                      The Attorney                 General of Texas
                                              Febxuary        28,   1978
JOHN L. HILL
Attorney General



                   Honorable Bob Bullock                                   Opinion No. H-l129
                   Comptroller   of Public Accounts
                   L.B.J. Building
                   Austin, Texas                                           Re: Allocation       of     funds    to
                                                                           colleges    and universities     under
                   Dr. Kenneth Ashworth                                    article 7, section 17 of the Texas
                   Commissioner   for Higher Education                     Constitution.
                   Coordinating  Board, Texas College and
                     University System
                   Austin, Texas

                   Gentlemen:

                          You have requested    our opinion regarding   the allocation of funds to
                   colleges and universities under article 7, section 17 of the Texas Constitution.

                           Article ‘7, section 17, originally adopted in 1947, and amended in 1956 and
                   1965, levies a state ad valorem tax “for the purpose of creating                a special
                   fund” to finance permanent         improvements    at 17 state institutions   designated
                   therein.      The 1965 amendment        directed the Comptroller      to allocate   funds
                   among the various institutions         for the 12-year period beginning June 1, 1966,
                   according to a specific formula:

                                   Eighty-five  per cent (85%) of such funds shall be
                                allocated by the Comptroller  of Public Accounts of the
                                State of Texas on June 1, 1966, and fifteen per cent
                                (15%) of such funds shall be allocated   by said Comp-
                                troller    on June 1, 1972, based    on the following
                                determinations:

                                   (1) Ninety per cent (90%) of the funds allocated on
                                June 1, 1966, shall be allocated     to state institutions
                                based on projected   enrollment    increases published by
                                the Coordinating   Board, Texas College and University
                                System for fall 1966 to fall 1978.

                                   (2) Ten per cent (10%) of the funds allocated         on
                                June 1, 1966,shall be allocated to certain of the eligible
                                state institutions  based on the number of additional




                                                         p.    4606
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Honorable Bob Bullock
Dr. Kenneth Ashworth        -    Page 2      (B-1129)



           square feet needed in educational     and general facilities by
           such eligible state institution  to meet the average square
           feet per full time equivalent     student  of all state senior
           institutions (currently numbering twenty-two).

              (3) All of the funds allocated       on June 1, 1972, shall be
           allocated  to certain of the eligible state institutions    based
           on determinations       used in the June 1, 1966, allocations
           except that the allocation     of fifty per cent (50%) of the
           funds allocated    on June 1, 1972, shall be based on projected
           enrollment   increases for fall 1972 to fall 1978, and fifty per
           cent (50%) of such funds allocated on June 1, .1972, shall be
           based on the need for additional       square feet of education
           and general facilities.

The amendment     then provides:

               Not later than June first of the beginning year of each
            succeeding        ten-year      period    them Comptroller       of Public
            Accounts of the State of Texas shall reallocate                 eighty-five
            per cent (85%) of the funds to be derived from said Ten Cent
            (1Oc) ad valorem tax for said ten-year period and not later
            than June first of the sixth year of each succeeding ten-year
            period said Comptroller             shall reallocate    fifteen per cent
            (15%) of such funds to the eligible state institutions               then in
            existence     based on determinations           used in the said ten-year
            period     that are similar            to the determinations        used in
            allocatin g f unds durin g the twelve-year              period begin%
            January      1, 1966, except          that enrollment     projections      for
            succeeding      ten-year periods will be from the fall semester
            of the first year to the fall semester of the tenth year. All
            such designated          institutions     of higher learning       shall not
            thereafter       receive      any general       revenue    funds for the
            acquiring or constructing             of buildings or other permanent
            improvements         for which said Ten Cent (1Od) ad valorem tax
            is herein provided, except in case of fire, flood, storm, or
            earthquake       occurring at any such institution,          in which case
            an appropriation          in an amount sufficient         to replace      the
            uninsured loss so incurred may be made by the Legislature
            out of any General Revenue Funds.

(Emphasis added).    In pursuance of the constitutional   directive  that you reallocate
these funds for the ten-year period beginning June 1, 1978, you first ask whether
state colleges and universities  created by the Legislature    since 1965 are eligible to
receive the funds allocated by article 7, section 17.



