Untitled Texas Attorney General Opinion ( 1949 )

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THE NEYGENERAL
October 3, 1949
Hon. C. I-I. Cavness Opinion No. V-921
State Auditor
Austin, Texas Re: Jurisdiction of State
``Auditor under S. B.
116 and penalties for
failure of a district to
comply with S. B. 116.
Dear Sir:
You have requested an opinion on several ques-
tions arising under the recent Gilmer-Aikin Acts.
Your first question is whether S. B. 116 places
all schools and resident scholastics under the jurisdiction and
authority of the Foundation School Program Division of the State
Auditor’s Office. This is a broad question with no fact situation
presented. It is difficult to make accurate sweeping answers to
that type of question. At least generally speaking, the answer is
that the Act placesthemunder that office. Article X of S. B. 116
says:
II
. . 0 after the effective date of this
Act and until the State Board of Education
shall have been elected and the State Com-
missioner 0 . . shall have been appointed...
the State Auditor shall take over and per-
form all of the duties herein assigned to the
State Commissioner, . . and is hereby au-
thorized to do and perform all acts neces-
sary to put this Act into effect. and to oper-
ate and administer the same. . . .
“In carrying out the provisions of
this Act. . . all . . . school officials and
employees, arehereby directed to furnish
. -
Hon. C. H. Cavness, Page 2 (V-921) .
to the State Auditor such reports, records and
other information as he may require in carry-
ing out the provisions of this Act.” (Emphasis
added throughout).
Your second question is whether Boards of School
Trustees are liable to penalties under Article XI, Section 2, if they
refuse to pay the minimum salaries provided in S. B. 116. This is
likewise a hypothetical question with no facts. You do not state
that there has been a refusal to comply with S. B. 116. We there-
fore do not deem it expedient to attempt to lay down any hard and
fast, pronouncements as to what we think the courts would hold un-
til all’the circumstances of an actual situation are presented.
Section 1 of Article IV of S. B. 116 says that:
“Beginning with the school year 1949-
1950, the Board of Trustees of each and every
school district in the State of Texas shall pay
their teachers, both whites and negroes, upon
a .salary schedule providing a minimum begin-
ning base salary plus increments above the
minimum for additional experience in teach-
ing as hereinafter prescribed. The salaries
fixed herein shall be regarded as minimum
salaries only and each district may supplement
such salaries. ~ . .
“ly law or parts of laws in conflict
with Section 1 of Article IV of this Act are
hereby repealed.”
These salary provisions are plain, They repeal
all minimum salary laws in conflict with them. The Legislature
undoubtedly intended that these provisions should be complied with
in all districts. It pronounced that no financial assistance under
the Act should be given any school which failed to pay the minimum
Hon. C. H. Cavness, Page 3 (V-921)
salaries. It further provided any school which failed to pay mini-
mum salaries would lose its affiliation and accreditation. These
penalties are stated in the 4th paragraph of Section 1 of Article IV:
“Provided that payment of at least the
minimum salary schedule provided herein
shall be a condition precedent: (1) to a school’s
participatmn in the Foundation School Fund;
and (2) to its names being placed or continued
upon the official list of affiliated or accredited
schools. s :’
It is presumed that officials of the State will per-
form their duties under the law. Mexia I.S.D. v. Mexia, 134 Tex.
95, 133 S.W.2d, 118 (1939); Stewart v. Moore, 291 S.W. 886 (Tex.
Comm. App. 1927); Donna I.S.D. v. Sanders. 57 S.W.2~d 857 (Ter.
civ. App. 1933); Meecham. Public Offices and Officers 379; Throop,
Public Officers 535; 34 Tex, Jur. 462, Public Officers, Sec. 81; 17
Tex. Jur. 271. Evidence, Civil Cases, Sec. 75.
