Honorable J.W. Edgar Opinion No. WW-1112

Commissioner of Education Austin, Texas Re: Authority of the Legislature to provide an operating fund for the Central Education Agency in the General AppropriationAct and to have transferred theretomonies in the TextDear Mr. Edgar: book Fund.
Your request for an opinion reads as follows: "Under theproposed and current draft of the Free ConferenceAppropriation Bill for the coming biennium there is a provision that the Central Education Agency may create a OperatingFund in the State Treasury and transfer funds for administration to such OperatingFund. "On July 3, 1961, the State Board of Education pursuant to Section 3 of Article VII, Constitution of Texas, and Articles 2867, 2868 and 2869, V.C.S., set aside and allocated out of the State Available Fund for the nextbiennium $10,023,190 for textbooks and administration commonly referred to as the State Textbook Fund.
"In the biennium beginning September 1, 1961, this Agency is contemplating the creati.on of an OperatingFund in the State Treasury and transferring to such Fund for State textbook administration such sums from the State Textbook Fund as shallbe approved and directed for State textbook administration purposes by the State Board of Education.
"In his letter dated July 19, 1961, the Office of Comptroller of PublicAccounts has advised, in substance, that such contemplated transferwill be made if the Attorney- . .

Honorable J. W. Edgar, page 2 (WW-1112)

Generalwill express in an opinion that such a transfer legally can be made.
"Itwill be appreciated if your office will render an opinion in thismatter as will serve to authorize the Comptrollerwhen directed to make a transfer to an Operating Fund for thisAgency of State TextbookFunds for the State textbookadministration." The Legislaturehas the authority to createoperating findsas an efficientmethod of carrying out thepurposes I'or which special'fundsare created. Attorney General's 

### OpinionsW-554 (1959),W-557 (1959)andW-573 (1959). Section 3 of ArticleVII of the Constitutionprovides in part as follows:

it shallbe the duty of the State Board Af'E&cation to set aside a sufficient amount out of the salad ta.&-;to provide free textbooks for the use of children attending the public free schools of this State;
. . ." Article 

### 2867,Vernon's Civil Statutes,provides as follows: "In order to carry out the provisionsof this Act the StateBoard of Education shall annually at a meeting designatedby them each year, set apart out of the available free school fund of the Stafe an amount sufficient to purchase and distribute the necessary school books for the use of the pupils of this State for the scholasticyear ensuing." Article 

### 2868,Vernon's Civil Statutes,provides as follows: "The State textbookfund of this State shall consist of the fund set aside by the StateBoard of Education from the available school fund as is provided for in thisAct, togetherwith all funds accruing from the sale of disusedbooks and all'moneysderived from the purchase of books from boards ofHonorable J. W. Edgar, page 

### 3 (WW-1112)

school trustees by private individuals,by schools, or from any other source." Article 

### 2869,Vernon's Civil Statutes,provides in part as follows:

. . Funds transferred in the textbook f;nd shall remain permanentlyin this fund until expended, and shallnot lapse to the Siate at the close of the fiscalyear.

. . . The proposed creation of an operatingfund in the State Treasury and transferring to such fund for State textbook administrationpurposes of such sums from the State Textbook Fund as shall be approved and directedfor State textbook administrationpurposes by the StateBoard of Education is carrying out the explicit provisionsof Section 

### 3 of Article VII of the Constitution of Texas andArticles 

### 2867,2868and 

### 2869,Vernon's Civil Statutes, to-wit: that the State Textbook Fund shall be used Ilto provide free text books for the use of children attending the public free schools of this State." Attorney General's Opinion 

### o-561 (1939)holds that Section 

### 3 of Article VII of the Constitutionof Texas does not confer upon the State Board of Educationthe power to control the expenditure of the State TextbookFund, rather the Legislature has the authority and, therefore,the Textbook Fund is subject to the provisions of the GeneralAppropriationAct; provide, of course, that it is expendedfor the purpose of acquiring textbooks and paying all necessary costs relating thereto in administering such Fund.
It is our opinion that it is within the discretion of the Legislature to determine themethod of expending the State Textbook Fund for thepurpose of providing free textbooks. The creation of an operating fund in the State Treasury and transferring to such fund for State textbookadministration purposes sums from the State TextbookFund constitutes a method of carrying out the provisionsof Section 

### 3 of Article VII of the Constitution of Texas. The creation of the operating fund is therefore a constitutionalexercise of legislative power. You are, therefore, advised that the Comptroller of Public Accounts is authorized to make the transfersoutlined in yourHonorable J. W. Edgar, page 4 (WW-1112)

request to an operating fund, provided the Legislature

. . - creates such operating fundby appropriate language In the General AppropriationAct.

SUMMARY The Legislature is authorized to provide in the GeneralAppropriationAct for the creation of an operating fund for the Central EducationAgency and direct the Comptroller of PublicAccounts to transfer to such operating fund for State textbook administrationpurposes such sums from the State TextbookFund as shallbe approved and directed for State textbookadministration purposesby the State Board of Education.

Yours very truly,

WILL WILSON Attorney General of Texas

JR:ms APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman
Ben M. Harrison Sam Lane Ralph R. Rash I. Raymond Williams, Jr. John Reeves Assistant

REVIEWED FOR THE ATTORNEY GENERAL By: Houghton Brownlee, Jr.