        TIEX[EATTORNEYGENERAL
                      OF   TEXAS




Honorable L.A. Woods
State Superintendent of Public Instruction
Austin, Texas
Attention:   MR. John Olsen
Dear Sir:                      Opinion No. O-4524
                               Re: Transfer of school,dlstrlct
                                    under Rural Aid Bill of 47th
                                    Leg.
       We have received your letter of recent date 1n~Qhich you
ask the legality of certain language appearing in Article VIII
of the Rural Aid BLll, H.B. 284, Ch; 549; Acts 47th Leg., R.S.
Sections 1 and 2 of Article VIII appear as follows.,and the
language in which you are interested .~
                                     is underscored:
       "Section 1. For the.school year 1941-42,
    upon the agreement of the Board of Trustees of
    the dlstrlcts concerned or on petition sign&d-.bg
    a majority of the qualified voters of the dis-
    trict and subject to the approval of.the County
    Superintendent, State Superintendent, and Joint
    Legislative Advisory Committee, the'trustees of
    a~dlstrict which may be unable to maintain a     --
    satisfactory school may transfer its entire scho-
    1astLc enrollment, or any number of grades there-
    of, to a~convenient school of higher rank, and in
    such event, all of the funds of the district;.ln-
    cludlng the State Aid to which the district would'
    otherwise be entitled under the provisions of this
    Act, or such proportionate apart thereof as may be
    necessary shall be used in carrying out said agree-
    ment ; provided that no aid shall be allowed for
    teachers that are not actually employed In the
    contracting schools.
       "Sec. 2. For the school years thereafter, upon
    the agreement of the Board of Trustees of the dis-
    tricts concerned or on petitlon signed by a major-
    ity of the qualified voters of the distrht  and
    subject to the approval& the county superintendent,
    and the State Superintendent, a,district vhictimay
    be unable to maintain a satisfactory school may
Honorable L. A. Woods, page 2        O-4524


    transfer its entire scholastic enrollment for one
    year to an accredited school of higher rank. If
   .the receiving school receives State Aid. the scho-
    lastic census rolls both white and colored shall
    be cbmblned, the oer capita apoortlonment shall
    be nald direct to the receiving school, all local
    taxes of the sending contracting district, except
    those going to the 'interestand sinking fund shall
    be credlitedto the receiving school'by the Tax
    Collector as collected, and the teacher-pupil quota
    shall be based on the combined census total. If the
    receiving school Is not a State Aid school, the.
    scholastic census rolls both white and colored shall,
    be combined, the per capita apportionment shall be '~
    paid direct to the receiving school, all local taxes
    of the sending contracting district except those
    going to the interest and sinking fund shall be
    credited to the receiving school by the Tax Collec-
    toras collected, and the sending contracting dis-
    trlct'will be eligible for as much Salary Aid as
    is necessary to supplement the State Available and
    local Maintenance Funds, on the scholastics from the
    sending district attending a school in the recelv--
    lng alstrict, to cover the approved costof-lnstruc-
    tlon per scholastic in the receiving school, pro-
    vided that such approved cost shall not exceed Seven
   Dollars~and Fifty Cents ($7.50) per month for high
    school students or Five Dollars ($5.00) per month
    for elementary students."
       You wish to know whether the underscored language Is
consistent with the general law. It is well settled that the-
Legislature may not in an appropriation repeal or amend a gen-
eral statute. State v. Steele, 57 Tex. 200; Linden v. Finley,
92 Tex. 451; Opinions No. O-700, Bo. O-2573, No.‘0-2250. But
is the present Rural Aid EN11 merely an approprlatlon act, or
is it a statutory enactment on a parity with other similar en-
actments? We are incllned to the latter expressed view, and
the fact that It 1s likely to be superseded by another rural
ald bill by the next Legislature does not change us In reach-
ing such a conclusion.
       It Is too elementary to require citation of authority
that the,prlmary consideration In the construction of a legis-
lative enactment is the Intent of the Legislature Itself.
Therefore, let us examine the act under conslderatlon in order
to ascertain the intent of the Legislature. T~hefirst clause
of the caption reads:
      "An Act providing for a more efficient Public
   School System in Texas; o . Q .'
Honorable L. A. Woods, page 3         O-4524


