OFFICE OF THE AITORNEY GENERAL OF TEXAS 

AUSTIN 

Mnorablk Wardlow Lane 

Di8trIot Attamey 

Center, Term 

mar Slrx 0pIn10n so. o-e 

ROI Whothor or nsolldatsd 

mttleb by allaeven 

thel3 rerignation and 

aeven more. Row than, 

0r the aahool rum 

or the attornays who 

l efx C.uo sarranto suit 

ht agalnut then to oust them tram 

oo well established to require a oltation 

hat the preeent truetrae OS the oonaoll091 dlrtrlot In question hare no cower or 

authorlty.to ratliy or approro Illegal oontraots or previour trusteea. Your Inquiry than Is narrowed to a deteralnatlon of whether or not school ttusteee Icay legally es 

ploy attorney6 to defend thm in a 8uIt in the nature of 

a quo warrant0 brought to oust them rrom orrioe ror offiolal mlsoonduot, 80 no to c’onstftute a oharge upm school 

runas 0r the dlstriot. 
Honorable Fardlow Lane, Tage 2 

There are two well ostabllohed principles Of 

lax by whloh we must be guide'd. They are first that: 

“A quasi public corporation, such ns a 

sohool 6Istrlot, which ows speoial. duties to 

the pblla, may not enter into say contraot that 

Is'not expressly authorized by law or neoeasarIly implied rrom powers expressly granted." 

CcCorkel v. DistriOt Trustees, eto. (C.C.k.1838), 

121 s. 7. (2A) 240. 

And seoond that: 

*A sahool district Is a quasi corporation 

or a public natMe, and the trustees of said 

district oannot lawfully expend money belonging thereto sxoept f.or the purposes authorized 

by statute." Adam '1. riles ( Corn. App.), 35 

s. 8. (2d) 123. 

In dsoiding whether or not authority to so enploy attorneys exists the following artialea of the 2etlsed Civil Satutes of l.E25 (Vernon's Edition) must be 

oonsldered: 

"Artlole 2748. Said truetses shell bo a 

body polltlo and corporate In law, an4 shall be 

known by an4 under the title an4 name of dlstrlot trustees of dlstriot number -, an4 oounty or , State of Texas; and as suoh may 

contra-d be oontraatsa lath, sue aEd be sued, 

plead or be Impleaded, In any court of this ltate 

of proper Jurisdiotion, an4 may receive any gift, 

grant, donation or devise made ror the use of 

the public schools ot the dietriot. All reports 

an4 other oifiolal papers shall be heade4 with 

the number of dlstrlot and name of county." 

.“Artiole Z749. Sal4 trustees shall have 

the managel;ant and control of the pub110 schools 

and pub110 school groun4s; an4 they shall determIne how many schools shall be molntained in 

their school dlstriot, an4 at rhat points they 

shall be looated; provided, that not more than 

one school for white children an4 one sahool 

fcr oolored children shnll be established for 

each sixteen square miles of territory of major 

fraction thereof, within ouch dlntriat; an4 they 

shall determine nhsn the schools Hhall bs opened 
Honorable i’;ardlow Lane, Fage 3 

and when closed. They shall have the power to 

employ an4 4ismIss teaahers; but In ease or blsmissal, teachers shall have the right of appeal 

to the oounty and State Superintendents. They 

shall oontraot with teachers and manage and 

supervies the sohoola), subject to the rules an4 

regulations or the oounty an4 State cuperfntendents; they shall approve all claims agalnat 

sohool funds ot their Ulstriot; provided, that 

the trustees, In making contracts wlth teaohere, 

shall not oreats a derlclenoy debt against the 

dlstrlot .* 

*Artlole 2827. ‘,.‘l. The State an4 county 

ava-llable funds shall be use4 exoluslvely for 

the payxant ot teachers’ and auperlntenQents~ 

salaries, fees for taking the scholastic census, and Interest on money borrow8 on short 

time to pay ,salarles OS teachers an4 superintendentb, when these salaries beoone due berorejthe school funds ror the current yoar become arullable; provided that no loans for the 

purpose or payment or teachexs shall be paid 

out of funds other than those for the then current year. 

