Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April S, 2010
Dr. Carl A. Montoya Opinion No. GA-0767
Chair, Texas School Safety Center Board
Brownsville Independent School District Re: Authority of the Board of Directors of the
1900 Price Road Texas School Safety Center under various
Brownsville, Texas 78S21-2417 provisions of subchapter G, chapter 37, Texas
Education Code (RQ-083S-GA)
Dear Dr. Montoya:
The Legislature established the Texas School Safety Center (the "Center") as a permanent
entity in 2001 to serve as "a central location for school safety information ... and a resource for
the prevention of youth violence and the promotion of safety in the state." 1 TEx. EDUC. CODE .ANN.
§ 37.202 (Vernon Supp. 2009). The Center is advised by the Board of Directors (the "Board"),
which is comprised of a number of State officials, or their designees, and gubernatorial appointees.
Id. § 37.203(a). You ask several questions related to the authority of the Center's Board?
You first ask whether the Board has ''jurisdiction under the Education Code to approve or
disapprove" the Center's budget. Request Letter at 2. Subsection 37.21S(a) of the Education Code
expressly states, "[t]he board shall annually approve a budget for the center." TEx. EDUC. CODE
.ANN. § 37.21S(a) (Vernon 2006). Use of the word "shall" imposes a duty on the Board and is
generally construed as mandatory, "unless legislative intent suggests otherwise." City ofAustin v.
Sw. Bell Tel. Co., 92 S.W.3d 434,442 (Tex. 2002); see also TEx. GOV'T CODE ANN. § 311.016(2)
(Vernon 200S) (explaining that "'[s]hall' imposes a duty"). We find no contrary legislative intent
and thus conclude that under the plain language of the statute the Board must approve a budget each
year for the Center.
However, while section 37.21S(a) does not expressly state that the Board also has the
authority to disapprove a particular budget, neither does the section suggest that the Board must
approve any specific budget submitted to it. If the Board were required to approve any proposed
budget, the approval requirement would be meaningless, and we assume the Legislature did not enact
IPrior to 2001, the Center existed "as a grant-funded organization within the Criminal Justice Division of the
Office of the Governor." SENATE COMM. ON PUBLIC EDUC., BILL ANALYSIS, Tex. S.B. 430, 77th Leg., R.S. (2001).
2Request Letter at 2 (available at http://www.texasattorneygeneral.gov).
Dr. Carl A. Montoya· - Page 2 (GA-0767)
a meaningless statute. Webb County Appraisal Dist. v. New Laredo Hotel, Inc., 792 S.W.2d 952,
954 (Tex. 1990). In addition, Texas attorneys general have addressed budget approval statutes
governing other entities and have found implicit authority for those entities to disapprove budgets
subject to their approval. See, e.g., Tex. Att'y Gen. Op. Nos. JM-79 (1983) at 3, MW-15 (1979) at
2, H -908 (1976) at 3. For example, in Attorney General Opinion JM-79, the statute at issue required
an administrator of a hospital district to "prepare an annual budget which shall be ... presented to
the Commissioners Court for fmal approval." Tex. Att'y Gen. Op. No. JM-79 (1983) at 1, 3. That
opinion concluded that based on the language in the statute the commissioners court was
"empowered to r~ject any budget submitted." Id. at 3; cf Comm'rs Court o/Hays County v. Dist.
Judge, 506 S.W.2d 630, 635 (Tex. Civ. App.-Austin 1974, writ refd n.r.e.) (concluding that,
because a separate statute required a s,pecific budget allocation, a commissioners court could reject
a submitted budget only if it was so unreasonable, arbitrary or capricious to amount to an abuse of
discretion). Similarly, in Attorney General Opinion H-908, where a statute required that salaries of
assistant prosecuting attorneys be "fixed by the prosecuting attorney, subject to the approval of the
commissioners court," the opinion concluded that "[t]he commissioners may disapprove the salaries,
and therefore can be said to have veto power over that part of the district attorney's budget." Tex.
