       TEE      ATTORNEY    GENERAL
                   0~ TEXAS




Hon. J. W. Edgar                  Opinion   No. V-1195-A
Commissioner   of Education
Texas Education Agency            Re:   Reconsideration    of holding
Austin, Texas                           in Att’y Gen. Op. V-1195
                                        (1951) that the Foundation
                                        School Program     Act does
                                        not authorize revision    of
                                        the economic index of a
                                        county during the four year
                                        index period to give effect
                                        to decline in economic ac-
                                        tivity.

Dear   Sir:

              We have given further consideration     to Opinion V-
1195 (1951) to the extent that it holds that the Foundation
School Program     Act (S.B. 116, 51s.t Leg., R.S. 1949, ch. 334,
p. 625. c~odified as Article 2922-11 et seq.. V.C..S,) does not
authorize   adjustment of the economic index of a county during
the four year period for which indices are computed in order
to give effect to ‘sudden marked decline in the economic ac-
tivity. m

              Reconsideration    was undertaken because of the very
able briefs and arguments      presented from certain counties as
to the inequities which would result to school districts     in coun-
ties which experience     sudden decline in economic activity after
computation of the four year county economic index.        It is ar-
gued that such a result was not intended by the Legislature.         A
strong presentation    has been made that the authors of Senate
Bill 116 and those who explained and supported the measure be-
fore the legislative  committees     understood and intended that a
county economic index could be adjusted during the four year
period.   This has caused us to search the history of the Act
and every available    evidence of what the Legisbture    intended
to do and what it actually did by insertion of the following para-
graph in Section 3 of Article VI of Senate Bill 116 (Art. 2922-16,
Sec. 3, V.C.S.):

             “The economic index determined     for each
       county for the purposes of this Act shall be used
Hon. J. W. Edgar,   page 2      (V-1195-A)




      for a period of four (4) years, beginning with
      the 1951-52 school year, and the State Commis-
      sioner of Education,    subject to the approval    of
      the State Board of Education,     shall recompute
      a new such economic index each four (4) years,
      taking such information     from the most recently
      available  official publications  and reports   of
      agencies of the State of Texas or the Federal
      Government.      Provided that should there be a
      sudden marked decline in the economic activity
      in a c~ounty. an adjustment of the county’s eco-
      nomic index may be made by the State Commis-
      sioner of Education,    subject to the approval of
      the State Board of Education.’

              Did the Legislature       intend by the last sentence of
the above-quoted      paragraph    to authorize reduction of a coun-
ty’s economic index due to sudden decline in economic activ-
ity after the calculation     of the four year index for all counties
and during such four year period?            Or, did the Legislature
intend, by the language finally used in this sentence, merely
to authorize consideration       of “sudden marked decline in the
economic activity’ from othsr s~ources than “+e most recent-
ly available   official publications     and reports’” of State and
Federal    agencies in arriving      at each four~year computation?

             Considering     al1 provisions    of the Act, we held in
Opinion V-1195 that the Legislature        intended that the economic
index be figured at regular      intervals   of four years; that the
percentage   of participation    of all counties was to total 100% at
all times; and that adjustments       because of “sudden marked
decline’in the economic activity’ could be made only at the
time of computing each four year economic index.

              We recognize   that corr@atations   and adjustments   no
more often than at four year intervals      may result in hardships
on counties which suffer decline in economic activity during
that period and that increase    in economic activity in the same
or other counties will not be given consideration       during the
fixed period.   However,   balancing the equities involved in this
problem is a matter for the Legislature.        Col-Tex   Refining Co.
v. Railroad   Commission    of Texas, 240 S.wT;zh747 (Tex. Sup.


              Upon further study, we find that the Legislature
 specifically  considered  a provision permitting    adjustment dur-
 ing the four year period and declined to adopt it. In fact, in the
 final draft of the Act the conference   c~ommittee struck the spe-
 cific words “during any four-year     index period-   from the last
.   .   ‘




            Hon. J. W. Edgar,     page   3   (V-1195-A)




            sentence of the paragraph    heretofore  quoted, and narrowed the
            caption of the bill to provide for revision of the economic in-
            dex “at regular intervals.’    This was approved and adopted
            by both Houses.

