DocketNumber: V-799
Judges: Price Daniel
Filed Date: 7/2/1949
Status: Precedential
Modified Date: 2/18/2017
THE ATTORNEY GENERAL OF TEXk~ PRICE DANIEL March 31, 1949 Hon. D. K. Woodward, Jr. Chairman, Board of Regents University of Texas Kirby Building Dallas 1, Texas Oplnibn X0. V-799 Re: Use of tax levied by Section 17, and of proceeds of bonds Issued under Sections l'j,and18, Artlole VII, Con- Dear Mr. Woodward: stltutlon of Texas. You request the opinion of the Attorney General In your letter of March 18, 1949, as follows: "Your opinion Is respectfully requested upon the following questions which have a- risen In connection with the efforts of the beneficiary schools to put Into effect Sdc- tlons 17 and lc of Article 7 of the Con- stitution of the State of Texas. "Question No. 1. May the proceeds of the Five (5/) Cents tax,be used for any pur- pose other than payment of principal and Interest upon bonds or notes authorized to be issued under Section 17 of Article 77 "Question Ho. 2. If question No. 1 Is answered in the affirmative, then please . answer the followlng queetlons: "(a) For what other purposes may the proceeds of said tax be used? "(b) At what times and in what amounts may such proceeds be withdrawn by the governing boards of the respective in- stitutions whlkh may elect not . I Hon. D. X, Woodward, Page 2 (V-799) to issue bonds? "Question No. 3‘ Do the governing boards of the respective insiitutions have authority to incur and pay the reasonable and necessary expenses of issuing and sell- ing bonds authorized by Secticns 17 and 18 of Article 7, such as prfntlng, shipping charges and attorneysl fees? "Question No. 4, Do the governing boards of the respective instltutfons have authority to retain the proceeds of the sales of bonds authorized under Sections 17 and 18 of Article 7 atidto deposit same as special trust funds for the purpose of ac- quiring,,constructing and initially equlp- ping buildings ,or other permanent lmprove- ments at the designated Institutions of higher learning, such deposits to be secured by the pledge of bonds or other evidences of indebtedness of the United States or bonds which are guaranteed as to both principal and interest by the United States In an amount not less than the amount so deposited?" Section 17 of Article VII provides, In part, as follows: II . 0 . there is hereby levied O s a a St+te ad valorem tax on property of fF,e cents (5#) e o e for the purpose of ac- quiring, constructing, and Initially equipping buildings or other permanent Improvements at the designated institu- tions of higher learning; land the govern- ing board of each of such Institutions of hlgher'learnfng is fully authorized to pledge all or any part of said funds allotted to such Institutions as hereinafter pro- vided, to secure bonds or notes Issued for the purpose of acquiring, constructing and lnltlally equipping such buildings o* other permanent improvements at said respective lnstltutlons. Such bonds or notes shall be Issued in such amounts ar,may be determlned by th$ governing boards of said institutions . . . . , Hon. D. K. Uoodward, Jr - “age 3 (V-799) On March 30, 1949, the AttTrney General rendered Opinion No. v-798 to Honorable William L. Kerr, President of the Board of Reg nts of the State Teachers Colleges. In speaking of section 17 of Article VII, it was held In that opln:on as follows: "This Constitutional Amendment clearly pre- scribes the terms and conditions rf the bonds and notes, and makes no other prou..slonfor evidencing a liability against the fund ex- cept by the Issuance of bonds or notes. Hence It Is our conclusion that this special fund may not be withdrawn from the State Treasury except to pay principal and Interest requlre- menta of bonds or notes issued under Section 17." The above-quoted holding answers your first question and renders unnecessary an answer to your second question. You ask in your third question whether the governing boards of the respective lnstitutidns '.have the authority to incur and pay the reasonable and necessary expenses of lssulng and selling bonds authorized by Sections 17 and 18,~such aa printing, shipping charges, and attorneys' feee. It Is a well-established prlnolple of law that the grant of an express power to do a cert^-.n act carries with It the Implied powers r--cesei.ry to perform such act. In order to Isa&e the bonds au- thorized In Sections 17 and 18, it would be necessary to Incur certain expenses such aa printing and aMor- neys' fees. We think It clear that the respective governing boards may properly Incur such expenses, and pay for them out of legally available funds of the Institution, assuming, of course, that such ex- enses are reasonable. Davis v.'Clty of San Antonio Pciv. App.),160 S.W. 1161
. We think It clear that Sections 17 and 18 do not contemplate that the Attorney General should pre- pare the bond proceedings. In both of these ~seetlons it is provided that the bonds should be approved by the Attorney General. If these.provisions contem- plated the preparation of the transcript of proceed- ings and the bond8 by the Attorney General, then he Hon. D. K. Woodward, Jr. - Page 4 (V-799) would be put In the anomalous posltlon of preparing the bonds and then approvlng his own work. It Is evident from the requirement of a;Qroval of the bonds by the Attorney General that these Constltu- tlonal provfslons contemplated that the governing boards of the respective Institutions would have attorneys of their own employ to prepare the nec- essary proceedings. Your third queE :lon Is, there- fore, answered In the affirmative. Your fourth question Is whether the govern- ing boards qf the respective Institutions have the authority to retain the bond proceeds and to deposit the same as special trust funds, to be used for carry- ing out the bond purposes9 such deposits to be secured by bonds or other evidences of Indebtedness of the United States, or bonds which are guaranteed as to both prfnclpal and Interest by the United States In an amount not less than the amount so depos:t.ed. In each Section 17 and Sectlon 18, It Is pro- vlded, “!I%18amendment shall be self-enacting.” We think that the amendments contemplate that bonds can be Issued and,sold by the respective governing boards, as outlined therein, and the proaecda of the sale turned over to such governing boards to carry out the bond purposes. We do not think that the amendments, either expressly or by lmpllcation, contemplate that the proceeds would bs turned over to any other State office or officer. Only the reepectlve govern!,-* boards are the agencies charged with the expend .fui*e of the funds to carry out the bond purnnses. It Is manifest that the large sums of money which may be realized from the aale of bonds cannot be expended Immediately, and that the building pro- gram of an Institution might cover several years. Yet, In order to take advantage of an attractive market, the governing boards may determine to Issue bonds at one time In an amount which will be suffl- clent to defray the entire cost of such building program / Such action, we think, Is clearly author- ized by the Conitltutlonal amendment&, and that the respective governing boards are the agencies to retain the bond proceeds. Your fourth question, therefore, Is answered In the affirmative. Hon. D. R. Woodward, Jr. - Page 5 (V-799) The proceeds of the Five (5+! Cents tax levied by Section 17 of Article VII, Constitution of Texas, may not be withdrawn from the State Treasury for any purpose other than payment of principal and Interest upon bonds or notes author- ized to be Issued under such constltut1onal pro- vlslon. Opinion No. v-798. The governing boards of the respective educational Institutions named In Sections 17 and 18, Constitution of Texas, have the authority to Incur and pay the reasonable and necessary ex- penses of,lssulng and selling bonds authorized by said sections, such as printing, shipping charges, and attorneys' fees. The governing boards of the respective ln- etltutlons have the authority to retain the pro- ceeds of the sales of bonds and deposit the same as special trust funds to be used In carrying out the bond purposes, such deposits to be secured by the pledge of bonds or other evidences of fndebted- ness of the United States or bonds which are guaran- teed as to both principal and interest by the United States In an amount not less than the amount so de- posited. Very truly yours ATTORNEY GENLrtALOF TEXAS Assistant GUS-s-mde