Thus, we see that the purpose of the act is a general one:
namely, to provide a more efficient public school system.
Further along in the caption we see:
       II
        . . . .proviaing for a system of con-
    tract schools as same applies for the school
    year ending August 31, 1942, and a different
    system of contract schools for the school
    yearsthereafter; providing for a method of
    contracting such schools; . . . .I'
       This provision obvlously.refers to Article VIII which
provides "for a system of contractschools." The language of
Article VIII which you question reads:
       "If the receiving school receives State
    Aid, the scholastic census rolls both white
    and coloredsshall be combined, the per capita
    apportionment shall be paid direct to the re-
    ceiving school . . . ." (Emphasis supplied) _
.Itmust be remembered that Article VIII expressly applies to
~the transfer of the entire scholastic enrollment of a school'
district for a school year, and It would not apply unless such
entire enrollment were transferred. The first thlngto deter-
mine is the meaning to be $lven the phrase to the effect that
the census rolls shall be combined.     Combine is defined as
follows:
       "TO unite or join; to link closely together
    . . .." (Webster's New International Dictionary,
    Second Edition, 1938)
       It Is our opinion that this provision means nothing
more than that the census rolls shall be combined or joined or
llnked'together for the purpose of ascertaining the total num-
ber of scholastics. In other words, the census Is-to be taken
as'provldea~bylaw; then under this provislon'the census roils
need be nothing more than attached together. This conclusion
is made apparent by the next clause that the "per capita appor-
tionment shall be paid direct to the receiving school." Per
capita apportionment Is paid upon the basis of number of sc~ho-
lastics. Therefore, the combination of the rolls is merely to
show the number of scholastics upon which the per capita Is to
be paid.
       You cite in your letter Article VII, Section 5 of the
Constitution of Texas, which provides that the available school
fund shall be distributed to the several counties according to
their scholastic populatlon, in connection with the provision
Honorable L. A. Woods, page 4         O-4524


that the per capita apportionment shall be paid direct to the
receiving school. You raise the question of the constltution-
ality of this provision in view of the fact that the contract-
ing schools may be in different counties.
       We are of the opinion that this provision does not"vIo-
late Article VII, Section 5 of our Constitution. As we have
herelnbefore stated the census is to'be taken under the ap-
propriate statutes IArts. 2816, et seq., V.A.C.S.) In other"
words, the census rolls will show the county where the scholas-
tics actually reside, and the per capita apportionment will be
paid on this basis. The State Superintendent will deduct from
the per capita apportionment the amount necessary for the main-
tenance of the county superintendent's office, and'remit 'such
amount to the county depository. (Acts 2827a, 2700. l;V.A.C.S.),
and the remaining part of the per caplta~will be'pald direct
to the receiving school. In other words, the procedure set up
is for the purpose of slmpllflcation and eliminating a step.
Instead of the money's being sent to the depository oPthe
sending school and then transferred to the receiving school,,
the money is sent direct to the depository of the receiving
school. Thus, the per capita is paid as in any .othertransfer
instance. It follows that the terms of Section 5 of Article
VII are not violated.
       It may be possible that this provlslon Is subject to a'
construction which would be inconsistent with the terms of'the
Constitution. However, it Is certainly subject to the-inter-
pretation which we have given it; andlt is well.settled ~that
when a provision is subject to two,constructIons, one consti--
tutional and the other unconstitutional, the construction con-
sistent with the constitution will be given to such provision.
39 Tex. Jur. 206.
       In view of the foregoing you are respectfully advised
that those,provIsions of Section 2, Article VIII of the current
Rural Aid Bill relating to the combining of the census rolls
and the payment of per capita apportionment are valid enactments
properly within the legislative prerogative.
                                      Very truly yours
GWS:ff:wc                          ATTORREYGENERALOF     TEXAS
APPROVED MAY 12, 1942                 By s/George W. Sparks
s/Grover Sellers                           George“W. Sparks
FIRST ASSISTANT                            Assistant
ATTORNEYGEWERAL
Approved Opinion Committee By s/RwF Chairman
