                                       Ausx-m,        TIEEAB
-GE   LDANIEL
---


                                     i&ria       -1.1, 1949


                           ,, ..,                         .
      Hon. H. A. Hull, Chairman              ’         Option      No. v- 784
      Committee    of the Whole
      House of Repres~entatives                        Re:     Constitutionality     of S. B. 19,
      51st Legislature                                         5lst Legislature,     supplement-
      Austin, Texas                                            ing State Aid appropriation
                                                               for teachers’ salaries.

      Dear Sir:

                      Yo~ur request for anyo&ion’of        ‘the Attorney General in-
      quires as to the’constitutionality    of Senate ‘Bill 19.’ Slst Legisiature;
      now pending in the House Committee          of the Whole, and whether anyof
      the money appropriated      thereunder may be used kthe         payment of in-
      t.$rest on moniy~ bor:owed     by any individual or’Subdivision ,of the gov-
      ernment to meet the obligations      proposed to be covered~by~ this supple-
      mental appropriation    bill,            .:

                        Sections    1. 2, and 3 of tbe~pro$o&d           bilI are:

                         “Section 1. There is hereby . . . appropriated.
                the sum of Three Million ($3~,000.000.08)    Dollars .as.
                a supplemental    appropriation to the funds appropriated
                for salary aid in House Bill No. 295 of the Acts of the
                Regular Session of the 50th Legislature.

                          “Sec. 2.’ The ‘funds herein aspropriated      are to
                be used to supplement payments for salary aid for the
                 first year of the current biennium 1947-1948        Andyfor ’
                 any other legal purpose.     It is specifically   provided
                that the expenditure of this supplemental        appropriation
                 shall be made under the same~t.&ms         and conditions and
                 in the same manner as~the payment of the regular ap-
                ‘propriation for salary aid provided in House Bill No.
                 295, aforementioned,    were made, and is to be propor-
                 tioned by the, schools which are eligible to receive such
                   .
                 aid under the provisions    of House Bill No. 295,,whlch
                 schools have been approved for certain amounts, here-
Hon. H. A. Hull, Page 2      (V- 784)




       tofore, so that each school is to receive the same
       proportionate share of this supplemental     appropria-
       tion, and the amounts prorated to each school out
       of this supplemental approprfation   together with the
       amounts heretofore appropriated for salary aid in
       House Bill NO. 295 is hereby designated to be in full
       and complete payment of any claim made by any
       school for salary aid under House Bill No. ~2.95 for
       the first yea&f   k&e &-rent  biennial   i94;%1948.             ‘,    “’
                                                           :’

                “Sec.:3.  All applications for salary a&in    I1       ’ ~. ~~’
       order to be eligible to participate in the provis~ions
       of this Act, shall be eligible for aid under the pro&-          ‘.   ” ‘-
       siotis of House Bill No. 295 of the Acts of the Regu-
       lar Session of the 50th Legislature.”

                The 58th Legislature  ,in Article,%III of H. B. 295, the
State aid,school law fork the biennium 1947-49; made ‘the following ap-
                                                                    ...
propriation:

                “Section 1. ‘Appropriation.     Par the purpose
       of promoting the. equalization ‘of educational oppdi-
                          .
       tunities afforded by the St&       of Texas’ ‘to all enu-
       merated scholastics     within the State‘.as hereinabove
       set out. there islhereby,appropriated       out oft the Gen-
       erdl Revenue Fund of the St&e k Texas,~ not other-
       wise appropriated, .the sum .of Eighteen hlilliop Dol-
       lars ($18.000,008)   for the fiscal ‘year ending August
       31, 1948. and Eighteen Million Dollars ($18,800,008)~
       fork the fiscal year ~en.ding August 31. 1949, or so much
       thereof as may be necer iary for the bienniums ending:
       August 31. 1949; to be allocated and expended under
       the provisions of this Act by the State Department         of
       Eclu+lon     and under the supervision, of the Legisla-
       tive Accountant.                _;    .. :, __;~:

               ‘Sec. 2. Allocation..  It,.is he&by.specifically
       provided that out of t&money      appTopriat&d ~for.e&h
       school year of the biennium! the sum,‘of Ten lvlilliou,
       Seven Hundred and Seventy Th+is&D~llars,            ($18.778,
       000) is hereby s.et aside for salaiy aid: . .,.”

