### Ammmv. **TEXAPJ** 

### 78711 ,October 

### 19, 1973
The Honorable Tom Hanna Criminal District Attorney P. 0. Box 2553 Beaumont, Texas 77701 Dear Mr. Hanna: Opinion No. H- 133 Re: Reimbursement of expenses

of school board members incurred invarious ways.
You have requested our opinion about the propriety of reimbursing members ofboards. oftrustees of independent school districts for certain expenses. Specifically :, you ask whether itwould be legal for the school district to reimburse board members for (1) actual expenses necessarily incurred for travel, meals and motel rooms to attend a convention of administrators and school board members at apoint outside the State of Texas, assuming such convention dealt only with solutions to school problems and the planning of school business, (2) travel expenses and lodging to attend state conventions of administrators and,,school board members at apoint in Texas, assuming that the member attending has been designated a delegate and the trip has been authorized by the Board and that the member will prominently participate in the program which concerns matters of importance to the school district, (3) necessary lodging and travel expenses incurred inattending to school business with the Texas Education Agency at the State Capitol inAustin, and (4) reasonable and necessary legal expenses, including attorneys fees, for the defense of a “taxpayer’s suit inthe nature ofquo warrant0 brought for the purpose of removing
. . . school board members from office, ‘I assuming that inthe actual disposition ofthe case the issues are essentially those ofjudgment and school management, with no issue as to any alleged illegal act involved and no charge of conflict-of-interests involved. You advise that the by-laws of the local school district have for years authorized reimbursement to members of “expenses incurred inperformance of duty, ” that school districts “all over the state” regularly expend money for trips such as those described; and that Texas Education Agency rules and regulations anticipate such expenditures. But, you also point out that a 1939 Attorney General Opinion (O-1722) is opposed.

p. 637The Honorable Tom Hanna, page 2 (H-133)

Some applicable provisions of the Texas Education Code are: Section 23. 26(b): “The trustees shall have the exclusive power to manage and govern the public free school ofthe district. ” Section 23.26(d): “The trustees may adopt such rules, regulations and by-laws as they may deem proper. ” Section 23.19(e): “Thk trustees shall serve without compensation. ” Section 23.25: “The board oftrustees ofan independent school district shall have the powers and duties described inthis subchapter, inaddition to any ofthe powers and duties granted or imposed by this code 

### orby law. ‘I Section 20.48 entitled “Authorized Expenditures:’ provides in,its subsection (a) :

“The public free school funds shall not be expended except as provided in this section. ‘I No specific mention is made cf reimbursement of expenses. However, it does provide in subsection (c):

“Local school funds
. . . may be used for the purposes enumerated for state and county funds
. . . and for other purposes necessary inthe conduct ofthe public schools to be determined by the board of trustees . . . (Emphasis added)

p. 638The Honorable Tom Hanna, page 3 (I-I-133)

Similar statutes were in effect when Attorney General Opinion O-1722 (1939) was issued. The predecessor of 520.48 was. Article 2827, ,Vernon’s Texas Civil Statutes. Like subsection (c) of $20.48 oftoday’s Education Code, its subsection (2) state.d that local school funds might be used “for other purposes necessary inthe conduct ofthe public school tobe determined by the Board of Trustees. ‘I Among other things, the Opinion O-1722 specificallydealt with whether or not local board members could be reimbursed for expenses incurred inattending meetings. of a state organization similar to,those, you describe. The 1939 opinion concluded there was “nothing to indicate” that the ,~ existenc,e of the state-wide organizations of school trustees or their conventions was necessary in the conduct of the public schools. Itwent on to state that whatever benefit might accrue to the school through the attendance at those meetings “would be remote and indirect?’ Upon this reasoning, itwas determined that the board members were not entitled to reimbursement for dues inthe state organizations or to meet expenses in attending its convention. The problems you pose are somewhat, similar tothose considered in Attorney General Opinion H-70 (1973). The question there was whether school districts could purchase insurance to protect. school trustees from costs oflitigation growing out of the discharge of official duties. There, also, early Attorney General opinions had concluded as amatter oflaw that theepurchase of indemnity-type insurance was -anunnecessary and unreasonable expenditure of.public funds. But the‘1973 opinionsindicated that facts would control - that itwas no longer possible to conclude as,a matter oflaw that such an expenditure ofpublic funds was unreasonable and unnecessary. It emphasized the provision $20.48(c) of the Education Code that funds could be used “for other purposes necessary in the conduct of the public schools to be determined by the board oftrustees . . . ” construed as proper public purposes , and-noted recent developments in the law. The concept of “public purpose ” has undergone expansion inthenlast twenty-five years. The benefits realized need not now be direct or immediate. Change and relaxation ofjudicial attitudes on~the matter are reflected in Court decisions from then to the present time. Compare Housing Authority of City of Dallas v. Higginbotham, 143 S.W. 2d 79 (Tex. 1940); Friedman v, American Surety Co. of New York,

