August 24, 1949 

Honorable Robert S. Calvert 

Comptroller of Public Accounts 

Austin, Texas 

Dear Sir: opinion NO. V-894 

Re: 

'Your reque‘st for an 

Validity of approptiliittlon of funds In LB. 

322, Acts 51st Leg., 

R.S., 1949, to the Department of Education 

and other agencies from 

the Foundation School 

Fund. 

opinion relates to the 

validity of the appropriation to the State Department 

of Education and other agericles from the Foundation 

School Fund in the General Departmental Appropriation 

Bill (House Bill 322, 51st Legislature). We quote 

the questions submitted: 

"1. Is the appropriation of funds 

contained in the ffeneral Departmental Appropriation Bill (House Bill 322, slat 

Legislature) ~to the State Department of 

Education and other agencies from the 

Foundation School Fund valid in view of 

the provisions of Senate Bill No. 117, 

slat Legislature, creating said fund and 

the provisions of Senate Bill No. 116, 

51st Legislature, providing the manner 

in which money shall be expended from 

such fund? 

“2. If you answer to the above 

question is in the negative, is such appropriation valid a8 an appropriation 

from the General Revenue Fund?" 
Hon. Robert S. Calvert, Page 2 (V-894) 

You state that you know of no 1itigatJon 

or departmental policy or rule bearing on the queations submltted. 

Section 1 of S.B. 117, Acts 51st Leg., R.S., 

1949, reads in part: 

" . . . there is hereby appropriated, 

-allocated, transferred and credited to 

a:speclal fund to be known as the Foundation School Fund such an amount as Is determined by the Foundation School Fund 

Budget 

ed...." 

Commlttee, which is hereby creatance Fund) 

The Foundation School Fund (from the Clearand the Foundation School Fund Budget Commlttee,(State Commissioner of Education, State Auditor 

and State Comptroller of Public Accounts) are created 

by said Senate Bill 117 as appears from the portion 

thereof quoted above. 

Section 1 of said Bill further provides the 

purpose for which said funds shall be transferred and 

credited to the Foundation School Fund: 

" . . . for the purpose of financing a 

Foundation School Program as defined in 

the Foundation School Program Act...." 

Article X of S.B. 116, Acts slat Leg., R.S., 

1949, (Foundation School Program Act) reads in part: 

"Warrants for all money expended according to the provisions of this Act shall 

be approved and transmitted to treasurers 

of depositories of school districts in the 

same manner as warrants for State apportionment are now transmitted." 

It will be noted that Section 1 of Senate 

Bill 117 contains a similar provision: 

",.. warrants for all money expended from the Foundation School Fund shall 

be approved by the State Commissioner of 
Hon. Robert S. Calvert, Page 3 (V-894) 

Education and transmitted by him to the 

treasurers of depositories of school dlstricts to which grants are made in the 

same manner as warrants for State apportionment are now transmitted." 

We do not construe the provisions of~the 

Acts to be a limitation upon the power of the Leglslature to make an appropriation from the Fund for the 

support of administrative functions described in the 

Gll.merAlkln~laws. The language merely describes the 

procedure for payments which are authorized to the 

school districts. The same Legislature made specific 

appropriations for administrative purposes from the 

Foundation School Fund. Section 1 of H.B. 322, Acts 

51st Leg., R.S., 1949, reads In part: 

n . . . there is hereby appropriated 

: for each of the fiscal years of,the biennium ending August 31, 1951 . ..$490.000 

to the State Department of Education from 

the Foundation School Fund, created by 

Senate Bill 117, Acts of the Regular Session, 51st Legislature, 1949...." 

Subsection (34). Section 2 of H.B. 322, Acts 

51st Leg., R.S., 1949, reads In part: 

"There is hereby specifically appropriated out of any moneys in the General 

Revenue Fund not otherwise appropriated, 

the amount necessary for each month if on 

a monthly basis, or each year If on a yearly basis, of the biennium ending August 31, 

1951, to pay the full amounts contemplated 

and provided by Senate Bill No. 117 . . . 

should there be Insufficient money . . . to 

carry out in full the purposes and provlslona of said Senate Bill No. 117....' 

The Intention of the Legislature in enacting Senate Bills 115, 116 and 117, and House Bill 322 

is not entirely clear from the language of the indlvldual Acts and therefore we bellteve they should be taken 

together and examined to arrive at the true meaning. 

