DAN MORALES 

ATTORSEI GENERAL 

QBffice of toe Elttornep @eneral 

&date of PCexae 

January lo,1994 

Honorable Barry L. Macha 

Criminal District Attorney 

900 Seventh Street 

Wichita Falls, Texas 76301-2482 

Dear Mr. Macha: 

Opinion No. DM-28 1 

Re: Whether the State Board of Education 

is authorized to enact a regulation providing 

for the deduction of a school district’s debt 

to the Texas School for the Blind and 

Visually Impaired and the Texas School for 

the Deaf from available school fund 

payments to the school district (RQ-585) 

You ask whether the State Board of Education (the “board”) is authorized to enact 

a regulation providing for the deduction of a school district’s debt to the Texas School for 

the Blind and Visually Impaired and the Texas School for the Deaf (the “state schools”) 

from available school timd payments to the school district. You state that in May 1993, 

the board enacted the following regulation, to be codified as section 89.239(c)(3) of title 

19 of the Texas Administrative Code: 

Beginning with the 1993-1994 school year, if the agency cannOt 

make the deductions required by this section 6om a district’s 

foundation school program payments, the deductions shall be made 

from the available school fund payments to the district. A district 

shall indicate whether it will make a direct payment or authorize the 

[Texas Education Agency] to deduct the appropriate amount from 

the available school fund payment. 

See Texas Education Agency, 18 Tex. Reg. 3094 (May 14, 1993). Although the second 

sentence of the regulation suggests that a district will be given the choice between making 

a direct payment or authorizing the Texas Education Agency (“TEA”) to deduct the 

appropriate amount from the district’s available school fimd payment, we believe that 

when the second sentence is read in conjunction with the first sentence of the regulationt it 

is clear that the deductions from the available school fbnd payments are mandatory rather 

than voluntary.2 

‘19 T.A.C. 5 89.239(c)(3) (Vedoctions shall be made from tbe available school tired payments to 

the district”) (emphasis added). 

ZWe believe tbat tbe deductions are, in essence, mandatory, becaose the regolatioo would 

aothorize the TEA to dedoct the fends from a school district’s available school fond payment if tbe school 
Honorable Barry L. Macha - Page 2 (DM-281) 

You believe that this regulation violates article VII, section 5(a) of the Texas 

Constitution which creates the permanent school fund and the available school timd, and 

provides that the 

available school tknd shall be applied annually to the support of the 

public free schools. Except as provided by this section, no law shall 

ever be enacted appropriating any part of the permanent or available 

school tkd to any other purpose whatever. and the available 

school fund herein provided shall be distributed to the several 

counties according to their scholastic population and applied in such 

manner as may be provided by law. 

See also Educ. Code @ 1512(a) (“All available public school timds of Texas shah be 

appropriated in each county for the education of its children.“), 20.48 (governing 

expenditures by public free schools).s Because we conclude that the new regulation 

exceeds the board’s statutory rule-making authority, we do not reach the question whether 

the deduction of funds owed to the state schools from available school fund payments runs 

afoul of article VII, section S(a). The reasons for our conclusion follow. 

Generally, an administrative agency can adopt only those rules that are authorized 

by and consistent with its statutory authority. Texas Fire & Gas. Co. v. Harris Count 

Bail BondBd., 684 S.W.Zd 177, 178 (Tex. App.-Houston [14th Dist.] 1984, writ refd 

n.r.e.). An administrative agency may not adopt rules which impose additional burdens, 

conditions, or restrictions in excess of or inconsistent with those statutory provisions. Id.; 

‘HoI&wood Calling v. Public WI. Comm’n of TeuLF, 805 S.W.2d 618, 620 (Tex. 

App.-Austin 1991, no writ). 

Section 21.507 of the Education Code requires that “[flor each student enrolled in 

[the state schools], the school district that is responsible for providing appropriate special 

education services to the student shah share the cost of the student’s education as provided 

by this section.” Educ. Code § 21.507(a); see also id. $ 11.063(b) (as amended by Acts 

1993, 73d Leg., ch. 383 (eff. Sept 1, 1993)) (setting forth kmding sources for the state 

schools). Subsection (d) of section 21.507 provides as follows: 

Bach school district and state institution shah provide to the 

commissioner of education the necessary information to determine 

the district’s share under this section. After determining the 

(foomote continued) 

district fails to makes an election or elects to makes a direct payment and then fails to do so. The election 

set forth in the second sentence of the regulation is illusory. 

