       OFFICE   OF THE ATTORNEY        GENERAL   OF TEXAS
                              AUSTIN




iionorable RoYO~ R. &tkins,    Presideat
4at.0 BOaT.3Of Eduoatlon
,utstfn, Texas




                                   cation, at A reocnt :
                                    resolution   setting     .
                                       the .plaiR of the
                                      tuition of pupili%.
                                      nttetding the Athens


                       hue been furnished with data snd
                       ~hersimfter qusstiou propoudea
                              never been.snswerad by you
                               Dep3rtnent took the posi-
                             t!m province of the State
   Botlre of Zlucation only to ask tho question propoun&-
   ed; therefore nt the lust meeting above referred to,
   ths Stotc Board of Eduontion autho?Azed ne, as Prea- ~’
   i&Et Of thC str\tfJ Board Of 'cdUOE&iOn,t0 prOpCWRd ..
 . the question heretofore submitCed to-wit:,
         “‘Since the contrncdiog &.atri& bed
   * ConQlled with all requircmnts   for rc-
     wiving nid in this case, cauld the’ fail-
     US0 Oi' ~hcS0 b.V GfflChl3  to pcSfO?iu 8
     d.nisz~crlaL duty, wsausc of .m alloW
                                                                                    475




         erroneoue                   the law, de-
                          iutbrprettition      of
         prim      the oontraating        or the
                                            aietri0ta
         legal right which they had IMd8r the pro-
         visions of the rural aid lew, wimn the
         failure     to    perform     their   duty     was without
         ftiult,knowledge or consent of eith-r                   of
         the contrsoting parties?*

             “Let me suggest that yoa oarefully review
      the attached correrpondeutie in ordbr that you osu
      have before you all of the fabts and aircumstanae8
      surrounding this aituat1on.e


              We underrtmnd the raots to be that the Kalnut Creak
Comma School District No, 1C of Benderson County oontraotsd with
the Athena Independent Lohool Distr,fot,in whioh contraot It was
speed that all white and colored aoholartioe were tranrferred to
the Aobsns Independent liohool Distriat,  exoept those transferred to
another district   prior to August 1, 194E.
             The oontraoted           (sending)     dlstriot    agreed to pay monthly
to ths reoelving aohool:

             (a) All State and oounty available                  funds   ns
                    received;

              (b) All local          saintennnoe funds as
                  oollsoted.

               The receiving aahool agreed to furnlah aooredlted
sohool faailitiee     for a term of nine (9) month8 to all White and
colored aoholaetloe of the sending district,       end to oooperate wfth
the County Board in furnlrhing transportation faoifities        to all
it;,‘,‘; llv1ng more than two and one-halt miles rrom the reo8lving
            It we8 furtter  agreed tbat the receiving   school shall
colleo; additional tuition provided     in the Rural   Alb Law.

              The contract ma duly exeacltstl end filed la the QiilCe
of  the County Sur&rintendent   of libndoraon County on SUly 6, 1948,
but   was not approved  by the County Superintendent and was not for-
warded to kuetin for approval of the State Superintendent o? Publio
Instruct  ion. neither sohool blatriot was notified that thb oontraot
was not approved and the Superintendent OS the Athens sohoolr was of
the opioion that it had been approved until elementary tuition     aid                    k
was refuerfi the following summer.
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       f.                                             ,
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                                                ..,
               It is admitted that the pupils of the Vialnut Creek
 Jlstxfct wsre taught, la the Athew Independent School Dir;trlct
 rccoxding to the term of the contra&,        and the only question:
 ),, wheth:.r the failure of the ,County Superintendent aud the State
,,,exlnteudent to approve the contract operi+cs to “deprive the
 contracting districts     of their legal ri&htsnhich   they had under
 1~ provisions of the Rural Aid Law.-
      TV
               The budeet of Walnut Creek Distriat and all other re-
 &rem?tltS prerequisite for receioine State Aid were duly filed
vlth the State Superintendent prior .t.o Cotober 1, 1942.
                                                         \ .'
               The County Superintendent &a as a reason for not
;pprovin&   the contract that.'sho had a conversation over the tele-
phmo with an assistant in the State Superintendent’s office,         in
uhlch conversstioa she was told that ‘It viould bo best to secure
 individual transfers and not send in the oontract, and that this
rauld in no way lessen the amount of money that the Athens dj.s-
trlct would receive.       This~ ihforsation was given to the County~
Superintendent a few days prior to our Opinion No. O-5413, in
Whichopinion we held that Individual transfers do not come within
 the provisions   of. Section 2 of Article .8 of the Rural Aid J&v, be-
cause they are not contracted under ,the provisions thereof.
         1 8ala Seot&on 2, ‘Article 2’o?T said law in effeot       At tho
the the contract was executed- reads as f’ollowsf