!Phe statutes relate to the same subject matter, and 

may be considered to be in sari materia. 
Hon. Robert S. Calvert, Page 4 (V-894) 

In 2 Sutherland Statutory Construction (3rd 

Rd. 1943) 535, It Is aaid: 

"Statutes are considered to be & 

pari materlq --~to pertain to the same 

subject mstter -- when they relate to 

the same person or thing; or to the same 

class of persons or things, or have the 

sams purpose or object." 

The rule that statutes In narl materia will 

be considered together applies with peculiar force'to 

Acts passed in the same Session of the Legislature. 

39 Tex. Jur, 258, Statutes, Sec. 137, and cases there 

cited. 

A fundamental rule to be applied In the construction of a statute Is to- ascertain the legislative 

Intent, and when once afvzertalned, it Is the law. See 

Anar. Inc. v. Texas Underwriters. et al., 129 S.W.2d 

374 ( Tex. Clv. App., 1939, error ref.). 

The language, *... all money expended according to the provisions of this Act shall ...n in 

Senate Bill 116, is not exclusive and does not prevent 

the Legislature from appropriating money out of the 

Fund by another Act at the same Session for admlnistration of the Foundation School Program. The appropriation In House Bill 322 is therefore harmonious with 

the provisions of Senate Bill 116. If the Legislature 

intended this provision to be the same In both Acts, 

the words, "according to the provisions of this Act," 

may be supplied in Senate Bill 11 

utory Construction (3rd Rd., 1943 1 

. 2 Sutherland Stat453; 39 Tex. Jur. 

183, Statutes, Sec. 96, and cases there cited. We 

think such was the intention of the Legislature. 

$here is no necessary conflict between the 

language, . . . for the purpose of financing a Foundation School Program . . . in Senate Bill 117, and the 

appropriation bill, and such language Is not a limitation upon the Legislature in allocating funds for or 

appropriating money from such Fund for administration 

necessary to carry out the purpose of the Fund. 

Section 1 of Article I, Senate Bill 116 (the 

Foundation School Program Act), reads in part: 
Hon. Robert S. Calvert, Page 5 (V-894) 

I, 

C,. It Is the purpose of this Act 

to guarantee to each child OS school age 

in Texas the avallablllty of a mlnlmum 

Foundation School Program for nine (9) 

full months of the year. and to establish 

the eligibility require&r&s applicable 

to Texas public school districts in connection therewith." 

Section 2 of Article I, Senate Bill 

reads In part: 

"The Central Education Agency ahall 

exercise, under the Acts of the Leglslature, general control of the system of 

public educations at the State level...." 

115, 

This language of the Acts (SIB+ 115, 116, 

117 and LB, 322) discloses interdependence of purpose. 

The Foundation School Program cannot become a reality 

until activated by administrative officers and agencies 

provided in Senate Bill 115 "for general control of the 

System of Public Education at the State level." Therefore, funds for salaries of administrative officers to 

conduct the Program at the State level are as necessary to the Program as are funds for payments to the 

school districts. 

The program cannot function without admlnistratlve supervision and the expenditure of funds for 

that purpose. Thus, the administrative cost of the Program Is In reality a part of the Program Itself. AS 

has already been pointed out, the Legislature has made 

a specific appropriation for that purpose In House Bill 

322. 

House Bill 322 does not attempt to amend or 

repeal any of the provisions of Senate Bills 115, 116 

and 117. These Acts relate to the same general subject and should be considered together. If being SO 

considered. thes can be harmonized and effect given to 

hearing; Nell1 v. 

sldered, 'there is no repugnancy between tie prOvlsLons 

of these statutes. They may stand together and effect 
Hon. Robert S. Calvert, Page 6 (V-894) 

may be given to the entire provisions of each In a+ 

cordance with the established rules of construction. 

Brown v. Chancellor, 61 Tex. 438 (1884). 

The Acts name two sources of State funds 

for the Foundation School Fund -- transfer from the 

Clearance Fund by the Comptroller In an amount determined by the Foundation School Fund Budget Committee as necessary to finance the Foundation School 

Program described in the Foundation School Program Act, 

and transfer from the General Revenue Fund should there 

be insufficient money in the Fund to carry out the purposes expressed in Senate Bill 117. 

