         OFFICE    OF   THP:   ATTORNEY     GENERAL   OF   TEXAS
                                   AUSTIN




Honorable         8. A. 61888, DireCtOr
Textbook Dlvlrlon
Department         Of SducStiOn
hatin,       Texas

Dear 811'1




                                                           -    Help In dl8t.Fl-
                                                               textbooks.

                                                       21, 1940, request-
                                                      , the letter being


                                            ary 8tQ,tvo ques-
                                            you from this
                                           the wthorlty   of
                                          to rel&mrre   bond-
                                          textbook8 in looal
                                      or expenditure8 lnour-
                                cdn vlth the distrlbutlon
                               bOOk8 t0 pupils Of the pub-
                                  In your OpiniOD Ilo. o-1837,
                             al'y 16th End rddl’e88ed t0 the
                             f the Pertbook Dlvl8lon, both
                        e88 question8 were umvered    in the


                       ~Eovever, Upon prelrentatlon of oer-
                  fain ololnm from local bonded tertboolc
                  CiU8tOdlti8, vhlch inrOlve parlB8nt for
                  labor, the Comptroller rejeoted the paw-
                  mnt  of the alalms and returned them ~lth
Honorable   a.    A.   01a88   -   Page   2




            the letter Thlch 18 co led belov:             (Ciplee
            of clal~  are rttoched P

            *.   il. A. Glars, Director
             Textbook Division
             State Department of Edacstion
             h8tin,   tea8

                 Dear AU'. Gla88:

                     @*I am returrring the maoant  of BOP-
                 ner Frlzaell  In the amOunt of $29.33 and
                 the account of J. C. latoon in the amOunt
                 of $7.eo for the reason I believe they
                 are in violation of the iollovlng Fovla-
                 Ion oi the Departmental Bill plsklng aa
                 op~oprlatloa   for the Textbook Dlvl8lon
                 ThlCh prohibits the employing oi any ad-
                 ditlonal employee8 for your dlvlelonr

                             *It 1s f?wther worlded  that
                       the anmnte   to be expanded for
                       nev textbook8 and reblndlng shall
                       be a8 fixed by the State Board of
                       Educations provided, however, that
                       no employees, In addltlon to those
                       listed and lteadzed above, shall
                       be eEplopeO.*

                                          Very truly yours,

                         Signed;          George Ii. Sheppard
                                          Comptroller of' public
                                          Accounta
                  Breasler/g

                      8Slnce It ha8 long been the ourrtom of
                   this Dltl8lon to psy such claim,   and
                   8bV2.e fu&is are available for the payment
                   of current clalm8, this Dlvlslon feels
                   the need of further Interpretation of
                   this problem.   Se therefore respectiully
                   request your opinion on the f0110vlng
                   question*

                      81.   Does the rider to the General Ap
                   proprlatlon Bill tor the biennium ending
                   &lgU8t,31, ls(l, a8 quoted fn t&3 CODID-
tlonorabls Al. A.      Cl088 - Pa&e 3




                 troller'8 letter, Obviate the atathorlty
                 of the State Board of SduOatlon to pay
                 Out   Of th8 Textbook btld  811 nSOeS8ary
                 expenae8    In conneotlon with the distri-
                 butlw    of free textbooks?’

                 In the general form of yoaw question      a8   stated,
It     haa
       been ana~ered  in formar opinion lto. 3091, of date
liovenher T, lQSQ, addressed to the Honorable Ceor U.
Sheppard, and opinion lo. C-lSST1, dated January 16, 1940,
adJlret3sedto you, copies of vhlch opinions you have.

           QbviOU817,  the 8peclflC qtle8tiOIt71th vhich you
are Qormerned la vhetbtr or not the rider    quoted in KP.
Shoppard~s letter ha8 the efreat to forbid the State
Board of fklucatlon to pay out of the Textbook Fun3 Items
of reln&ursement for extra help to llv. Prlzaell aad hr.
Watson for 8emloe8    in a88i8tiXIg in the dlstrlbutlon Of
textbooks.    So that, TO ~111 amver your question a8 thus
reetated.

          The Comptroller ha8 docllaed to pep these bills
upon the grouwl.that the rider to the Appropriation Bill
puOi&d in his letter forbids such imfment.

           It 18 the opinion of this departinent the rider
;;;:,zgt  have the eifect attributed to It by the Comp-
           We conwend the Comptroller98 vigilance vlth
             l

r88pQCt t0 the paying Out of plbl1.o mney8,   but we hi8-
agree Tith hi8 con8tructlon of the rider.

           The language which has iippelled the Coieptrol-
 ler"8 action Is a yvovl80, as f0110~8:


                 8 + * 4 prodded,   hoTever,   that   no
                 employees, In aMltlon  to those
                 listed and iteaiiized
                                     above shall be
                 employed..


