         THEA~TORNEY                    GENERAL,.

                       OP    TEXAS




                             NO. 1042


           OPINION CONSTRUING SECTION 4, OF ARTICJJZ          :

              2922L, REVISED CIVlL STATIJTRS,AND
            HOLDING SAID STATUTE UNCONSTITUTIONAL




                  OFFICE OF THE ATTORNEY GRNRRAL'

                                                    Msrch‘l, 1939
Honorable W. K. McClain
CrimlfialDistrict Attorney
Wllllamson County
Georgetown, Texas
Dear Mr. McClain:              Opinion No. O-306
                               RF: Interpretation of Article
                                    2922L, Sec. 4 and Article
                                    5, Sec. 7, State ConstLtu-
                                    ,tion and holding ,partof
                                    statute unco~nstitutional.
        Thfs will acknowledge receipt of your letter of Feb-
ruary 7, 1939, whereln you propound the fol.lowlngquestion:
       "Can the State Superintendent legally hold
   up the State Per Capita Apportionment of a i?oa-
   mon school district having a twenty-five cent
   tax because it does not pay the high school tul-
   tFon for pupils that are above the grades taught
   in sald common school district? Said district
   not having the funds to keep its own scho'olrun-
   ning for eight months,,with no excessive expend-
   itures of any nature?
Eon. W. K. M&lain,   March 1, 1939, page 2,       0-306



        This question arises from the authority given the
State Superintendent In Section 4, Article 2922L Revised
Civil Statutes which reads as follows:
        "The State Superintendent shall withhold
    any and all funds due any district that refuses
    or falls to execute forms required by the State
    Department of Education for pupils eligible to
    have their high school tuition paid by the home
    district and the State. It is further provided
    that the State per capita available funa for
    each pupil transferreiifor high school purposes
    under this Act, who has enrqllea In the school.
    to which he has been~transferred, shall be dls-
    trlbuted $0 the alatrlcts,to which such puplls
    have been transferred as the apportlohment 1s
    paid by the State. If any district falls to
    pay thl,sportion of the State per capita accord-
  .-..,ing
        to the provisions of this Act, then theme
    State Superintendent, when notified by'the super-
    intendent of the receiving districts, accompan-
    lea by an afflasvit of such failure shall wlth-
    hold from such alstrlct,~when the next per capita
    payment is ready for distribution, such an amount
    as such district may owe any other district until
    such obligation has been paid; provided further,
    that the State Superintendent shall Investigate
    such accounts and determine that they are just
    accounts and obligations of thenalstrlct before
    their portion of the per capita allotment Is
    withheld.'
    .Two terms .s,hould
                      be defined to clarify the meaning of
this statute. The term "state per capita apportionment"
means the amount of money due each district for Its lndlvl-
dual soholastics from the available school fun&; Article
2663, 2665 Revised Civil Statutes. For example the appor-
tionment a~sflgured for 1939 Is approximately $22.00 per
lndlvldu$l scholastic.
        The term "tuition", as used in thls~statute means
the amount of money necessary to pay the aadltlonsl expense
Incurred by the transferring student to thenreceiving dls-
trlct. The rate of tuition charged sala pupil shall be the
actual cost of the teaching service based upon the average
monthly enrollment, In the high school~attended, exclusive
of all other current cr fixed charges not to exceed $7.50
per month'per scholastic; Article 26?@.
        The cardinal point to be decided Is whether the above
Hon. W. K. McClaln, March 1, 1939;page         3,       O-306



