- .
                                                        R-776


                             OPPICE        OF
               THE ATTORNEY                  GENERAL
                           AUSTXN.TEXAS

                          September 25, 1947

      Hon. L. A. Woods
      State Superintendent of Public Instruction
      Department of Education
      Austin, Texas
      Attn:   Hon. T. M. Trimble,   Opinion No. V-388
              First Assistant
                                    Re:   Necessity for school
                                          district to meet the
                                          minimum teacher's
                                          salary required under
                                          H. B. 300, 50th Leg-
                                          islature.
      Dear Sir:
                We refer to your letter of recent date which
      reads in part as follows:
                *At the request of Mr. Henry Stilwell,
           Superintendent of the Texarkana Schools, I
           am submitting the following questions for
           your consideration and opinion:
                "The Texarkana School has 1500 Negro
           scholastics, with approximately 400 in the
           Dunbar Negro High Sghool, which is listed in
           the Standards and Activities Bulletin as an
           accredited school. Mr. Stilwell now claims
           that he is no longer asking that the Dunbar
           School be on the accredited list, since this
           would force the Board of Trustees to pay the
           Negro teachers on the same salary schedule as
           the white teachers.
                "H. B. 300, an Act of the 50th Legisla-
           ture, Regular Session, as interpreted by the
           State Superintendent, means that an accred-
           ited school system such as Texarkana must
           operate both, an accredited Negro school and
           an accredited white school, or must be seeking
           accreditation for their Negro school and pay
          ,their teachers the same salary schedule.
                                                              . -


Hon. L. A. Woods - Page 2   (V-388)


          YKr. Stilwell would like to know
     first if the State Superintendent is act-
     ing within his rights in determining that
     an accredited school system such as Texar-
     kana must be seeking accreditation for
     their unaccredited Negro School; and second,
     in order to avoid the penalty clause for
     failing to pay all Negro teachers the same
     salary as the white teachers he would like
     to know whether the provision of Sec. 3 of
     H. B. 300, which directs the State Super-
     intendent to remove a school from the ac-
     credited list of schools, is constitutional?n
          Section 1 of H. B. 300, 50th Legislature, in
mandatory language requires that the board of trustees
of each and every Texas school district maintaining an
accredited or affiliated elementary or high school, or
seeking accreditation or affiliation, shall pay their
teachers upon a salary schedule, which salary schedule
shall provide a minimum beginnin salary for a full
time teacher of not less than (17 $2000.00 per year and
(2) with increments above the minimum for (a) addition-
al college training and (b) for experience and effi-
ciency in teaching. Such increments shall be paid upon
the schedule provided by the State aid law (H. El.295,
50th Leg.). Section 1 requires further that beginning
teachers in such school districts who do not have pre-
vious teaching experience but who hold a bachelor's
degree or better shall be paid a minimum beginning sal-
ary of not less than $2,000,.00,and that teachers who do
not have such a degree shall be paid upon the salary
schedule provided in the State Aid Law.
          Section 1 applies to all school districts main-
taining such an accredited or affiliated school, or seek-
ing accreditation or affiliation, whether the district be
self-operating or receiving State aid. There is no impli-
cation in H. B. 300 that a school district must be subject
to or eligible under the provisions of the State Aid Law
before H. B. 300 will apply thereto. Rather than incor-
porate in full the salary schedule and the increment sched-
ule provisions of the State Aid Law into H. B. 300, the
Legislature has seen fit to incorporate same by werence
for the purposes therein set out, which it may legally do.
Furthermore, it is clear the Legislature has specifically
made the provisions of H. B. 300 apply impartially to all
the teachers of such school districts regardless of race.
               ,-



