         THEA         ORNEP         ENE

                     OF   TEXAS




                   February 28, 1963


Hon. Menton J. Murray, Chairman        Opinion No. C- 23
Sub-Committee, Public Health
House of Representatives               Re:   Whether House Bill
Austin, Texas                                167 is constitutional.
Dear Mr. Murray:
          You have requested an opinion from this office as to
whether House Bill 167, presently pending in the House of Rep-
resentatives, is constitutional. You have advised us that the
Committee as a whole instructed you to request same.
          You have stated in your letter that:
          "The bill seeks to permit, through an elec-
     ti.on,the establishment of a school for retarded
     children. Some members of the committee are of
     the opinion that in order to establish such a
     retarded school district, we would have to amend
     the Constitution similar to amendments required
     when an area seeks to set up a hospital district."
          House Bill 1.67authorizes the establishment of Rehabi-
li.tatTonDistrrcts, composed of a county or a combination of
counties, to provide education, training and special services
and guidance for mentally retarded and physically handicapped
persons over six (6) years cf age.  House Bill 167 further pro-
vides that:
          "AL1 powers relating to the acquisition of
     land, the construction or acquisition of facilitieS
     except the Issuance of bonds, and to taxation,
     vested by law an Independent school districts, shall
     be applicable ,toany Rehabilitation district, sub-
     ject to a tax limitation of five cents (5#) on each
     One Hundred Dollars ($100.00) valuation."
Hon. Menton J. Murray, page 2 (C- 23 )


Also, in Section 7(i) of House Bill 167, which deals with the
powers of a Rehabilitation District, there is granted to the
Board of Directors of the District the authority to:
          "(3)  Levy taxes and make such distribution
     of such taxes as it may deem necessary for pro-
     viding needed housing and facilities, and for the
     support of the Rehabilitation program, except that
     the total annual tax for all District purposes
     shall not exceed the rate of five cents (59!) on
     each One Hundred Dollars ($100.00) of assessed
     valuation of taxable property located In such dis-
     trict;"
          The procedure set forth in House Bill 167 for the
formation of a Rehabilitation District requires that a petition
requesting an election upon the Issue of creating a Rehabilita-
tion District be filed with the Commissioners Court, and after
the filing of such petition the Commissioners Court is required
to order an election for the purpose of determining whether a
Rehabilitation District will be established.
          It Is apparent from a reading of House Bill 167 that
the Rehabilitation Districts provided for therein are a form of
specialsschool districts with the purpose of providing educa-
tion, training and guidance for mentally retarded and physically
handicapped children of school age who could not safely or ade-
quately be educated in the existing public schools.
          Section 1 of Article VII of the Constitution of Texas
provides that:
          "A general diffusion of knowledge being essen-
     tial to the preservation of the liberties and rights
     of the people, it shall be the duty of the Legisla-
     ture of the State to establish and make suitable
     provision for the support and maintenance of an ef-
     ficient system of public free schools."
          Section 3 of Article VII of the Constitution of Texas
provides in part that:
          11
               .provided, however, that should the limit
     of taxition herein named be insufficient the deficit
     may be met by appropriation from the general funds of
     the State and the Legislature may also provide for
     the formation of school district by general laws; and



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I   .




        Hon. Menton J. Murray, Page   3(C-   23   )


            all such school districts may embrace warts of two
            or more counties, and the Legislature shall be au-
            thorized to pass laws for the assessment and collec-
            tion of taxes in all said districts and for the manag-
            ement and control of the public school or schools of
            such districts, whether such districts are composed
            of territory wholly within a county or in warts of
            two or more-counties, and the Legislature may authorize
            an additional ad valorem tax to be levied and collected
            within all school districts heretofore formed or here-
            after formed, for the further maintenance of public
            free schools, and for the erection and equipment of
            school buildings therein;. . .' (Emphasis added)
                  Section 48 of Article III of the Constitution of Texas
        provides in part that:
                  "The Legislature shall not have the right
             to levy taxes or impose burdens upon people, ex-
             cept to raise revenue sufficient for the economical
             administration of the Government in which may be
             included the following purposes:
                  tt
                   . . .
                  "The support of public schools, in which shall
             be included colleges and universities established
             by the State; and the maintenance and support of
             the Agricultural and Mechanical College of Texas."
                  The above quoted provisions of the Constitution of
        Texas clearly establish that it is the duty of the Legislature
        to provide for an efficient system of public schools in this
        State. The same provisions of the Constitution also clearly
        show that the Legislature is authorized to create school dis-
        tricts as well 83 to provide for the assessment and collection
        of taxes in such school districts. While the type of special
        school districts proposed in House Bill 167 tends to fall out-
        side of the generally recognized types of school districts, it
        is also well recogn,izedby the courts of this State that the
        Legislature has broad discretion in enacting laws which it deems
        necessarv and exwedient in organizing, operating, and maintain-
        ing the public school system of this-State. Mumke v. Marrs,
        120 %e.x.383, 40 S.W.2d 31 (1931); El Dorauo Independent School
        Distrfct             3 S.W.2d 420 (Comm.App. 1928); and Wilson
        v. Abflene Independent School District, 190 S.W.2d 406 (Tex.
        Civ.App. 1945, error ref. w.o.m.). In addition, it is stated
        in 37 Tex.Jur. 847, Schools, Sec. 5, that:
                                                            .




