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# THE NEYGENERAL

October 3, 1949

Hon. C. I-I.Cavness State Auditor Austin, Texas Opinion No. V-921

Re: Jurisdiction of State ~~Auditor under S. B. 116andpenalties for failure of adistrict to comply with S. B. 116.

Dear Sir:

You have requested anopinion on several questions arising under the recent Gilmer-Aikin Acts.

Your first question is whether S. B. 116places all schools and resident scholastics under thejurisdiction and authority ofthe Foundation School Program Division ofthe State Auditor’s Office. This is abroad question with nofact situation presented. Itis difficult to make accurate sweeping answers to that type of question. At least generally speaking, the answer is that the Act placesthemunder that office. Article X ofS. B. 116 says: II

. . 0after the effective date ofthis

Act and until the State Board ofEducation shall have been elected and the State Commissioner 0

. . shall have been appointed... the State Auditor shall take over and perform all ofthe duties herein assigned tothe State Commissioner,

. . and is hereby authorized to do and perform all acts necessary to putthis Act into effect. and tooperate and administer the same.
. . .

“In carrying outthe provisions of this Act.

. . all

. . . school officials and employees, arehereby directed tofurnishHon. C. H. Cavness, Page 2 (V-921) . -

.

to the State Auditor such reports, records and other information as he may require in carrying out the provisions of this Act.” (Emphasis added throughout).

Your second question is whether Boards of School Trustees are liable to penalties under Article XI, Section 2, ifthey refuse to pay the minimum salaries provided in S. B. 116. This is likewise ahypothetical question with no facts. You donot state that there has been arefusal to comply with S. B. 116. We therefore do not deem it expedient to attempt to lay down any hard and fast, pronouncements as towhat we think the courts would hold until all’the circumstances of an actual situation are presented.

Section 1ofArticle IV ofS. B. 116says that: “Beginning with the school year 1949- 1950, the Board of Trustees of each and every school district inthe State of Texas shall pay their teachers, both whites andnegroes, upon a.salary schedule providing aminimum beginning base salary plus increments above the minimum for additional experience in teaching as hereinafter prescribed. The salaries fixed herein shall be regarded as minimum salaries only and each district may supplement such salaries. ~. .

“ly law or parts oflaws in conflict with Section 1ofArticle IV ofthis Act are hereby repealed.”

These salary provisions are plain, They repeal all minimum salary laws in conflict with them. The Legislature undoubtedly intended that these provisions should be complied with in all districts. Itpronounced that no financial assistance under the Act should be given any school which failed to pay the minimumHon. C. H. Cavness, Page 3 (V-921)

salaries. Itfurther provided any school which failed to pay minimum salaries would lose its affiliation and accreditation. These penalties are stated in the 4th paragraph ofSection 1ofArticle IV:

“Provided that payment of atleast the minimum salary schedule provided herein shall be acondition precedent: (1) to a school’s participatmn inthe Foundation School Fund; and (2) to its namesbeing placed or continued upon the official list of affiliated 

### or accredited schools. s :’

Itis presumed that officials ofthe State will perform their duties under the law. Mexia I.S.D. v. Mexia, 134 Tex. 95, 133 S.W.2d, 118(1939); Stewart v. Moore, 291 S.W. 886 (Tex. Comm. App. 1927); Donna I.S.D. v. Sanders. 57 S.W.2~d 857 (Ter. civ. App. 1933); Meecham. Public Offices and Officers 379; Throop, Public Officers 535; 34 Tex, Jur. 462, Public Officers, Sec. 81; 17 Tex. Jur. 271. Evidence, Civil Cases, Sec. 75.

Itwill not be presumed that school trustees will deprive their districts ofthe financial benefits ofthe State’s program and deprive their students of scholastic affiliation and accreditation. We will therefore refrain from passing upon the question of whether any recalcitrant trustees are criminally liable tofines from $100 to $1000 under Section 2ofArticle XI ifthey pay less than the minimum wage. The many circumstances surrounding criminal responsibility are such as could not be accurately anticipated and disposed ofin an abstract and summary manner. To say the least, those who fail to obey this law would subject themselves to the possibility ofprosecution. Inthis regard Section 2ofArticle XI provides: “Any person, including any county superintendent or ex-officio county superintendent, school bus driver, school trustee, or any district superintendent, principal or other administrative personnel. or teacher of a school district, or its treasurer or proper disbursing officer, who violates any ofthe provisionsHon. C. H. Cavness, Page 4 (V-921)

ofthis Act other than those towhich Section 1 of Article XI ofthis Act applies, shall be guilty of amisdemeanor and shall be fined not less, than One Hundred ($100.00) Dollars
nor more than One Thousand ($l,OOO.OO) Dollars. ~.. .”

Your fourth question inquires about the penalties applicable if alocal school board fails to make an effort to raise the local funds to assist in the program. This question also is too broad for there to be apin-point answer. There may be many different facts and circumstances surrounding such failure. For example, the provisions of Article VI would seem to require a school district to increase its maintenance tax if necessary to meet the local charge determined for the district. The Legislature did not intend that any district should increase its tax rate over the $1.50 limit fixed inArticle 2784e in order tomeet the local charge or assignment determined. Itis stated in the fourth andfifth paragraphs ofSection 5of Article VI that:

“Provided that ifthe revenue that would be derived from the legal maximum local maintenance school tax is less than the amount that is assigned to a school district according to the economic index, and if such property valuation is valued for State and county purposes, such lesser amount shall be the amount assigned tobe raised by such school district.

