      OFFICE   OF THE   ATI’ORNEY      GENERAL     OF TEXAS
                             AUSTIN




5onorable   George 5. Sheppard
Comptroller   of Public Accounts
Austin, Texas
Dear Sir:
                             opinion    X08-1742




           We ar0 in racei
1939, which reads as r0u


                                            ection      10 bf


                                       thorized to issue
                                       claim in its present

                                       return    this   fils    with

                         o clearly   present the facts and ques-
                         his department, we consider     it neces-
                         material contained in the file      accom-
                                         The warrants which are
                          d to approximately    one hundred ninety
                       ate of Texas are in amounts ranging from
                    r.warrant to in excess of $25,000.00        per
 warrant,   totaling    $1,067,915.00.     Theclaims   presented to
 ybur department are listed       in the, following  manner:
Uonorrble   “veorje   H. 3heppard,      @ge      2


                      “Transportation      Ae;ort
      “District                                         Ainount of    ‘Narrant
                            Anderson County
      County Board                               $17,749.00      Transportation
                            Angellna    County

      county      Board                              11,784.OO   Transportation”
          Attached to this list,  which was apprantly      sub-
mitted to the State Auditor,  is the following certificate
which has not been signed or executed.
             “I, Tom King, State Auditor,  certify that
      the herein order passed by the Joint Legislative
      Advisory    Committee directing the psymaht of
      #.l,o67,915.00  is a procedure which will not pre-
      vent a complete audit of the transportation    ac-
      counts as provided in House Bill No. 933 berore
      rinalpayments   are made.



                          State AuQltOr and Brflciency           Expartw
             There Is also attached to said               list   of   proposed
warranta    the iollowlng resolution:
             Vu!SOLVED, that the Joint Legislative     Ad-
      visory Committee, under authority     vested in it
      by House Bill No. 933, Acts of the Forty-sixth
      Legislature,  Regular Session,   hereby approves
      for payment the sum of $1,067,915.00      for trans-
      portation.
             “The Joint Legislative    Advisory Committee
       hereby authorizes   and directs   the Comptroller    of
       Public Accounts of the State of Texas to issue
       his warrants against the State Treasury made to
       the respective   county boards or education    listed
       herein against appropriation     A 786 and deliver
       same to the Director of Equallzation     for trans-
       mittal to the various county depositories.”
Konorable   George H. Shapprd,   Fage 3



          This resolution   is signed by Olan i?. Van Zandt,
Chairman, Joint Legislative   Advisory Committee.
            The correspondence     in the file submitted discloses
that on Nov-mber 7, 1939, State Superintendent         L. A. Woods
transmitted    the foregoing   list of warrants to fronorable
George H. Sheppard, State Comptroller,        stating  that on Oct-
ober 10; 1939, %ransportation        aid was granted to the county
boards of education whose names appear bn the attached list
in amounts sat opposite      the names ,* by the Joint Legislative
Advisory Committee.      The following   resolution   passed by the
Joint Legislative     Advisory Committee on said date is set out
in the letter:
            vb?r. Smith moved that the Committee author-
      ize the Department of Education to make remittances
      to the several school transportation    systems of
      Texas, as authorized   in Section 10 of House Bill
      #933, in an amount of fifty    per cant of the actual
      grants approved for payment for 1933-1939 and all
      Suture payments of such transportation     grants shall
      be audited and adjusted for payment by the Auditor
      in charge of rural aid before any such payments are
      made. h!otion unanimously carri0d.w
            There is also attached to said letter the following
~sworn statamnt   by State Superintendent L. A. Woods:
            *This is to certify   that the reveral   grants
      herein stated,  aggregating   $1,067,915.00  are cor-
      rect and are unpeld and are due and payable as
      shown in the resolution    of the Joint Legislative
      Advisory Committea.~
           Under date of November 21, 1939, State Superintand-
ent L. A. Woods transmitted   the above mentioned list of war-
rants to Honorable Tom King, State Auditor and Efficiency
Kxpert, requesting   that ha audit the data therewith presented
and give his approval or disapproval.    The Honorable Tom C.
King, State Auditor, answered this request on November 22,
1939, as follows:
            mYour letter  requests that I audit the data
      and file  presented and approve or disapprove  same
      ror payment.
           “1 regret tha’necassity     of returning to you
      your request for a partial     advanoe disbursement
Honorable   Ceoxge U. Sheppard,     Fage 4


