                           Ammmv.      TEXAPJ         78711


                                    ,October    19, 1973


The Honorable Tom Hanna                                Opinion No.   H-   133
Criminal District Attorney
P. 0. Box 2553                                         Re:    Reimbursement    of expenses
Beaumont,  Texas 77701                                        of school board members
                                                              incurred in various ways.
Dear   Mr.   Hanna:

     You have requested our opinion about the propriety of reimbursing
members      of boards. of trustees of independent school districts           for certain
expenses.      Specifically   :, you ask whether it would be legal for the school
district to reimburse       board members        for (1) actual expenses necessarily
incurred for travel,       meals and motel rooms to attend a convention of
administrators      and school board members           at a point outside the State of
Texas,    assuming such convention dealt only with solutions to school
problems     and the planning of school business,           (2) travel expenses and
lodging to attend state conventions          of administrators     and,,school board
members      at a point in Texas,      assuming that the member attending has
been designated a delegate and the trip has been authorized by the Board
and that the member will prominently              participate   in the program which
concerns matters of importance            to the school district,     (3) necessary
lodging and travel expenses incurred in attending to school business
with the Texas Education Agency at the State Capitol in Austin,                 and (4)
reasonable     and necessary      legal expenses,      including attorneys fees, for
the defense of a “taxpayer’s          suit in the nature of quo warrant0 brought
for the purpose of removing          . . . school board members          from office, ‘I
assuming that in the actual disposition            of the case the issues are
essentially    those of judgment and school management,              with no issue as
to any alleged illegal act involved and no charge of conflict-of-interests
involved.

    You advise that the by-laws   of the local school district have for years
authorized reimbursement     to members     of “expenses  incurred in perfor-
mance of duty, ” that school districts    “all over the state” regularly
expend money for trips such as those described;       and that Texas Education
Agency rules and regulations    anticipate such expenditures.     But, you also
point out that a 1939 Attorney General Opinion (O-1722) is opposed.



                                          p.    637
The Honorable      Tom      Hanna,     page 2       (H-133)




   Some applicable          provisions     of the Texas       Education     Code are:

   Section   23. 26(b):

        “The trustees shall have the exclusive power to
        manage and govern the public free school of the
        district. ”

   Section   23.26(d):

        “The trustees may adopt such rules,  regulations
        and by-laws  as they may deem proper. ”

   Section   23.19(e):

        “Thk trustees          shall   serve   without compensation.         ”

   Section   2 3. 2 5:

        “The board of trustees   of an independent school
        district shall have the powers and duties described
        in this subchapter,  in addition to any of the powers
        and duties granted or imposed by this code or by
        law. ‘I

  Section 20.48          entitled   “Authorized       Expenditures:’    provides   in,its
subsection (a) :

        “The public free school funds shall not be
        expended except as provided in this section.                   ‘I

No specific mention is made cf reimbursement                     of expenses.      However,   it
does provide in subsection (c):

        “Local school funds . . . may be used for the purposes
        enumerated for state and county funds . . . and for
        other purposes necessary  in the conduct of the public
        schools to be determined by the board of trustees  . . .
        (Emphasis  added)




                                               p.   638
The Honorable    Tom Hanna,    page 3 (I-I-133)




     Similar statutes were in effect when Attorney General Opinion O-1722
(1939) was issued.      The predecessor    of 5 20.48 was. Article 2827, ,Vernon’s
Texas Civil Statutes.      Like subsection (c) of $ 20.48 of today’s Education
Code,    its subsection (2) state.d that local school funds might be used “for
other purposes necessary       in the conduct of the public school to be deter-
mined by the Board of Trustees.       ‘I Among other things, the Opinion O-1722
 specificallydealt    with whether or not local board members      could be re-
imbursed for expenses incurred in attending meetings. of a state organization
 similar to, those, you describe.

     The 1939 opinion concluded there was “nothing to indicate” that the ,~
existenc,e of the state-wide   organizations  of school trustees or their con-
ventions was necessary     in the conduct of the public schools.    It went on
to state that whatever benefit might accrue to the school through the
attendance at those meetings     “would be remote and indirect?’       Upon
this reasoning,   it was determined that the board members        were not
entitled to reimbursement     for dues in the state organizations    or to meet
expenses in attending its convention.

