ATTORNEY GENERAL OF TEXAS GREG ABBOTT

Dr. Carl A. Montoya Chair, Texas School Safety Center Board Brownsville Independent School District 1900 Price Road Brownsville, Texas 78S21-2417

Dear Dr. Montoya: April S, 2010
Opinion No. GA-0767 Re: Authority of the Board of Directors of the Texas School Safety Center under various provisions of subchapter G, chapter 37, Texas Education Code (RQ-083S-GA)

The Legislature established the Texas School Safety Center (the "Center") as a permanent entity in 2001 to serve as "a central location for school safety information

... and a resource for the prevention ofyouth violence andthe promotion ofsafety inthe state."1 

### TEx. EDUC. CODE 

### .ANN. § 37.202 (Vernon Supp. 2009). The Center is advised by the Board ofDirectors (the "Board"), which is comprised ofa number ofState officials, ortheir designees, and gubernatorial appointees. 

### Id. § 37.203(a). You ask several questions related to the authority ofthe Center's Board? You first ask whether the Board has ''jurisdiction under the Education Code to approve or disapprove" the Center's budget. Request Letter at 2. Subsection 37.21S(a) ofthe Education Code expressly states, "[t]he board shall annually approve a budget for the center." 

### TEx. EDUC. CODE 

### .ANN. § 37.21S(a) (Vernon 2006). Use ofthe word "shall" imposes a duty on the Board and is generally construed as mandatory, "unless legislative intent suggests otherwise." City of Austin v. 

### Sw. 

### Bell Tel. Co., 92 S.W.3d 434,442 (Tex. 2002); 

### see also TEx. GOV'T CODE ANN. § 311.016(2) (Vernon 200S) (explaining that "'[s]hall' imposes a duty"). We find no contrary legislative intent and thus conclude thatunder the plain language ofthe statute the Board must approve a budget each year for the Center. However, while section 37.21S(a) does not expressly state that the Board also has the authority to disapprove a particular budget, neither does the section suggest that the Board must approve any specific budget submitted to it. Ifthe Board were required to approve any proposed budget, the approvalrequirementwouldbemeaningless, andwe assumetheLegislature did notenact

IPrior to 2001, the Center existed "as a grant-funded organization within the Criminal Justice Division ofthe Office ofthe Governor." SENATE COMM. ON PUBLIC EDUC., BILLANALYSIS, Tex. S.B. 430, 77th Leg., R.S. (2001). 2Request Letter at 2 (available athttp://www.texasattorneygeneral.gov).Dr. Carl A. Montoya·

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a meaningless statute. 

### Webb CountyAppraisal Dist. v. 

### New Laredo Hotel, Inc., 792 S.W.2d 952, 954 (Tex. 1990). In addition, Texas attorneys general have addressed budget approval statutes governing other entities and have found implicit authority for those entities to disapprove budgets subjectto their approval. 

### See, e.g., Tex. Att'y Gen. Op. Nos. JM-79 (1983) at 3, MW-15 (1979) at 2, H-908 (1976) at 3. Forexample, inAttorney General OpinionJM -79, the statute at issue required an administrator ofa hospital district to "prepare an annual budget which shall be

... presented to the Commissioners Court for fmal approval." Tex. Att'y Gen. Op. No. JM-79 (1983) at 1, 3. That opinion concluded that based on the language in the statute the commissioners court was "empowered to**r~ject** any budget submitted." 

### Id. at 3; 

### cf Comm'rs Court o/Hays County v. 

### Dist. Judge, 506 S.W.2d 630, 635 (Tex. Civ. App.-Austin 1974, writ refd n.r.e.) (concluding that, because a separate statute required a s,pecific budget allocation, a commissioners court could reject a submitted budget only ifit was so unreasonable, arbitrary or capricious to amount to an abuse of discretion). Similarly, 

### inAttorney General Opinion H-908, where a statute requiredthat salaries of assistant prosecuting attorneys be "fixed bythe prosecuting attorney, subject to the approval ofthe commissionerscourt,"the opinionconcludedthat "[ t]hecommissionersmaydisapprovethe salaries, and therefore can be said to have veto power over that part ofthe district attorney's budget." Tex. Att'y Gen. Op. No. H-908 (1976) at 3; 

### see also Tex. Att'y Gen. Op. No. DM-132 (1992) at4, 6 (explaining that a principal's statutory authorityto "approve all teacher and staffappointments" was "more like a veto power"). Webelievethe Board similarlyhas veto poweroverthe Center's budget. Thus, we conclude that the Board is authorized either to approve or disapprove a particular budget submitted to it, as long as it ultimately approves a budget each year. Your second and third questions ask whetherthe Boardhasjurisdictionto "advisetheTexas School Safety Center," specifically withregard to the budget and the organization and design ofthe Center, and to "approve budgets for programs not required under the Education Code." Request Letter at 2. Underthe plain language of the statute, the Legislature has giventhe Boardgeneral authority to advise the Center. 

