                            August     28, 1951

Hon. Morris Rolston              Opinion   NO. v-1261
District  Attorney
7th Judicial   District          Re:    Authonity    of a county
Mt. Pleasant,   Texas                   school   board to use
                                        Stat0 transportation
                                        aid ‘funds for other
                                        school   purposes    and
Dear Sir:                               related   questions.

           We refer   to your request   concerning   the author-
ity of a county school    board to use State transportation
aid funds for other school     purposes  and related   penal law
questions.   You ask:

                   Is it a violation      of any penal law
      of Teks       either    while the.rural     aid bill
     ,(H. B. 245, Acts 50th Leg.,          1947, ch. 228,
      p. 401) was in effect         or since    the effective
      date of the Foundation         School Program (S.B.
      1.16,Acts 51st Leg., R. S. 1949, ch. 334, po
      625, codified       as Arts.. 2922-11 through 2922-
      22, V. C. S.),       for a county school       board to
      us* its State transportation           aid funds for
      school   purposes      other than transportatton
      purposes’for      which they were allocated         by
      the State?

                would a county superintendent
      since2the    effective     dates of House Bill      295
      and Senate Bill       116, supra, who executps       as
      secretary    of the county school        board a?d ap-
      proves a school       voucher as such superiptend-
      ent, which was signed by the president            of the
      county board, which transfers          money out of
      the county’s     s,chool transportation       fun@ to
      the administration        fund of a common so@001
      district  of his county,        be guilty    of aby
      penal offense?

               House Bill    295, Acts 50th Leg.,  sppra, was the
;!at;9;aualization        aid. law for the biennium ending August
            c) Article    V of that law authorized   transporta-
ti&     aid in certain     amounts and on certain   Conditions.
Hon, Mor19s     Rolston,      page 2 (V- 1261        )



Section  2 of Article    XIII allocated   $~,~~C,OOO.OO as
State transportation     aid for each year of the biennium.
The county was regarded      as the unit and the State war-
rant was made payable to the County Board Transporta-
tion Fund.    The County School Board was required       by that
law to distribute     the funds equitably   to districts   op-
erating  such transportation     system.

             Section       3 of Article     IX provided:

               “Any school which has received    any pay-
       ments of State Funds in excess of the amount
       to which it was legally     entitled  shall be in-
       eligible    for any type of aid under the provi-
       sions of this Act unless and until       the amount
       of excess     payments has been refunded    to the
       State Treasury.”

             Article     XV provided:

              “Hny district       violating      any of the pro-
      visions     of this Act shall         forfeit     all rights
      to such aid and shall be disqualified                    to re-
      ceive any aid of any nature under any Arti-
      cle of this Act for the current                 year.     Should
      any school      district,      which would otherwise            be
      eligible      to receive      aid, fail     to use the Funds
      for the exact purpose for which they were al-
      located     in the approved budget,             such school
      district     becomes ineligible          for further       aid
      until    such offense       is corrected.         The amount
      of money granted for each type of aid except
      tuition     shall   be set up as a separate              account
      and shall      be made only for the specified                pur-
      poses     for which such money was granted.                   It
      shall be unlawful         for any county school             su-
      perintendent       or the superintendent            of any com-
      mon or independent          school    district,       school
      teacher,     county trustee,        and/or district          trus-
      tee, or any other person to yse or promise to
      use, pay or promise to pay, any of the Funds
      herein appropriated          for the purpose of paying
      the salary and/or expense of any person or
      persons     to maintain a lobby for any purposeew
             This law made clear that State               aid allocated
for   transportation  legally  could be used              only for the
C     Han, Morris    Ralston,    page 3, (V-1261)



      exact purpose for which it was appropriated.                 Any school
      district   which failed     to use such funds for such purpose'
      was rendered    ineligible     for further      aid (tuition,     salary,
      or transportation)       under that act until         the offense    was
      corrscted.     Uncler this law the school          district   was made
      to suffer   the penalty     of ineligibility        for the wrongs
      committed by the local        school  officials       in misapplying
      such State funds.        Thus, the transfer        of transportation
      funds by the county board to some other school                fund un-
      der House Bill     295 did not subject        the officers     partici-
      pating in the transfer        to criminal     liability.

