- . 

R-776 

OPPICE OF 

THE ATTORNEY GENERAL 

AUSTXN.TEXAS 

September 25, 1947 

Hon. L. A. Woods 

State Superintendent of Public Instruction 

Department of Education 

Austin, Texas 

Attn: Hon. T. M. Trimble, Opinion No. V-388 

First Assistant 

Re: Necessity for school 

district to meet the 

minimum teacher's 

salary required under 

H. B. 300, 50th Legislature. 

Dear Sir: 

We refer to your letter of recent date which 

reads in part as follows: 

*At the request of Mr. Henry Stilwell, 

Superintendent of the Texarkana Schools, I 

am submitting the following questions for 

your consideration and opinion: 

"The Texarkana School has 1500 Negro 

scholastics, with approximately 400 in the 

Dunbar Negro High Sghool, which is listed in 

the Standards and Activities Bulletin as an 

accredited school. Mr. Stilwell now claims 

that he is no longer asking that the Dunbar 

School be on the accredited list, since this 

would force the Board of Trustees to pay the 

Negro teachers on the same salary schedule as 

the white teachers. 

"H. B. 300, an Act of the 50th Legislature, Regular Session, as interpreted by the 

State Superintendent, means that an accredited school system such as Texarkana must 

operate both, an accredited Negro school and 

an accredited white school, or must be seeking 

accreditation for their Negro school and pay 

,their teachers the same salary schedule. 
Hon. L. A. Woods - Page 2 (V-388) 

. - 

YKr. Stilwell would like to know 

first if the State Superintendent is acting within his rights in determining that 

an accredited school system such as Texarkana must be seeking accreditation for 

their unaccredited Negro School; and second, 

in order to avoid the penalty clause for 

failing to pay all Negro teachers the same 

salary as the white teachers he would like 

to know whether the provision of Sec. 3 of 

H. B. 300, which directs the State Superintendent to remove a school from the accredited list of schools, is constitutional?n 

Section 1 of H. B. 300, 50th Legislature, in 

mandatory language requires that the board of trustees 

of each and every Texas school district maintaining an 

accredited or affiliated elementary or high school, or 

seeking accreditation or affiliation, shall pay their 

teachers upon a salary schedule, which salary schedule 

shall provide a minimum beginnin 

time teacher of not less than (1 7 

salary for a full 

$2000.00 per year and 

(2) with increments above the minimum for (a) additional college training and (b) for experience and efficiency in teaching. Such increments shall be paid upon 

the schedule provided by the State aid law (H. El. 295, 

50th Leg.). Section 1 requires further that beginning 

teachers in such school districts who do not have previous teaching experience but who hold a bachelor's 

degree or better shall be paid a minimum beginning salary of not less than $2,000,.00, and that teachers who do 

not have such a degree shall be paid upon the salary 

schedule provided in the State Aid Law. 

Section 1 applies to all school districts maintaining such an accredited or affiliated school, or seeking accreditation or affiliation, whether the district be 

self-operating or receiving State aid. There is no implication in H. B. 300 that a school district must be subject 

to or eligible under the provisions of the State Aid Law 

before H. B. 300 will apply thereto. Rather than incorporate in full the salary schedule and the increment schedule provisions of the State Aid Law into H. B. 300, the 

Legislature has seen fit to incorporate same by werence 

for the purposes therein set out, which it may legally do. 

Furthermore, it is clear the Legislature has specifically 

made the provisions of H. B. 300 apply impartially to all 

the teachers of such school districts regardless of race. 
,- 

Hon. L. A. Woods - Page 3 

It should be observed also that H. B. 300 is a minimum 

salary law. It does not attempt to fix the maximum 

salary whioh a district may pay its teachers. School 

districts may provide larger salaries above the minimum requirement of this bill for those of its teachers 

who deserve monetary recognition for their efficiency 

in teaching. The increment schedule of the State Aid 

Law, H. B. 295, Article III, Section 2, provides increments only for additional college training and increments for teaching experience. There are no fixed 

increments providing for teaching efficiency except to 

the extent that teaching efficiency may be regarded as 

the natural result of teaching experience, but a district which meets the minimum requirements may adopt a 

schedule for higher salaries based on efficiency and 

other valid considerations. 

