             TIEEA~~~OIWEY                 GENERAL
                         OFTEXAS

GERALD C. MANN          AUSTIN   II. T-N




    Honorable Ralph Logan
    County Attorney
    Tom Green County
    San Angelo, Texas
    Dear Sir:               Opinion No. O-4573'
                            Re: Whether the San Angelo Indepei-dent
                                 School District has the authority
                                 to purchase a building site for
                                 the San Angelo JunlDr College out‘
                                 of the General Tax Funds levied for
                                'the maintenance of the San Angelo
                                 Public Schools, provided the 20%
                                 limit is not exceeded. And related
                                 questions.
            Your letter of April 29, 1942, requesting an opinion
     from thl~sdepartment has been received and carefully consid-
     ered. We quote from this letter:
           "An opinion has been requested of my office
        concerning the l.egalitgof the purchase of lad
        by the San Angelo Independent School District as
        a building site for the San Angelo Junior College.
        The San Angelo Junior College was organized and
        established in 1929, and has been maintained by
        the San Angelo Independent School Dlsti-ict since
        that time, under the provisions of Article 2815h,
        Vernon's Annotated Civil Statutes. Recently the
        space now occupied by the College has become in-
        adequate in the opinion of the trustees,,and the
        Boardspreceeded to purchase a site just outside
        of the city limits and the limits of;thy San
        Angelo Independent School District.
            Upon this statement of facts you have asked the two
     following questions:
           "1 . Has the San Angelo Independent School
        District the authority to purchase a building
        site for the San Angelo Junior College out of
        the general tax funds levled for the maintenance
        of the San Angelo Public Schools, provided the
        20% limit is not exceeded.?
Honorable Ralph Logan, page 2         o-4573


       "2. Assuming the trustees of the San Angelo
    Independent School District have the authority to
    purchase a building site, do the statutes contemplate
    the purchase of s site outside of the limits of
    the school district?"
       The administration and control of a junior college
established,and maintained by an Independent school district
is vested in the Board of Education of such district and such
Board has all of the powers given them under the terms of the
Act providing for the establishment and maintenance of Junior
Colleges by independent school districts~and also the duties
and rowers of the trustees of .snindependentschool district.
See Article 2815h, Section 4, Vernon's Annotated Texas Civil
Statutes.
       The Junior College District has power to issue bonds
forconstruction of buildings and purchase of srtes therefor
and~to levy necessary taxes to retire such bonds, and to levy
and collect taxes for support and maintenance of,the Junior
College. Article 2815h, Section 7, Vernon's Annotated Texas
Civil Statutes. This statute further provides for an elec-
tion authorizing the issuance of such bonds and levy of such
taxes.
       The statutes provide, however, that the Board of
Trustees of an independent school district may set aside 20%
of the taxes collected for the maintenance of a Junior College
created in said district without the necessity of an election,
provided that such district had beenusing such funds for
Junior College,purposes prior to October 1, 1936. See Article
2815h, Section 7a. Vernon's Annotated Texas Civil Statutes.
In view of the statement of facts given by you, we are assuming
that Artlcle,2815h, Section 7a is applicable to the 'San Angelo
Independent School District and the San Angelo Junior College.
       The above cited and related statutes regulating estab-
lishment and maintenance of Junior Colleges being silent upon
the exact question asked by you, we find it necessary to refer
to the general laws conferring powers on trustees of indepeti~-
ent school districts and decisions construing such laws.
       Article 2827, Section 2, Vernon's Annotated Texas Civil
'Statutes, reads In part as follows:
       !'Localschool funds from district taxes, tuition
    fees of pupils not entitled.to free tuition Andy
    other local sources may be used for the purposes
    enumerated for state and county funds and for pur-
    chasing appliances and,supplies, for the payment of
Honorable Ralph Logan, page 3        o-4573


   insurance premiums, janitors and other employees,
   for buying school sites, buying, building and
   repairing and renting school houses, and for other
   purposes necessary In the conduct of the public
   schools to be determined by the Board of Trustees,
   the accounts and vouchers for county districts to
   be approved by the county superintendent; provided,
   that when the State available school fund ln any
   city or district is sufficient to maintain the
   schools thereof In any year for at least eight
   months, and leave a surplus, such surplus may be
   expended for the purposes mentioned herein."
       Article 2784, Vernon's Annotated Texas Civil Statutes,
authorizes the trustees of an Independent school district to
levy-taxes and issue bonds, after an election for such pur-'
pose, to construct buildings and purchase sites therefor.
       Article 2749, Vernon's Annotated Texas~Civil Statutes
contains the following language:
       I,
            .   provided, that the trustees, In making
                .   .   .

