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       f                                c                             R-426
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                                              OPFlCE       OF



                                            AUSTIN.    TEXAS

           PRICE  DANIEL
           ATTORNEYGENm?AL                  May 17, 1947

                   Hon. George H. Sheppard        Opinion No. V-205
                   Comptroller of Public Accounts
                   Austin, Texas                  Re: State Available
                                                       School Fund, ap-
                                                       portionment of,
                                                       effect of H.B.
                                                       501, 50th Leg.,on.
                   Dear Sir:
                              We refer to your letter of recent date acknowl-
                    edged by the Attorney General on May 1, 1947, wherein
                    you request an opinion on the following questions:
                                  “1.  Does House Bill 301, Aots of the Regu-
                             lar Session, 50th Legislature, repeal or super-
                             sede that portion of Article 2665, as amenaea.
                             Acts Regular Session, 49th Legislature, p:e8arib-
                             ing the method for the State Board of Education
                             to use in figuring the amount of the annual per
                             capita apportionment for school purposes?
                                  =2.
                                    In the event your answer to question
                       ;:.No. 1 is yes, does the State Board of Education
                         have the authority under Paragraph 1~of Article
                        ,,2665to set the per capita a'pportionmentat $55
                         as fixed by House Bill 301, Acts Regular Sess-
                         ion, 50th Legislature, and is it required to so
                       ,.fix the per capita at $55 and certify said ap-
                         portionment to the various school districts of
                         the State as prescribed in Paragraph 1 of Arti-
                         cle 26651"
                              Acts 1947, 50th Leg., R. S., H. B. 301, ex-
                    cept for its title ana emergency clause, reads as fol-
                    lows:
                                  "Section 1. Amend Article XX of House Bill
                             NO. 8, Chapter 184, Acts of the Regular Session
                             of the Forty-seventh Legislature, as amended, by
                             adding thereto a new subsection to be numbered
                             (4-a) to read as follows:
Hon. George H. Sheppard - Page 2


          "'(4-a) After the above allocations and pay-
     ments have been made from such Clearance Fund, be-
     ginning with the fiscal year September 1, 1947,
     and annually thereafter, there is hereby appropri-
     ated, allocated, transferred, and credited to the
     Available State School Fund such a sum which when
     taken together with the total of all other statu-
     tory and constitutional amounts to accrue to the
     Available School Fund will equal to such a total
     as may be needed to pay a Fifty-five Dollar ($55)
     per capita apportionment for each and every scho-
     lastic on the State-approved school census for
     each year; and the Comptroller is hereby author-
     ized to determine the amount to be transferred
     from the Clearance Fund to the Available School
     Fund under the provision of this Act by taking in-
     to account his estimate of such other conetitu-
     tional and statutory amounts to accrue to the
     Available School Fund as made at the beginning of
     each fiscal year. Thereafter the Comptroller shall
     allocate, transfer, and credit monthly in equal
     monthly installments from the Clearance Fund to the
     Available State School Fund such amount as so de-
     termined. The Comptroller is hereby authorized,to
     modify from time to time during the fiscal year his
     estimates of the revenue to accrue to the State
     Available School Fund in any one year, and shall
     in the light of the revised estimate or estimates
    'increase, diminish, or suspend any remaining mon-
    ~thly payment or payments from the Clearance Fund
     to the Available School Fund, provided by the
     cl&e of each fiscal year there shall have been_,
     paid from the Clearance Fund to the Available$$@
     School Fund such an amount as may be needed to en-
     able the Available State School Fund to pay said
     Fifty-five Dollar ($55) per capita apportion!nent
     annually in full.'
          Vet. 2. Any law or parts of laws in conflict
     with the provisions of this Act are repealed to the
     extent of such conflict. If any clause,  sentence,
     paragraph, or section of this Act is declared in-
     valid or unconstitutional by any Court of competent
     jurisdiction, the remainder of this Act shall never-
     theless remain in full force and effect."
           Paragraph 1 of Art. 2665, V.C.S., as amended
by Acts 1945, 49th Legislature, Ch.SB,reads as follows:
.




