because issues of the election process were settled in the prior lawsuit, validity of the consolidation could be attacked thereafter only in a Quo warranto proceeding.

The trial court sustained the school district's pleas and ordered the cause dismissed. We affirm the action of the trial court in entering such order.

Appellants bring five points of error. Under these points appellants urge (1) that the county judge of Burnet county was without authority to call the election to consolidate the two districts; (2) that no statutory authority exists designating the county to have jurisdiction of a county line independent school district; (3) that the consolidation of the two districts was wholly void; (4) that it is not necessary that this suit be brought as a Quo warranto proceeding; and (5) that it is not necessary that this suit be brought as an election contest.

The trial court filed findings of fact and conclusions of law. The Burnet Independent School District is located in the counties of Burnet, Williamson, and Llano, and the Bertram district as constituted prior to consolidation was located in Williamson and Burnet Counties. All of the school properties of the two districts involved are located in Burnet County. The trial court found that the county judge of Burnet County, as ex-officio county superintendent, had exercised jurisdiction over the schools of the two districts prior to the election of April, 1970.

Appellants' main onset is the contention that the county judge of Burnet County did not have authority to call the election in 1970 that resulted in consolidation of the two school districts. Appellants argue that since enactment of the Texas Education Code, which became effective September 1, 1969, '. . . there is no way to consolidate county-line independent school districts' because there is no provision 'for the designation of any county to have jurisdiction of a county-line independent school district . . .'

Section 19.231 of the Code authorizes any of several types of 'school districts (to) . . . consolidate into a single school district . . .' including:

'(2) two or more contiguous independent or county-line independent school districts . . .'

The election process to achieve consolidation of two or more districts must be initiated by petition which '. . . shall be presented to the county judge of the county in which the school districts are located, or If one or more districts to be consolidated is a county line district, to the county judge of the respective county or counties Having jurisdiction thereof.' (Sec. 19.232) (Emphasis added)

In enacting the Education Code, the Legislature declared, in Section 1.03:

'The Aim in adopting this code is to bring together in a unified and organized form the existing law relating to the tax-supported educational institutions And to simplify, clarify, and harmonize existing law relating both To the public school system and to the state-supported institutions of higher education.' (Emphasis added)

Prior to adoption of the provisions found in Section 19.232 prescribing that petition for consolidation, in instances where one district is a county line district, shall be presented to the 'county judge of the respective county of counties Having jurisdiction thereof,' the appropriate statutory law provided that upon filing the petition the election orders 'shall be . . . issued by the County judge of the county having jurisdiction over the principal school of each district . . .' (Article 2806, V.T.C.S., repealed with enactment of the Code) (Emphasis added)

Appellants insist that the change in language, from 'jurisdiction over the principal school of each district' (Art. 2806) to 'having jurisdiction thereof' (Art. 19.232), has removed all authority from any and all officers or boards to receive a petition for consolidation of two county line independent school districts and to order an election for the purpose of consolidating the districts. This contention is inconsistent with the specific authority of Article 19.231 to consolidate 'two or more contiguous independent or county-line independent school districts.'

Nor is this contention consistent with the rule followed by the courts of this State for more than thirty years in determining which county has jurisdiction over county line school districts. In Stephens v. Coffee, 133 S.W.2d 184 (Tex.Civ.App. Eastland 1939, no writ), the court held that Shackelford county school authorities, having assumed jurisdiction, and having 'for a long time exercised, control and jurisdiction over the Ibex Independent School District' lying partly in Shackelford county and partly in Stephens county, the county judge of Shackelford county was the proper official to receive the petition and to call an election to consolidate the Ibex district with the Albany district lying entirely within Shackelford county.

In that case the court stated that the only schoolhouse in the Ibex district was located in Shackelford county, although most of the district was in Stephens county, and that the authorities of Shackelford county had assumed and exercised administrative control of the Ibex district long prior to the election.

Petition to call the election was presented from the Ibex district to the county judge of Shackelford county, who ordered the election without joinder or consent of the officials of Stephens county. The court held that the election was valid and had been ordered by the proper authority, and in this connection the court stated:

'Shackelford County School authorities assumed, and had for a long time exercised, control and jurisdiction over the Ibex Independent School District, and that, if material, is as much as need appear. Jurisdiction in fact and right of administration, will be presumed.' (133 S.W.2d 184, 186, col. 1)

The holding in Stephens v. Coffee was cited with approval and followed in Hunt v. Trimble, 145 S.W.2d 659 (Tex.Civ.App. Amarillo 1940, writ ref.). See also Dickens Independent School District v. County School Trustees, 322...