                   August 24, 1949

Honorable Robert S. Calvert
Comptrollerof Public Accounts
Austin, Texas
Dear Sir:               opinion NO. V-894
                        Re: Validity of approptiliit-
                            tlon of funds In LB.
                            322, Acts 51st Leg.,
                            R.S., 1949, to the De-
                            partment of Education
                            and other agencies from
                            the Foundation School
                            Fund.
         'Your reque‘stfor an opinion relates to the
validity of the appropriationto the State Department
of Education and other agericlesfrom the Foundation
School Fund in the General DepartmentalAppropriation
Bill (House Bill 322, 51st Legislature). We quote
the questions submitted:
         "1. Is the appropriationof funds
    contained in the ffeneralDepartmentalAp-
    propriationBill (House Bill 322, slat
    Legislature)~tothe State Department of
    Education and other agencies from the
    Foundation School Fund valid in view of
    the provisions of Senate Bill No. 117,
    slat Legislature, creating said fund and
    the provisions of Senate Bill No. 116,
    51st Legislature,providing the manner
    in which money shall be expended from
    such fund?
         “2.  If you answer to the above
    question is in the negative, is such ap-
    propriationvalid a8 an appropriation
    from the General Revenue Fund?"
Hon. Robert S. Calvert, Page 2   (V-894)


          You state that you know of no 1itigatJon
or departmentalpolicy or rule bearing on the quea-
tions submltted.
          Section 1 of S.B. 117, Acts 51st Leg., R.S.,
1949, reads in part:
          "... there is hereby appropriated,
    -allocated,transferredand credited to
     a:speclal fund to be known as the Founda-
     tion School Fund such an amount as Is de-
     termined by the Foundation School Fund
    Budget Commlttee,which is hereby creat-
     ed...."
          The Foundation School Fund (from the Clear-
ance Fund) and the Foundation School Fund Budget Com-
mlttee,(StateCommissionerof Education, State Auditor
and State Comptrollerof Public Accounts) are created
by said Senate Bill 117 as appears from the portion
thereof quoted above.
          Section 1 of said Bill further provides the
purpose for which said funds shall be transferredand
credited to the Foundation School Fund:
          "... for the purpose of financing a
     Foundation School Program as defined in
     the Foundation School Program Act...."
         Article X of S.B. 116, Acts slat Leg., R.S.,
1949, (FoundationSchool Program Act) reads in part:
         "Warrantsfor all money expended ac-
    cording to the provisions of this Act shall
    be approved and transmittedto treasurers
    of depositoriesof school districts in the
    same manner as warrants for State appor-
    tionment are now transmitted."
          It will be noted that Section 1 of Senate
Bill 117 contains a similar provision:
         ",.. warrants for all money expend-
    ed from the Foundation School Fund shall
    be approved by the State Commissionerof
Hon. Robert S. Calvert, Page 3   (V-894)


     Education and transmittedby him to the
     treasurers of depositoriesof school dls-
     tricts to which grants are made in the
     same manner as warrants for State appor-
     tionment are now transmitted."
          We do not construe the provisions of~the
Acts to be a limitation upon the power of the Legls-
lature to make an appropriationfrom the Fund for the
support of administrativefunctions described in the
Gll.merAlkln~laws. The language merely describes the
procedure for payments which are authorized to the
school districts. The same Legislaturemade specific
appropriationsfor administrativepurposes from the
Foundation School Fund. Section 1 of H.B. 322, Acts
51st Leg., R.S., 1949, reads In part:
          n... there is hereby appropriated
:    for each of the fiscal years of,the bi-
     ennium ending August 31, 1951 ...$490.000
     to the State Department of Education from
     the Foundation School Fund, created by
     Senate Bill 117, Acts of the Regular Ses-
     sion, 51st Legislature,1949...."
          Subsection (34). Section 2 of H.B. 322, Acts
51st Leg., R.S., 1949, reads In part:
          "There is hereby specificallyappro-
     priated out of any moneys in the General
     Revenue Fund not otherwise appropriated,
     the amount necessary for each month if on
     a monthly basis, or each year If on a year-
     ly basis, of the biennium ending August 31,
     1951, to pay the full amounts contemplated
     and provided by Senate Bill No. 117 ...
     should there be Insufficientmoney ... to
     carry out in full the purposes and provl-
     slona of said Senate Bill No. 117....'
          The Intention of the Legislaturein enact-
ing Senate Bills 115, 116 and 117, and House Bill 322
is not entirely clear from the language of the indlvl-
dual Acts and thereforewe belltevethey should be taken
together and examined to arrive at the true meaning.
!Phestatutes relate to the same subject matter, and
may be considered to be in sari materia.
Hon. Robert S. Calvert, Page 4   (V-894)


