June 1, 1949 

Han, Ray Kirkpatrick, Chairman 

House Appropriations Conunittee 

51st Legislature 

Austin, Texas Opinion No. V-839 

Re: The necessity for enabling legislation to 

make the 1% transfer : :. 

from the permanent 

school fund under Art. 

7, Sec. 5, Constitution. 

Dear Sir: 

Pursuant to the request of ,the House Appropriations 

Committee you have submitted to this office the following 

questions: 

“Has an enabling a,ct ever been passed 

concerning Article VII. Section 5, Constitution of Texas; if not, is one necessary to 

transfer annually 1% of the permanent school 

fund to the available school fund. 

“Msy a transfer from the permanent 

school fund to the available school fund of 

1% be affected by a rider on a general appropriation bill or would it require special 

legislation? ” 

Section 5 of Article VU, Constitution of Texas, insofar 

as pertinent to the submitted inquiries, reads as follows: 

“The principal of all bonds and other 

funds, and the principal arising from the 

sale of the lands hereinbefore set apart to 

said school fund, shall be the permanent 

school fund, and all the interest derivable 

therefrom and the taxes herein authorized 

and levied shall be the available school fund, 

to which the Leais~lature may add not exceedinn one per cent annually of the total value 

of the permanent school fund. such value to 
Hon. Ray Kirkpatrick, Page 2. (V-83,9) 

be ascertained by the Board of Education until 

otherwise provided by law, and the available 

school fund shall be applied annually to the support of the public free schools. D 0n (Underscoie 

ours) 

The Texas Constitution of 1876 contained the above provisions except those words underscored, they were added by 

adoption of a constitutional ame~ndment. The amendment was 

adopted at an election held in August, 1891, pursuant to Joint Resolution No. 19, 22nd Legislature, R.S. page 195, Acts 1891. 10 Gamme1 Laws 197. 

Immediately following the adoption of this Amendment, the 

22nd Legislature in called session enacted H.B. 14 of Acts 1892, 1st 

C.S., dh. 9, p. 8 (10 Gammel Laws 372), carrying into effect the 

amendment to Article VII, Section 5, transferring annually one per 

cent of the permanent to the available school fund. This Act reads 

in part as follows: 

“Section 1. Be it enacted by the Leg,islature of the State of Texas: That one per cent 

of the full value of what is known, held and 

controlled by the State of Texas, as the permanent school fund, shall be transferred annually hereafter to the credit of the available 

school fund of the state, as belonging to:it, 

and a part of the same, and which henceforward shall constitute a part of the state’s 

available school fund and to be used and applied for the support, maintenance and benefit 

of the public free schools of the state, as now 

or hereafter may be provided by law. 

“Sec. 2. Be it further enacted: It shall 

be the duty of the comptroller and the state 

treasurer to notify the state board of education 

of the amount to the credit of the permanent 

school fund on the first to the fifteenth day of 

July of each and every year. The said statement 

shall show the amount invested, in bonds, the amount of outstanding land notes, and the amount 

of cash on hand to the credit of the permanent 

school fund. Upon the receipt of this information 

the state board of education shall estimate one 

per cent of the said permanent school fund and 

shall issue directions to the said comptroller 

apd state treasurer to transfer the one per cent 
Hon. Ray Kirkpatrick, Page 3. (V-839,) 

of the permanent fund thus~ found to, the 

credit of the available school fund. 

“Sec. 3. Be it further enacted: That 

it shall be the duty of the state comptroller 

and state treasurer, upon the receipt and 

delivery to them, by said board of education, 

of the showing and statement aforesaid, as 

set forth in section 2 of this act, to transfer 

and place to the credit of the available school 

fund of the state the amount found and ascertained by said board of education, as aforesaid, and accruing from the one per cent of 

the value of the permanent school fund, and 

transferred to the available school fund under 

section 1st of this act. Provided that no part 

of the value thereof, of the unsold public land 

belonging to said fund shall be included or 

considered by the comptroller.and state treasurer in ascertaining the amount to be transferred from the permanent to the available 

free school fund. 

“Sec. 4. Be it further enacted: That it 

shall be the duty of the state board of education 

and comptroller, in the management and investment of the permanent school fund, to provide, 

reserve and set apart in cash, annually, an 

amount sufficient of same to meet the one per 

cent annual transfer to the available fund.” 

These quoted provisions were incorporated by the 23rd 

Legislature in its comprehensive enactment to provide for a more 

efficient system of public free schools. Section 9(a) through (d), 

Acts 1893, Ch. l22, p. 182; 10 Gammel Laws 612, 615. That section 

and its subdivisions were codified in Chapter 7 of Title LXXXVI 

of Revised Statutes, 1895, as Articles 3897 to 3901, inclusive. 

