           THE     ATIKBRNEY        GENERAL
                       OFI'EXAS




Honorable J. W. Edgar             Opinion No. M-   262
Commissioner of Education
Texas Education Agency            Re:   Whether the State Board
Austin, Texas                           of Education has the au-
                                        thority to make an adjust-
                                        ment in the economic index
                                        and/or local fund assign-
                                        ment of Hill County, and
Dear Dr. Edgar:                         related question.
       You have requested the opinion of this office regard-
ing the above matter and in this connection have provided us
with the following:
      "The 1968-69 /ETconomic7index determined for Hill
      County (.169)-reflectx a 13.4 percentage increase
      over its index for 1967-68.This results in an ap-
      proximate $39,000 increase in the local fund assign-
      ment to Bill County for 1968-69, which comprises
      twelve school districts. An estimated $6,000 of
      this increase in local fund assignment is attribut-
      able to the increase in the cost of the Foundation
      School Program from $154.8million in 1967-68 to
      $159.6 million for 1968-69. The remaining increase
      is quite probably attributable in large part to the
      location and operation of the Neuhoff Brothers Feed
      Lot in Hill County beginning 1962, and the inclusion
      of th,esales of its products
      farm operation) in the U.S.D:A!? ?&gld',%??l-
      Agriculture and its Statistical Reporting Service,
      Texas Crop and Livestock Reporting Service, for
      the years lg64, 1965, 1966--the most current federal
      and/or state statistics available.
       "Because of the unusual increase in its economic
       index for 1968-69 and further increases anticipated
       in 1969-70 occasioned in large part by such Neuhoff
       feeder operations, a brief (dated May 21, 1968) in




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Hon. J. W. Edgar, Page 2 (M- 262)


       the nature of a report and application was
       filed on behalf of the twelve school districts
       in Hill County asking me and the State Board
       of Education for relief; viz., an adjustment
       in their economic index. It sets out the
       reasons, grounds and reviews the laws and au-
       thorities submitted in support of the request.
       Transmitted herewith is a copy of that brief
       which is self-explanatcry.
       I, . . .

      "On motions duly made and voted, the State Board
      of Education has directed me, in connection there-
      with to submit and request an opinion from your
      office on the following questions:
       "1. Does the State:Board of Education (Texas Edu-
       cation Agency) have the authority to make an ad-
       justment in the economic index and/or local fund
       assignment of Hill County?
      "2 . In making an economic index adjustment or in
      computing an original index does the State Board
      of Education have the right to determine that a
      cattle feed lot is an industrial operation rather
      than agriculture, and accordingly direct an ad-
      justment by deletion of the income figured on
      the feed lot (as best it can be determined) from
      Agriculture income totals used in computing the
      index?"
       Section 3, Article 2922-16, Vernon's Civil Statutes, re-
quires the State Commissioner of Education to calculate an eco-
nomic index for all the counties in this State subject to the
approval of the State Board of Education.
       As we understand the facts, the Commissioner of Educa-
tion compiled the economic index, which was approved by the
State Board of Education in March of this year; and the School
Districts of Hill county have made an application to the Commis-
sioner and the Board for an adjustment of the index, alleging
that such index as to Hill County is inequitable and does not
accomplish the plan and purposes contemplated by Article 2922-16.
Your first question inquires as to the authority of the State
Board of Education to make an adjustment in the economic index
and/or local fund assignment oftHill County.


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Hoti.J. W. Edgar, Page 3 (M- 262)


       Under the facts, it is the opinion of this office that
until such time as State funds are distributed to the respec-
tive school districts In the State for the current year, the
Board has the authority to make such an adjustment. The ac-
tion heretofore taken with regard to the index is not final in
the sense that it cannot Abemodified or adjusteh by the Board
if the Board deems such modification or adjustment proper in
order to accomplish equity and to carr out the true legisla-
tive intent. 2 Am.Jur.2d 290, Sets. 463-484,Administrative
Law; 2 Am.Jur.2d 330,Sets. 522-523, Administrative Law;
Superior Oil Co. v. Board of Trustees of Magnolia Independent
School District, 410 S .W .2a-!?P4(Tex.Civ.App. lgbb, writ ref.
n.r.e.)
       In computing the economic index under Article 2922-16,
Section 3, the Board is confined to data taken from the most
recently available official publications and reports of Federal
and State agencies. Although being thusly confined, it is the
opinion of this office that the Board may consider an official
State or Federal publications or reports; and if the
                                                   -4 oard
deems it proper or necessary in considering the question of an
adjustment, it has the authority to arrange for and make avail-
able to itself other and further such cfficlal reports and
publications as it may deem necessary in order to properly and
wisely make Its decisions. This same principle is true with
regard to the compilation of economic indices in the future.
       In regard to your second question concerning whether you
might classify some of the business activities in a different
category, it is our opinion that a cattle feed’lot business may
not be,legally classified industrial rather than agricultural.
Webster’s Third New International Dictionary defines agriculture
as follows:
       “Agriculture:
       “l(a): The science or art of cultivating the
      .eoll, harvesting crops, and raising livestock,
       tillage, husbandry, farming.
       ” b): The sclence’or art oi the     production of
       p lents and animals useful to man   and In varying
       degrees,the preparation of these    products for
       man’s use and their dlspoeal (as    by.marketing).”
The Supreme Court of Kansas held in the case of Fields v. Anderson
                396 P.2d 276 (1964), that a cattle feed lot was
                nature ra ther than induetrial. We have been tan-
able to find any authority to the contrary.
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Hon. J. W. Edgar, Page 4 (M- 262)


                      SUMMARY
       Under the circumstances, the State Board of
       Education has the authority to make an ad-
       justment in the economic index and/or local
       fund assignment of Hill County before a dis-
       bursement of State Funds has been made. In
       compiling the economic index and In consider-
       ing future economic indices, the Board is con-
       fined to data from the most recently available
       official reports and publications of State and
       Federal agencies, but the Board may arrange for
       such other and further reports and publications
       as it may deem necessary.
       The Board does not have the authority to clas-
       sify a cattle feed lot as an industrial oper-
       ation rather than agricultural.

                                  truly yours,
                             vY


Prepared by Alfred
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerhs Taylor, Co-Chairman
Brock Jones
John Reeves
Ralph Rash
Roger Tyler
A. J. CARUBBI, JR.
Executive Assistant




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