Untitled Texas Attorney General Opinion ( 1966 )

June 15, 1966
Honorable J. W. Edgar Opinion No, C-709
Commissioner of Education
Texas Education Agency Re: Whether a school district
Austin, Texas (Bay City I.S.D.) is
eligible for a refund
under Article &054, Ver-
non's Civil Statutes
(Which refers to Article
4053d) on shell purchased
and used for building
roads around its high
school property pursuant
Dear Dr. Edgar: to contract.
You have requested the opinion of this office on the
above stated matter. We quoted from your letter:
"In the summer of 1965, the Bay City
Independent School District built roads
around and adjacent to its high school prop-
erty. Shell was contracted and purchased
from the Matagorda Shell Company in Matagorda
In the amount of $9684.80 and used therefor.
'In March 1966, the school district filed
application with Texas Parks and Wildlife
Department for a Sand, Shell and Gravel Refund
Claim In the sum of 632.70 (about 15%) pur-
suant to Article 495 t and/or 4053d.
"On March 7, 1966, said Department advised
the school district In substance that Article
4054 authorizes such refunds to counties, cities
or subdivisions of the county--that an independent
school district is not eligible under the law
therefor."
We have been advised by the Parks and Wildlife Com-
mission that such Interpretation and construction has been
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Hon. J. W. Edgar, Page 2 (C-709)
consistently heretofore applied for over thirty-five (35) years.
It has long been held that the courts will.ordinarily
adopt and uphold a construction placed on a statute by a depart-
ment charged with Its adminlstratlon unless the construction so
given Is unreasonable, It is our opinion that this departmental
construction is in line with the plain and unambiguous language
of the statutes In question.
Article 4053d, Vernon's Civil Statutes, authorizes the
Commissioner to sell marl, gravel, sand, shell or mudshell upon
such terms and conditions as he may deem proper but for not less
than four cents (I$) per ton. This Article further provides for
the payment of refunds to counties, cities or towns or any pollt-
lcal subdivision of a county, city or town as provided in Article
4054, Vernon's Civil Statutes. In addition, It provides specific
authorization for the payment of refunds to the State Highway
Commission.
Article 4054 provides as follows:
"If any count , or subdivision of a count
city or town shoul.%desire any marih;d,
shell or mudshell Included in this chapter for use
in the building of any road or street, which work
is done by said count- y subdivision of a
county, city or + own, such
Or munlcipallty
an may be
granted a permit without charge and shall have
the right to take, carry away or operate in any
waters or upon any islands, reefs or bars ln-
eluded herein; such municipality to do the work
under Its own supervision, but shall first obtain
from the Commissioner 1 a permit to do so, and
the granting of same for the operation in the
territory designated by such munlcipallty shall
be subject to the same rules, regulations and
limitations and discretion of the Commissioner
as are other applicants, and permits. When such
building of roads or taking of suoh products is
to be done by contract, then the said munlclpallty
may obtain a refund from the Commissioner of the
tax levied and collected on said products as fixed
by the Commissioner at the time of the taking
l/ Office of Commissioner abolished and powers and duties conferred
zn Game, Fish and Oyster Commission, see Vernon's Penal Code, Article
g78f. NOTE: Now Parks and Wildlife Commission, Article 978fk3a,
Vernon's Penal Code.
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Hon. J. W. Edgar, Page 3 (C-709)
thereof, by warrant drawn by the Comptroller
upon itemized account sworn to by the proper
officer representing such municipality and
approved by the Commissioner, and und,er such
other rules and regufiationsas may be rescribed
by the Commissioner. (Emphasis addedP
It is noted that nowhere do the statutes here under
consideration refer to an independent school district. Likewise
it is clear that an Independent school district Is neither a
county, city or town nor is It a political subdivision of a county.
51 Tex.Jur.2d 345, Schools, Sets. 14 and 16,
We are of the opinion from the reading of the above men-
tioned statutes that the language used is plain and unambiguous in
its meaning and in such case the law will be applied as It reads.
Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037 (1916); Vaughan v.
Southwestern rety Insurance Co., log Tex. 298, 206 s. 0
'(1916) Simmo: v. Arnim, 110 Tex. 309, 220 S.W. 66 (19%)?2Gately
v. Hum&rey, 151 Tex. 588, 254 S.W.2d 98 (1952).
Furthermore, the courts have held that school districts
are subdivisions of the state government, created for the purpose
of administering the state's system of public schools. Love v.
Dallas; 120 Tex. 351, 40 S.W.2d 20 (1931); Dupuy v. State, lob
S. 287 (Tex.Crlm. 1937); Lee v. Leonard Ind. School Dist.,
2L' S.W.2d 449 (Tex.Clv.App. 1930, error ref.).
You are therefore advised that it is our opinion that
Bay City Independent School District is lnellglble for a refund
under Article 4054 on shell purchased under contract for use in
building roads around Its high school property.
SUMMARY
The Bay City Independent School District is
ineliglble for a refund under Article 4054, Ver-
non's Civil Statutes, on shell purchased under
contract for use in building roads around its high
school property.
Very truly yours,
WAGGONER CARR
JPC:mh:mkh
Hon. J. W. Edgar, page 4 (C-709)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
Wade Anderson
Ben Harrison
Ferns Taylor
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
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