p. 639The Honorable Tom Hanna. page 4 (H-133)

151S.W. 2d 570 (Tex. 1941); Davis v. City of Lubbock, 326 S.W. 2d 699 (Tex. 1959); State v. City ofAustin, 331S.W. Zd 737 (Tex. 1960); Barrington v. Cokinos. 338 S.W. 2d 133 (Tex. 1960); Bullock v. Calvert, 480 S.W. 2d 367 (Tex. 1972); and Harris County v. Dowlearn 489 S.W. 2d 140 (Tex. Civ. App., Houston [14th Dist. ] 1973; err. ref’d., n.r. e.). Inour opinion, answers to all your questions hinge on a determination ofwhether the contemplated expenditures are for “purposes necessary in the conduct ofthe public schools. ” And that determination, at least initially, is tobe made by the school board. School districts are agencies of the State. Mosely v. City of Dallas, 17S,.W. 2d 36 (Tex. Comm. 1929); 51Tex. Jur. 2d, Schools, $6. Ifa school board should properly determine, in the exercise of its delegated legislative powers, that the payment ofthe expenses oftrustees to attend school-related meetings is “necessary inthe conduct of the public schools, ” we could not say, except by referring to the particular facts, that such action would be arbitrary or contrary to law. However, any such expenditure must not be disguised compensation for services. Itmust serve atrue public purpose .andnot merely private ends. School Boards do not have an unbridled discretion. The question ofwhether atrue “public purpose” has been served is ultimately for ,the-courts. Davis v. City ofLubbock. supra. Compare Attorney General Letter Advisory No. 24 (1973). ,InAttorney General Letter Advisory No. 6(1973) we were concerned with institutions of,higher .learning ,andthe scope of $54. 503(b) ofthe Texas ~Education Code, which similarly provides, ‘in part:

“The governing board of an institution ofhigher education may charge .andcollect from ,students registered at the ~institution,fees to cover .the cost of student services which the board deems necessary or desirable in carrying out the educational functions of the institution. ‘I.(Emphasis added) With reference to the power of the governing boards to authorize the collection of fees for certain activities, we said:

p. 640The Honorable Tom Hanna, page 5 (H-133)

“The governing board of an institution of higher education, in adopting rules and regulations .for its operation, exercises delegated legislative powers, and inthe absence ofa clear showing that it has acted arbitrarily or has abused the authority vested in it, the courts will not itierfere. ” andwe concluded:

“We are .ofthe opinion, therefore, that the governing board of an educational institution of higher learning may now authorize-a public interest research activity as a student,service. ‘necessary .or desirable in carrying out the educational functions of the institution’, and may provide for the collection from students ofvoluntary fees to cover the cost of such service, provided authorization is pursuant to regulations comporting with equal protection and due process constitutional requirement,s. We cannot say inadvance, nor dowe think the courts could say that such authorization would be arbitrary or contrary to law without firs~t examining the facts of each individual case. ” We are led to similar conclusions here. Reimbursements for the travel expenses you inquired about would not be illegal, in our opinion, if their payment was “necessary inthe conduct ofthe public schools, ” a matter tobe determined from the particular factual context. Many ofyour stated assumptions tend to support a conclusion that expenses could be reimbursed, but it cannot be said that such a determination in an individual case would or would not be arbitrary ,or contrary to law without first examining all the facts. Your question concerning reimbursement of expenses incurred in defending aquo warrant0 action require,8 further examination. Though the principal is the same, the application of it may be modified by the legal characteristics ofa quowarrant0 action, ,which is not an ordinary lawsuit.

