     OFFICE   OF THE   AITORNEY     GENERAL       OF   TEXAS
                            AUSTIN




Mnorablk Wardlow Lane
Di8trIot Attamey
Center, Term
mar Slrx                     0pIn10nso. o-e
                             ROI Whothor or                 nsolldatsd




                                     mttleb   by allaeven
                                    thel3 rerignation and
                                     aeven more.    Row than,
                                     0r the aahool rum
                                    or the attornays who
                                     lefx   C.uo sarranto      suit
                       ht agalnut   then to oust them tram

                     oo well established   to require a oltation
                   hat the preeent truetrae OS the oonaoll-
                   091 dlrtrlot   In question hare no cower or
authorlty.to   ratliy   or approro Illegal   oontraots  or pre-
viour trusteea.      Your Inquiry than Is narrowed to a deter-
alnatlon of whether or not school ttusteee Icay legally         es
ploy attorney6 to defend thm in a 8uIt in the nature of
a quo warrant0 brought to oust them rrom orrioe        ror offi-
olal mlsoonduot,     80 no to c’onstftute  a oharge upm school
runas 0r the dlstriot.
Honorable   Fardlow Lane, Tage 2


          There are two well ostabllohed  principles     Of
lax by whloh we must be guide'd.  They are first   that:

            “A quasi   public corporation,     such ns a
     sohool 6Istrlot,     which ows speoial. duties to
     the pblla,     may not enter into say contraot that
     Is'not   expressly   authorized by law or neoeasar-
     Ily implied rrom powers expressly         granted."
     CcCorkel v. DistriOt Trustees,        eto. (C.C.k.1838),
     121 s. 7. (2A) 240.
And seoond that:

            *A sahool district   Is a quasi corporation
     or a public natMe, and the trustees of said
     district   oannot lawfully expend money belong-
     ing thereto sxoept f.or the purposes authorized
     by statute."    Adam '1. riles  ( Corn. App.), 35
     s. 8. (2d) 123.
           In dsoiding whether or not authority    to so en-
ploy attorneys exists    the following   artialea of the 2e-
tlsed Civil Satutes    of l.E25 (Vernon's Edition) must be
oonsldered:
            "Artlole    2748.   Said truetses shell bo a
      body polltlo     and corporate In law, an4 shall be
      known by an4 under the title         an4 name of dls-
      trlot  trustees    of dlstriot    number -,     an4 ooun-
      ty or          , State of Texas; and as suoh may
      contra-d         be oontraatsa    lath,  sue aEd be sued,
      plead or be Impleaded, In any court of this ltate
      of proper Jurisdiotion,        an4 may receive any gift,
      grant, donation or devise made ror the use of
      the public schools ot the dietriot.           All reports
      an4 other oifiolal      papers shall be heade4 with
      the number of dlstrlot       and name of county."
            .“Artiole   Z749.   Sal4 trustees  shall have
      the managel;ant and control      of the pub110 schools
      and pub110 school groun4s; an4 they shall de-
      termIne how many schools shall be molntained in
      their school dlstriot,       an4 at rhat points they
      shall be looated;      provided,  that not more than
      one school for white children an4 one sahool
      fcr oolored children shnll be established        for
      each sixteen square miles of territory        of major
      fraction    thereof,   within ouch dlntriat;   an4 they
      shall determine nhsn the schools Hhall bs opened
Honorable   i’;ardlow Lane, Fage 3


     and when closed.       They shall have the power to
     employ an4 4ismIss teaahers; but In ease or bls-
     missal,   teachers shall have the right of appeal
     to the oounty and State Superintendents.         They
     shall oontraot with teachers and manage and
     supervies    the sohoola), subject to the rules an4
     regulations     or  the oounty an4 State cuperfnten-
     dents; they shall approve all claims agalnat
     sohool funds ot their Ulstriot;        provided,  that
     the trustees,      In making contracts   wlth teaohere,
     shall not oreats a derlclenoy        debt against the
     dlstrlot  .*
            *Artlole   2827. ‘,.‘l. The State an4 county
     ava-llable funds shall be use4 exoluslvely        for
     the payxant ot teachers’ and auperlntenQents~
     salaries,    fees for taking the scholastic      cen-
     sus, and Interest     on money borrow8      on short
     time to pay ,salarles       OS teachers an4 superin-
     tendentb,    when these salaries      beoone due be-
     rorejthe    school funds ror the current yoar be-
     come arullable;     provided that no loans for the
     purpose or payment or teachexs shall         be paid
     out of funds other than those for the then cur-
     rent year.
            “2. Looal school funds iron district     taxes,
     tuition   rees or pupils not entitled    to free WI-
     tion an4 other looal sources may be use4 ror
     the purposes enumerate4 for state and county
     runds an4 for purchasing appliances      and SUppliSS,
     for the paynent of Insuranae pre’cmlums, janitors
     and other employee,    ror buying school sites,     buy-
     ing, building an4 repairing     and renting school
     houses,   an4 ior other purposes necessary In the
     conduot ot the public eohools to be detertine
     by the Board or Trustees,    the acoounts an4 vouoh-
     era Xqr oountg dIetrIots     to be approved by the
     aounty superintendent;    provided,   that vlhen the
     State available   sohool fund In ‘any oity or dim-
     trlat Is aurriclent    to maintain the sohools
     thereor in any year for at least eight nonthe,
     and leave a eurplus, suoh surplus may be expend-
     ed for the purposes mentioned herein.
            I . . .*

