Hon. L. A. Woods              Opinion No. O-5413
State Superintendentof        Re: Whether elementary tuition
Public Instruction            may be paid under current rural
Austin, Texas
Dear Sir:,
          We have before us your letter of June 17, 1943, which
we quote in part as follows:
          “There are several situationsin Texas in which
    the districts request the county board to classify
    the s_chool,to teach no grades or to teach part
                                                  . of
    the ~,elementarygrades and arrange ror some otner
     school to teach their childrenwhose grades they
    do not offer. The current Equilizatlon Aid Law
    does not make specific provision for tuition on
    elementary studentswho are not contractedas pro-
    vided in Article 8. In order to try to take care
     of the situation I am acting under authority of
     Article 2657, A& s of the 29th Legislature,and am
     interpretingthe law to mean that we would be au-
    thorized to pay the cost of instructionon any
     child living in a district eligible to receive aid
    whose gr~adeis not taught in his district. You
    ,w~illnote also that Article 2678a, Acts of the 44th
    Legislature,authorizes county boards to classify
     schools in accordancewith the regulationsof the
     State Superintendentof Public Instructionand that
     such re,gulationsand classificationsshall be made
    for promoting the efficiency of the elementary
     schools and establishinghigh schools at convenient
     and suitable places. My regulationsfor the past
     several years have been that a one-teacherschool
     should not teach more than six grades, that a two-
     teacher school should not teach more than eight
     grades, that a three-teacheror four-teacherschool
     should not teach more than nine grades, and that a
     five-teacherschool should not teach more than ten
     grades in a twelve-gradesystem. You will note that
     Article 2678a provides in part that
          “Iif said student after having completed the
     course of study offered in his home district is not
Hon. L. A. Woods, page 2   (O-5413)


     prepared to enter a hiah school,recognized by
     either
        _ the   county or the State, the superin-
              _..
     tendent OS the school district which maintains
     the high school he desires to attend shall
     place said student in the prooer erade. and said,
     district sh 11 be entitled to receive tuitioq
     for said stzdent in th same manner as if said
     student should attend the hkh school of said dig-
     t&.wi.'
         "As you know, the general law requires that
    trustees either provide a school for all the chil-
    dren who live in their district or pay the cost of
    teaching them to the school that does teach them.
    I am holding that aid is based on the eligibility
    of the district of residence and not on the basis
    of the type of district to which the resident
    pupil may elect to attend if his grade is not
    taught in his home district. To hold otherwise
    would involve discrimination. I also feel that
    this general law does not conflict with the Equali-
    zation Law and that both should be followed in re-
    gard to the distributionof rural-aid funds and
    would like to have your opinion as to whether rqv
    interpretationcan be followed without violation of
    the statutes.n
          You have informed us that it is contemplatedthat
salary aid moneys will be used to pay the elementary tuition
mentioned in your letter, under the provisions of ,ArticleVI?1
of the current rural aid bill.
          The bill provides for the payment of high school tui-
tion in Article IV of the bill. Article IV reads in part as
follows:
         "Section 1. It is hereby expressly provided
    that a sufficientamount of funds allocated by
    this Act shall be used for the payment of high
    school tuition not to exceed Seven Dollars and
    Fifty Cents ($7.50)per pupil per month, and in
    no instance shall more than five (5) months tui-
    tion be paid for any one pupil on the census roll
    for any one school year. High school tuition
    shall be paid according to the provisions of House
    Bill No. 158 General Laws, Regular Session, Forty-
    fourth Legislature, as amended, and subject to the
    limitations and restrictionsprovided in this Act."
          It is obvious that Article IV does not authorize the
payment of elementary tuition, for it speaks only of high
Hon. L. A. Woods, page 3   (O-5413)


