Honorable C. Burtt Potter
County Attorney
San Patricia County
Sinton, Texas
Dear Sir:            Opinion No. O-4726
                     Re: Whether board of trustees of school
                          district may use local funds to com-
                          plete unfinished school building.
        We have received your letter of recent date in which
you enclose a letter from Mr. ?I. E. Waldrip, President of the
Board of Trustees of the Sinton Independent School District.
We quote the following from Mr. Waldrip's letter:
        "The Sinton Independent School District voted
    bonds to the extent of $20,000 for the purpose of
    constructing an elementary school building of
    materials of other than wood, and to equip the
    building. At the time the bond issue was voted
    the School District had a committal from the
    N Y A for assistance on the project.
       "The School D1.strictsapplication to the EYA
   was approved, but Congress failed to make an ap-
   propriat!on for the N Y A and for that reason the
   N Y A could not assist in the project.
        "The School District through the Board of
    Trustees attempted to carry out the wishes of the
    Tax Payers who authorized the bond issue by con-
    tracting for the construction of as nearly as pos-
    sible the complete building, but could only finish
    the exterior and make four class rooms tenable for
    classes.
        "The District has In the Local Fund $23,OOO.OO
    and the Trustees wlsh to use $5,000 of this fund
    in completing three more class rooms In the unfin-
    ished building. IS it lawful to use the $5,000
    for this purpose?"
        Article 2827, Revised Civil Statutes, provides the
purpose for which school funds may be expended. Section 2 of
Article 2827 provides as follows:
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Honorable C. Burtt Potter, page 2         O-4726


        "The public free school funds shall not be
    expended except for the following purposes:
        0. . . . . . .

        "2 . Local school funds from district taxes,
    tuition fees of pupils not entitled to free tui-
    tlon and other local sources may be used for the
    purposes enumerated for State and county funds
    and for purchasing appliances and supplies, for
    the payment of insurance premiums, janitors and
    other employes, for buying school sites, buying,
    building and repalring and renting school houses,
    and for other purposes necessary in the conduct
    of the public schools to be determined by the
    Board of Trustees, the accounts and vouchers for
    county distrkts to be approved by the county
    superintendent; provided, that when the State
    available school fund in any city or district is
    sufficient to maintain the schools thereof in any
    year for at least eight months, end leave a sur-
    plus, such surplus may be expended for the pur-
    poses mentioned herein."
        See also Article 2784, Revised Civil Statutes, which
sets forth the purposes for which the trustees of a school
district may levy taxes.
        We assume that $23,000 balance is money realized from
a tax levied for the maintenance of the school district.
Article 2784. We also assume that the $5,000 proposed to be
expended represents surplus moneys in the maintenance fund.
        In the case of Madeleg et al v. Trustees of Conroe
Independent School Distrkt et al 130 S. W. (2d) 929 (Writ of
Error dismissed, Judgment correctj, one of the questions passed
upon by the court was the authority of the trustees of the dis-
trict to use the surplus in the maintenance fund for erecting
and equlpplng school buildings. The court held that the local
tax levied and collected by the trustees of en independent
school district for the maintenance of the schools can be used
only for the purposes $f maintenance, "to the extent needed
for that purpose. . .     Articles 2784, 2827, supra. However,
the court made the following statement regarding the use of
surplus moneys In the maintenance fund:
        rr
         . . . . . . .
        II
         . . . . What shall the Trustees do with this
    surplus? It cannot be expended in the support and
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        Honorable     C. Burtt Potter,    page 3           O-4726


               maintenance of the public free schools,  for It
               is not needed for that purpose; It cannot be
               diverted from pub110 free school purposes, for
               under the Constitution  It was collected for that
               purpose.   It cannot be returned to the tax payers.
                     “Its allocation     to the malritenance fund was
               by leglslatlve      edict for the purpose of supporting
               and maintaining the public free school.          When that
               purpose has been effectuated,        the fund- la no longer
               subject to the control of the statutes,         for the
               purpose of the statutes has been fully effectuated:
               If and when the statutes cease to control the fund,
               then lt becomes a constltutlonal        fund and not a
               statutory    fund, and may be used by the trustees
               for the ccinstltutional      purposes; one of the.con-
               stltutional    purposes Is ‘the erection     and equlp-
               ment of ,,school buildings I within the district.
                  . . .     Article    VII, Section 3, Constitution    of
               iexas . Bee also Adams v. Miles, 300 3.W. 211,
               41 5. W. (26) 21.
                 In vlew of the foregoing  you are respectfully    advised
        that the fund collected   for the support and maintenance of the
,       public free school&to    the extent that it is needed for that~
        purpose may not be diverted to any other purpose.       Therefore,
        the maintenance fund to the extent that it 1s ~needed for that
        purpose may not be used for the erection    and equipping of
        school buildings.    However, the surplus In the maintenance
        fund, may be used for such purposes.    It follows that if the
        $5,000 proposed to be expended 13 a surplus in the maintenance
        fund, your question should be answered in the affirmative.
                                                   Very truly   yours
                                              ATTORNEY
                                                     OWWAL OF TEXAS

                                                   By s/Qeorge W. Sparks
                                                         Qeorge W. Sparks
                                                                Assistant

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        APPROVEDAW 13, 1942
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        ATTORNEYGENERALOF TECAB

        Approved Opinion Committee ~By s&WF Chairman