Vhe 73rd Le.gishtme adopted legislation that repeals many chapters of the Education Code, 

including chapiers 15 and 21. e&ctive September 1, 1995. See Acts 1993,73d Leg., ch. 347.5 8.33(2). 

p. 1473 
Honorable Barry L. Iviacha - Page 3 (DM-28 1) 

amount of a district’s share for all students for which the district is 

responsible, the commissioner shall deduct that amount from the 

payments of founabtion school funds payable to the district. Bach 

deduction shall be in the same percentage of the total amount of the 

district’s share as the percentage of the total fan&ion school fund 

entitlement being paid to the district at the time of the deduction, 

except that the amount of any deduction may be modifkd to make 

necessary adjustments or to correct errors. The commissioner shall 

provide for remitting the amount deducted to the appropriate school 

at the same time at which the remaining fknds are distributed to the 

school district. [Emphasis added.] 

Subsection (f) gives the board the authority to adopt rules to implement this section. 

Pursuant to this rule-making authority, the board has adopted section 89.239(c) of 

title 19 of the Texas Administrative Code. Subparts (1) and (2) predate subpart (3). 

Subpart (1) requires school districts and the state schools to submit information to the 

TEA necessary to determine the school districts’ share of costs within thirty days of a 

student’s enrollment at one of the state schools. 19 T.A.C. 8 89.239(c)(l) (as amended by 

18 Tex. Reg. 3094). Subpart (2) provides that the “TEA will make deductions from the 

school district’s regularly scheduled fmnabtion school program jimd puyments” and will 

make payments to the state schools according to an established schedule. Id. 

$89.239(c)(2) (emphasis added). 

Unlike preexisting subpart (2) which authorizes the TEA to deduct funds from 

foundation school find payments, new subpart (3) authorizes the TEA to deduct funds 

fkom available school fbnd payments. Apparently, the board relies solely upon subsection 

(t) of section 21.507 of the Education Code as the source of its rule-making authority. 

See Texas Education Agency, 18 Tex. Reg. 1996, 1997 (March 30, 1993); id. at 3094 

(May 14, 1993).4 Section 21.507 of the Education Code expressly authorizes the 

commissioner of education to deduct tinds from foundation school find payments. It 

makes no mention of deductions from available school fknd payments, and we do not 

believe that the authority to make mandatory deductions from payments from that timd 

may be implied from the statute. Whereas the foundation school program is a creature of 

The mnendmwt is adopIed under Ihe Texas Education code, p 21.507(f), 

which authorizes the State Board of Education (SBOE) to a&@ rules as 

ncccssq 10 implement statutory requirements concerning suppod of students 

mkrmd to the Texas School for the Blind and Visually Impimd or the Texas 

school for the Lkaf. 

Texas Education Agency, 18 Tex. Reg. 3094 (May 14.1993). 

p. 1474 
Honorable Barry L. Macha - Page 4 @M-281) 

statute, see Educ. Code ch. 16 (establishing the foundation school program), the available 

school tknd is a creature of the constitution, see Ten. Const. art. VII, 4 5(a); see also 

Educ. Code ch. 15 (providing for the administration of the permanent school fknd and the 

available school fund). Given this fact, we believe that if the legislature had intended to 

authorize the board to provide for mandatory deductions Tom available school timd 

payments, it would have provided so expressly. For this reason, we conclude that the new 

regulation is inconsistent with section 21.507 of the Education Code. See Hofllywood 

Calling, 805 S.W.2d at 620; Texas Fire & Gas. Co., 684 S.W.2d at 178. 

Furthermore, we believe that the regulation imposes additional burdens on school 

districts in excess of those imposed by that statutory provision. See Holl&wond Calling, 

805 S.W.2d at 620; T~ULF Fire & Car. Co., 684 S.W.Zd at 178. While section 21.507 of 

the Education Code provides for deductions from schools’ foundation school tknd 

payments, the regulation imposes mandatory deductions from an additional tknding 

source, the available school fund. Although we appreciate the diicuhy TEA may have 

collecting tkrds for the state schools from school districts which do not receive foundation 

school fund payments and acknowledge the importance of collecting these timds, we can 

only conclude that section 89.239(c)(3) of title 19 of the Texas Administrative Code 

exceeds the board’s rule-making authority under section 21.507(f) of the Education Code.5 

SUMMARY 

The State Board of Education is not authorized by section 

21.507(f) of the Education Code to enact a regulation providing for 

the mandatory deduction of a school district’s debt to the Texas 

School for the Blind and Visually Impaired and the Texas School for 

the Deaf from available school fimd payments to the school district. 

DAN MORALES 

Attorney General of Texas 

‘we do sot addres whether Ihe mgutation iS autborizcd by Some other statutory xmrce of demskiagauolorlty. 

p. 1475