- * 

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. 

116 and penalties for 

failure of a district to 

comply with S. B. 116. 

Dear Sir: 

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

Your first question is whether S. B. 116 places 

all schools and resident scholastics under the jurisdiction and 

authority of the Foundation School Program Division of the State 

Auditor’s Office. This is a broad question with no fact situation 

presented. It is 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 of S. B. 116 

says: 

II 

. . 0 after the effective date of this 

Act and until the State Board of Education 

shall have been elected and the State Commissioner 0 . . shall have been appointed... 

the State Auditor shall take over and perform all of the duties herein assigned to the 

State Commissioner, . . and is hereby authorized to do and perform all acts necessary to put this Act into effect. and to operate and administer the same. . . . 

“In carrying out the provisions of 

this Act. . . all . . . school officials and 

employees, arehereby directed to furnish 
Hon. 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, if they 

refuse to pay the minimum salaries provided in S. B. 116. This is 

likewise a hypothetical question with no facts. You do not state 

that there has been a refusal to comply with S. B. 116. We therefore do not deem it expedient to attempt to lay down any hard and 

fast, pronouncements as to what we think the courts would hold until all’the circumstances of an actual situation are presented. 

Section 1 of Article IV of S. B. 116 says that: 

“Beginning with the school year 1949- 

1950, the Board of Trustees of each and every 

school district in the State of Texas shall pay 

their teachers, both whites and negroes, upon 

a .salary schedule providing a minimum 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 of laws in conflict 

with Section 1 of Article IV of this 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. It pronounced that no financial assistance under 

the Act should be given any school which failed to pay the minimum 
Hon. C. H. Cavness, Page 3 (V-921) 

salaries. It further provided any school which failed to pay minimum salaries would lose its affiliation and accreditation. These 

penalties are stated in the 4th paragraph of Section 1 of Article IV: 

“Provided that payment of at least the 

minimum salary schedule provided herein 

shall be a condition precedent: (1) to a school’s 

participatmn in the Foundation School Fund; 

and (2) to its names being placed or continued 

upon the official list of affiliated or accredited 

schools. s :’ 

It is presumed that officials of the 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. 

It will not be presumed that school trustees will deprive their districts of the financial benefits of the 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 to fines 

from $100 to $1000 under Section 2 of Article XI if they pay less 

than the minimum wage. The many circumstances surrounding 

criminal responsibility are such as could not be accurately anticipated and disposed of in an abstract and summary manner. To say 

the least, those who fail to obey this law would subject themselves 

to the possibility of prosecution. In this regard Section 2 of Article 

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 of the provisions 
Hon. C. H. Cavness, Page 4 (V-921) 

of this Act other than those to which Section 1 

of Article XI of this Act applies, shall be 

guilty of a misdemeanor 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 a local 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 a pin-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 in Article 2784e in order to meet the 

local charge or assignment determined. It is stated in the fourth 

and fifth paragraphs of Section 5 of Article VI that: 

“Provided that if the 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 to be 

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 and full Foundation School Fund grants, but the 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 3 of Article VII of the Texas Constitution and Article 2784e. V.C.S., authorize the levy and collection 

of local maintenance taxes only upon a majority vote of the qualified property taxpaying voters of the district. The inclusion in 

Sen,ate Bill 116 of the above provisions constitutes legislative recognition of such constitutional and statutory limitations. Certainly where the people of a school district vote against a tax 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 and used by the district in carrying out 

the purposes of Senate Bill 116. But it cannot force the voters in 

a school district to vote for a lo& maintenance tax which will 

raise that necessary amount. It may be that the Legislature 

could have guaranteed the establishment and financing of the prescribed minimum program in every school district in Texas by 

adequate appropriations from State funds of all tlie money re* 

quired (over and above State and County Available School Funds 

to-be realized by the Districts) to take care of the total costs of 

the minimum program prescribed, but it did 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. It does not guarantee 

to each and every district a minimum foundation program. It 

guarantees only, to the extent of State funds appropriated for 

such purpose, the availability of a minimum foundation program 

to each child of school age in Texas. Thus, the full cooperation 

of the property taxpaying voters of each school district is necessary to effectuate in full the intended purpose and program 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 to be used in the minimum 

program, we think the boards of trustees thereof are under a 

duty to make available to their scholastics the minimum program provided in the 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 a nine-months’ school; and (2) 

what Gilmer-Aikin funds, ,if any, are available to a district which 

fails to have a full nine-month8 term? 

As in the previous questions, we pass for the 

present the question of criminal liability under Section 2 of Article XI quoted herein on page 3. 

However. it was unquestionably and positively the 

intention of the Legislature that a full nine-months” term be held 

under the Gilmer-Aikin program. Senate Bill 116 declares at 

the outset that: 

I‘ 

. . . It is the purpose of this Act to 

guarantee to each child of school age in 

Texas the availability of a minimum 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 a minimum of 

a nine-,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 a ninemonths’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 

of the school term is less than nine months, the 

annual salary shall be such base salary and,increments multiplied by the number of months in 

the term. ” 
Hon. C. H. Cavness, Page 7 (V-921) 

A similar provision is made as to the salaries 

of principals 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 a failure to 

have a nine-months’school, its dominant objective was “to 

guarantee to each child. ~ O the availability of a minimum 

Foundation School Program for nine full months of the year.” 

We interpret the program to be one for a minimum of nine months. Any school district which maintains its 

schools for a less period would therefore be entitled only to 

a fractional share of the benefits. The fraction would be determined by the number of months the schools were operated. 

This is indicated by the provisions of Section 2 of Article V 

dealing with transportation aid, The aid to be given is a 

stated amount “for nine months transportation per public 

school pupil. or a proportionate part thereof if such pupil 

is not transported for nine months.” 

The above are intended to be but general remarks. It was the general legislative intent that the public 

schools participating in the Gilmer-Aikin program should 

have a full nine months’term. Financial aid is made available to insure such a schedule. 

Many problems will doubtless arise, and we. 

of course, cannot solve them all at this 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 in violation of the spirit of the Gilmer-Aikin program. Those districts which have less than a nine-months* 

program will be denied a proportionate part of the 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 at least that salary is 

a condition precedent to a school’s participation 

in the Foundation School Fund and to its name 

being placed or continued on the official list of 

affiliated or accredited schools. Sec. 1 of Art. 

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 a fractional share of the Foundation School Funds. 

‘Yours very truly, 

ATTORNEYGENERALOF TEXAS 

BY 

Joe R. Greenhill 

First Assistant 

JRG:erc ATTORNEYGENERAL