. --; 

OFFICE OF THE ATTORNEY GENERAL OF, TEXAS 

AUSTIN 

Honorable Geo. H. Sheppard 

Cmptroller of Public Accounts 

Austin 11, Texas 

Dear Sir: Opinion No: 6105 

Re: Authority of the State 

Board of Education to 

make supplenental apportionment of Available School 

Fund on hand, and which will 

accrue to said fund as of 

August 31, 1944. 

Your recent co.mmnication to this departinent reads 

as follows: 

"After paying the $25.00 per capita appbW 

tionment a: fixed by the State Board of Education 

in its regular meeting July 1943, there will remain a balance in the Available School Fund as of 

August 31, 1944, of. approximately $6,000,000: The 

State Board of Education at its regular meeting 

-Q J,uly 1944 in considering the final distribution 

of this $6,000,000 in the Available School Fund 

adopted the following resolut:on: 

:: qtWr. Stevenson moved that,.!subject to a 

-ruliq by the Attorney General that our.action is 

legal, we, the State Board of Education, hereby 

supplement the per capita apportionment heretofore fixed for the school year 1943-1944, to the 

extent of $4.00 per capita, to be paid out of the 

funds now in and which Tfiill accrue to the Available 

School Fund as of August 31, 1944.' X2'. Custard 

seconded the zotion, which carried ;iith tha following vote: (All "ayes 11 except Senator Oneal who was 

present and not votin&' 
Hon. Geo. H. Sheppard, p. 2 

"This resolution will in effact snake a conplats distri‘ auti,oh of the Available School Fund 

for the school year 1343-1944. 

"The folloi~:i.nS, qu~osti.on imzedi:jtely arises 

under the above quoted resolution: 

"Doss the State Doard of ~Zducation at 

this tize have tha p<?,;~re? 'to :zai;~c a supple;isntal aI:;jortion:::ert of the Avai.lable 

School Fund oh hacd, and -;;~j:, ict I;-ill accrue 

to said fund ds of Aufust 31, 1'344? 

"For your assistance in ansuerins the above 

question I submit the follozing: 

r'Section 3 of'krticle 7, StJta Ccustitution, 

provides in part as fO1lOWS: 

"'One-fourth of the revenue derived from the 

Sta%e Occupation taxes and poll tax of one dollar 

on everv inhabitant of the State. between the ages . 

of twenty-one and sixty years, shall be set apart --- 

,a,n,nuii~l~d~~~~~~ot~~~~~~t of thz public free.schools; 

, there shall be levied and 

collected an annual ad valore% State tax of such 

an amount not to exceed thirty-five cents on the 

one hundred ($lCC.OC) dollars valuation, as with 

the available school fund arising from all other 

sources, will be sufficimt to maintain and support 

the oublic schools of this-State for a period of 

not iess than six nonths in each year. . .' 

(Underscoring supplied) 

"Section 5 of Article 7, State Constitution, 

provides in part as follows: 

11, :. . and the Available: Schcol Fund shall 

be appliid'annually to tha Sul;$Ort of the public 
Honorable Gee, H. Sheppard, p.. 3 

, 

free schools. And no law shall ever be enacted 

appropriatin'g any part of the Pezmanent or Available 

School Fund to any othar purpose whatever;, . . . 1 

(Underscoring supplied) 

"Since the time for paying this supplemental 

apportionment, if authorized, is immediate, we shall 

thank you to answer the foregoing question at once." 

It is the opinion of this department that the 

'quotations in your communication from Sections 3 and 5 of Article 

7 of our State Constitution are the supreme law of our State in 

reference to the question presented. Rspecially significant 

is that provision in Section 5 which providea that "the Available 

Sahool Fund shall be applied annually to the support of the 

public .free schools." (Emphasis ours.) 

The ver@ "apply" is variously defined in 'iirebster,"s 

New International Dictionary, Second Edition.. The definitions 

most applicable to same as used in Section 5 are as follows:, 

"To put to use; to use or employ for a particular purpose,, 

or in a particular case; to a 

money h~o the payment of 

~~;o';;z;;i,~;l;;.;.;s to apply 

a debt. 

Article 2823, R. S. 1925, after defining what shall 

constitute the Available Schooi Fund as set forth in the 

provisions of our Constitution,, carries out the Constitutional 

mandate contained in Section 5, Article 7, supra, and provides 

that the Available School Fund "shall be apportioned annually 

to the several counties of this State, according to the scholastic population of each, for the supportand maintenance of 

the public free sahools." Said statute has never been amended 

since its adoption in 1905, 

The following quotations from a rother recent 

decision are also enlightening: 

**Our State Constitution provides that sufficient 

revenues shall be raised to maintain and support the. 

public schools of the state for a period of not less 
Eon. Geo. H. Shepyard, p. 4 

than six months in each yew (Article 7, 8 3), and 

that no part of the available school fund shall be 

diverted to any ether purpose, but all of it shall 

be apportioned and distributed to the several counties of the state (by the State Board of Education, 

Art. 2665, R. 3. 1925), according to their scholastic population (Gonst. Art. 7, 85; Article 2823, R. S. 

