OFFICE OF THE ATI’ORNEY GENERAL OF TEXAS 

AUSTIN 

5onorable George 5. Sheppard 

Comptroller of Public Accounts 

Austin, Texas 

Dear Sir: 

opinion X08-1742 

We ar0 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 accomThe warrants 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, Tom King, 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 sum of $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 

same to 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 

~sworn statamnt 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 Tom King, State Auditor and Efficiency 

Kxpert, requesting that ha audit the data therewith presented 

and give his approval or disapproval. The Honorable Tom C. 

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 disbursement 
Honorable 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;” 

On November 23, 1939, the State Superintendent notified the Chairman of 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 and yourself to allocate and expend monies 

appropriated in said Bill for the purpose of more 

equalizing education opportunities in Texas, I 

as Chairman of 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 se i 

and in rad Committee, 

I am directed 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 and considered 

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 

He shall 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 Legislature, commonly known as 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 coma within certain minimum and. 

maximum scholastic population brackets (Section 2); the 

school shall not be located within two and one-half miles of 

another school OS the same race (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 made based 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 x p enm Of 8Wh tran8QOrtatiOn 8hell 

be paid on the be8i8 of budgetary need a8 Indicated 

by apprOTed State Aid aDDliCetiOll, out Oi the 

fWih8 herein allocated for tran8pOrtatiO!l aid, " 

. . . 

Seotion 13 provides that *no application for aid 

shall be approved until all appllcatIon8 ill d on or before 

&ztober 1 of the current year have been oon8idsr8da and also 

reada in part: 

R Provided, (1180, that all aid grent8d 

out of’t~e’funds herein provided shall be alloted 

only on the ba8i8 of need, bh8ed upon a proper 

budgeting of each dietrlct asking for any type of 

aid. The application shall be 8worn to by the 

County Superintendent, president and secretary oi 

the board of trustees of 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 approved budget of eaoh district asking for any form of aid eroept a8 otherwise provided in thi8 AOf. All ippllcations for 

aid authorized herein ehall be on file with the 

State Department of Eduoatlon not later than Ootober 1 of each year Of the biennium, end anr rchool 

not filing such applioation before 8uOh date of 

each y8ar shall Dot be 8ligibl8 for aid for th8 

ourrent year and lhall not, be ooneldere’d or l pprovl d for the type ot aid appllod for.’ 

It ir provided in Seotlon la thatt 

o . It rhall be 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 the grounda, r 

inte8tigaba ldlng equlpment, teaching 8t&, 8nd rinanclal condition or 

eaoh rchool appl 

be given unle88 f 

ing for aid; and no aid 8hall 

t oan be rhown thm proridons of thi8 Aot have been complied with, and 

that such 8mount of qid i8 actually needed. . .I 

The Legislature toreear the de8irability of making 

P 

aynent to the variour 8chool district8 without extended deay and provided the mrthod for 80 doing in Saotion 16 whloh 
, 

Honorablr Georgr H. Sheppard, Pago 7 

read8 in part: 

Wet later than January 15 of eaoh year, the 

8tat8 inspection 0r all Rural Aid School8 8hall be 

completed. Initial payment by warrant of not more 

than fifty per cent I5051 of the total amount allott8d to any on8 school shall then be made, as 

-inal payment8 rhall be made a percentage 

baai to 8uoh 8ohool8 in 8uoh manner that all 

8OhOOl8 whose application8 for aid have been approved, 80 that each school will reoeire the same proportion of aid." 

Section 22 oontains the following provislon8: 

“All applications . . . for traneportation aid 

coming within the general provirionr of Section 10 

of thi8 Act rhall firat be considered, and if approred in the manner authorized and dlreoted herein, 

=a11 first be paid out of thr appropriation madr 

for each of the year8 of the ourrent biennium In 

the manner and method herein direoted, and 8aihaid, 

lr 80 granted, Fhall be first paid out 0r the appropriationr, and allocation8 herein made to an amount 

not exceeding one hundred per oept (100%) of the 

approved grant therefor, and all l xoeptlon8 to the 

general law permitting and granting aid to the 8evera1 rohool dirtriotr of thi8 State 8hall be paid 

only if and when tho8e approved appliOation8 oanlng 

dthln the general prorlrionr 0r thir Act harr rir8t 

been paid, and ruoh eXOOptiOn8 8hall then bo allowad 

and admitted a8 approved, and upon approval they 

ahall be paid out 0r 8uOh allooationr nmalnlng WIl x p endmd a nd theupon n a pro rata per oaplta bari 

