Can one county annex a school district that sits partly in another county without that county's consent?

Texas AG Opinion JM-541: County School Annexation

Plain-English summary

The Estelline school district straddles a county line, with about three-quarters of it in Hall County and the rest in Childress County. The Childress County Commissioners Court annexed the entire Estelline Independent School District to the Childress Independent School District, without the Hall County Commissioners Court taking any action. The Hall County Attorney asked the Attorney General whether section 19.021 of the Texas Education Code lets one county pull that off alone, when most of the affected district sits in the other county. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0541.pdf

The AG concluded it does not. Counties have only the powers the Texas Constitution and statutes grant them, expressly or by necessary implication. Section 19.021 lets a county's commissioners court annex a small school district (one with fewer than 250 students) without the usual petition from the district's voters, but it says nothing that authorizes a county to reach across its boundary and act on territory in another county. The AG treated the real question not as whether the statute requires both counties' consent in so many words, but as whether it authorizes one county to act outside its own boundaries at all; concluding it does not, the other county's concurrent action becomes essential. The AG leaned on Foulks v. China Spring Independent School District, where a court held that one county's unilateral annexation of a school district lying in two counties is ineffective and void without the other county's consent, and it discounted the argument that changing the statute's wording from "each" county to "any" county (when the civil statutes were consolidated into the code) signaled an intent to drop the two-county requirement, since a minor phrasing change in a codification is not presumed to change the law's meaning. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0541.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The Education Code has since been extensively recodified and renumbered, so the section numbers cited here no longer correspond to current law. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule or citation mentioned here.

Common questions

Can one county annex a school district that lies partly in another county on its own?

No. The AG concluded that section 19.021 of the Texas Education Code does not authorize one county to take action affecting territory lying in another county without the concurrent action of that other county. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0541.pdf

Why doesn't section 19.021 give the county that power?

Because counties act only within the powers they are granted, and this statute does not grant extraterritorial authority. The AG explained that counties hold only powers granted expressly or by necessary implication in the constitution and statutes (Canales v. Laughlin), and that section 19.021 merely allows annexation of a district with fewer than 250 students without a voter petition; it does not expressly authorize annexing a district that lies partly in another county. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0541.pdf

Didn't changing the statute from "each" county to "any" county remove the two-county requirement?

The AG said no. It noted that a minor change in phrasing made when various civil statutes are consolidated into a code is not presumed to indicate a change in meaning, so the reasoning of Foulks v. China Spring Independent School District, decided under a predecessor statute, still applied. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0541.pdf

What does this mean for a county-line school district?

That changing its boundaries takes action by every county involved. The AG concluded the concurrent action of the other affected county is essential, so an annexation affecting a district in two counties cannot be accomplished by one county acting alone. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0541.pdf

Background and statutory framework

Section 19.021(a) of the Education Code let the commissioners court of "any" county create enlarged districts by annexing small common or independent school districts (fewer than 250 students) to an independent district with 150 or more students. The AG observed that Education Code provisions authorizing actions that affect two different counties usually say so expressly (for example section 19.051(b)) and require each affected county to concur (sections 19.022, 19.054), while section 19.021 addresses the narrower situation of small districts by removing the voter-petition requirement, not by granting extraterritorial power. Because counties have only expressly or impliedly granted powers (Canales v. Laughlin), the limited purpose of section 19.021 mattered in deciding whether it carried an implied authority to act outside the county. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0541.pdf

No reported case had interpreted section 19.021, but several had construed its predecessors. In Foulks v. China Spring Independent School District, decided under article 2922a (an early predecessor later replaced through sections 19.001 and 19.261 and then section 19.021), the court held that a unilateral annexation of a school district located in one county to a district located primarily in another is ineffective and void without the other county's consent, quoting the rule that the county trustees of one county cannot alone create a district composed of territory in two counties (County School Trustees of Runnels County v. State; see also the Lubbock County, Leon County, and Lorena cases). The AG added that Texas case law suggests the legislature cannot grant counties power to act unilaterally outside their boundaries without a constitutional amendment, since article V, section 18 commits county business to each county's commissioners court (Burke v. Hutcheson; Ellis v. Hanks), but it resolved the question on the narrower ground that section 19.021 simply does not provide the express or implied authority for a county to act outside its boundaries, making the other county's concurrence essential. The AG also cited Griesenbeck v. Schindler and Neill v. Cook on the small-district annexation context. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0541.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0541.pdf

