                       The Attorney               General            of Texas
                                              July     10,    1978
JOHN   L. HILL
Attorney General

                   Honorable Stephen Davidchik                       Opinion No. H- 1205
                   Grayson County Attorney
                   Grayson County Courthouse                         Re: Whether state funding for
                   Sherman, Texas 75090                              county school administration    is
                                                                     terminated at the end of current
                                                                     terms.

                   Dear Mr. Davidchik:

                          You ask two questions   about state    funding for county school adminis-
                   tration. You first ask:

                              Does section, 17.94 of the Texas Education Code
                              terminate all state funds for the offices of county
                              tihool administrations,   effective   December 31,
                              1978, in counties with at least one common school
                              district?

                         Section 17.94 of’ the Education     Code, enacted in 1975 as part of House
                   Bill 228, reads as follows:

                                 After December 31, 1978, no state funds shall be
                              used to support the offices of county school super-
                              intendent or ex officio county school superintendent or
                              a board of county school trustees or a county school
                              board in counties with no common school districts,
                              rural high school districts, or independent districts
                              with less than one hundred fifty (150) ADA, but the
                              offices and boards may be supported by ad valorem tax
                              revenue generated in accordance with the provisions of
                              Chapter 18 of this code, or by funds provided by the
                              school districts in accordance with the provisions of a
                              voluntary contract as provided in Section 17.98 of this
                              Chapter.

                   (Emphasis added).




                                                  P-   4834
Honorable Stephen Davidchik      -   Page 2     (~-1205)



      In Attorney General Opinion H-1136 (1978) we discussed the legislative intent
underlying House Bill 226. As introduced, House Bill 226 would have terminated
state funding for all county school administrations.   It thus would have barred the
appropriation of any state money to support county administrations.         See Tex.
Const. art. 3, S 44. However, amendments to House Bill 226 limited its appbcation
to “counties with no common school districts, rural high school districts, or
independent districts with less than one hundred fifty (150) ADA.” Thus, in counties
with even one of the enumerated districts, the legislature is not barred by section
17.94 from appropriating money to support the county school administration.    These
counties remain under the provisions of sections 17.09 and 17.51 of the Education
Code, which expressly provide for the payment of county school trustees and
superintendents   from the available school fund.       Section 17.94 of the Texas
Education Code therefore does not terminate all state funds for county-school
administration in counties with at least one common school district.

      Your second question concerns the validity and constitutionality    of provisions
of the current appropriations act.   The following  line item    was   included  in the
appropriation to the Texas Education Agency:

           17.     County Administration (from        3,800,OOO   l,lOO,OOO
                   Available School Fund)

General Appropriations Act, Acts 1977, 85th Leg., ch. 872, at 3001. The following
rider limits this line item:

               It is the intent of the Legislature that the funds in the
            Item County Administration (from Available School Fund)
            for the fiscal year ending August 31, 1979, shall only be used
            until the current terms of those now in office expire.

& at 3011. Most terms will expire on December 31, 1978: We agree with you that
these provisions of the appropriation act effectively      cut off state funding for
county~ school administration in virtually all counties for the period from January 1
to August 31, 1979. We believe the specific sum appropriated for county school
administration   represents a ceiling on the amount that can be used for that
purpose. We .note that another rider appropriates the balance of the Available
School Fund:

               For the purposes provided by law there is appropriated for
            the biennium ending August 31, 1979, to the State Board of
            Education, all income to and balances in the Available
            School Fund and the State Textbook Fund, except as
            otherwise appropriated by this Legislature, to be expended
            and distributed in accordance with the laws of this State.




                                       p.     4635
Honorable Stephen Davidchik     -   Page 3    (H-1205)



Id. at 3002. Although this provision could be interpreted as appropriating funds to
pay salaries of county superintendents    and trustees in counties unaffected by
section 17.94, we do not believe the legislature intended it to supplement the
specific line item. But see Attorney General Opinions H-1035 (1977); M-1281 (1972).

        You suggest that the legislature, in limiting the appropriation to current
terms, has violated article 3, section 44 of the Texas Constitution.     This section
provides in part: “The Legislature shall provide by law for the compensation of all
officers, servants, agents and public contractors,       not provided for in this
Constitution. . . .” This language relates to fixing the amount of compensation.
See Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex. Civ.
App. - Amarillo 1971, writ ref’d n.r.e.1. See. e.g., Ed. Code, SS 17.09, 17.51, 17.52
(statutes fixing compensation of county school administrators.)      It haS not been
interpreted to require the legislature to appropriate money for payment of the
salaries it sets. Other provisions of article 3, section 44 bar the legislature from
appropriating money to any person unless preexisting law authorizes the appropria-
tion. See Fort Worth Cavalry Club, Inc. v. Sheppard, 83 S.W.2d 660 (Tex. 1935).
We believe that the quoted language of article 3, section 44 merely directs the
legislature to enact general laws relating to compensation, which will provide
preexisting law for an appropriation.

      We do not believe the rider reoresents an attemot to reoeal eeneral law bv
the appropriations act in violation of article 3, section 35 Gf ~the constitutio<
Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946). In Linden v. Finley, 49 S.W. 578
(Tex. 1899). the Supreme Court considered an appropriations act provision which
forbade the payment of officer’s fees under &rcumstances         where general law
allowed them. The court determined that the appropriations act did not change
general law but merely limited payment of fees during the term of the act. In our
opinion, the rider limiting funding for county school administration        does not
attempt to repeal general law. It validly directs the expenditure of appropriated
funds -and thus doesnot violate article 3;section 35. -See-Jessen Associate~~Inc. v.’
Bullock, ,531 S.W.2d 593 (Tex. 1975).

       We believe the appropriation act provisions you inquire about are constitu-
tional and valid. Thus, at the end of current terms, there will be no appropriation
earmarked for the support of county administrations     that continue to exist. See
+     Attorney General Opinions H-1008 (1977); H-507 (1974); V-R3 (1947).        -

                                    SUMMARY

           Section 17.94 of the Education Code does not terminate
           state funding for county school administrations in counties
           with one common school district, one rural high school




                                        p.   4836
Honorable Stephen Davidchik    -   Page 4     (~-1205)



           district, or one independent district with less than one
           hundred fifty scholastics.  Such counties are still under the
           provisions of sections 17.09 and 17.51 of the Education Code.
           The appropriation act provisions which terminate support of
           all county administrations  at the end of current terms are
           constitutional and valid.

                                            Very truly yours,




                                            Attorney General of Texas




Opinion Committee




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