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               OFFICE   OF   THE   ATTORNEY    GENERAL   OF, TEXAS
                                      AUSTIN



        Honorable Geo. H. Sheppard
        Cmptroller of Public Accounts
        Austin 11, Texas
        Dear Sir:                    Opinion No: 6105
                                     Re: Authority of the State
                                         Board of Education to
                                         make supplenental appor-
                                         tionment of Available School
                                         Fund on hand, and which will
                                         accrue to said fund as of
                                         August 31, 1944.
                   Your recent co.mmnication to this departinentreads
        as follows:
                  "After paying the $25.00 per capita appbW
             tionment a: fixed by the State Board of Education
             in its regular meeting July 1943, there will re-
             main a balance in the Available School Fund as of
             August 31, 1944, of.approximately $6,000,000: The
             State Board of Education at its regular meeting
             -Q J,uly1944 in considering the final distribution
             of this $6,000,000 in the Available School Fund
             adopted the following resolut:on:
                :: qtWr. Stevenson moved that,.!subject to a
             -ruliq by the Attorney General that our.action is
             legal, we, the State Board of Education, hereby
             supplement the per capita apportionment hereto-
             fore fixed for the school year 1943-1944, to the
             extent of $4.00 per capita, to be paid out of the
             funds now in and which Tfiill
                                         accrue to the Available
             School Fund as of August 31, 1944.' X2'. Custard
             seconded the zotion, which carried ;iith tha follow-
             ing vote: (All "ayes11except Senator Oneal who was
             present and not votin&'
Hon. Geo. H. Sheppard, p. 2



          "This resolution will in effact snakea con-
     plats distri‘
                 auti,ohof the Available School Fund
     for the school year 1343-1944.
          "The folloi~:i.nS,
                         qu~osti.on
                                  imzedi:jtelyarises
     under the above quoted resolution:
          "Doss the State Doard of ~Zducationat
     this tize have tha p<?,;~re?
                              'to :zai;~c
                                       a sup-
     ple;isntalaI:;jortion:::ert
                             of the Avai.lable
     School Fund oh hacd, and -;;~j:,
                                ict I;-illaccrue
     to said fund ds of Aufust 31, 1'344?
          "For your assistance in ansuerins the above
     question I submit the follozing:
          r'Section3 of'krticle 7, StJta Ccustitution,
     provides in part as fO1lOWS:
          "'One-fourth of the revenue derived from the
     Sta%e Occupation taxes and poll tax of one dollar
     on everv inhabitant of the State. between the ages      .
     of twenty-one and sixty years, shall be set apart
                                                   ---
     ,a,n,nuii~l~d~~~~~~ot~~~~~~t
                               of thz public free.schools;
                             , there shall be levied and
     collected an annual ad valore% State tax of such
     an amount not to exceed thirty-five cents on the
     one hundred ($lCC.OC) dollars valuation, as with
     the available school fund arising from all other
     sources, will be sufficimt to maintain and support
     the oublic schools of this-State for a period of
     not iess than six nonths in each year. . .'
     (Underscoring supplied)
          "Section 5 of Article 7, State Constitution,
     provides in part as follows:
          11, :. . and the Available:Schcol Fund shall
     be appliid'annually to tha Sul;$Ortof the public
Honorable Gee,, H. Sheppard, p.. 3


      free schools. And no law shall ever be enacted
      appropriatin'gany part of the Pezmanent or Available
      School Fund to any othar purpose whatever;, . .. .. 1
      (Underscoring supplied)
           "Since the time for paying this supplemental
      apportionment, if authorized, is immediate, we shall
      thank you to answer the foregoing question at once."
           It is the opinion of this department that the
'quotationsin your communication from Sections 3 and 5 of Article
7 of our State Constitution are the supreme law of our State in
reference to the question presented. Rspecially significant
is that provision in Section 5 which providea that "the Available
Sahool Fund shall be applied annually to the support of the
public .free schools." (Emphasis ours.)
           The ver@ "apply" is variously defined in 'iirebster,"s
New International Dictionary, Second Edition.. The definitions
most applicable to same as used in Section 5 are as follows:,
"To put to use; to use or employ for a particular purpose,,
or in a particular case; to a~~;o';;z;;i,~;l;;.;.;sto apply
money h~othe payment of a debt.
           Article 2823, R. S. 1925, after defining what shall
constitute the Available Schooi Fund as set forth in the
provisions of our Constitution,,carries out the Constitutional
mandate contained in Section 5, Article 7, supra, and provides
that the Available School Fund "shall be apportioned annually
to the several counties of this State, according to the scho-
lastic population of each, for the supportand maintenance of
the public free sahools." Said statute has never been amended
since its adoption in 1905,
           The following quotations from a rother recent
decision are also enlightening:
           **OurState Constitution provides that sufficient
      revenues shall be raised to maintain and support the.
      public schools of the state for a period of not less
Eon. Geo. H. Shepyard, p. 4


      than six months in each yew (Article 7, 8 3), and
      that no part of the available school fund shall be
      diverted to any ether purpose, but all of it shall
      be apportioned and distributed to the several coun-
      ties of the state (by the State Board of Education,
      Art. 2665, R. 3. 1925), according to their scholas-
      tic population (Gonst. Art. 7, 85; Article 2823, R. S.
      1925).
           "It is further provided in the Constitution
      that the L+plislatureshall provide for a State
      Board of Education, which shall psforn such duties
      as -r,ay
             be prescribed by law (Article 7, 58).

