The Honorable     Ward W.     Markley             Opinion   No.   H- 47
Jasper County     Attorney
Jasper, Texas     75951                           Re:   Questions    relating   to method
                                                        of procedure     for effecting
                                                        Article   7, 5 6, Texas Consti-
                                                        tution as amended      in November,
Dear   Mr.   Markley:                                   1972.

     You have submitted    several   questions  growing out of the adoption,
in November    1972, of Article    7, 5 6b as an amendment   to the Constitution
of the State of Texas.   It reads:

              “Notwithstanding      the provisions      of Section 6,
        Article    VII, Constitution     of the State of Texas;        any
        county, acting through the commissioners                 court,
        may reduce the county permanent              school fund of
        that county and may distribute          the amount of the
        reduction     to the independent     and common        school
        districts    of the county on a per scholastic          basis
        to be used solely for the purpose of reducing               bonded
        indebtedness      of those districts     or for making perman-
        ent improvements.          The commissioners         court shall,
        however,      retain a sufficient    amount of the corpus
        of the county permanent         school fund to pay ad valorem
        taxes on school lands or royalty           interests    owned at
        the time of the distribution.         Nothing in this Sectim
        affects financial     aid to any school district        by the
        State. ‘I (Emphasis       added)

     Your first question is what is meant         by the words     “on a per   scholastic
basis” as used in the amendment.

     The term “scholastic”      is nowhere   defined in the Constitution.         In
Article    7, $ 5 it is used as an adjective   (“scholastic population”).        In the
Texas Education       Code it is used both as an adjective   (“scholastic       year, ‘I
scholastic    age, etc. 1 and as a noun (“scholastics”).     In Love v.        City of




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The   Honorable     Ward     W.   Markley,       page    2 (H-47)




Dalias,. 40 S. W. 2d 20 (Tex.
.^---_                                 1931)    and Mumme v. Marrs,             40 S. W. 2d 31
(Tex.   1931), rhe term was used to               designate    a member      of the constitutional
“scholastic       population”    (a person       includable     in the “scholastic    census”);
all residents       between the ages of         6 years and 18 years are includable
III the schoiastlc      C~IISUS,   without      reference     to their attendance     or non-
attendance      upon any school.        (Tex.       Education     Code,   5 5 1401 and 1402).

       Despite the fact that in $15. 01 of the Education           Code, t,he term
“schoiastic       p~>;Gl.ation” is defined to mean “all pupils within the scholastic
age enrolled       in average     daily attendance    the next preceding      scholastic
year . . . . ‘I1 because of the dec,isions          of the Supreme      Court of Texas in
Love
-...--.  v.  City   of Dallas   and   Mumme     v. Marrs,     supra.   we  are compelled
to assign to the wordscholastic,              ” as used in the Texas Constitution,
Article     7, $ bb, the meaning:         “a person of scholastic      age residing     in
the school district,         whether   attending   a school therein,     or not. ” A differ-
ent interpreta:ion        ‘by us would contradict      the “trust”   concept announced by
plvovL

     Therefore,  our answer to your first question       is that “on a per scho-
,Lastic basis” as used in Article   7, $ 6b of the Constitution     means “on the
basis of the number of persons     residing   in the school district    eligible by
age for free education.  ” It. has no relation    to average   daily attendance.

     Your seccnd question has to do with scholastics                    of Jasper    County     who
attend school districts  in adjoining counties.

     Here again the decision   in Love v. City of Dallas,   supra, is of assist-
ance and, under the doctrine     of stare decisis,  binding upon us.  The problem
in that c.ase was one of transferring    students from one county to a school
district  in another county,  and from one school district   in a county to
antither dist,rrct in the same county.

      %n the ----
             Love    case,   the court       said:

               “.l,n view of the history  of the su’bject and the
          st,atulory and constitutiona     provisions    referred     to
          above,. it IS plain. we think, that the property          and
          funds of the p,u’blic school are held in trust by the
          city, d,lst,rict, county,   or other statutory     agency,     to
          be used for the benefit of the school children          of the




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The   Honorable      Ward   W.   Markley,    page    3 (H-47)




            community    or district  in which the properties       exist,
            or to which the school funds have been allocated.
            We think these properties       and funds are so plainly
            and clearly   impressed    with a trust in favor of the
            local public schools of the city OP district       that they
            are within the protective     claims   of both the state and
            federal  Constitutions,   and that the Legislature       is with-
            out power to devote them to any other purpose            or to the
            use of any other beneficiary      or beneficiaries     . I . . ‘I
            (40 S. W. 2d at 26)

