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: OpinionNo. O-306 RF: Interpretationof Article 2922L, Sec. 4 and Article 5, Sec. 7, State ConstLtu- ,tionand holding ,partof statuteunco~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'olrunning for eightmonths,, with no excessive expenditures of any nature?Eon. W. K. M&lain, March 1, 1939,page 2, 0-306

This question arises from the authoritygiven the State Superintendent In Section 4, Article 2922LRevised Civil Statuteswhich reads as follows:

"TheState Superintendent shallwithhold 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 furtherprovided that the State per capita available funa for each pupil transferreii for high schoolpurposes under this Act, who has enrqllea In the school. to which he has been~transferred, shallbe dlstrlbuted $0 the alatrlcts,towhich suchpuplls have been transferredas the apportlohment 1s paid by the State. If any district falls to pay thl,s

portion of the State per capita accord- .-..,ing to the provisions of this Act, then theme State Superintendent,when notified by'the superintendentof the receiving districts, accompanlea by an afflasvit of such failure shallwlthhold from such alstrlct,~when the next per capita payment is ready for distribution, such an amount as such districtmay owe any other district until such obligationhas 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.'
.Twoterms .s,hould

be defined to clarify themeaning of this statute. The term "stateper 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 $22.00per lndlvldu$l scholastic.

The term "tuition",as used in thls~statutemeans the amount of money necessary to pay the aadltlonsl expense Incurredby the transferring student to then receiving dlstrlct. The rate of tuition charged salapupil shallbe the actual cost of the teaching servicebased 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 cardinalpoint to be decided Iswhether the aboveHon. W. K. McClaln,March 1, 1939;page 3, O-306

statute conflictswith that portion of Section 5, Article 7 of the Constitutionof Texas,which reads as follows: ,I " Inp&via;& and the available school fund hereshallbe distributed to the several counties according to their scholasticpopulation and applied In such manner as may be provided by law." The term "schol&tlc population",as used above, means all ,pupllsbetween the ages of 6 and 18 enrolled In public schoolswhen 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 studentstransferrlng~'andunder 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,shouldhere be note&that the Constitutionuses the Words "shallbe distributed". Chief JusticeGaines in the case of Jernlganv. Finley,.90 Tex. 2O5,,In reference to Sec. 5, Art. 7 of the Constitution, says:

"TOauthorize the Co&ptroller to withhold his warrants until the county debt was paidwould infringe t'he,express provisions of the section quotedwhich declares that the fund shallbe distributed to the several counties according to thelr~scholasticpopulation and applied In such manner as may be provided by law.. It is evldently meant that Itmust be distributed and applied for the purpose for which the fund was created."

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

,I the Constitutiondeclares that the avallabie'schoolfund shallbe alstrlbutea to the several counties according to their scholastic populationand the statute specifies the apportionmentwhich shallbe made........and It becomes the duty of the Comptroller to draw hiswarrants for the sum apportioned. Perform: ante of this duty in case of refusal msy be compelledby mandamus." Article 2823, entitled "What shali constitute school funds", sets ourmore definitely the terms ofArt. 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 statutesand the court aeclslons are clear In stating that the available school **funds** shall be distributed to the counties according to their scholasticpopulation.

The case of the Austin Inndependent SchoolDistrict, et al v. Msrrs Superintendent, et al, 41 S.W. (2a) 9, raises a point thatmust be dlscussed in regard to this opinion. In this case the Legislaturepassed a statute that the County Superintendent's salary shouldbe ptild out of the school funds of the common and Independent schooldistricts of the coiinty. When the Austin IndependentSchoolDistrict refused to pay Itspart of the salary, State SuperintendentMsrrs issued an order tilthholdlng the AustinDistrict'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 countermandhis Instructionand permit the Austin District-to have its available funds. The court grant-& the mandamus, but stated that the Austin District shouldpay its portion of the County Superintendent's salary. By way of dictum, Judge Harvey in the above case, stated:

"Nothinghas been found In the Constitution which restrains the Legislature from authorizing the approprlatlonof available funds belonging to any schooldistrict to the payment for the benefits receivedby the public schools of such district."
In construing :thlsstatement 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 salarywas in effect an appropriation,whereas Article 2922L is not an appropriationbut gives the Superintendentof Schools the extra legal power of withholding funds.. .

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

3. As the court very clearlypointed out, each dlstrlct receives specificbenefits from the work of the county Superintendent,whereas, under Article 2922L the Constltutlonal rights of the scholasticsremaining In the sending district are denied and penalized for the benefit of the few. transferring scholastics.

The languageof the coristltutlon was carefully selected and the Supreme Court stated very forcibly that the available school funds shallbe distributed to the several counties according to their scholasticpopulation. To give the State Superintendentof Schools the extra legalpower to impound the funds and to block the course prescribedby our constltutlon for those funds Is clearly contrary to the spirit and the language of the constitution.

It Is, therefore, the opinion of thisDepartment that
tour questionmust be answered ln the negative, as Section Article 2922L of the Revised Civil Statutes conflicts with Section 5 of Article 7 of the Constitutionof the State of Texas.
Yours very truly ATTORNEY GENERAL OF TEXAS

By s/GlennR. 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