          In 2 Sutherland Statutory Construction (3rd
Rd. 1943) 535, It Is aaid:
         "Statutesare consideredto be &
    pari materlq --~to pertain to the same
    subject mstter -- when they relate to
    the same person or thing; or to the same
    class of persons or things, or have the
    sams purpose or object."
          The rule that statutes In narl materia will
be considered together applies with peculiar force'to
Acts passed in the same Session of the Legislature.
39 Tex. Jur, 258, Statutes, Sec. 137, and cases there
cited.
          A fundamentalrule to be applied In the con-
struction of a statute Is to-ascertain the legislative
Intent, and when once afvzertalned,it Is the law. See
Anar. Inc. v. Texas Underwriters.et al., 129 S.W.2d
374 (Tex. Clv. App., 1939, error ref.).
          The language, *... all money expended ac-
cording to the provisions of this Act shall ...n in
Senate Bill 116, is not exclusive and does not prevent
the Legislaturefrom appropriatingmoney out of the
Fund by another Act at the same Session for admlnistra-
tion of the Foundation School Program. The appropria-
tion In House Bill 322 is therefore harmoniouswith
the provisions of Senate Bill 116. If the Legislature
intended this provision to be the same In both Acts,
the words, "accordingto the provisions of this Act,"
may be supplied in Senate Bill 11 . 2 Sutherland Stat-
utory Construction (3rd Rd., 19431 453; 39 Tex. Jur.
183, Statutes, Sec. 96, and cases there cited. We
think such was the intention of the Legislature.
          $here is no necessary conflict between the
language, ... for the purpose of financing a Founda-
tion School Program ... in Senate Bill 117, and the
appropriationbill, and such language Is not a limita-
tion upon the Legislature in allocating funds for or
appropriatingmoney from such Fund for administration
necessary to carry out the purpose of the Fund.
         Section 1 of Article I, Senate Bill 116 (the
Foundation School Program Act), reads in part:
Hon. Robert S. Calvert, Page 5   (V-894)


          I,
               It Is the purpose of this Act
               C,.

    to guarantee to each child OS school age
    in Texas the avallabllltyof a mlnlmum
    Foundation School Program for nine (9)
    full months of the year. and to establish
    the eligibilityrequire&r&s applicable
    to Texas public school districts in con-
    nection therewith."
          Section 2 of Article I, Senate Bill 115,
reads In part:
          "The Central Education Agency ahall
     exercise, under the Acts of the Leglsla-
     ture, general control of the system of
     public educationsat the State level...."
          This language of the Acts (SIB+ 115, 116,
117 and LB, 322) discloses interdependenceof purpose.
The Foundation School Program cannot become a reality
until activated by administrativeofficers and agencies
provided in Senate Bill 115 "for general control of the
System of Public Education at the State level." There-
fore, funds for salaries of administrativeofficers to
conduct the Program at the State level are as neces-
sary to the Program as are funds for payments to the
school districts.
          The program cannot function without admlnis-
tratlve supervisionand the expenditureof funds for
that purpose. Thus, the administrativecost of the Pro-
gram Is In reality a part of the Program Itself. AS
has already been pointed out, the Legislaturehas made
a specific appropriationfor that purpose In House Bill
322.
          House Bill 322 does not attempt to amend or
repeal any of the provisions of Senate Bills 115, 116
and 117. These Acts relate to the same general sub-
ject and should be considered together. If being SO
considered.thes can be harmonized and effect given to


hearing; Nell1 v.
sldered,'thereis no repugnancybetween tie prOvlsLons
of these statutes. They may stand together and effect
Hon. Robert S. Calvert, Page 6   (V-894)