               It has developed that the 50~~‘~L~gis~atur~‘underesti-
mared the total valid ,claims of elig+ble school districts  for teacher
                                         .’
 Hon. H. A. Hull. Page 3         (V- 784 )      ; ~.~~ -       ~~    ‘~   :, 2 ,:.   ’   ‘. ._




 salary aid under H. B.: 295.. presumably           to the;extent .~f.~.Sa.000~,00q.O9..
 for the 194,7-48, year of the biennjum ~s+r+d       to .the. extent .of $8.088.080.80
 for the 1948-49 year of the biennium, ‘kpxding:               to :the estimates. fixed
 in proposed~ 9.~ B. J9,.
                     ..,,                                                      ., . ..
                   Our s,tuay. ofi&      law relatiirg’:to this proposed &isla-
 &n’ has ret&red         a thorough’investi&ioq        of the background,. facts,
 and~purpqses’. Gf the, appropriation.        !C$is~ $a .true:especially    ~with ref-
  &ei&tO      the prop,osed~$3,08b,OOO.O8’to         pay in full the.t&al     salary,.,~
  aid, appIied for by eligible districts~ acting under, H., Bt 395~ for Ethel;                   .
  1947-48 fiscal yeaqthe        first year oft the .pre+ent ,bien$um,,           : i, .,::
                 ..,     ,~
                 . Wee finds that the 58th ~Legisiatqrey in Ax$& IH of k k.
  2.95 fried the salary ‘schedule’ and Jength of, &m’.t&che,rs         tb&e$n~shall
   serve:and be paid, Eighteen million dollars <“or so much’ thereof           as ~,:
   may be~necessary”     was appropriated for each year of the biennium.
   When teacher contracts were entered prior to September 1.1947; ther~e
  ,was no.apparent    reason to doubt the sufficiency      of the appropriation;
: The Act provided that, ‘Districts~ receiving aid under the .provisfons
   of this Act shall issue warrants for not to exce,ed the amount approved
   in the budget . . ;~” The’budgets   of .the varjous:,scho@     districts, which
   were prepared in August 1947. were approved by the State .+gency.             On
   the basis of such approved budgets. various contracts with teachers
   were entered into.

                    However, as early as, O&be4      .,& 1947,~ .it ~was _:&ident.
  and so announced to County S.upeti&ndents         and Superintendents        .of.
  E&alization    Schools .by.letter from~ ~the,Director of F,&lination,         State
 .Department, of. Education that”salary      aid ,w$ll’be approximate>y ,I656
  shor~t ,th+ _year.’  That .Jetter sa+d further:        .~ : : 1, ~.: :, .-~,

                        “The&&B        be no cut of ite’ms in the b~udget,,, ;’        1’
              but the.‘reduc&in:.wi$.
                             ,.   ~~      come in the mG. .salary.grant.           .,, ’
      Jo ., .,on :a! percentag.e. basis.~ Teachers’ salarie,s:m@.&        .I: ;: /s       ,’
              conwue’to     be paid on the schedule;        If the schoo$ . . .. . f,
              does not have enough money in the allowance             per
    . .:.     tea,&     ~and/.or. local tax above the 50$ rate to pay
          ,, ,ule tot+ salaries      for.&   full term,,‘it will be net?,. j :.
              ossary to cut .the term short ,N avotd a defi.c% in,
              the~&uda .of the.$ocal school,..B.is       ‘not advisable to .,.’ ~.’( ” ~1.
              run into a def$c$f,*                                             .,.

                     By Ma&h 26? 1948, it wasevide’nt and so announced by
  then‘l%ekt&     ‘bf~~ipi&z+io~ t&t final salary aid payments for-194’7-48
1411,Hon.   H. A. ‘HuIl, Page 4    (V- 784 )




      would be 20% short instead of 16%. In the meantime a specialsession
      was requested by the Texas State Teachers     Association   and certain  ..
      school and State officials to make up the deficit,   Thereafter, the Go+
      ernor worked out a plan by which the banks of Texas would advance        ~.
      necessary  funds to the teachers or the districts  to keep the schools
      open for the full term> and avoid a special session of the Legislature.
                                                                    i
                        .Gn April 1. 1948, -the Joint.Legislative   Committee,   after
      conference     with the .Governor and State Superintendent of ‘Public In-
      struction, adopted a resobttion’requesting        the State Superintendent to
      make payment of 50% of State-aid grants ‘tothe school districts           “at
      the earliest time possible,     the first week in September,     for the next
      fiscal year beginning September 1, 1948.”         The:purpose   of this advance
      payment, for the 194~8-49 fiscal years was stated in a letter of August 2,
      1948. from the Directorof      ,Equalisation.to   County Superintendents    as
      follows:    .’        ‘.~;

                -,
                        ‘The   advance ,p+yment is being made early
               in 1948149 in   order to make up ,for the deficit on
               1947-48 until   the Legislature meets’ and makes ad-
               dition&funds     ~availabl,e.‘”      :.