Hon. L. A. Woods - Page 3


It should be observed also that H. B. 300 is a minimum
salary law. It does not attempt to fix the maximum
salary whioh a district may pay its teachers. School
districts may provide larger salaries above the mini-
mum requirement of this bill for those of its teachers
who deserve monetary recognition for their efficiency
in teaching. The increment schedule of the State Aid
Law, H. B. 295, Article III, Section 2, provides in-
crements only for additional college training and in-
crements for teaching experience. There are no fixed
increments providing for teaching efficiency except to
the extent that teaching efficiency may be regarded as
the natural result of teaching experience, but a dis-
trict which meets the minimum requirements may adopt a
schedule for higher salaries based on efficiency and
other valid considerations.
          Section 2 of H. B. 300 is a recognition on
the part of the Legislature that some school districts
maintaining an accredited or affiliated school or seek-
ing accreditation or affiliation may not be able to
meet the minimum salary requirements set out in Section
1 because of the insufficiency of school revenues. Sec-
tion 2 provides in substance that if the total revenue
of any school district will not permit the payment of
the salary requirement and increment schedule referred
to in Section 1, when the total amount received from
the State per capita plus all additional State or Fed-
eral aid (except grants for school lunches) plus 4% of
total current local maintenance tax are devoted to the
payment of salaries of teachers, principals and super-
visors, then the highest salaries possible with revenue
available shall be paid by such district to its teachers.
This means that all such school districts not having
sufficient revenues to comply fully with the provisions
of Section 1 of H. B. 300, shall comply as nearly and
completely as possible with Oection 1 and to the extent
that the revenues itemized in Section 2 will permit.
For example, if the total revenue of a district ear-
marked by Section 2 to be considered in the payment of
its teachers’ salaries is but 90$ of the total amount
needed to oomply fully with Section 1 of said bill, then
such a district shall pay teachers’ salaries on a 90$
salary sohedule, the highest salaries possible with the
revenue available. The fact that any such school dis-
triot cannot comply fully with the minimum salary re-
quirements of Section 1 of said bill and thus comes with-
in the provisions of Section 2, does not relieve it from
the other statutory requirements and obligations of,Seo-
tion 1. In the instant example, all the teachers’ sala-
Hon. L. A. Woods - Page 4   (V-388)


ries of such a 9C$ district should be at least 90% of
what said minimum salaries would be if the district
could financially~conform to Section 1 of H. B. 300.
            We are requested to pass upon the constitu-
tionality of Section 3 of H. B. 300. Section 3 imposes
a statutory   duty on a body designated as the Committee
of Affiliation and Accreditation. It is the duty of
said Committee to require evidence from the State Super-
intendent acting through his Deputy State Superintendents,
showing (1) that the provisions of H. B. 300, Section 1,
are being fully complied with, or (2) that the salary
schedule actually being paid is approved by both the
State Superintendent and the State Board of Education,
before any school of any such district is affiliated or
accredited or continued on the list of affiliated or
accredited schools. Under Section 2, such school dis-
tricts are required to submit their salary schedules for
the payment of their teachers to the State Superintendent
and through him to the State Board of Education for ap-
proval.
          The State Superintendent of Public Instruction
is a statutory officer (Article 2655) and his general
duties are outlined in Articles 2656 and 2657, V. C. S.
He is charged with the administration of the school laws
and is given the superintendency of matters relating to
the public schools of this State. Article 2657, V .C.S.,
provides:
          “The State Superintendent shall advise
    and counsel with the school officers of the
    counties,  cities and towns and school dis-
    tricts as to the best methods of conducting
    the public schools, and shall be empowered-to
    issue instructions and’regulations binding for
    obs,ervanceon all officers and teachers in.all ““”
    cases wherein the orovisions of the school law ““‘“Y
    may require interpretation in order to carry “-“’ ’
    out the designs expressed therein, also in
    cases that may arise in which the law hapsno
    provision, and where necessity requires some
    rule in order that there may be no hardships
    to individuals, and no delays or inconvenience
    in the management of school affairs.” (Empha-
    sis ours)
          Under Article 2678a, 2679 and 2681, V.C.S., the
Department of Education has been authorized to classify
Hon. L. A. Woods - Page 5   (V-388)


