# OF TEXAS
AUSTW. T-s 78711 aOHN 

### L E1X.L A- o-Ax. January 27, 1975

The Honorable M. L. Brockette Commissioner of Education Texas Education Agency 201East 11thStreet Austin, Texas 78701 Opinion No. H- 507 Re: Whether the Legislature has the authority tolimit the amount available to the State Board ofEducation for use in providing free text books for public school students. Dear Commissioner Brockette:

Your opinion request poles the question ofwhether the Legislature is authorized to limit the amount offunds that the State Board of Education can s’etabide out ofthe Available School Fund for use in providing free text books for public school students. Texas Constitution, article 7, section 3creates the Available School Fund and provides:

. . . it shall be,the duty ofthe State Board of Education to set aside a sufficient amount out ofthe said tax to provide free text books for the use of children attending the public free’schools ofthis State; provided, however, that should the limit of taxatiPn herein named be insufficient the deficit may be met byappropriation from the general funds ofthe State
. . . . The procedure tobe followed by the State Board in executing their duty is more clearly defined in section 12.02(d) and (e) ofthe Education Code: (d) The transfer offunds set apart to the textbook fund shall be determined by the State Board of Education on the basis ofa report ofthe commissioner

p. 2285The Honorable M. L. Brockette page 2 (H-507)

of education submitted onJuly 1of each year, stating: (1)the amount ofthe textbook fund which is then unexpended: and (2) his estimate as tothe funds necessary for the purchase and distribution and other necessary expenses oftextbooks for the school session ofthe following year. (e) ‘Onthebasis ofthe information furnished, the state board,shall have the power to set apart from the available school fund the estimated amount needed with 25percent additional, this additional sum tobe used to meet emergencies or necessities caused by unusual increase in scholastic attendance or byunusual and unforeseen expenses and school conditions. Inappropriation acts other than the current one the Legislature has usually included in the State Board of Education’s appropriations for each fiscal year an estimated amount tobe used by the Board in providing free text books. Since the amount appropriated has been estimated and not limited to a certain sum, the Board has been able to set aside for expenditure on text books an amount in excess ofthat estimated in the appropriations act without question from the Comptroller. The Comptroller would honor all claims against the State Textbook Fund upto the amount actually set aside by the Board.

But in the current appropriations act anew approach was taken. Rather than appropriate an estimated amount for use by the State Board in providing free text books, the Legislature allocated 

### anexact sum to be used for this purpose:

28. Other State Fund Allocations: a.Available School Fund, estimated $330, 358,000 $343, 571,000 b.State Textbook Fund (excluding cost ofAgency Administration above) 26,119, 862 20,268,006

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ThenHonorable M. L. Brockette page 3 (H- 507)

c. General Revenue Fund School Program 3,888,OOO 4,320,000 d. General Revenue Fund Supple.- mental Salary Aid 5,587,000 For the purposes provided by law there is appropriated for the biennium ending August 31, 1975, to the State Board ofEducation, all income to and balances in the Available School Fund and the State Textbook Fund, except as otherwise appropriated by this Legislature, to be expended and distributed in accordance with the laws ofthis State. Acts 1973, 63rd Leg., R.S., ch. 659, p.2070. There can be no doubt that the Legislature’s failure toappropriate an estimated amount for text books was intentional because in the Conference Committee Report accompanying the appropriations act it is stated that the word “estimated” was deleted from the appropriation for text books in order tolimit the amount ofmoney available for expenditure on text books to a certain sum. Acts 1973, 63rd Leg., R.S., Conference Committee Report onHouse Bill 193, p. 2301.

Because ofthis new approach, the Comproller had indicated that he would refuse tohonor any bill payable from the State Textbook Fund if payment ofthe bill would cause expenditures to exceed the amount allocated in the appropriations act. The Comptroller had taken this position,even though the State Board had determined that the amount of funds allocated by the Legislature was insufficient, had estimated that a greater amount is necesary, and had entered into contracts on the basis ofits own estimates. ‘Your question, then, is whether the Legislature has the authority tolimit the amount ofthe ‘Available School Fund that can be expended on text books in aparticular fiscal year to a certain sum or whether instead the State Board ofEducation is the final authority as .towhat amount will be spent.

This very question was considered in Attorney General Opinion O-561 (1939) which was written bythe Honorable James P. Hart. After

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The Honorable M. L. Brockette page 4 (H-507)

an extremely thorough and well-researched examination ofthe history and operation ofarticle 7, section 3ofthe Texas Constitution, the opinion concluded: With these general principles in mind, we believe

that it must be concluded that it was not the intention ofArticle 7, Section 3, as amended, to remove control over the expenditure ofthe textbook fund from the Legislature, and toplace it in the hands ofthe State Board of Education. Under Section 8ofArticle 7ofthe Constitution, as it was amended in 1928, and under the statutes passed by the Legislature in pursuance of said amendment, the Board ofEducation is anadministrative Board,
. . . Itwould be radical departure from recognized principles of**our** form ofgovernment to place control over alarge amount ofpublic funds in the hands ofsuch an administrative board, free from all control by the Legislature, and it would further be in direct conflict with the provisions ofArticle 3, Section 44, and Article 8, Section 6ofthe Constitution, quoted above.

. . . I Inview ofall ofthe considerations discussed above, it is our opinion that the Legislature retains control, over the expenditure ofthe Textbook Fund. , . . Attorney General Opinion O-561 at 17, 18, 21. In our opinion the conclusion reached in O-561 is sound and should not now be altered. Therefore our answer to your question must be in the affirmative. The Legislature does have the authority tolimit the amount offunds that the State Board ofEducation can set aside out of the Available School Fund for use in providing free text books for public school students. Since for the fiscal year ending August 31, 1975the Legislature appropriated only $20,268,006 for use in providing free text books, no more than that amount can be spent bythe State Board ofEducation.

p. 2288The Honorable M. L. Brockette page 5 (H-507)

SUMMARY The Legislature has the authority tolimit the amount offunds that the State Board ofEducation can set aside out ofthe Available School Fund for use in providing free text books for public school students. Very truly yours,

Attorney General of Texas

C. ROBERT HEATH, Chairman Opinion Committee

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