                             QBfficeof toe Elttornep @eneral
                                           &date of PCexae
DAN MORALES
 ATTORSEI
       GENERAL                               January lo,1994

     Honorable Barry L. Macha                          Opinion No. DM-28 1
     Criminal District Attorney
     900 Seventh Street                                Re: Whether the State Board of Education
     Wichita Falls, Texas 76301-2482                   is authorized to enact a regulation providing
                                                       for the deduction of a school district’s debt
                                                       to the Texas School for the Blind and
                                                       Visually Impaired and the Texas School for
                                                       the Deaf from available school fund
                                                       payments to the school district (RQ-585)

     Dear Mr. Macha:

             You ask whether the State Board of Education (the “board”) is authorized to enact
     a regulation providing for the deduction of a school district’s debt to the Texas School for
     the Blind and Visually Impaired and the Texas School for the Deaf (the “state schools”)
     from available school timd payments to the school district. You state that in May 1993,
     the board enacted the following regulation, to be codified as section 89.239(c)(3) of title
     19 of the Texas Administrative Code:

                     Beginning with the 1993-1994 school year, if the agency cannOt
                make the deductions required by this section 6om a district’s
                foundation school program payments, the deductions shall be made
                from the available school fund payments to the district. A district
                shall indicate whether it will make a direct payment or authorize the
                [Texas Education Agency] to deduct the appropriate amount from
                the available school fund payment.
     See Texas Education Agency, 18 Tex. Reg. 3094 (May 14, 1993). Although the second
     sentence of the regulation suggests that a district will be given the choice between making
     a direct payment or authorizing the Texas Education Agency (“TEA”) to deduct the
     appropriate amount from the district’s available school fimd payment, we believe that
     when the second sentence is read in conjunction with the first sentence of the regulationt it
     is clear that the deductions from the available school fbnd payments are mandatory rather
     than voluntary.2

             ‘19 T.A.C. 5 89.239(c)(3) (Vedoctions shall be madefromtbe availableschool tiredpaymentsto
     the district”)(emphasisadded).

             ZWe believe tbat tbe deductions are, in essence, mandatory,becaose the regolatioo would
     aothorizethe TEA to dedoctthe fends from a school district’savailableschool fond paymentif tbe school
Honorable Barry L. Macha - Page 2            (DM-281)




        You believe that this regulation violates article VII, section 5(a) of the Texas
Constitution which creates the permanent school fund and the available school timd, and
provides that the

           available school tknd shall be applied annually to the support of the
           public free schools. Except as provided by this section, no law shall
           ever be enacted appropriating any part of the permanent or available
           school tkd to any other purpose whatever.           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.
See also Educ. Code @ 1512(a) (“All available public school timds of Texas shah be
appropriated in each county for the education of its children.“), 20.48 (governing
expenditures by public free schools).s Because we conclude that the new regulation
exceeds the board’s statutory rule-making authority, we do not reach the question whether
the deduction of funds owed to the state schools from available school fund payments runs
afoul of article VII, section S(a). The reasons for our conclusion follow.

          Generally, an administrative agency can adopt only those rules that are authorized
 by and consistent with its statutory authority. Texas Fire & Gas. Co. v. Harris Count
 Bail BondBd., 684 S.W.Zd 177, 178 (Tex. App.-Houston [14th Dist.] 1984, writ refd
 n.r.e.). An administrative agency may not adopt rules which impose additional burdens,
 conditions, or restrictions in excess of or inconsistent with those statutory provisions. Id.;
‘HoI&wood Calling v. Public WI. Comm’n of TeuLF, 805 S.W.2d 618, 620 (Tex.
 App.-Austin 1991, no writ).

        Section 21.507 of the Education Code requires that “[flor each student enrolled in
[the state schools], the school district that is responsible for providing appropriate special
education services to the student shah share the cost of the student’s education as provided
by this section.” Educ. Code § 21.507(a); see also id. $ 11.063(b) (as amended by Acts
1993, 73d Leg., ch. 383 (eff. Sept 1, 1993)) (setting forth kmding sources for the state
schools). Subsection (d) of section 21.507 provides as follows:

               Bach school district and state institution shah provide to the
           commissioner of education the necessary information to determine
           the district’s share under this section.      After determining the

(foomotecontinued)
districtfails to makesan electionor elects to makesa directpaymentand then fails to do so. The election
set forth in the secondsentenceof the regulationis illusory.

        Vhe 73rd Le.gishtme adoptedlegislation that repeals many chaptersof the Education Code,
including chapiers15 and 21. e&ctive September1, 1995. See Acts 1993,73d Leg., ch. 347.5 8.33(2).




