Can a Texas school district buy land outside its boundaries to build a school?

Plain-English summary

Laredo Independent School District had a problem. Cigarroa Middle School's campus was no longer suitable for its students, but the District could not find a good site for a replacement inside its own boundaries. It did find suitable land for sale just outside its territory, within a neighboring school district. Two local officials asked the AG whether the District could buy that land and build the new middle school there. The hook was Education Code section 11.167, which lets a district "operate a school or program . . . or hold a class outside the boundaries of the district." Did that authority also include acquiring land and constructing a campus outside the district?

The AG drew a careful distinction. School districts have only the powers expressly or impliedly given to them. Section 11.167 authorizes a district to "operate" a school outside its boundaries, and the Education Code does not define "operate." Using the ordinary meaning, to "operate" is to "manage and run," which is different from acquiring real estate or constructing a building. The AG noted that in other contexts the Legislature spelled out both powers when it wanted them: it expressly let a commuter rail district, an appraisal district, and a redevelopment district both acquire land and construct facilities. Section 11.167's narrow use of "operate" for a school district suggested the Legislature did not also mean to authorize buying land and building. So the AG concluded a court would likely hold section 11.167 does not expressly permit a district to purchase out-of-boundary land to build and operate a middle school.

The harder question was implied authority. A district has implied power to do what is reasonably necessary, not merely convenient, to carry out its express duties, and trustees have broad authority over school management and spending. But the AG could not ignore the constitutional and statutory provisions that tie school-building construction and the ad valorem taxes and bond proceeds that fund it to buildings "in the district." Given that language, the AG said it could not predict with certainty whether a court would find section 11.167 implies the power to buy land and build a school outside the district. What was certain, the AG noted, is that trustees are directed to work with other public entities, and the Education Code offers two routes to actually change the boundary so the purchase and construction would be authorized: a boundary adjustment by agreement of two contiguous districts under section 13.231, and detachment-and-annexation by petition under section 13.051, with an appeal to the commissioner of education if a district disapproves.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

For Laredo ISD and districts in the same bind, the opinion's reading at the time was that the "operate a school outside the boundaries" authority in section 11.167 did not, by its express terms, reach buying land and building a campus across the district line, and that whether such a power could be implied was genuinely uncertain given the "in the district" language governing school-building funding. The AG declined to resolve the implied-power question, framing it as something it could not predict with certainty rather than answering it. For district trustees and their counsel, the practical signal was that the cleaner path to an out-of-boundary site was to change the boundary itself, either by a contiguous-district agreement under section 13.231 (limited by the taxable value and enrollment of the transferred territory) or by a detachment-and-annexation petition under section 13.051, subject to the statutory conditions and a possible appeal to the commissioner of education.

Common questions

Q: Does Texas law let a school district buy land outside its boundaries to build a school?
A: Not expressly. The AG concluded a court would likely hold that Education Code section 11.167's authority to "operate" a school outside the district does not expressly include acquiring land and constructing a campus there.

Q: Could the power be implied?
A: The AG would not say. Because the constitution and funding statutes tie school-building construction and the taxes and bonds paying for it to land "in the district," the AG concluded it could not predict with certainty whether a court would find the power implied.

Q: Why doesn't "operate a school" cover building one?
A: The AG read "operate" by its ordinary meaning, to manage and run, which is distinct from acquiring or constructing. It also noted the Legislature expressly granted both acquisition and construction powers in other statutes when it intended them.

Q: Is there another way for a district to use an out-of-boundary site?
A: Yes, by changing the boundary. The AG pointed to a boundary adjustment by agreement of two contiguous districts (section 13.231) and a detachment-and-annexation petition (section 13.051), with an appeal to the commissioner of education if a district disapproves.

