Untitled Texas Attorney General Opinion ( 1943 )

Hon. Royal1 R. Watkins Opinion Number O-5671
For State Board of Edu- Re: Can the State Board of Education
cation of Texas approve high school tuition and trans-
1201 Main Street portation and the per capita payment
Dallas, Texas of children taught by the receiving
school when the sending district is
otherwise eligible under the equali-
zation statutes, and none of the grades
are taught in the home district?
And other questions concerning the ad-
Dear Sir: ministration of the Equalization Law.
We acknowledge receipt of your letter of recent date,
in which you request our opinion on the following questions:
“(1) Can the State Board of Education approve
high school tuition and transportation and the per
capita payment of children taught by the receiving
school when the sending district is otherwise eligi-
ble under the equalization statutes, and none of
the grades are taught in the home district?
“(2) Can the State Department of Education le-
gally approve any transfers for the 1942-43 scholas-
tic year, at any time during 1943, and date such
transfers back prior to August 1, 1942?
"(3) In preparing the Budgets for the various
schools, can there be eliminated from the Budget of
the sending district, for the benefit of the receiv-
ing school, the per capita on pupils not contracted
nor transferred and who are not eligible for High
school tuition whose grades are not taught in the
district of residence but who are attending another
school?
“(4j May there be eliminated from the Budget
of the sending district the per capita and pro rata
share of the local maintenance on pupils not con-
tracted nor transferred and who are not eligible for
High School tuition for the reason that they are not
h
Ron. Royal1 ii. iatkins, page 2
prepared to enter a High school grade and whose
grades are not taught in the district of resi-
dence but who are attending another school?
“(5) Under the Rural Hid Law for 1942-43 can a
school district be allowed to pay its own cost of
instruction for elementary tuition; that is, allow-
ing for each scholastic their part of the per capita
and their share of local. maintenance tax to be charg-
ed into the Salary Aid Budget as expendj.tures?
“(6) Now, since the general law requires that the
trustees of a district provides a school for all the
children who live in their district or pay the cost of
teaching them in another district where they do attend,
and since the general law also provides that elemen-
tary tuition be paid in the same manner as high school
tuition, and since the Transportation Aid provides for
the transportation of these elementary children whose
grades are not taught at home even though they are not
from contracted districts and since Salary Aid pro-
vides for a supplement to the State Available and Local
Maintenance Fund to pay the approved cost of instruc-
tion on elementary children from the contracting dis-
tricts, is there anything in the general law or the
Rural Aid Law that will prohibit a supplement from the
Salary Aid Fund ‘to cover the approved cost of instruc-
tion per scholastic in the receiving school’ for pupils
who are not from a contracted district but whose grades
are not taught in the home, or sending district?”
We shall attempt to answer your questions in numerical
order.
1. Your first inquiry pertains to three classes of
State school funds, and the allotment of each type of aid is
governed by statutory provisions not applicable to either of
the others. In consequence, we will consider the question as
having three parts, one relating to each type of fund inquired
about, and will attempt to answer the questions accordingly.
(a1 Per caoita auoorti m. Under the laws govern-
ing distribution of the available school fund. the oer ca:jita
apportionment is distributed to the district in which the-child
is enumerated, usually his home dis,trict. The statutes do pro-
vide, however, for the transfer of the scholastic to another
district in the instances enumerated in the statutes. kevised
Statutes, Arts. 2695-2699, incl.; Art. 2922L-1, Vernon’s Anno-
tated Civil Statutes. Uhere the scholastic is transferred within
,-.
9on. Royal R. Yatkins, page 3
the time and in the manner prescribed by l-ti,j, the per cai)Zta
apportionment follows him to the district to which he is-so
transferred; excepting the instances where the scho1astj.c j.s
transferred in one of the modes prescribed by statute, the
per capita apportionment on such scholastic is payable only
to the district wherein he is enumerated. Art. 2699, Revised
Statutes; Love Vs. City of Dallas 40 9.P;. (2) 20. i4cCorkle
vs. Trustees of Robinson Springs fichool Xstrict io. 76 of
Comanche County, (Tex.Civ.App.) 121 ;.z. (2) 1048.
(b) Transoortation ai . Transportation aid allow-
able during the schoolyear 1942- 3 was governed by the provi-
sions of particle V .of Chapter 549, Acts 47th Legisiature.
