Hon. Royal1 R. Watkins    Opinion Number O-5671
For State Board of Edu-   Re: Can the State Board of Education
cation of Texas           approve high school tuition   and trans-
1201 Main Street          portation  and the per capita payment
Dallas, Texas             of children taught by the receiving
                          school when the sending district    is
                          otherwise eligible   under the equali-
                          zation statutes,   and none of the grades
                          are taught in the home district?
                           And other questions concerning the ad-
Dear Sir:                  ministration of the Equalization Law.
          We acknowledge receipt   of your letter   of recent date,
in which you request our opinion   on the following   questions:
           “(1) Can the State Board of Education approve
     high school tuition  and transportation   and the per
     capita payment of children taught by the receiving
     school when the sending district    is otherwise eligi-
     ble under the equalization   statutes,  and none of
     the grades are taught in the home district?
           “(2)  Can the State Department of Education le-
     gally approve any transfers  for the 1942-43 scholas-
     tic year, at any time during 1943, and date such
     transfers  back prior to August 1, 1942?
            "(3)   In preparing the Budgets for the various
     schools,    can there be eliminated from the Budget of
     the sending district,     for the benefit of the receiv-
     ing school, the per capita on pupils not contracted
     nor transferred     and who are not eligible for High
     school tuition whose grades are not taught in the
     district    of residence but who are attending another
     school?
           “(4j May there be eliminated from the Budget
     of the sending district   the per capita and pro rata
     share of the local maintenance on pupils not con-
     tracted nor transferred   and who are not eligible  for
     High School tuition   for the reason that they are not
                                                      h




Ron. Royal1 ii.       iatkins,   page 2


         prepared to enter a High school grade and whose
         grades are not taught in the district of resi-
         dence but who are attending another school?
               “(5)   Under the Rural Hid Law for 1942-43 can a
         school district   be allowed to pay its own cost of
         instruction   for elementary tuition;  that is, allow-
         ing for each scholastic    their part of the per capita
         and their share of local. maintenance tax to be charg-
         ed into the Salary Aid Budget as expendj.tures?
               “(6)   Now, since the general law requires that the
         trustees   of a district    provides a school for all the
         children who live in their district          or pay the cost of
         teaching them in another district        where they do attend,
         and since the general law also provides that elemen-
         tary tuition   be paid in the same manner as high school
         tuition,   and since the Transportation        Aid provides for
         the transportation     of these elementary children whose
         grades are not taught at home even though they are not
         from contracted     districts     and since Salary Aid pro-
         vides for a supplement to the State Available and Local
         Maintenance Fund to pay the approved cost of instruc-
         tion on elementary children from the contracting           dis-
         tricts,  is there anything in the general law or the
         Rural Aid Law that will prohibit        a supplement from the
         Salary Aid Fund ‘to cover the approved cost of instruc-
         tion per scholastic      in the receiving     school’ for pupils
         who are not from a contracted       district    but whose grades
         are not taught in the home, or sending district?”
               We shall   attempt   to answer your questions    in numerical
order.
            1. Your first    inquiry pertains to three classes of
State school funds, and the allotment of each type of aid is
governed by statutory    provisions  not applicable  to either of
the others.    In consequence, we will consider the question as
having three parts, one relating     to each type of fund inquired
about, and will attempt to answer the questions accordingly.
             (a1 Per caoita auoorti m.         Under the laws govern-
ing distribution   of the available   school fund. the oer ca:jita
apportionment is distributed    to the district     in which the-child
is enumerated, usually his home dis,trict.       The statutes do pro-
vide, however, for the transfer     of the scholastic    to another
district   in the instances enumerated in the statutes.        kevised
Statutes,   Arts. 2695-2699, incl.;   Art. 2922L-1, Vernon’s Anno-
tated Civil Statutes.     Uhere the scholastic    is transferred    within
                                                  ,-.




9on. Royal R. Yatkins,    page 3


the time and in the manner prescribed       by l-ti,j, the per cai)Zta
apportionment follows him to the district        to which he is-so
transferred;    excepting the instances where the scho1astj.c j.s
transferred    in one of the modes prescribed     by statute,   the
per capita apportionment on such scholastic         is payable only
to the district    wherein he is enumerated.      Art. 2699, Revised
Statutes;    Love Vs. City of Dallas   40 9.P;. (2) 20. i4cCorkle
vs. Trustees of Robinson Springs fichool Xstrict          io. 76 of
Comanche County, (Tex.Civ.App.)     121 ;.z.   (2) 1048.

