                                March      30.   1949


Hon. William L. Kerr, President
Board of Regents
State Teachers  Colleges
First National Bank Building
Midland, Texas                               Opinion No. V-798

                                             Re:   Availability of funds col-
                                                   lected through the tax lev-
                                                   ied under the College
                                                   Building Amendment     to
                                                   the Texas Constitution.

Dear     Mr.    Kerr:

               You request   the opinion   of the Attorney    General    as fol-
lows:

              “It has been announced that the litigation concern-
        ing the college building amendment has been brought
        to a close with the overruling of motions for rehearing
        in the Supreme Court.     Therefore,   it becomes import-
        ant that we of our Board know of our authority to obtain
        or pledge funds realized from the tax levy heretofore
        made.     During the pendency of litigation,  as we under-
        stand it, the authorized tax was levied for the benefit
        of our colleges and collection has been made from this
        levy.

             May we, therefore,      ask your       opinion and advise
        as follows:

              ‘1. Will the present collected funds (in proper pro-
        portionate part) be available to the State Teachers  Col-
        leges for authorized buildings,   even though bonds have
        not as yet been issued?

             “2.    May our Board of Regents request transfer of
        present    accumulated  funds from the treasury to the re-
        spective    colleges under our jurisdiction   to permit such
        funds to   be used for building construction?
                                                        ,

Hon. William     L. Kerr,   Page      2 (V-798)




          “3. If such a transfer of present funds from the
    treasury may not be permitted,     may the Board author-
    ize building construction,   payable out of funds already
    collected and presently held by the State Treasurer?”

            We quote the following       from     this Constitutional   Amend-
ment:
            u
                  there is hereby levied, . . . a State ad valo-
    rem tax’dn property of five cents (Se) . ,.,~. for the pur-
    pose of creating a special fund for the .purpose of ac-
    quiring, constructing,        and initially equipping buildings
    or other permanent improvements              at the designated in-
    stitutions of higher learning: and the governing board
    of each of such institutions        of higher learning is fully
    authorized to pledge all or any part of said funds allot-
    ted to such institutions       as hereinafter    provided, to se-
    cure bonds or notes issued for the purpose of acquiring,
    constructing     and initially equipping such -buildings or
    other permanent improvements              at said respective  in-
    stitutions.    Such bonds or notes shall be issued in such
    amount as may be determined by the governing boards
    of said respective       institutions,   shall bear interest not
    to exceed three (3%) per cent per annum and shall ma-
    tur.e serially    . . . .”

            This Amendment      further     provides:

           “Funds raised from said Five (5.C) Cents tax . . .
    are hereby allocated to the following institutions  of
    higher learning, and in the following proportions  to wit:
          ”
    . . .

            Section   17 concludes:

             “This amendment shall be self-enacting.      The State
        Comptroller   of Public Accounts   shall draw all neces-
        sary and proper warrants upon the State Treasury      in
        order to carry out the purposes of this amendment;       and
        the State Treasurer    shall pay warrants so i.ssued out of
        the special fund hereby created for said purpose.“’

          Assuming    for the purpose of this opinion that the funds now
on hand have been allocated, or credited to the respective    State Teach-
ers Colleges.  it is. clear that the Board of Regents has the authority
by the express terms of this Amendment to the Constitution,to       issue
Hon. William    L. Kerr,    Page 3 (V-798)




bonds or notes to be secured by a pledge of these funds.       The bonds
require the approval of the Attorney General, but the notes provided
for in Section 17 do not. Both the bonds and notes issued by the
University of Texas and A. and M. College require the approval of
the Attorney General.    This Constitutional   Amendment    clearly pre-
scribes the terms and conditions of the bonds and notes, and makes
no other provisions   for evidencing of liability against the fund ex-
cept by the issuance of bonds or notes.     Hence it is our conclusion
that this special fund may not be withdrawn from the State Treasury
except to pay principal and interest requirements      of bonds or notes
issued under Section 17.

          The issuance    of short-term  notes or bonds should serve
the purpose of facilitating the payment of obli.gations legally incurred
by the governing boards in the furtherance     of the purposes author-
ized by this Amendment.       You will observe that there is a maximum
date of maturity provided, but no minimum date. It would, there-
fore, be permissible    for the governing boards to issue short-term
bonds or notes.   Funds already collected and in the Treasury     may.
of course, be used for the payment of such bonds or notes.

            There is necessarily       involved in your request, though not
definitely presented,      the question of whether or not these funds are
subject to legislative      appropriation    as a prerequisite    to expenditure
by the colleges.      We deem it appropriate to answer that question
now. The answer is in the negative.            This Constitutional    Amend-
ment, by its express terms; is self-enacting            in all of its details.  It ’
specifically    levies the tax, designates      the use to which the fund cre-
ated by the tax levy shall be applied by the Board of Regents, and
directs the Comptroller        to tissue and the State Treasurer       to pay war-
rants drawn upon this special fund thus created.             An appropriation
in a constitutional     sense may be by legislative       act or constitutional
declaration.      This is of the latter class.      The effect of the explicit
directions    found in this Constitutional      Amendment,      now a part of the
organic law of this State, levying the tax. creating a special fund
from such levy, specifying the purposes for which it may be spent,
and directing the manner of its disbursement,             clearly remove this
special fund from the limitations         of Article VIII, Section 6 of the
Constitution     of this State, which provides:       “No money shall be drawn
from the treasury but in pursuance of specific appropriation               made
by law; nor shall any appropriation          of money be made for a longer
term than two years.”         City of Aransas     Pass v. Keeling,    112 Tex.
339, 247 S.W. 818; Braeos River Conservation               & R. District v. Mc-
t;;w,    126 Tex. 506, 91 S.W. (2d) 665: Dorsey v. Petrott,            12 A. (2d)
      .
240
      Hon. William   L. Kerr,   Page 4 (V-798)




                                    SUMMARY

               The accumulated     funds from taxes levied by virtue
          of Section 17 of Article    VII (the College Building Amend-
          ment) may be allocated by the Comptroller        to the re-
          spective colleges   entitled to receive the same in propor-
          tion to the formulas    provided in such constitutional   a-
          mendment for the payment of bonds or notes issued
          thereunder.    No legislative   appropriation of such funds
          is necessary   since the amendment is self-enacting.

                                                 Very   truly yours

                                     ATTORNEYGENERALOF                TEXAS




                                     BY



      LPL/mwb

                                     APPRO,VED




                                  v   IRST ASSISTANT
                                     ATTORNEY    GENERAL