                                               p.   1473
Honorable Barry L. Iviacha - Page 3        (DM-28 1)




           amount of a district’s share for all students for which the district is
           responsible, the commissioner shall deduct that amount from the
           payments of founabtion school funds payable to the district. Bach
           deduction shall be in the same percentage of the total amount of the
           district’s share as the percentage of the total fan&ion   school fund
           entitlement being paid to the district at the time of the deduction,
           except that the amount of any deduction may be modifkd to make
           necessary adjustments or to correct errors. The commissioner shall
           provide for remitting the amount deducted to the appropriate school
           at the same time at which the remaining fknds are distributed to the
           school district. [Emphasis added.]

Subsection (f) gives the board the authority to adopt rules to implement this section.

        Pursuant to this rule-making authority, the board has adopted section 89.239(c) of
title 19 of the Texas Administrative Code. Subparts (1) and (2) predate subpart (3).
Subpart (1) requires school districts and the state schools to submit information to the
TEA necessary to determine the school districts’ share of costs within thirty days of a
student’s enrollment at one of the state schools. 19 T.A.C. 8 89.239(c)(l) (as amended by
18 Tex. Reg. 3094). Subpart (2) provides that the “TEA will make deductions from the
school district’s regularly scheduled fmnabtion school program jimd puyments” and will
make payments to the state schools according to an established schedule.               Id.
$89.239(c)(2) (emphasis added).

        Unlike preexisting subpart (2) which authorizes the TEA to deduct funds from
foundation school find payments, new subpart (3) authorizes the TEA to deduct funds
fkom available school fbnd payments. Apparently, the board relies solely upon subsection
(t) of section 21.507 of the Education Code as the source of its rule-making authority.
See Texas Education Agency, 18 Tex. Reg. 1996, 1997 (March 30, 1993); id. at 3094
(May 14, 1993).4 Section 21.507 of the Education Code expressly authorizes the
commissioner of education to deduct tinds from foundation school find payments. It
makes no mention of deductions from available school fknd payments, and we do not
believe that the authority to make mandatory deductions from payments from that timd
may be implied from the statute. Whereas the foundation school program is a creature of




               The mnendmwt is adopIedunder Ihe Texas Education code, p 21.507(f),
           which authorizes the State Board of Education (SBOE) to a&@ rules as
           ncccssq 10 implementstatutory requirementsconcerning suppod of students
           mkrmd to the Texas School for the Blind and Visually Impimd or the Texas
           school for the Lkaf.

Texas EducationAgency, 18 Tex. Reg. 3094 (May 14.1993).




                                          p.   1474
Honorable Barry L. Macha - Page 4          @M-281)




statute, see Educ. Code ch. 16 (establishing the foundation school program), the available
school tknd is a creature of the constitution, see Ten. Const. art. VII, 4 5(a); see also
Educ. Code ch. 15 (providing for the administration of the permanent school fknd and the
available school fund). Given this fact, we believe that if the legislature had intended to
authorize the board to provide for mandatory deductions Tom available school timd
payments, it would have provided so expressly. For this reason, we conclude that the new
regulation is inconsistent with section 21.507 of the Education Code. See Hofllywood
Calling, 805 S.W.2d at 620; Texas Fire & Gas. Co., 684 S.W.2d at 178.


         Furthermore, we believe that the regulation imposes additional burdens on school
districts in excess of those imposed by that statutory provision. See Holl&wond Calling,
805 S.W.2d at 620; T~ULFFire & Car. Co., 684 S.W.Zd at 178. While section 21.507 of
the Education Code provides for deductions from schools’ foundation school tknd
payments, the regulation imposes mandatory deductions from an additional tknding
source, the available school fund. Although we appreciate the diicuhy TEA may have
collecting tkrds for the state schools from school districts which do not receive foundation
school fund payments and acknowledge the importance of collecting these timds, we can
only conclude that section 89.239(c)(3) of title 19 of the Texas Administrative Code
exceeds the board’s rule-making authority under section 21.507(f) of the Education Code.5


                                    SUMMARY

               The State Board of Education is not authorized by section
          21.507(f) of the Education Code to enact a regulation providing for
          the mandatory deduction of a school district’s debt to the Texas
          School for the Blind and Visually Impaired and the Texas School for
          the Deaf from available school fimd payments to the school district.




                                                        DAN      MORALES
                                                        Attorney General of Texas




       ‘we do sot addres whether Ihe mgutation iS autborizcd by Some other statutory xmrce   of de-
mskiagauolorlty.



                                           p.   1475
