Opinion No.

Honorable Oscar H. Mauzy Chairman Senate Education Committee Senate of the State of Texas Austin, Texas

Re: Whether MH/MR state schools are entitled to a distribution from the Available School Fund.

Dear Senator Mauzy:

You have requested our opinion regarding whether state schools of the Department of Mental Health and Mental Retardation are entitled to a distribution of the state available school fund.

The Available School Fund is created by article 7, section 5 of the Texas Constitution, and the composition of the state available school fund is described in section 15.01(b) of the Education Code.

In our opinion, state schools of the Department of Mental Health and Mental Retardation, even though created as separate school ``districts,' are not eligible to receive a portion of the state available school fund. The Education Code, which provides for the distribution of the available fund, is not applicable to the institutions of the Department of Mental Health and Mental Retardation:

This code shall not apply to those eleemosynary institutions under the control and direction of the Department of Mental Health and Mental Retardation or to the institutions and activities of the Texas Youth Council.

Education Code § 1.04(b). Although it might be argued that the Education Code, by excepting from its application ``the eleemosynary institutions under the control and direction of the Department' does not thereby except the school districts of the various institutions, it is clear that the districts are creatures of the Department. In every case, the territorial limits of the district are coextensive with the boundaries of the institution. Furthermore, members of the Board of Mental Health and Mental Retardation serve as ex-officio trustees for each district. See e.g., V.T.C.S. arts. 2668a; 2668b; 2668c; 2668d; 2668e; 3263e.

Since the Education Code provides for the distribution of the state available school fund, and since the Code is inapplicable to institutions under the control of the Department of Mental Health and Mental Retardation, it is our opinion that the state schools of the Department are not entitled to a distribution of the state available school fund under current provisions of the Education Code.

SUMMARY State schools of the Department of Mental Health and Mental Retardation are not entitled to share in the distribution of the state available school fund under current provisions of the Education Code.

Very truly yours,

John L. Hill Attorney General of Texas

Approved:

David M. Kendall First Assistant

C. Robert Heath Chairman Opinion Committee