     of transportation     aid funds in the amoun: or
     #1,067,915.00,     appropriated     under E. 3. 933
     passed by the 46th fesular         Session of the Texas
     Legislatuze,     for compliance ‘Nit!I     the Following
     sections or parts of the follol*:ing sections           of
     the act:     Sections   1, 2,   3,  4,  6,  5, 10,  12,  13,
     14, 15, 16, 17, end 24.
           “The file submitted by you with your letter
     of :lovember 21, 1939, is bein-; returned to you
     herewith without action by this department due
     to inadequate inlormation   in the application,  nor
     has such information   been submitted to this df-
     fice in proper form for auditing;”
          On November 23, 1939, the State Superintendent    noti-
fied the Chairman of the Joint Legislative   Advisory Committee
that the State Auditor had declined to give his approval to
the payment of said claims and therefore   the State Superin-
tendent was appealing this case to the Joint Legislative    Ad-
visory Committee for a decision  on the matter.
          ‘The Chairman of’ the Joint Legislative    Advisory Com-
mittee replied to this letter    on Kovember 24, 1939.     :‘!e quote
in part Iron; his letter  since it suggast$ the theory upon
which the Joint Legislative    Advisory Committee and the State
Department of Education directed     the Comptroller  to issue the
warrants in question:
            n       I also note that you have asked the
      Joint La~l~lative    Advisory Comittaa,   whose powers
      are particularly    sat out in Section 1 of said Bill
      and in Section 17 thereof,    also,  to take this
      matter into consideration.
            “In view of the joint authority     of said Corn-
      mittee and yourself    to allocate   and expend monies
      appropriated   in said Bill for the purpose of more
      equalizing   education opportunities    in Texas, I
      as Chairman of said Committee, consider that the
      authority ‘granted in Section 1 is of superior      au-
      thority to that granted the State Auditor’s       De-
      partzent in Sect.ion 17 thereof.      However, IL view
      of the controversy    which has arisen    and in ra-
      cognition   of the appeal taken to se i d Committee,
      I am directed by said Committee as Chairman thereof
      to pass to you the folio;?-ing information:
Zosorable         Ccorge H. SheFyard,   Page 5


               *The Committee has taken up and considered
         the appeal in question as shown by the 1et:ar
         attached and arter fnil deliberation    and consider-
         at.ion thereof apair ;:ders  the pagzient. of .:l,Ce?,S;z,
         as shown by the attached srder passed b:? :P,e Corn--
         mittee on October 10 and shown In your letter       to
        the Comptroller   under date of November 7, and you
         are further advised that said Joint Legislative        Ad-
         visory Committee in all things approves your ask-
         in;r the Comptroller to issue warrants as hereto-
         fore outlined .v
             He shall not attempt’to review ail of House aill
 so. 933, however, it will be necessary to discuss   in general
 the provisions   of the Act,
               Xouse Eill     NO. 933, Acts of the Forty-sixth              Legis-
 lature,     commonly known as the Rural Aid Equalization                  Law,
-appropriates       $6,825,827,00     for the aid of public schools
 meeting the raquireuents          of the Act for the school year end-
 ing August 31, 1940, and allocates              $2,160,373.00        for trans-
 portation     aid.     (Sect2ons 1 and 11).          Allocations      are also
 made for salary aid and high school tuition                  aid.     All school
 districts     in the State of Texas are not entitled                 to prtici-
 pate in the distribution          of the money thus appropriated              but
 the Act contains detailed           qualirications,       requirements,       pro-
 visions     and procedure to be Pollowed before the money therein
 appropriated       shall be paid to the various districts.                 Some
  of the elements to be tqken into consideration                   in detarmin-
  ing the aligibillty        of a school district         to receive aid under
  this Act are that it shall coma within certain                   minimum and.
 maximum scholastic         population     brackets     (Section    2); the
  school shall not be located within two and one-half                     miles of
  another school OS the same race (Section                3); the district
 must be voting,        levying and collecting         for the currant year
  a local maintenance school tax of not less than fifty                     cents
  on the one hundred dollars           valuation     (Section    6); proper
  applications      must be filed before October 1, 1939, and ap-
  proved and audited and allotments             made based upon such ap-
  plications     (Sections     13, 16, 17, 23); districts            must show
  a budgetary need for aid (Sections             10, 12 and 13) and other
  provisions     not necessary to mention here.