Background and statutory framework

Independent school districts have only expressly or impliedly conferred powers (Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427 (Tex. 2016)). Education Code section 11.167 lets a district "operate a school or program . . . or hold a class outside the boundaries of the district," and section 11.151 lets trustees acquire and hold real property. But Texas Constitution article VII, section 3(e) authorizes ad valorem taxation "within all school districts . . . for the erection and equipment of school buildings therein," and Education Code sections 45.001(a)(1)(A), (C), 45.002, and 45.105(c) tie bond proceeds and tax-funded construction to school buildings "in the district." The AG construed "operate" by its ordinary meaning under Silguero v. CSL Plasma, Inc., 579 S.W.3d 53 (Tex. 2019) and Colo. Cty. v. Staff, 510 S.W.3d 435 (Tex. 2017), contrasting express acquire-and-construct grants in Transportation Code section 174.205(a), Tax Code section 6.051(a), and Special District Local Laws Code section 8150.110(a), and declined to read in words under FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) and In re H.S., 550 S.W.3d 151 (Tex. 2018). The implied-power standard came from Geffert v. Yorktown Indep. Sch. Dist., 290 S.W. 1083 (Tex. Comm'n App. 1927) and Thompson v. Elmo Indep. Sch. Dist., 269 S.W. 868 (Tex. App.-Waco 1925, no writ). The boundary-change routes are sections 13.231 and 13.051.

Citations and references

Statutory provisions:

• Tex. Educ. Code § 11.167; § 11.151; § 45.001; § 13.231; § 13.051
• Tex. Const. art. VII, § 3(e)
• Tex. Transp. Code § 174.205(a); Tex. Tax Code § 6.051(a); Tex. Spec. Dist. Code § 8150.110(a)

Cases:

• Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427 (Tex. 2016)
• Silguero v. CSL Plasma, Inc., 579 S.W.3d 53 (Tex. 2019)
• Lira v. Greater Hous. German Shepard Dog Rescue, Inc., 488 S.W.3d 300 (Tex. 2016)
• Colo. Cty. v. Staff, 510 S.W.3d 435 (Tex. 2017)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000)
• In re H.S., 550 S.W.3d 151 (Tex. 2018)
• Geffert v. Yorktown Indep. Sch. Dist., 290 S.W. 1083 (Tex. Comm'n App. 1927)
• Thompson v. Elmo Indep. Sch. Dist., 269 S.W. 868 (Tex. App.-Waco 1925, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0291
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0291.pdf

Original opinion text

March 9, 2020

The Honorable Isidro R. Alaniz
49th Judicial District Attorney
Post Office Box 1343
Laredo, Texas 78042

The Honorable Marco A. Montemayor
Webb County Attorney
1110 Washington Street, Suite 301
Laredo, Texas 78040

Opinion No. KP-0291

Re: Whether a school district may purchase real property outside its boundaries for the purpose of constructing and operating a school (RQ-0304-KP)

Dear Mr. Alaniz and Mr. Montemayor:

In this consolidated response, we address the question each of you asked regarding whether the Laredo Independent School District (the "District") may purchase land outside of its boundaries for the purpose of building and operating a middle school.[1] As you explain, the District determined that the current campus and facilities of Cigarroa Middle School are "no longer suitable or able to handle the present needs of its students," but the District is unable to locate suitable property for building a replacement campus within its boundaries. Alaniz Letter at 1-2. The District did locate land suitable for a middle school campus for sale just outside its geographic territory within the boundaries of a neighboring school district. Id. at 2; see also Montemayor Letter at 2. While state law permits a district to "operate a school or program, including an extracurricular program, or hold a class outside the boundaries of the district," you question whether this authorization encompasses the acquisition of land and the construction of a school campus outside district boundaries. TEX. EDUC. CODE § 11.167; see also Alaniz Letter at 2; Montemayor Letter at 2.

Independent school districts "possess only such powers and privileges as have been expressly or impliedly conferred upon them." Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 430 (Tex. 2016). The primary objective in construing statutes that confer such authority "is to give effect to the Legislature's intent," for which a "statute's plain language is the most reliable guide." Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019). Courts also consider a statute as a whole, and "should not give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone." Lira v. Greater Hous. German Shepard Dog Rescue, Inc., 488 S.W.3d 300, 304 (Tex. 2016).

