                                             OF TEXAS
                                       AUSTW.       T-s          78711
 aOHN     L     E1X.L
A-             o-Ax.

                                              January     27,   1975


        The Honorable    M. L. Brockette                               Opinion   No.   H-   507
        Commissioner     of Education
        Texas Education    Agency                                      Re: Whether    the Legislature
        201 East 11th Street                                           has the authority   to limit the
        Austin,  Texas   78701                                         amount available     to the State
                                                                       Board of Education     for use in
                                                                       providing  free text books for
                                                                       public school students.

        Dear    Commissioner       Brockette:

                 Your  opinion request     poles the question of whether  the Legislature
        is authorized   to limit the amount of funds that the State Board of Education
        can s’et abide out of the Available     School Fund for use in providing   free
        text books for public school students.        Texas Constitution,  article 7,
        section 3 creates    the Available    School Fund and provides:

                               .   .   . it shall
                                             be, the duty of the State Board of
                         Education   to set aside a sufficient    amount out of the
                         said tax to provide    free text books for the use of
                         children  attending   the public free’schools     of this
                         State; provided,    however,    that should the limit of
                         taxatiPn herein named be insufficient        the deficit
                         may be met by appropriation        from the general
                         funds of the State . . . .

        The procedure     to be followed  by the State Board in executing  their duty is
        more clearly    defined in section 12.02(d) and (e) of the Education    Code:

                              (d) The transfer  of funds set apart to the text-
                          book fund shall be determined    by the State Board of
                          Education  on the basis of a report of the commissioner




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The Honorable    M. L.   Brockette     page   2   (H-507)




                 of education   submitted     on July 1 of each year,
                 stating:

                      (1) the amount of the textbook        fund which
                 is then unexpended:   and

                      (2) his estimate    as to the funds necessary
                 for the purchase     and distribution   and other
                 necessary    expenses     of textbooks for the school
                 session   of the following     year.

                      (e) ‘On the basis of the information       furnished,  the
                 state board,shall    have the power to set apart from the
                 available   school fund the estimated       amount needed
                 with 25 percent additional,       this additional    sum to be
                 used to meet emergencies         or necessities     caused by
                 unusual increase     in scholastic    attendance    or by unusual
                 and unforeseen     expenses   and school conditions.

         In appropriation    acts other than the current   one the Legislature
has usually included in the State Board of Education’s       appropriations    for
each fiscal year an estimated      amount to be used by the Board in providing
free text books.      Since the amount appropriated    has been estimated     and
not limited    to a certain  sum,   the Board has been able to set aside for
expenditure     on text books an amount in excess    of that estimated    in the
appropriations     act without question  from the Comptroller.       The Comptroller
would honor all claims against the State Textbook        Fund up to the amount
actually   set aside by the Board.

         But in the current appropriations      act a new approach  was taken.
Rather than appropriate     an estimated   amount for use by the State Board
in providing   free text books,  the Legislature    allocated an exact sum to be
used for this purpose:

                 28. Other State Fund Allocations:
                 a.Available   School Fund, estimated           $330, 358,000   $343, 571, 000
                 b. State Textbook   Fund (excluding
                    cost of Agency   Administration
                    above)                                        26,119, 862     20, 268,006




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    Then Honorable     M. L.   Brockette         page   3   (H- 507)




                       c. General Revenue   Fund School
                          Program                                      3,888,OOO    4, 320,000
                       d. General Revenue   Fund Supple.-
                          mental Salary Aid                            5, 587,000

                          For the purposes     provided    by law there is appropriated
                      for the biennium ending August 31, 1975, to the State Board
                      of Education,   all income   to and balances     in the Available
                      School Fund and the State Textbook         Fund, except as other-
                      wise appropriated     by this Legislature,     to be expended
                      and distributed   in accordance    with the laws of this State.

    Acts    1973, 63rd Leg.,     R.S.,     ch.   659,   p. 2070.

     There can be no doubt that the Legislature’s     failure    to appropriate     an
    estimated  amount for text books was intentional        because in the Conference
    Committee   Report accompanying     the appropriations       act it is stated that
    the word “estimated”    was deleted from the appropriation         for text books
    in order to limit the amount of money available        for expenditure      on text
    books to a certain   sum.  Acts 1973, 63rd Leg.,        R. S., Conference
    Committee   Report   on House Bill 193, p. 2301.

              Because    of this new approach,        the Comproller      had indicated    that
    he would refuse      to honor any bill payable from the State Textbook              Fund
    if payment of the bill would cause          expenditures     to exceed the amount
    allocated    in the appropriations     act.    The Comptroller        had taken this
    position,even     though the State Board had determined            that the amount of
    funds allocated     by the Legislature      was insufficient,     had estimated      that a
    greater    amount is necesary,      and had entered into contracts           on the basis
    of its own estimates.        ‘Your question,     then, is whether      the Legislature
    has the authority      to limit the amount of the ‘Available         School Fund that
    can be expended       on text books in a particular       fiscal year to a certain
    sum or whether instead the State Board of Education                 is the final authority
    as .to what amount will be spent.

               This very question  was      considered  in Attorney General  Opinion
    O-561    (1939) which was written       by the Honorable   James P. Hart. After




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The Honorable        M. L.        Brockette   page   4   (H-507)




an extremely   thorough and well-researched     examination   of the history
and operation   of article 7, section 3 of the Texas Constitution,   the
opinion concluded:

                      With these general       principles     in mind, we believe
                 that it must be concluded         that it was not the intention
                 of Article    7, Section 3, as amended,          to remove     control
                 over the expenditure       of the textbook fund from the Legis-
                 lature,    and to place it in the hands of the State Board
                 of Education.      Under Section 8 of Article         7 of the Consti-
                 tution, as it was amended in 1928, and under the statutes
                 passed by the Legislature          in pursuance     of said amendment,
                 the Board of Education        is an administrative       Board,     . . .
                 It would be radical      departure     from recognized      principles
                 of our form of government           to place control    over
                 a large amount of public funds in the hands of such
                 an administrative        board, free from all control         by
                 the Legislature,      and it would further       be in direct
                 conflict   with the provisions       of Article   3, Section 44,
                 and Article     8, Section 6 of the Constitution,         quoted above.

                 .    .   .   I




                      In view of all of the considerations    discussed   above,
                 it is our opinion that the Legislature    retains   control,
                 over the expenditure     of the Textbook  Fund. , . .
                 Attorney    General Opinion O-561 at 17, 18, 21.

In our opinion the conclusion       reached in O-561 is sound and should not now
be altered.    Therefore     our answer     to your question   must be in the affirmative.
The Legislature    does have the authority        to limit the amount of funds that
the State Board of Education       can set aside out of the Available     School Fund
for use in providing     free text books for public school students.        Since for the
fiscal year ending August 31, 1975 the Legislature           appropriated  only
$20,268,006    for use in providing      free text books, no more than that amount
can be spent by the State Board of Education.




                                              p. 2288
The Honorable   M. L.   Brockette      page   5   (H-507)




                                    SUMMARY

                     The Legislature    has the authority  to limit the
                amount of funds that the State Board of Education
                can set aside out of the Available     School Fund for
                use in providing    free text books for public school
                students.


                                                   Very     truly     yours,




                                                   Attorney         General    of Texas




C. ROBERT   HEATH,      Chairman
Opinion Committee




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