### TEx. EDUC. CODEANN. 

### § 37.203(a) (Vernon Supp. 2009) ("The center is advised by a board ofdirectors

...."). The Legislature has not otherwise limited the subject matter ofthe advice that the Board may offer. We therefore conclude that the Board may offer advice to the Center, including advice concerning the budget and the organization and design ofthe Center. Whether the Board may approve budgets for programs not required under the Education Code, however, is a separate question that requires further analysis ofthe Center's authority under the statute. The Center is a creation ofthe Legislature, and as such ithas onlythe powers conferred onit, expressly orimpliedly, bythe Legislature. 

### State v. 

### Jackson, 376 S.W.2d 341, 344 (Tex. 1964); 

### see also Tex. Mun. Power Agency v. 

### Pub. Util. Comm'n, 253 S.W.3d 184, 192-93 (Tex. 2007) (explaining that a state agency's powers are limited to those expressly conferred or implied and reasonably necessary to carry out the express responsibilities given to it by the Legislature). The Legislature's purpose for the Center is ''to serve as: (1) a central location for school safety and security information**~** ..; (2) a central registry of persons providing school safety and security consulting services in the state; and (3) a resource for the prevention ofyouth violence and the promotion ofsafety inthe state." 

### TEx. EDUC. CODE ANN. 

### § 37.202 (Vernon Supp. 2009). To thoseDr. Carl A. Montoya

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ends, the Legislature has dictated specific responsibilities that the Center shall perform, including conducting a safety training program for school districts, developing "security criteria that school districts may consider inthe design ofinstructional facilities," and developing a "model safety and securityauditprocedure for usebyschool districts andpublicjuniorcollege districts." 

### ld. § §37.205, .2051 (Vernon 2006),37.207 (Vernon Supp. 2009); 

### see also id. 

### §§ 37.209-.213 (Vernon SUpp. 2009) (outlining additional responsibilities ofthe Center). Thus, the Center is limited to furthering these statutorily prescribed purposes and responsibilities. By implication, the Board is likewise limited to approving budgets for only those programs that are in furtherance of the Center's legislatively prescribed purposes and responsibilities and that fall within the Center's express or necessarily implied powers. In your final question, you ask whether "the Board [has] liability for the funds approved for the operation ofthe Texas School Safety Center." Request Letter at 2. You do notspecifywhether you are concerned with the liability of individual Board members or the Board's liability as a governmental entity, nor do you explain the specific basis ofliability that concerns you. Without additional information, we cannot provide an answer to this question. We also note that whether individual members of the Board couldbe held liable ina particular instance, and whetherthe Board itselfcouldbeheld liable, would depend on factual determinationsthat generallycannotberesolved in the opinion process. 

### See Tex. Att'y Gen. Op. No. GA-0115 (2003) at 2 (explaining that "we cannot determine in any particular instance whether the elements ofa defense ofofficial immunity have been met").Dr. Carl A. Montoya

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### SUMMARY The Board ofthe Texas School Safety Center is authorized to eitherapprove ordisapprove a particularbudget submittedto itbythe Center, as longas itultimately approves a budgetannually asrequired by the Legislature. The Board may offer advice to the Center, including advice concerning the organization and design ofthe Center. The Board is limited to approving budgets for only those programs that are in furtherance of the Center's legislatively prescribed purposes and responsibilities and that fall within the Center's express or necessarily implied powers. Whetherindividualmembers of theBoardcouldbeheldliable for funds approved for the operation ofthe Center, and whether the Board itself could be held liable, would depend on factual determinations that cannot be resolved in the opinion process.

ANDREW WEBER First Assistant Attorney General JONATHAN 

### K. FRELS Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Virginia K. Hoelscher Assistant Attorney General, Opinion Committee