OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

iionorable RoYO~ R. &tkins, Presideat 

4at.0 BOaT.3 Of Eduoatlon 

,utstfn, Texas 

hue been furnished with data snd 

~hersimfter qusstiou propoudea 

never been.snswerad by you 

Dep3rtnent took the posit!m province of the State 

Botlre of Zlucation only to ask tho question propoun&- 

ed; therefore nt the lust meeting above referred to, 

ths Stotc Board of Eduontion autho?Azed ne, as Prea- ~’ 

i&Et Of thC str\tfJ Board Of 'cdUOE&iOn, t0 prOpCWRd .. 

. the question heretofore submitCed to-wit:, 

“‘Since the contrncdiog &.atri& bed 

* ConQlled with all requircmnts for rcwiving nid in this case, cauld the’ failUS0 Oi' ~hcS0 b.V GfflChl3 to pcSfO?iu 8 

d.nisz~crlaL duty, wsausc of .m alloW 

cation, at A reocnt : 

resolution setting . 

the .plaiR of the 

tuition of pupili%. 

nttetding the Athens 
475 

erroneoue iutbrprettition of the law, deprim the oontraating aietri0ta or the 

legal right which they had IMd8r the provisions of the rural aid lew, wimn the 

failure to perform their duty was without 

ftiult, knowledge or consent of eith-r of 

the contrsoting parties?* 

“Let me suggest that yoa oarefully review 

the attached correrpondeutie in ordbr that you osu 

have before you all of the fabts and aircumstanae8 

surrounding this aituat1on.e 

We underrtmnd the raots to be that the Kalnut Creak 

Comma School District No, 1C of Benderson County oontraotsd with 

the Athena Independent Lohool Distr,fot,in whioh contraot It was 

speed that all white and colored aoholartioe were tranrferred to 

the Aobsns Independent liohool Distriat, exoept those transferred to 

another district prior to August 1, 194E. 

The oontraoted (sending) dlstriot agreed to pay monthly 

to ths reoelving aohool: 

(a) All State and oounty available funds ns 

received; 

(b) All local saintennnoe funds as 

oollsoted. 

The receiving aahool agreed to furnlah aooredlted 

sohool faailitiee for a term of nine (9) month8 to all White and 

colored aoholaetloe of the sending district, end to oooperate wfth 

the County Board in furnlrhing transportation faoifities to all 

it;,‘,‘; llv1ng more than two and one-halt miles rrom the reo8lving 

It we8 furtter agreed tbat the receiving school shall 

colleo; additional tuition provided in the Rural Alb Law. 

The contract ma duly exeacltstl end filed la the QiilCe 

of the County Sur&rintendent of libndoraon County on SUly 6, 1948, 

but was not approved by the County Superintendent and was not forwarded to kuetin for approval of the State Superintendent o? Publio 

Instruct ion. neither sohool blatriot was notified that thb oontraot 

was not approved and the Superintendent OS the Athens sohoolr was of 

the opioion that it had been approved until elementary tuition aid k 

was refuerfi the following summer. 
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It is admitted that the pupils of the Vialnut Creek 

Jlstxfct wsre taught, la the Athew Independent School Dir;trlct 

rccoxding to the term of the contra&, and the only question: 

),, wheth:.r the failure of the ,County Superintendent aud the State 

,,,exlnteudent to approve the contract operi+cs to “deprive the 

contracting districts of their legal ri&htsnhich they had under 

1~ provisions of the Rural Aid Law.- 

TV The budeet of Walnut Creek Distriat and all other re- 

&rem?tltS prerequisite for receioine State Aid were duly filed 

vlth the State Superintendent prior .t.o Cotober 1, 1942. 

The County Superintendent &a as a reason for not \ .' 

;pprovin& the contract that.'sho had a conversation over the telephmo with an assistant in the State Superintendent’s office, in 

uhlch conversstioa she was told that ‘It viould bo best to secure 

individual transfers and not send in the oontract, and that this 

rauld in no way lessen the amount of money that the Athens dj.strlct would receive. This~ ihforsation was given to the County~ 

Superintendent a few days prior to our Opinion No. O-5413, in 

Which opinion we held that Individual transfers do not come within 

the provisions of. Section 2 of Article .8 of the Rural Aid J&v, because they are not contracted under ,the provisions thereof. 

