Untitled Texas Attorney General Opinion

Hon. Ted R. Alexander Opinion No. V-603
Bond Investment Adviser
State Board of Education Re: The authority of the
Austin, Texas State Board of Educa-
tion to accept prepay-
ment of school bonds
as of the interest
paying date,
Dear Sir:
We refer to your opinion request, from which
we quote the following:
"On April 28, 1948, the Office of the
Stat.eBoard of Educationreceived, from the
Amarillo Independent School District a'copy
of an application requesting permissjon, un-
der Article 2787a, R. C. S. 1925, to prepay
on May 1, 1948,.$tfO,OOO.O0of unmatured
bonds out of the 1927 ser,iesof bonds held
by the Permanent School Fund against said
district. The interest paying date of said
bonds is May 1st and November 1st in each
year *
"Accompanying the copy of the prepay-
ment application was a letter from the Sec-
retary of the Amarillo Board of Trustees.
This letter stated that the district had
addressed a letter dated March 16, 1948, to
Mr. L. A. Woods, StateBoard of Education,
and enclosed original application to ~;~p``
said $gO,OOO.OO in unmatured bonds.
companying letter.further stated that no re-
ply was received to the letter dated March
16th, therefore the district wrote Dr.
Woods again on April 16, 1948, requesting
advice as to action taken by the Board on
the district'sa plication. Under date of
April 22, 1948 ir0 Woods advised the dis-
trict that he had not received the letter
dated March 16th, with enclosed application
. . .
Hon. Ted R. Alexander, page 2 (V-603)
and suggested that the district send a
duplicate application, which it enclosed
.in the letter dated April 28, 1948, to
the office of the State Board of Educa-
tion.
"A remittance for the bonds and in-
terest maturing May 1, 1948, plus a re-
mittance in the amount of $$O,OOO.OO to
cover payment of the unmatured bonds
(the) district desired to prepay, was re-
ceived by the State Treasurer on April
2S, 1948.
"You are respectfully requested to
advise whether prepayment of the bonds
can be accepted as of May 1, 1948, in view
of the fact that the district had remitted
to the State Treasurer the amount involved
before the interest paying date, and had
attempted to file its application for per-
mission to prepay the bonds more than
thirty days in advance of the interest
paying date."
Article 2787a, Vernon's Civil Statutes, pro-
vides, in part, as follows:
"The State Board of Education may
authorise the trustees of any common
school district or of any independent
school district of this State to pay off
and discharge, at any interest paying
ck;e whether the bonds are matured or
all or any part of any bonded in-
debiedness now owned or hereafter to be
owned by the State Permanent School Fund,
outstanding against any common school
district, or any independent school dis-
trict in this State.
"It shall be the duty of the school
trustees of any common school district,
or any independent school district of
this State desiring to pay off and dis-
charge any bonded indebtedness now owned
or hereafter to be owned by the Permanent
School Fund of this State, outstanding
against such district or districts, before
Hon. Ted R. Alexander, page 3 (v-603)
maturity thereof, to make direct anmu-
sation in writing to the State Board of
Education
anv interest paving date ona&h bo$s
makinp known to said State Board Opel
ucation the desire of said trustees to
p v off and discharge said bonded in-
dtbtedness, or any part thereof describ-
ing said bonds or the part thereof that
the trustees desire to pay off and dis-
charge; and it shall be the duty of the
State Board of Education upon receipt of
such application to act thereon in such
manner as they deem best and notify the
a plicant or applicants whether the ap-
p5 ication is refused or granted in whole
or in part; provided, that only such tax
money as has been collected by virtue of
tax levies made for the specific purpose
of providing a sinking fund and paying
interest on the particular bonds to be
redeemed shall be expended in the re-
demption, taking up, or paying off of
such bonds as provided in this Act; un-
less said bonds are being redeemed for
the purpose of being refunded; and the
application of the board of trustees of
any common or independent school dis-
trict desiring to retire,bonds as here-
in provided shall include an affidavit
to that effect in their application;
a m .*' (Emphasis added)
It is assumed that the moneys which will be
used for the ayment of these bonds are funds which
have been co1Pected "by virtue of tax levies made for
the specific purpose of providing a sinking fund and
paying interest on the particular bonds to be redeemed,"
and that the Board has satisfied itself on this point.
