Honorable Lon E. Alsup, Chairman
House Conferenae &unittee for H. B. No. 284
Austin, Texas

Dear Sir:                           Opinion No. O-3541
                                    Rer Payment of all administrative
                                         costs of the State Department
                                         of Education out of the kvail-
                                         able School Fund.

      We received your letter dated May 15, 1941, which is self explon-
atory and reeds, in part, as follows:
      ". . .

     "Please advise if the administrative cost of all divisions
   of the State Department of Education may be paid from the
   Available School Fund. Please advise further if il.your
   opinion we should be prohibited from paying the edministrative
   cost out of the entire fund. Is it possible to pay such edmin-
   istrativs cost out of suoh funds which go to the Availeble
   School Fund which are not speoifically authorized by the
   Constitution of this State?
      11
       . . .11

      Section 3 of hrtiole VII of the Constitution of Texas reads, in
Part, BS follows:

     "One-fourth of the revenue dorived from the St&ix occupation
   taxes and poll tax of one dollar on every inhabitant of the
   State, between the ages of t*ienty-one and sixty years, shall
   be set apart annually for the benefit of the public free
   sohools; and in addition thereto, there shall be levied and
   collected an annual ad valorem State tax of such an amount
   not to exceed thirty-five cents on the one hundred ($100.00)
   dollars valuation, BS with the available school fund arising
   from all other sources, will be sufficient to maintain and
   support'the public schools of this state for a period of not
   less than six months in each year, and it,.shallbe the duQ
   of the State Board of Eduaation to set aside a sufficient -- a-
   mount out.---,
             of the said tax to provide free text books for the
   use of children attending the public free schoolsof this
   State1 provided,xowever, that-&oxd     the limit of taxation
Honorable Lon E. Alsup, Chairman, page 2              o-3541



   herein named be insufficient the defioit may be met by
   appropriation from the general funds of the State. .,0"1
   @mphaais ours).

      Section 6 of Article VII of the Constitution of Texas reads as
follows:

      "The principal of all bonds and other funds, and the
    principal arising from the sale of the lands hereinbe-
    fore set apart to said school fund, shall be the per-
    manent school fund, and all the interest derivable
    therefrom and the taxes herein authorized and levied
    shall be the available school fund, to whioh the Leg-
    islature may add not exceeding one percent annually-of
    the total value of the permanent sahool fund, such
    value to be ascertained by the Board of Eduoation until
    otherwise provided by law, and the available sohool
    fund shall be applied annually to the support of the
    public free sohools. And no law shall ever be ens&d
    appropriating any pert of the permanent or available
    sohool fund to any other purpose whatever; nor shall
    the ssme, or any part thereof ever be appropriated to
    or used for the support of any seatarian school; and
    the available school fund herein provided shall be
    distributed to the several counties according to their
    scholastic population and applied in such manner as may
    be provided by law. (Sec. 6, Art.  7, adopted election
    August 11, 18913 proclamation September 22, 1691,)"
    (Underscoring OUIS)~

        The available school fund aonsists of (1) the inoome derived
from the permanent sahool fund; (2) one-fourth of the revenue
derived from occupation taxes3 (3) one dollar of the revenue derived
from the poll tax: (4) revenue derived from the State ad valorem
school tax and (6) other funds provided by the Legislature to make
up a deficiency in said available school fund, This fund, oonsisting
of the sources of revenue   enumerated above, is specifioally provided
for in the above enumerated Seations of the Constitution, See Webb
County-z.   Board of School Trustees of Laredo (Supreme Court) s 65 S.W,
876 and Mumme v. Marrs (Supreme Court) 40 S, We (2) 31,

      Section 5 of Article VII of the Constitution requires that the
available sohool fund, as provided for in the Constitution, shall be
distributed to the several counties of the State aaoording to their
soholastic population. Any disposition of the available school fund
contrary to the mandate of this Constitutional provision would be void.
Love v. City of Dallas (Supreme Court) 40 S. W'.(2) 20. The Consti-
tution having provided that the money In the available school fund
shall be distributed to the several counties. it follows that it can-
not be distributed or appropriated elsewhere. Sinoe the Constitution
Honorable Lon E. Alsup, Chainnan, page 3              o-3541



provides that the money in seid fund shall be dis,tributedaccording
to scholastio population, it follows that the money in said fund ten-
not be apportioned or distributed on any other basis.

      It is our opinion that the administrative costs of all divisions
of the State Department of Eduoetion oannot be paid from the St&e
available school fund as heretofore described.

      Your second inquiry raises the question of ,whatheror not such
administrative costs oen be paid out of funds which go to the State
available sahool fund end which ere not specifically required by the
Constitution to be pleced therein. We assume that there era such funds
in the State eveilable school fund which were derived from some source
other then es provided for end required by Se&ions 3 and 5 of Article
VII of the Constitution. Based upon the facts se now have, wa are un-
able to say whether or not any suoh funds ten be appropriated from the
available school fund for the purposes mentioned in your letter. We
surmise that an audit and a study thereof would be necessary before a
definite opinion on this question oould be rendered, We do say, hor-
aver, that the Constitution does not require that any different or
additional revenue be allocated to the State available school fund
other than es provided in Sections 3 end 5 of Article VII thereof.
Hence, if there ere any general statutes sllocating money to the State
 available sohool fund end not so required by the Constitution, the
Legislature oan amend those statutes so es to allocate future revenues
therefrom for the purposes mentioned in your letter.

      Whet wa have said herein has no application to the provision of
Section 3 of Artiole VII pertaining to free text books.

                                             Yours very truly

                                       ATTORNEY GENERAL OF TEXAS



                                       By s/L.e Shoptaw
                                                Lee Shoptaw
                                                  ~Assiatant



APPROVED MAY 23, 1941
 s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL

Approved Opinion Committee By BWB Chairman