“2. Looal school funds iron district taxes, 

tuition rees or pupils not entitled to free WItion an4 other looal sources may be use4 ror 

the purposes enumerate4 for state and county 

runds an4 for purchasing appliances and SUppliSS, 

for the paynent of Insuranae pre’cmlums, janitors 

and other employee, ror buying school sites, buying, building an4 repairing and renting school 

houses, an4 ior other purposes necessary In the 

conduot ot the public eohools to be detertine 

by the Board or Trustees, the acoounts an4 vouohera Xqr oountg dIetrIots to be approved by the 

aounty superintendent; provided, that vlhen the 

State available sohool fund In ‘any oity or dimtrlat Is aurriclent to maintain the sohools 

thereor in any year for at least eight nonthe, 

and leave a eurplus, suoh surplus may be expended for the purposes mentioned herein. 

I 

. . .* 

It Is quite apparent that the Leglsleture has 

given no express authority to ooneolldated dormon school 

dietriot trustees to empfoy oounael to represent then; an4 
Eonornble Zsrdlow Lane, r4,s.e 4 

provido for their payment with sohocl funds in litigation 

ot any neture, end Artiale 2827 has ciroumrrorlbed their 

euthorlty to spend aohool tunde. Is the power neoesaarlly 

laplied iron porers which era erpr44sly grentad? 

As 8tet6d in 37 Tax. Jurla et pegs 9451 

*Evan in the ebsaaoe or power axpraesly conferred, trustees may employ attorncrjs to instltuta 

and poeeoute action4 in their behalf a4 u neo4asary lnoidsnt 0s thblr power4 to contraot, to 

aue and wmage and control the sohool erfalra 

and lntereote. Likarlae they mey pay such ettorneye rsaaonebla compsnsat.$on out of the speolal 

maintenanoo fund in the maq~agamsnt end oontrol 

0r the truatma.- 

An sxam~l4 0r this rula is the case ot Arrlngton 

v.'Jonar (c. c. A.) 191 S. w. 361, on4 or many or it4 kind 

holding that sohool trust.eee may 4mpl6y 4n attorney *to 

r4prea4nt them Jn legal proo44dlng4 respecting sohool aiiairs.* Sea al40 Rarding et al v. R4ymondvllls Independent 

school Dlrtrlot~(C.C.A. 1932). 51 s. K. .(2Q) 826; Stewart 

T. Xowton Icdependent Sohool District (Civ. App. 1939), 134 

S. WA’. (2d) 429. The r4preasntatlon in such iastanoeq, however ia or the 4chool trusteee as 4 body oorporata, 4nd in 

no iretanoo havo we found duthorlty for tha proposition that 

rohool funds may be ussd to pay attorney's rees lnourred in 

a personal suit egainst the truotees ta oust them Imu offios. 

Indaed, the rule allowing the school truetsea to 

employ attorceya aad oompeasets them out or the pub110 school 

rood4 14 limited to nettsra involving aohool aftalrs wherein 

the lnter4ste of the sahool er4 involved. D4nm4n v. Kebatsr, 

139 Cal. 462, 73 Pac. 139; hyrne v. covington 5oerd or Eduoatloa, 140 Ky. 531, 131 S. 'i;. 260; Tercplin v. Fremont Diatrlot, 

36 Iowa 411; Cklahome City Board or Educetlon v. Thorman, 121 

'Okle. 108, 247 reo. 996; Z&oKinnon v. State, 70 Fla. 561, 70 

So. 567, Kelksr et al v. Yalter et al (C.C.A. 1922], 241 5. ::. 

S24; Craves B. Hotichsne v. Diamond Kill Indl rohool Cietriot 

(C.C.A. 1922), 243 '. iv. 638. 