              *ior the s&o01 years thereaft~er, up’on the
      agreement of the Roard of !l!ructees of the dlsttiicts
      concerned or on petition signed,bg a majority of the
      qualified voters of then district     and subject to the
      approval.of the oounty superintendent,      and the State
      Superintendent,. a district    which. may be unable to
      maintain ~a sutisfactory    school may transfer its entire
     .soholastic    enrollment for one year to an aocredited
      sohool of higher rank. 'If' the rticeiving school re-
      celves State Aid, the scholastic      ccusus rolls both
      white and oolorcd shall be combined, the per capita
      appoPtionmnt shall be paid direct to the receiving
      school, all local taxes of the sending contracting~
      district,    except those going tothe interest and sink-
      ine fund shall be credited to 4he receiving school by
      the Tux Collector as oollectctd,     and the, teacher-pupil
      quota shall beg based on tho coubined census total. ~Xf
      the rocoiving school is eat a State Aid school, the
      scholastio cenms rolls .both white aad colored shall
      bo oombined, the per capita apportiomeut         st:all bo paid
      direct to the recolv$.ng school, all local taxes of the               i

      seu$ng contracting district       except those going to the
                            liop..Rayall       H?. bo,t+ns,      pa&e 4
                                   :.
                              4...
                                                                  .
                                  lat&est,siid    sinkiu~ f&z? eh%ll be Omdittd to the
                                  r6celvir.g school by the Tax Colleotor as mllectca,
; ..                            . and the, sending oontrocting district    will be eligible
                                  for 58 I-,uoh.Selary AId as 1s necessary to supplsaont
: ..         .                    the Ctste Available end Loo51 ::uin$ag$xo9 Funds, cn
 .a.i                             the.-schol5sticsfrm     the ecud1r.g %istPict nttendiug
                                  8 school in tho rC;cePvIszgdistrict,    to oovez the ep-
                              )“ pl?OyGdoost 0r instmctioa      per scholsotlo  in the re-
                                  oeiviag eahool, provided .t!mt such app3+0veacost shall
                                  not eroeed Seven Dollarn ena FiSty Cent6 ($7.50) por
                                  moath for h&h sohool. student5 or Five. Dollsirs ($s.CO) .'
                                 .p6r fionth for elcmntory studcnto."

                                      It Ml1 bs ObSerQod thet ?ectlcn 2 OS Artio1.o 8 of tic;
        -.
                            Rural'Aid Lsc: in effedt 'et the tiae this contract wss executed
                            pravLde5 Tibet ssne atsl.l. be QlsubJcot to" the opprovol of the
                            County 3geriutenacnt    5nd the Stetc ?uparintenCent.
                                 .:   TheraSore; the question .preBented for our deter&no-.   c
                            tLon Is this:   Does the transfer or egreenent in question ke-
        .:       i
                            quire the apvrolsl of.the Countr ~~u3erintenden~ am3 the *t&e
                            FUD9rintchdint before either of the- contrmting distriotx
                           .Zilj$Eie S0.r sslery eid urkier Dectioc 2 of Art. 8 aforeseia?

                                    :.       In our'opilihion,    suoh,,approval ,is req.&o+
                                                                                               .
                                    '.
                                      -Iti the 6ase'of'HcCorkcl v. Distiict  Trustees, ttc.,
                           (civ. &.I      121 s. 3. (2) 1048, 1052, 5 sinIlar provieion con-
                           tolned ia e previous &ma3 Aid and ?.quolizoCion Fund~;Ipproprlo-
                           tion, WRSconsiaerea by..tha Ccurt., The following guototiono
                         . A-053 soid opinion ore enl&htcoing;:
                                          '?A160) in either c%se (elthor by agroa&ot       of
                                  tho ‘tl’UStG~0OS the district9       CoNWIIea or on siguea
                                  petition by n mjo?ity        of the quellfied voters),    we
                                  think the transScr is to be mae 'subjcot'ti,          J&
                                  apmovcll -e  OS tho County ~uwrinteaannt --   end YtEto 3wmr-
                                  int.endc9t.r . . The oi&?Lm ue do oxprsno I.0 that th6
                                  wZ5ttcr            OS scct.ion .17 (of Chop. ,474,Cen'l. ona
                                  ??peo. I,cws of 197, p. 1259).is.not        the authorizetion
                                  of controdts,     but of transfers to be made, not by the
                                  Courtty Tluperintmasrlt 53 in cssc OS other' transfers         .~
                                  .(Vernon’s    JimI.Civil ?tetutoa,    Art. 26961, but by the
                                  trunteco cf the 2istrict        (which.my .zlo umble. to n;aIu-
                                 .ta,in 0 aetisfectory     school),   b&r    t&c~Pcwin&q~
                                    -and conditl~nns     Dr0scd.bw-i."     mseis      Ouru,P

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                     .                                                .
         eon. Royal1 R.‘Watklns,      page 5        .
:
I                                         ~‘,
i          (, ,;.-j       ;_   .,

                                                                ..

