Untitled Texas Attorney General Opinion ( 1944 )

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OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
gr. in. 8. rking,Legislative 4+oo0untant
Joint Legielativa CoLmitte@
,,ustin11, Texns
reading as followa:
ltod by the foregoing:
Eoure Bill Ao. 176,
eenent of tbo board oT
dietriots oonoomod or
ed by a ma)ority of the
ora oi the dbtriot and
he approval of the oounty
nt-,and the State Superin-
tendent, a district whioh raay%o unable
to 'Iaaintalna tiatiefaotoryilchoolmay
transfer Its entire eoholaetlo euroll-
ment ror one year to an aooredlted eohool
or higher rank. If the reoeiving aohool
reoeivee State kid, the aoholaetlo oensu6
rollo both white and colored shall be
combtied, the per oapita apporti-nt
shall~be paid direot to the receiving
school, all local taxes oi tho sending
contraoting dletniot, eroopt thO84 going
to the interest and ainking fund shall bo
credited to the receiving eohool by the
tax oolleotor as oollootsd, and tlm teacher
pupil quota shall be bassd on the oomblwd
census total * * **
Wk large numbar of sohool dietriots throughout the Stat4
carried out agraemsnts,to oontraot. In oartain ln4tanoes
it was found that a f4u sohool diatrlots did not hollow
the law and roquortsd oanoollation of said oontraot. This
Is partioularily true in oases of sohool districts oon-
tract&g to roooiving sohoolr which did not maintain an
aooredltod oolorod school of higher rank. In other in-
stanoes schools oontraotod to Rooelvlng Dlstriots whloh
did not maintain an aooroditod sohool.
*It is assumed that tM rooelving sob001 aoabimd
the scholastic oonsus roPl8 both whit4 and colored and
the per oapita apportionment of the sondIng oonttaotlng
district was paid to the reoelvlng rohool and all looal
taxes of the sonding oontraotlng district, rxospt those
going to th4 interoat aud rinkl~ fund, was orsdit4d to
the reooiving oohool and the toaohsr pupil quota was
based on the oomblned census total.
nArtlol4 6, Sootion 1, of Hous Bllllfo. 176, roads,
In pert, as follows:
**The trust448 of the distrlots authorlaod
to apply for aid undsr th8 provialonr of this
Act shall send to ths Stat4 Yuporintendont of
Publio Inetruotion on form provided by said
authority, all information that may be ro-
qulrod . said rorms will lncludo a budget by
which the amount of Salary xld to which a
sohool will bo ollgible shall be determlnod.
The roooipts as shown in said budget will in-
oludo t&e &ate, and Copsty Available and looal
maintenanoo balanoso brought forward iron the
prsoeding par, State and County Available and
Local Malaintonsnoo rooolptr for tho current
year, tuition to ba oollootod locally, end
misoellan4ou8 r8oalpt8. The orponditure will
inoludo salatktisof traohers as drtsnained b
the salary sohedulo stated hersin, and a mexI -
mum of One Hundrsd Eighty Dollars ($180.) ger
teachor per y4ar in aooreditod sohaol8 and
One Rundred S:r'CyDollars ($laO.) per tcraohor
per year in unaooroditod oohools for otbsr
current expeneos; * * *(
"a joint departmental policy wae followed wherein
dletrlote oontraotlng to a Salary iiidsohool it would
not ba ncoessary for the sending oontraotlne district
to submit au applloation. This procedure, by canoella-
tion or the oontraot, &ids noosesary the filing or an
application by the District whloh had at an earllar
data executed an agreement to oontraot.