In 1905, however, the 29th Legislature at its Regular Session, enacted S.B. 218 (Acts 1905. Ch. 124,,p. 263), to provide for a 

complete system of public free schools in Texas. Section 179 of this 

Act provided that “all provisions of Chapter 7 . q 0 Title LXXXVI of 

R.S. 1895 and all amendments thereto not herein specifically reenacted are hereby repealed. D .* Only Article 3897, R.S. 1895, was 

reenacted in Se&ion 10 of the Acts 1905, which was subsequently codified in Revised Statutes, 1911, as Article 2725, and reads as follows: 

“Besides other available school funds provided by law. one-fourth of all occupation taxes 

and one dollar poll tax levied and collected for 
Hon. Ray Kirkpatrick, Page 4 (V-839) 

the u6e of public free school& exclurive of 

the delinquencies.and cost of collection, the 

interest arising from any bonds or funds belonging to the permanent achool fund;‘aqd all 

the intereat derivable from the proueeds of 

sales of land heretofore set apart for the 

permanent school fund, which have h&herto, 

or may hereafter, come into the state treasury, 

all moneys arising from the lease of school 

lands, and such an amount of state tax, not to 

exceed twenty cents on the one hundred dollars 

-valuation of property, as may be, from time 

to time, levied by the legislature. shall constitute the available school fund, which fund 

shall be apportioned annually to the several 

counties of this state, according to the scholastic population of each, for the support and 

maintenance of the public free schools.” 

Article 2725, R.S. 1911, is codified as Article 2823 in 

R.C.S., 1925, substantially unchanged except that such Article 

2725 read “not to exceed twenty cents on the one hundred dollars 

valuation.. and not “thirty five cents,- as provided in the 1925 revision. Except for the -thirty five cents” modification, Article 

2823, R.C.S. 1925 and V.C.S. presently reads identical with the 

enactment in S.B. 218, Acts 1905. 

From the above cited enactments, it is apparent that 

sfnce 1905 there has been no annual transfer of one per cent of 

the permanent to the available school fund by any Legislature, 

as authorized by Section 5 of Article VII of the Constitution as 

amended in 1891. 

The Available School Fund is commonly appropriated 

by the Legislature each biennium fn its departmental appropriation bill, For example, the last such bill, S.B. 391 of Acts 50th 

Legislature, 1947, Ch. 400, at p. 841, provided: 

“For the purpose provided by law, there 

ure appropriated for the biennium ending August 

31, 1939, to the State Board of Education all income to, and balance in. the Available School 

Fund and the State Textbook Fund, except as 

otherwtse appropriated by this Legislature, to 

be expended and distributed in accordance with 

the lawn of this State. . . .* 

If the Legirlaturo desires to transfer one per cent of the 

permanent to the Available School Fund ao authorized by Section 5 

i 
Hon. Ray Kirkpatrick, Page 5 (V-839) 

of Article VII, it may properly do so by general law (as did 

the 22nd Legislature in 1892). Such law could also contain 

the procedure necessary to effect the transfer. A provision 

in its departmental appropriation bill similar to that quoted 

herein from S.B. 391, Acts 1947, will then appropriate the Available School Fund as so enlarged. 

Further, it is our opinion that the transfer of one per 

cent of the permanent school fund to the available school fund, 

if made, should be accomplished by general legislation rather 

than by an appropriation bill rider, Tex. Const., Sec. 35, Art. 

III; Moore v. Sheppard, 144 Tex. 537, 192 S.W.Zd 559 (1946). 

Thus transferred into the available school fund, it will, of 

course, be subject to appropriation as are other such funds. 

SUMMARY 

An enabling Act is necessary to transfer 

annually one per cent of the permanent school 

fund to the available school fund authorized in 

Section 5 of Article VII, Constitution of Texas, 

as amended. This action was taken in H,B. 14 

of Acts 1892, 22nd Leg., 1st C.S., oh. 9. p. 8, but 

subsequently repealed by Section 179 of S.B. 218, 

Acts 1905, 29th Leg.. R.S.. ch. 124, p. 263. 

A general‘law outlinidgj the procedure and 

prescribing the duties of proper officials in affecting the transfer annually of one per cent of 

the permanent to the available school fund would 

clearly constitute legal authority-to affect the 

transfer. 

Yours very truly, 

ATTORNEYGENERALOFTEKAS 

Byqf%z2k-;Pw 

Chester E. Ollison 

Assistant 

CEO:mw: v 

FIRST ASSISTANT 

ATTORNEY GENERAL