Section 2 of H. B. 300 is a recognition on 

the part of the Legislature that some school districts 

maintaining an accredited or affiliated school or seeking accreditation or affiliation may not be able to 

meet the minimum salary requirements set out in Section 

1 because of the insufficiency of school revenues. Section 2 provides in substance that if the total revenue 

of any school district will not permit the payment of 

the salary requirement and increment schedule referred 

to in Section 1, when the total amount received from 

the State per capita plus all additional State or Federal aid (except grants for school lunches) plus 4% of 

total current local maintenance tax are devoted to the 

payment of salaries of teachers, principals and supervisors, then the highest salaries possible with revenue 

available shall be paid by such district to its teachers. 

This means that all such school districts not having 

sufficient revenues to comply fully with the provisions 

of Section 1 of H. B. 300, shall comply as nearly and 

completely as possible with Oection 1 and to the extent 

that the revenues itemized in Section 2 will permit. 

For example, if the total revenue of a district earmarked by Section 2 to be considered in the payment of 

its teachers’ salaries is but 90$ of the total amount 

needed to oomply fully with Section 1 of said bill, then 

such a district shall pay teachers’ salaries on a 90$ 

salary sohedule, the highest salaries possible with the 

revenue available. The fact that any such school distriot cannot comply fully with the minimum salary requirements of Section 1 of said bill and thus comes within the provisions of Section 2, does not relieve it from 

the other statutory requirements and obligations of,Seotion 1. In the instant example, all the teachers’ sala- 
Hon. L. A. Woods - Page 4 (V-388) 

ries of such a 9C$ district should be at least 90% of 

what said minimum salaries would be if the district 

could financially~conform to Section 1 of H. B. 300. 

We are requested to pass upon the constitutionality of Section 3 of H. B. 300. Section 3 imposes 

a statutory duty on a body designated as the Committee 

of Affiliation and Accreditation. It is the duty of 

said Committee to require evidence from the State Superintendent acting through his Deputy State Superintendents, 

showing (1) that the provisions of H. B. 300, Section 1, 

are being fully complied with, or (2) that the salary 

schedule actually being paid is approved by both the 

State Superintendent and the State Board of Education, 

before any school of any such district is affiliated or 

accredited or continued on the list of affiliated or 

accredited schools. Under Section 2, such school districts are required to submit their salary schedules for 

the payment of their teachers to the State Superintendent 

and through him to the State Board of Education for approval. 

The State Superintendent of Public Instruction 

is a statutory officer (Article 2655) and his general 

duties are outlined in Articles 2656 and 2657, V. C. S. 

He is charged with the administration of the school laws 

and is given the superintendency of matters relating to 

the public schools of this State. Article 2657, V .C .S . , 

provides : 

“The State Superintendent shall advise 

and counsel with the school officers of the 

counties, cities and towns and school districts as to the best methods of conducting 

the public schools, and shall be empowered-to 

issue instructions and’ regulations binding for 

obs,ervance on all officers and teachers in. all ““” 

cases wherein the orovisions of the school law ““‘“Y 

may require interpretation in order to carry “-“’ ’ 

out the designs expressed therein, also in 

cases that may arise in which the law haps no 

provision, and where necessity requires some 

rule in order that there may be no hardships 

to individuals, and no delays or inconvenience 

in the management of school affairs.” (Emphasis ours) 

Under Article 2678a, 2679 and 2681, V.C.S., the 

Department of Education has been authorized to classify 
Hon. L. A. Woods - Page 5 (V-388) 

and/or to prescribe rules and regulations for the 

classification or ranking of every elementary school 

and high school of Texas. The legal basis for this 

classification, zanking, or accreditation of Texas 

schools by the Department of Education acting through 

its head, the State Superintendent, finds its origin 

in Sections 3 and 5 of Chapter 36, Acts 1915, 34th 

Legislature, R. S., the provisions of which may be 

traced and found in the above enumerated statutes. 

Articles 2888 and 2889, V.C.S., further authorize the 

State Superintendent to classify, rank or credit the 

institutions of higher learning in this State. Nixon 

Clay Commercial College v. Woods, 176 S.W. (2d) 1015. 