               The acoepted rule of oonstruetlon with respect
     t0 prOtisO8 18 thus stated by &i?. Sutherland 011 Statu-
     tory Constructions
Honorable   tl. A. Gla8a - Page 4




                 mThho natural and appropriate office
            of the prwieo being to reetraln           ok
            qualify so126 preceding mtter,          It should
            be CoDfinod t0 That J8WWie8 it llDb88
            It Clearly appear8       t8 have been intended
            to apply to 80~~ other matter. It Is to
            be COD8tNed      In oooll6atlon Tith the eec-
            tiOD Of vblch it fOrTI a part* and it 18
            8ubetaDtially LO exeaption.          If it be a
            pm180       t0 8 PWtiOUlW     8eOtiOll,   it doe8
            Dot apply t0 others UDle88        plainly interad-
            ed. It should be construed Tith refer-
            ence to the lmmedlately preceding part8
            Of the elau8e t0 Thich it 18 8ttaehed.
            In other Torde, the prWi80 will be 80
            restritted ID the abeonce of anything la
            it8 tel’ms,    Ol' the subject it deal8 Tith,
            erinclng a~ Intention to glre It a broad-
            er effect.4      e l

                 *Story, J., oaffl he Ta8 led to the
            general lule of 1aT which ha8 alvays pre-
            veiled and become oonseorated a8 alTio8t
            a xnaxlm in the interpretation of statu-
            tes, that vhen the enacting clause 18
            general in It8 language and objeatr, and
            a pWV180   18 afterward8 lDtmduce!a, that
            protlso 18 striotly construed, and take8
            DO Case out of the enacting clause which
            does not fall fully ~lthln it8 term6.m
             Sutherland on Statutory   Construefion
              223, p. 297)

              Applying this rule of COD8tNOtfOD     to the statute,
 the pm~i80     above quoted is applioable to the enactment con-
 tain&   ID the section of Thlch it is a part, to-wit, the erl-
 actment that *all awunta      to be expmded    for new textbook8
 ad rebinding     books shall be as fired by the State Board of
 &lucation.*      It Is In respect to these tro item that the
 prwiso forbids enployoes ID sddition to thO8e listed and
 ltamized in the Appropriation Aat. The prOvia has 8 very
 definite a?eani&z Then thus applied t0 that part Of the 8eQ-
 tlon imnecllately preceding it, that la, that no employee,
 fn addition to those 118ted a?rl itemized, should be emplg-
 ed Tith reapect     to the expense8 for DeT textbook8 and re-
 blndlng books; ID other words, that the handllng of there
 Items should be confided alone to 801~ of those employee8
 specially listed and itexkzed in the bill.
r   ’
        klonorablo L. A. GlP80 - Pago S




                   It could hardly be contemplated that the
        Act means that in DO WODt EX%y the Board engage em-
        ployeee,  other than thO8e listed a& Itemized, be-
        cause by item 26, under the hesd of gSalarlesv,
        there is epecially prOTided 'Seaeonal Eelpr   Clerl-
        oal, atenograpbic and labor, @OOO.OO.m lb18 itrelf
        18 express authority for the employment of clerleal,
        stenograyhlc and labor help beyond tho8e employee8
        liarted in item8 1 t0 26.

                    A&D,    it 18 our OpiDiOD those &k3r8OD8 ald-
        ing in the distribution of free textbooks and psia by
        &Jr. Prlssell and hr. 18t8OD, the custodians, are not
        employees ID the 8ense In vhlch that Tord      Is  ased In
        the proviso.     To think it 18 there ueed In the 8en8e
        of persons or employees vhose tenure of eenlce va8
        pernrnent rather than temporary, seaeonal, or.occas-
        lonal.    Ua are borne out in this C0DCl~610~ by the
        further rider declaring #all eaployees in the Tert-
        book Dlvisioa of the Gducatlon Dapartmontshall be
        appointed or removed by the State Superintendent of
        Public Instruction, 8UbjeCt to the approval of the
        State Board of 2ducation.v      This bears out the Idea
        that 8ooployeesv, within the meaning of the Act and
        of the prwi80, are such persons as those Those em-
        ployment Is for a given tenure, and in a sense per-
        wnent , rather than that occaslonal 8ervlce render-
        ed to Frizsell and Fafsonl      It is the fapdllar ejus-
        dam gmeris    rule of CODStNCtiOn.      Any other COD-
        struction of the Act vould a;akc It 1mposslble for
        the Board to employ a messenger to deliver a con-
         signzcint of books hovever 88811, and yet such sivd-
         lar and inc1deDtal expenses in connection Tith the
        di8tr1bUt1OD of tortbooks Is inevitable.        The Legls-
         lature never conterqlated that they were to be for-
        bidden.    Such a COD5trUCtiOn would not harawniae v1t.h
         the recoznisod 8~d declared policy of the State to
         furnish md Zstributo      toxtboolrs froe of further
         costs.

                  lioreover, the rules proscribed by the State
        Board of XuCatiOn   Or11 CODtrary t0 8UCh COD8tNOtiOn
        and lnrlicato the CODetNCtiOD   Te are giving the rider.
        Thcsc rules among other thiDgS provide for reislburse-
        pent for (1) extra help for a short time, (2) reaeon-
        able drayaga thargee, (3) freight or parcel post
        chargee.  ID at least tT0 of these Item8 the elenrent
        of personal eertlce enter8, and In all of them the rs-
Honorably   ii. d. Glass - Fcrge 8




ldmrecm.nt  is of expenseta Incurred in the distrl-
bution of Woe  text books.

           You are therefore advised In the opinion  of
this department the roimburoemant Items of Mr. Friz-
tell aml Ur. Watson should be paid out of the Taxt
Book Furd.


                                     Very truly yours

                                ATTORNCC!LG~NERATJ 03 TXXM




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