                                 June 1, 1949


Han, Ray Kirkpatrick,        Chairman
House Appropriations         Conunittee
51st Legislature
Austin, Texas                             Opinion No. V-839

                                          Re:   The necessity    for en-
                                                abling legislation   to
                                                make the 1% transfer : :.
                                                from the permanent
                                                school fund under Art.
                                                7, Sec. 5, Constitution.

Dear   Sir:

           Pursuant to the request of ,the House Appropriations
Committee    you have submitted to this office the following
questions:

                     “Has an enabling a,ct ever been passed
              concerning Article   VII. Section 5, Constitu-
              tion of Texas; if not, is one necessary   to
              transfer annually 1% of the permanent     school
              fund to the available school fund.

                      “Msy a transfer from the permanent
              school fund to the available school fund of
              1% be affected by a rider on a general ap-
              propriation  bill or would it require special
              legislation? ”

          Section 5 of Article      VU, Constitution     of Texas, insofar
as pertinent to the submitted       inquiries,  reads    as follows:

                     “The principal of all bonds and other
              funds, and the principal arising from the
              sale of the lands hereinbefore    set apart to
              said school fund, shall be the permanent
              school fund, and all the interest derivable
              therefrom   and the taxes herein authorized
              and levied shall be the available    school fund,
              to which the Leais~lature may add not exceed-
              inn one per cent annually of the total value
              of the permanent school fund. such value to
Hon. Ray Kirkpatrick,   Page   2. (V-83,9)




         be ascertained   by the Board of Education until
         otherwise provided by law, and the available
         school fund shall be applied annually to the sup-
         port of the public free schools. D 0n (Underscoie
         ours)

         The Texas Constitution of 1876 contained the above pro-
visions except those words underscored,     they were added by
adoption of a constitutional  ame~ndment. The amendment was
adopted at an election held in August, 1891, pursuant to Joint Res-
olution No. 19, 22nd Legislature,  R.S. page 195, Acts 1891. 10 Gam-
me1 Laws 197.

          Immediately    following the adoption of this Amendment,   the
22nd Legislature    in called session enacted H.B. 14 of Acts 1892, 1st
C.S., dh. 9, p. 8 (10 Gammel Laws 372), carrying into effect the
amendment to Article      VII, Section 5, transferring annually one per
cent of the permanent to the available school fund. This Act reads
in part as follows:

                “Section 1. Be it enacted by the Leg,is-
         lature of the State of Texas:    That one per cent
         of the full value of what is known, held and
         controlled by the State of Texas, as the per-
         manent school fund, shall be transferred       an-
         nually hereafter  to the credit of the available
         school fund of the state, as belonging to:it,
         and a part of the same, and which hencefor-
         ward shall constitute a part of the state’s
         available  school fund and to be used and ap-
         plied for the support, maintenance     and benefit
         of the public free schools of the state, as now
         or hereafter   may be provided by law.

                “Sec. 2. Be it further enacted:     It shall
         be the duty of the comptroller     and the state
         treasurer   to notify the state board of education
         of the amount to the credit of the permanent
         school fund on the first to the fifteenth day of
         July of each and every year.      The said statement
         shall show the amount invested, in bonds, the a-
         mount of outstanding land notes, and the amount
         of cash on hand to the credit of the permanent
         school fund. Upon the receipt of this information
         the state board of education shall estimate one
         per cent of the said permanent school fund and
         shall issue directions    to the said comptroller
         apd state treasurer    to transfer the one per cent
Hon. Ray Kirkpatrick,    Page 3. (V-839,)




          of the permanent fund thus~ found to, the
          credit of the available school fund.

                  “Sec. 3. Be it further enacted: That
          it shall be the duty of the state comptroller
         and state treasurer,     upon the receipt and
         delivery to them, by said board of education,
         of the showing and statement aforesaid,       as
         set forth in section 2 of this act, to transfer
         and place to the credit of the available     school
         fund of the state the amount found and ascer-
         tained by said board of education, as afore-
         said, and accruing from the one per cent of
         the value of the permanent school fund, and
         transferred     to the available school fund under
         section 1st of this act. Provided that no part
         of the value thereof, of the unsold public land
         belonging to said fund shall be included or
         considered     by the comptroller.and   state treas-
         urer in ascertaining     the amount to be trans-
         ferred from the permanent to the available
         free school fund.

                “Sec. 4. Be it further enacted:    That it
         shall be the duty of the state board of education
         and comptroller,   in the management   and invest-
         ment of the permanent school fund, to provide,
         reserve   and set apart in cash, annually, an
         amount sufficient of same to meet the one per
         cent annual transfer to the available fund.”

           These quoted provisions   were incorporated    by the 23rd
Legislature   in its comprehensive   enactment to provide for a more
efficient system of public free schools.     Section 9(a) through (d),
Acts 1893, Ch. l22, p. 182; 10 Gammel Laws 612, 615. That section
and its subdivisions   were codified in Chapter 7 of Title LXXXVI
of Revised Statutes, 1895, as Articles    3897 to 3901, inclusive.

