                                         The Attorney             General of Texas
                                                             August 20, 1982
MARK WHITE
Attorney General


                                        Mr. Kenneth H. Ashworth                 Opinion No. ~~-504
Supreme   Court Building                Coordinating Board
P. 0. BOX 12546
Austin, TX. 78711. 2546
                                        Texas College and University System     Re:     Whether    indeoendent
512/475-2501                            P. 0. Box 12788, Capitol Station        school district tax funds may
Telex    9101874-1367                   Austin, Texas   78711                   be used to support a junior
Telecopier     5121475-0266                                                     college district

                                        Dear Mr. Ashworth:
1607 Main St.. Suite 1400
Dallas, TX. 752014709
2141742-8944                                 You have inquired about the taxing and spending authority of an
                                        independent school district and have presented the following facts.
                                        An independent school district board of trustees is also the board of
4624 Alberta       Ave., Suite    160
El Paso, TX.       799052793
                                        trustees for a community college.   The community college was created
9151533-3484                            pursuant to section 130.011 of the Texas Education Code. However, the
                                        college has never been authorized to levy ad valorem taxes for
                                        maintenance  and operation   or to issue bonds.       See Educ.   Code
,220 Dallas Ave., Suite          202
                                        5130.122(b).  The college is funded through the appropriations act, by
Houston,     TX. 77002-6966
713/650-0666
                                        tuition, and by auxiliary enterprises.   On the basis of these facts,
                                        you have asked:

806 Broadway,        Suite 312                    Can th'e board of trustees of an independent school
Lubbock.     TX.    79401-3479
                                                  district which has created an independent school
6061747-5236
                                                  district junior college pursuant to chapter 130,
                                                  subchapter b, section 130.011, et seq., Texas
4309 N. Tenth, Suite S                            Education Code, set aside or utilize a portion of
McAllen,     TX. 76501-1665                       the independent school district's maintenance and
5121662.4547
                                                  operation funds derived from ad valorem taxation
                                                  for the support of the independent school district
200 Main Plaza. Suite 400                         junior college's operations?
San Antonio,  TX. 762052797
5121225-4191                                 Although the independent school district board of trustees may
                                        also be the board of trustees of the junior college district,
 A,, Equal     Opportunity1
                                        Education Code section 130.015, the board of trustees for each entity
 Affirmative     Action    Employer     has different duties pursuant to statute.    See Educ. Code $823.25 et
                                        *      (independent   school   districts),  130.084    (junior college
                                        districts).   Section 130.011(a) of the Education Code designates the
                                        type of independent school district which may establish a junior
                                        college district.     Section  130.011(b) provides   that any college
                                        district established pursuant to the chapter shall be known as a
                                        junior college district.   Thus, a junior college district comprises a
                                        separate legal entity from the independent       school district that




                                                                     p. 1816
Mr. Kenneth H. Ashworth - Page 2    (Mw-504)




created it. The legal relationship between the two entities implicit
in section    130.011 of the Education     Code  is relevant   to the
construction of section 20.48 of the Education Code, which pertains to
the expenditure of tax funds by school districts.    See also Attorney
General Opinions M-876 (1971) (taxing authority of a junior college
district is the same regardless of whether the board of trustees of
the junior college district is identical to the independent school
district board of trustees); M-851 (1971) (Houston Independent School
District  has option of selecting which procedure       to follow to
establish junior college district).

      Independent school district expenditures are limited by Education
Code section 20.48 (formerly article 2827, V.T.C.S.).     The court in
Madeley v. Trustees of Conroe Independent School District, 130 S.W.2d
929 (Tex. Civ. App. - Beaumont        1939, writ dism'd judgmt car.)
addressed the issue of independent school district funds, stating
that:

          Investing the trustees with power to levy and
          collect a local tax for the maintenance of the
          public free schools within their district, the law
          denies them the power to divert the fund to any
          other purpose, in so far as the fund is needed for
          the support and maintenance of the public free
          schools.

130 S.W.2d at 933.

     It is therefore our opinion that independent school district tax
funds may not be used to support a junior college district.

     It should also be noted that section 20.02 of the Education Code
authorizes independent school districts to levy, assess, and collect
ad valorem taxes for the schools of the district; by contrast, section
130.122(b) of the Education Code prohibits the levy of maintenance
taxes by junior college districts unless authorized by a majority of
the electors voting at an election held for that purpose.           If
independent school district tax funds are used for the benefit of the
junior college district, the purpose of section 130.122(b) would be
defeated.

                             SUMMARY

             The board of trustees of an independent school
          district may not set aside or utilize a portion of
          the independent school district's maintenance and
          operation funds derived from ad valorem taxation
          for the support of a junior college district




                                   p. 1817
Mr. Kenneth R. Ashworth - Page 3       (MW-504)




          created pursuant      to   section     130.011(a)   of   the
          Education Code.

                                         >%*




                                               MARK      WHITE
                                               Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Patricia Hinojosa
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Rick Gilpin
Patricia Hinojosa
Jim Moellinger




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