                  House Bill     295, su ra was supersedea        by the
      comprehensive    school    legis T-5-'
                                          at on of 1949, the Gilmer-
      Aiken laws, Senate Bills          115, 116, and 117, Acts 51st
      Leg. s R. S. 1949, chs. 299, 334, 335, PP~ 537, 625, 647.
      Under Senate Bill      11.6, codified     in Vernon's Civil   Stat-
      utes as Articles     2922-11 to 2922-22,       a minimum Founda-
      tion School Program is established           and made available
      to all school    districts      in Texas.

                  Part of the costs which enter into the deter-
/--
      mination   of the sum necessary        to operate    a Foundation
      Program in a school     district     is for transportation        of
      its scholastics,     Prior    to an amendment effective        May
      17, 1951 ( S. B, 90, Acts 52na Leg.,           1951, Oh. 198, p0
      325), Section    2 of Article     2922-15,   V. C. S. (S. B. 11.6,
      Art. V, Sec. 2), provided        with respect     thereto:

                   "The County Superintendents       .&a CouIity
           School Boards of the several       counties     .    .    a
           are hereby authorized       to annually   set up the
           most econpmical     system of transportation         pos-
           sible   for the purpose of transporting         pupils
           0    0   0  The countyshall    be regarded     as the
           unit and state warrants       for transportation
           shall be made payable to a County School Tran-
           sportation     Fund in each county for the total
           transportation     earned within   the county to the
           extent allowed     under the provisions      of this
           Act anQ which shall not exceed the total             ac-
           tual approved cost thereof,

                   *The total  annual transportation  cost
           allotment   for each district   shall be the les-
           ser of the following:

                  pa,  0 .   D fiuthorizes   allotments     of
           $31.50 per pupil for nine months'      transporta-
           tion of certain  public   school pupils    in most
Hon, Morris   Rolston,    page 4, (V-1261)



      counties,    graduating    to $6 .OO per      pupil   in
      designated    sparse   counties 3

             "b. The actual 'approved cost of trans-
      portation   operation   in the district,    such
      cost to include     bus payment reimbursements,
      bus driver   salaries,   and gasoline,   oil and
      repairs."

             In authorizing    transportation     allotments     based
on the.lesser     of these two amounts, it is apparent           that
the Legislature     intended   that these allotments        under Sen-
ate Bill    116 should be usea only for transportation            pur-
poses.    It was contemplated      that a county school       trans-
portation    funa should not receive      an allotment      in excess
of the amount necessary      for defraying      the actual    expenses
of transportation.       This intent    is made more certain       by
the following    provision   of Article     2922-21    (Art. XI of
s. B. 116):

                         Should any change or error           in
      @he P?&s        'forms     reports   or budgets re-
      sult   ia any'school'district        receiving     from
      the Foundation      School Fund more or less          than
      it would have been entitled          to receive     had
      said records     been correct,      the State Commis-.
      sioner   of Education      shall correct     such error,
      and so far as practicable          shall   adjust    the
      payment in such a manner that the amount to
      which such district        was oorrectly     eligible
      shall   be paid."

          In Section  2, subaivision   (f),           of Article   2922-
15 as amended by Senate Bill   90, supra,           it is specifically
provided, as follows:

            "0    0 0 All funds paid to the several
      transportation  units for the operation  of
      transportation  systems of the State shall  be
      expended for no other purpose.    o . oW

Thus, the intent     of Senate Bill  116 prior    to this amend-
ment is made clear by the incorporation        therein   of this
specific legislative     expression.

            But the penalty  provisions  in Senate Bill   116
are dissimilar   to those of the preceding   State equaliza-
tion law, House Bill    295, suPraO They do not render a
C    Hon. Morris     Rolston,    page 5, (v-1261)



     district   ineligible     for any or all State aid where a lo-
     cal school    official,     county or district,       violates     the
     purposes   of Senate Bill       116, such as using allocated
     State aid for school        purposes    other than those for which
     they were appropriated.          Its penalty     provisions     are ai-
     rected   at the parties      perpetrating      the wrong, rather       than
     to the beneficiary      local    school    systems.     The policy     of
     that law seems to be not to punish the school                districts
     for the wrongs of its agents.

