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 in various ways. 

You have requested our opinion about the propriety of reimbursing 

members of boards. of trustees of independent school districts for certain 

expenses. Specifically :, you ask whether it would 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 a point 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 a point 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 in attending to school business 

with the Texas Education Agency at the State Capitol in Austin, and (4) 

reasonable and necessary legal expenses, including attorneys fees, for 

the defense of a “taxpayer’s suit in the nature of quo warrant0 brought 

for the purpose of removing . . . school board members from office, ‘I 

assuming that in the actual disposition of the case the issues are 

essentially those of judgment 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 in performance 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. 637 
The 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 of the 

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 2 3. 2 5: 

“The board of trustees of an independent school 

district shall have the powers and duties described 

in this subchapter, in addition to any of the powers 

and duties granted or imposed by this code or by 

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 in the conduct of the public 

schools to be determined by the board of trustees . . . 

(Emphasis added) 

p. 638 
The 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 5 20.48 was. Article 2827, ,Vernon’s 

Texas Civil Statutes. Like subsection (c) of $ 20.48 of today’s Education 

Code, its subsection (2) state.d that local school funds might be used “for 

other purposes necessary in the conduct of the public school to be 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 in attending 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. It went 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, it was determined that the board members were not 

entitled to reimbursement for dues in the state organizations or to meet 

expenses in attending its convention. 

The problems you pose are somewhat, similar to those considered in 

Attorney General Opinion H-70 (1973). The question there was whether 

school districts could purchase insurance to protect. school trustees from 

costs of litigation growing out of the discharge of official duties. There, 

also, early Attorney General opinions had concluded as a matter of law 

that thee purchase of indemnity-type insurance was -an unnecessary and 

unreasonable expenditure of .public funds. But the ‘1973 opinions indicated 

that facts would control - that it was no longer possible to conclude as, a 

matter of law that such an expenditure of public 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 of trustees . . . ” 

construed as proper public purposes , and-noted recent developments in 

the law. 

The concept of “public purpose ” has undergone expansion in then last 

twenty-five years. The benefits realized need not now be direct or immediate. Change and relaxation of judicial 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. 639 
The Honorable Tom Hanna. page 4 (H-133) 

151 S. W. 2d 570 (Tex. 1941); Davis v. City of Lubbock, 326 S. W. 2d 699 

(Tex. 1959); State v. City of Austin, 331 S. 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. ). 

In our opinion, answers to all your questions hinge on a determination 

of whether the contemplated expenditures are for “purposes necessary in the 

conduct of the public schools. ” And that determination, at least initially, 

is to be made by the school board. 

School districts are agencies of the State. Mosely v. City of Dallas, 

17 S,. W. 2d 36 (Tex. Comm. 1929); 51 Tex. Jur. 2d, Schools, $ 6. If a 

school board should properly determine, in the exercise of its delegated 

legislative powers, that the payment of the expenses of trustees to attend 

school-related meetings is “necessary in the 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. It must serve a true public 

purpose .and not merely private ends. School Boards do not have an unbridled 

discretion. The question of whether a true “public purpose” has been served 

is ultimately for ,the-courts. Davis v. City of Lubbock. supra. Compare 

Attorney General Letter Advisory No. 24 (1973). 

,In Attorney General Letter Advisory No. 6 (1973) we were concerned 

with institutions of ,higher .learning ,and the scope of $ 54. 503(b) of the Texas 

~Education Code, which similarly provides, ‘in part: 

“The governing board of an institution of higher 

education may charge .and collect 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. 640 
The 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 in the absence of a clear showing that it has acted arbitrarily or has abused the 

authority vested in it, the courts will not itierfere. ” 

and we concluded: 

“We are .of the 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 of voluntary 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 

in advance, nor do we 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 in the conduct of the public schools, ” a 

matter to be determined from the particular factual context. Many of your 

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 a quo warrant0 action require,8 further examination. Though the 

principal is the same, the application of it may be modified by the legal 

characteristics of a quo warrant0 action, ,which is not an ordinary lawsuit. 

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

Quo warrant0 is a special type of court action used to determine 

whether a public office is occupied by a pretender or a usurper, rather 

than by a person legally entitled to hold it. It is a suit to try the title to 

an office. 

You ask about a situation where a taxpayer has brought a suit in the 

nature of a quo warrant0 for the purpose of removing particular members 

from office, and where in the actual disposition of the case, the issues 

are essentially those of judgment and school management, and where “no 

issue as to any illegal act, and no charge of self-dealing, is involved. ” 

It is apparent that such facts do not fit the description of a true quo 

warrant0 action or a true ouster suit, If considered either, however, 

our answer would be the same because in either case, what seemingly 

is at stake is only the personal right of the officeholder to the continued 

possession of the office. See 47 Tex. Jur. 2d, Public Officers, 5 $ 7. 90. 

If other interests are at stake, other perspectives are proper. 

In Attorney General Opinion H-70 (1973), it is sa’id: 

“It has long been the position of this office that a 

school district may retain and pay to protect its 

interests in Court . . . . I’ 

,I 

. . . 

“But the authority of school trustees to employ 

attorneys is limited to those situations where the 

legitimate interests of the district - - not merely 

the personal interests of the trustees - - require 

assertion or defense. See Attorney General 

Opinion O-2103 (1940) where payment of attorneys 

fees charged for resisting quo warrant0 suit,8 

directed against the former trustees was disapproved. . . . ‘I 

p. 642 
The 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 of Austin v. 

Presidio County, 26 S.-W. 775 (Tex. Civ. App., 1894, no writ), among others] 

it was 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 of public funds to defend 

a county’s interest jn a legal contest, even if 

the county is n&named as a party to the suit. 

However, if only the private interests of the 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 in the performance 

of public duties. The public has no liability’~for’ the 

acts of an officer or employee acting outside of (or 

beyond) the scope of his legal powers, and ordinarily 

it h8.s no interest in protecting him from the consequences of such acts. I’ 

Attorney General Opinion O-2103 (1940) based its determination that 

attorneys fees in the asserted quo warrant0 suits involved there could not 

be paid with public funds on a public interest/private interest analysis which 

led to the 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 

in the conduct of the public schools, ‘1 but we believe such a showing would be 

difficult, and no reimbursement of expenses, including attorneys fees, would 

be permitted in the absence of a proper finding thereof. On the other hand, an 

attack against the district in the guise of a quo warrant0 or ouster suit might, 

in special circumstances, engage the vital interests of the district and make 

the expenditure of funds in connection therewith “necessary” in the public 

sense. The facts are determinative. 

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

SU.MMARY 

Reimbursement of travel or legal expenses for 

school board members would not be illegal if their 

payment was determined to be necessary in the conduct of the public schools and to serve a proper public 

purpose. 

Very truly yours, 

JOHNL. HILL u Attorney General of Texas 

APPROIED: 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 644