statute conflicts with that portion of Section 5, Article
7 of the Constitution of Texas, which reads as follows:
        "                    ,I
               and the available school fund here-
    In p&via;& shall be distributed to the several
    counties according to their scholastic popula-
    tion and applied In such manner as may be pro-
    vided by law."
        The term "schol&tlc population", as used above,
means all ,puplls between the ages of 6 and 18 enrolled In
public schools when the census is taken in the month of
March, plus or minus any transfers in or out of any given
district; Article 2816, 2696 Revised Civil ~Statutes. Thus,
the per capita apportionment follows those students trans-
ferrlng~'and under Section 4, Article 2922L of the RevIsea
Civil Statutes, the State Superintendent Is given the auth-
ority to withhold the per capita apportionment for those~-
pupils remaining, until the tuition for the pupils trans-
ferrea is paid by the sending district.
        It,should here be note&that the Constitution uses
the Words "shall be distributed". Chief Justice Gaines in
the case of Jernlgan v. Finley,.90 Tex. 2O5,,In reference to
Sec. 5, Art. 7 of the Constitution, says:
       "TO authorize the Co&ptroller to withhold
   his warrants until the county debt was paid would
   infringe t'he,expressprovisions of the section
   quoted which declares that the fund shall be dis-
   tributed to the several counties according to
   thelr~scholastic population and applied In such
   manner as may be provided by law.. It is evldent-
   ly meant that It must be distributed and applied
   for the purpose for which the fund was created."
   Vol.        37 Tex. Jur. p. 858,   states in part:
          ,I
               the Constitution declares that the
    avallabie'school fund shall be alstrlbutea to
    the several counties according to their schol-
    astic population and the statute specifies the
    apportionment which shall be made........and
    It becomes the duty of the Comptroller to draw
    his warrants for the sum apportioned. Perform:
    ante of this duty in case of refusal msy be
    compelled by mandamus."
        Article 2823, entitled "What shali constitute school
funds", sets our more definitely the terms of Art. 7 of the
                                                              .   I




Bon. W. K. McClaln, March 1, 1939, page 4         O-306


Constitution, and closes with the Sollowlng statement:
        II
         . . . shall constitute the available school
    fund, which fund shall be apportioned annually
    to the several counties of this State according
    to the scholazitlcpbpulatlon of each for the
    support and maintenance of the public free schools."
        The constitution, the statutes and the court aecl-
slons are clear In stating that the available school funds
shall be distributed to the counties according to their
scholastic population.
        The case of the Austin InndependentSchool District,
et al v. Msrrs Superintendent, et al, 41 S.W. (2a) 9, raises
a point that must be dlscussed in regard to this opinion.
In this case the Legislature passed a statute that the County
Superintendent's salary should be ptildout of the school funds
of the common and Independent school districts of the coiinty.
When the Austin Independent School District refused to pay
Its part of the salary, State Superintendent Msrrs issued
an order tilthholdlngthe Austin District's portion of the
county available sch'i501
                        funds for the year 1930. The Austin
District sought to have a writ of mandamus Issued commanding
Msrrs to countermand his Instruction and permit the Austin
District-to have its available funds. The court grant-& the
mandamus, but stated that the Austin District should pay its
portion of the County Superintendent's salary. By way of
dictum, Judge Harvey in the above case, stated:
        "Nothing has been found In the Constitution
    which restrains the Legislature from authorizing
    the approprlatlon of available funds belonging
    to any school district to the payment for the
    benefits received by the public schools of such
    district."
        In construing :thls statement of the court, we make
the following observations:
            The court In granting the mandamus holas that
the avalkble school Sun&s must follow their prescribed
course.
        2. The statute involving the County Superintendent's
salary was in effect an appropriation, whereas Article 2922L
is not an appropriation but gives the Superintendent of Schools
the extra legal power of withholding funds.
.   .




        Hon. W. K. McClaln, Msrch 1, 1939, page 5          O-306


                3. As the court very clearly pointed out, each dls-
        trlct receives specific benefits from the work of the county
        Superintendent, whereas, under Article 2922L the Constltu-
        tlonal rights of the scholastics remaining In the sending
        district are denied and penalized for the benefit of the few.
        transferring scholastics.

                The language of the coristltutlonwas carefully sel-
        ected and the Supreme Court stated very forcibly that the
        available school funds shall be distributed to the several
        counties according to their scholastic population. To give
        the State Superintendent of Schools the extra legal power
        to impound the funds and to block the course prescribed by
        our constltutlon for those funds Is clearly contrary to the
        spirit and the language of the constitution.
                It Is, therefore, the opinion of this Department that
         our question must be answered ln the negative, as Section
        t Article 2922L of the Revised Civil Statutes conflicts
        with Section 5 of Article 7 of the Constitution of the State
        of Texas.
                                        Yours very truly
                                      ATTORNEY GENERAL OF TEXAS

                                        By s/Glenn R. Lewis
                                             Assistant
        PBI:+3:wc

                This opinion has been considered ix?conference, ap-
        proved, and ordered recorded.
                                      s/Gerald C. Mann
                                        Gerald C. Msnn
                                      ATTORNEYGRNRRAL OF TEXAS
