THE ATTOXWEY GENERAL
OF TEXAS

AUSTIN. TEXAS 7B711 CNAWlrOHU c.MARTIN AlTORNEY CzENERAlr August 16, 1967

,Ron.J. W. Edgar Commissioner of Education Texas EducatS.on

Agency Austin, Texas Opinion No. M-127

Re: Whether a school districtmay budget, levy, collect apd expend local maintenance taxes topurchase food and topay salaries of personnel and other various overhead costs in the

Dear Dr; Edgar: operation of school lunchrooms, and related questions.

subject. You have requested the opinion of this office on theabove

Your particular questions are quoted as fbllovs:

“1i May a.school district budget; lee, collect, and ,expendlocal~~malntenance taxes
to purchase fop&. topay salaries ofmanagers, personnel,-auditingcosts and other lunchroom overhead invol.vedXn operation of school lunchrooms?

“2

. May a’school district by design charge all the students (buyingRanch) less than,the cost of~.

preparing Andyserving-, a schoal lunch, and provide the difference. Qut~of local maintenande,

.funds? ‘Crbut ‘~cif ‘StateAvailable Fund?

“3. May a schbol district in the operation of its school lunchrooms.disc$unt the usual charge for lunch to favor indigent piaplls ~3.n other school plants, where the district deems same desirable?

“4. May a school district lawfully serve free lunches to the children whose parents cannot or will not pay for them? “5. If inquiries (3 ,affirmatively,

and where 1 and (4)are answered

ndigent and the other children receive free or discounted lunches, can prices topaying studentsbe adjusted, raised to absorb such expenditure? “6

. In operation of a school lunch program, 1s a school district legally obligated to operate -586Hon. J. W. Edgar, page 2 (M-127)

it on a self-sustainingbasis; or may it by design operate such on a loss basis and make up for the loss out of: Local tax funds, State school funds; or by State and local tax funds in suchproportions the district determines?'

In replying toyour first questionwe must look toArticle 2827, Vernon's Civil Statutes. This statuteprovides the basis for the expenditureof all public free school funds, and reads in pertinentpart as follows:

'Thepublic free school funds shallnot be expended except for the following purposes: ,"l..The State and county available funds shall be used exclusively for thepayment of teachers' and superintendents'salaries, fees for taking the scholasticcensus, and~-interest on money borrowed
on short time to pay salaries of teachersand super- ,intendents,when these salaries become due before the school funds f6r the current year become avail- /able; provided thatno loans for thepurpose of payment of teachers shallbe.paid out of.funds other than those for the then current year.
"2* Local school funds from district taxes, tuition fees~.bf:pupils not entitled to free tuition and other local sourcesmay be used for thepurposes enumerated for State and county funds and for purchasingappliances and supplies, for thepayment of insurancepremiums,janitorsand otheremployes, for buying school sites, buying, building and repairing and renting school houses,~~andforkother purposes necessary in the conductof~the public schools to be determined by theBoard of Trustees, the accounts and vouchers for countv districts to be aDDroved by the county.superintendent;,provided,that-when theState available school fund in any city or district is sufficient to maintain the schools thereof in any year for at least eight months, and leave a surplus, such surplusmay be expended for the purposes mentioned he,rein.".(Emphasis supplied)

In Boseman v. Morrow, 34 S.W,2d 654 (Tex.Civ.App.,1931), the court approved the operation of a.school.cafeteria'ina'public school in El Paso. The original equipment for the cafeteria was purchased from school funds, but themaintenance and,operation of the cafeteriawas on a self-sustainingbasis. The court in its decision did not dwell upon the aspect of theproblem presented by the original equipmentpurchase, but held that the operation of the cafeteria on a self-sustaining.basiswas a valid exercise of the discretion vested in,the Board of Trus,tees by'Article 2827. -5a5-.Bon. J. W. Edgar, page 3 (M-127)

InAttorney General'sOpinion c-601 (1966),this office dealt with a question wherein a schooldistrict had a surplus in its self-sustainingcafeteria program and wished to utilize such surplus in providing lunch assistance for needy pupils. In approving the proposed program we stated:

"The fact that a surplus realized from the operation of the cafeteria and that such surplus, which we assume is negligible, is used to defray the cost ofmeals of itsneedy children is not an abuse of the discretion vested in the school district board to operate and supportan efficient system of education, so long as such {ractice is not carried beyond reasonable bounds.

1929)J In Mosely v. City of Dallas, 17 S.W.2d 36 (Tex.Comm.App.,
we fin8 another essential link leading to our conclusion. The public school system of Dallas had instituteda program of free health checkups for its pupils, such examinationsbeing conducted by a paid, full-time professional staff. Thisprogram was challenged on theprimary ground that ,the Board of Education of the City of Dallas had no power to expend local tax funds for such purposes. The cour~t dealt at length with the constitutionaland statutory basis for the school board's authority in expending taxmonies for educational purposes, and at page 41 said the following:

"We have carefully read and considered the pleading of the parties, and authorities cited, together with the statement of facts, and we have reached the conclusion that since the board of education of the city of Dallas is given thepower landit,ismade its duty to provide said city with
an efficient system of public free schools, etc., z!.n so far as they can do so by the prudent and judicious application of themeans at hand, and since said board is given the furtherpower and authority to employ superientendents,teachers,and such other persons as may be necessary,and since ~saidboard is further expresslygiven the right and power to establish such reasonable rules and regulations as said boardmay deem necessary to provide and maintain an efficient system of public free schools for said city, that said board is acting within the powers granted to it in establishing and maintaining the system ofmedical inspectionand health work sought to be enjoined herein. The express power given by the Constitution and laws of this state, and the charter of said city, to do the things specified therein, necessarily includes the right and power to do the incidental things reasonablyproper and necessary to accomplish the end.
-586-Hon. J. W. Edgar, page 4(M-127)

"Fromwhat we have said, it follows that said board of education is not only given the rights and powers specificallynamed in the statute and in said charter,but said board necessarilyhas implied power, under the law, toprescribe conditionsand make such reasonablerules and regulations in said schoolsas will render thework of the teachers effectiveand economical,.andenable the teacher tomeet and understand the needs of the pupil, to the end that the teachingprocess may be intelligently directed and suited to the needs of the school and thepupils.

