Honorable C. Burtt Potter

CountyAttorney San Patricia County Sinton, Texas
Dear Sir: OpinionNo. O-4726 Re: Whether board of districtmay use plete unfinished trustees of school local funds to comschoolbuilding.
We have received your letter of recent date inwhich you enclose a letter from Mr. ?I.E. Waldrip, President of the Board of Trustees of the Sinton IndependentSchoolDistrict. We quote the following from Mr. Waldrip's letter:

"TheSinton IndependentSchoolDistrict voted bonds to the extent of $20,000 for the purpose of constructingan elementary schoolbuilding of materials of other thanwood, and to equip the building. At the time the bond issuewas voted the SchoolDistrict had a committal from the N Y A for assistance on the project.
"TheSchoolD1.strictsapplication to the EYA was approved,but Congress failed tomake an appropriat!on for the N Y A and for that reason the N Y A could not assist in the project.
"TheSchoolDistrict through the Board of Trustees attempted to carry out the wishes of the Tax Payerswho authorized the bond issueby contracting for the construction of as nearly as possible the completebuilding, but could only finish the exterior and make four class rooms tenable for classes.
"TheDistrict has In the Local Fund $23,OOO.OO and the Trusteeswlsh to use $5,000 of this fund in completing threemore class rooms In the unfinishedbuilding. IS it lawful to use the $5,000 for this purpose?" Article 2827, Revised Civil Statutes, provides the purpose forwhich school fundsmay be expended. Section 2 of Article 2827 provides as follows:.

Honorable C. Burtt Potter, page 2 O-4726

"Thepublic free school funds shall not be expended except for the followingpurposes: 0

. . . . . . . "2

. Local school funds from district taxes, tuition fees of pupils not entitled to free tuitlon and other local sourcesmay be used for the purposes enumerated for State and county funds and for purchasing appliances and supplies, for the payment of insurancepremiums, janitorsand other employes, for buying school sites,buying, building and repalring and renting schoolhouses, 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 countydistrkts 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 inany year for at least eightmonths, end leave a surplus, such surplusmay be expended for the purposes mentioned herein."
See also Article 2784,Revised Civil Statutes,which sets forth the purposes forwhich the trustees of a school district may levy taxes.

We assume that $23,000balance ismoney realized from a tax levied for the maintenance of the schooldistrict. Article 2784. We also assume that the $5,000proposed to be expendedrepresents surplusmoneys in themaintenance fund.

In the case of Madeleg et al v. Trustees of Conroe IndependentSchoolDistrkt et al 130 S. W. (2d) 929 (Writof Error dismissed, Judgment correctj, one of the questions passed upon by the courtwas the authority of the trustees of the district to use the surplus in the maintenance fund for erecting and equlpplng schoolbuildings. The court held that the local tax levied and collectedby the trustees of en independent schooldistrict for the maintenance of the schools can be used only for the purposes $fmaintenance, "to the extent needed for that purpose. . . Articles 2784, 2827, supra. However, the court made the following statementregarding the use of surplusmoneys In the maintenance fund:

rr

. . . . . . . II

. . . . What shall the Trusteesdo with this surplus? It cannot be expended in the supportand- .

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. Whenthat 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 maybe used by the trustees for the ccinstltutional purposes; one of the.constltutional purposes Is ‘the erection and equlpment of,,school buildings Iwithin the district.

. . . iexas

. Article VII, Section 3, Constitution of

Bee also Adamsv. 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 maynot be diverted to any other purpose. Therefore, the maintenance fund to the extent that it 1s ~neededfor that purpose maynot be used for the erection and equipping of school buildings. However, the surplus In the maintenance fund, maybe 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 OFTEXAS
By s/Qeorge W. Sparks Qeorge W. Sparks

Assistant QW6 :nw:wc APPROVED

AW 13, 1942 8/&DSld C. hbnn ATTORNEY

GENERAL

OFTECAB Approved Opinion Committee~Bys&WF Chairman