1 8ala Seot&on 2, ‘Article 2’ o?T said law in effeot At tho 

the the contract was executed- reads as f’ollowsf 

*ior the s&o01 years thereaft~er, up’on the 

agreement of the Roard of !l!ructees of the dlsttiicts 

concerned or on petition signed,bg a majority of the 

qualified voters of then district and subject to the 

approval.of the oounty superintendent, and the State 

Superintendent,. a district which. may be unable to 

maintain ~a sutisfactory school may transfer its entire 

.soholastic enrollment for one year to an aocredited 

sohool of higher rank. 'If' the rticeiving school recelves State Aid, the scholastic ccusus rolls both 

white and oolorcd shall be combined, the per capita 

appoPtionmnt shall be paid direct to the receiving 

school, all local taxes of the sending contracting~ 

district, except those going tothe interest and sinkine fund shall be credited to 4he receiving school by 

the Tux Collector as oollectctd, and the, teacher-pupil 

quota shall beg based on tho coubined census total. ~Xf 

the rocoiving school is eat a State Aid school, the 

scholastio cenms rolls .both white aad colored shall 

bo oombined, the per capita apportiomeut st:all bo paid 

direct to the recolv$.ng school, all local taxes of the i 

seu$ng contracting district except those going to the 
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.a. i 

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liop..Rayall H?. bo,t+ns, pa&e 4 

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lat&est,siid sinkiu~ f&z? eh%ll be Omdittd to the 

r6celvir.g school by the Tax Colleotor as mllectca, 

. and the, sending oontrocting district will be eligible 

for 58 I-,uoh.Selary AId as 1s necessary to supplsaont 

the Ctste Available end Loo51 ::uin$ag$xo9 Funds, cn 

the.-schol5sticsfrm the ecud1r.g %istPict nttendiug 

8 school in tho rC;cePvIszg district, to oovez the ep- 

)“ pl?OyGd oost 0r instmctioa per scholsotlo in the reoeiviag eahool, provided .t!mt such app3+0vea cost shall 

not eroeed Seven Dollarn ena FiSty Cent6 ($7.50) por 

moath for h&h sohool. student5 or Five. Dollsirs ($s.CO) .' 

.p6r fionth for elcmntory studcnto." 

It Ml1 bs ObSerQod thet ?ectlcn 2 OS Artio1.o 8 of tic; 

Rural'Aid Lsc: in effedt 'et the tiae this contract wss executed 

pravLde5 Tibet ssne atsl.l. be QlsubJcot to" the opprovol of the 

County 3geriutenacnt 5nd the Stetc ?uparintenCent. 

.: TheraSore; the question .preBented for our deter&no-. c 

tLon Is this: Does the transfer or egreenent in question kequire the apvrolsl of.the Countr ~~u3erintenden~ am3 the *t&e 

FUD9rintchdint before either of the- contrmting distriotx 

.Zilj$Eie S0.r sslery eid urkier Dectioc 2 of Art. 8 aforeseia? 

:. In our'opilihion, suoh,,approval ,is req.&o+ 

. 

'. -Iti the 6ase'of'HcCorkcl v. Distiict Trustees, ttc., 

(civ. &.I 121 s. 3. (2) 1048, 1052, 5 sinIlar provieion contolned ia e previous &ma3 Aid and ?.quolizoCion Fund~;Ipproprlotion, WRS consiaerea by..tha Ccurt., The following guototiono 

. A-053 soid opinion ore enl&htcoing;: 

'?A160 ) in either c%se (elthor by agroa&ot of 

tho ‘tl’UStG~0 OS the district9 CoNWIIea or on siguea 

petition by n mjo?ity of the quellfied voters), we 

think the transScr is to be mae 'subjcot'ti, J& 

apmovcll OS tho County ~uwrinteaannt end YtEto 3wmr- -e -- int.endc9t.r . . The oi&?Lm ue do oxprsno I.0 that th6 

wZ5ttcr OS scct.ion .17 (of Chop. ,474, Cen'l. ona 

??peo. I,cws of 197, p. 1259).is.not the authorizetion 

of controdts, but of transfers to be made, not by the 

Courtty Tluperintmasrlt 53 in cssc OS other' transfers .~ 

.(Vernon’s JimI. Civil ?tetutoa, Art. 26961, but by the 

trunteco cf the 2istrict (which.my .zlo umble. to n;aIu- 

.ta,in 0 aetisfectory school), b&r t&c~Pcwin&q~ 

and conditl~nns Dr0scd.bw-i." mseis Ouru,P - 

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: eon. Royal1 R.‘Watklns, page 5 

