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 Appropriation Act 

and to have transferred 

thereto monies in the TextDear Mr. Edgar: book Fund. 

Your request for an opinion reads as follows: 

"Under the proposed and current draft of the 

Free Conference Appropriation Bill for the 

coming biennium there is a provision that 

the Central Education Agency may create a 

Operating Fund in the State Treasury and 

transfer funds for administration to such 

Operating Fund. 

"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 next biennium $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 Operating Fund in the State Treasury and 

transferring to such Fund for State textbook 

administration such sums from the State Textbook Fund as shall be 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 Public Accounts has 

advised, in substance, that such contemplated transfer will be made if the Attorney 
- . . 

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

General will express in an opinion that such 

a transfer legally can be made. 

"It will be appreciated if your office will 

render an opinion in this matter as will 

serve to authorize the Comptroller when directed to make a transfer to an Operating 

Fund for this Agency of State Textbook Funds 

for the State textbook administration." 

The Legislature has the authority to createoperating 

findsas an efficient method of carrying out the purposes 

I'or which special'funds are created. Attorney General's 

Opinions W-554 (1959), W-557 (1959) and W-573 (1959). 

Section 3 of Article VII of the Constitution provides 

in part as follows: 

it shall be the duty of the State 

Board Af'E&cation to set aside a sufficient 

amount out of the salad ta.&-;to provide free 

text books 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 provisions of 

this Act the State Board of Education shall 

annually at a meeting designated by 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 scholastic year ensuing." 

Article 2868, Vernon's Civil Statutes, provides as follows: 

"The State textbook fund of this State 

shall consist of the fund set aside by the 

State Board of Education from the available 

school fund as is provided for in this Act, 

together with all funds accruing from the 

sale of disused books and all'moneys derived 

from the purchase of books from boards of 
Honorable 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 permanently in this 

fund until expended, and shall not lapse to 

the Siate at the close of the fiscal year. 

. . . 

The proposed creation of an operating fund in the State 

Treasury and transferring to such fund for State textbook 

administration purposes of such sums from the State Textbook 

Fund as shall be approved and directed for State textbook 

administration purposes by the State Board of Education is 

carrying out the explicit provisions of Section 3 of Article 

VII of the Constitution of Texas and Articles 2867, 2868 and 

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 Constitution of Texas does not 

confer upon the State Board of Education the power to control 

the expenditure of the State Textbook Fund, rather the Legislature has the authority and, therefore, the Textbook Fund 

is subject to the provisions of the General Appropriation Act; 

provide, of course, that it is expended for 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 the method of expending the State 

Textbook Fund for the purpose of providing free textbooks. 

The creation of an operating fund in the State Treasury and 

transferring to such fund for State textbook administration 

purposes sums from the State Textbook Fund constitutes a 

method of carrying out the provisions of Section 3 of Article 

VII of the Constitution of Texas. The creation of the operating fund is therefore a constitutional exercise of legislative power. 

You are, therefore, advised that the Comptroller of Public 

Accounts is authorized to make the transfers outlined in your 
Honorable J. W. Edgar, page 4 (WW-1112) 

request to an operating fund, provided the Legislature . . - creates such operating fund by appropriate language In 

the General Appropriation Act. 

SUMMARY 

The Legislature is authorized to provide 

in the General Appropriation Act for the 

creation of an operating fund for the 

Central Education Agency and direct the 

Comptroller of Public Accounts to transfer 

to such operating fund for State textbook 

administration purposes such sums from the 

State Textbook Fund as shall be approved 

and directed for State textbook administration purposes by 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.