Constitutional and statutory provisions:

• Tex. Const. art. V, § 18
• Education Code §§ 19.021, 19.022, 19.051(b), 19.052, 19.054; §§ 19.001, 19.261 (predecessor provisions)
• V.T.C.S. art. 2922a (repealed predecessor)
• Acts 1969, 61st Leg., ch. 889; Acts 1983, 68th Leg., ch. 285

Cases:

• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Griesenbeck v. Schindler, 552 S.W.2d 203 (Tex. Civ. App. - Eastland 1977)
• Neill v. Cook, 365 S.W.2d 824 (Tex. Civ. App. - Eastland 1963), app. dism'd for want of juris., 376 U.S. 202 (1964)
• Foulks v. China Spring Independent School District, 452 S.W.2d 763 (Tex. Civ. App. - Waco 1970)
• County School Trustees of Runnels County v. State, 95 S.W.2d 1001 (Tex. Civ. App. - Austin 1936)
• County School Trustees of Lubbock County v. Harral County Line Independent School District, 95 S.W.2d 204 (Tex. Civ. App. - Amarillo 1936)
• County School Trustees of Leon County v. Leon Independent School District, 336 S.W.2d 809 (Tex. Civ. App. - Waco 1960)
• Lorena Independent School District No. 907 v. Rosenthal Common School District No. 907, 421 S.W.2d 491 (Tex. Civ. App. - Waco 1967)
• Burke v. Hutcheson, 537 S.W.2d 312 (Tex. Civ. App. - Eastland 1976)
• Ellis v. Hanks, 478 S.W.2d 172 (Tex. Civ. App. - Dallas 1972)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0541
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0541.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

September 10, 1986

Honorable John E. Chamberlain
Hall County Attorney
P. O. Box 699
Memphis, Texas 79245

Opinion No. JM-541

Re: Whether Childress County is authorized to annex a portion of the Estelline School District which lies in Hall County

Dear Mr. Chamberlain:

You ask whether section 19.021 of the Texas Education Code authorizes one county to annex an entire county-line school district without the consent of the other county affected. You indicate that the Childress County Commissioners Court annexed the entire Estelline Independent School District to the Childress Independent School District without the consent of the Hall County Commissioners Court. Approximately 75% of the Estelline School District is located within Hall County. You assert that article 19.021 does not authorize Childress County to take action affecting property lying in another county without the consent or action of the other county.

Section 19.021 of the Texas Education Code provides, in part:

(a) The commissioners court of any county may create enlarged districts by annexing one or more common school districts or one or more independent school districts having less than 250 students in membership on the last day of the preceding school year to an independent school district having 150 or more students in membership on the last day of the preceding school year.

The question at hand is not simply whether section 19.021 expressly or impliedly requires the consent of both counties where more than one county is affected. The dispositive issue is whether section 19.021 authorizes one county to take action outside of its boundaries. If it does not, the other county's concurrent action over territory within its boundaries is essential.

Counties hold only those powers granted expressly or by necessary implication in the Texas Constitution and statutes. Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). Section 19.021 does not expressly authorize the annexation of a school district which lies partly within another county. The Education Code provisions which authorize actions affecting two different counties usually do so expressly. See, e.g., § 19.051(b). Further, sections which authorize actions affecting two or more counties require the concurrence of each affected county. See §§ 19.022, 19.054. Section 19.021 addresses the special situation presented by school districts with a small number of students by authorizing the annexation of a district with less than 250 students without a petition of the district's registered voters. See Griesenbeck v. Schindler, 552 S.W.2d 203, 205 (Tex. Civ. App. - Eastland 1977, writ ref'd n.r.e.); Neill v. Cook, 365 S.W.2d 824, 829 (Tex. Civ. App. - Eastland 1963, writ ref'd n.r.e.), app. dism'd for want of juris., 376 U.S. 202 (1964). Changes in the boundaries of school districts which have a larger number of students require petitions from the registered voters of the district. See Educ. Code §§ 19.022 (detachment and annexation of territory); 19.052 (petition for consolidation of school districts). Just because a voter petition is not required does not mean that the consent of both counties is unnecessary. The limited purpose of section 19.021 is significant in determining whether it contains the implied authority for a county to act outside of its boundaries and to do so without the consent of the other county or counties affected.