We think from an examination of the Acts the 

Legislature intended, by the enactment of Senate Bills 

115 and 116, to create substantially new admlnlstrative machinery for the conduct of the public free school 

system of Texas and, by the appropriation in House Bill 

322, to pay the cost of such system, including admlnlstratlon, from funds allocated to the Foundation School 

Fund created by Senate Bill 117. It follows that the 

Legislature must have intended to authorize the Comptroller to transfer money into the Fund to pay adminlstratlve expenses since It made an appropriation for 

that purpose from such Fund. To determine the legislative intent to have been otherwise would render the 

legislative action Ineffective and useless, and it is 

not presumed that the Legislature intended to do a useless thing. 39 Tex. Jur, 245, Statutes, Sec. 131, and 

cases there cited. As pointed out In Southwestern Gas 

and Electric Co, v.'State, 190 S W.2d 132 (T 

PP.9 1945, affd. 193 S,W.2d 6753, an Intent% E?io 

a useless, Ineffective thing should never be ascribed 

to the Legislature in performance of Its law enacting 

functions. There is a presumption against a construction which would render a statute ineffect~ive or inefficient or which would cause grave public in ury or 

even inconvenience. Bird v. U.S., 187 U.S. 11 $ 

also see U.S. v. Powers, 307 U.S.214 (1939). 

(1902); 

The Legislature has the duty to 'I*.. provide 

by law for the compensation of all officers, servants, 

agents, and public contractors, not provided for in 

this Constitution...," Texas Const. Art. III, Sec. 44. 

Therefore if House Bill 322 is a "law" and does not 

violate other constitutional restrictions and is not 
Hon. Robert S. Calvert, Page 7 (V-894) 

contrary to general law, it Is valid and should be 

given effect. 

There Is a rule of law recognized in ,prevlous 

opinions of this department that when by general atatute a fund derived from a particular source %a devoted 

to a certain purpose such fund may not be diverted by a 

general appropriation bill to other and differentuaes, 

Johnson v- Fernuson, 55 S.W.2d 153 (Tex. Civ. App.; 

1932, error dlsm.1; Attorney General's Opinions Nos. 

O-700 and V-412. 

We do not consider the appropriation from the 

Foundation School Fund for the support and maintenance 

of the State Department of Education and other agencies 

named as appropriating money to a use different from 

that to which It is devoted under the terms of the GilmerAlkln laws. The appropriation In House Bill 322, it 

will be seen, Is not contrary to the Gllmer-Alkln laws 

and Is harmonious with the Constitution and laws of this 

State and does not contravene the rule of law ~(that an 

appropriation bill may not operate~to alter or change 

the 

203 7 

eneral law) announced in State v. Steele, 57 Tex. 

18821, and followed in opinions of this department. 

Attorney GeneralIs Conference Opinions Nos. 1802, 2787, 

2970, 2965 and Attorney General's Opinions' Nos. 1745, 

O-700, O-1637, O-2573, and V-412. 

We conclude, therefore, that the approprlatlon which is the subject of your inquiry is valid as 

an appropriation from the Foundation School Fund and 

authorizes you to transfer, in addition to the amount 

determined and certified by the Foundation School Fund 

Budget Committee, to the Foundation School Fund from 

the Clearance Fund, or from the General Revenue Fund 

should there be insufficient money in the Foundation 

School Fund, for the purpose of paying salarles,.per 

diem of Board Members, office supplies and equipment, 

traveling expenses, and other necessary expenses, the 

amounts set.forth in House Bill 322, Acts of the 51st 

Legislature. 

The only part of House Bill 322 now before 

us for consideration is that portion of Section 1 appearing at page 75, Senate and House Journal Supplement, 51st Leg., R.S., dated June 29, 1949, making appropriations to the State Department of Education and 
Hon. Robert S. Calvert, Fage 8 (V-894) 

other agencies from the Foundation School Fund for 

salaries, per,diem of Board Members, office supplies 

and equipment, traveling expenses, and other necessary expenses, and the provisions of Subsection (34) 

of Section 2 thereof, appearing at page164, Senate 

and House Journal Supplement, 51at Leg., R.S., dated 

June 29, 1949, as the same relates to the appropriations contained in the Bill to the State Department ~of 

Education and other agencies for admlrilstratlve purposes from the Foundation School Fund. We express no 

opinion on the portions of the Bill not here involved. 

SUWMARP 

- 

The provision in the General Departmental Appropriation Bill making speclflcappropriations to the Department of Rducatlon and other agencies from the Foundation 

School Fund is In harmony with general law 

and the Constitution of Texas and is a valid 

appropriation (construing the effect of the 

provisions In H.B. 322, Acts 5lst Leg., R.S., 

1949, upon S.B. 115, 116 and 117, Acts 51st 

Leg., R.S., 1949). 

Very truly yours 

ATl!ORNEYGENEXALOF TJ3XAS 

Bv 

EH:db 

-Y 

Everett Hutchlnson 

Assistant