Hon. L. A. Woods 

State Superintendent of 

Public Instruction 

Austin, Texas 

Opinion No. O-5413 

Re: Whether elementary tuition 

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 situations in Texas in which 

districts request 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 children whose grades they 

do not offer. The current Equilizatlon Aid Law 

does not make specific provision for tuition on 

elementary students who are not contracted as provided in Article 8. In order to try to take care 

of the situation I am acting under authority of 

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 instruction on 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, authorizes county boards to classify 

schools in accordance with the regulations of the 

State Superintendent of Public Instruction and that 

such re,gulations and classif ications shall be made 

for promoting the efficiency of the elementary 

schools and establishing high schools at convenient 

and suitable place s. My regulations for the past 

several years have been that a one-teacher school 

should not teach more than six grades, that a twoteacher school should not teach more than eight 

grades, that a three-teacher or four-teacher school 

should not teach more than nine grades, and that a 

five-teacher school should not teach more than ten 

grades in a twelve-grade system. You will note that 

Article 2678a provides in part that 

“Iif said student after having completed the 

course of study offered in his home district is not 
Hon. L. A. Woods, page 2 (O-5413) 

prepared to enter 

either the county _ _.. 

a hiah school, recognized by 

or the State, the superintendent OS the school district which maintains 

the high school he 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 involve discrimination. I also feel that 

this general law does not conflict with the Equalization Law and that both should be followed in regard to the distribution of rural-aid funds and 

would like to have your opinion as to whether rqv 

interpretation can be followed without violation of 

the statutes.n 

You have informed us that it is contemplated that 

salary aid moneys will be used to pay the elementary tuition 

mentioned in your letter, under the provisions of ,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 expressly provided 

that a sufficient amount of funds allocated by 

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 according to the provisions of House 

Bill No. 158 General Laws, Regular Session, Fortyfourth Legislature , as amended, and subject to the 

limitations and restrictions provided in this Act." 

It is obvious that Article IV does not authorize the 

payment of elementary tuition, for it speaks only of high 
Hon. 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 Annotated Civil 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 

students whose grade is not taught in their home district. It 

is thus manifest that Article IV could in no way authorize the 

use of rural aid funds for the payment of elementary tuition. 

You state in your letter that the “current Equalization Aid Law does not make specific provision for tuition on 

elementary students who are not contracted as provided in Article 8.” Article VIII reads as follows: 

“Section 1. For the school year 1941-42 upon 

the agreement of the Board of Trustees of the &stricts concerned on on petition signed by a majority 

of the qualified voters of the district and subject 

to the approval of the County Superintendent, State 

Superintendent, and Joint Legislative Advisory Committee, the trustees of a district which may be unable to maintain a satisfactory school may 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 

including the State Aid to which the district would’ 

otherwise be entitled under‘the provisions of 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 actually employed in the contracting 

schools. 

“Section 2. For the school years thereafter, 

upon the agreement of the. Board of Trustees of the 

,districts concerned or on petition signed by a majority of the qualified voters of the district and subject to the approval of the county superintendent, 

and the State Superintendent, a district which may be 

unable to maintain a satisfactory school mav transfer 

jts entire schQ;Lastic enrollmen& for one year to an 

accredited school of higher rank. If the receiving 

school receives State Aid, the scholastic census rolls 

both white and colored shall be combined 

capita apportionment shall be paid direc 4 

the per 

to the rece iving school all local taxes of the sending &ntracting district, except those going to the interest 

and sinking fund shall be credited to the receiving 
Hon. L. A. Woods, page 4 (O-5413) 

school by 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 scholastic census rolls both 

white and colore B shall be combined 

apportionment shall be paid direct 

the per capita 

$0 the receiving 

school, all local taxes of the sending contracting 

district except those going to the interest and 

sinking fund shall be credited to the receiving 

school by the Tax Collector as collected, and the 

sending contracting district will be eligible for 

as much Salary ,Aid as is necessary to supplement the 

State Available and Local Maintenance Funds on the 

scholastics from the sending district atten cl ing a 

school inthe receiving district, to cover the approved cost of instruction per scholastic in the receiving school, provided that such approved cost 

shall not exceed Seven Dollars and Fifty Cents ($7.50) 

per month for high school students or Five Dollars 

($5.00) per month for elementary students.” (Emphasis supplied). 

Section 1 of Article VIII 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 authorized the 

transfer of the entire scholastic enrollment, or env glamb r f 

Prades thereof. Section 2 authorizes only the transfer 0; t:e 

entire scholastic enrollment. 

any number of grades thereof ” 

The exclusion of the phrase “or 

from Section 2 is obviously clear 

that the same is not authorized by Section 2. In other words, 

only the transfer of the entire scholastic enrollment may be effected under the terms of Section 2. 

The transfers about which you inquire do not therefore, 

come within the provisions of Section 2 of Article 8, her the 

elementary students mentioned in your letter are not contracted 

under the provisions thereof. 

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 elementary tuition 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 (Article 2922L(l) ),supra, and Section 2 of 

Article VIII is concerned with the transfer of the entire scholastic enrollment, which is not the case here. 

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

of an appropriation bill must be met before moneys can be paid 

out thereunder. It is fundamental that no money may be drawn 

from the Treasury but in pursuance of a specific appropriation 

made by law. Article VIII, Section 6, Constitution of Texas. 

You are, therefore, advised that the payment of elementary tuition as outlined in your letter,is not authorized 

either by Article IV, Article VIII, or any other provision of 

the rural aid act; consequently, rural aid moneys cannot be expended therefor. 

We are not unmindful of the force of the arguments 

advanced by members of your department and other educators as 

to the desirability and need for such payment. However, the 

power to pass statutes and make appropriations of public moneys 

is lodged in the Legislature 

ad 

not in the Attorney General or 

the State Superintendent, such arguments present considerations of policy the determination of which is the prerogative 

of the Legislature, and not of this department. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By /s/ George W. Sparks 

George W. Sparks, Assistant 

APPROVED JUL 13, 1943 

/s/ Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

APPROVED: OPINION COMMITTEE 

BY: BWB, CHAIRMAN 

GWS-s:wb.