                       It ~appears that various school districts      and banks used
      various methods to provides funds for teachers’ salaries’ during the
      deficit period.. A few districts     are reported to have made no addi-
      tional payments,     merely~proinising    to do so if and when the money is
      made availabie by the ‘Lk@sl$ure.          Other districts issued deficiency
      warrants iinciek Sictipn 2 Of’Article      IX of H. B. 295.   In some cases
      the banks’ m’ade ~persbnal~loans to’the teachers to be settIed if and
      when their additional warrants are.paid.          However, most districts
      are said to have borrowed the necessary          funds direct from the banks
      and already repaid them out of the advance of rural aid funds for 1948-
      49. In the latter instances;‘there      his now’~no debt tomthe bank3 for 1947-
      48 salary advances,     the sesame.already having been paid from 1948-49
      funds.
                       :._    .~                                      .,

                       ~For the sake of~the record, it should be not&d that the
      Attorney General was not consulted as to the validity and~constitu-
      tionality of these ‘transactions. oneany phase ‘of tbls question., The plans
      were negotiated and followed without our knowledge or”advlc&

                          we are calle.d upon~now for the.first  time to pass upon
      the legality   of, this borrowing by the -school districts   because of your‘
       Hon.    H. A. Hull,     Page    5   (V-   784)     y ~~      ’




       question’as’ to whether ,the’Legislature’can    authorize payment of in-
       terest on money borrowed b,y any individual or district to meet any
       portionof   the !$3,008,000.08 deficiency;   .This we answer in the nega-
                               .I
       tive,

                      -School ~Districts are not authorized, to ,borrow money
       in excess of their anticipated current year revenues.       Clearly H. B.
       295, Acts 1947; 1contains .no~pr,ovision ‘authorizing eligible districts to
       borrow money and pledge anticipated revenues therefrom          in ~payment
       of loans.
,..:


                             Article   2827,     ,V. C.. S.; authorizes      a’school   district    to
       bor,row ‘money on a short term loan to pay, salaries     and interest
       ,thereon, but it has ~dhfinite limitations which control:~our present
        question.  It reads ~in’nart as followsi

                          “The public free school funds shalI not be
                 exp.e.nded except for tbe~foIlowing purposes:
          7’

                          “1. The State and county avail.abIe funds
                 shall be used exclusively    for the payment of ( ~.
                 teachers’ and~superintendents”salaries,       fees
                 for :taking the scholastic  census;’ and interest tin;
                 money borrowed’on      short time topay-salaries        ~~..           ,‘:




                 of teachers and superintendent.s,~ wbenthese       ~sal-.
                 aries become due before the”schoo1. funds for then.
                 current year become available;      provided that no :
                 loans for the purpose’of’payment      of teachers      :I
                 shall be paid out of funds other than those’for        the.
                 then current.year.”
.
                                                                           .~.
                                                     ‘              ~..
                         ‘A&m&that                 State-aid     funds are’ inciuded,in-the        above
        authorized use, they are specifically~litnited   to Yhose for .the then
        current year”.    No district could have anticipated full State-.aid salary
        payments Zbr 1947-48 after’ being notified of at least a 16% shortage by
       ‘the Director of’Equalization   on October,l5,  1947. ‘as heretofore  sit,Out.
        At such time when those sources bf school revenue which could be.
         reasonably anticipated by the district proved to be inaufficient..to meet
        the expenses of that current school year, the district trustees      were
         without authority t&borrow money and pay interest thereon for the
         Payment of its teachers’ salaries.

                          This has been ,&e consistent                  holding, of,our Supreme
       Court     under statutes other. &&I.   ,B; 2~95.                 Thus in Collier v. Peacock,
                                                                                             .   .