            (b)  Transoortation    ai . Transportation   aid allow-
able during the schoolyear       1942- 3 was governed by the provi-
sions of particle V .of Chapter 549, Acts 47th Legisiature.
Yhether transportation     aid could be paid upon a child attend-
ing school in a district      other than his home district    depended
upon:   (1) whether Ns grade was taught in his home district
(2) whether payment of transportation       aid is otherwise allowid
under Article   V (e.g.,,  transportation   aid ‘is not allowable
upon a child who resides within two and one-half miles of the
school he attends),     and (3) that need therefor    can be shown as
required by Article     V.
            (c) High school tuition.       High school tuition   is pay-
able out of the appropriation     made in Chapter 549, supra, in
accordance with the provisions     of titicle   IV. By that subdi-
vision of the equalization    aid appropriation    act, high school
tuition  “shall be paid according to the provisions       of this Act.”
House Bill No. 158 is listed     in Vernon’s Annotated Civil Stat-
utes as Article  2922~-1.
            Where a high school student, who has completed the
grades taught in his home district,    is transferred    to a high
school in another district    in his home county, in accordance
with Article   2922L-1, supra, his per capita money should be
transferred   to the school he attends, and is dedicated to pay-
ment of his tuition there so far as it will do so.         If he at-
tends school in a district    outside the county of his residence,
transfer   of his per capita funds is accomplished by payment of
the same by his home district    to the receiving   district.
             The additional    moneys which may be allowed as ‘high
school tuition upon high school students transferred         under Ar-
ticle   29225-l from their home district,     wherein their grades
are not taught, to a convenient district       maintaining a stand-
ardized or affiliated      high school   are governed by the limita-
;;;;;   ;f Article IV of Chapter 544 and the provisions       of Article
             3e doubt our ability    to state those conditions    more
plainiy’than    is done by the Legislature;    we therefore   refrain
Hon. Royal R. Katkins,      page 4


from attempting to do so, and respectfully refer you to those
statutory provisions as to questions not answered by the abo:e
discussion.
            2. The State Department of Education does not approve
transfers.    Transfers are made by the County Superintendent,
and Article   2696 provides that no transfers shall be made after
August 1.    See Opinion Number O-808, a copy of which is enclosed
herewith.

            3* The law provides a method by which a pupil whose
grades are not taught in his home district     to attend another
school.    This method is by transfer   or by contract.    In cases
where the pupil has not been transferred     in accordance with
Articles   2695 2696, 2697 and 2698, and no agreement has been
made with another district    as authorized by Section 2 Article
VIII    H. B. 284, Acts of the 47th Legislature,    Regulai Session
we find no law authorizing    anyone to eliminate from the budget’
of the sending district    for the benefit of the receiving    dis-
trict   the per capita on such pupils.
            4. Where pupils are not transferred    nor contracted we
find no law authorizing   the elimination   from the budget of the
sen&Lng district  the per capita and pro rata share of mainten-
ance of pupils who are not eligible     for high school tuition.
The Legislature  simply did not make any provision     for transfer-
ring funds unless and until the pupils are transferred      in one
of the methods provided.
            5. Ws held In our Opinion Number O-5413 that element-
ary tuition   is not allowable under Chapter 549, supra, except
in the one instance provided for in Section 2 of Article               VIII
where the entire scholastic       enrollment is transferred        as provid-
ed in that section.       True, the question there considered con-
cerned the payment of the money to the receiving            district;     and
the question here is, in effect,        whether elementary tuition         can
be paid by the sending district        to the receiving     district,     and
ipd se&ng     district    be reimbursed therefor     out of equalization
               Your question mst be answered negatively;              since
the Legisiature    has not allowed the payment of elementary tui-
tion directly    to the receiving    district,   it follows that the
payment of elementary tuition to the receiving           district     cannot
be accomplished by indirection        through payment of the amount
to the receiving     district   by the sending district      and reimburse-
ment of the sending district       out of equalization      aid funds for
the deficit   caused thereby.
            6.   We find   no law providing     for the “approved     cost
                                                     I




“   Hon.   Royal1 B. Watkins,   page 5


    of instruction”   for pupils who have not been transferred  and
    who are not from a contracted   sitrict, neither do we find
    any law authorizing   such a grant of Salary Aid, and therefore
    no such grant may be made.
               We have studied your questions carefully    and sympa-
    thetically   and it is with regret that we feel that we can not
    make a dif$erent    answer to your questions,  but, as stated in
    our Opinion Number O-5413, “the power to pass statutes and
    make appropriations    of public moneys is lodged in the Legisla-
    ture -- not in the Attorney General or the State Superintend-
    ent ***II.
                                      Very truly   yours


                                      By /s/ C. F. Gibson
                                      C. F. Gibson, Assistant
    APPROVED  i)sc 7, 1943
    /s/ Gerald C. Mann
    ATTORNEY  GjQItiti;i OF TEXAS

    This opinion   considered   and approved in limited    conference.
    CFG-s:wb
    Encl.
