Hon. L. A. Woods

State Superintendent of Public Instruction Austin, Texas OpinionNo. O-5413 Re: Whether elementarytuition may be paid under current rural

Dear Sir :,

we quote We have before us your letter of June 17, 1943, which

in part as follows:

the the “There are several situationsin Texas in which districtsrequest the county board to classify s_chool, to teach no grades or to teach part of

. the~,elementary

grades and arrange ror some otner school to teach their childrenwhose grades they do not offer. The currentEquilizatlonAid Law does not make specificprovisionfor tuition on elementary students who are not contractedas provided in Article 8. In order to try to take care of the situation I am acting under authorityof Article 2657, A& s of the 29th Legislature,and am interpreting

the law to mean that we would be authorized to pay the cost of instructionon any child living in a district eligible to receive aid whose gr~ade

is not taught in his district. You ,w~ill note also that Article 2678a, Acts of the 44th Legislature,authorizescounty boards to classify schools in accordance with the regulationsof the State Superintendent of Public Instructionand that such re,gulations

and classif

ications

shall be made for promoting the efficiencyof the elementary schools and establishing high schools at convenient and suitableplace s. My regulationsfor the past severalyears have been that a one-teacherschool shouldnot teach more than six grades, that a twoteacher school shouldnot teach more than eight grades, that a three-teacheror four-teacherschool should not teach more than nine grades, and that a five-teacherschool shouldnot teach more than ten grades in a twelve-gradesystem. You will note that Article 2678a provides in part that

“Iif said student after having completedthe
course of study offered in his home district is notHon. L. A. Woods, page 

### 2 (O-5413)

prepared to enter either the county

_ _.. a hiah school, recognizedby
or the State, the superintendent OS the schooldistrictwhich maintains the high schoolhe desires to attend shall place said student in the prooer e rade. dist rict sh 11 be entitled to receive and said,

for said stzdent in th tui tioq
s ame manner as if said student should attend the 

### hkh t&.wi.' s chool of said dig-

"As you know, the general law requires that trustees either provide a school for all the children who live in their district or pay the cost of teaching them to the school that does teach them. I am holding that aid is based on the eligibility of the district of residence and not on the basis of the type of district to which the resident pupil may elect to attend if his grade is not taught in his home district. To hold otherwise would involvediscrimination. I also feel that this general law does not conflictwith the Equalization Law and that both shouldbe followed in regard to the distributionof rural-aidfunds and would like to have your opinion as to whether rqv interpretation

can be followedwithout violation of the statutes.n

You have informedus that it is contemplated that salary aid moneys will be used to pay the elementarytuition mentioned in your letter, under the provisionsof ,Article VI?1 of the current rural aid bill.

The bill provides for the payment of high school tuition in Article IV of the bill. follows: Article IV reads in part as

"Section 1. It is hereby expresslyprovided that a sufficientamount of funds allocatedby this Act shall be used for the payment of high school tuition not to exceed Seven Dollars and Fifty Cents 

### ($7.50) per pupil per month, and in
no instance shall more than five (5) months tuition be paid for any one pupil on the census roll for any one school year. High school tuition shall be paid accordingto the provisionsof House Bill No. 

### 158 General Laws, Regular Session,Fortyfourth Legislature , as amended, and subject to the limitationsand restrictions provided in this Act."

It is obvious that Article IV does not authorizethe payment of elementarytuition, for it speaks only of highHon. L. A. Woods, page 3 (O-5413)

school tuition and states that the same shall be paid according to the terms of House Bill No. 

### 158 General Laws Acts 44th Legislature. House Bill No. 158 f Article 2922L’(1) Vernon’s AnnotatedCivil Statutes). House Bill No. 158,‘in providing for the payment of tuition deals exclusively with high school tuition and the payment thereof for high school studentswhose grade is not taught in their home district. It is thus manifest that Article IV could in no way authorizethe
use of rural aid funds for the payment of elementarytuition.

You state in your letter that the “currentEqualization Aid Law does not make specificprovisionfor tuition on elementary students who are not contractedas provided in Article 8.” ArticleVIII reads as follows:

“Section 1. For the school year 1941-42 upon the agreementof the Board of Trustees of the &stricts concernedon on petition signedby a majority of the qualifiedvoters of the district and subject to the approval of the County Superintendent, State Superintendent,

and Joint LegislativeAdvisoryCommittee, the trustees of a districtwhich may be unable to maintain a satisfactoryschoolmay transfer its entire sch

elastic n 011~ nt. o anv numbe o f grades thereof to a c&fvenie% schzol of high& rank, and in such evint all of the funds of the district includingthe State Aid to which the districtwould’ otherwisebe entitledunder‘the provisionsof this Act, or such proportionate part thereof as may be necessary shall be used in carrying out said agreement; provided that no aid shall be allowed for teachers that are not actuallyemployed in the contracting schools.