42
         Hon. H. A. Hull,           Page      6       (V- 784 )




         93 Tex.   255,   54 S.W,           1025 (1900).      the Court held:

                             Y. . . the trustees were not authorized     to
                   contract any debt which would cause a deficiency
                   in the school fund of the district; in other words,
                   they’ could not contract debts in employment        of
                   teachers to an amount greater than the school
                   fund apportioned to that district for that scholas-
                   tic year.    This limitation upon the power of the
                   trustees in making the contract with the teachers
                   necessarily     limits the payment of the debts . . .
                   and any debt contracted       greater 2 . . would be a
                   violation of the law, and constitute no claim
                   against the district.    . . . The trustees were au-
                   thorized to expend the sum set apart to the dis-
                   trict, but not empowered to contract a debt
                   against-then funds of future years . . . .”

                              And in Warren v. Sanger I.S.D., 116 Tex. 183, 288 S.W.
         159 (1926),   the Court wrote:,
                                            ~’ )
                               >
                              “The ‘act of defendant trustees,   however
                   commendable.       the spirit in which it was done,
                   creating the debt here sought to be paid, was.
                   void.   It was contrary to the express provisions
                   of law.:;:.‘art.  2749 forbidding trustees to create
                   a deficiency     debt .against the district in the em-
                   ployment of teachers.         The debt as against. the
                   district being void, there was nothing for the         (~
                   school authorities      t&pass on. . . They.couId.in
                   no event,, have decided in favor of the application
                   of the. 1925 .taxes to the payment of the deficiency
                   cre,at+d in a ~previous year.” ~.                      .’
         ‘.
     .        .

                   ~’The most recent: case fin point is that of C~ity State Bank
     of Wellington v.. Wellington I.S;D... 142 .Tex.~ 344, ,178 S.W.2d 114.(1944)
     where Justice.Brewster     said for the Court;

                            ”
                                . to permit,the,‘bauk
                                    .   .               to recover.from
                   the district’s  delinquent maintenance      taxes on   ~: .‘/    ‘:
                   checks issued against its available school fund,
                   . . . would be to circumvent     the express provi-
                   sionS of Art. 2749 . . ~. as wel1’a.s. the plainly im-
                   plied prohibitions   of Art. 2827, .L. . unequivocally          ‘~’” ‘.

                                             -’ -..
.   .
         Hon. H. A. Hull,               Page      7    (V- 784 )
                                                          ( / .‘~,.                                                       .~.
                                                            .
                       provides that ‘trustees,       in making contracts     with
                       teachers,    shall not create a deficiency debt against
                       the district.*    . .~ . That is, no valid debt can be
            .   ..    ‘created’against      the ‘available fund; to .pay teachers .~~;
            ’ ; : ‘. .~,d&+s         ,a&,   c&&nic:m’bs           p&d    out     of avail&le.cw&;                        ’ :,
                        &o&g          iiif~r~that~~ear~~;.,“,,             ,:I    ’     :..’ I”’   ‘s.y;~.~-:.,_, -       :
        ,<~‘.        “:   _,_:       :’          ‘.~.:  .~.                ‘..     .~
                            2: ,oUy. ~ox&.itu&~~~ &&ide.~~ i&h*, ~The~,Le&lati&         shall
            haveno power :. . T to ; ;:I pay. nor authqrine ,the paymentof,~,any          claim
            created against anycounty         or munipipalityof     the,.State. under any, .agree-
            ment or contract,       made without authority of law.’ Art; III, Sec. 53.         A
            scbool~district     is-a !‘munlcipallty”  =&binthe     ,meahing of that Section.
        :,. Har1ingen~~:I.S.D. v. ,C,.H, Page 8. Bro.,~,.48..S.SV.2dY983.~, (C,omm. App. ~1932).
                                                ,.,
                               .Therefo.re. the Legislature     is without authority .to appro-
            pii+    moneyto ,pay interest on,such unauthorized debts’ or to payd,the
            debts. themselvest         .
                                 .    &&,       &gate+er         &i.he     ~said’.her&&f&r                  .a&ut     pr&xib.ng
        ‘;+&, $ip&jrhg       a $‘i&&t.  apjii+a&+           f&..p+,.&nt~+f   1947-48~ teacher
           ;&$i’es,~‘&&    ;&me &dd”no+      aiiply..to.&     appr:opriation ‘tobajt inter:fst od
              .<
           ftinds.borro$ed    for ~such purposk,‘by ‘then“i5trict~or;~y~in~~dual.           ‘,
          i;.                                          . ..
                                      Section:44          of .Article    III, ‘Constitution~of              :Texas,.prouides
          gp&:           1;                                                                                                .,:
                                                              .“.      :
                          :      :                        ‘.                                         -_ ;
                                   “The Legislature      &II     not ; . .! gfa+,  -by .: ~. .’ .:;I .,~,+-
                          appropriation     or otherwise,    any money out.of the
              .     ,)i Treasury      of the State to .eny.individual,       on a claim.
                   v~: .real.,or pretended, .when the:same, shall .not shave..
                      . . been~.provided for.by pre,existing~ 1a.w;~. ~W+*               ;’      ~~ I~
          .     -,          .’                                                        ~.~ :_ T.;
                                   Neither H. B. 295,~ Actsl947,,        nor any others pr,eaxis+g
            law, authorizes         borrowing of money and.payment of interest thereon
            by a school district. or. the St&e, unclqr: the. circumstances                noiv before US.
           ‘Therefore.         in the absence., of .the:required     preexisting,law.       an appro-
            priation to pay interest or the use of any part of: the ~money’appropriated
            byeS. B. 19 for payment of interest would be’unconstitutional.
                        .          $ .B. ,.i9 doe; no; C‘pecin&&$ ‘i;lkntio& inte;est,           but You