further from Houee Bill NO. 176, iwtiolo
wcluotln(:
2, Seotion B, which reads a6 follow8r
ty&
"*?llln Data. All applioatlon8 for any
aiduthorisod herein, exaopt tui-
tion aid, ahall b4 on tha fll4 with th4
3tato Department of &luoatIon in Austin
not later than Ootober 1st Of saoh sohola8-
tlo year ior wbI4h ai@ l8 ask&. 3ohool8
Who84 appllcationr for Stat8 aid ar4 fllod
let82 then Ootob4r 1st Of 4a4h year for whloh
aid i8 aSk4d, Shall b4 inaligfblr for any
typo oi aid;*
*From the abovo izuorimtlon w4 wish to SUbnit th4 tollow-
ing qimation:
wan th4 Offi 0r tbll Legislatiro AO-
countant aoo4pt a lmtr riling dats of an
application when muoh oontraot was oan-
ool.led after October 1, of the roholas-
tic year9 * * *"
In opinion No. O-154135,w4 hold that the rcqniro.mnt that
all appllcatlone for any type of aid, 4xoopt t&&ion aid, ahall be
riled not later than Ootobsr 1st Of la4h 8Ohola8tiO year is maada-
tory.
In that opinion i# found ths following l4qymg4:
"findfrom the opinion of the court in the
oas4 of Gomoe V. Tlfaon,le8 5. w. 666, wd
quote tha r0u0wing:
2215
“‘-A Ol4U84 18 dlrootorf whim the QrOVi-
8IOn contains wro matter of direction and
no mcm4; but not so when followed by words
or poaitlvs prohibition.* Bladon v. Phlladol-
phia, 60 Pa. 466; Pearoe v. pdorri8,2 Ad I
&i. 96. Prohibitory Word8 oan rar4ly if over
be direotory. Them is but on4 way to obey
the 0omm6nt*thou Shalt not " whloh is to
abstain altogothor from dofng the aot iOr-
biddon. ’
*Thus, tho eonera rId4 18 mu-ostabliehed
that statutory provisions atilrm8tlvoly worded
Andy8etting forth the t5.m in which an act is
to bo dono am usually dlmotory; but where
the provisions in nogatlvely worded or oontaine
nogatlvr words rrrtraiain$ tha doing of the aOt
aitor such time, th4 provl8lon 18 nmmlatory.
540 the rooont ease or Narkowskyet al. t.
Newman et al., (sup.~ct.), 136 s. w. (Ed] 808,
offhming this role.
RNow,let ua apply the84 prino~plos to Sootion a,
Artlclo $3of the rural aid bill. Section Z door not
sisply road: t.ipplio8tionShell be on file ~by Ooto-
bar 18t.e ft (lo48auoh further and 18 muoh strongor,
for It reader
"'All applications for any typ4 of aid an-
thorized heroin, oxoopt tultlon aid, ehall bo
on tll4 with tho St&o Department of Muoation
in Austin not later than Ootober l.efof saoh
8ohola8tio year ?or whloh aid ia asked. Sehoo18
who84 applications for etats aid are filed Later
than Ootober let of etlohyear for whioh aid is
BE INELIGIBLE for any type of aid.*
asked, sK~l.3,
(Emphaeis ours)
"This provision 18 ol4arly in wgatlvo Minguage.
~ovt8ionl:i8 I&ad4th4t the application8 shall be
fil4d Rot &tOr th4n Ootobor lat. &on 80, the
LegIel~o was not taatirfiodwith this alone,
for it atied th4 provieion th4t School8 Whoso
appllaatlons are filed later thsn Ootob4r 1st
shall bo Ineligible for any kind of aid.
*Thie provision ia not only iR nogativ4 words,
but It also oontairu a positive prohibition or
limitation. Th8 provision 18, therororo, manda-
You BPS thorsror4 advised that seotion
k%4s the in~lf~ibIlify~posItivo and dofinite
beyond any deolsion or aotlon on the p4rt of th4
Department of Eduoation or any other body.
"The Lsgfslatur4 has in the plainoat and most
poeltlve lsnguaga made a dofinlte determination
that Ootober 1st 18 the deadllns for the err40-
tlvo filing of all applloationr for aid exoopt
tuition aid. Any oonol.u6lonothar tlmn thr one
whioh w4 have raaohad would bo, in lrroot, hold-
ing that th8 Le&elaturo is power1488 to ret a
time within which applfoatlonr must b8 fihd.
The absurdity of suoh a oonolu8lon is apparent."
Your QUOStiW, thorororm, 18 amwersd in tlm n4gativ4.
Your8 tory truly
ATTORN6Y GmU CF T6XkS
C. F. Gibson
ASt4iStMt