# The Attorney General ofTexas

Febxuary 28, 1978 JOHN L.HILL Attorney General

Honorable Bob Bullock Comptroller ofPublic Accounts L.B.J. Building Austin, Texas
Dr. Kenneth Ashworth Commissioner for Higher Education Coordinating Board, Texas College and University System Austin, Texas Opinion No. H-l129

Re: Allocation of funds to colleges and universities under article 7,section 17of the Texas Constitution.

Gentlemen:
You have requested our opinion regarding the allocation of funds to colleges and universities under article 7,section 17ofthe Texas Constitution.
Article ‘7,section 17,originally adopted in1947, and amended in1956and 1965, levies a state ad valorem tax “for the purpose of creating a special fund” to finance permanent improvements at 17state institutions designated therein. The 1965 amendment directed the Comptroller to allocate funds among the various institutions for the 12-year period beginning June 1,1966, according to aspecific formula:

Eighty-five per cent (85%) of such funds shall be allocated bythe Comptroller ofPublic Accounts of the State of Texas on June 1, 1966, and fifteen per cent (15%)of such funds shall be allocated by said Comptroller on June 1, 1972, based on the following determinations: (1) Ninety per cent (90%) of the funds allocated on June 1, 1966, shall be allocated to state institutions based on projected enrollment increases published by the Coordinating Board, Texas College and University System for fall 1966tofall 1978. (2) Ten per cent (10%) of the funds allocated on June 1,1966,shall beallocated to certain ofthe eligible state institutions based on the number of additional

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Honorable Bob Bullock Dr. Kenneth Ashworth - Page 2 (B-1129)

square feet needed in educational and general facilities by such eligible state institution to meet the average square feet per full time equivalent student of all state senior institutions (currently numbering twenty-two). (3) All of the funds allocated on June 1, 1972, shall be allocated to certain of the eligible state institutions based on determinations used in the June 1, 1966, allocations except that the allocation of fifty per cent (50%) of the funds allocated on June 1,1972, shall be based on projected enrollment increases for fall 1972to fall 1978, and fifty per cent (50%) of such funds allocated on June 1,.1972, shall be based on the need for additional square feet of education and general facilities.
The amendment then provides:

Not later than June first of the beginning year of each succeeding ten-year period them Comptroller of Public Accounts of the State of Texas shall reallocate eighty-five per cent (85%) ofthe funds tobederived from said Ten Cent (1Oc)ad valorem tax for said ten-year period and not later than June first ofthe sixth year ofeach succeeding ten-year period said Comptroller shall reallocate fifteen per cent (15%)of such funds to the eligible state institutions then in existence based on determinations used in the said ten-year period that are similar to the determinations used in g the twelve-year period begin% allocatin g funds durin January 1, 1966, except that enrollment projections for succeeding ten-year periods will be from the fall semester of the first year to the fall semester ofthe tenth year. All such designated institutions of higher learning shall not thereafter receive any general revenue funds for the acquiring or constructing of buildings or other permanent improvements for which said Ten Cent (1Od)ad valorem tax is herein provided, except in case of fire, flood, storm, or earthquake occurring at any such institution, in which case an appropriation in an amount sufficient to replace the uninsured loss so incurred may be made by the Legislature out ofany General Revenue Funds. (Emphasis added). Inpursuance of the constitutional directive that you reallocate these funds for the ten-year period beginning June 1,1978, you first ask whether state colleges and universities created by the Legislature since 1965are eligible to receive the funds allocated byarticle 7,section 17.

p. 4607Honorable BobBullock

Dr. Kenneth Ashworth - Page 3 (H-1129)

In our opinion, the funds described inarticle 7,section 17may be distributed only to those institutions named therein. The language ofthe amendment isclear:

The following state institutions then in existence shall be eligible toreceive funds raised from said Ten Cent IlOd) tax levy for the twelve-year period beginning January 1, 1966, and for the succeeding ten-year period: (Emphasis added). It iswell established that tax monies levied and collected for a particular purpose may be expended only for that purpose. Carroll v.Williams, 202 S.W. 504, 506-07 (Tex. 1918). InAttorney General Opinion C-687 (19661,this office held that
ItIhe five cent tax levied for the year 1965 was levied for

the purposes set out in Article VII, Section 17prior to the November, 1965 amendment and therefore should be distributed among the twelve schools listed at the time the tax levy was made.

