R-475




‘RICE   DANIEL                         -:.
,lro-    GBNERAL                     July 16, 1947

          Hon. John C. Marburger     Oplnlon Ro. y-304
          County Attorney
          Fayette County              Re:    Finality!of a decision
          La Grange, Texas                   of the State .Board or
                                             Raucat ion sustaining
                                             action of a Cot&y Sohool
                                             Board ~oloslng an ~element-
                                             ary school.
          Dear Sir:
                  .-
                      We -refer to your’letter of June’26,.1947, in
          which you ask us to review -your .lnqulry-‘o$ May 8, 1947,
          in which-.you.  submitted the following:..  ~,  -’
                   :,.-
                      ‘*Sinetime  during the year l94k, by or-
                 der of the County Board of Sohoo.1Trustees
                 of Fayette County, Texas,’the Willow Springs
                 Common School District and the Fayettgvllle
              : Common Sahool ‘District and other contiguous.
            .. :.doramonschool alstrlats were grouped and
                 formed the Fayettevllle Rural High Sohool
                District; Arter this .grouplngbyethe County
                 Board of School Trustees, an elementary
                ~Schoolwas maintained ,at the Willow Springs
                 School for ‘the year 1944-1945. During this
                 school year some eight grades were taught
                 wlth’about 53 pupils in attendance, maln-
                 talnlng an average dally attendance for
                 said school year far above twenty.
                         “During the later part of the X944-
                   ,1945 school year, the-Board of .Trusteesfor
                   the Fayettevllle Rural High School Dlstriot
                   by’ Its order closed the Willow Springs Ele-
                   mentary Sbhool .for the coming 1945-46
                   school year and ordered the elementary pu-
                   ~~11s of the Wll4oy .Sp,rlngs
                                               District to at-
                   tend eohool at.the .FayettevllleRural High
                   School’. The majority of the tax payers
                   Andypatrons of the Willow Sprl,ngsDistrlot i
                   protested to the Trustees of the Fayette-
                   ville Rural High School District, because
                   .,9fthe oloslng of the Willow Springs School,
Hon. John C. Marburger, Page 2, V-304


     and finally the matter was taken to the
     State Superintendent at Austin, Texas. On
     April 1, .1946,the Willow Springs Elementary
     School was again opened and six grades were
     taught In said school for some forty days,
     being the remainder of said school year.
     During these forty days that the Willow
     Springs School was reopened,.said school
     aid not maintain an average daily attend-.' :~
     ante of at least twenty pupils for ~various
      reasons, such as , parents did not.want to.
    '~'transfertheir children from one school to
     another
           ,. With only eight weeks of schoolre-
_~.. .malning,,anaothers.had transferred their
      children out of the district.
         "At the ena of the school year 1945-
    J946, the Board of Trustees of the Favefte-
    vllle~,RuralHigh School District again en-
    tered Its order closing the Willow Springs
    School for the 1946-1947 school vear for
    the reason that the average dally attendanae
             receding year of 1945-1946 was be-

         -You&k .whetheror not action of the .varlous
Boards was legal,.ln&osl~ng .the school.~ After recelv-
lng your,lnqulry.we .lea.rned.,that
                                  the action of the Trus-
tees .of,tpe Fayettevllle Rural High School.Dlstrlct,
the subject of your Inquiry, was, reviewed and affirmed
by the State Superintendent of Public Instruction and
the State Board of Education.,.sndthat no appeal was
taken from the decision of the State Board. We are en-
closing copy of each of said decisions ,for your lnfor-
nation.   ,.
          The Wlllow'Sprlngs School was changed to a
six grade.elementary school.. No aRpeal..wastaken from
the order of.the,School Board which so dlasslfled the
school'. .In the.appeal from the or.der,closingthe school
the Stat.?Superintendent found, as a fact, that when all
of the .&hlldren In the district withinthe first six
grades,.counting those'who attended the Willow Springs
School,,and also those who attended the Fayettevllle
School, the av.eragedally attendance was less'than'twen-
tY. The evidence showed'that,some children who live In
an adjoining county attended the,WllLow Springs School
before the co'nsolldation.
        Hon. John C. Marburger,.Pa~ge3,.v-304.     ;'


