Honorable J. W. Edgar       Opinion No. WW-1112
Commissioner of Education
Austin, Texas               Re: Authority of the Legis-
                                lature to provide an oper-
                                ating fund for the Central
                                Education Agency in the
                                General Appropriation Act
                                and to have transferred
                                thereto monies in the Text-
Dear Mr. Edgar:                 book Fund.
     Your request for an opinion reads as follows:
    "Under the proposed and current draft of the
     Free Conference Appropriation Bill for the
     coming biennium there is a provision that
     the Central Education Agency may create a
     Operating Fund in the State Treasury and
     transfer funds for administration to such
     Operating Fund.
    "On July 3, 1961, the State Board of Educa-
     tion pursuant to Section 3 of Article VII,
     Constitution of Texas, and Articles 2867,
     2868 and 2869, V.C.S., set aside and allo-
     cated out of the State Available Fund for
     the next biennium $10,023,190 for textbooks
     and administration commonly referred to as
     the State Textbook Fund.
    "In the biennium beginning September 1, 1961,
     this Agency is contemplating the creati.onof
     an Operating Fund in the State Treasury and
     transferring to such Fund for State textbook
     administration such sums from the State Text-
     book Fund as shall be approved and directed
     for State textbook administration purposes
     by the State Board of Education.
    "In his letter dated July 19, 1961, the Of-
     fice of Comptroller of Public Accounts has
     advised, in substance, that such contem-
     plated transfer will be made if the Attorney
                                                                -   . .




Honorable J. W. Edgar, page 2 (WW-1112)


     General will express in an opinion that such
     a transfer legally can be made.
    "It will be appreciated if your office will
     render an opinion in this matter as will
     serve to authorize the Comptroller when di-
     rected to make a transfer to an Operating
     Fund for this Agency of State Textbook Funds
     for the State textbook administration."
     The Legislature has the authority to createoperating
findsas an efficient method of carrying out the purposes
I'orwhich special'funds are created. Attorney General's
Opinions W-554 (1959), W-557 (1959) and W-573 (1959).
     Section 3 of Article VII of the Constitution provides
in part as follows:
                 it shall be the duty of the State
     Board Af'E&cation to set aside a sufficient
     amount out of the saladta.&-;to
                                   provide free
     text books for the use of children attending
     the public free schools of this State; . . ."
      Article 2867, Vernon's Civil Statutes, provides as fol-
lows :
          "In order to carry out the provisions of
     this Act the State Board of Education shall
     annually at a meeting designated by them each
     year, set apart out of the available free
     school fund of the Stafe an amount sufficient
     to purchase and distribute the necessary school
     books for the use of the pupils of this State
     for the scholastic year ensuing."
     Article 2868, Vernon's Civil Statutes, provides as fol-
lows:
          "The State textbook fund of this State
     shall consist of the fund set aside by the
     State Board of Education from the available
     school fund as is provided for in this Act,
     together with all funds accruing from the
     sale of disused books and all'moneys derived
     from the purchase of books from boards of
Honorable J. W. Edgar, page 3 (WW-1112)


     school trustees by private individuals, by
     schools, or from any other source."
     Article 2869, Vernon's Civil Statutes, provides in part
as follows:
             . . Funds transferred in the text-
     book f;nd shall remain permanently in this
     fund until expended, and shall not lapse to
     the Siate at the close of the fiscal year.
     . . .
     The proposed creation of an operating fund in the State
Treasury and transferring to such fund for State textbook
administration purposes of such sums from the State Textbook
Fund as shall be approved and directed for State textbook
administration purposes by the State Board of Education is
carrying out the explicit provisions of Section 3 of Article
VII of the Constitution of Texas and Articles 2867, 2868 and
2869, Vernon's Civil Statutes, to-wit: that the State Text-
book Fund shall be used Iltoprovide free text books for the
use of children attending the public free schools of this
State."
     Attorney General's Opinion o-561 (1939) holds that Sec-
tion 3 of Article VII of the Constitution of Texas does not
confer upon the State Board of Education the power to control
the expenditure of the State Textbook Fund, rather the Legis-
lature has the authority and, therefore, the Textbook Fund
is subject to the provisions of the General Appropriation Act;
provide, of course, that it is expended for the purpose of
acquiring textbooks and paying all necessary costs relating
thereto in administering such Fund.
     It is our opinion that it is within the discretion of
the Legislature to determine the method of expending the State
Textbook Fund for the purpose of providing free textbooks.
The creation of an operating fund in the State Treasury and
transferring to such fund for State textbook administration
purposes sums from the State Textbook Fund constitutes a
method of carrying out the provisions of Section 3 of Article
VII of the Constitution of Texas. The creation of the oper-
ating fund is therefore a constitutional exercise of legis-
lative power.
     You are, therefore, advised that the Comptroller of Public
Accounts is authorized to make the transfers outlined in your
Honorable J. W. Edgar, page 4 (WW-1112)


request to an operating fund, provided .the
                                         . Legislature
                                            -
creates such operating fund by appropriate language In
the General Appropriation Act.


                          SUMMARY

            The Legislature is authorized to provide
            in the General Appropriation Act for the
            creation of an operating fund for the
            Central Education Agency and direct the
            Comptroller of Public Accounts to transfer
            to such operating fund for State textbook
            administration purposes such sums from the
            State Textbook Fund as shall be approved
            and directed for State textbook adminis-
            tration purposes by the State Board of Edu-
            cation.

                            Yours very truly,
                            WILL WILSON
                            Attorney General of Texas



                                John Reeves
JR:ms                           Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Ben M. Harrison
Sam Lane
Ralph R. Rash
I. Raymond Williams, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.
