Untitled Texas Attorney General Opinion ( 1940 )

HonorabLe C. Woodrow Laughlin .'
County Attorney
Jim Well@ County
Allae, Texas
Dear Sir: OP~IIIOII NO: o-2116
Be: (1) May the board.~oftrustees,
of an independent a~hool~dls:-
trlat,~hlrea searet&ry,~who
ls.not a trustee, and.pay,hlm
a~salmy?
(2) May th&,kssesioiof,taxes
for ap lndepandentachbol d&s-
trFot~legallybs-paid more
.than tvo (2).per oent of the
taxes'+messed?' If m, under
'what~alroumstanae~?
Ue have ~oa&fully oonsldered yonr``requesd
for:
the opinion of thls'departmen$touching the questions
stated above.
In discussingyour first question, Ve shall first
analyze the opinion ih the aase of-Board of Trusteee of
IndependentSchool Dlstz$ct of Houston v. Dow, 63 3. W.
1027, (writ of error denled). !
This case Involved a s~ultlnatltuted.agalnstthe
Board of Trustees of the IxidependentSchool District of.
Houston (appellants)to restraln~themfrom paying a salary
to tuo niembereof ths Board w&o ue~e~servingaa~secretarg
and treasurer,respeatively,thereof. It was agreed that
If suah members aould be legally pald compensationas such,
the salary fixed was reasonable forth? services incident
to the poaltlons.
For the statutory background to the .dealslon,
we uote as follows from the opinion of the court at page
1028 :
Honorable C. Woodrow Laughlin, Page 2 (o-2116)
"The appellants were elected and hold their
offices as sahool trustees In accordancewith an
act of the legislatureapproved February 21 1900
(Gen. maws 1st Called Sess. 26th Leg. p. 181;
Section 1 of the act provides that seven trusteea
shall be elected, who .lsballconstitutethe school
board of such independentdistrict,and all of
whom shall serve without compensation.' Section 4
provides that: "The trustees chosen under this
act shall meet wlthln.twentydays after their
election, or as soon thereafteras possible; for
the purpose of organlzlng. A majority of said
board shall constitutea quorum to do business,
and they shall choose a president, secretary,
treasurer and other necessary officers and committees
By section 6 the board Is vested with the power to
adopt such rules, regulations,and by-laws as they
may deem proper, and the public free schools of the
district are placed under their control, and they
are given the exaluslve power to manage and govern
the schools.~By an act approved June 23, 1897 (Gen.
Laws. Sp. Seas. p. 48 ,-amendedby the act of June
6, 1899, (Gen. Laws 1899, p. 329), to regulate and
limit the expendlture~of state, county, and local
school funds, the.loaal sohool fund may be used in
addition to the purposes enumerated for state and
county funds; also for 'purchasingappliancesand
supplies,for the payment of ,lnsurancepremiums,
janitorsand other employes, for buying school sltes,
buying, bnlldlng, and rephrlrlngand renting sehool
houses, and for other purposes necessary in the icon-
dn,ptof the publla schools to be determinedby the
board of trustees.1 . . ."
The court held that the salaries could'not be legally
paid and we quote the following excerpts from the opinion which
demonstratethe reasoning of the oou%?t:
"It Is clear from the language of the law that
the secretaryand treasurer must be members of the
board. . . . Their duties as officers cannot be dlf-
ferentlatedfrom their general duties as trustees, so
as to entitle them to compensation. . . . There Is no
speclfla provision of~law fixing salaries to the offices
of secretaryand treasurer of a board of school trustees,
and if the secretary and treasurer of the appellant board
are entitled to receive salaries, authoritymust be found
Honorable C. Woodrow Laughlin, Page~3 (O-2116) .L ::=;...,
In the law for the board.:to.fix:them. Looking:!tothe
statutes, no express autbority"ls'found,butonfthe
contrary, there is an-express.prohlbltlon~of.:comptn-
sation to all the members:@ the-Board,of~.truatees:
It would be against-.%well-settled -ru1e..of.
.$lic policy to.allow~it..to ,pay,monkyto~:itsOwn
~membersunder .theguise of:compensatlon~:for extra-~
official duties. w . ~Buti even if,the#dutlesof the ,,
secretaryand treasurer should be regarded as distinct:
from their duties as trustees, what authority has th(;
board for allowLing,them .salarles.out .of-the:school
funds? Such authority must be 'foundin~the:plalnpur-
,poseof the law. 1stmust-be granted.. It,.cannot be.
lmpll.ed from general language gFvlng.t~e,trustee,s.~ ..
exclusive power to manage and govern the..schoolfl. i,.!.
?'~
The only slgnlficant~ohangd-In~t.``s~.atut?;relat~:sg.:.
to the subject at band pertains to the chooeing:ofthe ~tifficers
of the board; the powers~lnvestedIn the boardj,!with.-reference.
to -theezcpendltureof school .funds,are -essentially-the
,~same,~$n
the statut.estoday.. : .. '~
The statute as~ektcted ln.1900, pertalnlngto the
-choosingof :the of!fiaers .of the board, (shown in..tbee quoted ex-
cerpt from tlrr,opinion of.the court),.read: "A.~maj.orlty.of said
board shall.constitute,a quorum to do busLn&sa, and they..shall
choose a preside&j. secretary, treasurer~.and.other;n~cessary of-
ficers and coma%~te~.s".;.:.whereasi
~the~atatutenow read,st !':. . .