           have asked the question under- the impre.ssion          fhat payment.of.:inter-
           est was contemplated        by the following underscored       portion of the
           phrase in Sect&        2, “6 be u&d‘t& supplement payments           for salary
           aid . . . and
                       ”  for’
                             ..&,    &&ie     21   &‘-yoiee” .; ~‘
                                                                 mese  mder&$e~a     wor&
                                                                             ,.
           replace the Gords “and for no other pimp&e* .-in other ‘similar bills.
           It is our opinion ‘that “the: phrase ‘“a&i for ‘any other’ le-al      Purpose”
           will not itself support the e%pendlture ‘of ‘any,money for’any’purpose,
           because it is too~bro,ad,~.general,and       uncertain.    Section 6 of Article
           VIII of the Texas Constitution        provides,   “No money shall be drawn
Hon. H. A. Hull,    Page 8    (V- 784 )




from the Treasury     but in pursuance of specific appropriations    made
by law. ” The phrase above quoted cannot qualify as a specific appro-
priation.  National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.td 687
(1940); Dallas %ounty v. l&Combs;        135 Tex. 272, 140 S.W.2d 1109 (1940).
It should be rewritten so as to state clearly and specifically     what it
is intended,to cover.   ~If it is intended to cover an illegal expenditure
 such as interest, the phrase should~be eliminated.

                  While the Legislature     cannot constitutionally  appro-
priate money to pay interest on unauthorized debts of school districts,
our next .and most vital question presents an entirely different prob-
lem.    The cases heretofore     cited dealt with powers of the districts
under the general statutes.       The districts  clearly had no power, under
the above cases, to borrow any money for the purposes here under
consideration.     But now we are considering       the Legislature itself and
its power to correct and amend in the same biennium its own estimate
of ‘the amount of money it feels necessary        to carry out a program it
prescribed   itself and proposed to carry out through the various dis-
tricts.   The question now is whether the Legislature         may supplement
the appropriation    of the first fiscal year of the present biennium for
the purpose of paying direct to school districts        the amount of salary
aid they qualified for and owe to their teachers under H. B. 295 for
the 1947-k8 &ho&year.

                 Here we have no question of preexisting    law. H. B.
295 provides that the teachers    shall be paid a salary within certain
specified limits.   It provides the,length of the school term.   And it
authorizes the issuance of warrants to cover such contracts.       It pro-
vides in Section ~2 of Article IX that:

                 “Districts  receiving aid . . . .shall issue
         warrants for not to exceed the amount      ,approved
        in the budget . . .*
                                                             ...‘.
Further,     the Texas   Constitution,    Section   1, Article   ~VII, reads:

                    “A general diffusion of knowledge being es-
           sential to the preservation    of the liberties and   ”
           rights of the people, its shall be the duty ,of the ~Leg-            -
           islature of the State to establish and make suitable
           provision for the support and maintenance, of an,
           efficient system of public free schools,.”
.   .