“Provided further, that if a school district is unable or for any reason fails to collect local maintenance school funds equal to the amount assigned to it as determined by this Act, such failure will not make the district ineligible for full State per capita apportionment andfull Foundation School Fund grants, butthe amount as determined by this Act shall be charged against the district as budgetary receipts whether such amount is collected or not.”Hon. C. H. Cavness, Page 5 (V-921)

Both Section 3ofArticle VII ofthe Texas Constitution and Article 2784e. V.C.S., authorize the levy and collection of local maintenance taxes only upon amajority vote ofthe qualified property taxpaying voters of the district. The inclusion in Sen,ate Bill 116of the above provisions constitutes legislative recognition of such constitutional and statutory limitations. Certainly where the people of a school district vote against atax increase, the school district trustees would be unable to raise the funds equal to the amount assigned,

The Legislature has required local boards of **trustees** to extend their, efforts to raising local funds to equal the amount to be charged andused by the district in carrying out the purposes of Senate Bill 116. But it cannot force thevoters in
aschool district to **vote** for alo& maintenance tax which will raise that necessary amount. Itmay be that the Legislature could have guaranteed the establishment andfinancing ofthe prescribed minimum program in every school district in Texas by adequate appropriations from State funds of all tliemoney re* quired (over and above State and County Available School Funds to-be realized by the Districts) to take care ofthe total costs of the minimum program prescribed, but itdid not do so in Senate Bill 116. The Bill requires all local school districts to raise from local sources forty-five million dollars toward the total cost of the prescribed minimum program. Itdoes not guarantee to each and every district aminimum foundation program. It guarantees only, tothe extent ofState funds appropriated for such purpose, the availability of aminimum foundation program to each child of school age in Texas. Thus, the full cooperation ofthe property taxpaying voters of each school district is necessary to effectuate infull the intended purpose andprogram prescribed in the Act. To the extent that taxpayers of the school districts do provide local funds sufficient to discharge the obligation or charge imposed upon them tobe used in the minimum program, we think the boards oftrustees thereof are under a duty tomake available to their scholastics the minimum program provided inthe Act.Hon. C. H. Cavness, Page 6 (V-921)

As in answering question two, we will pretermit any discussion of criminal liability until some specific situation is presented with all the surrounding circumstances.

Your last two questions deal with the nine-month school term: (1) Is there cr,iminal responsibility for the failure of the school trustees to have anine-months’ school; and (2) what Gilmer-Aikin funds, ,ifany, are available to adistrict which fails tohave afull nine-month8 term?

As in the previous questions, we pass for the present the question of criminal liability under Section 2ofArticle XI quoted herein on page 3.

However. itwas unquestionably andpositively the intention of the Legislature that afull nine-months” term be held under the Gilmer-Aikin program. Senate Bill 116declares at the outset that:

I‘

. . . Itis the purpose ofthis Act to

guarantee to each child of school age in Texas the availability of aminimum Foundation School Program for nine (9) full months of the year.
. . .”

An examination of Article IV will reveal that the salary schedules, for the most part, contemplate aminimum of
anine-,months’ school. Annual salaries, in general, are obtained by multiplying the monthly salaries by nine.

However, there is no provision, as there was with regard to minimum salaries, that participation in the benefits of the program and accreditation is conditioned on aninemonths’school. And it is provided that classroom teachers shall be paid an annual salary of the monthly salary multiplied by nine.
6.

. . . provided however that if the length

ofthe school term is less than nine months, the annual salary shall be such base salary and,increments multiplied by the number ofmonths in the term. ”Hon. C. H. Cavness, Page 7 (V-921)

A similar provision is made as to the salaries ofprincipals in certain districts.

Although the Legislature provided for circumstances wherein school terms are less than nine months and did not specifically set out the consequences of afailure to have anine-months’school, its dominant objective was “to guarantee to each child. ~Othe availability of aminimum Foundation School Program for nine full months ofthe year.”

We interpret the program tobe one for aminimum ofnine months. Any school district which maintains its schools for aless period would therefore be entitled only to afractional share ofthe benefits. The fraction would be determined by the number ofmonths the schools were operated. This is indicated by the provisions of Section 2ofArticle V dealing with transportation aid, The aid to be given is a stated amount “for nine months transportation per public school pupil. or aproportionate part thereof if such pupil is not transported for nine months.”

The above are intended to be but general remarks. Itwas the general legislative intent that the public schools participating inthe Gilmer-Aikin program should have afull nine months’term. Financial aid is made available to insure such a schedule.

Many problems will doubtless arise, andwe. of course, cannot solve them all atthis time. Certainly school trustees may not discriminate among pupils similarly situated within their district and furnish some seven months and others nine months of school under the GilmerAikin program. The equal protection clauses of the Texas and Federal Constitutions would prohibit that action, and it would be inviolation ofthe spirit of the Gilmer-Aikin program. Those districts which have less than anine-months* program will be denied aproportionate part ofthe financial assistance made available under the Acts.Hon. C. H. Cavness. Page 8 (V-921)

SUMlvfARY
The Gilmer-Aikin Acts fix the minimum salaries for school teachers and other school employees. Payment of atleast that salary is
acondition precedent to aschool’s participation inthe Foundation School Fund and to its name being placed or continued on the official list of affiliated or accredited schools. Sec. 1ofArt. IV, S.B. 116,Acts 51st Leg. 1949.

The Gilmer-Aikin Acts contemplate a full nine months’school program. A district operating less than nine months of school is entitled only to afractional share ofthe Foundation School Funds.

‘Yours very truly,

ATTORNEYGENERALOF TEXAS 

# BY

Joe R. Greenhill

First Assistant

JRG:erc ATTORNEYGENERAL