          It Is quite apparent that the Leglsleture    has
given no express authority  to ooneolldated dormon school
dietriot trustees to empfoy oounael to represent    then; an4
Eonornble   Zsrdlow Lane, r4,s.e 4


provido   for their payment with sohocl funds in litigation
ot any neture, end Artiale 2827 has ciroumrrorlbed their
euthorlty    to spend aohool tunde. Is the power neoesaarlly
laplied iron porers which era erpr44sly grentad?
            As 8tet6d    in 37 Tax. Jurla et pegs 9451
               *Evan in the ebsaaoe or power axpraesly con-
       ferred,    trustees   may employ attorncrjs to instltuta
       and poeeoute action4 in their behalf a4 u neo-
       4asary lnoidsnt 0s thblr power4 to contraot,         to
       aue and wmage and control       the sohool erfalra
       and lntereote.      Likarlae  they mey pay such ettor-
       neye rsaaonebla compsnsat.$on out of the speolal
       maintenanoo fund in the maq~agamsnt end oontrol
       0r the truatma.-
             An sxam~l4 0r this rula is the case ot Arrlngton
v.'Jonar    (c. c. A.) 191 S. w. 361, on4 or many or it4 kind
holding that sohool trust.eee may 4mpl6y 4n attorney        *to
r4prea4nt them Jn legal proo44dlng4 respecting       sohool ai-
iairs.*     Sea al40 Rarding et al v. R4ymondvllls Independent
school Dlrtrlot~(C.C.A.     1932). 51 s. K. .(2Q) 826; Stewart
T. Xowton Icdependent Sohool District       (Civ. App. 1939), 134
S. WA’. (2d) 429.   The r4preasntatlon   in such iastanoeq,     how-
ever ia or the 4chool trusteee      as 4 body oorporata,    4nd in
no iretanoo havo we found duthorlty      for tha proposition     that
rohool funds may be ussd to pay attorney's       rees lnourred in
a personal suit egainst the truotees ta oust them Imu offios.
            Indaed, the rule allowing  the school truetsea  to
employ attorceya    aad oompeasets them out or the pub110 school
rood4 14 limited to nettsra involving    aohool aftalrs  wherein
the lnter4ste   of the sahool er4 involved.    D4nm4n v. Kebatsr,
139 Cal. 462, 73 Pac. 139; hyrne v. covington 5oerd or Eduoa-
tloa, 140 Ky. 531, 131 S. 'i;. 260; Tercplin v. Fremont Diatrlot,
 36 Iowa 411; Cklahome City Board or Educetlon v. Thorman, 121
'Okle. 108, 247 reo. 996; Z&oKinnonv. State, 70 Fla. 561, 70
 So. 567, Kelksr et al v. Yalter et al (C.C.A. 1922], 241 5. ::.
 S24; Craves B. Hotichsne v. Diamond Kill Indl rohool Cietriot
 (C.C.A. 1922),   243 '. iv. 638.
             Aa stated   in Vol.   24 or Ruling   Case Iax at page
6971
             Yha question has rrequently  arlaen as to
       the QlVQriOtp of the nxpQndltur4 or aohool funds
       in counsel rees.   Sroadly apsaklng a sohool dis-
       triot havlng the power to sue and be sued mny
HOnOral:   Kardlovr L.808, pa&4 5