Section 11.167 of the Education Code authorizes a district to "operate" a school outside of its boundaries. TEX. EDUC. CODE § 11.167. The Education Code does not define the word "operate." Courts generally give statutorily undefined terms their ordinary and common meaning, for which courts may consider dictionary definitions, judicial constructions, and other statutory definitions. Colo. Cty. v. Staff, 510 S.W.3d 435, 448 (Tex. 2017). The word "operate" means to "manage and run" or to be "managed and run in a specified way." NEW OXFORD AMERICAN DICTIONARY 1229 (3d ed. 2010); see also Dallas/Fort Worth Int'l Airport Bd., 427 S.W.3d 547, 551 (Tex. App.-Dallas 2014, pet. denied) (adopting dictionary definition of "operate" in the context of an airport). In other contexts, the Legislature expressly authorized various governmental bodies both to acquire land and to construct and operate certain properties on the land. See, e.g., TEX. TRANSP. CODE § 174.205(a) (granting a commuter rail district the authority to "purchase any interest in real property to acquire, construct, or operate a commuter rail facility" (emphasis added)); TEX. TAX CODE § 6.051(a) (authorizing an appraisal district to "purchase or lease real property and . . . construct improvements as necessary to establish and operate the appraisal office or a branch appraisal office" (emphasis added)); TEX. SPEC. DIST. CODE § 8150.110(a) (permitting an imperial redevelopment district to "construct . . . operate, maintain, [or] acquire real property interests for . . . a sports and community venue facility" (emphasis added)). In contrast, the Legislature's limited use of the word "operate" with reference to a school district in section 11.167 suggests that it means something separate from the acquisition of real estate for, or the construction of, a building. We assume the Legislature's choice of words was intentional, and we do not read additional language into the statute. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) (relying on the principle of statutory construction that the Legislature knows how to enact laws effectuating its intent); Silguero, 579 S.W.3d at 59 (a court "may not impose its own judicial meaning on a statute by adding words not contained in the statute's language"); In re H.S., 550 S.W.3d 151, 155 (Tex. 2018) (stating that when analyzing statutes, courts "accept[] that lawmaker-authors chose their words carefully, both in what they included and in what they excluded"). Thus, a court would likely conclude that section 11.167 does not expressly permit a school district to purchase land outside of its boundaries for the purpose of building and operating a middle school.

This construction is supported by a school district's general authority to acquire real property for the purpose of constructing schools. Subsection 11.151(a) of the Education Code authorizes school trustees "in the name of the district [to] acquire and hold real . . . property." TEX. EDUC. CODE § 11.151(a). On its face, this provision does not limit the acquisition of land to real property located in the district. However, article VII, section 3 of the Texas Constitution permits the Legislature to "authorize an additional ad valorem tax to be levied and collected within all school districts for the further maintenance of public free schools, and for the erection and equipment of school buildings therein." TEX. CONST. art. VII, § 3(e) (emphasis added). Accordingly, section 45.002 authorizes an independent school district to "levy, assess, and collect annual ad valorem taxes for the further maintenance of public schools in the district." TEX. EDUC. CODE § 45.002 (emphasis added); but see id. § 45.105(c) (providing that local school funds from district taxes and other specified sources may be used for various purposes, including "buying school sites, buying, building, repairing, and renting school buildings, including acquiring school buildings and sites by leasing through annual payments with an ultimate option to purchase" without reference to their location). Similarly, section 45.001 of the Education Code authorizes school districts to "issue bonds for . . . the construction, acquisition, and equipment of school buildings in the district" and "the purchase of the necessary sites for school buildings." Id. § 45.001(a)(1)(A), (C) (emphasis added). The constitutional and statutory provisions authorizing the construction and maintenance of school buildings generally contemplate that such buildings would be located on land within the boundaries of the school district.

Briefing submitted in response to this request argues that section 11.167 implies authority for an independent school district to buy land and construct a school outside of its geographic boundaries.[2] School districts have implied authority to perform acts reasonably necessary to carry out their expressly-granted duties. Geffert v. Yorktown Indep. Sch. Dist., 290 S.W. 1083, 1084 (Tex. Comm'n App. 1927); see also Thompson v. Elmo Indep. Sch. Dist., 269 S.W. 868, 870 (Tex. App.-Waco 1925, no writ) (stating that a school district's implied powers are those "essential" to its declared objects and purposes, "not simply convenient, but indispensable," and noting that any doubt as to the power is resolved against it). The expressly-granted authority in section 11.167 is to "operate a school or program, including an extracurricular program, or hold a class outside the boundaries of the district." TEX. EDUC. CODE § 11.167. Thus, to find implied power for a school district to buy land and construct a school outside its boundaries, it must be reasonably necessary, and not just convenient, for a school district to take those actions in order to operate a school outside its boundaries.