It will not be presumed that school trustees will de-
prive their districts of the financial benefits of the State’s program
and deprive their students of scholastic affiliation and accredita-
tion. We will therefore refrain from passing upon the question of
whether any recalcitrant trustees are criminally liable to fines
from $100 to $1000 under Section 2 of Article XI if they pay less
than the minimum wage. The many circumstances surrounding
criminal responsibility are such as could not be accurately antici-
pated and disposed of in an abstract and summary manner. To say
the least, those who fail to obey this law would subject themselves
to the possibility of prosecution. In this regard Section 2 of Article
XI provides:
“Any person, including any county su-
perintendent or ex-officio county superintend-
ent, school bus driver, school trustee, or any
district superintendent, principal or other ad-
ministrative personnel. or teacher of a school
district, or its treasurer or proper disburs-
ing officer, who violates any of the provisions
Hon. C. H. Cavness, Page 4 (V-921)
of this Act other than those to which Section 1
of Article XI of this Act applies, shall be
guilty of a misdemeanor and shall be fined
not less, than One Hundred ($100.00) Dollars
nor more than One Thousand ($l,OOO.OO) Dol-
lars. ~. . .”
Your fourth question inquires about the penalties
applicable if a local school board fails to make an effort to raise
the local funds to assist in the program. This question also is
too broad for there to be a pin-point answer. There may be many
different facts and circumstances surrounding such failure. For
example, the provisions of Article VI would seem to require a
school district to increase its maintenance tax if necessary to
meet the local charge determined for the district. The Legisla-
ture did not intend that any district should increase its tax rate
over the $1.50 limit fixed in Article 2784e in order to meet the
local charge or assignment determined. It is stated in the fourth
and fifth paragraphs of Section 5 of Article VI that:
“Provided that if the revenue that
would be derived from the legal maximum
local maintenance school tax is less than
the amount that is assigned to a school dis-
trict according to the economic index, and
if such property valuation is valued for
State and county purposes, such lesser
amount shall be the amount assigned to be
raised by such school district.
“Provided further, that if a school
district is unable or for any reason fails to
collect local maintenance school funds
equal to the amount assigned to it as deter-
mined by this Act, such failure will not
make the district ineligible for full State
per capita apportionment and full Founda-
tion School Fund grants, but the amount as
determined by this Act shall be charged
against the district as budgetary receipts
whether such amount is collected or not.”
Hon. C. H. Cavness, Page 5 (V-921)
Both Section 3 of Article VII of the Texas Consti-
tution and Article 2784e. V.C.S., authorize the levy and collection
of local maintenance taxes only upon a majority vote of the quali-
fied property taxpaying voters of the district. The inclusion in
Sen,ate Bill 116 of the above provisions constitutes legislative rec-
ognition of such constitutional and statutory limitations. Certain-
ly where the people of a school district vote against a tax in-
crease, the school district trustees would be unable to raise the
funds equal to the amount assigned,
The Legislature has required local boards of
trustees to extend their, efforts to raising local funds to equal
the amount to be charged and used by the district in carrying out
the purposes of Senate Bill 116. But it cannot force the voters in
a school district to vote for a lo& maintenance tax which will
raise that necessary amount. It may be that the Legislature
could have guaranteed the establishment and financing of the pre-
scribed minimum program in every school district in Texas by
adequate appropriations from State funds of all tlie money re*
quired (over and above State and County Available School Funds
to-be realized by the Districts) to take care of the total costs of
the minimum program prescribed, but it did not do so in Senate
Bill 116. The Bill requires all local school districts to raise
from local sources forty-five million dollars toward the total
cost of the prescribed minimum program. It does not guarantee
to each and every district a minimum foundation program. It
guarantees only, to the extent of State funds appropriated for
such purpose, the availability of a minimum foundation program
to each child of school age in Texas. Thus, the full cooperation
of the property taxpaying voters of each school district is neces-
sary to effectuate in full the intended purpose and program pre-
scribed in the Act. To the extent that taxpayers of the school
districts do provide local funds sufficient to discharge the ob-
ligation or charge imposed upon them to be used in the minimum
program, we think the boards of trustees thereof are under a
duty to make available to their scholastics the minimum pro-
gram provided in the Act.