                         The history of this legislation   reveals that it is
            true that the original draft of the bill contained language
            authorizing  adjustment of a county’s economic index during the
            four year period.    Section 3 of Article VI of Senate Bill 116, as
            introduced and reported by the committee,       contained the follow-
            ing paragraph:

                         “The economic index determined        for each
                  county for the purposes   of this Act shall be used
                  for a period of four (4) years, and the Central Ed-
                  ucation Agency shall recompute     a new such econom-
                  ic index each four (4) years, taking such information
                  from the most recently available     official publica-
                  tions and reports  of agencies of the State of Texas or
                  the federal government.    Provided    that should there
                  be a sudden marked decline in the economic activity
                  in a county during any four (4) year index period,        an
                  adjustment m the county’s economic index may be
                  made by the Central Education Agency.”          (Emphasis
                  added throughout opinion.)

                          The Bill was amended in various respects     and passed
            by the Senate.    Senate Jour., 51st Leg., R.S. 1949, p0 256. The
            engrossed   bill contained the above paragraph   with slight re-
            vision of the last sentence thereof as follows:

                         ”
                          * 0 . Provided   that should there be a sudden
                  marked decline in the economic activity in a county
                  during any four-year   index period, an adjustment in
                  the county”s economic index may be made by the Cen-
                  tral Education Agency.”

                         The House passed the Bill with amendments       in which
            the Senate refused to concur, and a conference      committee was
            appointed.   Senate Jour., 51st Leg,, R.S. 1949, p. 905. The con-
            ference committee struck out the phrase      “during any four-year
            index period’ and substituted,the    words “the State Commission-
            er of Education,   subject to the approval of the State Board of
            Education” for the words “the Central Education Agency.”        Its
            report (Senate Jour., 51st Leg., R.S. 1949, p0 1272) contains the
            sentence in question at page 1284:

                         ‘1
                              . * * Provided that should there be a sudden
                   marked     decline in the economic activity in a county,
Hon.   J. W. Edgar,   page 4      (V-1195-A)




       an adjustment of the county’s economic index may
       be made by the Stats Commissioner     of Education,
       subject to the approval of the Stats Board of Ed-
       ucatlon.”

              At the same time, the conference   committee fixed
the economic index for the 1949-50 and 1950-51 school years,
listing each county and eac~h county’s percentage    of the total
participation  in local fund assignments.   The total of the in-
dividual county indices for these years was loos,     thereby
setting a pattern for future computations   by the Commissioner.

               Also, the conference    committee changed the general
wording of the caption relating to computation of economic in-
dices to a restricted      wording so as to provide for “an economic
index for the several counties of the State and for revision     there-
of, at regular    intervals.”

               The report of the conference  committee was adopted
by the   Senate on May 31,1949, by a vote of 24 yeas and 4 nays
and by   the House on June 1. 1949, by a vote of 110 yeas and 25
nays.    Senate Jour., 51st Leg., R.S. 1949, pp. 1272,129O; House
Jour.,   51st Leg., R.S. 1949, p- 3319.

             Thus, the facts and circumstances    existing prior to
and at the time of the adoption of Senate Bill 116 and the legisla-
tive history of the Act itself leave no doubt that the Legislature
intended that the economic indices computed for the several
counties be used for four years, as the Act plainly provides;
that adjustments   for “sudden marked decline in the economic
activity” be made only when new four year indices are computed;
and that the sum of the indices equal loo%/,.

              We held in Opinion    V-B95      (1951) that:

              “In view of the language of this proviso and
       that of the clause which precedes       it, and in the light
       of the purpose the Legislature       sought to accomplish
       by the adoption of the Act, we think that the effect
       of the proviso is to limit or qualify the other lan-
       guage of the Section so as to authorize the Commis-
       sioner to cons~ider information      with respect   to ‘a
       sudden marked decline in the economic activity in
       a county’ from reliable    sources other than “the
       most recently available     official publications    and re-
       ports of agencies of the State of Texas or the Fed-
       eral Government’ in recomputing         the new four year
       index, if the latest offic~ial publications    and reports
       do not reflect such information.*
.   .   .