Hon. Menton J. Murray, page 4 (C- 23   )


          "Under the Constitution public education is
    a division or department of the government the
    affairs of which are administered by public of-
    ficers, and in the conduct of which the Legislature
    has all legislative power not denied it by the
    fundamental law. In ascertaining the power which
    the Legislature may constitutionally exercise with
    reference to the school system, the courts will
    not limit or restrict that power unless they find
    in the Constitution itself a specific limitation
    or one which arises by necessary implication from
    the language used. Consequently the Legislature
    may pass such laws as in its discretion appear
    necessary and expedient for effectuating the
    declared policy, subject only to the general
    limitations imposed in the organic law. It is
    the judge of what means are necessary and appro-
    priate for the purpose, and its determination will
    not be reviewed by the courts if the act has a
    real relation to the subject and the object of the
    Constitution."
          The courts in this State have held that liberal rules
for construction of the Constitution of Texas should apply in
determining the power of the Legislature in organizing the pub-
lic school programs of this State. Mumme V. Marrs, supra. In
the case of c                                     cCraw 132 Tex.
613, 126 S.W.2d b27 (1939), the Court said that:
         "This Court has repeatedly held that no
    act of the Legislature will be declared uncons-
    titutional unless some provision of the Constitu-
    tion can be cited which clearly shows the invalidity
    of such act. Brown v. City of Galveston, 97 Tex.
    1, 75 s.w. 488; g Tex.Jur., sec. 59, pp. 477, 478,
    and cases cited in footnotes. The burden is on him
    who attacks a law for unconstitutionality and courts
    need not exert their ingenuity to find reasons for
    holding the law invalid. As was said by the Supreme
    Court of the United States in the case of Middleton
    V. Texas Power & Light Co., 249 U.S. 152, at page
    157:  39 S.Ct. 227, at page 229, 63 L.Ed. 527:
    'There is a strong presumption that a Legislature
    understands and correctly appreciates the needs
    of its own people, that its laws are directed to
    problems made manifest by experience, and that
    its discriminations are based upon adequate
    grounds.!


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Hon. Menton J. Murray, page 5 (C- 23   )



          "If doubt should be raised as to the validity
     of a statute, such statute should be held valid un-
     less it clearly violates some provision of the Con-
     stitution."
          In view of the foregoing authorities we are of
the opinion that the creation of Rehabilitation Districts
as proposed by House Bill 167 would be a valid enactment of
the Legislature pursuant to Section 1 and Section 3 of Article
VII of the Constitution of Texas, and would not require the
submission of a constitutional amendment authorizing the creation
of this type cf district.

                    SUMMARY
          The creation of Rehabilitation Districts as
     proposed by House Bill 167 would be a valid enactment
     of the Legislature pursuant to Section 1 and Section
     3 of Article VII of the Constitution of Texas, and
     would no,trequire the submission of a constitutional
     amendment authorizing the creation of this type of
     district.
                                    Yours very truly,
                                    WAGGONER CARR
                                    Attornev General of Texas



PB:mkh: wb                          Assistant

APPROVED:
OPINION COMMITTEE
W, V. Geppert, Chairman
J. C. Davis
W. 0. Shultz
Ernest Fortenberry
Grady Chandler
APPROVED F3R T'HEATTORNEY GENERAL
BY: Stanton Stone




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