Out Of the iundr remaining unoxpondrd in l aoh oi the 

l llooatlon8 heroin made and not otherwler. . . .- 

Bo oitatlon of authority ir neoorsary to rupport 

the proporition that the appropriation8 made la tb above 

bill are to be oontrolled and expendrd under the provision8 

thereof and not under the term8 of the Aot oi the Fortyriith Legislature or the application8 filed and approved for 

the year 193S-1939. The Act 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 rohool year. When the application8 are rem 
Honorable Ceorgr H. Sheppard, Page 8 

ceived in the State Department of Education they are then 

inreetigated (Section 12) and none oan be approved until 

they have all been oonsidered (Seotlon 13). The purpoe.0 

Of thi8 inYe8tigation i8 not to determlnr whether the money 

has already been properlJ 8pent but to serve a8 a be818 for 

approval or rejection of filed applicatlona, wand no aid 

shall be given unlese it can be shown that all provisions of 

this Act have been oomplied with, and that such amount of 

aid 18 actually needed." (Section 12). The investigation 

must be complete& by January 15th of each year. Then the 

Initial payment dot exceeding fifty per cent (5Omall be 

made, i.e. after the investigation Is oompleted. When the 

inrestigatfon ir oom leted the Department 18 prepared to approve Or reject appl s CatiOn8. The Legielature having 

P 

rorlded that traneportation aid ehall be paid on the ba8 8 of 

budgetary need "a8 indioated by 

invest 

roved State Aid gppllcation," and that after the on or licatlon8 has 

G completed partial payments hen beaLide vie think 

the legislative intent i8 clear thatpartial pa&t8 are 

not authoriied before the investigations are completed and 

applications are approved. 

The reoord presented to U8 doe8 not show that any 

appllcatlons for 1939-1940 have 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, together with the action taken by the Joint Legirlatlvo Advieory 

Caninittee, may nerve a8 a baai for the proposed a&ion; hdwover, we do not think they are controlling of the leaues hare 

presented. 

Seotion 1 maker the appropriation and provide8 that 

the money ir tot 

-. . . be allocated and expended by the 

Stat8 Superintendent of Publio Inatruotlon through 

the Mreotor of Equalization in the State Depqrtr 

ment of Education and under the eupanieion and adYioe of the 8ppeelal Joint Legislative Advisory Cornaittee oompoaed or r0ii0ting memberr: . . .~ . In 

addition to other power8 and dutie8 they 8hall haYe 

appellate and final jurisdiction on all matter8 Of 

dispute between said Department of Education and 
Honorable George H. Sheppard, page 9 

any applicant for aid under the protilrions and 

tbna8 of this Act, and until otherwise ohanged 

and directed all rule8 and regulation8 of the 

State Board Of Education shall govern the di8po8ltion of all application8 for aid under the provision8 of this Act; and said Committee shall 

have no authority to make any grant or aid except 

thet authorized by this Act. . . .4 

Seotion 17 provides: 

“The State Auditor’s OfflC4 18 hereby dlrected to audit all.appllcations for aid after 

same have been passed on by the Director oi 

Equalisetion and when such application has bern 

approved by said director, it shall then be the 

duty of the State Auditor to approve, or reject 

8uo h applioati on. Whenever there 18 a difference 

between the State Auditor and the De artment of 

Education, th8 Joint L8gislative Adv P eory Committee 

ahall adjuet same on the request of either department .4 

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

“It 8hall be the duty of thb State Superinjeot to tlm approval of thr Joint Legislative Ad- 

‘visory Coamlttee created in this Aot, and tar the 

best intere8t Of th8 8OhOolS iOr Who84 bensfit 

the funds are appropriated. . . . Provided. howit 

z State Board of Education or Joint ~~~s~a%; 

ever, that no regulation of the State Su 

AdYi8ory Cuamlttee 8ha11 oonrllot with any provisions 0r thir Aot or any present statute. . . .4 

As indloated b the sections or the Act hereinabove 

disouseed It ir our opin I on that the payment of money out 

of this appropriation other than upon approved applications 

would be contrary to and inconeirtent dth the express provisions 0r thir Aot. arid0 from any question 0r auditing. 
- . 

~6norsblo George 8. Sheppard, Fage 10 

Clearly the provision of Section 1 plsoing the rpending of 

the money 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. Likewi8e we do not think the arising of a *dirferenceR between 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 

the power8 of the Committee to the extent that it might 

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 in payment of 

the Olaim8 referred to in your letter of request in their 

present Status, 

Your0 very truly 

ATl’ORllEY GEHEFfAL O~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