Trustees of an independent school district "have the exclusive power and duty to govern and oversee the management of the public schools of the district." Id. § 11.151(b). With regard to the expenditure of local school funds from district taxes and other specified sources, the Legislature authorized school districts to use such funds for various purposes, including "buying school sites, buying, building, repairing, and renting school buildings . . . , and for other purposes necessary in the conduct of the public schools determined by the board of trustees." Id. § 45.105(c) (emphasis added). Taken together, these provisions initially suggest that school district trustees have the power to determine the actions reasonably necessary in a given fact situation to enable the conduct of its public schools, whether located inside or outside the district, such that they could claim an implied power to buy land and construct a school outside its boundaries. However, we cannot ignore the constitutional and statutory provisions specifying that the expenditure of ad valorem taxes and bond proceeds are for, among other things, the construction and maintenance of school buildings "in the district" and the purchase of sites for those buildings.[3] See TEX. CONST. art. VII, § 3(e) (authorizing additional ad valorem taxation "within all school districts . . . for the erection and equipment of school buildings therein" (emphasis added)); TEX. EDUC. CODE §§ 45.001(a)(1)(A), (C) (authorizing bonds for "the construction, acquisition, and equipment of school buildings in the district" and "the purchase of the necessary sites for school buildings" (emphasis added)), 45.002 (authorizing ad valorem taxation for "maintenance of public schools in the district" (emphasis added)). Given this language, we cannot predict with certainty whether a court would conclude that section 11.167 implies the power to purchase real property outside the district for the purpose of constructing and maintaining a school there.

What is certain is that the Legislature obligates school district trustees to "seek to establish working relationships with other public entities to make effective use of community resources and to serve the needs of public school students in the community." TEX. EDUC. CODE § 11.1511(b)(1). Two avenues in the Education Code exist to potentially manifest a change in school boundaries, such that the purchase of land and construction of the new school in question would be authorized: one by agreement of two contiguous school districts pursuant to section 13.231, and the other by petition requesting detachment and annexation of territory contiguous to a school district pursuant to section 13.051. See generally id. §§ 13.231, .051. First, section 13.231 allows two contiguous school districts to

adjust their common boundary by agreement if, at the time the agreement is executed: (1) no child who resides in the territory that is transferred from one jurisdiction to the other is enrolled in a school of the district from which the territory is transferred; and (2) the taxable value of the territory that is transferred from one jurisdiction to the other does not exceed one-tenth of one percent of the total taxable value of all property in the school district from which the territory is transferred.

Id. § 13.231(a). Second, section 13.051 allows a majority of registered voters residing in the territory to be detached and annexed, or the surface owners of that property if there are no residents, to request detachment from one school district to another one that is contiguous to the territory if certain conditions are met. See id. § 13.051(a)-(j) (addressing administrative requirements, limitations based on the total taxable value of the territory and the reduction in the tax base of the school district from which territory is detached, geographic limitations, and dual district approval, among other provisions). If one of the affected school districts disapproves the petition, it may be appealed to the commissioner of education. See id. § 13.051(j). "In deciding the appeal, the commissioner shall consider the educational interests of the students in the affected territory and the affected districts and the social, economic, and educational effects of the proposed boundary change." Id.

SUMMARY

A court would likely conclude that section 11.167 of the Education Code does not expressly permit a school district to purchase land outside of its boundaries for the purpose of building and operating a middle school. Given the constitutional and statutory language referencing the construction and maintenance of public school buildings "in the district," we cannot predict with certainty whether a court would conclude that section 11.167 implies the power to do so.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Isidro R. Alaniz, Dist. Att'y, Webb & Zapata Ctys., 49th Jud. Dist., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 30, 2019) ("Alaniz Letter"); and Letter from Honorable Marco Montemayor, Webb Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 9, 2019) ("Montemayor Letter"), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs.

[2] See Brief from Mr. Sigifredo Perez, III, Kazen, Meurer & Perez, L.L.P. at 3-4 (Oct. 10, 2019) (on file with the Op. Comm.).

[3] For example, one cannot use bond proceeds to construct a school building "in the district" on land outside the district. See TEX. EDUC. CODE § 45.001(a)(1)(A).