                                             p.   4607
Honorable Bob Bullock
Dr. Kenneth Ashworth          -    Page 3       (H-1129)



      In our opinion, the funds described          in article 7, section 17 may be distributed
only to those institutions named therein.          The language of the amendment     is clear:

              The following state institutions    then in existence shall be
              eligible to receive funds raised from said Ten Cent IlOd) tax
              levy for the twelve-year     period beginning January 1, 1966,
              and for the succeeding ten-year period:

(Emphasis added). It is well established  that tax monies levied and collected for a
particular purpose may be expended only for that purpose.    Carroll v. Williams, 202
S.W. 504, 506-07 (Tex. 1918). In Attorney General Opinion C-687 (19661, this office
held that

              ItI he five cent tax levied for the year 1965 was levied for
              the purposes set out in Article VII, Section 17 prior to the
              November,      1965 amendment    and therefore     should be dis-
              tributed among the twelve schools listed at the time the tax
              levy was made. . . . [WI hether based on the tax levied under
              the 1947, 1956, or 1965 amendments     the distribution   of funds
              would depend on which allocation     was in effect at the time
              the particular   tax was levied.

(Emphasis    in original).

        Furthermore,      the Legislature    has recognized      that distribution       of funds under
article 7, section 17 is limited to the institutions          named therein by providing other
means for financing          permanent     improvements      at recently      created     state univer-
sities.   See e.         Acts 1973, 63rd Leg., ch. 659, at 2119; Acts 1977, 65th Leg., ch.
872, at 3058
          -P       Texas A & I - Corpus Christi State University);              Acts 1975, 64th Leg.,
ch. 743, at 2786; Acts 1977, 65th Leg., ch. 872, at 3081 (Texas Eastern University).
 If these institutions      were permitted    to share in the allocation         of article 7, section
17, any appropriation        to them for permanent       improvements        would be in contraven-
tion of that portion of the amendment               which prohibits the expenditure              of “any
general     revenue     funds for the acquiring       or constructing         of buildings or other
permanent      improvements       for which said Ten Cent (1OC) ad valorem tax is herein
provided . . . .” In addition, the legislative          history of amendments            and attempted
amendments        to this section indicate clearly that the section has been consistently
interpreted      as applying only to those institutions            specifically     listed.    It is our
opinion, therefore,        that only those institutions       designated      by name in article 7,
section 17 are eligible to receive funds allocated thereunder.

       You also ask whether the Comptroller    may, for the allocation   to be made in
June, 1978, vary the formula from the 90 percent enrollment      - 10 percent square
footage basis used in 1966. Article 7, section 17 requires that the reallocation  shall
be




                                                 P. 4608
Honorable Bob Bullock
Dr. Kenneth Ashworth        -    Page 4    (R-1129)



              based on determinations     for the said ten-year   period that
              are similar to the determinations     used in allocating   funds
              during the twelve-year  period beginning January 1, 1966 . .. . .

(Emphasis       added).    “Similar” does not mean “identical,”         but rather  “having
characteristics      in common:    very much alike . . . alike in substance or essentials.”
Webster’s New International         Dictionary (3d ed.). As the court noted in Guarantee
Mutual Life Insurance Co. v. Harrison, 358 S.W.2d 404 (Tex. Civ. App. - Austin
1962, writ ref’d n.r.e.1,

              [il t is a word with different      meanings     depending    on the
              context in which it is used.

E   at 406.

        In this instance,    we believe that the context leaves no room for a variable
allocation    formula.    The use of “similar” rather than “identical” probably reflects
the uncertainty      of forecasting     in 1965 whether there would indeed be projected
enrollment     increases for a period beginning 13 years thereafter.             Additionally, in
one instance the formula will be based on a ten year period while in another it is
based on a twelve year period.            Jn any case, it is obvious that any determination
made in 1978 is unlikely to be identical to one made in 1965, if only because the raw
data are somewhat         different.     Furthermore,     were we to construe       “similar” to
permit     a flexible    allocation    formula,    we would have no means by which to
determine      what degree        of variation   from 90-10 is permissible.           Finally, in
Guarantee      Mutual Life Insurance Co. v. Harrison, e,               the court rejected a 1951
 Attorney General’s Opinion which had attributed              a flexible meaning to “similar.”
358 S.W.2d at 406-08.            In our opinion, the Comptroller         may not vary the 1978
allocation    formula from the 90 percent          enrollment   - 10 percent square footage
basis used in 1966.

                                       SUMMARY

              Only those institutions   of higher education  designated   by
              name in article 7, section 17 are eligible to receive funds
              allocated    thereunder. The Comptroller    may not vary the
              1978 allocation formula from the 90 percent enrollment    - 10
              percent square footage basis used in 1986.




                                                 Attorney    General   of Texas




                                             P. 4609
Honorable Bob Bullock
Dr. Kenneth Ashworth    -   Page 5   (H-U.29)



APPROVED:




DAVID M. KENDALL, First Assistant



  -4
C. ROBERT HEATH, Chairman
Opinion Committee

jst




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