August 24, 1949

HonorableRobert S. Calvert Comptrollerof Public Accounts Austin, Texas

Dear Sir: opinionNO. 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 FoundationSchool Fund.
opinion relates to the validity of the appropriationto the State Department of Educationand other agericles from the Foundation School Fund in the General Departmental Appropriation Bill (HouseBill 322, 51st Legislature). We quote the questions submitted:

"1. Is the appropriation of funds containedin the ffeneral Departmental

AppropriationBill (HouseBill 322, slat Legislature)

~tothe State Departmentof Educationand other agencies from the FoundationSchool Fund valid in view of the provisionsof Senate Bill No. 117, **slat Legislature,**  creating said fund and the provisionsof 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 appropriationvalid 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 determinedby the Foundation School Fund Budget ed...." Commlttee,

which is hereby creatance Fund)

The FoundationSchool Fund (from the Clearand the FoundationSchool Fund Budget Commlttee,(StateCommissionerof Education,State Auditor and State Comptrollerof Public Accounts)are created by said Senate Bill 117 as appears from the portion thereofquoted above.

Section 1 of said Bill furtherprovides the purpose for which said funds shall be transferred and credited to the FoundationSchool Fund:

"

.. . for the purpose of financinga FoundationSchool Programas defined in the FoundationSchool ProgramAct...."
Article X of S.B. 116, Acts slat Leg., R.S., 1949, (Foundation

School ProgramAct) reads in part:

"Warrantsfor all money expended according to the provisionsof this Act shall be approved and transmittedto treasurers of depositoriesof school districts in the
same manner as warrants for State apportionmentare now transmitted."

It will be noted that Section 1 of Senate Bill 117 containsa similarprovision:

",.. warrants for all money expended from the Foundation School Fund shall be approved by the State CommissionerofHon. Robert S. Calvert, Page 3 (V-894)

Education and transmitted by him to the treasurersof depositories of school dlstricts to which grants are made in the
same manner as warrants for State apportionmentare now transmitted."

We do not construe the provisionsof~the Acts to be a limitationupon the power of the Leglslature to make an appropriation from the Fund for the support of administrative functionsdescribed in the Gll.merAlkln~laws. The languagemerely describes the procedure for paymentswhich are authorizedto 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 Departmentof Education from the FoundationSchool Fund, createdby 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 specificallyappropriated out of any moneys in the General Revenue Fund not otherwiseappropriated, 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 providedby 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 Intentionof the Legislaturein enacting Senate Bills 115, 116 and 117, and House Bill 322 is not entirely clear from the language of the indlvldual Acts and thereforewe bellteve they should be taken togetherand examined to arrive at the true meaning. !Phe statutes relate to the same subjectmatter, and may be consideredto be in sari materia.Hon. Robert S. Calvert, Page 4 (V-894)

In 2 SutherlandStatutoryConstruction (3rd Rd. 1943) 535, It Is aaid:

"Statutes

are consideredto be & pari materlq --~to pertain to the same subjectmstter -- 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 consideredtogetherapplies 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 fundamentalrule to be applied In the constructionof 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 expendedaccording to the provisionsof this Act shall ...n in Senate Bill 116, is not exclusiveand does not prevent the Legislaturefrom 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 thereforeharmoniouswith the provisionsof Senate Bill 116. If the Legislature intended this provision to be the same In both Acts, the words, "accordingto the provisionsof this Act," may be supplied in Senate Bill 11 utory Construction (3rd Rd., 1943 1 . 2 SutherlandStat453; 39 Tex. Jur. 183, Statutes, Sec. 96, and cases there cited. We think such was the intentionof the Legislature.

$here is no necessary conflictbetween the language,

. .. for the purpose of financinga Foundation School Program

... in Senate Bill 117, and the appropriation

bill, and such language Is not a limitation upon the Legislaturein allocatingfunds 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 ProgramAct), 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 avallabllltyof a mlnlmum Foundation School Program for nine (9) full months of the year. and to establish the eligibilityrequire&r&s applicable to Texas public school districts **in** connection therewith."

Section 2 of Article I, Senate Bill reads In part:

"The Central EducationAgency 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 activatedby administrative officersand agencies provided in Senate Bill 115 "for general control of the System of Public Educationat the State level." Therefore, funds for salariesof 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 functionwithout admlnistratlve supervision and the expenditureof funds for that purpose. Thus, the administrative cost of the Pro**gram** 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 provisionsof Senate Bills 115, 116 and 117. These Acts relate to the same general subject and should be consideredtogether. If being SO considered.thes can be harmonizedand effect given to

hearing;Nell1 v. sldered,'thereis no repugnancybetween tie prOvlsLons of these statutes. They may stand togetherand effectHon. Robert S. Calvert, Page 6 (V-894)

may be given to the entire provisionsof each In a+ cordancewith the establishedrules of construction. Brown v. Chancellor,61 Tex. 438 (1884).

The Acts name two sources of State funds for the FoundationSchool Fund -- transfer from the ClearanceFund by the ComptrollerIn an amount determinedby the Foundation School Fund Budget Committee as necessary to finance the FoundationSchool Program described in the FoundationSchool ProgramAct, 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 examinationof the Acts the Legislatureintended,by the enactmentof 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 appropriationin House Bill 322, to pay the cost of such system, includingadmlnlstratlon, from funds allocated to the Foundation School Fund createdby Senate Bill 117. It follows that the Legislature

must have intended to authorize the Comptroller to transfermoney into the Fund to pay adminlstratlve expenses since It made an appropriationfor that purpose from such Fund. To determine the legislative intent to have been otherwisewould render the legislative

action Ineffective and useless, and it is not presumed that **the** Legislatureintended 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, Ineffectivething should never be ascribed to the Legislaturein performanceof Its law enacting functions. There is a presumptionagainst a construction which would render a statute ineffect~ive or inefficientor 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 notHon. 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 departmentthat when by general atatute a fund derived from a particular source %a devoted to a certainpurpose such fund may not be divertedby a general appropriation bill to other and differentuaes, Johnsonv- Fernuson, 55 S.W.2d 153 (Tex. Civ. App.; 1932, error dlsm.1;Attorney General'sOpinionsNos. O-700 and V-412.

We do not consider the appropriationfrom the Foundation School Fund for the support and maintenance of the State Departmentof Educationand 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 appropriationIn House Bill 322, it will be seen, Is not contrary to the Gllmer-Alklnlaws and Is harmoniouswith the Constitution and laws of this State and does not contravenethe rule of law ~(that an appropriation

bill may not operate~toalter or change the 203 7eneral law) announced in State v. Steele, 57 Tex. 18821, and followed in opinions of this department. Attorney GeneralIsConferenceOpinionsNos. 1802, 2787, 2970, 2965 and Attorney General'sOpinions' 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 appropriationfrom the Foundation School Fund and authorizesyou to transfer, in addition to the amount determinedand certifiedby the FoundationSchool Fund Budget Committee,to the FoundationSchool Fund from the ClearanceFund, 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 suppliesand equipment, travelingexpenses,and othernecessary 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 appropriationsto the State Departmentof EducationandHon. Robert S. Calvert, Fage 8 (V-894)

other agencies from the FoundationSchool Fund for salaries,per,diem of Board Members, office supplies and equipment, travelingexpenses,and other necessary expenses,and the provisionsof Subsection (34) of Section 2 thereof,appearingat 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 Educationand other agencies for admlrilstratlvepurposes 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 Departmentof Rducatlon and other agencies from the Foundation School Fund is In harmony with general law and the Constitutionof 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