... [WIhether based onthe tax levied under the 1947, 1956, or 1965amendments the distribution of funds would depend on which allocation was ineffect at the time the particular tax waslevied. (Emphasis inoriginal). Furthermore, the Legislature has recognized that distribution of funds under article 7,section 17islimited to the institutions named therein by providing other means for financing permanent improvements at recently created state universities. See e. -P Acts 1973, 63rd Leg., ch. 659, at 2119;Acts 1977, 65th Leg., ch. 872, at 3058 Texas A&I- Corpus Christi State University); Acts 1975, 64th Leg., ch. 743, at 2786; Acts 1977, 65th Leg., ch. 872, at 3081(Texas Eastern University). Ifthese institutions were permitted to share inthe allocation of article 7, section 17,any appropriation to them for permanent improvements would be incontravention of that portion of the amendment which prohibits the expenditure of “any general revenue funds for the acquiring or constructing of buildings or other permanent improvements for which said Ten Cent (1OC)ad valorem tax is herein provided

. . . .” Inaddition, the legislative history ofamendments and attempted amendments to this section indicate clearly that the section has been consistently interpreted as applying only to those institutions specifically listed. It is our opinion, therefore, that only those institutions designated by name in article 7, section 17are eligible to receive funds allocated thereunder.
You also ask whether the Comptroller may, for the allocation to be made in June, 1978, vary the formula from the 90percent enrollment - 10percent square footage basis used in 1966. Article 7,section 17requires that the reallocation shall be

P. 4608Honorable BobBullock

Dr. Kenneth Ashworth - Page 4 (R-1129)

based on determinations for the said ten-year period that are similar to the determinations used in allocating funds during the twelve-year period beginning January 1,1966

..... (Emphasis added). “Similar” does not mean “identical,” but rather “having characteristics incommon: very much alike

...alike in substance or essentials.” Webster’s New International Dictionary (3d ed.). As the court noted in Guarantee Mutual Life Insurance Co. v. Harrison, 358 S.W.2d 404 (Tex. Civ. App. - Austin 1962,writ ref’d n.r.e.1,

[ilt is a word with different meanings depending on the context inwhich it isused.
E at 406.
In this instance, we believe that the context leaves no room for avariable allocation formula. The use of “similar” rather than “identical” probably reflects the uncertainty of forecasting in 1965 whether there would indeed be projected enrollment increases for aperiod beginning 13years thereafter. Additionally, in one instance the formula will be based on a ten year period while in another it is based on a twelve year period. Jnany case, it is obvious that any determination made in 1978isunlikely tobe identical to one made in1965,ifonly because the raw data are somewhat different. Furthermore, were we to construe “similar” to permit a flexible allocation formula, we would have no means by which to determine what degree of variation from 90-10 is permissible. Finally, in Guarantee Mutual Life Insurance Co. v. Harrison, e, the court rejected a 1951 Attorney General’s Opinion which had attributed a flexible meaning to “similar.” 358 S.W.2d at 406-08. In our opinion, the Comptroller may not vary the 1978 allocation formula from the 90 percent enrollment - 10percent square footage basis used in1966.
SUMMARY

Only those institutions of higher education designated by name in article 7, section 17are eligible to receive funds allocated thereunder. The Comptroller may not vary the 1978allocation formula from the 90percent enrollment - 10 percent square footage basis used in1986.

Attorney General ofTexas

P. 4609Honorable BobBullock

Dr. Kenneth Ashworth - Page 5 (H-U.29)

APPROVED:

DAVID M.KENDALL, First Assistant 

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C. ROBERT HEATH, Chairman Opinion Committee jst

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