Hon. C. H. Cavness, Page 6 (V-921)
As in answering question two, we will pretermit
any discussion of criminal liability until some specific situation
is presented with all the surrounding circumstances.
Your last two questions deal with the nine-month
school term: (1) Is there cr,iminal responsibility for the failure
of the school trustees to have a nine-months’ school; and (2)
what Gilmer-Aikin funds, ,if any, are available to a district which
fails to have a full nine-month8 term?
As in the previous questions, we pass for the
present the question of criminal liability under Section 2 of Arti-
cle XI quoted herein on page 3.
However. it was unquestionably and positively the
intention of the Legislature that a full nine-months” term be held
under the Gilmer-Aikin program. Senate Bill 116 declares at
the outset that:
I‘
It is the purpose of this
. . . Act to
guarantee to each child of school age in
Texas the availability of a minimum Founda-
tion School Program for nine (9) full months
of the year. . . .”
An examination of Article IV will reveal that the
salary schedules, for the most part, contemplate a minimum of
a nine-,months’ school. Annual salaries, in general, are obtained
by multiplying the monthly salaries by nine.
However, there is no provision, as there was
with regard to minimum salaries, that participation in the bene-
fits of the program and accreditation is conditioned on a nine-
months’school. And it is provided that classroom teachers
shall be paid an annual salary of the monthly salary multiplied
by nine.
6.
. . . provided however that if the length
of the school term is less than nine months, the
annual salary shall be such base salary and,in-
crements multiplied by the number of months in
the term. ”
Hon. C. H. Cavness, Page 7 (V-921)
A similar provision is made as to the salaries
of principals in certain districts.
Although the Legislature provided for circum-
stances wherein school terms are less than nine months and
did not specifically set out the consequences of a failure to
have a nine-months’school, its dominant objective was “to
guarantee to each child. ~ O the availability of a minimum
Foundation School Program for nine full months of the year.”
We interpret the program to be one for a mini-
mum of nine months. Any school district which maintains its
schools for a less period would therefore be entitled only to
a fractional share of the benefits. The fraction would be de-
termined by the number of months the schools were operated.
This is indicated by the provisions of Section 2 of Article V
dealing with transportation aid, The aid to be given is a
stated amount “for nine months transportation per public
school pupil. or a proportionate part thereof if such pupil
is not transported for nine months.”
The above are intended to be but general re-
marks. It was the general legislative intent that the public
schools participating in the Gilmer-Aikin program should
have a full nine months’term. Financial aid is made avail-
able to insure such a schedule.
Many problems will doubtless arise, and we.
of course, cannot solve them all at this time. Certainly
school trustees may not discriminate among pupils similar-
ly situated within their district and furnish some seven
months and others nine months of school under the Gilmer-
Aikin program. The equal protection clauses of the Texas
and Federal Constitutions would prohibit that action, and it
would be in violation of the spirit of the Gilmer-Aikin pro-
gram. Those districts which have less than a nine-months*
program will be denied a proportionate part of the financial
assistance made available under the Acts.
Hon. C. H. Cavness. Page 8 (V-921)
SUMlvfARY
The Gilmer-Aikin Acts fix the minimum
salaries for school teachers and other school
employees. Payment of at least that salary is
a condition precedent to a school’s participation
in the Foundation School Fund and to its name
being placed or continued on the official list of
affiliated or accredited schools. Sec. 1 of Art.
IV, S.B. 116, Acts 51st Leg. 1949.
The Gilmer-Aikin Acts contemplate a
full nine months’school program. A district
operating less than nine months of school is
entitled only to a fractional share of the Founda-
tion School Funds.
‘Yours very truly,
ATTORNEYGENERALOF TEXAS
BY Joe R. Greenhill
First Assistant
JRG:erc ATTORNEYGENERAL