        Hon. H. A       Hull,     Page   9    (V- 784),:::.            .‘.i:   ::               !j T   ~.   .: ..:X.:T




                                         .-‘;i’, ,.     ~:,,     .,,‘.~, .,         .:,   ,,.
        .&d    in Se&oh         3 of .+.hd,&me        :&r&lei;       we read:’ .                 : ;
                           ,.                                      : i .” : I~ i ., ..~.>,:~
                            y . ’. ; provided.: ;howev&; that sh&ld the :
                   limit.of ~taxation herein named. be insufficient   the                              :
                   deficit may be met by appropriation       from general
                   funds of the, State . , .”
                                         ,
                             ~The’use of generel’:fuirds’ for paid to rurkiikhools          and
        -the broad atithdrity       of the Legislature       in such matters was ,settled by
         the Texas .Supreme~Colvt          in~Mumme~v:Marrs,:lZO              Tex;-383,  48 S.W.
         2d 3l,.whereip.the.Court~said:‘.             ‘~ Y. .; . ” ,~ ,.., .,e. .Y:- ,.~
                                            .:     .‘..:I
                .1 .         ,-Since the Legislature        .has the- mandatory
                   ~1dutyto &ake’suiGible         provision for the support
                      cand ~m’aintenarke of ;anefficient      system ‘ot:publ,ic “1 ; .j’
             ‘~* ~’ free. sk!hoo&. ‘and has the power to pass rury,~law :i~
                    ;;relative   thereto;not    prohibited by .the. CoastituY     _.: :
                       tion; it necessarily   ,foilows that it has a choice in- .>
                     : the selection of methods by,. which the ,object .of i ,. : ,_
                       the organic law may beg effectuated.         The Legis-
                 .‘J:‘:lature alo&is     to judge what means- are:nec.essary             5
                                     .
                      ‘and approprrate for a ,purpose which the Constitu-              ? -: :,    J’;,.
        ’ .‘., T:,: -tion makes legitimate.         The Legislative-determi-,.      ..       :“‘Y’ ; ;
             ,’ .‘:.nation-of the.methods.         restrictions,   and regula-.::         .:i: I :~ :..
        :-.:   :-i tions -is final, except when so arbitrary.as-        to .be ,:+. ; ,..,’I:‘:. ,,
                .” violative of~.the~‘Constitutioual~rights   of. the citizen.?~ ~.,: :I.
                               .. .                         .~ ,,.   ,.     ,,,.il. ._,;-. ,iz . ..::i..
                          Under this Constitutional   authority. the Texas. Legis-
        lame     has many times~ supplemented     rural aid funds.for previous
        years    of the same biennium.   In those instances,    as in the .present ~.
        case, the previous Legislature           underestimated        .the needs.for           the.”
        biennium. : The previous Legislatures,              having appropriat+,a                lesser
        sum than was needed. left no -duty or legal.obligation                  on the subse-
        quent Legislatures’to           ma&e a supplemer&        But each subsequent Leg-
        islature has evidently assumed that the Constitution                   and: former ap-
        propriation bill was sufficient.preexisting             law.:.towarrant           the use of
        its discretion in mahing the’supplf?mental,appropii~~on.!:                       ,Seme Of
        the past instances are 8s foliowsi.            ~::.   -~~, :.’ ‘. ._:: ~..: , ‘..:i. .:
                                     ‘.: :                                           I
                :
                      .’ > ~.l;,*In1,929   the 4lst.,Leg&ure(H.            B. ,l26,
                  8,Acts 1929. 2nd C, S;, P. 19) supplemented ,the; ku& .z.,~’z :: . :!. ?’
            1 I~:. ral Aid Bil$.of 1927 (S; ‘k. .7,-Acts 1927;lst.C.;           S.,., : .) .,.      ‘. I ,:
                    P. 105) in the sum of $450.000.00.
Hon. I-I. A. Hull,   Page   10   (V-    784)




                  2. In 1933 the 43rd Legislature   (S. B. 242,
          Acts 1933, p. 530) enacted a supplemental     appro-
          priation of $1.620~000.00  to the 1931 Rural Aid Law
          (Chapter 272, Acts 1931). It authorized the use of
          this money in tabulated amounts for the priorbi-
          ennium years of 1931-32 and 1932-33.

                  3. In 1937 the 45th Legislature     (H. B. 600,
          p.,585) supplemented   the Rural Aid Bill of 1935
      !   for the first year of that biennium.    The Attorney
          General of ~Texas, at least by implication,     approved
          the constitutionality of that bill.  (Letters of<Attor-~
          ney General, ~Vol. 377, p. 761,762.)