    contracts with teachers, shall not create a aefi-
    ciency debt against the district."
       The case of Love~v. Rockwall Independent SchoolDis-
trict, Texas Civil Appeals, 194 S.W. 659, involveda~state of
facts in which an election had been held In a newly created
independent school district to determine,whether trustees
should levy and collect an annual tax not to exceed 50&on the
$100 valuation 'for the support and maintenance of public free
schools therein". After the election the trustees levied a
tax of 35# per $100 valuation for support and maintenance of
the schools anda tax of 15# per $100 valuation to pay out-
standing bonaea Indebtedness on bulldlrgs of common school
districts taken over by Independent school districts. The
court enjoined the collection of the tax holding that the 15#
tax for bonds on old buildings was not "support and malnten-
ante" as that term was used In the election. The court used
the following language in its opinion.
      "We have found in our r.eportsno opinions con-
   struing the term 'support and maintenance of the
   public free schools' as used at the election.
   ~'Maintain'and 'support' are synonymous and in a
   general sense mean 'to hold in an existing state or
   condition'. (Century dictionary) In our statutes
   relating to school taxes 'maintain' -isused in con-
   tradistinction to debts. Article 2857 Vernon's
   Sayles Civil Statutes. There it'is sald~that the
Honorable Ralph Logan, page 4        o-4573


    county school trustees may submit to the voters
    two questions. One beingwhether they shall levy
    and collect a special tax for the 'maintenance
    of schools' and another being whether they shall
    levy and collect a special tax for the purchase
    of site and the construction etc. of public free
    school buildings. In other jurisdictions it has
    been ruled that support used in reference to com-
    mon schools means continuing regular expenditures
    for the maintenance of said schools SO that a fund
    for the support of,sald schools cannot be used for
    purchasing a school site or constructing a build-
    ing thereon. Sheldon v. Purdy, 17 Washington,
    135, 49 Pac. 228; Roach v. Goodfng, 11 Idaho, 244,
    81.Pac. 642. If then a fund voted for the sup-
    port of the common school may not be used to pur-
    chase a site and build a school house, neither
    may such,a fund be used for the purpose of paying
    the debt owing therefor as in the case at bar.
    Such conclusion, te believe, to be sound in prin-
    ciple and reason.
       We believe that the answer'to your first question Is
controlled by the case of Madeley, et al. v. Trustees of Conroe
Independent School District, Texas Civil Appeals, 1 0 S.W.
(2d) 929 (writ of error dismissed--c,orrectjudgment7 i The
Conroe Independent School District had a.sufflcient surplus
in~its maintenance fund to operate the school for a year
without the levy of a maintenance tax. The trustees levied a
maintenance tax and contracted to erect needed buildings with
the surplus on hand. A taxpayer sued to enjoin the collection
of the tax and also to enjoin payment for construction of
buildings out of surplus maintenance funds. In affirming a
judgment of the trial court denying the lnjunctlon prayed for
the Court used the following language:
       "Construing Articles 2784 and 2827 in pari
    materia the local tax levied and collected by the
    trustees of an Independent school,district for
    the maintenance of the school,can be used only
    for the purposes of maintenance to the extent
    needed for that purpose, and the tax collected
    under Section 2 of Article 2784 can be used only
    to recall bonds voted for the erec~tionof a school
    building etc. to the extent that it is needed for
    that purpose. We think this conclusion on appli-
    cation of the rule of in pari materla has support
    in the holding of Love vs. Rockwall Independent
    School District, Texas Civil Appeals, 194 S.W.
    659, that the term 'maintenance' of schools does
.   -




