**OFFICE OF**  **THE ATI** **’ ORNEY**  **GENERAL OF**  **TEXAS** AUSTIN

5onorable George 5. Sheppard Comptroller of Public Accounts Austin, Texas Dear Sir: opinion X08-1742

Wear0 in racei 1939, which reads as 

## r0u

ection 10 bf

thorized to issue claim in its present

return this fils with

o clearly present the facts and queshis department, we consider it necesmaterial contained in the file accomThewarrants which are d to approximately one hundred ninety ate of Texas are in amounts ranging from r.warrant to in excess of $25,000.00 per warrant, totaling $1,067,915.00. Theclaims presented to ybur department are listed in the,following manner:Uonorrble “veorje H. 3heppard, @ge 2

“Transportation Ae;ort

“District **Ainount** of ‘Narrant

Anderson County County Board $17,749.00 Transportation

Angellna County county Board 11,784.OO Transportation” Attached to this list, which was apprantly submitted to the State Auditor, is the following certificate which has not been signed or executed.

“I, TomKing, State Auditor, certify that the herein order passed by the Joint Legislative Advisory Committee directing the psymaht of #.l,o67,915.00 is a procedure which will not prevent a complete audit of the transportation accounts as provided in House Bill No. 933 berore rinalpayments are made.

State AuQltOr and Brflciency Expartw There Is also attached to said list of proposed warranta the iollowlng resolution:

Vu!SOLVED,that the Joint Legislative Advisory Committee, under authority vested in it by House Bill No. 933, **Acts** of the Forty-sixth Legislature, Regular Session, hereby approves for payment the sumof $1,067,915.00 for transportation.

“The Joint Legislative Advisory Committee hereby authorizes and directs the Comptroller of Public Accounts of the State of Texas to **issue** his warrants against the State Treasury made to the respective county boards or education listed herein against appropriation A 786 and deliver sameto the Director of Equallzation for transmittal to the various county depositories.”Konorable George H. Shapprd, Fage 3

This resolution is signed by Olan i?. Van Zandt, Chairman, Joint Legislative Advisory Committee.

The correspondence in the file submitted discloses that on Nov-mber 7, 1939, State Superintendent L. A. Woods transmitted the foregoing list of warrants to fronorable George H. Sheppard, State Comptroller, stating that on October 10; 1939, %ransportation aid was granted to the county boards of education whose names appear bn the attached list in amounts sat opposite the names Advisory Committee. ,* by the Joint Legislative The following resolution passed by the Joint Legislative Advisory Committee on said date is set **out** in the letter:

vb?r. Smith moved that the Committee authorize the Department of Education to make remittances to the several school transportation systems of Texas, as authorized in Section 10 of **House** Bill #933, in an amount of fifty per cant of the actual grants approved for payment for 1933-1939 and all **Suture** payments of such transportation grants shall be audited and adjusted for payment by the Auditor in charge of rural aid before any such payments are made. h!otion unanimously carri0d.w There is also attached to said letter the following ~swornstatamnt by State Superintendent L. **A.** Woods:

*This is to certify that the reveral grants herein stated, aggregating $1,067,915.00 are correct and **are** unpeld and are due and payable as shown **in** the resolution of the Joint Legislative Advisory Committea.~ Under date of November 21, 1939, State Superintandent L. **A.** Woods transmitted the above mentioned list of warrants to Honorable TomKing, State Auditor and Efficiency Kxpert, requesting that ha audit the data therewith presented **and** give his approval or disapproval. TheHonorable TomC. King, State Auditor, answered this request on November 22, 1939, as follows:

**mYour** letter requests that I **audit** the data and file presented and approve or disapprove same ror payment.

“1 regret tha’necassity of returning to you your request for a partial advanoe disbursementHonorable Ceoxge U. Sheppard, Fage 4

of transportation aid funds in the amoun: or #1,067,915.00, appropriated under E. 3. 933 passed **by** the 46th **fesular** Session of the Texas Legislatuze, for compliance ‘Nit!I the Following sections or parts of the follol*:ing sections of the act: Sections 1, 2, 3, 4, 6, 5, 10, 12, 13, 14, 15, 16, 17, end 24.