"Modern sciencehas conclusively established the fact, and the record in this case conclusively shows, that there is an intimate relatipn between themind and the body, and no teacher can intelligently deal with the child'smind who ignores such child's physical condition. It therefore follows,
as a matter of course, thatmoney wisely and judiciously expended by the schoolboard within proper limitation to ascertain the child'sphysical condition isa wise.and legitimate expense of the teachingprocess.. If would not only be an injustice to the child to conduct the teachingprocess without informationas to itsphysical condition, but such
a systemwould be as waste of public funds."

In view of 'theforegoing discussion, in answer to your first -question,you are advised that is is the opinion of this~office that
a school districtmay budget,~~levy, collect and expend local maintenance taxes.;.to

purchase food, to pay salaries of managers, personnel, auditing costs and-other lunchroom overhead involved in the operation of school lunchrooms,when the Board of Trustees, in the exercise of its discretion,hasmade a determination that such expenditures are necessary to the proper conduct of thepublic schools.

The answer toyour second question is the same as the
answer toyour first question. Having made the initial determination
as to educationalnecessity, the rate of cost per unit that is charged to each pupil is a matter within the sound discretion of the Board of Trustees. Whether the lunchroomprogram is self-sustainingor is supported by local tax ,fundsis a matter for the determination of the Board in managing the funds available to it. Of course, StateAvailable Fund monies may not be used ~forlunchroom purposes except in the event of a surplusas spelled out inArticle 2827, supra.

With regard to your third question, what has been saidpreviously makes it clear that is is the duty of theBoard of Trustees tomake the decisions as to what is necessary for the proper conduct of the educationalprocess in the public schoolsunder its charge. The public schools' function is to educate all their pupils as well
-587-Hon. J. W. Edgar, page 5 (M-~7)

as possible with the facilities available. of particularpupils differ, Certainly, theneeds and the Board is justified in taking these educationalneeds into consideration in establishing the variousprograms. Nevertheless, this office is unable either to approve or disapprove the proposal contained in your third question, for the reason that insufficient information is given. The answer to the fourth questionmay serve your present purposes just as well.

As we have previously said, the Board of Trusteeshas the discretionarypower to set the'cost per meal to each pupil. In answer toyour fourth question, it necessarily follows that the cost can be set at any level from zero to one hundred per cent. It is the duty of theBoard to establish thenecessary guidelines for determination of need both 'inorder that the schoolsavoid the futility of trying to teach'shungry child, and avoid the uselessact of donating food to a well-fed one;'

In answer toyour fifth question, you are advised that it is the opinionof this office that theBoard of Trusteeshas no authority to charge~ariy pupil more than the reasonablecost of the food served to him in the school lunchroom in order to absorb deficits incurredby reason of meals served to other studentsat a reduced price.

Your sixth and last question has in largemeasure been answered by the previous discussion, If the Board of Trustees finds '. it necessary to provide school lunches to some pupils at less than cost, it is within theirpower to do so. Since the Board may not charge more than the reasonablevalue of a meal to any other pupil, the school lunch program must obviously operatewith some degree of loss. Such deficitmay bemade up from local tax funds, as~discussed in the answer to the second question, supra. State Available Funds may be used on1 + if the conditions ofArticle 2827 as to surplus are met. In eit er event it isnot necessary to discuss any possible proportioning plan by the Board of Trustees.

SUMMARY s---s--
A school district may budget, levy, collect and expend local maintenance taxes topurchase food, to pay salaries of personnel, and topay other overhead costs involved in the operation of school lunchrooms,when the Board of Trustees involvedhas made a valid determination that such expenditures are necessary to theproper conduct of the public schools.
The cost per meal to be charged pupils is a matter within the sound discretion of the Board of Trustees, and the school lunch program may be self-sustaining or supported by local tax funds. -588-Hon. J. W. Edgar, page 6 (~-127)

Monies from the StateAvailable Fund may be used in the lunch program only in the event of a surplus as described inArticle 2827, V. C. S.

The Board of Trusteeshas the discretionary authority to set the charge .permeal for any child at any level up to the full reasonable cost thereof. The Board of Trustees has no authority to charge anychild an amount in excess of the reasonable cost ofhis meal in order to absorb deficits incurred byreason ofmeals served to other students at a reducedprice.

A school district is not obligated to operate its school lunch program on a self-sustainingbasis, and may make up any deficit$7romlocal tax funds.

Prepared by Malcolm L, Quick AssistantAttorney General

APPROVED: OPINION COMMITTEE Kerns ,B.Taylor, Chairman

_ W. 0. Shultz, Co-Chairman Sam Kelly Jack Sparks DyerMoore, Jr. John Grace

, A. J. Carubbi, Jr. Staff LegalAssistant

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