They shall.c.boose,--fromtheir .humber~a~.president;and'they shall
choose:a~eecretary~.a,~treasurer, asseas~or-and.colisc``;or!o~ taxes,
and'otlrlinedessa~'offi~erskirdabmmittees"..(Aat?;;i905,.29th
Legislatiire;,‘-oh.'124.,:
par..165, .p.~306;:``~til``.27``~Revl~ed
_~_ ,_. ._. ~..
Civil Statutes).
Xt will be obserked that the &atu&aaiiti formerly.read,
and 8~sbefore the eourt.ln the-,case~under~discusslon,required,the
officers of %he board,,lncludlng+he secretary to be .members.-there-
of;.,whereas;the.statute as it now reads, while requiring,the~,:
president to-bea member of the board,-does not spealfioallgrequire
the secretary,and other,.offFcers named,``tobe a member. .The
adoption of the new terml.nology~wouldseem.to establish a clear
legislativeIntent not ,to..thereafterrequire the secretary,and
the other ,oPflcersnamed.,to be members of the board ~of trustees:
Mating from ~thlsproposition;namely, that k.he.sta&te
does not now requFre.the secretary of the board to be a member
thereofi~wefurther analyze the cited case under discussion to
ascertain If.this .caseis',-nottithstandlng~.the
statutory~change,
still determinativeof the questionbefore us.
Honorable C. Woodrow Laughlin, Page 4 (O-2116)
The opinion, as shown by the quoted excerpts, was ground-
ed primarily on the propositionthatthe secretary was a member of
the board, his duties in fllling such offke of secretary could not
be differentiatedfrom his general duties as a trustee, and it
would thereforebs opposed to public policy to allow payment of
money to a member of the board under the guise of compensationfor
extra-officialduties; seaondarily,on the propositionthat, none
the less, no authority for paying such salary Is found In the stat-
utes.
A thoughtful study of the case compels the oonclasion
that the controllingpropositionIn the mind of the court; from
which,the oplnlon cannot be divqrced, was that to Lmply``the' power
of the board to compensate its member-secretary(dr treaiwi-or)
would be violative of the express statutory prohibitionagainst a
membersof the board receiving oompensation,as well as contraryto
public policy. The case is not, in our opinion, authority for the
proposltlon,when the statutorybasis of this propositionhas been
removed, that the authority of the board to compensateits non-
member secretarymay snotreasonably be implied from the--grant of
power In Article 2827, Revised Civil Statutes, which reads, in part:
11
. . . Loos1 schooi funds from district taxes,
tuition fees of pupils not entitled to free tuition.
and other local sources.may be used for.the purposes
enumeratedfor state and county funds and for puraka&=.
lng appliancesand supplies, for the payment of Insnr-
ante premllums,janitors and other eaployees, for buy-
ing school sites, buying, building and repairing and
renting school houses, and.for other purposes nedessary
in the conduct of the public schools to be determihed
y the board of trustees.~. . ." (Emphasis ours)
It is observed that the court did not discuss the broad
grant of power appearing In Article 2827,~ supra, underscoredabove.
Moreover, we are constrainedto the opinion that this department
cannot rule, categorically,under the language of this statute,
that under no state of facts would .theemployment of a non-member
secretaryby the board of trustees of an independentschool district
be legally allowable under this broad grant of power. Rather, lt~
is our opinion that facts may exist rendering it reasonable,proper
and necessary, in the conduct of the sbhools, for the board of
trustees to choose a non-member secretary;and provide oompenaation
for such offlaer In a sum oommensuratewith the duties incident
thereto. We partioularlyemphaslee, however, that, In our opinion,
the courts of Texas would carefullg,protectthe people from an
abuse of this implied power of the board, and would sanction no
such expenditure of school funds except upon a clear showing of the
reasonablenessand neoesslty therefor.
Honorable C. Woodrow Laughlin, Page 5 (0-2116)
Your second question, we believe, is,resolvedby Article
2791, Revised Civil Statutes, which reads, In part, as follows:
II
. . . It shall be wlthin the discretlon.ofthe
board of trustees of any Independentschool district
to name an assessor of taxes who shall assess the
taxable property wlthin the limits of the Independent
school district within the time and in the manner pro-
vided by existing laws, In so far as they are appllca-
ble, . . . the said assessor of taxes shall receive a
fee or two per cent of the whole amount of taxes assessed
by him and as shown by the completed certifiedtax rolls."
We know of no statute that would allow an assessor of
taxes of an Independentschool district, as distinguishedfrom
the district assessor and collector of taxes, to receive a fee In
excess of two per cent of the whole amount of taxes assessed by
him, as provided In the foregoing statute. Your second question
is therefore respectfullyanswered In the negative.
Trusting that we have satisfactorilyanswered yourin-
quiry, we remain,
Yours very truly,
ATTORREYCERERALOFTEXAS
By /s/ Zollle C. Steakley
Zollle C. Steakley
ACS:IX:mjs Assistant
APPROVED APR 17; 1940
APPROVED OPIEIOR COMMITTEE