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**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF,**  **TEXAS AUSTIN** 

Honorable Geo. H. Sheppard Cmptroller of Public Accounts Austin 11, Texas
Dear Sir: OpinionNo: 6105

Re: Authority of the State Board of Education to make supplenental apportionment ofAvailable 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 $25.00per capita appbW tionment a: fixed by the State Board of Education in its regularmeeting July 1943, therewill remain a balance in theAvailable School Fund as of August 31, 1944, of. approximately $6,000,000: The State Board of Education at its regularmeeting -Q J,uly1944 in considering the final distribution of this $6,000,000 in the Available School Fund adopted the following resolut:on:

::qtWr. Stevensonmoved that,.!subjectto a 

### -ruliq by the Attorney General that our.action is legal, we, the State Board ofEducation, hereby supplement the per capita apportionmentheretofore fixed for the school year 1943-1944, to the extent of $4.00per 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 ;iiththa following vote: (All "ayes11 except Senator Onealwho was present and not votin&'Hon. Geo. H. Sheppard, p. 2

"This resolution will in effactsnakea conplats distri‘

auti,oh

of theAvailable 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 thap<?,;~re? 'to:zai;~c

a supple;isntal

aI:;jortion:::ert

of theAvai.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-fourthof the revenue derived from the Sta%e Occupation taxes and poll tax of one dollar on everv inhabitantof 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 shallbe levied and collected an annual ad valore%State tax of such an amount not to exceed thirty-fivecents 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. . .' (Underscoringsupplied) "Section 5 ofArticle 7, State Constitution, provides inpart as follows: 11,:.

. and the Available: Schcol Fund shall be appliid'annually to tha Sul;$Ort of the publicHonorable 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 purposewhatever;,

. . . 1 (Underscoringsupplied) "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 departmentthat the 'quotationsin 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 5which providea that "the Available Sahool Fund shallbe applied annually to the support of the public .freeschools." (Emphasisours.)

The ver@ "apply" is variouslydefined in 'iirebster,"s New InternationalDictionary, 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~othepayment of ~~;o';;z;;i,~;l;;.;.;s to apply a debt. Article 2823,R. S. 1925, after definingwhat 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 "shallbe apportioned annually to the several counties of this State, according to the scholasticpopulation 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 Constitutionprovides that sufficient revenues shall be raised to maintain and support the. public schools of the state for a period of not lessEon. Geo. H. Shepyard, p. 4

than sixmonths in each yew (Article7, 8 3), and thatno 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 furtherprovided in the Constitution that the L+plislature shall provide for a State Board of Education,which shallpsforn such duties as -r,ay

be prescribedby law (Article7, 58).

"It is provided inArticle 2G65,R. S. 1925; 'TheState Board shall, on or before the first day of August in each year, ,basedon the estimate theretofore furnishad said Board by the Comptroller,make an ayportionnsnt for the ensuing scholasticyear 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 scholasticpopulation of each; and thereupon ths secretary shall certify to the treasurer of ejch such separate school organizationthe toal amount of available school fund so ap::ortioned to ear&x,

which certificate shallbe signed by the president, countersignedby the Comptroller and attested by the secretary.'" (%DhaSis ours.) See S::n,AntonioI: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 thatArticle 2665,R. 3. 1925, containedno formula in .qakingthee 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 formulawhereby 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 collectedeach year for State-and public free school purposes. In 1925, said Tax Board was directed to fix a rate, follo+:ing sa4d statutory formula, "thatwill yield and produce for such fiscal:year four dollars per capita for all the,childrenwithin 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.~theConstitutionalmaximum 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 themaximum per capita to be produced by said rate to be fixed by said Tax Boa,rd ha-s been,increasedby various amendmentsi The last amendment toArticle 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 schoolpurposes shall be set by said Board (StateTax Board) in excess of a rate required to produce sufficient fundswhen added to other available school funds would produce a total available school,fundfor. an apporti,onmentin excess of Twenty-five Dal-y. lars ($25), it being the intentionof 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 schoolpurposes., themaximum rate authorizedby the Constitution if necessary) to produce revenuewhen added to other available school revenue, shall be a sufficientamount to meet the apportionment,which shall not be in excess of Twenty-five Dollars ($25),and it is specificallyprovided that the rate shall never be greater than necessary to supplement otherHon. Geo. H. Sheppard, p. 6

available school funds to tionment of not exceeding ($25)per year."' guaranteean apporTwenty-fiveDollars