                These penalty  provisions,           Article     XI of Senate
     Bill 116, are codified   as Article           2922-21,     V. C. S.,
     which provides  in part as follows:

                   "Section      1.    Any person who shall      con-
           fiscate,     misappropriate        or convert    moneys
           appropriated        to the Foundation       School Fund
           to carry out the purposes             of this Act after
           such moneys are received            by the school     dis-
           trict    or County Board of School Trustees              in
           accordance      with the terms hereof.          shall be
>-
           guilty    of a felony        and upon conviction      be
           punished by confinement            in the State Peni-
           tentiary     for any term of years not less than
           one (1) nor more than five              (5). Any person
           who shall      knowingly make any false          statement,
           or shall     falsify       or permit to be falsified,
           any record,       form, report      or budget required
           under this Act, or the rules              of the State of-
           ficials     charged with the enforcement            of this
           Act, in any attempt to defraud the State or
           its school      system as a result          2f such Act,
           shall    be guilty       of a felony,    and upon con-
           viction     shall    be punished by confinement          in
           the State,Penitentiary           for any term of years
           not less than one (1) nor more than five                 (5).
           0 . .

                  "Sec. 2.       Any person,     including     any coun-
           ty superintendent         or ex-officio      county super;
           intendent,     school     bus driver,     school    trustee,
           of any district         superintendent,      principal     or
           other administrative          personnel,     or teacher      of
           a school    district,       or its treasurer      or proper
           disbursing     officer,      who violates     any of the
           provisions     of this Act other than those to
Hon. Morris     Rolston,   page 6 (V-1261



        which
            _ . Section   1 of Article
                                   ._     _XI of this Act
        applies,    shall be guilty     of a misdemeanor
        and shall be fined not less         than One Hun-
        area ($100.00)     Dollars    nor more than One
        Thousand ($l,OOO.OO) Dollars.           . 0 0

               nProvidea further,    that if any person
        shall    knowingly submit incorrect     information
        to the Central Education      Agency in any sworn
        report    required  by this Act or by the rules
        of the Agency or the State Commissioner          of
        Education     for the honest administration      of
        this Act, such offenses      shall  constitute
        false    swearing and shall be punished aa
          re~scribed by law for that offense."
        'IEmphasis added.)
              Webster's New International     Dictionary      (2nd Ed.)
1938)    defines  mmisappropri8te'V  as follows:

              "To appropriate   wrongly or misapply
        in use, exp. wrongfully    and for oneself."

That same authority     defines    "convert"     to mean *to appro-
priate   dishonestly   or illegally,n        and defines  Vconver-
sion" as      *An appropriatibn      of,.and    dealing  with,  the
property    of another as if it were one's own, without
right;   . . ."

            The term~nmisapp~opriaten        as used in Section   1
of Article   2922-21,.we   think,     means to convert  or put to
one's   own use any of the F unaation School Funds allocated
and ~received by,school    dis t ricts   an& county school   boards
for the purposes    set out ih Senate Bill       116. Therefore,
any person who uses any of such funds for his own purposes
commits a felony,     and Section     1, supra, would have appli-
cation.

             But it any such transportation       funds are used
for a school    purpose other than one for which they were
appropriated    apa allocated,      the person or persons so vi-
olating   an expressed    provigion    of Senate Bill   116 in that
respect   would be subject     td prosecution    under the provis-
ions of Section    2, Article     2922-21,   and upon conviction
for the misdemeanor would be subject          to a fine of not less
than $100.00 nqr more than $l,OOO.OO
    Han, Morris        Rolston,    page 7 (v-1261)



                As previously     pointed    out, prior      to the amend-
    ment by Senate Bill     90, su ra       (effective      May 17, 1951),
    Senate Bill    116, supra, +-*ha no provision         which expressly
    prohibited    the use of transportation          funds for purposes
    other than operation      of transportation         systems.    But by
    Senate Bill    90, subdivision     (f) of Section        2, Article
    2922-15,   was amended to provide        specifically      that     ". D 0
    All funds paid to the several         transportation       units for
    the operation    of transportation       systems of the State
    shall be expended for no other purposer"

                   The policy   of our system of criminal    law is
    stated      in Article   7 of the Penal Code as follows:
                   I,e . e and no person shall be punished
             for an offense   which is not made penal by the
             plain import of the words of a law."

                 In Ratcliff       v.   State,, 106 Tex. Grim. 37, 289
    S. W, 1072, l-6)'                   the court quotes statements  from
    Black,   Interpretation        oi   Laws (18961, which appear to be
    applicable    here:

                     "It is not enough that the case may be
             within     the apparent reason and policy      of the
             legislation     upon the subject,   if the Legis-
             lature     has omitted to include   it within    the
             terms of its enactments,       'Nhat the Legisla-
             ture has, from inadvertence       or otherwise,
             omitted to include     within   the express   provi-
             sions of a penal law, reasonably        construed,
             the courts     cannot supply."