                  Section 10, which specifically        refers    to transporta-
 tion      aid,   reads in part as follows:
Honorable George Ii.Sheppard, Pago 6


           *Th e
               lx p enmOf 8Wh tran8QOrtatiOn 8hell
     be paid on the be8i8 of budgetary  need a8 Indicated
     by apprOTed State Aid aDDliCetiOll,out Oi the
     fWih8 herein allocated for tran8pOrtatiO!l aid,
     . . ."
          Seotion 13 provides that *no application for aid
shall be approved until all appllcatIon8 ill d on or before
&ztober 1 of the current year have been oon8idsr8da and also
reada in part:
          R      Provided, (1180,that all aid grent8d
     out of’t~e’funds herein provided shall be alloted
     only on the ba8i8 of need, bh8ed upon a proper
     budgeting of each dietrlct asking for any type of
     aid. The application shall be 8worn to by the
     County Superintendent, president and secretary oi
     the board of trustees of oaoh Of the 8ChoOl8 ap-
     plying for aid. All aid granted out of the find8
     provided 8hall be rllotted only on th8 ba8is Of
     need based upon an approved budget of eaoh dis-
     trict asking for any form of aid    eroept a8 other-
     wise provided in thi8 AOf.   All ippllcations for
     aid authorized herein ehall be on file with the
     State Department of Eduoatlon not later than Ooto-
     ber 1 of each year Of the biennium,   end anr rchool
     not filing such applioation before 8uOh date of
     each y8ar shall Dot be 8ligibl8 for aid for th8
     ourrent year and lhall not,be ooneldere’dor lpprov-
     ld for the type ot aid appllod for.’

           It ir provided in Seotlon la thatt
            o    . It rhall be the duty of the State
     Superf&~ndeot of Public InstNotioe to appoint
     the number ot t3eputyState Superfntendents here-
     Inafter  authorized  to make a thorou   inte8tiga-
     tion, in per8on, of the grounda, bar ldlng equlp-
     ment, teaching 8t&,     8nd rinanclal condition or
     eaoh rchool appl ing for aid; and no aid 8hall
     be given unle88 ft oan be rhown thm             prori-
     dons of thi8 Aot have been complied with, and
     that such 8mount of qid i8 actually needed. . .I
          The Legislature toreear the de8irability of making
 aynent to the variour 8chool district8 without extended de-
Pay and provided the mrthod for 80 doing in Saotion 16 whloh
,



    Honorablr Georgr H. Sheppard, Pago 7


    read8 in part:
               Wet later than January 15 of eaoh year, the
         8tat8 inspection 0r all Rural Aid School8 8hall be
         completed. Initial payment by warrant of not more
         than fifty per cent I5051 of the total amount al-
         lott8d to any on8 school shall then be made, as
         -inal      payment8 rhall be made    a percentage
         baai   to 8uoh 8ohool8 in 8uoh manner that all
         8OhOOl8 whose application8 for aid have been approv-
         ed, 80 that each school will reoeire the same pro-
         portion of aid."
              Section 22 oontains the following provislon8:

                “All applications . . . for traneportation aid
         coming within the general provirionr    of Section 10
         of thi8 Act rhall firat be considered, and if appror-
         ed in the manner authorized and dlreoted herein,
         =a11 first be paid out of thr appropriation madr
         for each of the year8 of the ourrent biennium In
         the manner and method herein direoted, and 8aihaid,
         lr 80 granted, Fhall be first paid out 0r the ap-
         propriationr, and allocation8 herein made to an amount
         not exceeding one hundred per oept (100%) of the
         approved grant    therefor, and all lxoeptlon8 to the
         general    law permitting and granting aid to the 8ev-
         era1 rohool dirtriotr of thi8 State 8hall be paid
         only if and when tho8e approved appliOation8 oanlng
         dthln the general prorlrionr 0r thir Act harr rir8t
         been paid, and ruoh eXOOptiOn8 8hall then bo allowad
         and admitted a8 approved, and upon approval they
         ahall be paid out 0r 8uOh allooationr nmalnlng WI-
         lx p endmd   a nd
                         th eupon
                               n a pro rata per oaplta bari
         Out Of the iundr remaining unoxpondrd in laoh oi the
          lllooatlon8   heroin made and not otherwler. . . .-
              Bo oitatlon of authority ir neoorsary to rupport
    the proporition that the appropriation8 made la tb above
    bill are to be oontrolled and expendrd under the provision8
    thereof and not under the term8 of the Aot oi the Forty-
    riith Legislature or the application8 filed and approved for
    the year 193S-1939. The Act 18 clear that a rchool, to re-
    oeiro any aid for 19394940, must properly rile it8 appllca-
    tion not later @an October 1, 1939, 8how a budgetary need
    for the ourrent year and meet the other requirement8 bared
    upon the current rohool year. When the application8 are rem
Honorable Ceorgr H. Sheppard, Page 8


