R-693
                                                       265
                      OFFICE         OF


                     A~STM,    TEXAS


Hon. W. K. Baldrldge           Opinion No. V-340
County and District
  Attorney                     Re:    Persons qualified
Denton County        '.               to.'voteIn an elec-
Denton, Texas                         tion held under Ar-
                                      ticle 27425, Sec.
                                      1, V.C.S., as amend-
                                      ed by Acts 1947,
                 .                   ,y&L$Ij;: s* 30,



          We 'refer.
                   to your letter of reoent date, ao-
kowledged 'bythe Attorney General on July 25; 1947,'
requestingan opinion of thts office‘oonoernlngpersons
who'may vote In an election called to change or lncor-
porate a.oommon sohool district Into sn Independent          6
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.hundredor'more inhabitantsoould; and still may,
be changed or incorporatedInto an Independent school
district by conformancewith the provisions of Article
2757, V.C.S.' Article-2757requires that a petition for
 that purpose be presented to the county judge signed by
 twenty'ora majority of the resident qua~if'iedvoters
 of~such a district praying for an election on the mat-
      'This statute further provides that only qualified
     rs-who are restdents of the corrmonschool district
 shall be entitled to vote at said election, and lf'a
'majorityof the-votescast 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~sucha change might
have been effected prior to the 1947 amendment w&a
Hon. W. K. Baldridge   -   Page 2                v-348


provid@d by:Artiole 2742j.i,Sectlonl,‘V.C.S.,enacted
In Aotti.1930,4lst Legisl&Ure; 5th:calledsesslbn,
3. B. 19; oh. 5. Under thie 1930~Act, any oommba sohool
district, irrespectiveof the number of its inhabitants,
could be changed or incorporatedlntp an~lndependent
school dlstriCt."A. Q.,OplnlonsHos. 0;6190 and O-3424.
Under S. B. 19, whenever S majority of the legally qual-
ified property taxpaying voters, togethbrwith a major-
ity of the trust&es of the district, petitionedthe
county board of'trusteesto change or incorporatethe
oonmon schbol distriot into an independentsohool dis-
trict and furnished~suIYlclentevidence to said county
board that the district when Incorporatedwould be fl-
nanoiallyable to carry-out high school work at a rea-
sonable cost per capita, the county board of trustees
had authdrlty to pass an.order incorporatingthe"sald
district; and the same would become an independent
school district without the necessity of an election.
          This second method of incorporationh+? been
amended by the 5Cth~Legislaturein 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 (12) or more.oredlts." In a common school
                                    provlalonsof Ari
district,caning within.the.'speo~lfic
title 2742j, Section 1, as amended, the county judge,
upon presentationbf 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 oonvertingthe common school
district Into an lndependektshhool district. Said a-
mended Act further provides,thatif the'majorityof the
votes cast favor the ohange, the county board of trus-
tees shall~passan order creating said independent
sohool~distriotand appoint a boar&of seven trustees
who shall serve until the next,regulartrustee 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 incorporationof sohool districts,a common
school district as described or designated in Artlole
2742j, Section 1, as amended, may incorporateIn ac-
cordancewith the provls:,Sonsof 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.
                           ::
Hon. W . IS.Baldridge   - ! Page 3               v-348     ~’

          B tno b~a lotaeoldirtSot bavtw retm hundred
or more Znhabitantsnay ln6erporatoi&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 lnoorporatbdshall be entitled to vote,”
we can conceive of no logical legal basis or reason for
construingArticle 2742 , Srotion 1, as amended,,asre-
quiring that only legalIy qualified property taxpaying
voters resldi in the di6trict of that particular Qtiar-
actor ace anti
             n&led to vote in an electIon held th%Feun-
der. Certainly, th% Leglslaturo in smending Article
27423, Section 1, aaae no such qualifloatloa,nor, 40
we believe, should any such llmltationbe 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
of Article 27425, Section 1, as amended, ar% entitled
to vote,‘inan 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,conteraplatecoo-
naFting or Incorporating.into independentschool dls-
tricts to the case styled,:BigfootIndependent 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 Independentschool 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, notwfthstandlngthe inde-
pendent district embraced the identical territorywhloh
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 descrlptlonfretout in
     AiWole   274 8j, 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
                                                             -..




Hon. w. 1c. B8ldrldge   -    Page   4                v-340



     dlstriot Into rn independentdohool 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