Since September 1916, the work of classiflcation, accreditation and affillation of the schools 

of this State has been carried on by a committee under 

the chairmanship of the State Superintendent of Public 

Instruction, which is described and consists of school 

representatives named in the general manner set out in 

the Regulations, Standards and Aotivities Bulletin No. 

469, published by the Department of Eclucation, pages 1 

to 6 inclusive. This committee is the body adopted 

and referred to by the Legislature in its H. B. 300 as 

the Committee on Affiliation and Accreditation. For 

31 years. now this committee has been recommending and 

revising the rules which should govern in the matter 

of classification and accreditation of public schools 

and the State Superintendent has exercised his statutory discretion found in Article 2657 in adopting same 

and prescribing such adopted recommendations as rules 

and regulations of the Department of Education on 

classification and accreditation matters 0 

The rules and regulations of the Department of 

Education on the aocreditation and affiliation of the 

public schools of Texas, when not in conflict with the 

laws of this State, have the same force and binding effect of a statute. Bear v. Donna Independent School District, 85 S.W. (2d) 797; 56 C. J.~, pages 333 and 489. 

Had this committee method of practice used by the6 q+ partment of Education in the formulation of its presen rules 

and regulations or, indeed, the rules and regulations 

themselves, been contrary to the views of the Legislature, it is reasonable to presume that statutes governing 

the State Superintendent in these matters would have been 

amended long ago to meet such contrary views. Slocomb, 

et al, v. Independent School District, 116 Tex. 289, at 

298. 
Hon. L. A. Woods - Page 6 

Under Article VII, Section 1, Constitution of 

Texas, it is the duty of the Legislature to establish 

and make suitable provision for the support and malntenance of an efficient system of public free schools. 

Since it was necessary to establish and maintain a Department of Education to effectuate this provision, the 

Legislature has the undoubted power to delegate to said 

Department such power and authority as may be necessary 

to accomplish the end intended. The Legislature could 

not possibly foresee all of the problems that would arise in the administration of the schools. Necessarily, 

the Department’.of Education is given a wide discretion 

in such matters. It may make all such rules and regulations as in its judgment are necessary to maintain an 

efficient system of schools, subject to the provisions 

that such regulations be not arbitrary, unreasonable or 

in violation of law. Mosely V. City of Dallas, 17 S.Wv. 

(2d) 36; R.C.L., Vol. 24, p. 575; Wilson v. Abilene Independent School District, 190 S.W. (2d) 406. 

Until the passage of H. B. 300 by the 50th 

Legislature, matters concerning the classification and 

accreditation of schools have been left entirely within 

the discretion of the State Superintendent, who has exercised such discretionary authority by prescribing the 

present rules and regulations found in the submitted 

bulletin upon the recommendations of the’ Committee on 

Affiliation and Accreditation. Bulletin, pages 16, 17, 

46, 47, 40 and 49. Section 3 of A. B. 300 imposes the 

first and only statutory duty on the said committee 

which has come to our attention. Said committee may not 

now, by reason of Section 3, recommend the accreditation 

or affiliation of any school of any district which does 

not conform to the minimum salary provisions of Section 

1 and/or Section 2 of H. B. 300, nor may it recommend 

the continuance of any school of any district on the accredited or affiliated list where any school of any district fails or refuses to meet the provisions thereof. 

The authority to classify or accredit schools 

does not rest, as seems to be contended in this opinion 

request, in the board of trustees of a local school district. Such authority lies in the State Superintendent 

who has been empowered under statutes hereinabove enumerated to promulgate rules and regulations on such matters. District Trustees v. Trustees of Freestone County, 

186 S.W. (2d) 378; District Trustees v. County Trustees, 

197 S.W.(2d) 579. Such existing discretionary power is, 

of course, subject at all times to the general laws of 
Hon. L. A. Woods - Page 7 (V-388) 

the Legislature which may increase, modify or change 

the statutory power existing in his office. 