      The problems    you pose are somewhat, similar to those considered         in
Attorney General Opinion H-70 (1973).        The question there was whether
school districts    could purchase insurance to protect. school trustees from
costs of litigation growing out of the discharge     of official duties.    There,
also,   early Attorney General opinions had concluded as a matter of law
that thee purchase of indemnity-type     insurance was -an unnecessary       and
unreasonable     expenditure of .public funds.   But the ‘1973 opinions indicated
that facts would control - that it was no longer possible to conclude as, a
matter of law that such an expenditure of public funds was unreasonable
and unnecessary.       It emphasized  the provision  $ 20.48(c)  of the Education
Code that funds could be used “for other purposes necessary          in the conduct
of the public schools to be determined by the board of trustees          . . . ”
construed as proper public purposes , and-noted recent developments             in
the law.

      The concept of “public purpose ” has undergone expansion in thenlast
twenty-five   years.  The benefits realized need not now be direct or immed-
iate.    Change and relaxation   of judicial attitudes on~the matter are reflected
in Court decisions from then to the present time.          Compare   Housing
Authority of City of Dallas v. Higginbotham,        143 S. W. 2d 79 (Tex. 1940);
Friedman v, American       Surety Co. of New York,




                                     p.   639
 The Honorable    Tom   Hanna.   page 4 (H-133)




 151 S. W. 2d 570 (Tex. 1941); Davis v. City of Lubbock,     326 S. W. 2d 699
 (Tex. 1959); State v. City of Austin,  331 S. W. Zd 737 (Tex. 1960);
 Barrington v. Cokinos.    338 S. W. 2d 133 (Tex. 1960); Bullock v. Calvert,
 480 S. W. 2d 367 (Tex. 1972); and Harris County v. Dowlearn 489 S. W. 2d
 140 (Tex. Civ. App.,  Houston [ 14th Dist. ] 1973; err. ref’d.,  n. r. e. ).

     In our opinion, answers    to all your questions hinge on a determination
 of whether the contemplated   expenditures    are for “purposes    necessary     in the
 conduct of the public schools. ”  And   that determination,   at least  initially,
 is to be made by the school board.

      School districts  are agencies of the State. Mosely v. City of Dallas,
 17 S,. W. 2d 36 (Tex. Comm.      1929); 51 Tex. Jur. 2d, Schools,        $ 6. If a
 school board should properly determine,           in the exercise   of its delegated
 legislative  powers,   that the payment of the expenses         of trustees to attend
 school-related    meetings   is “necessary     in the conduct of the public schools, ”
 we could not say, except by referring        to the particular    facts,    that such
 action would be arbitrary      or contrary to law.      However,    any such expenditure
 must not be disguised     compensation     for services.     It must serve a true public
 purpose .and not merely private ends.         School Boards do not have an unbridled
 discretion.    The question of whether a true “public purpose” has been served
 is ultimately for ,the-courts.      Davis v. City of Lubbock.        supra.      Compare
 Attorney General Letter Advisory         No. 24 (1973).

     ,In Attorney General Letter Advisory       No. 6 (1973) we were concerned
 with institutions of ,higher .learning ,and the scope of $ 54. 503(b) of the Texas
 ~Education Code, which similarly      provides,   ‘in part:

         “The governing board of an institution of higher
         education may charge .and collect from ,students
         registered  at the ~institution,fees  to cover .the
         cost of student services    which the board deems
         necessary   or desirable   in carrying out the edu-
         cational functions of the institution. ‘I .(Emphasis
         added)

     With reference  to the power of the governing boards       to authorize   the
collection of fees for certain activities, we said:




                                       p.   640
The Honorable   Tom Hanna,    page   5 (H-133)




            “The governing board of an institution of
       higher education,    in adopting rules and regula-
       tions .for its operation,  exercises   delegated legis-
       lative powers,    and in the absence of a clear show-
       ing that it has acted arbitrarily    or has abused the
       authority vested in it, the courts will not itierfere.    ”

and we concluded:

             “We are .of the opinion, therefore,     that the
        governing board of an educational institution of
        higher learning may now authorize-a        public inter-
        est research    activity as a student,service.   ‘necessary
       .or desirable    in carrying out the educational functions
        of the institution’,   and may provide for the collection
        from students of voluntary fees to cover the cost of
        such service,     provided authorization   is pursuant to
        regulations   comporting with equal protection and due
       process    constitutional   requirement,s.    We cannot say
        in advance,    nor do we think the courts could say that
        such authorization     would be arbitrary   or contrary to
        law without firs~t examining the facts of each individual
        case. ”

      We are led to similar conclusions    here.   Reimbursements     for the
 travel expenses you inquired about would not be illegal,      in our opinion, if
 their payment was “necessary      in the conduct of the public schools, ” a
 matter to be determined from the particular      factual context.   Many of your
 stated assumptions    tend to support a conclusion   that expenses could be
 reimbursed,    but it cannot be said that such a determination    in an individual
 case would or would not be arbitrary ,or contrary to law without first exam-
 ining all the facts.