                   "To create  offenses  by mere construction
             is not only to entrap the unwary, but to en-
             danger the rights    of the citizen."

               And instate    v. Kingsbury       37 Tex. 159 (1872)
    the Supreme Court,    in affirming     a jidgment sustaining    eg-
    ceptions  to an indictment     for unlawfully    approving   an ac-
    count against  the county,     stated:
                     ItBy Article     1605, Paschal's    Digest,    it
             is declared       ethat no person shall be punish-
             ed for any act or omission          as a penal offense,
             unless     the same is expressly       defined,     and the
             penalties     affixed     by the written    law of the
C            State,'      There is no written       law of this State
             expressly     defining     the act of the County Court
             in unlawfully        approving  an account      against 'the
Hon. Morris       Rolston,    page    8 (V-1261)


        county,    as a penal      offense    e . .”

Article  1605 of Paschal’s     Digest  has been brought for-
ward into the present     Penal Code as Article    3, by which
it is deK@red   that “no person shall be punished for
any act of omission,,unless       the same is made a penal
offense,  and a penalty     is affixed  thereto by the written
law of this State.”

               While House Bill     295, supra, was in effect,
prosecutions       for false   swearing   under Article     310, V.P,
C     were available      then as now.     But for other viola-
 t&is    under House Bill      295   that bill   prescribed     the
drastic      penalty   of render&g    the entire   school    district
ineligible      for State aid.     Under Senate Bill      116, supra,
now in effect,        any person who violates     an express     pro-
vision     of that law is, by the express        provisions     of that
law, subject       to prosecution,

              Accordingly,       if a member or members of the
 county school      board or a county school             superintendent
by his or their several            acts diverts       moneys allocated
 to the county school         transportation        fund from the State
Foundation      School Fund to purposes           other than transpor-
tation,     subsequent     to the effective         date of Senate Bill
90, su ra       he or they are subject           to prosecution         under
Sect T% on    of Article      2922-21,     V, C. S. -for violation            of
an express      provision     of Senate Bill        lib,    supra.     But
since    there ,was no express         provision      in Senate Bill       116
prior    to the. amendment of Senate Bill              90 specifically
prohibiting,the        use of allocated        transportation         funds
for other school        purposes,      then there could be no crim-
inal liability       for such transfers,          for the reason that
the law as then written           did not expressly          prohibit     or
limit    the use of such funds for transportation                  purposes.
Since Senate Bill         116, prior      to amendment by Senate Bill
90,did not contain         the express      prohibition       inserted     by
that bill,      there could be no violation              of a transporta-
tion fund provision         ofthelaw       as it then existed          such as
would constitute        a crime under Section            2 of Article      2922-
21.

              With respect     to the second question,     it is for
the prosecutor       to determine,   of course,    whether the money
transferred      from the county transportation        fund to the
adminfstratige       fund of a common school     district   was law-
fully    transferred     to cover transportation     coats of that
district     or whether it was transferred       for unauthorized
and unlawful       purposes.
Hon. Morris     Rolston,       page   9 (V-1261)



                           SUMMARY

             Under House Bill    295, Acts 50th Leg.,
      1947, ch* 228, p, 401, or under Section            2,
      Article    V, Senate Bill    116, Acts 51st Leg.,
      R. S. 1949, ch. 334, p. 625, prior           to amend-
      ment in 1951, transfer       of transporation
      funds by a county school board to some other
      school    fund for purposes    other than trans-
      portation     did not subject    the officers    par-
      ticipating     in the transfer    to criminal    li-
      ability.

             Under Section     2 of Article    V, Senate
      Bill   116    su ra   (Art. 2922-15,     Sec. 2, subd,
      (f)    v. c-d?      as amended by Senate Bill        90,
      Act; 52nd Leg.:     R. S. 1951, ch. 198, p. 325
      (effective     May 17, 1951),   transfer     of traas-
      portation    funds by a county school        board to
      some other~~school     fund for purposes      other
      than transporation      would subject     the offi-
      cers participating       in the transfer     to crimi-
      nal liability.      Art. 2922-21,     Sec. 2, V. e.
      SO

APPROVED:                                          Yours     very   truly,

J. C. DavIB,     Jr,
CountvAffairs       Division                           PRICE DANIEL
                                                   Attorney  General
Everett   Hutchinson
Executive   Assistant
                                                   B;+ii+2hykJ
Price Daniel
Attorney General                                   Chester     E. Ollison
                                                                Assistant

CEO:mw:awo