and/or to prescribe rules and regulations for the
classification or ranking of every elementary school
and high school of Texas. The legal basis for this
classification, zanking, or accreditation of Texas
schools by the Department of Education acting through
its head, the State Superintendent, finds its origin
in Sections 3 and 5 of Chapter 36, Acts 1915, 34th
Legislature, R. S., the provisions of which may be
traced and found in the above enumerated statutes.
Articles 2888 and 2889, V.C.S., further authorize the
State Superintendent to classify, rank or credit the
institutions of higher learning in this State. Nixon
Clay Commercial College v. Woods, 176 S.W. (2d) 1015.
          Since September 1916, the work of classifl-
cation, accreditation and affillation of the schools
of this State has been carried on by a committee under
the chairmanship of the State Superintendent of Public
Instruction, which is described and consists of school
representatives named in the general manner set out in
the Regulations, Standards and Aotivities Bulletin No.
469, published by the Department of Eclucation,pages 1
to 6 inclusive. This committee is the body adopted
and referred to by the Legislature in its H. B. 300 as
the Committee on Affiliation and Accreditation. For
31 years.now this committee has been recommending and
revising the rules which should govern in the matter
of classification and accreditation of public schools
and the State Superintendent has exercised his statu-
tory discretion found in Article 2657 in adopting same
and prescribing such adopted recommendations as rules
and regulations of the Department of Education on
classification and accreditation matters 0
          The rules and regulations of the Department of
Education on the aocreditation and affiliation of the
public schools of Texas, when not in conflict with the
laws of this State, have the same force and binding ef-
fect of a statute. Bear v. Donna Independent School Dis-
trict, 85 S.W. (2d) 797; 56 C. J.~,pages 333 and 489.
Had this committee method of practice used by the6q+ part-
ment of Education in the formulation of its presen rules
and regulations or, indeed, the rules and regulations
themselves, been contrary to the views of the Legisla-
ture, it is reasonable to presume that statutes governing
the State Superintendent in these matters would have been
amended long ago to meet such contrary views. Slocomb,
et al, v. Independent School District, 116 Tex. 289, at
298.
Hon. L. A. Woods - Page 6


          Under Article VII, Section 1, Constitution of
Texas, it is the duty of the Legislature to establish
and make suitable provision for the support and maln-
tenance of an efficient system of public free schools.
Since it was necessary to establish and maintain a De-
partment of Education to effectuate this provision, the
Legislature has the undoubted power to delegate to said
Department such power and authority as may be necessary
to accomplish the end intended. The Legislature could
not possibly foresee all of the problems that would a-
rise in the administration of the schools. Necessarily,
the Department’.ofEducation is given a wide discretion
in such matters. It may make all such rules and regula-
tions as in its judgment are necessary to maintain an
efficient system of schools, subject to the provisions
that such regulations be not arbitrary, unreasonable or
in violation of law. Mosely V. City of Dallas, 17 S.Wv.
(2d) 36; R.C.L., Vol. 24, p. 575; Wilson v. Abilene In-
dependent School District, 190 S.W. (2d) 406.
          Until the passage of H. B. 300 by the 50th
Legislature, matters concerning the classification and
accreditation of schools have been left entirely within
the discretion of the State Superintendent, who has exer-
cised such discretionary authority by prescribing the
present rules and regulations found in the submitted
bulletin upon the recommendations of the’Committee on
Affiliation and Accreditation. Bulletin, pages 16, 17,
46, 47, 40 and 49. Section 3 of A. B. 300 imposes the
first and only statutory duty on the said committee
which has come to our attention. Said committee may not
now, by reason of Section 3, recommend the accreditation
or affiliation of any school of any district which does
not conform to the minimum salary provisions of Section
1 and/or Section 2 of H. B. 300, nor may it recommend
the continuance of any school of any district on the ac-
credited or affiliated list where any school of any dis-
trict fails or refuses to meet the provisions thereof.
           The authority to classify or accredit schools
does not rest, as seems to be contended in this opinion
request, in the board of trustees of a local school dis-
trict. Such authority lies in the State Superintendent
who has been empowered under statutes hereinabove enum-
erated to promulgate rules and regulations on such mat-
ters. District Trustees v. Trustees of Freestone County,
186 S.W.  (2d) 378; District Trustees v. County Trustees,
197 S.W.(2d) 579. Such existing discretionary power is,
of course, subject at all times to the general laws of
Hon. L. A. Woods - Page 7   (V-388)


