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 district may 

budget, levy, collect apd expend local maintenance taxes 

to purchase food and to pay 

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 the above 

Your particular questions are quoted as fbllovs: 

“1 i May a. school district budget; lee, 

collect, and ,expend local~~malntenance taxes 

to purchase fop&. to pay salaries of managers, 

personnel,-auditing costs and other lunchroom 

overhead invol.vedXn operation of school lunchrooms? 

“2 . May a’school district by design charge 

all the students (buying Ranch) less than, the 

cost of ~. preparing Andy serving-, a schoal lunch, 

and provide the difference. Qut~of local maintenande, .funds? ‘Cr but ‘~cif ‘State Available 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 to paying students be adjusted, raised to 

absorb such expenditure? 

“6 . In operation of a school lunch program, 

1s a school district legally obligated to operate 

-586 
Hon. J. W. Edgar, page 2 (M-127) 

it on a self-sustaining basis; 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 such proportions the district determines?' 

In replying to your first question we must look to Article 

2827, Vernon's Civil Statutes. This statute provides the basis for 

the expenditure of all public free school funds, and reads in pertinent part as follows: 

'The public free school funds shall not be expended except for the following purposes: 

,"l. .The State and county available funds shall 

be used exclusively for the payment of teachers' 

and superintendents' salaries, fees for taking the 

scholastic census, and ~-interest on money borrowed 

on short time to pay salaries of teachers and super- 

,intendents, when these salaries become due before 

the school funds f6r the current year become avail- 

/able; provided that no loans for the purpose of payment of teachers shall be.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 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 otheremployes, for 

buying school sites, buying, building and repairing 

and renting school houses,~~and fork other purposes 

necessary in the conductof~the public schools to 

be determined by the Board 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 surplus may 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'in a'public school in 

El Paso. The original equipment for the cafeteria was purchased 

from school funds, but the maintenance and,operation of the cafeteria was on a self-sustaining basis. The court in its decision 

did not dwell upon the aspect of the problem presented by the original equipment purchase, but held that the operation of the cafeteria on a self-sustaining.basis was 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) 

In Attorney General's Opinion c-601 (1966), this office 

dealt with a question wherein a school district had a surplus in its 

self-sustaining cafeteria 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 of meals of its needy children is not an 

abuse of the discretion vested in the school district board to operate and support an 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 instituted a program of free 

health checkups for its pupils, such examinations being conducted by 

a paid, full-time professional staff. This program was challenged on 

the primary 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 constitutional and statutory basis for the 

school board's authority in expending tax monies 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 the power 

land it,is made 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 the means at hand, and 

since said board is given the further power and 

authority to employ superientendents, teachers, and 

such other persons as may be necessary, and since 

~said board is further expressly given the right 

and power to establish such reasonable rules and 

regulations as said board may 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 of medical 

inspection and 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 reasonably proper and necessary to accomplish the end. 

-586- 
Hon. J. W. Edgar, page 4(M-127) 

"From what we have said, it follows that said 

board of education is not only given the rights and 

powers specifically named in the statute and in said 

charter, but said board necessarily has implied 

power, under the law, to prescribe conditions and 

make such reasonable rules and regulations in said 

schools as will render the work of the teachers 

effective and economical,.and enable the teacher 

to meet and understand the needs of the pupil, to 

the end that the teaching process may be intelligently directed and suited to the needs of the 

school and the pupils. 

"Modern science has conclusively established 

the fact, and the record in this case conclusively 

shows, that there is an intimate relatipn between 

the mind and the body, and no teacher can intelligently deal with the child's mind who ignores such 

child's physical condition. It therefore follows, 

as a matter of course, that money wisely and judiciously expended by the school board within proper 

limitation to ascertain the child's physical condition isa wise.and legitimate expense of the 

teaching process.. If would not only be an injustice 

to the child to conduct the teaching process without 

information as to its physical condition, but such 

a system would be as waste of public funds." 

In view of 'the foregoing discussion, in answer to your first 

-question, you are advised that is is the opinion of this~ office that 

a school district may 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 the public schools. 

The answer to your second question is the same as the 

answer to your first question. Having made the initial determination 

as to educational necessity, 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 lunchroom program is self-sustaining or is 

supported by local tax ,funds is a matter for the determination of the 

Board in managing the funds available to it. Of course, State Available Fund monies may not be used ~for lunchroom purposes except in the 

event of a surplus as spelled out in Article 2827, supra. 

With regard to your third question, what has been said previously makes it clear that is is the duty of the Board of Trustees 

to make the decisions as to what is necessary for the proper conduct 

of the educational process in the public schools under 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 particular pupils differ, 

Certainly, the needs 

and the Board is justified in taking 

these educational needs into consideration in establishing the 

various programs. 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 question may serve your present purposes just as well. 

As we have previously said, the Board of Trustees has the 

discretionary power to set the'cost per meal to each pupil. In 

answer to your 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 the Board to establish the necessary guidelines for 

determination of need both 'in order that the schools avoid the futility of trying to teach's hungry child, and avoid the useless act of 

donating food to a well-fed one;' 

In answer to your fifth question, you are advised that it 

is the opinionof this office that the Board of Trustees has no authority to charge~ariy pupil more than the reasonable cost of the 

food served to him in the school lunchroom in order to absorb deficits incurred by reason of meals served to other students at a reduced price. 

Your sixth and last question has in large measure 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 their power to do so. Since the Board may not 

charge more than the reasonable value of a meal to any other pupil, 

the school lunch program must obviously operate with some degree of 

loss. Such deficit may be made 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 of Article 2827 as to 

surplus are met. In eit er event it is not necessary to discuss any 

possible proportioning plan by the Board of Trustees. 

s---s-- SUMMARY 

A school district may budget, levy, collect 

and expend local maintenance taxes to purchase 

food, to pay salaries of personnel, and to pay 

other overhead costs involved in the operation 

of school lunchrooms, when the Board of Trustees 

involved has made a valid determination that such 

expenditures are necessary to the proper 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 State Available Fund may be used 

in the lunch program only in the event of a surplus as described in Article 2827, V. C. S. 

The Board of Trustees has the discretionary 

authority to set the charge .per meal for any 

child at any level up to the full reasonable 

cost thereof. The Board of Trustees has no authority to charge any child an amount in excess 

of the reasonable cost of his meal in order to 

absorb deficits incurred by reason of meals served 

to other students at a reduced price. 

A school district is not obligated to operate 

its school lunch program on a self-sustaining basis, 

and may make up any deficit $7rom local tax funds. 

Prepared by Malcolm L, Quick 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns ,B. Taylor, Chairman 

_ W. 0. Shultz, Co-Chairman 

Sam Kelly 

Jack Sparks 

Dyer Moore, Jr. 

John Grace , 

A. J. Carubbi, Jr. 

Staff Legal Assistant 

-589-