The State Superintendent is the secretary
of the State Board of Education. The mailin to him
of the application required under Article 27fi
7a would
meet that provision of Article 27871 which requires a
school district "to make direct ,applicationin writing
to the State Board of Education," Opinion O-5715.
The application provisions of Article 27671
are designed for the purpose of giving the Board of
. .
Hon. Ted R. Alexander, page 4 (v-603)
Education ample opportunity to plan or provide for the
reinvestment of its funds. Discretion rests in the
Board to impose reasonable conditions as a means of
preventing loss to the permanent school fund by reason
of delay in reinvesting its funds. State v. Hatcher,
52 S.W.(2d) 794.
It will be observed that the statute pro-
vides that the district shall "make direct application
in writing to the State Board of'Education at least
thirty days before 'any interest payment date on such
bonds, making known to said State Board of Education
the desire of said trustees to pay off and discharge
said bonded indebtedness. . . .n (Emphasis added)
The underscored portion would give strength
to the construction that such application must be re-
ceived by the State Board of Education; otherwise, the
desire of the district to pay off and discharge the
bonds would not be made known thereby. Here, the de-
sire of the district was made known to the State Board
of Education prior to the next interest payment date,
but not thirty days prior thereto.
It is to be noted that the statute insofar
as it relates to making application to the State Board
is couched in affirmative words. In'the case of City
of Uvalde v. Burney, Civ.,App., 145 S.W. 311, the court
stated the following:
"Again, it is stated by a text-
writer, and supported by authority, that,
'where the ,provision is in affirmative
words, and it relates to the time or man-
ner of doing the acts which constitute
the chief purpose of the law, or those
incidental or subsidiary thereto, by an
official person, the provision has been
usually treated as directory.? The same
writer says: 'Where a statute is affirm-
ative, it does .not necessarily imply that
the mode or time mentioned in it are ex-
clusive, and that the act provided for?
if done at a different time, or in a dif-
ferent manner, will not have effect.'
Suth Stat. Cons. Sec. 447. The same au-
thor cites a number of authorities to
sustain the proposition that provisions
regulating the duties of public officers
Hon. Ted 8..Alexander, page 5 (V-603)
and specifying the time for their per-
formance are in that regard, generally
directory. hection 44g.
"1. . . Provisions of this character
are not usually regarded as mandatory,
unless accompanied by negative words im-
porting that the acts required shall not
be done in any other manner or time than
that designated. . . .tn
We think that the principles announced in
the Burney case are applicable to the issue at hand.,
The statute, insofar as the thirty day provision is
concerned, is not negatively worded. It does not pro-
vide that any application received in less than thirty
days cannot be acted upon by the State Board.
It is clearly evident that the State Board
has a great amount of discretion in determining wheth-
er it will accept or reject an application for the
payment of bonds owned by the Permanent School Fund.
In other words, the Board does not have to accept any
application.
In view of the above, you are advised that
it is our opinion that the State Board of Education
upon receipt of an application prior to the next in-
terest payment date of bonds but les,sthan thirty days
prior thereto, may waive the thirty day requirement if
in the exercise of its discretion it determines to do
so. Article 27871 is not mandatory in this regard,
Insofar as Opinions Nos. O-5402 and O-5715,
rendered by a prior administration, hold that the ap-
plication rbquired under Article 2787a, must be filed
with the State Board of Education at least thirty days
prior to the next interest paying date, the same are
overruled and modified to accord with this opinion.
Under the facts submitted, the
State Board of Education, in the exer-
cise of its discretion, may waive the
thirty day's notice requirement of Ar-
ticle 2787a and grant the application
of the Amarillo Independent School Dis-
trict to pay off and discharge its bonds
owned by the Permanent School Fund as
Hon. Ted R. Alextinder,page 6 (v-603)
.of the interest payment date. Opinions
NOS. o-5bo2 and O-5715, insofar as they
conflict herewith, are overruled and
modified.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
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Chester E. Ollison
Assistant
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