Also, Article 2665 has been amended by various Legislatures Sinct? 1925. By Acts of 1939, the 46th Legislature, p. 274,par. 1, amended saidArticle by providbg formulas tobe used by theState Board of Education in arrivingat the amount to be apportioned. These formulas have been carried forward in identicallaquage in the amendment of saidArticle 2665 by the 48th Legislature,. Chap. 161, p. 262, H. 9. 257. Said anendementraises the amountwhich the apportionment shallnever 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 operatingschools for a six-monthsperiod,

. . .when such apportionmentper pupil has been fixed, same shall be certified toby the Secretary of the Board and filedwith the AutomaticTax Board to be used bY the Tax Board in fixing the rate of State ad valorem taxes for school purposes thatwill provide sufficient funds to maintain the public schools of Texas for period of not lessthan six (6)months. Provided that the State Board ofEducation. in estimating the amount of money that it judges tobe necessary tomaatain the pub-. lit schools for a period of not less than six (6)months shall proceed as follows:

. . ., and this last sum so found shallbe 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 apportionmentshall never exceed Twenty-fiveDollars ($25) for any oneHon. Geo. H. Sheppard, p. 7

scholastic year.."' (Bmphasisours;)

A careful study ‘ofsaidArticles 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 amountnot exceading the ,?aximu? as providedby the LF;pislatuxe,; is a yardstick or standard for fixing th- state ad valorem school tax rate. Such ratemu,st5::"an amount not to exceed thirty-five cents on the ona hundred (,+%GG.GO) dollarsvaluation, as :.;ith the availab1.eschool 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 eachyear, . ; \I1 (Section 3, Art: 7, State Constitution;)

The apyortioment is based on an estimateby 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 deemednecessary 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 constructionwould be indirect conflictwith 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. clearlymeans, from the definitions h&&above quoted, This that said fundmust be appropriated or allotted annually. The Legistaturehas no constitutionalright towit,hholdany substantialpart.thereofduring 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 ArticleHon. Geo. H. ShaI:pard, p. 6

which has nev,ar

been repealed, clearly follov~s the Constitution, and cannotbe 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 unconstitutionaland void. On the other hand, it is entirely logical to construe, and we do construe, the pertinent provisions of said amended articles as intendingto provide a yardstick or standard to be used in the fixing of the State ad valorea school tax rate. Such constructiondoes not conflictwith 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 constitutionaland under the other of which itwould be invalid, the formermust prevail."T. J.~ Vol. 39, pp. 206-207.

Also, it is elementary that a statutewill be construed in such manner as tomake it effective, if it is fairly susceptibleof such interpretation. T. J. Vol. 39, p. 205.

It is clear, therefore, that theLegislature 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 followingdepastmental appropriationappears on pp. 922 and 923, Acts of 1953, 48th Leg,islature:

"For the purpose provided by law, there are appropriated for the bienniun endingAugust 31, 1945, to the State Board of Education all income to, and balance in, theAvailable School Fund and the State Textbook Fund, except as otherwise appropriatedby this Lepislature, to be expended and distributed ig accordancevii@ the laws ofHon. Gee. Hi Sheppard, p; 9

.
this Sta,te,

provided that textbooksmay be purchased and rebound only from fuhds arising from the State ad valorem school tax." (Emphasisours.)
The Constitution is the supreme law of ourstate; regarding the subjectmatter of **this** opinion. Therefore, the State Board of Education ,mustfollow its provisions, as well as all statutoryprovisionsnot in conflict therewith; in expending and distributing theAvailable School Fund and the St.ate

Textbook~Fund,which isa part thereof. See especiallyArticle 2823,R. S; 1925, hereinabovereferred to.

For the reasons stat,-:d, the.question submitted in your communication is answered in the affirmative. Vsi-ytruly 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