            Hon,   J. W. Edgar,    page 5     (V-1195-A)




                          Further consideration   of the holding on this question
            in that opinion compels us to adhere to the position there ex-
            pressed  as the only view possible,   in the light of the whole tenor
            of the Act, which gives effect to all provisions    of the Act.   Any
            other interpretation  of the proviso would render nugatory clear
            mandates of the Legislature    that the indices be used for a period
            of four years and that the sum of the percentages       of the county
            indices total 100% during the entire four year period.

                          Some of the interested   parties have favored us with
            briefs in which it is urged that the economic index of one or
            several   counties may be adjusted at any time during the four
            year index period without adjusting the indices of the remaining
            counties of the State. We are not persuaded        that this may be
            done. If the Legislature    had so intended. it would not have struck
            from the bill the language “during any four-year         index period.”
            Elimination   of these words authorizing     an adjustment during the
            four year index period is a clear expression        of an intention on the
            part of the Legislature   not to permit revision     of the indices dur-
            ing the four year period for which computed.         The Legislature
            will not be presumed    to have done a useless     act. If it had in-
            tended to grant authority to adjust indices during the index period,
            it could have easily done so by adopting the proviso as written
            in the bill as introduced and engrossed.       This it did not do. In-
            stead, it struck the very words which it is now contended that we
            should construe into the proviso.     This we cannot do.

                         In holding that the proviso as finally adopted by the
            Legislature   merely qualifies or modifies the language preceding
            it “so as to authorize the Commissioner         to consider information
            with respect to ‘a sudden marked decline in the economic activ-
            ity in a county’ from other reliable     sources    other than ‘the most
            recently available   official publications   and reports of agencies
            of the State of Texas or the Federal       Government” in recomput-
            ing the new four year index, if the latest official publications
            and reports do not reflect such information,”         we were merely
            applying a time-honored      canon of statutory construction.

                            In 50 Am.   Jur, 258, Statutes,   Sec. 269, the rule   is
            stated:

                             ‘in construing statutes, qualifying words,
                      phrases,   and clauses are ordinarily    confined to the
                      last antecedent, or to the words and phrases immed-
                      iately preceding.    The last antecedent, within the
                      meaning of this rule, has been regarded       as the last
                      word which can be made an antecedent without im-
                      pairing the meaning of the sentence.      This rule of
                      statutory construction,   however,   is not controlling
                      or inflexible.   It may be rebutted by the circumstances.
Hon. J. W. Edgar,      page 6     (V-1195-A)




      Moreover,    the rule should not be applied without
      reference   to the meaninn of the statute when read
      as a whole; it prevails   where there is nothiig in
      the statute as a whole, or in the subject matter or
      dominant purpose of the statute, requirmg      a drffer-
      ,ent construction.  and is not annlicable  where a
      further extension or inclusion -is clearly   required
      by the intent and meaning of the context, or dis-
      closed by the entire act. , . -”

See also 24 Words and Phrases           (Perm.   Ed. 1940) 261; 59 C. J.
985, Statutes, Sec. 583.

              Further extens~ion of the proviso clearly is not re-
quired or justified by the intent and meaning of the context of
the Act. A legislative   intent to extend the proviso in question
so as to modify the statutory requirement      that the index shall
be used for four years is neither expressed      in the Act nor
reasonably   implied from its provisions.    Clearly,    an exten-
sion of the proviso so as to qualify the total percentage      of par-
ticipation and the total amount to be used annually in assigning
the amount of participation    by local school districts   is unauthor-
ized and unwarranted.

              We are further supported in our view that the indices
of the several   counties may be changed only at four year inter-
vals by the fact that any other interpretation  would bring the pro-
viso into conflict with the Constitution of Texas.