Att'y Gen. Op. No. H-908 (1976) at 3; see also Tex. Att'y Gen. Op. No. DM-132 (1992) at 4, 6
(explaining that a principal's statutory authority to "approve all teacher and staff appointments" was
"more like a veto power"). We believe the Board similarly has veto power over the Center's budget.
Thus, we conclude that the Board is authorized either to approve or disapprove a particular budget
submitted to it, as long as it ultimately approves a budget each year.
Your second and third questions ask whether the Board has jurisdiction to "advise the Texas
School Safety Center," specifically with regard to the budget and the organization and design of the
Center, and to "approve budgets for programs not required under the Education Code." Request
Letter at 2.
Under the plain language ofthe statute, the Legislature has given the Board general authority
to advise the Center. TEx. EDUC. CODE ANN. § 37.203(a) (Vernon Supp. 2009) ("The center is
advised by a board of directors .... "). The Legislature has not otherwise limited the subject matter
of the advice that the Board may offer. We therefore conclude that the Board may offer advice to
the Center, including advice concerning the budget and the organization and design of the Center.
Whether the Board may approve budgets for programs not required under the Education
Code, however, is a separate question that requires further analysis of the Center's authority under
the statute. The Center is a creation of the Legislature, and as such it has only the powers conferred
on it, expressly or impliedly, by the Legislature. State v. Jackson, 376 S.W.2d 341, 344 (Tex. 1964);
see also Tex. Mun. Power Agency v. Pub. Util. Comm'n, 253 S.W.3d 184, 192-93 (Tex. 2007)
(explaining that a state agency's powers are limited to those expressly conferred or implied and
reasonably necessary to carry out the express responsibilities given to it by the Legislature). The
Legislature's purpose for the Center is ''to serve as: (1) a central location for school safety and
security information ~ .. ; (2) a central registry of persons providing school safety and security
consulting services in the state; and (3) a resource for the prevention of youth violence and the
promotion of safety in the state." TEx. EDUC. CODE ANN. § 37.202 (Vernon Supp. 2009). To those
Dr. Carl A. Montoya - Page 3 (GA-0767)
ends, the Legislature has dictated specific responsibilities that the Center shall perform, including
conducting a safety training program for school districts, developing "security criteria that school
districts may consider in the design of instructional facilities," and developing a "model safety and
security audit procedure for use by school districts and public junior college districts." ld. §§ 37.205,
.2051 (Vernon 2006),37.207 (Vernon Supp. 2009); see also id. §§ 37.209-.213 (Vernon SUpp.
2009) (outlining additional responsibilities of the Center). Thus, the Center is limited to furthering
these statutorily prescribed purposes and responsibilities. By implication, the Board is likewise
limited to approving budgets for only those programs that are in furtherance of the Center's
legislatively prescribed purposes and responsibilities and that fall within the Center's express or
necessarily implied powers.
In your final question, you ask whether "the Board [has] liability for the funds approved for
the operation of the Texas School Safety Center." Request Letter at 2. You do not specify whether
you are concerned with the liability of individual Board members or the Board's liability as a
governmental entity, nor do you explain the specific basis of liability that concerns you. Without
additional information, we cannot provide an answer to this question. We also note that whether
individual members ofthe Board could be held liable in a particular instance, and whether the Board
itself could be held liable, would depend on factual determinations that generally cannot be resolved
in the opinion process. See Tex. Att'y Gen. Op. No. GA-0115 (2003) at 2 (explaining that "we
cannot determine in any particular instance whether the elements of a defense of official immunity
have been met").
Dr. Carl A. Montoya - Page 4 (GA-0767)
SUMMARY
The Board of the Texas School Safety Center is authorized to
either approve or disapprove a particular budget submitted to it by the
Center, as long as it ultimately approves a budget annually as required
by the Legislature.
The Board may offer advice to the Center, including advice
concerning the organization and design of the Center.
The Board is limited to approving budgets for only those
programs that are in furtherance of the Center's legislatively
prescribed purposes and responsibilities and that fall within the
Center's express or necessarily implied powers.
Whether individual members ofthe Board could be held liable
for funds approved for the operation of the Center, and whether the
Board itself could be held liable, would depend on factual
determinations that cannot be resolved in the opinion process.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee