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 

201 East 11th Street 

Austin, Texas 78701 

Opinion No. H- 507 

Re: Whether the Legislature 

has the authority to limit the 

amount available to the State 

Board of Education for use in 

providing free text books for 

public school students. 

Dear Commissioner Brockette: 

Your opinion request poles the question of whether the Legislature 

is authorized to limit the amount of funds that the State Board of Education 

can s’et abide out of the Available School Fund for use in providing free 

text books for public school students. Texas Constitution, article 7, 

section 3 creates the Available School Fund and provides: 

. . . it shall be, the duty of the State Board of 

Education to set aside a sufficient amount out of the 

said tax to provide free text books for the use of 

children attending the public free’schools of this 

State; provided, however, that should the limit of 

taxatiPn herein named be insufficient the deficit 

may be met by appropriation from the general 

funds of the State . . . . 

The procedure to be followed by the State Board in executing their duty is 

more clearly defined in section 12.02(d) and (e) of the Education Code: 

(d) The transfer of funds set apart to the textbook fund shall be determined by the State Board of 

Education on the basis of a report of the commissioner 

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

of education submitted on July 1 of each year, 

stating: 

(1) the amount of the textbook fund which 

is then unexpended: and 

(2) his estimate as to the funds necessary 

for the purchase and distribution and other 

necessary expenses of textbooks for the school 

session of the following year. 

(e) ‘On the basis of the information furnished, the 

state board,shall have the power to set apart from the 

available school fund the estimated amount needed 

with 25 percent additional, this additional sum to be 

used to meet emergencies or necessities caused by 

unusual increase in scholastic attendance or by unusual 

and unforeseen expenses and school conditions. 

In appropriation 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 to be 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 of that estimated in the 

appropriations act without question from the Comptroller. The Comptroller 

would honor all claims against the State Textbook Fund up to the amount 

actually set aside by the Board. 

But in the current appropriations act a new approach was taken. 

Rather than appropriate an estimated amount for use by the State Board 

in providing free text books, the Legislature allocated an exact 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 of Agency Administration 

above) 26,119, 862 20, 268,006 

p. 2286 
. - 

Then Honorable 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 

of Education, 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 of this State. 

Acts 1973, 63rd Leg., R.S., ch. 659, p. 2070. 

There can be no doubt that the Legislature’s failure to appropriate 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 to limit the amount of money available for expenditure on text 

books to a certain sum. Acts 1973, 63rd Leg., R. S., Conference 

Committee Report on House Bill 193, p. 2301. 

Because of this new approach, the Comproller had indicated that 

he would refuse to honor any bill payable from the State Textbook Fund 

if payment of the 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 

of its own estimates. ‘Your question, then, is whether the Legislature 

has the authority to limit the amount of the ‘Available School Fund that 

can be expended on text books in a particular fiscal year to a certain 

sum or whether instead the State Board of Education is the final authority 

as .to what amount will be spent. 

This very question was considered in Attorney General Opinion 

O-561 (1939) which was written by the Honorable James P. Hart. After 

p. 2287 
. 

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

an extremely thorough and well-researched examination of the history 

and operation of article 7, section 3 of the Texas Constitution, the 

opinion concluded: 

With these general principles in mind, we believe 

that it must be concluded that it was not the intention 

of Article 7, Section 3, as amended, to remove control 

over the expenditure of the textbook fund from the Legislature, and to place it in the hands of the State Board 

of Education. Under Section 8 of Article 7 of the Constitution, as it was amended in 1928, and under the statutes 

passed by the Legislature in pursuance of said amendment, 

the Board of Education is an administrative Board, . . . 

It would be radical departure from recognized principles 

of our form of government to place control over 

a large amount of public funds in the hands of such 

an administrative board, free from all control by 

the Legislature, and it would further be in direct 

conflict with the provisions of Article 3, Section 44, 

and Article 8, Section 6 of the Constitution, quoted above. 

. . . I 

In view of all of the considerations discussed above, 

it is our opinion that the Legislature retains control, 

over the expenditure of the 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 to limit the amount of funds that 

the State Board of Education 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, 1975 the Legislature appropriated only 

$20,268,006 for use in providing free text books, no more than that amount 

can be spent by the State Board of Education. 

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

SUMMARY 

The Legislature has the authority to limit the 

amount of funds that the State Board of Education 

can set aside out of the 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 

p. 2289