                    4. In1939 the 46th Legislature    (H. B. 978,
          .Vol. II, Acts 1939, p. 493) supplemented    the salary
           aid appropriation  of 1937~by $718.255.00;    Section            ’
          .3 thereof gives the purpose:   to supplement     pay-
           ments for salary aid for the “first year of the bi-
           ennlum 1937-38 and for no other purpose.”          Lo

                  Theses above designated supplementary   rural aid ap-
propriation   acts, in so far as we &now. were unchallenged    in the
courts.   Thus, as .has .been shown, the Legislature  in 1929, 1933. 1937
and 1939~. has consistently   construed the Texas Constitution   as per-
mitting the enactment of rural aid supplementary ~appropriations for
both the first and second years of a current biennium.      The execu-
tive department has approved and exec.uted these laws.

                  As stated by the .Texas Supreme Court              in Mumme     v.
&larrs.   128Tex.   -383; 40 S.W,Zd 31 at page 35: ~’:
 ~,
                                       ._,~   /                .~~i.:~
            - ‘I’ i’ “. A,~‘;.The ~universal rule of .constructioa.is        .~
          : ~that-legislative   and executives interpretations    of the
      .: ~ .~organic laws, acquiesced .in and long continued,~~ as
             in the case before us,. are of great weight fin deter-
             mining tbe~ vdidity of say Act. and in case of ‘ain-           ~.
            .biguity. Or ~doubt will be followed by the: Courts.”        ~.
             (Emphasis     added by Supreme, Court.)

              : A recentopinion      by the Attorney.General.    V-376,
holds that it is within the-.Constltutional  .power and, discretion   of the
Legislature  ,to supplement a ‘current ~biennial appropriation.      The
  facts ther.e: were that the ~appropriation for: ,the ,Texas Prison System
  was’ insuffdcient to feed and.olothett+   ‘p,r:i,soners. Of ~course, .a djffer-
: Int:ti.e  %odld apply after the. end of t&:bienndum.         ,,:: :,
     ~. L<(, ,     _   ,,    :.               I .::.:,, :--‘~ ‘,.
              i   :  It is ‘our opinion., therefore.,.that. the ~5Ist Legisjature
   duringthe    present~biennium      has authority.~..make~,an:appropriatipn
  -suppk%irenting~ a priur appropriation       made by the 50th Legislature.in
   E&B;,:295 for salary aid purposes, since$.he. prior Legislature            under-
   estimated the amount.nee.ded to pay.in.fuJl the~salary.aid          cJaim,s,le-
~GgalIy;made
     .,   .I     by eligible school districts     acting under,,the, provjsjon .of
 .‘H. B; 295,‘~ in the &947,-1948 and the. 1948.-1,949 school. years,?,            -‘;
                                                   .~        ..,

                   This opinion contemplates         that the money appropriated
  by S. B. 19. now under your consideration,          for 1947-48 will be used by
  the school districts to pay their unpaid teacher.s for the 1947-48 year
  by issuance of warrants~to them or,~‘pay%ent of outstanding warrants.
  As previously   .stated. .since: the districts    wer,e~ not authorized to bor-
  row the money, no part of .the contemplated           appropriationshould       be
  used torepaygistrict      debt& .Lihev+e       it contemplates.,t+t      the sum b
  appropriated  foi:the pre.sent .1948-49 fiscal year .+6ll be us.ed only for ;[.
  State-aid authorized and applkd forduring            this~ f+.s+  year..
                                             _.        . ..                     c
                   If any other lawfi    ‘use ‘of the money ‘i~co&mplamd,
 .the bill should be redrafted accordingly.         For instance, we think it
  our duty to observe that most sShool..dist~icts,followed        the sugges:-
  tions of the State :offici@s  heretofore    mentioned. land .paid their teach-
  ers or the banlcs..the 1947~48’shortage      out,ofthis.year~s.  (J948-49).,:
  appropriation;    Such action.was. unauthoriaed,~by; law. ;I+ .-to the en-
  tent the 1947-48 deficit has been paid; out of 1948-49. funds, the final
  shortage will be ,in, the present fiscal :year r.+ther ,thq last year.
                                           ,~    _:   ;           . .~~
                 :‘h.o&r,     words.‘ifm.e       entire’ $3,.Od~,OOCl.O0 oft the.
  1947-48 deficiency has already .been paid outs of .the appropriation                  for
  the present fiscal .year, thqr.e~is,nov! no indebtedness.            toteachers       for
  1~947-48 which would supportthe, .$~3~0.00,;000.00 apprqpriatjon                  for
  that year.   The .$3,800.0~00.00      short.ag,e~:would,b,e added,.to the short-
  age in the appropriation     for ..,,
                                     the .present,fiscaJ,    year:.~., ,, I : ; .~:
                      ‘..   ‘      i
                   Ifthe Legislature       in,.gts .+sdpm     and, discretjon        wishes
  to appropriate   the total snxqnt needed’ to .settlej wifh&str~cts                 on the
  basis of .H. B. 29~5 for the whole :49,47149 b,Qrmmam.. S.: B. t9 should be
  rewritten ,m mahe~ the. unnaeded ba+nce. .fon .the, !9~47:48 fical                 year
  available for thepresent, f&alyear             ending ;Augu&3L         !949;, in view
  of the present state of’affairs.
                                                                                       .