     Your question concerning   reimbursement    of expenses incurred in
 defending a quo warrant0 action require,8 further examination.     Though the
 principal is the same, the application of it may be modified by the legal
 characteristics  of a quo warrant0 action, ,which is not an ordinary lawsuit.




                                      p.   641
The Honorable            Tom Hanna,   page 6 (H-133)




    Quo warrant0 is a special type of court action used to determine
whether a public office is occupied by a pretender or a usurper,      rather
than by a person legally entitled to hold it. It is a suit to try the title to
an office.



     You ask about a situation where a taxpayer has brought a suit in the
nature of a quo warrant0 for the purpose of removing particular           members
from office, and where in the actual disposition       of the case, the issues
are essentially    those of judgment and school management,         and where “no
issue as to any illegal act, and no charge of self-dealing,        is involved. ”
It is apparent that such facts do not fit the description      of a true quo
warrant0 action or a true ouster suit,      If considered    either, however,
our answer would be the same because in either case, what seemingly
is at stake is only the personal right of the officeholder       to the continued
possession   of the office.    See 47 Tex. Jur. 2d, Public Officers,     5 $ 7. 90.
If other interests    are at stake, other perspectives    are proper.

    In Attorney          General   Opinion H-70    (1973),   it is   sa’id:



        “It has long been the position of this office that a
        school district may retain and pay to protect its
        interests  in Court . . . . I’


        ,I
             .   .   .




        “But the authority of school trustees to employ
        attorneys is limited to those situations where the
        legitimate  interests  of the district - - not merely
        the personal interests    of the trustees  - - require
        assertion  or defense.    See Attorney General
        Opinion O-2103 (1940) where payment of attorneys
        fees charged for resisting     quo warrant0 suit,8
        directed against the former trustees was dis-
        approved.    . . . ‘I




                                            p.    642
 The Honorable    Tom .Hanna,    page 7   (H-133)




     Attorney General Opinion H-70 referred to Attorney General Letter,
 Advisory   No. 24 (1973) where [‘citing City National Bank of Austin v.
 Presidio  County, 26 S.-W. 775 (Tex. Civ. App.,    1894, no writ), among others]
 it was said:

         ‘Fublir money cannot be spent to defend private
         interests   [Art.   3, $ 51, Texas Constitution]    . . .
         Of course,     suits may be only nominally against
         individuals when they are really designed to ob-
         struct or control the legitimate      performance    of
         official duties.     Such litigation does involve county
         interests   . . . and there is no constitutional     pro-
         hibition against the .use of public funds to defend
         a county’s interest jn a legal contest,       even if
         the county is n&named as a party to the suit.
         However,     if only the private interests   of the def-
         endant officer or employee are at stake, no defense
         could be provided,      even though the act which pre-
         cipitated the suit occurred while the officer or em-
         ployee was ostensibly       engaged in the performance
         of public duties.     The public has no liability’~for’ the
         acts of an officer or employee acting outside of (or
         beyond) the scope of his legal powers,        and ordinarily
         it h8.s no interest in protecting him from the con-
         sequences     of such acts. I’

     Attorney General Opinion O-2103 (1940) based its determination           that
attorneys fees in the asserted    quo warrant0    suits involved there could not
be paid with public funds on a public interest/private       interest analysis which
led to the conclusion   that only private interests were involved.         We cannot
say that in no quo warrantor or ouster case, or other case of a similar nature,
could the delense of such a suit be.vital to the district’s      interest and “necessary
in the conduct of the public schools, ‘1 but we believe such a showing would be
difficult,  and no reimbursement     of expenses,   including attorneys fees, would
be permitted in the absence of a proper finding thereof.          On the other hand, an
attack against the district in the guise of a quo warrant0 or ouster suit might,
in special circumstances,     engage the vital interests    of the district and make
the expenditure of funds in connection therewith “necessary”           in the public
sense.     The facts are determinative.




                                       p. 643
The Honorable   Tom Hanna.   page 8   (H-133)




                             SU.MMARY

           Reimbursement    of travel or legal expenses for
       school board members     would not be illegal if their
       payment was determined to be necessary       in the con-
       duct of the public schools and to serve a proper public
       purpose.

                                                 Very   truly yours,




                                           u     JOHNL.
                                                 Attorney
                                                            HILL
                                                            General    of Texas

APPROIED:




DAVID M. KENDALL,      Chairman
Opinion Committee




                                      p.   644
