THEA~TORNEY GENERAL,. 

OP TEXAS 

NO. 1042 

OPINION CONSTRUING SECTION 4, OF ARTICJJZ : 

2922L, REVISED CIVlL STATIJTRS, AND 

HOLDING SAID STATUTE UNCONSTITUTIONAL 

OFFICE OF THE ATTORNEY GRNRRAL' 

Msrch‘l, 1939 

Honorable W. K. McClain 

Crimlfial District Attorney 

Wllllamson County 

Georgetown, Texas 

Dear Mr. McClain: Opinion No. O-306 

RF: Interpretation of Article 

2922L, Sec. 4 and Article 

5, Sec. 7, State ConstLtu- 

,tion and holding ,part of 

statute unco~nstitutional. 

Thfs will acknowledge receipt of your letter of February 7, 1939, whereln you propound the fol.lowlng question: 

"Can the State Superintendent legally hold 

up the State Per Capita Apportionment of a i?oamon school district having a twenty-five cent 

tax because it does not pay the high school tultFon for pupils that are above the grades taught 

in sald common school district? Said district 

not having the funds to keep its own scho'ol running for eight months,, with no excessive expenditures of any nature? 
Eon. W. K. M&lain, March 1, 1939, page 2, 0-306 

This question arises from the authority given the 

State Superintendent In Section 4, Article 2922L Revised 

Civil Statutes which reads as follows: 

"The State Superintendent shall withhold 

any and all funds due any district that refuses 

or falls to execute forms required by the State 

Department of Education for pupils eligible to 

have their high school tuition paid by the home 

district and the State. It is further provided 

that the State per capita available funa for 

each pupil transferreii for high school purposes 

under this Act, who has enrqllea In the school. 

to which he has been~ transferred, shall be dlstrlbuted $0 the alatrlcts,to which such puplls 

have been transferred as the apportlohment 1s 

paid by the State. If any district falls to 

pay thl,s portion of the State per capita accord- 

.-..,ing tothe provisions of this Act, then theme 

State Superintendent, when notified by'the superintendent of the receiving districts, accompanlea by an afflasvit of such failure shall wlthhold from such alstrlct,~when the next per capita 

payment is ready for distribution, such an amount 

as such district may owe any other district until 

such obligation has been paid; provided further, 

that the State Superintendent shall Investigate 

such accounts and determine that they are just 

accounts and obligations of then alstrlct before 

their portion of the per capita allotment Is 

withheld.' 

.Two terms .s,hould be defined to clarify the meaning of 

this statute. The term "state per capita apportionment" 

means the amount of money due each district for Its lndlvldual soholastics from the available school fun&; Article 

2663, 2665 Revised Civil Statutes. For example the apportionment a~sflgured for 1939 Is approximately $22.00 per 

lndlvldu$l scholastic. 

The term "tuition", as used in thls~ statute means 

the amount of money necessary to pay the aadltlonsl expense 

Incurred by the transferring student to then receiving dlstrlct. The rate of tuition charged sala pupil shall be the 

actual cost of the teaching service based upon the average 

monthly enrollment, In the high school~attended, exclusive 

of all other current cr fixed charges not to exceed $7.50 

per month'per scholastic; Article 26?@. 

The cardinal point to be decided Is whether the above 
Hon. W. K. McClaln, March 1, 1939;page 3, O-306 

statute conflicts with that portion of Section 5, Article 

7 of the Constitution of Texas, which reads as follows: 

,I " 

In p&via;& 

and the available school fund hereshall be distributed to the several 

counties according to their scholastic population and applied In such manner as may be provided by law." 

The term "schol&tlc population", as used above, 

means all ,puplls between the ages of 6 and 18 enrolled In 

public schools when the census is taken in the month of 

March, plus or minus any transfers in or out of any given 

district; Article 2816, 2696 Revised Civil ~Statutes. Thus, 

the per capita apportionment follows those students transferrlng~'and under Section 4, Article 2922L of the RevIsea 

Civil Statutes, the State Superintendent Is given the authority to withhold the per capita apportionment for those~- 

pupils remaining, until the tuition for the pupils transferrea is paid by the sending district. 