No reported cases interpret section 19.021. Several cases, however, interpret the statutes which preceded section 19.021. In Foulks v. China Spring Independent School District, 452 S.W.2d 763 (Tex. Civ. App. - Waco 1970, writ ref'd), the court held that a unilateral annexation of a school district located in one county to a school district located primarily in another county is ineffective and void without the consent of the other county. The court dealt with article 2922a, V.T.C.S., an early predecessor to section 19.021. See Acts 1969, 61st Leg., ch. 889, at 2735 (repealing article 2922a and substituting, in part, section 19.001); Acts 1983, 68th Leg., ch. 285, § 1, at 1380 (replacing sections 19.001 and 19.261 with section 19.021). The court stated that "'[i]t is fundamental that the county trustees of one county cannot alone create a district composed of territory lying in two counties.'" 452 S.W.2d at 766 (quoting County School Trustees of Runnels County v. State, 95 S.W.2d 1001, 1003 (Tex. Civ. App. - Austin 1936, writ dism'd)); see also County School Trustees of Lubbock County v. Harral County Line Independent School District, 95 S.W.2d 204, 206 (Tex. Civ. App. - Amarillo 1936, no writ); County School Trustees of Leon County v. Leon Independent School District, 336 S.W.2d 809 (Tex. Civ. App. - Waco 1960, no writ); Lorena Independent School District No. 907 v. Rosenthal Common School District No. 907, 421 S.W.2d 491 (Tex. Civ. App. - Waco 1967, writ ref'd n.r.e.).

The statutory language at issue in Foulks referred to the power of school trustees "in each organized county" to annex school districts with less than 250 students to another district. Section 19.021 refers to "any" county rather than to "each" county. It has been suggested that this change was intended to remove any requirement that both counties must act in concert. However, a minor change in phrasing made when the various civil statutes relating to one topic are consolidated into one code is not presumed to indicate a change in meaning. See Sutherland, Statutory Construction, § 28.10 (4th ed. 1985). Accordingly, the reasoning in Foulks also applies to section 19.021. As indicated, counties hold only those powers granted expressly or by necessary implication in the Texas Constitution and statutes. Section 19.021 does not expressly authorize annexation of a school district which lies within another county; it merely authorizes annexation of a district with less than 250 students without a petition of the district's registered voters. The court in Foulks suggested that the use of "each" county indicated that the provision may have been intended to apply only to school districts located within the same county. 452 S.W.2d at 766.

Texas case law suggests that the legislature cannot grant counties power to act unilaterally outside their boundaries without constitutional amendment. See Tex. Const. art. V, § 18; Burke v. Hutcheson, 537 S.W.2d 312, 314 (Tex. Civ. App. - Eastland 1976, writ ref'd n.r.e.); Ellis v. Hanks, 478 S.W.2d 172, 176 (Tex. Civ. App. - Dallas 1972, writ ref'd n.r.e.). Article V, section 18, commits county business to each county's commissioners court. In Burke and Ellis the courts each held that a county commissioners court lacks the authority to order a local option election pursuant to the Liquor Control Act in cities located partly in two different counties. See Burke, 537 S.W.2d at 314-15; Ellis, 478 S.W.2d at 177; see also Attorney General Opinion JM-468 (1986).

Your question, however, does not require reliance on whether the legislature may authorize one county to take unilateral action over territory lying within another county without running afoul of article V, section 18, of the Texas Constitution. Section 19.021 fails to provide the express or implied authority for a county to take action outside of its boundaries. Accordingly, the concurrent action of the other affected county under section 19.021 is essential.

SUMMARY

Section 19.021 of the Texas Education Code does not authorize one county to take action affecting territory lying in another county without the concurrent action of the other county.

Very truly yours,

Jim Mattox
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General