     So far as we can determine       this trust theory has not been modified       and
still represents    the law of the State of Texas.       To give to $ 6b of Article   7
of the Constitution    any different   interpretation   would place it in irreconcilable
conflict  with $ 6 which vests title to school lands in the counties and provides
that lands,   and the proceeds     thereof,    held by the several  counties for educ-
ational purposes     “shall be held by said counties      alone as a trust for the
benefit of public schools therein       I~ . . . ‘I

      The    “notwithstanding ” language  of Article  7, $ 6b, cannot be held to
override    the “vested”   language   of $6 and thereby    violate   the Federal
Constitution,     Article 1, $10. Simpson v. Pontotoc        Common       County Line
School District     No. 31, 275 S. W. 449 (Tex. Civ. App.,        Austin,   1925, writ
refused).     In our opinion such language     has reference     only to the inve,stment
provisions     of $ 6.

     We think your second question        in fact involves  two: (1) How shall
distribution    be made where a school district       may lie in two counties with
a scholastic     resident of the district   in one county physically   attending
school in the other and (2) How shall distribution         be made when a scholastic
resident    in one county attends a school in a district      which is wholly within
another county?

    It is our opinion that where a school district   lies in counties A and B
with the schools physically   located in county B, county A, in distributing
its county permanent    school fund, should allocate    to the school district   a
pro rata part for each “scholastic”    residing in the part of the district    within
county A.




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The   Honora’ble    Ward    W.   Markley,     page   4 (H-47)




     On the other hand, in the second situation where a resident         of county
A attends a schoki in a district    wholly within county B, the commissions        IS
co’urt of county A has no authority     to allocate  any of its county permanent
school, fund to the school district   in county B.     Transfers   of students and
of funds pald by the State for their education      as well as tuition fees which
may be charged for transfer      students are covered      by subchapter   C of
Chapter 21 of t,he Texas Education      Code (5 21; 061 -to $ 21.063).

     Your final question has to do with the effect distribution  under $ 6b of
Article  7 might have upon the appropriation    of State funds to the county.

     Sectlon 6b specifically       provides:    “Nothing   in this Section        affects   the
financia:l aid to any school       district  by the State. ”

     The corpus of the county permanent               school fund has not been, and
could not ‘be, used in determining            the amount of State appropriations              a
school district     is to receive.      Article    7,   5  6,  Texas   Constitution.       Hence,
proceeds    realized     from distribution       of the county permanent           school fund
would not ‘be considered        part of the Foundation           School Program        ($16. 71.
et seq. 1 Texas Education          Code) nor used in computing             local fund assign-
ments (§ 16.76, et seq. B Texas Education                Code. ) Only county available
school funds realized        buy the district    are accountable        for Minimum        Foun-
dation Program        purposes     (§ 16. O),, Texas Education         Code). ’ Since county.,
available   funds are those funds realized            from earnings         of investments
of the county permanent         fund, a reduction         in the co,unty permanent         fund
would not affect the district’s         appropriation        of State funds except in one
indirect  way:     by reducing      the earning base.          Should the commissiohers
court decide to distribute         to the counties’ school districts            a portion of the
permanent     school fund, then, of course,            the estimated        county available
school fund (earnings)        w,ill be less than reported          and the Texas Education
Agency,    Division     of Finance,     should be consulted          as to the proper pro-
cedures   t,o fol:Y~ow in submitting      an amended or corrected             estimate.

                                 SUMMARY

              For the purposes     of a distribution   of county
          permanent    sc,hool funds pursuant to $ 6b of Article      7
          of the Constitution   of Texas,    the language   “on a per
          scholastic  basis” means on the basis of the number




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The Honorable   Ward    W.    Markley,     page       5 (H-471




       of residents   of free school age in each district.
       Each district    lying wholly or in part within the county
       should receive      its pro rata share of any distribution
       based upon its resident       scholastics.    Receipt    of
       such a share of the county’s        permanent     school fund
       does not affect the entitlement        of the district  to State.
       funds except ineofar       as the available   school fund in
       also reduced.

                                         Very    truly      your*,




                                         Attorney         General    of Texas

APPKOVED:



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                                                                        .       .




DAVID M. KENDALL,            Chairman
Opinion Committee




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