may be given to the entire provisions of each In a+
cordance with the establishedrules of construction.
Brown v. Chancellor,61 Tex. 438 (1884).
          The Acts name two sources of State funds
for the Foundation School Fund -- transfer from the
Clearance Fund by the Comptroller In an amount de-
termined by the Foundation School Fund Budget Com-
mittee as necessary to finance the Foundation School
Program described in the Foundation School Program Act,
and transfer from the General Revenue Fund should there
be insufficientmoney in the Fund to carry out the pur-
poses expressed in Senate Bill 117.
          We think from an examinationof the Acts the
Legislature intended,by the enactment of Senate Bills
115 and 116, to create substantiallynew admlnlstra-
tive machinery for the conduct of the public free school
system of Texas and, by the appropriationin House Bill
322, to pay the cost of such system, including admlnls-
tratlon, from funds allocated to the Foundation School
Fund created by Senate Bill 117. It follows that the
Legislaturemust have intended to authorize the Comp-
troller to transfer money into the Fund to pay adminls-
tratlve expenses since It made an appropriationfor
that purpose from such Fund. To determine the legis-
lative intent to have been otherwisewould render the
legislativeaction Ineffectiveand useless, and it is
not presumed that the Legislature intended to do a use-
less thing. 39 Tex. Jur, 245, Statutes, Sec. 131, and
cases there cited. As pointed out In SouthwesternGas
and Electric Co, v.'State, 190 S W.2d 132 (T
 PP.9 1945, affd. 193 S,W.2d 6753, an Intent% E?io
a useless, Ineffectivething should never be ascribed
to the Legislaturein performanceof Its law enacting
functions. There is a presumptionagainst a construc-
tion which would render a statute ineffect~iveor in-
efficient or which would cause grave public in ury or
even inconvenience. Bird v. U.S., 187 U.S. 11$ (1902);
also see U.S. v. Powers, 307 U.S.214 (1939).
          The Legislaturehas the duty to 'I*..provide
by law for the compensationof all officers, servants,
agents, and public contractors,not provided for in
this Constitution...," Texas Const. Art. III, Sec. 44.
Therefore if House Bill 322 is a "law" and does not
violate other constitutionalrestrictionsand is not
Hon. Robert S. Calvert, Page 7   (V-894)


contrary to general law, it Is valid and should be
given effect.
          There Is a rule of law recognized in ,prevlous
opinions of this department that when by general atat-
ute a fund derived from a particular source %a devoted
to a certain purpose such fund may not be diverted by a
general appropriationbill to other and differentuaes,
Johnson v- Fernuson, 55 S.W.2d 153 (Tex. Civ. App.;
1932, error dlsm.1; Attorney General's Opinions Nos.
O-700 and V-412.
          We do not consider the appropriationfrom the
Foundation School Fund for the support and maintenance
of the State Department of Education and other agencies
named as appropriatingmoney to a use different from
that to which It is devoted under the terms of the Gilmer-
Alkln laws. The appropriationIn House Bill 322, it
will be seen, Is not contrary to the Gllmer-Alklnlaws
and Is harmonious with the Constitutionand laws of this
State and does not contravene the rule of law ~(thatan
appropriationbill may not operate~to alter or change
the eneral law) announced in State v. Steele, 57 Tex.
203 718821, and followed in opinions of this department.
Attorney GeneralIs Conference Opinions Nos. 1802, 2787,
2970, 2965 and Attorney General's Opinions'Nos. 1745,
O-700, O-1637, O-2573, and V-412.
          We conclude, therefore, that the approprla-
tlon which is the subject of your inquiry is valid as
an appropriationfrom the Foundation School Fund and
authorizesyou to transfer, in addition to the amount
determined and certified by the Foundation School Fund
Budget Committee, to the Foundation School Fund from
the Clearance Fund, or from the General Revenue Fund
should there be insufficientmoney in the Foundation
School Fund, for the purpose of paying salarles,.per
diem of Board Members, office supplies and equipment,
traveling expenses, and other necessary expenses, the
amounts set.forth in House Bill 322, Acts of the 51st
Legislature.
          The only part of House Bill 322 now before
us for considerationis that portion of Section 1 ap-
pearing at page 75, Senate and House Journal Supple-
ment, 51st Leg., R.S., dated June 29, 1949, making ap-
propriationsto the State Department of Education and
Hon. Robert S. Calvert, Fage 8     (V-894)


other agencies from the Foundation School Fund for
salaries, per,diem of Board Members, office supplies
and equipment, traveling expenses, and other neces-
sary expenses, and the provisions of Subsection (34)
of Section 2 thereof, appearing at page164, Senate
and House Journal Supplement,51at Leg., R.S., dated
June 29, 1949, as the same relates to the appropria-
tions contained in the Bill to the State Department~of
Education and other agencies for admlrilstratlvepur-
poses from the Foundation School Fund. We express no
opinion on the portions of the Bill not here involved.

                       SUWMARP
                                                -
             The provision in the General Depart-
        mental AppropriationBill making speclflc-
        appropriationsto the Department of Rduca-
        tlon and other agencies from the Foundation
        School Fund is In harmony with general law
        and the Constitutionof Texas and is a valid
        appropriation (construingthe effect of the
        provisions In H.B. 322, Acts 5lst Leg., R.S.,
        1949, upon S.B. 115, 116 and 117, Acts 51st
        Leg., R.S., 1949).
                                 Very truly yours
                           ATl!ORNEYGENEXALOF TJ3XAS

                           Bv
                           -Y


                                   Everett Hutchlnson
                                            Assistant
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