Honorable C. Burtt Potter 

County Attorney 

San Patricia County 

Sinton, Texas 

Dear Sir: Opinion No. O-4726 

Re: Whether board of 

district may use 

plete unfinished 

trustees of school 

local funds to comschool building. 

We have received your letter of recent date in which 

you enclose a letter from Mr. ?I. E. Waldrip, President of the 

Board of Trustees of the Sinton Independent School District. 

We quote the following from Mr. Waldrip's letter: 

"The Sinton Independent School District voted 

bonds to the extent of $20,000 for the purpose of 

constructing an elementary school building of 

materials of other than wood, and to equip the 

building. At the time the bond issue was voted 

the School District had a committal from the 

N Y A for assistance on the project. 

"The School D1.stricts application to the EYA 

was approved, but Congress failed to make an appropriat!on for the N Y A and for that reason the 

N Y A could not assist in the project. 

"The School District through the Board of 

Trustees attempted to carry out the wishes of the 

Tax Payers who authorized the bond issue by contracting for the construction of as nearly as possible the complete building, but could only finish 

the exterior and make four class rooms tenable for 

classes. 

"The District has In the Local Fund $23,OOO.OO 

and the Trustees wlsh to use $5,000 of this fund 

in completing three more class rooms In the unfinished building. IS it lawful to use the $5,000 

for this purpose?" 

Article 2827, Revised Civil Statutes, provides the 

purpose for which school funds may be expended. Section 2 of 

Article 2827 provides as follows: 
. 

Honorable C. Burtt Potter, page 2 O-4726 

"The public free school funds shall not be 

expended except for the following purposes: 

0 

. . . . . . . 

"2 . Local school funds from district taxes, 

tuition fees of pupils not entitled to free tuitlon and other local sources may be used for the 

purposes enumerated for State and county funds 

and for purchasing appliances and supplies, for 

the payment of insurance premiums, janitors and 

other employes, for buying school sites, buying, 

building and repalring and renting school houses, 

and for other purposes necessary in the conduct 

of the public schools to be determined by the 

Board of Trustees, the accounts and vouchers for 

county distrkts to be approved by the county 

superintendent; provided, that when the State 

available school fund in any city or district is 

sufficient to maintain the schools thereof in any 

year for at least eight months, end leave a surplus, such surplus may be expended for the purposes mentioned herein." 

See also Article 2784, Revised Civil Statutes, which 

sets forth the purposes for which the trustees of a school 

district may levy taxes. 

We assume that $23,000 balance is money realized from 

a tax levied for the maintenance of the school district. 

Article 2784. We also assume that the $5,000 proposed to be 

expended represents surplus moneys in the maintenance fund. 

In the case of Madeleg et al v. Trustees of Conroe 

Independent School Distrkt et al 130 S. W. (2d) 929 (Writ of 

Error dismissed, Judgment correctj, one of the questions passed 

upon by the court was the authority of the trustees of the district to use the surplus in the maintenance fund for erecting 

and equlpplng school buildings. The court held that the local 

tax levied and collected by the trustees of en independent 

school district for the maintenance of the schools can be used 

only for the purposes $f maintenance, "to the extent needed 

for that purpose. . . Articles 2784, 2827, supra. However, 

the court made the following statement regarding the use of 

surplus moneys In the maintenance fund: 

rr 

. . . . . . . 

II . . . . What shall the Trustees do with this 

surplus? It cannot be expended in the support and 
- . 

Honorable C. Burtt Potter, page 3 O-4726 

maintenance of the public free schools, for It 

is not needed for that purpose; It cannot be 

diverted from pub110 free school purposes, for 

under the Constitution It was collected for that 

purpose. It cannot be returned to the tax payers. 

“Its allocation to the malritenance fund was 

by leglslatlve edict for the purpose of supporting 

and maintaining the public free school. When that 

purpose has been effectuated, the fund- la no longer 

subject to the control of the statutes, for the 

purpose of the statutes has been fully effectuated: 

If and when the statutes cease to control the fund, 

then lt becomes a constltutlonal fund and not a 

statutory fund, and may be used by the trustees 

for the ccinstltutional purposes; one of the.constltutional purposes Is ‘the erection and equlpment of ,,school buildings I within the district. 

. . . 

iexas . 

Article VII, Section 3, Constitution of 

Bee also Adams v. Miles, 300 3.W. 211, 

41 5. W. (26) 21. 

In vlew of the foregoing you are respectfully advised 

that the fund collected for the support and maintenance of the 

, public free school&to the extent that it is needed for that~ 

purpose may not be diverted to any other purpose. Therefore, 

the maintenance fund to the extent that it 1s ~needed for that 

purpose may not be used for the erection and equipping of 

school buildings. However, the surplus In the maintenance 

fund, may be used for such purposes. It follows that if the 

$5,000 proposed to be expended 13 a surplus in the maintenance 

fund, your question should be answered in the affirmative. 

Very truly yours 

ATTORNEY OWWAL OF TEXAS 

By s/Qeorge W. Sparks 

Qeorge W. Sparks 

Assistant 

QW6 :nw :wc 

APPROVED AW 13, 1942 

8/&DSld C. hbnn 

ATTORNEY GENERAL OF TECAB 

Approved Opinion Committee ~By s&WF Chairman