          In 1905, however, the 29th Legislature    at its Regular Ses-
sion, enacted S.B. 218 (Acts 1905. Ch. 124,,p. 263), to provide for a
complete system of public free schools in Texas.        Section 179 of this
Act provided that “all provisions    of Chapter 7 . q 0 Title LXXXVI     of
R.S. 1895 and all amendments     thereto not herein specifically   reen-
acted are hereby repealed.   D .* Only Article 3897, R.S. 1895, was
reenacted in Se&ion 10 of the Acts 1905, which was subsequently        cod-
ified in Revised Statutes, 1911, as Article 2725, and reads as follows:

               “Besides  other available   school funds pro-
         vided by law. one-fourth  of all occupation taxes
         and one dollar poll tax levied and collected for
Hon. Ray Kirkpatrick,      Page   4 (V-839)




          the u6e of public free    school& exclurive     of
          the delinquencies.and     cost of collection,  the
          interest arising from any bonds or funds be-
          longing to the permanent achool fund;‘aqd all
          the intereat derivable from the proueeds of
          sales of land heretofore set apart for the
          permanent school fund, which have h&herto,
          or may hereafter,     come into the state treasury,
          all moneys arising from the lease of school
          lands, and such an amount of state tax, not to
          exceed twenty cents on the one hundred dollars
         -valuation of property,    as may be, from time
          to time, levied by the legislature.     shall con-
          stitute the available   school fund, which fund
          shall be apportioned annually to the several
          counties of this state, according to the scho-
          lastic population of each, for the support and
          maintenance of the public free schools.”

           Article 2725, R.S. 1911, is codified as Article  2823 in
R.C.S.,  1925, substantially  unchanged except that such Article
2725 read “not to exceed twenty cents on the one hundred dollars
valuation.. and not “thirty five cents,-   as provided in the 1925 re-
vision.   Except for the -thirty five cents” modification,   Article
2823, R.C.S. 1925 and V.C.S. presently      reads identical with the
enactment in S.B. 218, Acts 1905.

          From the above cited enactments,   it is apparent that
sfnce 1905 there has been no annual transfer   of one per cent of
the permanent to the available school fund by any Legislature,
as authorized by Section 5 of Article VII of the Constitution as
amended in 1891.

          The Available     School   Fund is commonly     appropriated
by the Legislature      each biennium fn its departmental      appropria-
tion bill,   For example,   the last such bill, S.B.    391 of Acts 50th
Legislature,    1947, Ch. 400, at p. 841, provided:

                 “For  the purpose provided by law, there
          ure appropriated   for the biennium ending August
          31, 1939, to the State Board of Education all in-
          come to, and balance in. the Available   School
          Fund and the State Textbook Fund, except as
          otherwtse appropriated by this Legislature, to
          be expended and distributed in accordance with
          the lawn of this State. . . .*

        If the Legirlaturo desires to transfer one per cent of the
permanent to the Available School Fund ao authorized by Section 5




   i
Hon. Ray Kirkpatrick,    Page   5 (V-839)




of Article VII, it may properly do so by general law (as did
the 22nd Legislature   in 1892). Such law could also contain
the procedure necessary     to effect the transfer.  A provision
in its departmental  appropriation    bill similar to that quoted
herein from S.B. 391, Acts 1947, will then appropriate the A-
vailable School Fund as so enlarged.

          Further,  it is our opinion that the transfer of one per
cent of the permanent school fund to the available       school fund,
if made, should be accomplished       by general legislation   rather
than by an appropriation    bill rider,   Tex. Const., Sec. 35, Art.
III; Moore v. Sheppard, 144 Tex. 537, 192 S.W.Zd 559 (1946).
Thus transferred   into the available school fund, it will, of
course, be subject to appropriation      as are other such funds.

                             SUMMARY

                 An enabling Act is necessary    to transfer
          annually one per cent of the permanent school
          fund to the available school fund authorized in
          Section 5 of Article VII, Constitution   of Texas,
          as amended.     This action was taken in H,B. 14
          of Acts 1892, 22nd Leg., 1st C.S., oh. 9. p. 8, but
          subsequently  repealed by Section 179 of S.B. 218,
          Acts 1905, 29th Leg.. R.S.. ch. 124, p. 263.

                 A general‘law   outlinidgj the procedure and
          prescribing   the duties of proper officials   in af-
          fecting the transfer   annually of one per cent of
          the permanent to the available    school fund would
          clearly constitute legal authority-to   affect the
          transfer.

                                            Yours     very truly,

                                ATTORNEYGENERALOFTEKAS


                                Byqf%z2k-;Pw
                                            Chester    E. Ollison
                                                                 Assistant

CEO:mw:   v




                                FIRST ASSISTANT
                                ATTORNEY    GENERAL