1925). 

"It is further provided in the Constitution 

that the L+plislature shall provide for a State 

Board of Education, which shall psforn such duties 

as -r,ay be prescribed by law (Article 7, 58). 

"It is provided in Article 2G65, R. S. 1925; 

'The State Board shall, on or before the first day 

of August in each year, ,based on the estimate theretofore furnishad said Board by the Comptroller, make 

an ayportionnsnt for the ensuing scholastic year 

of the available school fund among the several counties of the State, and the. several cities and towns 

and school districts constituting separate school 

organizations, according tc tho scholastic population of each; and thereupon ths secretary shall 

certify to the treasurer of ejch such separate 

school organization the toal amount of available 

school fund so ap::ortioned to ear&x, which certificate 

shall be signed by the president, countersigned by 

the Comptroller and attested by the secretary.'" 

(%DhaSis ours.) See S::n ,Antonio I:ld. School District et al, v;'St:!te Eoard of Education et al, 

(Civ. tipp.) 108 S. 71. (2) 445, 447. 

It should now be noted that Article 2665, R. 3. 1925, 

contained no formula in .qaking thee annual apportionment of the 

Available School Fund, except that said a:?Dortionrient must be 

based on the estixnate theretofore furnished said Board (now 

the State Board of Education) by the Comptroller. 
Han; Geo. H. Sheppard, p. 5 

However, Article 7043, R. S. 1925, did contain a 

formula whereby the State Tsx Board, or Automatic T:x Board 

as it is generally referred to, must proceed in calculating 

the ad valorem tax to be levied and collected each year for 

State-and public free school purposes. In 1925, said Tax 

Board was directed to fix a rate, follo+:ing sa4d statutory formula, "that will yield and produce for such fiscal:year four 

dollars per capita for all the,children within the scholastic 

age, as shown by said scholastic, census; provided, the rate 

SO fixed for any year shall never exceed the rate fixed by law." 

This "rate fixed by law" referred, of course, to.~the Constitutional maximum of thirty-five cents as set forth in Section 3 of 

Article 7. 

i Said Article 7043 has been amended from.time to ~.time; 

and the maximum per capita to be produced by said rate to be 

fixed by said Tax Boa,rd ha-s been, increased by various amendmentsi 

The last amendment to Article 7043, supra, was by the 48th Lagislature, Chap. 160, p. 260, H. B. 256. The following proviso is 

contained therein: . . 

"Provided that no rate for school purposes 

shall be set by said Board (State Tax Board) in 

excess of a rate required to produce sufficient 

funds when added to other available school funds 

would produce a total available school,fund for. 

an apporti,onment in excess of Twenty-five Dal-y. 

lars ($25), it being the intention of the Legislature that the State Board of Education shall 

have the authority to fix the apportionment at 

not exceeding Twenty-five Dollars($25)j and 

when so fixed, the State,Tax Board shall fix a 

rate for school purposes., the maximum rate authorized by the Constitution if necessary) to 

produce revenue when added to other available 

school revenue, shall be a sufficient amount to 

meet the apportionment, which shall not be in 

excess of Twenty-five Dollars ($25), and it is 

specifically provided that the rate shall never 

be greater than necessary to supplement other 
Hon. Geo. H. Sheppard, p. 6 

available school funds to 

tionment of not exceeding 

($25) per year."' 

guarantee an apporTwenty-five Dollars 

Also, Article 2665 has been amended by various 

Legislatures Sinct? 1925. By Acts of 1939, the 46th Legislature, p. 274, par. 1, amended said Article by providbg 

formulas to be used by the State Board of Education in 

arriving at the amount to be apportioned. These formulas 

have been carried forward in identical laquage in the 

amendment of said Article 2665 by the 48th Legislature,. 

Chap. 161, p. 262, H. 9. 257. Said anendement raises the 

amount which the apportionment shall never exceed from 

$22.50 to $25.00, and contains the following significant 

provisi~ons: 

"In arriving at the amount to be apportioned, the State Board of Education shall 

determine the cost of operating schools for 

a six-months period, . . . when such apportionment per pupil has been fixed, same 

shall be certified to by the Secretary of 

the Board and filed with the Automatic Tax 

Board to be used bY the Tax Board in fixing 

the rate of State ad valorem taxes for school 

purposes that will provide sufficient funds 

to maintain the public schools of Texas for 

period of not lessthan six (6) months. 