Hon. H. A. Hull,   Page   12   (V- 784 )                                     . ..’~.




                 The bill also contains an amendment to Section 2 of
Article III’of H. B. 295,~SOth Legislature,       changing the present law
as to base ,pay for vocational teachers by adding the followings words:
“provided the proposed plan for such twelve (12) months’ programs
have beenappraved     .individually~ and.in..advance by the State Board
for Vocational   Education,”   etc.   This and other changes     in teacher
salary schedules    and qualifications    for eligibility are constitutional;
but canuot be given a retroactive      effect in such a manner as ‘to de;
stroy any presently existing contractual       rights of the teachers ‘con-
cerned.   Section 16 of Article I, Constitution of Texas; Federal Crude
Oil Co. v. ,yount-Lee   Oil Co., 122 Tex. 21. 52 S.W.2d 56 (1932); A. G.
Opinion V-674.



                                 SUMMARY

                  1. School districts   cannot legally bo~rrow
        ‘money and contract for interest for payment of            :.            ~’
         salaries   in excess of their anticipated .current year~‘s
         revenue.     Art. 2827, V. C. S. Such loans being up- ‘.’ _              ‘,
         authorized,    no part of the proposed appropriation                ,.
         may be used to repay them nor to pay interest
         thereon.

                  2.. The school districts under H. B: 295
        were authorized to enter into the contracts           with
        their teachers on the basis of the State approved
        budgets.     While the contracts    may not be.enforce-
        able by the teacher ~where’the money to pay them
        has run o&they       nevertheless     are valid obBga-
        tions where there is~ sufficient money on hand ore
        where then money is made available. in a~:lawful
        msimer.      Although the .Leglslature    is not legally.
        bound to supplement. its salary~ aid appropriation;
        for 1947;49 to pay the obligation of, districts         which
        owe their teachers~ under such contracts,          there         .’
        exists sufficient constitutional      and statutory ‘au-
        thority for the Legislature      in its discretion     to
        make ~such funds’ avail.ble~ to the ~districts for such
        purposes.      Nor&of such funds should be used for ‘-
        payment of ~un@ithorized ‘sehool’district        loans or     !
        interest.     Such ~supplemental appropriation       is con-    : ‘. ’
        stitutional ‘Only if ma’diz before the lend of the cur-
                                                                  2 :
        rent biennium.
,Hon. I& A. Hull,   Page 13   (V-784)




                 3. Most of the salary aid shortage for 1947-
       ‘48 has been met already from the advance’payment
       ~of 50% of the 1948-49 appropriation.      While this pro-
        cedure is unautboriz,ed by law and was followed with-
        out the knowledge or advice of the Attorney General,
        most of the 1947-48 deficiency has been extjnguished
        and the 1948-49 shortage     has been enlarged     by the
        same amount. Therefore,      under the present state of
        affairs,   any appropriation desi,red to be made by the
        Legislature    should be redrafted   to correctly  desig-
        nate the amount needed for each year or make the
        entire amount available for the biennium rather than
       -fork separate years.

                                                Respectfully   yours,




                                               -%&$LzK+J
                                                Chester E. Ollison
                                                    Assistant




         The foregoing opinion was considered  and approved in a con-
 ference composed of the Attorney General and Assistants   Joe Green-
 hill, Charles D. Mathews,  W. V. Geppert, and C. K. Richards.