ceived in the State Department of Education they are then
inreetigated (Section 12) and none oan be approved until
they have all been oonsidered (Seotlon   13). The purpoe.0
Of thi8 inYe8tigation i8 not  to determlnr whether the money
has already been properlJ 8pent but to serve a8 a be818 for
approval or rejection of filed applicatlona, wand no aid
shall be given unlese it can be shown that all provisions of
this Act have been oomplied with, and that such amount of
aid 18 actually needed." (Section 12).     The investigation
must be complete& by January 15th of each year. Then the
Initial payment dot exceeding fifty per cent (5Omall       be
made, i.e. after the investigation Is oompleted. When the
inrestigatfon ir oom leted the Department 18 prepared to ap-
prove Or reject appls CatiOn8. The Legielature having ro-
rlded that traneportation aid ehall be paid on the ba8P 8 of
budgetary need "a8 indioated by      roved State Aid gppllca-
tion," and that after the invest       on or    licatlon8 has
G    completed partial payments        hen beaLide viethink
the legislative intent i8 clear thatpartial pa&t8       are
not authoriied before the investigations are completed and
applications are approved.
          The reoord presented to U8 doe8 not show that any
appllcatlons for 1939-1940 have ever been approved and B are
informed that the Deputy Stat8 Superintendent8 are now en-
gaged In their inYe8tigations.

          It ha6 been suggested that Seotions 1 and 17, to-
gether with the action taken by the Joint Legirlatlvo Advieory
Caninittee,may nerve a8 a baai for the proposed a&ion; hdw-
over, we do not think they are controlling of the leaues hare
presented.

          Seotion 1 maker the appropriation and provide8 that
the money ir tot
           -. . . be allocated  and expended by the
      Stat8 Superintendent of Publio Inatruotlon through
      the Mreotor of Equalization in the State Depqrtr
      ment of Education and under the eupanieion and ad-
      Yioe of the 8ppeelalJoint Legislative Advisory   Corn-
      aittee oompoaed or r0ii0ting memberr: . . .~ . In
      addition to other power8 and dutie8 they 8hall haYe
      appellate and final jurisdiction on all matter8 Of
      dispute between said Department of Education and
Honorable George H. Sheppard,          page 9


     any applicant for aid under the protilrions and
     tbna8 of this Act, and until otherwise ohanged
     and directed all rule8 and regulation8 of the
     State Board Of Education shall govern the di8po-
     8ltion of all application8 for aid under the pro-
     vision8 of this Act; and said Committee shall
     have no authority to make any grant or aid except
     thet authorized by this Act. . . .4
               Seotion 17 provides:

           “The State Auditor’s OfflC4 18 hereby dl-
     rected to audit all.appllcations for aid after
     same have been passed on by the Director oi
     Equalisetion and when such application has bern
     approved by said director, it shall then be the
     duty of the State Auditor to approve, or reject
     8uoh applioation. Whenever there 18 a difference
     between the State Auditor and the De artment of
     Education, th8 Joint L8gislative Adv P eory Committee
     ahall adjuet same on the request of either depart-
     ment .4
          In this oonneotlon we aleo note that part of Sea-
tion 12 whloh proridee:

               “It 8hall be the duty of thb State Superin-




      jeot to tlm approval of thr   Joint Legislative    Ad-
     ‘visory     Coamlttee       in this Aot, and tar the
                             created
     best intere8t Of th8 8OhOolS iOr Who84 bensfit
     the funds are appropriated.    . . . Provided.    how-
     ever, that no regulation    of the State Su      it
      z    State Board of Education or Joint ~~~s~a%;
      AdYi8ory Cuamlttee 8ha11 oonrllot with any pro-
      visions 0r thir Aot or any present statute. . . .4
          As indloated b the sections or the Act hereinabove
disouseed It ir our opin Ion that the payment of money out
of this appropriation other than upon approved applications
would be contrary to and inconeirtent dth the express pro-
visions 0r thir Aot. arid0 from any question 0r auditing.
                                                           -     .



~6norsblo George 8. Sheppard, Fage 10


Clearly the provision of Section 1 plsoing the rpending of
the money under the asupervi8ion and advice* of the legls-
lstivr OomIaitteedoe8 not empower the oommittee to suepend
the provirionr 0r the law and provide 8 different ba8i8 for
payment. Likewi8e we do not think the arising of a *dir-
ferenceR between the State Auditor and Department of Educa-
tion, aesumlng a dlfterence a8 oontemplated by Section 17
has arisen, wa8 intended to have the effeot of expanding
the power8 of the Committee to the extent that it might
direct action oontrary to the express provisions of the
rtatute In adjusting such ditf6rence.

           It ir our opinidn that the Comptroller of Fublio
Accounts   i8 not authorized to issue warrants in payment of
the Olaim8 referred to in your letter of request in their
present Status,

                                        Your0 very truly
                                  ATl’ORllEY GEHEFfAL O~mTEXAS



                                  BY
                                             Ceoil C. Cammack
                                                    Assistant
ccc:Im


APPROVED DZC le, 1939
(8) Gerald C. Mann

AlTORwY    GENXUL OFlmAs



                                               APPROVED
                                           oplnlon oommitte4
                                              BY BwB
                                                z5ziEzin