We are advised that the Dunbar Negro High 

School in the Texarkana Independent School District is 

an accredited school. H. B. 300 applies impartially 

to all school districts maintaining an accredited 

school. The Legislature has seen fit to draw no distinction as between white and colored schools in this 

enactment. In this the Legislature has followed Article VII, Section 7, of the Te,xas Constitution, which 

provides for separate schools for white and colored 

children and says, vimpartial provision shall be made 

for both." If the Legislature had this particular provision in mind, no doubt it was due to the fact that 

the Supreme Court of the United States has held on 

numerous occasions that segregation (separate schools 

for whites and negroes) can be lawfully enforced only 

when such separate schools furnish substantially equal 

facilities. 

Applying H. B. 300 to the Texarkana Independent School District which maintains one or more accredited white and one or more accredited negru schools, 

it follows that no school in the district may be oontinued on the list of accredited schools, if the district does not conform to the minimum salary requirements set out in Sections 1 and /or 2 of this Act. 

To permit a school district to comply with 

the minimum salary provisions of H. B. 300 with respect 

to some of its accredited schools or some of its schools 

seeking accreditation and not to comply therewith with 

respect to all other accredited schools and schools seeking accreditation within its confines would be to permit 

a school district to classify and accredit its own schools, 

a power and authority which it does not have under the 

law. Such an interpretation of Section 3 would amount 

to a repeal by implication of all the statutes governing 

the accreditation of schools. To construe Section 3 of 

H. B. 300 as permitting such a practice would remove the 

enforceability of Section 1 and Section 2 of the Act, for 

unless Section 3 be construed to apply to the continuance 

or discontinuance on the list of all the accredited schools 

or school seeking accreditation of a district which complies or fails to comply with H. B. 300, it has no meaning or force. It will not be presumed that the Legislature intended to enact a useless piece of legislation. 

Further, to permit the practice contended for herein 
Hon. L. A. Woods - Page 0 (V-388) 

would be to allow a local school district to discriminate with respect to its negro and white schools, an 

act which would destroy all hope of maintaining the 

segregated system of separate schools for negroes under 

the terms of both the Texas Constitution and the Constitution of the United States. 

To strike down Section 3 also would destroy 

the constitutional authority exercised by the Legislature in providing a penalty for school districts which 

fail to pay their white teachers the minimum salaries 

provided for from the large appropriation made specifically and primarily for the much needed raise of teachers' salaries throughout the State. The intent of Section 3 was publicly known to prevent certain districts 

from using the extra money for buying uniforms, building 

repairs, reduction of local school taxes, and other such 

purposes instead of using it for increased teachers' 

salaries. The revenues here involved are school revenues, arising by virtue of legislative enactments, and 

are public funds. It has been held many times that the 

Legislature through the enactment of general laws has 

plenary power in the management and operation of school 

districts to devote a certain amount of their revenue to 

the payment of teachers' salaries. Fawlkes v. Wilson, 

171 S.W. (2d) 958; Fennel1 v. School District No. 13, 

187 S.W. (2d) 187; Art. VII, Sec. 3, Constitution of 

Texas. 

For the reasons stated hereinabove, it is our 

opinion that the Legislature had the power to provide such 

penalty to insure the receipt by Texas school teachers of 

the money intended for their increased salaries, and that 

Section 3 of H. B. 300 is constitutional. 

STJMMARY 

Sec. 3 of H. B. 300, Regular Session, 50th 

Leg., providing the penalty of loss of accreditation of schools in any district which fails 

to meet the required minimum teacher salary 

schedule, or the highest possible schedule within their financial ability, is constitutional. 

If a district meets the minimum salary schedule, 

higher salaries may be paid on the basis of efficiency, training, experience and other con- . 

siderations. In H.B. 300 the Legislature has 

provided for uniform higher salaries for all 

school teachers without discrimination due to 

race. Such impartial provision for both white 
Hon. L. A. Woods, Page 9 (V-388) 

and negro schools is in accordance with Article VII, Sec. 7 of the Texas Constitution, 

and is the only legal means of maintaining 

segregated schools for white and negro pupils 

under the Constitutions of Texas and the United 

States and the decisions of the United States 

Supreme Court, The penalty was primarily intended to insure the actual use of additional 

money furnished school districts for teachers' 

salaries rather than for other school purposes. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

BY -&& 2Tow 

Chester E. Ollison 

Assistant 

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