Provided that the State Board of Education. 

in estimating the amount of money that it 

judges to be necessary to maatain the pub-. 

lit schools for a period of not less than six 

(6) months shall proceed as follows: . . ., 

and this last sum so found shall be considered 

the amount that is deemed necessary to maintain the public schools for a period of not 

less than six (6) months; provided that the 

State Fer capita apportionment shall never 

exceed Twenty-five Dollars ($25) for any one 
Hon. Geo. H. Sheppard, p. 7 

scholastic year.."' (Bmphasis ours;) 

A careful study ‘of said Articles 7043 and 2665, 

and sncndments thereto,: reveals that the per capita apportionment, whether definitely fixed by the Leg~islature, or 

whether fixed by the Board of Education at an amount not 

exceading the ,?aximu? as provided by the LF;pislatuxe,; is 

a yardstick or standard for fixing th- state ad valorem 

school tax rate. Such rate mu,st 5:: "an amount not to 

exceed thirty-five cents on the ona hundred (,+%GG.GO) 

dollars valuation, as :.;ith the availab1.e school fund arising 

from all other sources, will be sufficient to maintain and 

support the public schools of this State for a period of 

not less than six months in each year, . ; \I1 

(Section 3, Art: 7, State Constitution;) 

The apyortioment is based on an estimate by the 

State Board of Education of an amount of money that it judges 

to be necessary to maintain the public schools for a period. 

of not less than six months. Said cstiinate must be arrived 

at by following statutory formulas, and the apportionment 

based thereonmust not exceed that provided by statute. The 

maximum of $25.00' ,?rovided by both Articles 2655 and 7043, 

as amended, issimply the maximwn estimate of the Legislature 

that is deemed necessary to r,aintain and support the public 

schools for a period of not less than six months each year. 

To hold that said >er capita apportionment is the 

maximum amount per pupil that can be allottedthe schools of 

Texas during any fiscal year, would give @eater weight to 

the Statutes than to tha Constitution. Such construction would 

be in direct conflict with the.Constitution. It provides that 

"the available school fund shall be applied annually to the 

support of the public free schools." S- . 5, Art. 7. 

clearly means, from the definitions h&&above quoted, 

This 

that 

said fund must be appropriated or allotted annually. The 

Legistature has no constitutional right to wit,hhold any substantial part.thereof during any one fiscal year. Neither has 

the Legislature attempted to do SO. See Article 2823, R. S. 

1925, hereinabove referred to and quoted in part. This Article 
Hon. Geo. H. ShaI:pard, p. 6 

which has nev,ar been repealed, clearly follov~s the Constitution, 

and cannot be ignored. . 

If the Legislature has attenipted, by any of th.a provisions of Articles 2665 and 7043, az a:aended, to limit the 

amount of the available school fund to be applied annually to 

tho suplzortof the public free schools, then such limitation 

is clearly unconstitutional and void. On the other hand, it 

is entirely logical to construe, and we do construe, the pertinent provisions of said amended articles as intending to 

provide a yardstick or standard to be used in the fixing of 

the State ad valorea school tax rate. Such construction does 

not conflict with the Constitution. 

It is a wall estabJ.ished rule of construction "that 

if an act is fairly capabla of two constructions, under one of 

which it VJOUld be constitutional and under the other of which 

it would be invalid, the former must prevail." T. J.~ Vol. 39, 

pp. 206-207. 

Also, it is elementary that a statute will be construed in such manner as to make it effective, if it is fairly 

susceptible of such interpretation. T. J. Vol. 39, p. 205. 

It is clear, therefore, that the Legislature can 

limit the State school ad valorem tax rate by statutory law. 

This it has done. It cannot, ho-tiqever, limit the per capitaanuortionment to anv amount less than th?:t which will result 

f&n the annual ap?iication and equal distribution of all of the 

Available School Fund..' 

- 

The following depastmental appropriation appears on 

pp. 922 and 923, Acts of 1953, 48th Leg,islature: 

"For the purpose provided by law, there are 

appropriated for the bienniun ending August 31, 

1945, to the State Board of Education all income 

to, and balance in, the Available School Fund 

and the State Textbook Fund, except as otherwise 

appropriated by this Lepislature, to be expended 

and distributed ig accordance vii@ the laws of 
Hon. Gee. Hi Sheppard, p; 9 

. 

this Sta,te, provided that textbooks may be purchased and rebound only from fuhds arising from 

the State ad valorem school tax." (Emphasis ours.) 

The Constitution is the supreme law of ourstate; 

regarding the subject matter of this opinion. Therefore, 

the State Board of Education ,must follow its provisions, as 

well as all statutory provisions not in conflict therewith; 

in expending and distributing the Available School Fund and 

the St.ate Textbook~Fund, which is a part thereof. See especially Article 2823, R. S; 1925, hereinabove referred to. 

For the reasons stat,-:d, the.question submitted in 

your communication is answered in the affirmative. 

Vsi-y truly yo&s 

ATTORNZY GENERAL OF TEXAS 

BY /s/ L., Hc Flewellen 

Assistant 

LRF:jcp:bbh 

APPROVED' JUL. 27, 1944 

/s/ Grover Sellers 

ATTORREY G,XXRAL OF TEXAS 

APPROVED OPINION COMMITTEE 

BY - G. V?. B., Chairmen