                -      Certatnly, the Legislature had renson tor recuir-
        - lng the apjirooal of both County and State ~Up@r~nt6nCkIit6of
           all transfers to be effected under. the pro+fons        of ?ection 2
           of Apt. 8, supro. It must not be overlooked thvt transfers
          o$ cntire scholestic     ecrollmsnts,   allowed under this section,
          are only authorlzcd rbon pistrlcts       m unhbio to nointsin
                          sohoo~s, am? then only i’or 0110 yeFin     e%ch
                               the trustece of t&e proposed sending district
          &&&etermino        that It Is nnatle to, maintain a sat1sfaotory
                     ‘Iha County ana State tiuperLntsndcnts,or elthor of
          then, &ter investl@tion        and Bue consideration,   might ages
          or disagree s3.t.h Said conclusion.      If they agreed, th8ir aP-
          provsl-would be-given to the trsnstar.         Otherwise it would be
          iithhelb. It is olesr, thareforc,       that nuoh approve1 is not
          aio?ply a ministeriel    requiresent.    It is to be based upon
          dlsoret$on end juogment . It le a quosl-judicial        fuwtion.
          t’hen an ezecutive offioor,     in the ‘exeroise of NE functions,
          is roqtired to Pass upon roots anO to betsrm1ne his action by
          the rocts round, suoh is sometimes called a gU6bjUaichd
          ~tlmotlon. Ry. Co. v. Shamon,        100 Tox. 379, 100 Z. Gi;. 138;
          10 I,. R. A. (X.5.)    681. A130 300 Beldscchi v. Coo&et (Civ.
          ;\PP.). 145 s. w. 325, 328, (Error Refused) .’
                  The file submitted contrjlns a lcttor from the County
    ‘. S!upe&sndnat to tir. PI. B. gin&, AuOltor,    3teto Board’of Xduce
       ti0n;  bt6a AUK. 30,. 1343.  Tbe follovi@g paragrsgh is quoted
       thersircw
                      Tl!h’h’ero ~103 no lntontlon oft in UP   to Atbtins in
                any wep ana we wera assurea by     ----J-4
                                                       the .X&e Department
                that no injury would be dmo in chani&un&from fi dls-
                triet contr%cS to inaividusl       tr*nsPers.e
    .                This letter clearly intiicateo     that the procedure Pro-
         tided‘ for ‘in ?!oc. 2 of Art. 8. aforoonid    wno abandoned m d that
         individual transfers ‘YIere effected.
                   Also,  the coPy of the nOontraot’to Tronsfur Districts
         %ccdrding to Article   8 of the Equelizotion’Iew   For 1942-1$43”,
         contained in the fi.le subxitte4,  shOpiSno EP$WOVO~ t!lcr~~fby
         either tho County Zuperj.ntendc;nt ox the !Xetc~ Superintendent.




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                 Ke now oall attention to t% nature of H. B.
      2Sl,, Chap. 519, Aots Of the 47th LGgiShtUJ'e,    R. S. Itrj
    ’ baadine is “Appro,7ristion - Rural Aid To Publio !Zahool.n.*
      It is osseatlelly   a? appropriation bill.    Lpeo; 2 of Art. 8,
      $cpri3, is a oofcponent part t&roof.    It is elmentary that
      oonditioncr of sn.approprlatloa   bill atiat be conplied with
      before xconcys am ba paid out thereunder.      Nalthcr cm
      money be drawn tron tho Trcesury but in
      SJhif~C      EDDrOpri~tiO~S~D!-C&bJ      &.
      C~astitution      of Taras.

                   .Thhsol.roua&anoea surrounding tha quontlon sub-
      mitted ov3.deMly oooarrcd OS 8 result CZ nn erroncowin-
      terpqetstion    of law. Ehhile this is unfortunate end is to
      bo regrettad,    the law oannot be changed thereby.
                    Our opinion     in this    oonmotion   ia as above
      steted.        .
           .”
                                              Very truly youra :         .


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