6971 

Aa stated in Vol. 24 or Ruling Case Iax at page 

Yha question has rrequently arlaen as to 

the QlVQriOtp of the nxpQndltur4 or aohool funds 

in counsel rees. Sroadly apsaklng a sohool distriot havlng the power to sue and be sued mny 
HOnOral: Kardlovr L.808, pa&4 5 

employ an attorney lr the 4mQloyluent I4 neoeseery for the proteotion of the QUbliO intersets 

00tdtt4a to it. The power to employ inoluae4 

the Fow4r to co%pepsEse$e, But the power to employ counsel exist.8 only where e publio inter8st 

is oonoerned whloh the board Is oharged~by law 

with the duty to proteot, and of oourse echo01 

funds cannot bo used to pay ooeta or counsel 

reaa In eotlons brought osteoslbly In relation 

thereto, but in reality for the benefit of prltate persons. The questlon Usually arlaes end 

ir mm aitriouit to detersins where etatutes 

exlat providing that 401a4 legal ofiloial shall 

act as counsel ror the board. Ii th4 statute 

requirea such officer toMappear for the dlatrlct, 

it oaanot crmploy anotlxr 9n hi8 plaoe, ii he 1s 

able end rllllng to act, though it mey, ln a 

proper ctse, employ an assistant oounsel; end 

a statute perizlttlng tho enploya8nt of sQeoIa1 

counsel uhen reoeesery 1s constitutional. These 

deolsions &Spend lhrgely on the local 8tatut84, 

=d are i equently or little ralus a4 authorit:, 

bspond th a particular jurlndiotlo~. ::hera a 

school distrlot 1s expressly authorized to employ counsal ror certain purposes its authority 

wl&l be M.&ted stxlotly to the powers granted.* 

In Zerrtlon v. Webster, 4UQr4, it wu4 held that ths 

power of the school board to ezqloy oounsal axlets only 

where a public interest is oonosrrmd which the board Is 

charged by law with the duty to proteot, end that the school 

board had no authority to amploy counsel la en electloo contest to detcrmlae xho were the de jure members or the eohool 

board. 

In Dyrne and Read v. Boer4 or gduoatlon or the 

City 0r Covington, supra, the queetion was 4s to the right 

0r 41x mamb8ra 0r the board of education or Corington to 

uploy en attorney to sue to oompel the other SIX members 

to meet with the~fomr, so es to proceed with the business 

ber0re the board. The oourt held that an attorney could 

not be smployed ior suoh purpoees and said: 

*The board of eduoetion is a body corporate. 

It is en agctncy 0r ~orernczant. Its oeixolty to 

oontreot la olroumsorlbed. It oen oontreot only 

in bahalr of the oonxon school lntereeta of the 

olty in any event. It was not cornpotent for It 

to hers contracted to pay ths counsel lees lnourred by Ita individual n;embers In a roatter 

wholly amonq tber;selves. If the ease had been 
Honortile Qrdlon Lane, rage 6 

a contest between two of the llti(pats as to 

whioh via8 entitled to the office of ffieizber of 

the.board, it would in a sense hove involved 

a ratter affecting the schools of the city. So 

?loss. the actlon ia question. But it affeots 

the uohool interests only a8 an lnoldent. The 

aotioa was Fersonal as to its parties. Any cit- 

‘izen and patron of the School tight as well 

have maintained It. But the test of the llablllty of the board of eduoatlon on the contract Is not whether the pukUc body was benefited by It. It Is never allowed that the 

state, or any of Its constituent ems of eoverncsnt , though oxpresslyz pemltted to make 

oontracts and be sued upon them, cay beoome 

liable on Implied asorucpslt. 1,ublio oorporate bodies mat not only act in a Latter wlthin their jurisdlctlsn, but 13 the manner expressly authotlzed .by lan, or they cannot bind 

the pub110 as for debt. Co tho board of education alone could contraot a debt agall?st Itself as a .$ubllo corporation.. Belther a ElaorIty,of the board aoting together, or whatsoever 

nuu.bar acting Independently and pemsonally, 

oauld Lo. so. Nor, In such Inatanoes, does 

the question of benefit or advantage derived 

by the public atfeot the question Of the Fubllc*e liability. It mst be reh,sc;bcred that 

the public In Its quality of sovereign is never 

liable at all as for debt, unless It expressly 

pcrffilts. And when It psralts such liability 

It cust contract, not only for 'We ffiatter, but 

only In the manner expressly authorized." 

(Underscoring oura) 

The case of %ith v. 