It, should here be note&that the Constitution uses 

the Words "shall be distributed". Chief Justice Gaines in 

the case of Jernlgan v. Finley,.90 Tex. 2O5,, In reference to 

Sec. 5, Art. 7 of the Constitution, says: 

"TO authorize the Co&ptroller to withhold 

his warrants until the county debt was paid would 

infringe t'he,express provisions of the section 

quoted which declares that the fund shall be distributed to the several counties according to 

thelr~ scholastic population and applied In such 

manner as may be provided by law.. It is evldently meant that It must be distributed and applied 

for the purpose for which the fund was created." 

Vol. 37 Tex. Jur. p. 858, states in part: 

,I the Constitution declares that the 

avallabie'school fund shall be alstrlbutea to 

the several counties according to their scholastic population and the statute specifies the 

apportionment which shall be made........and 

It becomes the duty of the Comptroller to draw 

his warrants for the sum apportioned. Perform: 

ante of this duty in case of refusal msy be 

compelled by mandamus." 

Article 2823, entitled "What shali constitute school 

funds", sets our more definitely the terms of Art. 7 of the 
. I 

Bon. W. K. McClaln, March 1, 1939, page 4 O-306 

Constitution, and closes with the Sollowlng statement: 

II 

. . . shall constitute the available school 

fund, which fund shall be apportioned annually 

to the several counties of this State according 

to the scholazitlc pbpulatlon of each for the 

support and maintenance of the public free schools." 

The constitution, the statutes and the court aeclslons are clear In stating that the available school funds 

shall be distributed to the counties according to their 

scholastic population. 

The case of the Austin Inndependent School District, 

et al v. Msrrs Superintendent, et al, 41 S.W. (2a) 9, raises 

a point that must be dlscussed in regard to this opinion. 

In this case the Legislature passed a statute that the County 

Superintendent's salary should be ptild out of the school funds 

of the common and Independent school districts of the coiinty. 

When the Austin Independent School District refused to pay 

Its part of the salary, State Superintendent Msrrs issued 

an order tilthholdlng the Austin District's portion of the 

county available sch'i501 funds for the year 1930. The Austin 

District sought to have a writ of mandamus Issued commanding 

Msrrs to countermand his Instruction and permit the Austin 

District-to have its available funds. The court grant-& the 

mandamus, but stated that the Austin District should pay its 

portion of the County Superintendent's salary. By way of 

dictum, Judge Harvey in the above case, stated: 

"Nothing has been found In the Constitution 

which restrains the Legislature from authorizing 

the approprlatlon of available funds belonging 

to any school district to the payment for the 

benefits received by the public schools of such 

district." 

In construing :thls statement of the court, we make 

the following observations: 

The court In granting the mandamus holas that 

the avalkble school Sun&s must follow their prescribed 

course. 

2. The statute involving the County Superintendent's 

salary was in effect an appropriation, whereas Article 2922L 

is not an appropriation but gives the Superintendent of Schools 

the extra legal power of withholding funds. 
. . 

Hon. W. K. McClaln, Msrch 1, 1939, page 5 O-306 

3. As the court very clearly pointed out, each dlstrlct receives specific benefits from the work of the county 

Superintendent, whereas, under Article 2922L the Constltutlonal rights of the scholastics remaining In the sending 

district are denied and penalized for the benefit of the few. 

transferring scholastics. 

The language of the coristltutlon was carefully selected and the Supreme Court stated very forcibly that the 

available school funds shall be distributed to the several 

counties according to their scholastic population. To give 

the State Superintendent of Schools the extra legal power 

to impound the funds and to block the course prescribed by 

our constltutlon for those funds Is clearly contrary to the 

spirit and the language of the constitution. 

It Is, therefore, the opinion of this Department that 

t 

our question must be answered ln the negative, as Section 

Article 2922L of the Revised Civil Statutes conflicts 

with Section 5 of Article 7 of the Constitution of the State 

of Texas. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Glenn R. Lewis 

Assistant 

PBI:+3:wc 

This opinion has been considered ix? conference, approved, and ordered recorded. 

s/Gerald C. Mann 

Gerald C. Msnn 

ATTORNEYGRNRRAL OF TEXAS