    Hon. George H. Sheppard - Page 3


              "The State Board of Education shall, on
         or before the first day of August in each year,
         based on the estimate theretofore furnished
         said Board by the Comptroller, make an appor-
         tionment for the ensuing scholastic year of
         the available State School Funds among the sev-
         eral counties of the State and the several cit-
         ies and towns and school districts constituting
        .separate school organizations, according to the
         scholastic population of each, and thereupon
         the Secretary shall certify t,nthe treasurer of
         each such separate school (rganization the tot-
         al amount of available school funds so appor-
         tioned to each, which certificate shall be
         signed by the president and countersigned by
         the Comptroller and attested by the Secretary."
               Paragraphs 2 and 3 of Article 2665 provide a
     formula to be used by the State Board of Education where-
     by it shall estimate or determine the per capita appor-
     tionment needed to maintain the public school for ~a per-
     iod not less than six months. In accordance with Article
     7043, V.C.S., as amended by Acts 1945,49th Leg.,Ch.53,
     the Automatic Tax Board in arriving at a tax rate that
     shall be fixed for school purposes is required to set
     the rate so that it will yield the amount per student
     that has been previously fixed by the Board of Educa-
     tion, provided the rate so fixed for any year shall not
     exceed the rate fixed by law.
    ___   I,,8:~
               Thus, under the provisions of Articles 2665
     and 7043, as amended, it was the duty of the State Board
     of Education to determine the amount of the Available
     ScE;Q,"und to be apportioned in accordance with a fixed
              and the duty of the Automatic Tax Board to set
     a tax rite that would yield the per capita apportionment
     for each and every scholastic as estimated or determined
    .by the State Board of Education.
             .&der the specific provisions of B. B. 301,
    the Legislature has provided for an appropriation to the
    Available State School Fund of a sum which when taken
    together with the total of all other statutory or con-
    stitutional amounts to accrue to the Available Fund will
    equal to such a total 8s may b,eneeded to pay $55 per
    capita apportionment for each and every scholastic on
    the State-approved school census for each year. H.B. 301
    further provides that by the close of each fiscal year
    there shall have been paid to the State Available School
.       .




            Hon. George H. Sheppard - Page 4


            Fund an amount as may be needed to enable the Available
            ;;h;;;lFund to pay $55 per capita apportionment annually
                   .

    .
                      Thus, the Legislature itself has fixed the per
            capita apportionment to be paid for each and every scho-
            lastic at $55.00 and has thereby relieved the State Board
            of Education of its previous duty under Article 2665, as
            amended, to determine or estimate what the per capita ap-
            portionment should be. Furthermore, perforce the provis-
            ions of H.B. 301, the Automatic Tax Board must now look
            to the sum fixed by the Legislature ($55 per capita) and
            to the Comptroller for the information needed in its de-
            termination of a tax rate that shall be fixed for State
            Available School Fund purposes. (See Opinion No.V-204
            for details of procedure to be followed).
                       Clearly, paragraphs 2 and 3 of Article 2665,
            ~'asamended, and that portion of Article 7043, as amended,
             which requires the'Auto.maticTax Board to set the Avail-
             able School Fund at the amount estimated or determined
             as needed by the State Board of Education in accordance
             wfth the formula set out in Article 2665, as amended, is
             in direct conflict with H. B. 301 wherein the Legislature
             has fixed the per capita apportionment of $55, and has
             recuired the same shall be paid out of the Available
             School Fund annually in full.
                      8. B. No. 301 constituting the latest expres-
            sion of the Legislature on the subject and expressly pro-
            viding in Section 2 thereof for the repeal of all parts
            of Laws in conflict therewith, it follows that Articles
            2665 and 7043, as amended, to the extent they conflict
            with H. B. 301, are repealed thereby.
            .ILL~Gi   .'*.I:'.
                           Our   answer   tom   your   first   question   fs,   - there-
            fore;~in the affirmative.
                      The effect of our answer to your first ques-
            tion is to hold that paragraphs 2 and 3 of Article 2665,
            asamended, are repealed by H. B. 301, being in conflict
            therewith. Paragraph 1 of Article 2665, as amended,is
            not repealed thereby. Paragraph 1 thereof should be
            considered as being in full force and effect authoriz-
            ing the State Board of Education to determine or treat
            the per capita apportionment at $55 as fixed by the Leg-
            islature in H.B.301 and to certify said apportionment to
            the various school districts of Texas in accordance with
            the requirements of paragraph 1 of Article 2665, as
Hon. George H. Sheppard - Page 5


amended. In other words, Article
                               . 2665 ^as modified
                                           _.      by
                                                   ._
the provisions of H.B.301
                  . .     contains no rormula in making
the annual appropriation of the Available School Fund
and said apportionment must be based on the per capita
apportionment fixed by the Legislature in said Bill.
          The complete procedure for the State Comptrol-
ler and Automatic Tax Board to follow in making estimates
and setting the ad valorem tax rate for school purposes
is contained in an opinion to Governor Beauford Jester
of even date, V-204, copy of which is attached hereto
for your information.
                       SUMMARY
          Paragraphs 2 and 3 of Article 2665, V.C.S.,
     as amended by the 49th Leg., and Art. 7043,
     V.C.S., as amended by the 49th Leg., to the ex-
     tent of conflict with H. B. No. 301, Acts 1947,
     50th Leg., are repealed thereby. Paragraph 1
     of Art. 2665, V.C.S., remains in full force and
     effect and authorizes the State Board of Educa-
     tion to set the per capita apportionment at $55
     as fixed by the Legislature in H. B. No. 301,
     Acts 1947, 50th Leg., and to certify said ap-
     portionment to the various school districts of
     Texas.
                                   Very truly yours
                            ATTORNEY GENERAL OF TEXAS



                                   Chester E. Ollison
                                   Assistant


                            APPROVED MAY 19, 1947




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