Untitled Texas Attorney General Opinion ( 1939 )

THEA~TORNEY GENERAL,.
OP TEXAS
NO. 1042
OPINION CONSTRUING SECTION 4, OF ARTICJJZ :
2922L, REVISED CIVlL STATIJTRS,AND
HOLDING SAID STATUTE UNCONSTITUTIONAL
OFFICE OF THE ATTORNEY GRNRRAL'
Msrch‘l, 1939
Honorable W. K. McClain
CrimlfialDistrict Attorney
Wllllamson County
Georgetown, Texas
Dear Mr. McClain: Opinion No. O-306
RF: Interpretation of Article
2922L, Sec. 4 and Article
5, Sec. 7, State ConstLtu-
,tion and holding ,partof
statute unco~nstitutional.
Thfs will acknowledge receipt of your letter of Feb-
ruary 7, 1939, whereln you propound the fol.lowlngquestion:
"Can the State Superintendent legally hold
up the State Per Capita Apportionment of a i?oa-
mon school district having a twenty-five cent
tax because it does not pay the high school tul-
tFon for pupils that are above the grades taught
in sald common school district? Said district
not having the funds to keep its own scho'olrun-
ning for eight months,,with no excessive expend-
itures of any nature?
Eon. W. K. M&lain, March 1, 1939, page 2, 0-306
This question arises from the authority given the
State Superintendent In Section 4, Article 2922L Revised
Civil Statutes which reads as follows:
"The State Superintendent shall withhold
any and all funds due any district that refuses
or falls to execute forms required by the State
Department of Education for pupils eligible to
have their high school tuition paid by the home
district and the State. It is further provided
that the State per capita available funa for
each pupil transferreiifor high school purposes
under this Act, who has enrqllea In the school.
to which he has been~transferred, shall be dls-
trlbuted $0 the alatrlcts,to which such puplls
have been transferred as the apportlohment 1s
paid by the State. If any district falls to
pay thl,sportion of the State per capita accord-
.-..,ing
to the provisions of this Act, then theme
State Superintendent, when notified by'the super-
intendent of the receiving districts, accompan-
lea by an afflasvit of such failure shall wlth-
hold from such alstrlct,~when the next per capita
payment is ready for distribution, such an amount
as such district may owe any other district until
such obligation has been paid; provided further,
that the State Superintendent shall Investigate
such accounts and determine that they are just
accounts and obligations of thenalstrlct before
their portion of the per capita allotment Is
withheld.'
.Two terms .s,hould
be defined to clarify the meaning of
this statute. The term "state per capita apportionment"
means the amount of money due each district for Its lndlvl-
dual soholastics from the available school fun&; Article
2663, 2665 Revised Civil Statutes. For example the appor-
tionment a~sflgured for 1939 Is approximately $22.00 per
lndlvldu$l scholastic.
The term "tuition", as used in thls~statute means
the amount of money necessary to pay the aadltlonsl expense
Incurred by the transferring student to thenreceiving dls-
trlct. The rate of tuition charged sala pupil shall be the
actual cost of the teaching service based upon the average
monthly enrollment, In the high school~attended, exclusive
of all other current cr fixed charges not to exceed $7.50
per month'per scholastic; Article 26?@.
The cardinal point to be decided Is whether the above
Hon. W. K. McClaln, March 1, 1939;page 3, O-306
statute conflicts with that portion of Section 5, Article
7 of the Constitution of Texas, which reads as follows:
" ,I
and the available school fund here-
In p&via;& shall be distributed to the several
counties according to their scholastic popula-
tion and applied In such manner as may be pro-
vided by law."
The term "schol&tlc population", as used above,
means all ,puplls between the ages of 6 and 18 enrolled In
public schools when the census is taken in the month of
March, plus or minus any transfers in or out of any given
district; Article 2816, 2696 Revised Civil ~Statutes. Thus,
the per capita apportionment follows those students trans-
ferrlng~'and under Section 4, Article 2922L of the RevIsea
Civil Statutes, the State Superintendent Is given the auth-
ority to withhold the per capita apportionment for those~-
pupils remaining, until the tuition for the pupils trans-
ferrea is paid by the sending district.