    employ an attorney lr the 4mQloyluent I4 neoes-
    eery for the proteotion        of the QUbliO intersets
    00tdtt4a      to it.    The power to employ inoluae4
    the Fow4r to co%pepsEse$e, But the power to em-
    ploy counsel exist.8 only where e publio inter8st
    is oonoerned whloh the board Is oharged~by law
    with the duty to proteot,         and of oourse echo01
    funds cannot bo used to pay ooeta or counsel
    reaa In eotlons brought osteoslbly           In relation
    thereto,    but in reality     for the benefit of prl-
    tate persons.        The questlon Usually arlaes end
    ir mm aitriouit         to detersins    where etatutes
    exlat    providing that 401a4 legal ofiloial         shall
    act as counsel ror the board. Ii th4 statute
    requirea such officer        toMappear for the dlatrlct,
    it    oaanot crmploy anotlxr 9n hi8 plaoe, ii he 1s
    able end rllllng       to act, though it mey, ln a
    proper ctse, employ an assistant           oounsel; end
    a statute perizlttlng      tho enploya8nt of sQeoIa1
    counsel uhen reoeesery 1s constitutional.             These
    deolsions     &Spend lhrgely on the local 8tatut84,
    =d are i equently or little           ralus a4 authorit:,
    bspond th a particular       jurlndiotlo~.      ::hera a
    school distrlot       1s expressly    authorized    to em-
    ploy counsal ror certain purposes its authority
    wl&l be M.&ted stxlotly          to the powers granted.*
          In Zerrtlon v. Webster, 4UQr4, it wu4 held that ths
power of the school board to ezqloy oounsal axlets only
where a public  interest  is oonosrrmd which the board Is
charged by law with the duty to proteot,   end that the school
board had no authority   to amploy counsel la en electloo con-
test to detcrmlae xho were the de jure members or the eohool
board.
          In Dyrne and Read v. Boer4 or gduoatlon or the
City 0r Covington, supra, the queetion was 4s to the right
0r 41x mamb8ra 0r the board of education  or Corington to
uploy en attorney to sue to oompel the other SIX members
to meet with the~fomr,    so es to proceed with the business
ber0re the board.   The oourt held that an attorney could
not be smployed ior suoh purpoees and said:
           *The board of eduoetion is a body corporate.
     It is en agctncy 0r ~orernczant.    Its oeixolty   to
     oontreot  la olroumsorlbed.     It oen oontreot only
     in bahalr of the oonxon school lntereeta       of the
     olty in any event. It was not cornpotent for It
     to hers contracted   to pay ths counsel lees ln-
     ourred by Ita individual    n;embers In a roatter
     wholly amonq tber;selves.    If the ease had been
Honortile   Qrdlon     Lane, rage 6


      a contest between two of the llti(pats               as to
      whioh via8 entitled         to the office    of ffieizber of
       the.board,      it would in a sense hove involved
      a ratter affecting          the schools of the city.       So
      ?loss. the actlon ia question.           But it affeots
      the uohool interests          only a8 an lnoldent.       The
       aotioa was Fersonal as to its parties.              Any cit-
      ‘izen and patron of the School tight as well
      have maintained It.           But   the test of the lla-
       blllty     of the board of eduoatlon on the con-
       tract Is not whether the pukUc body was bene-
       fited by It.       It Is never allowed that the
       state, or any of Its constituent            ems    of eov-
      erncsnt , though oxpresslyz pemltted             to make
       oontracts and be sued upon them, cay beoome
      liable      on Implied asorucpslt.       1,ublio oorpor-
      ate bodies mat not only act in a Latter wlth-
       in their jurisdlctlsn,           but 13 the manner ex-
       pressly authotlzed .by lan, or they cannot bind
       the pub110 as for debt. Co tho board of educa-
       tion alone could contraot a debt agall?st It-
       self as a .$ubllo corporation..           Belther a Elaor-
       Ity,of     the board aoting together,         or whatsoever
      nuu.bar acting Independently and pemsonally,
      oauld Lo. so.          Nor, In such Inatanoes, does
       the question of benefit or advantage derived
      by the public atfeot          the question Of the Fub-
      llc*e liability.          It mst be reh,sc;bcred that
       the public In Its        quality of sovereign is never
       liable     at all as for debt, unless It expressly
       pcrffilts.    And when It psralts such liability
      It cust      contract,    not only for 'We ffiatter, but
      only In the manner expressly authorized."
       (Underscoring      oura)
            The case of %ith v. i‘lttsburRh 'chool l'lstrlct,
 70 Fa. zuper. 184, Is dlreotly         in point.   lr: that case the
 sohool board etipLoyed attorneys        to represent thelr in an
 Ration instituted   to restrain       then from rapreaenting    the
 sahool in certain scatters since an aot of t.he I,aglslaturo
 (which the defendonta alleged to be unconstltutlonal)            ter-
,Einated their offlces     durinq the year.       Flalntiffs  in the
.preSent OaSe Wore thCir     attOrney5     in the F~x!v~ou~ action
 whloh they lost;   and the present action was Instituted           to
 Moover attorneysr     tees.     The court said:
            "The holder of an office  has an undisputed
      right to contest the validity   of leglSlation
      which ousts hlni. That is personal to h11~1elf.
      The ~1111 of the pUbli0 is voiced by tho legiels-
      ture, and he who raises the oontest. a~‘.??u;i:eSthe
i-;onore+le riardlow Lane, Pnea 7


