June 15, 1966

Honorable J. W. Edgar Commissioner of Education Texas Education Agency Austin, Texas Opinion No, C-709

Re: Whether a schooldistrict (Bay City I.S.D.) is eligible for a refund under Article &054, Vernon's Civil Statutes (Whichrefers to Article 4053d) on shellpurchased and used for building roads around its high

Dear Dr. Edgar: schoolproperty pursuant to contract.

You have requested the opinion of this office on the above statedmatter. We quoted from your letter:

"In the summer of 1965, the Bay City Independent School Districtbuilt roads around and adjacent to its high schoolproperty. Shell was contractedand purchased from the Matagorda Shell Company in Matagorda In the amount of $9684.80 and used therefor.

'InMarch 1966, the schooldistrict filed applicationwith Texas Parks and Wildlife Department for a Sand, Shell and GravelRefund Claim In the sum of suant to Article 495t632.70 (about 15%)purand/or 4053d.

"OnMarch 7, 1966, said Department advised the school district In substance that Article 4054 authorizes such refunds to counties, cities or subdivisionsof the county--thatan independent schooldistrict is not eligibleunder the law therefor."

We have been advised by the Parks and Wildlife Commission that such Interpretationand constructionhas been -3423-Hon. J. W. Edgar, Page 2 (C-709)

consistentlyheretofore applied for over thirty-five (35)years.

It has long been held that the courtswill.ordinarily adopt and uphold a constructionplaced on a statuteby a department charged with Its adminlstratlonunless the construction so given Is unreasonable, It is our opinion that this departmental construction is in line with the plain and unambiguous language of the statutes In question.

Article 4053d,Vernon's Civil Statutes, authorizes the Commissioner to sellmarl, gravel, sand, shell or mudshell upon such terms and conditionsas he may deem proper but for not less than four cents (I$)per ton. This Article furtherprovides for the payment of refunds to counties, cities or towns or any polltlcal subdivisionof a county, 4054, Vernon's Civil Statutes. city or town as provided in Article In addition, It provides specific authorization for the payment of refunds to the State Highway Commission.

Article 4054 provides as follows:
"Ifany count , or subdivisionof a count city or town shoul.% desire any marih;d, shell or mudshell Included in this chapter for use in the building of any road or street,which work is done by said count-

+ Or an

y subdivisionof a county, city or own, suchmunlcipalltymay be granted a permit without charge and shallhave the right to take, carry away or operate in any waters or upon any islands,reefs or bars lneluded herein; suchmunicipality to do the work under Its own supervision,but shall first obtain from the Commissioner 1 a permit to do so, and the granting of same for the operation in the territorydesignated by suchmunlcipallty shall be subject to the same rules, regulations and limitationsand discretion of the Commissioner as are other applicants, and permits. When such building of roads or taking of suohproducts is to be done by contract, then the saidmunlclpallty may obtain a refund from the Commissioner of the tax levied and collected on saidproducts as fixed by the Commissionerat the time of the taking

l/ Office of Commissioner abolished and powers and duties conferred zn Game, Fish and Oyster Commission, see Vernon's Penal Code, Article g78f. NOTE: Now Parks and Wildlife Commission, Article 978fk3a, Vernon's Penal Code. -3424-Hon. J. W. Edgar, Page 3 (C-709)

thereof, by warrant drawn by the Comptroller upon itemized account sworn to by the proper officer representing suchmunicipality and approved by the Commissioner,and und,ersuch other rules and regufiations as may be Prescribed by the Commissioner. (Emphasisadded

It is noted that nowhere do the statuteshere under considerationrefer to an independent schooldistrict. Likewise it is clear that an Independent schooldistrict Is neither a county, city or town nor is It a political subdivisionof a county. 51 Tex.Jur.2d 345, Schools, Sets. 14 and 16,

We are of the opinion from the reading of the abovementioned statutes that the languageused is plain and unambiguous in itsmeaning and in such case the law will be applied as It reads. Gilmore v. Waples, Southwestern 108 Tex. 167, 188 S.W. 1037 (1916);Vaughan v. log Tex. 298, 206 s. 0 '(1916) rety Insurance Co.,

Simmo: v. Arnim, 110 Tex. 309, 220 S.W. 66 (19%)?2Gately v. Hum&rey, 151 Tex. 588, 254 S.W.2d 98 (1952).

Furthermore, the courtshave held that schooldistricts are subdivisions of the state government, created for the purpose of administering the state's system of public schools. Love v. Dallas; 120 Tex. 351, 40 S.W.2d 20 (1931);Dupuy v. State, lob S. 287 (Tex.Crlm. 1937); Lee v. Leonard Ind. School Dist., 2L' S.W.2d 449 (Tex.Clv.App.1930, error ref.).

You are therefore advised that it is our opinion that Bay City IndependentSchool District is lnellglble for a refund under Article 4054 on shellpurchasedunder contract for use in building roads around Its high schoolproperty.
SUMMARY
The Bay City Independent School District is ineliglble for a refundunder Article 4054, Vernon's Civil Statutes, on shellpurchasedunder contract foruse in building roads around its high schoolproperty. Very truly yours,

JPC:mh:mkh WAGGONER CARRHon. J. W. Edgar, page 4 (C-709)

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman John Reeves Wade Anderson Ben Harrison Ferns Taylor

APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright

-3426"