the Legislature which may increase, modify or change
the statutory power existing in his office.
          We are advised that the Dunbar Negro High
School in the Texarkana Independent School District is
an accredited school. H. B. 300 applies impartially
to all school districts maintaining an accredited
school. The Legislature has seen fit to draw no dis-
tinction as between white and colored schools in this
enactment. In this the Legislature has followed Arti-
cle VII, Section 7, of the Te,xasConstitution, which
provides for separate schools for white and colored
children and says, vimpartial provision shall be made
for both." If the Legislature had this particular pro-
vision in mind, no doubt it was due to the fact that
the Supreme Court of the United States has held on
numerous occasions that segregation (separate schools
for whites and negroes) can be lawfully enforced only
when such separate schools furnish substantially equal
facilities.
          Applying H. B. 300 to the Texarkana Independ-
ent School District which maintains one or more accred-
ited white and one or more accredited negru schools,
it follows that no school in the district may be oon-
tinued on the list of accredited schools, if the dis-
trict does not conform to the minimum salary require-
ments set out in Sections 1 and /or 2 of this Act.
          To permit a school district to comply with
the minimum salary provisions of H. B. 300 with respect
to some of its accredited schools or some of its schools
seeking accreditation and not to comply therewith with
respect to all other accredited schools and schools seek-
ing accreditation within its confines would be to permit
a school district to classify and accredit its own schools,
a power and authority which it does not have under the
law. Such an interpretation of Section 3 would amount
to a repeal by implication of all the statutes governing
the accreditation of schools. To construe Section 3 of
H. B. 300 as permitting such a practice would remove the
enforceability of Section 1 and Section 2 of the Act, for
unless Section 3 be construed to apply to the continuance
or discontinuance on the list of all the accredited schools
or school seeking accreditation of a district which com-
plies or fails to comply with H. B. 300, it has no mean-
ing or force. It will not be presumed that the Legisla-
ture intended to enact a useless piece of legislation.
Further, to permit the practice contended for herein
Hon. L. A. Woods - Page 0   (V-388)


would be to allow a local school district to discrimi-
nate with respect to its negro and white schools, an
act which would destroy all hope of maintaining the
segregated system of separate schools for negroes under
the terms of both the Texas Constitution and the Consti-
tution of the United States.
          To strike down Section 3 also would destroy
the constitutional authority exercised by the Legisla-
ture in providing a penalty for school districts which
fail to pay their white teachers the minimum salaries
provided for from the large appropriation made specifi-
cally and primarily for the much needed raise of teach-
ers' salaries throughout the State. The intent of Sec-
tion 3 was publicly known to prevent certain districts
from using the extra money for buying uniforms, building
repairs, reduction of local school taxes, and other such
purposes instead of using it for increased teachers'
salaries. The revenues here involved are school reve-
nues, arising by virtue of legislative enactments, and
are public funds. It has been held many times that the
Legislature through the enactment of general laws has
plenary power in the management and operation of school
districts to devote a certain amount of their revenue to
the payment of teachers' salaries. Fawlkes v. Wilson,
171 S.W. (2d) 958; Fennel1 v. School District No. 13,
187 S.W. (2d) 187; Art. VII, Sec. 3, Constitution of
Texas.
          For the reasons stated hereinabove, it is our
opinion that the Legislature had the power to provide such
penalty to insure the receipt by Texas school teachers of
the money intended for their increased salaries, and that
Section 3 of H. B. 300 is constitutional.
                       STJMMARY
         Sec. 3 of H. B. 300, Regular Session, 50th
    Leg., providing the penalty of loss of accre-
    ditation of schools in any district which fails
    to meet the required minimum teacher salary
    schedule, or the highest possible schedule with-
    in their financial ability, is constitutional.
    If a district meets the minimum salary schedule,
    higher salaries may be paid on the basis of ef-
    ficiency, training, experience and other con- .
    siderations. In H.B. 300 the Legislature has
    provided for uniform higher salaries for all
    school teachers without discrimination due to
    race. Such impartial provision for both white
Hon. L. A. Woods, Page 9   (V-388)


    and negro schools is in accordance with Arti-
    cle VII, Sec. 7 of the Texas Constitution,
    and is the only legal means of maintaining
    segregated schools for white and negro pupils
    under the Constitutions of Texas and the United
    States and the decisions of the United States
    Supreme Court, The penalty was primarily in-
    tended to insure the actual use of additional
    money furnished school districts for teachers'
    salaries rather than for other school purposes.
                               Very truly yours
                           ATTORNEY GENERAL OF TEXAS


                           BY -&&        2Tow
                               Chester E. Ollison
                               Assistant
CEO:djm:jrb
                           APPROVED:


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