March 30. 1949 

Hon. William L. Kerr, President 

Board of Regents 

State Teachers Colleges 

First National Bank Building 

Midland, Texas Opinion No. V-798 

Re: Availability of funds collected through the tax levied under the College 

Building Amendment to 

the Texas Constitution. 

Dear Mr. Kerr: 

You request the opinion of the Attorney General as follows: 

“It has been announced that the litigation concerning the college building amendment has been brought 

to a close with the overruling of motions for rehearing 

in the Supreme Court. Therefore, it becomes important that we of our Board know of our authority to obtain 

or pledge funds realized from the tax levy heretofore 

made. During the pendency of litigation, as we understand it, the authorized tax was levied for the benefit 

of our colleges and collection has been made from this 

levy. 

May we, therefore, ask your opinion and advise 

as follows: 

‘1. Will the present collected funds (in proper proportionate part) be available to the State Teachers Colleges for authorized buildings, even though bonds have 

not as yet been issued? 

“2. May our Board of Regents request transfer of 

present accumulated funds from the treasury to the respective colleges under our jurisdiction to permit such 

funds to be used for building construction? 
, 

Hon. William L. Kerr, Page 2 (V-798) 

“3. If such a transfer of present funds from the 

treasury may not be permitted, may the Board authorize building construction, payable out of funds already 

collected and presently held by the State Treasurer?” 

We quote the following from this Constitutional Amendment: 

u there is hereby levied, . . . a State ad valorem tax’dn property of five cents (Se) . ,.,~. for the purpose of creating a special fund for the .purpose of acquiring, constructing, and initially equipping buildings 

or other permanent improvements at the designated institutions of higher learning: and the governing board 

of each of such institutions of higher learning is fully 

authorized to pledge all or any part of said funds allotted to such institutions as hereinafter provided, to secure bonds or notes issued for the purpose of acquiring, 

constructing and initially equipping such -buildings or 

other permanent improvements at said respective institutions. Such bonds or notes shall be issued in such 

amount as may be determined by the governing boards 

of said respective institutions, shall bear interest not 

to exceed three (3%) per cent per annum and shall matur.e serially . . . .” 

This Amendment further provides: 

“Funds raised from said Five (5.C) Cents tax . . . 

are hereby allocated to the following institutions of 

higher learning, and in the following proportions to wit: ” 

. . . 

Section 17 concludes: 

“This amendment shall be self-enacting. The State 

Comptroller of Public Accounts shall draw all necessary and proper warrants upon the State Treasury in 

order to carry out the purposes of this amendment; and 

the State Treasurer shall pay warrants so i.ssued out of 

the special fund hereby created for said purpose.“’ 

Assuming for the purpose of this opinion that the funds now 

on hand have been allocated, or credited to the respective State Teachers Colleges. it is. clear that the Board of Regents has the authority 

by the express terms of this Amendment to the Constitution,to issue 
Hon. William L. Kerr, Page 3 (V-798) 

bonds or notes to be secured by a pledge of these funds. The bonds 

require the approval of the Attorney General, but the notes provided 

for in Section 17 do not. Both the bonds and notes issued by the 

University of Texas and A. and M. College require the approval of 

the Attorney General. This Constitutional Amendment clearly prescribes the terms and conditions of the bonds and notes, and makes 

no other provisions for evidencing of liability against the fund except by the issuance of bonds or notes. Hence it is our conclusion 

that this special fund may not be withdrawn from the State Treasury 

except to pay principal and interest requirements of bonds or notes 

issued under Section 17. 

The issuance of short-term notes or bonds should serve 

the purpose of facilitating the payment of obli.gations legally incurred 

by the governing boards in the furtherance of the purposes authorized by this Amendment. You will observe that there is a maximum 

date of maturity provided, but no minimum date. It would, therefore, be permissible for the governing boards to issue short-term 

bonds or notes. Funds already collected and in the Treasury may. 

of course, be used for the payment of such bonds or notes. 

There is necessarily involved in your request, though not 

definitely presented, the question of whether or not these funds are 

subject to legislative appropriation as a prerequisite to expenditure 

by the colleges. We deem it appropriate to answer that question 

now. The answer is in the negative. This Constitutional Amendment, by its express terms; is self-enacting in all of its details. It ’ 

specifically levies the tax, designates the use to which the fund created by the tax levy shall be applied by the Board of Regents, and 

directs the Comptroller to tissue and the State Treasurer to pay warrants drawn upon this special fund thus created. An appropriation 

in a constitutional sense may be by legislative act or constitutional 

declaration. This is of the latter class. The effect of the explicit 

directions found in this Constitutional Amendment, now a part of the 

organic law of this State, levying the tax. creating a special fund 

from such levy, specifying the purposes for which it may be spent, 

and directing the manner of its disbursement, clearly remove this 

special fund from the limitations of Article VIII, Section 6 of the 

Constitution of this State, which provides: “No money shall be drawn 

from the treasury but in pursuance of specific appropriation made 

by law; nor shall any appropriation of money be made for a longer 

term than two years.” City of Aransas Pass v. Keeling, 112 Tex. 

339, 247 S.W. 818; Braeos River Conservation & R. District v. Mct;;w, 126 Tex. 506, 91 S.W. (2d) 665: Dorsey v. Petrott, 12 A. (2d) 

. 
240 

Hon. William L. Kerr, Page 4 (V-798) 

SUMMARY 

The accumulated funds from taxes levied by virtue 

of Section 17 of Article VII (the College Building Amendment) may be allocated by the Comptroller to the respective colleges entitled to receive the same in proportion to the formulas provided in such constitutional amendment for the payment of bonds or notes issued 

thereunder. No legislative appropriation of such funds 

is necessary since the amendment is self-enacting. 

Very truly yours 

ATTORNEYGENERALOF TEXAS 

BY 

LPL/mwb 

APPRO,VED 

v IRST ASSISTANT 

ATTORNEY GENERAL