“The file submitted by you with your letter of :lovember 21, 1939, is bein-; returned to you herewith without action by this department due to inadequate inlormation in the application, nor has such information been submitted to this dffice in proper form for auditing;” OnNovember 23, 1939, the State Superintendent notified the Chairmanof the Joint Legislative Advisory Committee that the State Auditor had declined to give his approval to the payment of said claims and therefore the **State** Superintendent was appealing this case to the Joint Legislative Advisory Committee for a decision on the matter.

‘The Chairman of

’ the Joint Legislative Advisory Committee replied to this letter on Kovember 24, 1939. :‘!e quote in part Iron; his letter since it **suggast$** the theory upon which the Joint Legislative Advisory Committee and the State Department of Education directed the Comptroller to issue the warrants in question:

n I also note that you have asked the Joint La~l~lative Advisory **Comittaa,** whose powers are particularly sat out in Section 1 of said Bill and in Section 17 thereof, also, to take this matter into consideration.

“In view of the joint authority of said Cornmittee andyourself to allocate and expend monies appropriated in said Bill for the purpose of more equalizing education opportunities in Texas, I as Chairmanof said **Committee,** consider that the authority ‘granted in Section 1 is of superior authority to that granted the State Auditor’s Departzent in Sect.ion 17 thereof. However, IL view of the controversy which has arisen cognition of the appeal taken to sei and in rad Committee, I amdirected by said Committee as Chairman thereof to pass to you the folio;?-ing information:Zosorable Ccorge H. SheFyard, Page 5

*The Committee has taken up andconsidered the appeal in question as shown by the 1et:ar attached and arter fnil deliberation and considerat.ion thereof apair ;:ders the pagzient. of .:l,Ce?,S;z, as shown by the attached srder passed b:? :P,e Corn-- mittee on October 10 and shown In your letter to the Comptroller under date of November 7, and you are further advised that said Joint Legislative Advisory Committee in all things approves your askin;r the Comptroller to issue warrants as heretofore outlined .v Heshall not attempt’to review ail of House aill so. 933, however, it will be necessary to discuss in general the provisions of the Act,

**Xouse Eill**  NO. **933, Acts**  **of** the Forty-sixth Legis**lature,** commonly knownas the Rural Aid Equalization Law, -appropriates $6,825,827,00 for the aid of public schools meeting the raquireuents of the **Act** for the school year ending August 31, 1940, and allocates $2,160,373.00 for transportation aid. (Sect2ons 1 and 11). Allocations are also made for salary aid and high school tuition aid. All school districts in the State of Texas are not entitled to prticipate in the distribution of the money thus appropriated but the **Act** contains detailed qualirications, requirements, provisions and procedure to be Pollowed before the money therein appropriated shall be paid to the various districts. Some of the elements to be tqken into consideration in detarmining the aligibillty of a school district to receive aid under this Act are that it shall comawithin certain minimumand. maximumscholastic population brackets (Section 2); the school shall not be located within two and one-half miles of another school OSthe samerace (Section 3); the district **must** be voting, levying and collecting for the currant year a local maintenance school tax of not less than fifty cents on the one hundred dollars valuation (Section 6); proper applications must be filed before October 1, 1939, and approved and audited and allotments madebased upon such applications (Sections 13, 16, 17, 23); districts must show a budgetary need for aid (Sections 10, 12 and 13) and other provisions not necessary to mention here.

Section 10, which specifically refers to transportation aid, reads in part as follows:Honorable George Ii.Sheppard,Pago 6

*The l xpenm

Of 8Wh tran8QOrtatiOn 8hell be paid on thebe8i8 of budgetary need a8 Indicated by apprOTed State

### Aid aDDliCetiOll,out Oi the fWih8 herein allocated 

### for tran8pOrtatiO!l aid, "

. . .Seotion 13 providesthat *no application for aid shall be approved until all appllcatIon8 ill d on or before &ztober 1 of the currentyearhave been oon8idsr8da and also reada in part:

R Provided, (1180, that all 

### aid grent8d out of’t~e’fundshereinprovided shall be alloted only on the ba8i8 of need,bh8ed upon a proper budgeting of each dietrlctasking for any type of aid. The application shallbe 8worn to by the County Superintendent,president and secretary oi the board of trusteesof oaoh Of the 8ChoOl8 applying for aid. All aid granted out of the find8 provided 8hall be rllotted only on th8 ba8is Of need based upon an approvedbudget of eaoh district asking for any form of aid eroept a8 otherwise provided in thi8 AOf. All ippllcations for aid authorizedherein ehallbe on file with the State Department ofEduoatlon not later than Ootober 1 of each year Of the biennium, end anr rchool not filing suchapplioationbefore 8uOh date of each y8ar shallDot be 8ligibl8 for aid for th8 ourrent year and lhallnot, be ooneldere’dor lpprovl d 