70 Fa. zuper. 

i‘lttsburRh 'chool l'lstrlct, 

184, Is dlreotly in point. lr: that case the 

sohool board etipLoyed attorneys to represent thelr in an 

Ration instituted to restrain then from rapreaenting the 

sahool in certain scatters since an aot of t.he I,aglslaturo 

(which the defendonta alleged to be unconstltutlonal) ter- 

,Einated their offlces durinq the year. Flalntiffs in the 

.preSent OaSe Wore thCir attOrney5 in the F~x!v~ou~ action 

whloh they lost; and the present action was Instituted to 

Moover attorneysr tees. The court said: 

"The holder of an office has an undisputed 

right to contest the validity of leglSlation 

which ousts hlni. That is personal to h11~1elf. 

The ~1111 of the pUbli0 is voiced by tho legielsture, and he who raises the oontest. a~‘.??u;i:eS the 
i-;onore+le riardlow Lane, Pnea 7 

burden of c5tablishing his right, and tho burden of ooeta. axwnses. etc.. are lncldent to 

that contest; Zia has no vesied rlrbt to an offloe created by the loglslature, ana lndependent- 

‘Iy of the legislatdve ~111, the public has uo 

Interoat in continuing these p3rtioular persons 

UC directors of thls sub-school dlatrlot. 

* 

. . . 

“The old board of Qlreotors of the aub5obnol dlstriot bud no power to make these defendants liable for profaasIonal aervlces In 

suoh a contest, The dlreotors viere axarclslng 

powers delegated to them by Saw, and only In 

the exerolse or suoh parers, aotlng exolu5lvely in their oftlola oapaoltle8 as the Immedlate representatlvea of the pub110 and purely 

and In behalf, could they b&id the public. . 

. .I (UnderscorIng ours) 

Ye bellbve that this 15 the lan In ~cxas and 

opiniona of prcvloua adnilnI5tratIon5 of t.his departiient 

are In aocord with this view. See O&i’iOll dated Ootober 

11, 1937, to Eonorable A. A. b’lller, County Attorney, Newton Couaty. 

In xalker et al v. Xalter at al, (C .C.A. 1922) 

241 3. 2. 924, a cult was filed to remove certain trustees 

of an irdepsndcnt sohool district rrom oflice, plalntlff 

alla&g various aots of offlola mIsoonduot asd lnoompetenoy. The petition also prayed for a taxqorary In$uhotlon enjoining defendants irom spending any lnoney or funds 

belonging to the school dietriot to defend the cause. The 

Court of Civil Ap;.eals although reforming In part the 

judgment below continued the temporary Injunction to proNblt the paying out of sohool funds for any oi the erpen5e5 

of lItlgatIon. 

For a case slmllar In principle restraining commom school dlstrlot trusteee from Spending publie funds 

which expenditures would beaaflt the trustees personally, 

8ee Barton Y. Vlokery, (C. C. A. 1916) 189 .‘. ‘::. 1103. 

The case of Craves (G W>utohens v. Clanond El11 

Ind. !?chool Clstrlot, (C. C. A. 1922) 243 ‘:. 7'. 630, lnvalved the appl.IoatIon of prlnolplea of law elnllar to those 

Involved In the Lnatant ease. In that cane the t~rusteea of 

the independent sohool dlstrlot had entered Into a contract 

with a firm of attorneys for the purpose of having then defeat oartaln bllla pending In the &!glaleture. The court 
Honorable "ardlow Lane, page 8 

held that the coqtraot was ultra vires, opposed to pub110 

~~~lloy and void. In the course of the opinion Chief Justice 

Conner stated the rule as follows: 

While It is doubtless true that there is 

p&er in a board of trusteea of an independent. 

sohool dlat+zt to mploy counsel-and pay out 

or the publia funds or, the dletrlot a reasonable ree in oases where the interests of the 

diatriO,t require aaaertlOn or derenae 113 the 

t oour 8 0 orltp, after 

oaretul search, either expressed or implied in 

the statutes or this ataie to .anploy counsel 

expend tte pub110 funds o'r'the diatrlot ln the 

and 

attempt to aeoure or dereat leglalatlon." 

(Underaoorlng ours) 

Consequently, it is the opinion of tkls department and YOU ar8 respeatrully adrlaed that sohool funds or 

the oonsolldatqd common school district in question my not 

be used to pay attorney's tees incurred by certain neffibers 

ot a pretiou8 board of trustees in the defense ot a quo 

mrranta suit brought agatnat them. 

Yours rsry truly 

ATTORN CEXCRAL Or TFmS 

JDS:LE