school tuition and states that the same shall be paid accord-
ing to the terms of House Bill No. 158 General Laws Acts
44th Legislature. House Bill No. 158 fArticle 2922L’(1)
Vernon’s AnnotatedCivil Statutes). House Bill No. 158,‘in
providing for the payment of tuition deals exclusivelywith
high school tuition and the payment thereof for high school
studentswhose grade is not taught in their home district. It
is thus manifest that Article IV could in no way authorize the
use of rural aid funds for the payment of elementarytuition.
          You state in your letter that the “currentEqualiza-
tion Aid Law does not make specific provision for tuition on
elementary studentswho are not contractedas provided in Arti-
cle 8.” Article VIII reads as follows:
         “Section 1. For the school year 1941-42 upon
   the agreement of the Board of Trustees of the &s-
   tricts concerned on on petition signed by a majority
   of the qualified voters of the district and subject
   to the approval of the County Superintendent,State
   Superintendent,and Joint Legislative AdvisoryCom-
   mittee, the trustees of a district which may be un-
   able to maintain a satisfactoryschool may transfer
   its entire schelastic n 011~ nt. o anv numbe of
   grades thereof to a c&fvenie% schzol of high& rank,
   and in such evint all of the funds of the district
   includingthe State Aid to which the district would’
   otherwisebe entitled under‘the provisionsof this
   Act, or such proportionatepart thereof as may be
   necessary shall be used in carrying out said agree-
   ment; provided that no aid shall be allowed for teach-
   ers that are not actually employed in the contracting
   schools.
         “Section 2. For the school years thereafter,
   upon the agreement of the.Board of Trustees of the
   ,districtsconcerned or on petition signed by a major-
   ity of the qualified voters of the district and sub-
   ject to the approval of the county superintendent,
   and the State Superintendent,a district which may be
   unable to maintain a satisfactoryschool mav transfer
   jts entire schQ;Lasticenrollmen&for one year to an
   accredited school of higher rank. If the receiving
   school receives State Aid, the scholasticcensus rolls
   both white and colored shall be combined the per
   capita apportionmentshall be paid direc4 to the re-
   ceiving school all local taxes of the sending &n-
   tracting district, except those going to the interest
   and sinking fund shall be credited to the receiving
Hon. L. A. Woods, page 4   (O-5413)


    school by the Tax Collector as collected,and the
    teacher-pupilquota shall be based on the combined
    census total. If the receiving school is not a
    State Aid school the scholasticcensus rolls both
    white and coloreB shall be combined the per capita
    apportionmentshall be paid direct $0 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 Collector as collected, and the
    sending contractingdistrict will be eligible for
    as much Salary ,Aidas is necessary to supplementthe
    State Available and Local MaintenanceFunds on the
    scholasticsfrom the sending district attencling a
    school inthe receiving district, to cover the ap-
    proved cost of instructionper scholasticin the re-
    ceiving school, provided 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.” (Empha-
    sis supplied).
          Section 1 of Article VIII applied by its terms only to
the school year 1941-42. Section 2 applies to the current
school year. You will notice that Section 1 authorizedthe
transfer of the entire scholasticenrollment,or env glambr f
Prades thereof. Section 2 authorizes only the transfer 0; t:e
entire scholasticenrollment. The exclusion of the phrase “or
any number of grades thereof” from Section 2 is obviously clear
that the same is not authorizedby Section 2. In other words,
only the transfer of the entire scholasticenrollment may be ef-
fected under the terms of Section 2.
          The transfers about which you inquire do not therefore,
come within the provisions of Section 2 of Article 8, her the
elementary students mentioned in your letter are not contracted
under the provisionsthereof.
          You cite in your letter Article 2678a, Vernon’s Anno-
tated Civil Statutes. It is our opinion that this st;tutehas
no effect on the question of elementarytuition payment under
consideration,for Article IV deals with high school tuition
and expressly states that the same shall be paid under the terms
of House Bill 158 (Article 2922L(l) ),supra, and Section 2 of
Article VIII is concernedwith the transfer of the entire schol-
astic enrollment,which is not the case here.
          It is elementarythat moneys appropriatedfor one pur-
pose may not be used for another purpose and that the conditions
Hon. L. A. Woods, page 5    (o-5413)


of an appropriationbill must be met before moneys can be paid
out thereunder. It is fundamentalthat no money may be drawn
from the Treasury but in pursuance of a specific appropriation
made by law. Article VIII, Section 6, Constitutionof Texas.
          You are, therefore, advised that the payment of ele-
mentary tuition as outlined in your letter,is not authorized
either by Article IV, Article VIII, or any other provision of
the rural aid act; consequently,rural aid moneys cannot be ex-
pended therefor.
          We are not unmindful of the force of the arguments
advanced by members of your department and other educators as
to the desirabilityand need for such payment. However, the
power to pass statutes and make appropriationsof public moneys
is lodged in the Legislature not in the Attorney General or
the State Superintendent,ad such arguments present considera-
tions of policy the determinationof which is the prerogative
of the Legislature,and not of this department.
                                       Very truly yours
                                       ATTORNEY GENERAL OF TEXAS
                                       By /s/ George W. Sparks
                                       George W. Sparks, Assistant
APPROVED JUL 13, 1943
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED: OPINION COMMITTEE
BY:      BWB, CHAIRMAN
GWS-s:wb.