Yhether transportation aid could be paid upon a child attend-
ing school in a district other than his home district depended
upon: (1) whether Ns grade was taught in his home district
(2) whether payment of transportation aid is otherwise allowid
under Article V (e.g.,, transportation aid ‘is not allowable
upon a child who resides within two and one-half miles of the
school he attends), and (3) that need therefor can be shown as
required by Article V.
(c) High school tuition. High school tuition is pay-
able out of the appropriation made in Chapter 549, supra, in
accordance with the provisions of titicle IV. By that subdi-
vision of the equalization aid appropriation act, high school
tuition “shall be paid according to the provisions of this Act.”
House Bill No. 158 is listed in Vernon’s Annotated Civil Stat-
utes as Article 2922~-1.
Where a high school student, who has completed the
grades taught in his home district, is transferred to a high
school in another district in his home county, in accordance
with Article 2922L-1, supra, his per capita money should be
transferred to the school he attends, and is dedicated to pay-
ment of his tuition there so far as it will do so. If he at-
tends school in a district outside the county of his residence,
transfer of his per capita funds is accomplished by payment of
the same by his home district to the receiving district.
The additional moneys which may be allowed as ‘high
school tuition upon high school students transferred under Ar-
ticle 29225-l from their home district, wherein their grades
are not taught, to a convenient district maintaining a stand-
ardized or affiliated high school are governed by the limita-
;;;;; ;f Article IV of Chapter 544 and the provisions of Article
3e doubt our ability to state those conditions more
plainiy’than is done by the Legislature; we therefore refrain
Hon. Royal R. Katkins, page 4
from attempting to do so, and respectfully refer you to those
statutory provisions as to questions not answered by the abo:e
discussion.
2. The State Department of Education does not approve
transfers. Transfers are made by the County Superintendent,
and Article 2696 provides that no transfers shall be made after
August 1. See Opinion Number O-808, a copy of which is enclosed
herewith.
3* The law provides a method by which a pupil whose
grades are not taught in his home district to attend another
school. This method is by transfer or by contract. In cases
where the pupil has not been transferred in accordance with
Articles 2695 2696, 2697 and 2698, and no agreement has been
made with another district as authorized by Section 2 Article
VIII H. B. 284, Acts of the 47th Legislature, Regulai Session
we find no law authorizing anyone to eliminate from the budget’
of the sending district for the benefit of the receiving dis-
trict the per capita on such pupils.
4. Where pupils are not transferred nor contracted we
find no law authorizing the elimination from the budget of the
sen&Lng district the per capita and pro rata share of mainten-
ance of pupils who are not eligible for high school tuition.
The Legislature simply did not make any provision for transfer-
ring funds unless and until the pupils are transferred in one
of the methods provided.
5. Ws held In our Opinion Number O-5413 that element-
ary tuition is not allowable under Chapter 549, supra, except
in the one instance provided for in Section 2 of Article VIII
where the entire scholastic enrollment is transferred as provid-
ed in that section. True, the question there considered con-
cerned the payment of the money to the receiving district; and
the question here is, in effect, whether elementary tuition can
be paid by the sending district to the receiving district, and
ipd se&ng district be reimbursed therefor out of equalization
Your question mst be answered negatively; since
the Legisiature has not allowed the payment of elementary tui-
tion directly to the receiving district, it follows that the
payment of elementary tuition to the receiving district cannot
be accomplished by indirection through payment of the amount
to the receiving district by the sending district and reimburse-
ment of the sending district out of equalization aid funds for
the deficit caused thereby.
6. We find no law providing for the “approved cost
I
“ Hon. Royal1 B. Watkins, page 5
of instruction” for pupils who have not been transferred and
who are not from a contracted sitrict, neither do we find
any law authorizing such a grant of Salary Aid, and therefore
no such grant may be made.
We have studied your questions carefully and sympa-
thetically and it is with regret that we feel that we can not
make a dif$erent answer to your questions, but, as stated in
our Opinion Number O-5413, “the power to pass statutes and
make appropriations of public moneys is lodged in the Legisla-
ture -- not in the Attorney General or the State Superintend-
ent ***II.
Very truly yours
By /s/ C. F. Gibson
C. F. Gibson, Assistant
APPROVED i)sc 7, 1943
/s/ Gerald C. Mann
ATTORNEY GjQItiti;i OF TEXAS
This opinion considered and approved in limited conference.
CFG-s:wb
Encl.