           "It is provided in Article 2G65, R. S. 1925;
      'The State Board shall, on or before the first day
      of August in each year, ,basedon the estimate there-
      tofore furnishad said Board by the Comptroller, make
      an ayportionnsnt for the ensuing scholastic year
      of the available school fund among the several coun-
      ties of the State, and the.several cities and towns
      and school districts constituting separate school
      organizations, according tc tho scholastic popula-
      tion of each; and thereupon ths secretary shall
      certify to the treasurer of ejch such separate
      school organization the toal amount of available
      school fund so ap::ortionedto ear&x,which certificate
      shall be signed by the president, countersigned by
      the Comptroller and attested by the secretary.'"
      (%DhaSis ours.) See S::n,Antonio I:ld.School Dis-
      trict et al, v;'St:!teEoard of Education et al,
      (Civ. tipp.)108 S. 71. (2) 445, 447.
           It should now be noted that Article 2665, R. 3. 1925,
contained no formula in .qaking theeannual apportionment of the
Available School Fund, except that said a:?Dortionrientmust be
based on the estixnatetheretofore furnished said Board (now
the State Board of Education) by the Comptroller.
Han; Geo. H. Sheppard, p. 5


           However, Article 7043, R. S. 1925, did contain a
formula whereby the State Tsx Board, or Automatic T:x Board
as it is generally referred to, must proceed in calculating
the ad valorem tax to be levied and collected each year for
State-and public free school purposes. In 1925, said Tax
Board was directed to fix a rate, follo+:ingsa4d statutory for-
mula, "that will yield and produce for such fiscal:year four
dollars per capita for all the,children within the scholastic
age, as shown by said scholastic,census; provided, the rate
SO fixed for any year shall never exceed the rate fixed by law."
This "rate fixed by law" referred, of course, to.~theConstitu-
tional maximum of thirty-five cents as set forth in Section 3 of
Article 7.
       i   Said Article 7043 has been amended from.time to ~.time;
and the maximum per capita to be produced by said rate to be
fixed by said Tax Boa,rdha-sbeen,increased by various amendmentsi
The last amendment to Article 7043, supra, was by the 48th Lagis-
lature, Chap. 160, p. 260, H. B. 256. The following proviso is
contained therein:         . .
          "Provided that no rate for school purposes
     shall be set by said Board (State Tax Board) in
     excess of a rate required to produce sufficient
     funds when added to other available school funds
     would produce a total available school,fund for.
     an apporti,onmentin excess of Twenty-five Dal-y.
     lars ($25), it being the intention of the Legis-
     lature that the State Board of Education shall
     have the authority to fix the apportionment at
     not exceeding Twenty-five Dollars($25)j and
     when so fixed, the State,Tax Board shall fix a
     rate for school purposes.,the maximum rate au-
     thorized by the Constitution if necessary) to
     produce revenue when added to other available
     school revenue, shall be a sufficient amount to
     meet the apportionment, which shall not be in
     excess of Twenty-five Dollars ($25), and it is
     specifically provided that the rate shall never
     be greater than necessary to supplement other
Hon. Geo. H. Sheppard, p. 6


      available school funds to guarantee an appor-
      tionment of not exceeding Twenty-five Dollars
      ($25) per year."'

           Also, Article 2665 has been amended by various
Legislatures Sinct? 1925. By Acts of 1939, the 46th Legis-
lature, p. 274, par. 1, amended said Article by providbg
formulas to be used by the State Board of Education in
arriving at the amount to be apportioned. These formulas
have been carried forward in identical laquage in the
amendment of said Article 2665 by the 48th Legislature,.
Chap. 161, p. 262, H. 9. 257. Said anendement raises the
amount which the apportionment shall never exceed from
$22.50 to $25.00, and contains the following significant
provisi~ons:

