          THEAITORNEYGIE=NERAL
                   OF TEXAS
                  AURTIN.   TEXAS    78711


                      May 20, 1977



Honorable Oscar H. Mauzy             Opinion No. H-997
Chairman
Senate Education Committee           Re: Whether MH/MR state
Senate of the State of Texas         schools are entitled to a
Austin, Texas                        distribution from the
                                     Available School Fund.

Dear Senator Mauzy:

     You have requested our opinion regarding whether state
schools of the Department of Mental Health and Mental Retard-
ation are entitled to a distribution of the state available
school fund.

     The Available School Fund is created by article 7, sec-
tion 5 of the Texas Constitution, and the composition of the
state available school fund is described in section 15.01(b)
of the Education Code.

     In our opinion, state schools of the Department of Mental
Health and Mental Retardation, even though created as separate
school "districts," are not eligible to receive a portion of
the state available school fund. The Education Code, which
provides for the distribution of the available fund, is not
applicable to the institutions of the Department of Mental
Health and Mental Retardation:

          This code shall not apply to those elee-
          mosynary institutions under the control
          and direction of the Department of Mental
          Health and Mental Retardation or to the
          institutions and activities of the Texas
          Youth Council.

Education Code § 1.04(b). Although it might be argued that
the Education Code, by excepting from its application "the
eleemosynary institutions under the control and direction Of
the Department" does not thereby except the school districts
of the various institutions, it is clear that the districts




                      p. 4135
Honorable Oscar H. Mauzy - page 2     (H-997)



are creatures of the Department.    In every case, the terri-
torial limits of the district are coextensive with the boun-
daries,of the institution. Furthermore, members of the Board
of Mental Health and Mental Retardation serve as ex-officio
trustees for each district. See, -1,      V.T.C.S. arts. 2668a;
266813; 2668~; 2668d; 2668e; 3263e.

     Since the Education Code provides for the distribution
of the state available school fund, and since the Code is in-
applicable to institutions under the control of the Department
of Mental Health and Mental Retardation, it is our opinion
that the state schools of the Department are not entitled to
a distribution of the state available school fund under current
provisions of the Education Code.

                          SUMMARY

            State schools of the Department of Mental
            Health and Mental Retardation are not en-
            titled to share in the distribution of the
            state available school fund under current
            provisions of the Education Code.

                                Very truly yours,



                                JOHN L. HILL
                                Attorney General of Texas

APPROVED:




Opinion Committee

km1




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