### for the type ot aid appllod for.’

It **ir provided**  **in** Seotlon la 

### thatt

o . It rhallbe the duty of the State Superf&~ndeot of Public InstNotioe to appoint the 

### number ot t3eputy State Superfntendents hereInafter authorized to make a thorou tion, in per8on, of thegrounda, r inte8tigaba ldlng equlpment, teaching 8t&, 8nd rinanclal condition

## or eaoh rchool appl be givenunle88 fing for **aid;** and no aid 8hall t 

### oanbe rhown thm proridons 

### of thi8 Aot have 

### been complied with, and that such 8mountof qid i8 actually needed.

. .I
The Legislature toreear the de8irability of

### making

Paynent to thevariour 8chooldistrict8 without extended deay and provided themrthod for 80 doing in Saotion 16

### whloh,

Honorablr GeorgrH. Sheppard,Pago 7

read8 in part:

Wet later than January 15 of eaoh year, the 8tat8 inspection

## 0r allRural Aid School8 8hall be completed. Initialpayment by warrant of not more than fiftyper cent I5051of the total amount allott8d to any on8 school shall then be made, as -inal payment8 rhallbe made a percentage baai to 8uoh 8ohool8in 8uohmanner that all 8OhOOl8whose application8for aid have been approved, 80 that each schoolwill reoeire the same proportion of aid."
Section 22 oontainsthe following provislon8:
“All applications

. . . for traneportation aid coming within the generalprovirionr of Section 10 of thi8 Act rhall firatbe considered, and if approred in themanner authorized **and**dlreoted herein, =a11 firstbe paidout of thr appropriation madr for each of theyear8 of the ourrent biennium In the manner andmethodherein direoted, and 8aihaid, 

## lr 80granted, Fhall be first paid out 0r the appropriationr, and allocation8herein made to an amount not exceedingone hundredper oept (100%) of the approved grant therefor,and all 

### l xoeptlon8 

### to the general lawpermittingand granting aid to the 8evera1 rohooldirtriotrof thi8 State 8hallbe paid only if and when tho8eapproved appliOation8 oanlng dthln the generalprorlrionr

## 0r thir 

### Act harr rir8t been paid, and ruoheXOOptiOn8 8hall then bo allowad and **admitted** a8 approved,and upon approval they ahall be paid out

## 0r 8uOh allooationr nmalnlng WI

### l xpendmd and then upon a pro rata per 

### oaplta bari Out Of the iundr remainingunoxpondrd in l aoh oi the l llooatlon8 heroinmade and not otherwler.

. . .-
Bo oitatlonofauthority ir neoorsary to rupport the proporition that theappropriation8 made la tb above bill are to be oontrolledand expendrd under the provision8 thereof and notunder the term8 of the Aot oi the **Forty** riith Legislature or the application8 filed and approved for theyear 193S-1939. TheAct 18 clear that a rchool, to reoeiro any aid **for** 19394940, must properly

## rile it8 appllcation not later @an October 1, 1939, 8how **a**budgetary need for the ourrent year and**meet**the other requirement8 bared upon the current rohoolyear. When the application8 are remHonorable Ceorgr H. Sheppard,Page 8

ceived in the State Departmentof Education they are then inreetigated (Section 12) andnone oan be approved until they have allbeen oonsidered (Seotlon 13). The 

### purpoe.0 Of thi8 inYe8tigation

## i8 not to determlnrwhether the money has already been properlJ 8pentbut to serve a8 a be818 for approval or rejection of filedapplicatlona, wand no aid shall be given unlese it canbe shown that all provisions of this Act have been oompliedwith, and that such amount of aid 

## 18actually needed." (Section12). The investigation must be complete&by January 15th of eachyear. Then the Initial payment dot exceeding fifty per cent (5Omall be made, i.e. afterthe investigation Is oompleted. When the inrestigatfon ir oom leted the Department 18prepared to approve Or reject appl CatiOn8. s The Legielature having Prorlded that traneportation aid ehall be paid on the ba8 8 of budgetary need "a8 indioatedby invest roved State Aid gppllcation," and that after the on

## or licatlon8 has G completedpartialpayments hen beaLide viethink the legislative intent i8 clear thatpartial pa&t8 are not authoriied before the investigationsare completed and applications are approved.