             Section    35 of Article    III of the Constitution   provides:

             “No bill, (except general appropriation     bills,
      which may embrace the various       subjects and accounts,
      for and on account of which moneys are appropriated)
      shall contain more than one subject, which shall be ex-
      pressed   in its title. But if any subject shall be embraced
      in an act, which shall not be expressed     in the title, such
      act shall be void only as to so much thereof, as shall not
      be so expressed.,,

             The only expression  in the title of Senate Bill         116 re-
lating to the economic index is as follows:

       ”
        . . . making provision   for financing the Foundation
      School Program,    including the amount to be charged
      annually to the local school districts   of ,the State,
      and the method by which each district shall be re-
      quired to pay its proportionate    part of such program,
      based upon financial ability of such districts;     provid-
Hon. J. W. Edgar,   page 7      (V-1195-A)




      ing in connection therewith, an economic index for
      the several counties of the State and for revision
      thereof, at regular’intervals;  . . .I,

              There is not a word in the title of the Act expressing
a purpose to authorize revision    of the index of a county at ir-
regular  intervals  or at any time during the four year index per-
iod, In Pickle v. Finley, 91 Tex. 484. 44 S.W. 480 (1898), opinion
by Chief Justice Gaines, it is said at page 481:

             “The members     of the legislature   are sworn to
      support the constitution, and the courts will not pre-
      sume that they have intended to violate it when the
      language of the law will reasonably      admit of another
      construction.  . . a,,

             This rule has been uniformly   recognized     and followed
by the courts ofthis  State, and we think ~tie interpretation    urged
upon us would clearly render the proviso unconstitutional.        In
Gulf Ins. Co. v, James, 143 Tex. 424, 185 S.W.2d 966 (1945). the
court said at pages 970, 971:

              “We recognize   the well-established     rule that
      liberal construction   will be indulged in order to
      hold that the title of an Act conforms to the require-
      ments of the Constitution.     39 Tex. Jur. 95. But the
      provision   of the Constitution requiring    the title to ex-
      press the subject of the Act cannot be entirely ignored.
      Cannon v. Hemphill,     7 Tex, 184. 208. The rule of liber-
      al construction   will not be followed to the extent that it
      will relieve the legislature   of the necessity of disclos-
      ing the real subject of the Act in the title thereof, nor
      will it be extended so as to hold Acts valid, the titles of
      which are deceptive or misleading        as to the real contents
      of the Acts.

               “The purpose of Section 35 of Article III of the
       Texas Constitution is to require that the bill shall
      advise bo# the Legislature      and the people of the
      nature of ,each particular   bill, such purpose being
      stated in Consolidated    Underwriters    v. Kirby Lumber
      -Co., Tex. Corn. App.. 267 S.W. 703. 705. as follows:
       ‘To advise the Legislature    and the people of the
      nature of each particular    bill, so as to prevent the
      insertion of obnoxious clauses which otherwise       might
      be ingrafted on it and become the law, and to obviate
       legislation  through the combination    upon a composite
      bill, of the votes of the proponents of different mea-
      sures included in it, some of which would not pass up-
      on their merits if separately     considered.’
Hon. J. W. Edgar,    page   8    (V-1195-A)




              “Other authorities    state the purpose of such
      a requirement     as follows:    ‘The purpose of the con-
      stitutional requirement     is to give notice through     the
      title of the bill, not only to members      of the legisla-
      ture, but to the citizens at large, of the subject-
      matter of the projected     law; and thereby prevent
      the surreptitious    passage of a law upon one, subject
      under the guise of a title which expresses         another.,
      Adams & Wickes v; San Angelo Water Works Co.,
      86 Tex. 485, 487, 25 SW. 605, 606. ‘But the title
      must be such as to reasonably        apprise the public
      of the interests   that are or may be affected by the
      statute. ’ Cooley, Constitutional      Limitations   (8th Ed.),
      Vol. 1. p, 300.    See also Giddings v. City of San An-
      tonio, 47 Tex. 548, 26 Am. Rep. 321.