     burden of c5tablishing     his right,    and tho bur-
     den of ooeta. axwnses.      etc..  are lncldent to
      that contest;    Zia has no vesied rlrbt to an of-
     floe created by the loglslature,       ana lndependent-
     ‘Iy of the legislatdve    ~111, the public has uo
     Interoat   in continuing   these p3rtioular     persons
     UC directors   of thls sub-school     dlatrlot.
           * .   .   .

           “The old board of Qlreotors      of the aub-
     5obnol dlstriot    bud no power to make these de-
     fendants liable    for profaasIonal    aervlces   In
     suoh a contest,      The dlreotors  viere axarclslng
     powers delegated to them by Saw, and only In
     the exerolse    or suoh parers, aotlng exolu5lve-
     ly in their oftlola      oapaoltle8  as the Immed-
     late representatlvea     of the pub110 and purely
     and In behalf,    could they b&id the public.      .
      . .I (UnderscorIng ours)
           Ye bellbve that this 15 the lan In ~cxas and
opiniona of prcvloua adnilnI5tratIon5 of t.his departiient
are In aocord with this view.    See O&i’iOll dated Ootober
11, 1937, to Eonorable A. A. b’lller,  County Attorney, New-
ton Couaty.

            In xalker   et al v. Xalter   at al, (C .C.A. 1922)
241 3. 2. 924, a cult was filed       to remove certain   trustees
of an irdepsndcnt     sohool district   rrom oflice,  plalntlff
alla&g     various aots of offlola      mIsoonduot asd lnoom-
petenoy.    The petition    also prayed for a taxqorary In$uho-
tlon enjoining    defendants irom spending any lnoney or funds
belonging to the school dietriot       to defend the cause. The
Court of Civil    Ap;.eals although reforming In part the
judgment below continued the temporary Injunction         to pro-
Nblt the paying out of sohool funds for any oi the erpen5e5
of lItlgatIon.
           For a case slmllar In principle   restraining    com-
mom school dlstrlot  trusteee  from Spending publie funds
which expenditures  would beaaflt  the trustees personally,
8ee Barton Y. Vlokery,   (C. C. A. 1916) 189 .‘. ‘::. 1103.
           The case of Craves (G W>utohens v. Clanond El11
Ind. !?chool Clstrlot,    (C. C. A. 1922) 243 ‘:. 7'. 630, ln-
valved the appl.IoatIon of prlnolplea     of law elnllar   to those
Involved In the Lnatant ease.       In that cane the t~rusteea of
the independent sohool dlstrlot      had entered Into a contract
with a firm of attorneys      for the purpose of having then de-
feat oartaln bllla     pending In the &!glaleture.     The court
Honorable   "ardlow   Lane, page 8



held that the coqtraot was ultra vires,  opposed to pub110
~~~lloy and void.  In the course of the opinion Chief Justice
Conner stated the rule as follows:
             While It is doubtless   true that there is
      p&er in a board of trusteea of an independent.
      sohool dlat+zt     to mploy counsel-and pay out
      or the publia funds or, the dletrlot     a reason-
      able   ree in oases where the interests    of the
      diatriO,t  require aaaertlOn  or derenae 113 the
     toour 8 0                                  orltp,   after
      oaretul search, either expressed     or implied in
      the statutes    or this ataie  to .anploy counsel     and
      expend tte pub110 funds o'r'the diatrlot      ln the
      attempt to aeoure or dereat leglalatlon."
      (Underaoorlng ours)
            Consequently,   it is the opinion of tkls depart-
ment and YOU ar8 respeatrully      adrlaed  that sohool funds or
the oonsolldatqd    common school district    in question my not
be used to pay attorney's     tees incurred by certain neffibers
ot a pretiou8    board of trustees    in the defense ot a quo
mrranta suit brought agatnat them.

                                        Yours rsry   truly

                                     ATTORN CEXCRAL Or TFmS




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