The reoordpresented toU8 doe8 not show that any appllcatlons for 1939-1940have ever been approved and B are informed that the Deputy Stat8 Superintendent8 are now engaged In their inYe8tigations.

It ha6 been suggested that Seotions 1 and 17, togetherwith the action takenby the Joint Legirlatlvo Advieory Caninittee,

may nervea8 a baai for the proposed a&ion; hdwover, we do not think they are controlling of the leaues hare presented.
Seotion 1maker the appropriationand provide8 that themoney ir tot

-. . . be allocated and expendedby the Stat8 Superintendent of Publio Inatruotlon through the Mreotor ofEqualization in the State Depqrtr ment ofEducation andunder the eupanieion and adYioe of the 8ppeelal JointLegislative Advisory Cornaittee oompoaed

## orr0ii0ting memberr:

. . .~. In addition to other power8 and **dutie8** they 8hall haYe appellate and final jurisdictionon allmatter8 Of dispute between said Department of Education andHonorable **George**H. Sheppard, page 9

any applicant for aidunder the protilrionsand tbna8 of

## this Act, anduntil otherwise 

### ohanged and directed all rule8and regulation8 of the State Board Of Education shall govern the di8po8ltion of all application8for aid under the provision8 of thisAct;and said Committee shall have no authority tomake any grant or aid except thet authorizedby thisAct.

. . .4 Seotion 17 provides:
“The StateAuditor’s

## OfflC418hereby dlrected to audit all.appllcationsfor aid after samehave been passedonby the Director oi Equalisetion andwhen such application has bern approved by saiddirector,it shall then be the duty of the State Auditorto approve, or reject 8uo h applioation. Whenever there 

## 18a difference between the State Auditorand the De artment of Education, th8 JointL8gislativeAdvPeory Committee ahalladjuet sameon the request of either department.4

In this oonneotlonwe aleo note that part of Seation 12 whloh proridee:

“It 8hallbe theduty of thb State 

### Superinjeot **to** tlm approval

### of thr Joint Legislative Ad- ‘visory Coamlttee created in this **Aot,** 

### and tar the best intere8t Of th88OhOolS iOr Who84 

### bensfit the funds are appropriated.
. . . Provided. howit
z State Board ofEducation or Joint ~~~s~a%; 

### ever, that no regulation of the State Su AdYi8ory Cuamlttee 8ha11oonrllot with any provisions

## 0r thir**Aot** or any present statute.

. . .4

As indloatedb the sections or the **Act** hereinabove disouseed It ir our 

### opin on I that the 

### payment of money out of this appropriationotherthan upon approved applications would be contrary to and inconeirtentdth the express provisions

## 0r thir Aot. arid0 from any question

## 0r auditing.- .

~6norsblo George 8. Sheppard, Fage 10

Clearly theprovisionof Section 1 plsoing the rpending of themoney **under** the asupervi8ion and advice* of the leglslstivr OomIaittee

doe8 not empower the oommittee to suepend the provirionr

## 0r the law and provide 8 different ba8i8 for payment. Likewi8ewe do not think the arising of a *dirferenceRbetween the State Auditor and Department of Education, aesumlng a dlfterence a8 oontemplated by Section 17 has arisen, wa8 intended to have the effeot of expanding thepower8 of the Committee to the extent that itmight direct action oontrary to the express provisions of the rtatute In adjusting such ditf6rence.

It ir our opinidn that the Comptroller of Fublio Accounts **i8** not authorized to issue warrants inpayment of the Olaim8 referredto in your letter of request in their present Status,
Your0 very truly
ATl’ORllEY GEHEFfALO~mTEXAS

ccc:Im

APPROVED DZC le, 1939 **(8)** Gerald C. **Mann**
AlTORwY **GENXUL OFlmAs**  BY Ceoil C. Cammack Assistant

APPROVED oplnlon oommitte4 BY BwB z5ziEzin