              “We are of the opinion that the language used
      in the title of the Act in question is misleading  and
      that it is not sufficient to properly advise the Leg-
      islature and the public as to the subject of the Act.
      [Citing authorities.]

              ,“It is significant   in this connection that the
      bill as originally     introduced contained only the mat-
      ter set out in Section 1 of the Act, Vernon’s         Ann.
      Civ, St. art. 6687b, S 15, relating to the transfer        of
      the operator’s      and chauffeur’s    license fund. ,The
      caption to the Act was entirely appropriate          to cover
      that subject, but was not appropriate         to cover a
      transfer    of any other funds.      Thereafter,   some time
      on the last day of that session of the Legislature,         the
      bill was amended by a free conference            committee   to
      include the seventeen additional funds, as provided
      for in Section 2 of the Act, Vernon’s         Ann. Civ. St.
      Art. 4385a. But no material          change was made in the
      title to the bill when this amendment was added.            This
      created an ideal situation whereby the members             of
      the Legislature      might be misled by the title to the
      Act. *

             Under the decision in Gulf Ins. Co. v. James, supra,
we think the title of the Act is insuffrcrent to support a coni-
tion of the proviso authorizing   revision   of the index of a:single
county at any time other than at four year intervals.        We must,
and have, given the Act a reasonable      interpretation  in harmony
with the Constitution and one which gives effect to each of its
provisions.
Hon.   J. W. Edgar,   page   9     (V-1195 -A)




               As heretofore   pointed out, the Bill as originally
introduced contained the proviso in a form that would have
authorized    changing indices during the index period.       The
caption of the Act was cast in general terms “providing for
an economic index for counties,, appropriate        to cover the
object expressed     in the proviso in the body of the Bill as
originally   introduced.    The conference    committee changed
the proviso,    circumscribed    its effect, and changed the gen-
eral language of the title, fitting it to the proviso as amended.
If the Legislature    had thought that the proviso after amend-
ment had the same meaning as before amendment, it could
have had no purpose in amending the caption.          The fact is
that both the proviso and the portion of the title relating to
it were amended.       The purpose and effect of the amendments
was to deny authority to revise the indices in any respect
during the four year index period.

             Opinion V-1195 is affirmed.      This includes that
part of the opinion which was not reconsidered        here and which
held that the Commissioner,      with Board approval,     may recall
the index recently released    for the ensuing four year period
and recompute    the index if it is determined    that the prior re-
lease was premature     and that a recomputation     is necessary
in order to give due consideration     to -sudden marked decline
in the economic activity” of any county before the four year in-
dex becomes   final.


                                 SUMMARY

                The Foundation School Program         Act does
       not authorize     revision of the economic index of
        a county after final computation of the four year
        economic index for all counties of the State (af-
       firming holding in Att’y Gen. Op. V-1195).          This
       ,interpretation    is confirmed by the fact that the
        Act as originally     considered   by the Legislature
        provided for revision      “during any four-year     in-
        dex period,,, but these words were stricken from
        the Act in conference      committee and the caption
        of the Bill was narrowed       so as to provide that
        revisions    of the economic index were to be made
        “at regular    intervals.*    This action was approved
        by both Houses.

              The Commissioners,   with Board approval,
       may recall the index recently released    for the
       ensuing four year period and recompute the in-
       dex if it is determined that the prior release   was
                                                                       .   .   .




Hon. J. W. Edgar,   page 10     (V-1195-A)




       premature   and tBat a recomputation   is neces-
       sary in order to give due consideration    to “sud-
                        .
       den marked decllpe in the economic activity” of
       any county before the four year index becomes
       final.

                                      Yours     very truly,

                                       PRICE DANIEL
APPROVED:                             Attorney General

Charles  D. Mathews                                                I
First Assistant
                                       BY
Price Daniel                                 iA crett Hutchinson
Attorney General                             Exkcutive Assistant




EH:b