          "In arriving at the amount to be appor-
     tioned, the State Board of Education shall
     determine the cost of operating schools for
     a six-months period, . . . when such appor-
     tionment per pupil has been fixed, same
     shall be certified to by the Secretary of
     the Board and filed with the Automatic Tax
     Board to be used bY the Tax Board in fixing
     the rate of State ad valorem taxes for school
     purposes that will provide sufficient funds
     to maintain the public schools of Texas for
       period of not lessthan six (6) months.
     Provided that the State Board of Education.
     in estimating the amount of money that it
     judges to be necessary to maatain the pub-.
     lit schools for a period of not less than six
     (6) months shall proceed as follows: . . .,
     and this last sum so found shall be considered
     the amount that is deemed necessary to main-
     tain the public schools for a period of not
     less than six (6) months; provided that the
     State Fer capita apportionment shall never
     exceed Twenty-five Dollars ($25) for any one
Hon. Geo. H. Sheppard, p. 7


      scholastic year.."'
                        (Bmphasis ours;)
           A careful study ‘of said Articles 7043 and 2665,
and sncndments thereto,:reveals that the per capita appor-
tionment, whether definitely fixed by the Leg~islature,or
whether fixed by the Board of Education at an amount not
exceading the ,?aximu?as provided by the LF;pislatuxe,; is
a yardstick or standard for fixing th- state ad valorem
school tax rate. Such rate mu,st5::"an amount not to
exceed thirty-five cents on the ona hundred (,+%GG.GO)
dollars valuation, as :.;ith
                           the availab1.eschool 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, . ; \I1
(Section 3, Art: 7, State Constitution;)
           The apyortioment is based on an estimate by the
State Board of Education of an amount of money that it judges
to be necessary to maintain the public schools for a period.
of not less than six months. Said cstiinatemust be arrived
at by following statutory formulas, and the apportionment
based thereonmust not exceed that provided by statute. The
maximum of $25.00',?rovidedby both Articles 2655 and 7043,
as amended, issimply the maximwn estimate of the Legislature
that is deemed necessary to r,aintainand support the public
schools for a period of not less than six months each year.
           To hold that said >er capita apportionment is the
maximum amount per pupil that can be allottedthe schools of
Texas during any fiscal year, would give @eater weight to
the Statutes than to tha Constitution. Such construction would
be in direct conflict with the.Constitution. It provides that
"the available school fund shall be applied annually to the
support of the public free schools." S- . 5, Art. 7. This
clearly means, from the definitions h&&above    quoted, that
said fund must be appropriated or allotted annually. The
Legistature has no constitutional right to wit,hholdany sub-
stantial part.thereof during any one fiscal year. Neither has
the Legislature attempted to do SO. See Article 2823, R. S.
1925, hereinabove referred to and quoted in part. This Article
Hon. Geo. H. ShaI:pard,p. 6


which has nev,arbeen repealed, clearly   follov~s   the Constitution,
and cannot be ignored. .
           If the Legislature has attenipted,by any of th.apro-
visions of Articles 2665 and 7043, az a:aended,to limit the
amount of the available school fund to be applied annually to
tho suplzortof the public free schools, then such limitation
is clearly unconstitutional and void. On the other hand, it
is entirely logical to construe, and we do construe, the per-
tinent provisions of said amended articles as intending to
provide a yardstick or standard to be used in the fixing of
the State ad valorea school tax rate. Such construction does
not conflict with the Constitution.
            It is a wall estabJ.ishedrule of construction "that
if an act is fairly capabla of two constructions, under one of
which it VJOUld be constitutional and under the other of which
it would be invalid, the former must prevail." T. J.~Vol. 39,
pp. 206-207.

           Also, it is elementary that a statute will be con-
strued in such manner as to make it effective, if it is fairly
susceptible of such interpretation. T. J. Vol. 39, p. 205.
           It is clear, therefore, that the Legislature can
limit the State school ad valorem tax rate by statutory law.
This it has done. It cannot, ho-tiqever,
                                       limit the per capita-
anuortionment to anv amount less than th?:twhich will result
f&n the annual ap?iication and equal distribution of -all of the
Available School Fund..'
           The following depastmental appropriation appears on
pp. 922 and 923, Acts of 1953, 48th Leg,islature:
           "For the purpose provided by law, there are
      appropriated for the bienniun ending August 31,
      1945, to the State Board of Education all income
      to, and balance in, the Available School Fund
      and the State Textbook Fund, except as otherwise
      appropriated by this Lepislature, to be expended
      and distributed ig accordance vii@ the laws of
Hon. Gee. Hi Sheppard, p; 9
            .

      this Sta,te,provided that textbooks may be pur-
      chased and rebound only from fuhds arising from
      the State ad valorem school tax." (Emphasis ours.)
           The Constitution is the supreme law of ourstate;
regarding the subject matter of this opinion. Therefore,
the State Board of Education ,must follow its provisions, as
well as all statutory provisions not in conflict therewith;
in expending and distributing the Available School Fund and
the St.ateTextbook~Fund, which is a part thereof. See es-
pecially Article 2823, R. S; 1925, hereinabove referred to.
           For the reasons stat,-:d,
                                   the.question submitted in
your communication is answered in the affirmative.
                                     Vsi-ytruly yo&s
                                ATTORNZY GENERAL OF TEXAS


                                BY /s/    L.,Hc Flewellen
                                                Assistant
LRF:jcp:bbh

APPROVED'JUL. 27, 1944
/s/ Grover Sellers
ATTORREY G,XXRAL OF TEXAS


APPROVED OPINION COMMITTEE
BY - G. V?.B., Chairmen