“Section2. For the schoolyears thereafter, upon the agreementof the. Board of Trustees of the ,districts

concernedor on petition signedby a majority of the qualifiedvoters of the district and subject to the approval of the county superintendent, and the State Superintendent, a districtwhich may be unable to maintain a satisfactoryschoolmav transfer jts entire schQ;Lastic enrollmen&for one year to an accredited school of higher rank. If the receiving school receives State Aid, the scholasticcensus rolls both white and colored shall be combined capita apportionment shall be paid direc 4 the per to the receiving school all local taxes of the sending &ntracting district,except those going to the interest and sinking fund shall be credited to the receivingHon. L. A. Woods, page 4 (O-5413)

schoolby the teacher-pupil
census total. Tax Collector as collected,and the

quota shall be based on the combined If the receiving school is not a State Aid school the scholasticcensus rolls both white and colore

B shall be combined apportionmentshall be paid direct the per capita $0 the receiving school,all local taxes of the sending contracting district except those going to the interestand sinkingfund shall be creditedto the receiving schoolby the Tax Collector as collected,and the sending contracting districtwill be eligible for
as much Salary ,Aid as is necessary to supplementthe State Availableand Local Maintenance Funds on the scholastics

from the sendingdistrict atten ing a cl school inthe receivingdistrict,to cover the approved cost of instruction per scholasticin the receiving school,provided that such approved cost shall not exceed Seven Dollars and Fifty Cents ($7.50) per month for high school studentsor Five Dollars ($5.00)per month for elementary students.” (Emphasis supplied).

Section 1 of ArticleVIII applied by its terms only to the school year 1941-42. Section 2 applies to the current school year

. You will notice that Section 1 authorizedthe transfer of the entire scholasticenrollment,or env glamb r f Prades thereof. Section 2 authorizesonly the transfer 0; t:e entire scholasticenrollment. any number of grades thereof ” The exclusion of the phrase “or from Section 2 is obviously clear that the same is not authorizedby Section 2. In other words, only the transfer of the entire scholasticenrollmentmay be effected under the terms of Section 2.

The transfersabout which you inquiredo not therefore,
come within the provisionsof Section 2 of Article 8, her the elementary studentsmentioned in your letter are not contracted under the provisionsthereof.

You cite in your letter Article 2678a, Vernon’s Annotated Civil Statutes. It is our opinion that this st;tute has
no effect on the question of elementarytuition payment under consideration,

for Article IV deals with high school tuition and expressly states that the same shall be paid under the terms of House Bill 158 (Article2922L(l) ),supra, and Section 2 of Article VIII is concernedwith the transfer of the entire scholastic enrollment,

which is not the case here.

It is elementarythat moneys appropriated for one purpose may not be used for another purpose and that the conditionsHon. L. A. Woods, page 5 (o-5413)

of an appropriation bill must be met before moneys can be paid out thereunder. It is fundamentalthat no money may be drawn from the Treasurybut in pursuance of a specificappropriation made by law. ArticleVIII, Section 6, Constitutionof Texas.

You are, therefore,advised that the payment of elementary tuition as outlined in your letter,isnot authorized either by Article IV, ArticleVIII, or any other provisionof the rural aid act; consequently, rural aid moneys cannot be expended therefor.

We are not unmindful of the force of the arguments advancedby members of your departmentand other educatorsas to the desirabilityand need for such payment. However, the power to pass statutesand make appropriations of public moneys is lodged in the Legislature ad not in the AttorneyGeneral or the State Superintendent, such argumentspresent considerations of policy the determination of which is the prerogative of the Legislature,and not of this department.

Very truly yours

ATTORNEYGENERAL OF TEXAS

By /s/ George W. Sparks George W. Sparks, Assistant

APPROVED JUL 13, 1943 /s/ Gerald C. Mann ATTORNEY GENERALOF TEXAS

APPROVED:OPINION COMMITTEE BY: BWB, CHAIRMAN

GWS-s:wb.