It,should here be note&that the Constitution uses
the Words "shall be distributed". Chief Justice Gaines in
the case of Jernlgan v. Finley,.90 Tex. 2O5,,In reference to
Sec. 5, Art. 7 of the Constitution, says:
"TO authorize the Co&ptroller to withhold
his warrants until the county debt was paid would
infringe t'he,expressprovisions of the section
quoted which declares that the fund shall be dis-
tributed to the several counties according to
thelr~scholastic population and applied In such
manner as may be provided by law.. It is evldent-
ly meant that It must be distributed and applied
for the purpose for which the fund was created."
Vol. 37 Tex. Jur. p. 858, states in part:
,I
the Constitution declares that the
avallabie'school fund shall be alstrlbutea to
the several counties according to their schol-
astic population and the statute specifies the
apportionment which shall be made........and
It becomes the duty of the Comptroller to draw
his warrants for the sum apportioned. Perform:
ante of this duty in case of refusal msy be
compelled by mandamus."
Article 2823, entitled "What shali constitute school
funds", sets our more definitely the terms of Art. 7 of the
. I
Bon. W. K. McClaln, March 1, 1939, page 4 O-306
Constitution, and closes with the Sollowlng statement:
II
. . . shall constitute the available school
fund, which fund shall be apportioned annually
to the several counties of this State according
to the scholazitlcpbpulatlon of each for the
support and maintenance of the public free schools."
The constitution, the statutes and the court aecl-
slons are clear In stating that the available school funds
shall be distributed to the counties according to their
scholastic population.
The case of the Austin InndependentSchool District,
et al v. Msrrs Superintendent, et al, 41 S.W. (2a) 9, raises
a point that must be dlscussed in regard to this opinion.
In this case the Legislature passed a statute that the County
Superintendent's salary should be ptildout of the school funds
of the common and Independent school districts of the coiinty.
When the Austin Independent School District refused to pay
Its part of the salary, State Superintendent Msrrs issued
an order tilthholdlngthe Austin District's portion of the
county available sch'i501
funds for the year 1930. The Austin
District sought to have a writ of mandamus Issued commanding
Msrrs to countermand his Instruction and permit the Austin
District-to have its available funds. The court grant-& the
mandamus, but stated that the Austin District should pay its
portion of the County Superintendent's salary. By way of
dictum, Judge Harvey in the above case, stated:
"Nothing has been found In the Constitution
which restrains the Legislature from authorizing
the approprlatlon of available funds belonging
to any school district to the payment for the
benefits received by the public schools of such
district."
In construing :thls statement of the court, we make
the following observations:
The court In granting the mandamus holas that
the avalkble school Sun&s must follow their prescribed
course.
2. The statute involving the County Superintendent's
salary was in effect an appropriation, whereas Article 2922L
is not an appropriation but gives the Superintendent of Schools
the extra legal power of withholding funds.
. .
Hon. W. K. McClaln, Msrch 1, 1939, page 5 O-306
3. As the court very clearly pointed out, each dls-
trlct receives specific benefits from the work of the county
Superintendent, whereas, under Article 2922L the Constltu-
tlonal rights of the scholastics remaining In the sending
district are denied and penalized for the benefit of the few.
transferring scholastics.
The language of the coristltutlonwas carefully sel-
ected and the Supreme Court stated very forcibly that the
available school funds shall be distributed to the several
counties according to their scholastic population. To give
the State Superintendent of Schools the extra legal power
to impound the funds and to block the course prescribed by
our constltutlon for those funds Is clearly contrary to the
spirit and the language of the constitution.
It Is, therefore, the opinion of this Department that
our question must be answered ln the negative, as Section
t Article 2922L of the Revised Civil Statutes conflicts
with Section 5 of Article 7 of the Constitution of the State
of Texas.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Glenn R. Lewis
Assistant
PBI:+3:wc
This opinion has been considered ix?conference, ap-
proved, and ordered recorded.
s/Gerald C. Mann
Gerald C. Msnn
ATTORNEYGRNRRAL OF TEXAS