        Honorable Ralph Logan, page 5         o-4573


            not include the cost of construction of school
            buildings.
               I,
                . . . . .
               "Its allocation to the maintenance fund was
            by legislative edict for the purpose of support-
            ing and maintaining the public free school.
            When that purpose has been effectuated the fund
            is no longer subject to the control of the sta-
            tutes for the purpose of the statutes has been
            fully effectuated. If and when the statutes
            cease to control the fund then it becomes a con-  -
            stitutional fund and not a statutory funa and
            may be used by the trustees for the constltutlon-
            al purpose; one of the-constltutlonal purposes ~ .~.
            is 'the erection and equipment of schoo~lbuild-
            ings' within the district. What we have said is
            in full recognition of the legal proposition that
            the fund collected for the support and mainten-
            ance of.the public free schools, to the extent
            that It is needed for that purpose cannot be
            diverted to any other purpose.
               Opinion No. 0-1387 of thisdepartment holds that an in-
        dependent school district may use any surplus fund in its
        local maintenance fund for the purpose of erecting a school
        building, and may Issue Its evidence of indebtedness in con-
        templation of current revenue; but whatever the form of said
        evidence of indebtedness the Board of Trustees Is not author-
        ized to create a deficiency debt against said fund for future
        years and the person advancing such money must look solely to
        the surplus funds accumulated for the year said obllgatlon was
        created and not to the revenue of subsequent years, the time
        for payment not being controlling. A copy of this opinion is
        attached hereto and we refer you to the authorities cited
        therein.
               In view of the foregoing, you are advised, in answer to
        your first question, that the San Angelo Independent School
        District has authority to purchase a building site for the San
        Angelo Junior College,out of the general tax funds levied for
        the maintenance of the schools of the San Angelo Independent
        S hoolDistrlct,~~provided the 20% limit allowed in Article
        2&5h, Section 7a is not exceeded, and provided further that
        such purchase Is made by use of surplus funds and a deficiency
        debt is not thereby created against the district.
               In considering your second question we direct your at-
        tention to the statutes heretofore set out, and In addition the
        following:
Honorable Ralph Logan, page 6        o-4573


       Article 2815h, Section 6, reads as follows:
       "The location of the Junior College within the
    Junior College District shall be determined by
    the Junior College Board, as provided for in Sec-
    tions herein. The Junior College Board shall make
    a selection of the location of the Junior College
    after Its establishment has been authorized as
    provided in this Act."
        The trustees of a school alstrict may exercise their
discret,ionand best judgment in the selection of a site for
a~ school building. Quoting from 37 Texas Jurisprudence, page
950 :
       "School trustees ordinarily have the exclusive
    control and management of school property and ex-
    clusive possesslon thereof in exercising this dls-
    cretion they may locate and construct district
    buildings upon such sites and In accordance with
    such plans and specificatlons~as in their judgment
    may seem proper. And In the absence of a .showing
    of corruption, fraud or bad faith their discretion
    will not be reviewed."
       In Davis vs. Hemphill, Texas Civil Appeals, 243 S.W.
691, it was held that the trustees of an Independent school
district in determining that a new school site should be
selected and In purchasing same Andyproviding for the erection
of a building thereon acted within their legal authority.
       Even though the trustees seem to be vested with wide
~discretion in the selection of a site for a school building,
we find no statute authorizing the trustee of either a com-
mon school district or an independent school district to pur-
chase land for a building site outside the school district.
The term "within the limits" of such districts Is used in
Article 280213,Section 2, providing for taxation for building
purposes in independent school districts including a large
city, and also in Article 2784, Section 2, authorizing trustees
of an independent school district to construct buildings.
Article 2802e, Section 1, Vernon's Annotated Texas Civil Stat-
uteswhich authorizes school districts to purchase buildings
and grounds for constructing gymnasia, stadia, or other re-
creational facilities provides for the purchase of such bulld-
ings or grounds "located withln or without the district or
city". Undoubtedly the Legislature realized that the best
site for the location of a stadium or similar recreational
facilities would probably be at a distance from the heavily
populated section of a city or school district and therefore
*   ..      .




         Honorable Ralph Logan, page 7          o-4573


         provlded in this statute for same being located within or
         without the district.
                Article 2815h, Section 6, heretofore set out, em-
         powers the Junior College Board.to determine the location of
         the Junior College within the Junior College District. We
         belleve that the wording of this statute excludes any infer-
         ence that the Board of Trustees has authority to purchase a
         site for a junior college~buildlng outside the school district.
         Your second question is therefore answered in the negative.
                Trusting that the foregoing fully   answers   your   In-.
         qulries, we are
                                         Yours very truly
                                       ATTORNRYGRRRRAL    OF TRXAS,


                                         By s/Cecil D. Redford
                                              CecI.1.D.,Redford
                                              Assistant
         'CDR:Sf:wc
         BlCl.




         APPROVED MAY 15;1942
         s/Gerald C. Mann
         ATTORNEYGENERAL OF TEXAS
         Approved,Opinion Committee By s/BWB Chairman
