                      THE   ATTOXWEY               GENERAL
                                 OF     TEXAS
                              AUSTIN.    TEXAS     7B711
CNAWlrOHU      c. MARTIN
  AlTORNEY CzENERAlr
                                August 16, 1967


   ,Ron.J. W. Edgar                      Opinion No. M-127
   Commissioner of Education
   Texas EducatS.onAgency                Re:     Whether a school district may
   Austin, Texas                                 budget, levy, collect apd ex-
                                                 pend local maintenance taxes
                                                 to purchase food and to pay
                                                 salaries of personnel and other
                                                 various overhead costs in the
                                                 operation of school lunchrooms,
   Dear Dr; Edgar:                               and related questions.
                 You have requested the opinion of this office on the above
   subject.      Your particular questions are quoted as fbllovs:
             “1 i May a. school district budget; lee,
        collect, and ,expend local~~malntenancetaxes
        to purchase fop&. to pay salaries of managers,
        personnel,-auditing costs and other lunchroom
        overhead invol.vedXn operation of school lunch-
        rooms?
             “2 . May a’school district by design charge
        all the students (buying Ranch) less than,the
        cost of~.preparing Andy serving-,
                                        a schoal lunch,
        and provide the difference.Qut~of local main-
        tenande,.funds? ‘Cr but ‘~cif
                                   ‘State Available Fund?
                 “3. May a schbol district in the operation
            of its school lunchrooms.disc$unt the usual charge
            for lunch to favor indigent piaplls~3.n
                                                  other school
            plants, where the district deems same desirable?
                 “4. May a school district lawfully serve free
            lunches to the children whose parents cannot or
            will not pay for them?
             “5. If inquiries (3 and (4) are answered
        ,affirmatively,and where 1ndigent and the other
        children receive free or discounted lunches, can
        prices to paying students be adjusted, raised to
        absorb such expenditure?
                 “6 . In operation of a school lunch program,
            1s a school district legally obligated to operate
                                        -586
Hon. J. W. Edgar, page 2 (M-127)


     it on a self-sustaining basis; or may it by
     design operate such on a loss basis and make
     up for the loss out of: Local tax funds, State
     school funds; or by State and local tax funds
     in such proportions the district determines?'
          In replying to your first question we must look to Article
2827, Vernon's Civil Statutes. This statute provides the basis for
the expenditure of all public free school funds, and reads in per-
tinent part as follows:
          'The public free school funds shall not be ex-
     pended except for the following purposes:
         ,"l. .The State and county available funds shall
    be used exclusively for the payment of teachers'
    and superintendents' salaries, fees for taking the
    scholastic census, and ~-intereston money borrowed
    on short time to pay salaries of teachers and super-
    ,intendents,when these salaries become due before
    the school funds f6r the current year become avail-
    /able;provided that no loans for the purpose of pay-
    ment of teachers shall be.paid out of.funds other
    than those for the then current year.
         "2* Local school funds from district taxes,
    tuition fees~.bf:pupilsnot entitled to free tuition
    and other local sources may be used for the purposes
    enumerated for State and county funds and for pur-
    chasing appliances and supplies, for the payment of
    insurance premiums, janitors and otheremployes, for
    buying school sites, buying, building and repairing
    and renting school houses,~~andforkother purposes
    necessary in the conductof~the public schools to
    be determined by the Board of Trustees, the accounts
    and vouchers for countv districts to be aDDroved by
    the county.superintendent; ,provided, that-when the-
    State available school fund in any city or district
    is sufficient to maintain the schools thereof in
    any year for at least eight months, and leave a sur-
    plus, such surplus may be expended for the purposes
    mentioned he,rein.". (Emphasis supplied)
In Boseman v. Morrow, 34 S.W,2d 654 (Tex.Civ.App., 1931), the court
approved the operation of a.school.cafeteria'in a'public school in
El Paso. The original equipment for the cafeteria was purchased
from school funds, but the maintenance and,operation of the cafe-
teria was on a self-sustaining basis. The court in its decision
did not dwell upon the aspect of the problem presented by the ori-
ginal equipment purchase, but held that the operation of the cafe-
teria on a self-sustaining.basis was a valid exercise of the dis-
cretion vested in,the Board of Trus,teesby'Article 2827.
                              -5a5-.
Bon. J. W. Edgar, page 3 (M-127)