p. 641The Honorable Tom Hanna, page 6 (H-133)

Quo warrant0 is a special type of court action used to determine whether apublic office is occupied by apretender or ausurper, rather than by aperson legally entitled to hold it. Itis a suit to try the title to an office.

You ask about a situation where a taxpayer has brought a suit inthe nature ofa quo warrant0 for the purpose of removing particular members from office, and where inthe actual disposition ofthe case, the issues are essentially those ofjudgment and school management, andwhere “no issue as to any illegal act, and no charge of self-dealing, is involved. ” Itis apparent that such facts do not fit the description ofa true quo warrant0 action or atrue ouster suit, Ifconsidered either, however, our answer would be the same because in either case, what seemingly is at stake is only the personal right ofthe officeholder to the continued possession ofthe office. See 47 Tex. Jur. 2d, Public Officers, 5$7. 90. Ifother interests are at stake, other perspectives are proper. InAttorney General Opinion H-70 (1973), it is sa’id:

“It has long been the position ofthis office that a school district may retain and pay toprotect its interests in Court
. . . . I’

,I

. . .
“But the authority of school trustees to employ attorneys is limited to those situations where the legitimate interests ofthe district - - not merely the personal interests ofthe trustees - - require assertion or defense. See Attorney General Opinion O-2103 (1940) where payment ofattorneys fees charged for resisting quo warrant0 suit,8 directed against the former trustees was disapproved.
. . . ‘I

p. 642The Honorable Tom .Hanna, page 7 (H-133)

Attorney General Opinion H-70 referred to Attorney General Letter, Advisory No. 24 (1973) where [‘citing City National Bank ofAustin v. Presidio County, 26 S.-W. 775 (Tex. Civ. App., 1894, nowrit), among others] itwas said:

‘Fublir money cannot be spent to defend private interests [Art. 3, $51, Texas Constitution]
. . . Of course, suits may be only nominally against individuals when they are really designed to obstruct or control the legitimate performance of official duties. Such litigation does involve county interests
. . . and there is no constitutional prohibition against the.use ofpublic funds to defend a county’s interest jn alegal contest, even if the county is n&named as aparty to the suit. However, if only the private interests ofthe defendant officer or employee are at stake, no defense could be provided, even though the act which precipitated the suit occurred while the officer or employee was ostensibly engaged inthe performance ofpublic duties. The public has no liability’~for’ the acts of an officer or employee acting outside of (or beyond) the scope ofhis legal powers, and ordinarily ith8.s no interest inprotecting him from the consequences of such acts. I’ Attorney General Opinion O-2103 (1940) based its determination that attorneys fees inthe asserted quowarrant0 suits involved there could not be paid with public funds on apublic interest/private interest analysis which led tothe conclusion that only private interests were involved. We cannot say that in no quo warrantor or ouster case, or other case of a similar nature, could the delense of such a suit be.vital to the district’s interest and “necessary inthe conduct ofthe public schools, ‘1butwe believe such a showing would be difficult, and no reimbursement of expenses, including attorneys fees, would be permitted inthe absence of aproper finding thereof. On the other hand, an attack against the district in the guise ofa quo warrant0 or ouster suit might, in special circumstances, engage the vital interests of the district and make the expenditure offunds in connection therewith “necessary” in the public sense. The facts are determinative.

p. 643The Honorable Tom Hanna. page 8 (H-133)

SU.MMARY Reimbursement oftravel or legal expenses for school board members would not be illegal iftheir payment was determined to be necessary inthe conduct of the public schools and to serve aproper public purpose. Very truly yours,

JOHNL. HILL 

# u Attorney General ofTexas APPROIED:

DAVID M. KENDALL, Chairman Opinion Committee

p. 644