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- Certatnly, the Legislature had renson tor recuir- 

- lng the apjirooal of both County and State ~Up@r~nt6nCkIit6 of 

all transfers to be effected under. the pro+fons of ?ection 2 

of Apt. 8, supro. It must not be overlooked thvt transfers 

o$ cntire scholestic ecrollmsnts, allowed under this section, 

are only authorlzcd rbon pistrlcts m unhbio to nointsin 

sohoo~s, am? then only i’or 0110 yeFin e%ch 

the trustece of t&e proposed sending district 

&&&etermino that It Is nnatle to, maintain a sat1sfaotory 

‘Iha County ana State tiuperLntsndcnts,or elthor of 

then, &ter investl@tion and Bue consideration, might ages 

or disagree s3.t.h Said conclusion. If they agreed, th8ir aPprovsl-would be-given to the trsnstar. Otherwise it would be 

iithhelb. It is olesr, thareforc, that nuoh approve1 is not 

aio?ply a ministeriel requiresent. It is to be based upon 

dlsoret$on end juogment . It le a quosl-judicial fuwtion. 

t’hen an ezecutive offioor, in the ‘exeroise of NE functions, 

is roqtired to Pass upon roots anO to betsrm1ne his action by 

the rocts round, suoh is sometimes called a gU6bjUaichd 

~tlmotlon. Ry. Co. v. Shamon, 100 Tox. 379, 100 Z. Gi;. 138; 

10 I,. R. A. (X.5.) 681. A130 300 Beldscchi v. Coo&et (Civ. 

;\PP.). 145 s. w. 325, 328, (Error Refused) .’ 

The file submitted contrjlns a lcttor from the County 

‘. S!upe&sndnat to tir. PI. B. gin&, AuOltor, 3teto Board’of Xduce 

ti0n; bt6a AUK. 30,. 1343. Tbe follovi@g paragrsgh is quoted 

thersircw 

Tl!h’h’ero ~103 no lntontlon oft in UP to Atbtins in ----J-4 any wep ana we wera assurea by the .X&e Department 

that no injury would be dmo in chani&un& from fi dlstriet contr%cS to inaividusl tr*nsPers.e 

. This letter clearly intiicateo that the procedure Protided‘ for ‘in ?!oc. 2 of Art. 8. aforoonid wno abandoned m d that 

individual transfers ‘YIere effected. 

Also, the coPy of the nOontraot’to Tronsfur Districts 

%ccdrding to Article 8 of the Equelizotion’Iew For 1942-1$43”, 

contained in the fi.le subxitte4, shOpiS no EP$WOVO~ t!lcr~~f by 

either tho County Zuperj.ntendc;nt ox the !Xetc~ Superintendent. 

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Ke now oall attention to t% nature of H. B. 

2Sl,, Chap. 519, Aots Of the 47th LGgiShtUJ'e, R. S. Itrj 

’ baadine is “Appro,7ristion - Rural Aid To Publio !Zahool.n.* 

It is osseatlelly a? appropriation bill. Lpeo; 2 of Art. 8, 

$cpri3, is a oofcponent part t&roof. It is elmentary that 

oonditioncr of sn.approprlatloa bill atiat be conplied with 

before xconcys am ba paid out thereunder. Nalthcr cm 

money be drawn tron tho Trcesury but in 

SJhif~C EDDrOpri~tiO~S~D!-C&bJ &. 

C~astitution of Taras. 

.Thhs ol.roua&anoea surrounding tha quontlon submitted ov3.deMly oooarrcd OS 8 result CZ nn erroncowinterpqetstion of law. Ehhile this is unfortunate end is to 

bo regrettad, the law oannot be changed thereby. 

steted. 

Our opinion in this oonmotion ia as above 

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Very truly youra : . 

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Asa.ifitant 

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