                  ,Rlght of appeal andthetrlbunals   of-such ap-
        peals is provided for In Articles 2656and 2686 of Ver-
        nonls.Clvll Stat~utes. The Interested partles.haQ the
        choice ~of appellate tribunals and,chose to app.eal:t.othe
        State Superintendent of Public In§truction Lana the State
        Board.of Educatlon;.any right whioh they ever had on the
        faots are foreolosed by the 'finalde~olslonsof those a-
        gencies.
                  In the.cas.e;.of Blalr.~.~Board.of Trustees,
        Trinity Independent School District, 161 S.W.(2d).  1030,
        the Court quotes ftimthe opinion written by Judge Alex-
        ander while a member of the ,Waco Court of Civil Appeals,
        In Gragg v. Bill, 58 S..W.   28 150; (Writ refused) as
        follows:
                     "By the'provlslons of the above statute
                (Art. 2656,  R. S.1925) the Leglslat,urehas    Y    .
                committed to the state superintendent, ,as.one
                specially tralnea'ana experlenoed ;i.nschool
                matters, ~the responsibility of .decidlng.all
                questions relating to ,theinternal affairs
                and management of the public sohools of Texas.
                His decisions In such matters are..flnalunless
               ireversed by the state board of edt.icatlon,the
   .~           decision of that board becomes final and cannot
               -and will not be Interfered with by the courts
         : .
                .un.lesssuch board acts arbitrarily or ls,actu-
.. .           .ated by fraud or abuses Its,dlsaretlon. The
                findings of such board on matters comm1tte.dto
                Its jurisdiction, when not arbitrary or &aprlc-
                lolls,are prima facie true and are 8s~binding
                on the courts as Is the verdict of a .jury; and
                the .oourtwlll"not.put itself In the position
                of the board'ana try-the ~questlonanew for the
                purpose of testing the expediency or wisdom
                of the decision of,the board, nor forithe pur-
                pose of detelmlnlng whether or not under slml-
                lar testimony It-would  have made a similar or
               :a different ruling.*
                  We are of the opinion that the~faot Issues in-
        volved In the closing of the Willow Springs Elementary
        S,chooland transferring its scholastics to the Fayette-
        ,vllleSchool have been finally adjudlaat.eaand are not
        subjeot to ~revlew.        ._
                  Appealsmay be taken from tbe..flnaldecisions
        of the State.Board of Eduaatl.onto the courts, to review
        law.questlons, If suoh appeals be prosecuted In a rea-
        sonable time.
24 Hon. John C. Marburger, Page 4, V-304


             No time being fixed In which appeals'may be
   taken from the State Board to :thecourts, the lnterest-
   ed parties had a reasonable time, after juagment, In
   which to make such appeal for review of any law question
   .lnvolved. The judgment of the State Board of ~Edueatlon
   was rendered onFebruary.6,, 1947, and no such appeals
   have been taken as of this date.
              In Trustees of Chlllicothe Independent School
   Di'strlctv. Dudney,,142 S. ~W. 1007, the,Cou?cthad the
   question of the time all'owedfor appeal where no time
   Is fixed land; In that regard, said:
               "In the absence 'of.any such a rule, the
         sole Inquiry Is: What Is a reasonable time
         under al.1conditions surrounding the Instant
         case? The district judge, after a full hear-
         ing, has decided that 30 days was a reason-
         able time within whlch:appellee herein should
         have prosecuted hls'a'ppealto the State Super-
         intend.ent. By reason.of the.chaotic condition
         of the affalrs'exlstlng In the Chllllcothe
         School, appellee should have'proseauted his
        ~appeal wlth.all reasonable dispatch."
        :
           ',:'It had been shown in that case, that the appeal
   could have.been mad,e In 18'days. "
       :
               In Watkins v.. Huff) 63 S.W. 922., the Court sala,
   concerning the time ror~suoh'appeals:
               "The Statutes providing for such appeals
       : .are silent as to prooedure, and prescribe no
          time within whlch.to perfect the appeal. A
          reasonable tlme;without unnecessary delay, Is
          the rule In such cases. Harkness v. Hutcherson,
        ':90 Tex; 385, 38 S.W. 1120."     '~
              We are of the opinion thatmore than a reason-
    able time in which to appeal to the oourts has elapsed
    since February 6, 1947, by reason of which the decision
    of the'State Board'of Eduaatlon, rendered on that datej
    closing the Willow Springs Elementary School, has bec~ome
    final'on all justlclable..issues of~both,fa,ctand Law+
                               SUMMABP
              Where the Trustees of the Fayettevllle
         Rural High School Dls,triatclosed the.Willow
                                                    :   _~ -,
Hon. John C. Marburger, Page'.5,'V+X)4-               25
        ,;~


    Springs Elementary School in Fayette CoUnty
    and those~opposea to such action appealed.to
    the State Superintendent of.Publlo Instruotlon,
    and to the State Board of Education, both of
    ~whomaffirmed such action and final dealslon
    of the State Board was rendered on February.6,
    1947, and no appeal therefrom was taken, all
    lssues.of.both law and fact .concdrnlng the
    closing of said school are now foreclosed.
                                  Yours very truly
                            ATTORNEXGENER&    QFTEXAS



                            BY




                             ATTORNEYGENEUL
ViTW:djm:jrb




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