                                      ECNEY GENERAL
                                   OFTEXAS
                               AUSTIN.   TEXAS     W3711
CRAWFORD      ‘Y:.
                MARTIN
  ATTOw.NEY   CIENER*I.
                                  September 29, 1969

       Honorable J. Ii.Edgar             Opinion No. R-480
       Commissioner of Education
       Texas Education Agency            Re:     Payment and qualification of
       Austin, Texas 78711                       school attendance officer in
                                                 Ellis County.
       Dear Dr. Edgar:
                 By recent letter you have requested an opinion from this
       office concerning whether a county attendance officer’s salary,
       which is payable from the county available school fund, shall be
       charged to the various school districts in the county for Founda-
       tion School Program purposes.
                   We quote from your letter as follows:
                   “Ellis County is comprised of eleven school
              districts having a total scholastic population far
              in excess of 3000. Ellis County School Board Is
              considering appointment of an attendance officer to
              serve as such for all its school districts, pur-
              suant to the provision of Sections 21.036 and
              21.037, Texas Education Code, (Chapter 21, sub-
              chapter B of H.B. 534, Acts 61st Legislature, R.S.,
              1969).
                   “The   Ellis County School Board through Its
              executive   secretary, the county superintendent, has
              requested   this Agency to obtain an opinion from the
              office of   Attorney General on the following question:
                    ‘Pursuant to Section 21.037(e) of the
                    Texas Education Code, where a county
                    school board elects an attendance of-
                    ficer at a salary determinable by the
                    county board payable from the county
                    available school fund shall the school
                    districts of that county be held ac-
                    countable for or charged with county
                    available funds so used, in the deter-
                    mination of their eligibility for



                                     - 2392 -
                                                          .




Hon. J. W. Edgar, page 2   (M-480)


         minimum Foundation School Program Funds?
         II
          . . .
         "Quiry 2: Must an attendance officer
         elected under the provisions of Section
         21.036, et seq., Texas Education Code,
         hold a college degree and/or teacher
         certification as a qualification for the
         position?"
          Subsection (e) of Section 21.037 of the Texas Education
Code is quoted as follows:
          'An elected attendance officer may be compen-
     sated from the available school funds belonging to
     the county or independent school districts.
          The above quoted subsection of the Code was taken from
Article 2895, Vernon's Civil Statutes, except that such Article
placed a two dollar ($2.00) per day maximum pay for such officer,
whereas Section 21.037 permits the amount of pay to be discretlon-
ary with the particular body which elects the officer.
          The source of the ay for the officer is the same upder
the prior statute (Art. 2895P and under the provisions of Section
21.037. If the county school board elects the officer, then the
officer is paid from the available school funds belonging to the
county. If the officer is elected by an independent school dls-
trict, then he is paid from the district's available school fund.
          The permanent school fund belonging to a county would
be the funds or the bonds authorized to be purchased by the county
with such funds, which resulted from the sale or lease of the
land granted to the various counties for public school purposes.
The available school fund belonging to the county would be the
income derived from the investmentof the county permanent school
fund. Section 6 of Article VII, Vernon's Texas Constitution:
Attorney General's Opinion O-5569 (1943); also see Love v. City of
Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931); Rushing v. Lynch, 22
 1 . d 482 (Tex.Civ.App. 1929) no writ.
          The available school funds belonging to a county are re-
quired to be assigned to the various school districts In the countv
according to their scholastic population. Section 5, Article
2922-16, Vernon's Civil Statutes (Sections 16.71-16.76, Texas



                           -2393-
Hon. J. W. Edgar, page   3 (M-480)

Education Code).
          'The Foundation School Program is thus financed
     by an equalized local school district effort under
     the specified formula, distribution of state and
     county available school funds on the basis of the
     number of scholastics, and allocation to each school
     district of a sum of State money sufficient to fi-
     nance the remaining cost of the program in that dis-
     trict." 51 Tex.Jur.2d, pp. 550-551, Schools, Sect.
     180.
          School districts are authorized by law to expend money
for numerous types of goods and services. The employment of an
attendance officer adds one additional service paid for by school
funds. We find nothing in the statutes that would indicate that
such expenditure out of the county available school funds would
decrease the amount of the county available funds taken into
account in allocating state funds.
          Section 16.71 of the Texas Education Code provides that
the Foundation School Program shall be financed from several
sources, including county available school funds, and that the
'remaining costs' of the Program were to be realized from state
monies. In computing the latter, the county available funds are
first taken into account. There is no provision in the law
exempting county available funds budgeted for an attendance of-
ficer from being taken into account in determining the "remaining
costs" to be paid by the State.
          In Article 2827e, provision is made to expend certain
funds for vocational education out of the county available fund
and it is specifically provided that "such school districts shall
not be held accountable for or charged with county available school
funds' in determining eligibility for State funds. No such proviso
is made for the school attendance officer expense. We are per-
suaded that if the Legislature had intended that the same rule be
applied concerning attendance officers, it would have so stated.
          It is therefore our opinion, based upon an analysis of
the operation of the Foundation School Program, that the various
school districts in Ellis County would be charged with the county
available funds, used in employing the attendance officer, in
determining the amount of state minimum Foundation funds that the
school districts would receive from the state.




                            -2394-
Hon. J. W. Edgar, page 4   (M-480)


          We are assuming that the trustees of the independent
school districts in Ellis County concur in approving the hiring
of the attendance officer. However, such independent school dis-
tricts have the option of receiving their pro rata share of county
available funds rather than having such funds spent in employing
an attendance officer. See the reasoning in Wester v. Oge, 68 S.W.
1005 (Tex.Civ.App. 1902, error ref.).
          As for your second question, we find no requirement in
the Texas Education Code that a school attendance officer hold a
college degree or a teacher's certificate. We therefore answer
your second question in the negative.
                           SUMMARY
          When a county school board elects an attend-
     ance officer pursuant to Section 21.037(e) of the
     Texas Education Code, at a salary determined by them
     and payable from the county available fund, the
     school districts, including the independent school
     districts, of that county that receive the services
     of the attendance officer shall be charged their
      ro rata share of county available funds expended
      n esying
     #-           said officer, in determining their
     eligibility for Foundation School Program funds.
          A school attendance officer elected pursuant
     to the provisions of Section 21.036, et seq.,
     Texas Education Code, is not required to have a
     college degree or teacher's certificate to be
     qualified to serve.
                                     Youw   very truly,




Prepared by James C. McCoy
Assistant Attorney General




                           -2395-
.   .




Hon. J. W. Edgar, page 5 (M-480)


APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Sally Phillips
Arthur Sandlln
Ralph Rash
John Banks
MEADE F. GRIFFIN
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant
NOLA WHITE
First Assistant




                          -2396-