          In Attorney General's Opinion c-601 (1966), this office
dealt with a question wherein a school district had a surplus in its
self-sustaining cafeteria program and wished to utilize such sur-
plus in providing lunch assistance for needy pupils. In approving
the proposed program we stated:
          "The fact that a surplus realized from the
    operation of the cafeteria and that such surplus,
    which we assume is negligible, is used to defray
    the cost of meals of its needy children is not an
    abuse of the discretion vested in the school dis-
    trict board to operate and support an efficient
    system of education, so long as such {ractice  is
    not carried beyond reasonable bounds.
           In Mosely v. City of Dallas, 17 S.W.2d 36 (Tex.Comm.App.,
1929) J we fin8 another essential link leading to our conclusion.
The public school system of Dallas had instituted a program of free
health checkups for its pupils, such examinations being conducted by
a paid, full-time professional staff. This program was challenged on
the primary ground that ,theBoard of Education of the City of Dallas
had no power to expend local tax funds for such purposes. The cour~t
dealt at length with the constitutional and statutory basis for the
school board's authority in expending tax monies for educational pur-
poses, and at page 41 said the following:
          "We have carefully read and considered the
    pleading of the parties, and authorities cited,
    together with the statement of facts, and we have
    reached the conclusion that since  the board of
    education of the city of Dallas is given the power
    land it,is made its duty to provide said city with
    an efficient system of public free schools, etc.,
    z!.nso far as they can do so by the prudent and
    judicious application of the means at hand, and
    since said board is given the further power and
    authority to employ superientendents, teachers, and
    such other persons as may be necessary, and since
    ~said board is further expressly given the right
    and power to establish such reasonable rules and
    regulations as said board may deem necessary to
    provide and maintain an efficient system of public
    free schools for said city, that said board is
    acting within the powers granted to it in estab-
    lishing and maintaining the system of medical
     inspection and health work sought to be enjoined
    herein. The express power given by the Constitu-
    tion and laws of this state, and the charter of
    said city, to do the things specified therein,
    necessarily includes the right and power to do
    the incidental things reasonably proper and neces-
    sary to accomplish the end.
                             -586-
 Hon. J. W. Edgar, page 4(M-127)


           "From what we have said, it follows that said
      board of education is not only given the rights and
      powers specifically named in the statute and in said
      charter, but said board necessarily has implied
      power, under the law, to prescribe conditions and
      make such reasonable rules and regulations in said
      schools as will render the work of the teachers
      effective and economical,.and enable the teacher
      to meet and understand the needs of the pupil, to
      the end that the teaching process may be intelli-
      gently directed and suited to the needs of the
      school and the pupils.
           "Modern science has conclusively established
      the fact, and the record in this case conclusively
      shows, that there is an intimate relatipn between
      the mind and the body, and no teacher can intelli-
      gently deal with the child's mind who ignores such
      child's physical condition. It therefore follows,
      as a matter of course, that money wisely and judi-
      ciously expended by the school board within proper
      limitation to ascertain the child's physical con-
      dition isa wise.and legitimate expense of the
      teaching process.. If would not only be an injustice
      to the child to conduct the teaching process without
      information as to its physical condition, but such
      a system would be as waste of public funds."
           In view of 'the foregoing discussion, in answer to your first
-question, you are advised that is is the opinion of this~office that
 a school district may budget,~~levy,collect and expend local main-
 tenance taxes.;.to
                  purchase food, to pay salaries of managers, per-
 sonnel, auditing costs and-other lunchroom overhead involved in the
 operation of school lunchrooms, when the Board of Trustees, in the
 exercise of its discretion, hasmade a determination that such ex-
 penditures are necessary to the proper conduct of the public schools.
          The answer to your second question is the same as the
answer to your first question. Having made the initial determination
as to educational necessity, the rate of cost per unit that is charged
to each pupil is a matter within the sound discretion of the Board of
Trustees. Whether the lunchroom program is self-sustaining or is
supported by local tax ,funds is a matter for the determination of the
Board in managing the funds available to it. Of course, State Avail-
able Fund monies may not be used ~for lunchroom purposes except in the
event of a surplus as spelled out in Article 2827, supra.
           With regard to your third question, what has been said pre-
 viously makes it clear that is is the duty of the Board of Trustees
 to make the decisions as to what is necessary for the proper conduct
 of the educational process in the public schools under its charge.
 The public schools' function is to educate all their pupils as well
                                   -587-
Hon. J. W. Edgar, page 5 (M-~7)


as possible with the facilities available.  Certainly, the needs
of particular pupils differ, and the Board is justified in taking
these educational needs into consideration in establishing the
various programs. Nevertheless, this office is unable either to
approve or disapprove the proposal contained in your third question,
for the reason that insufficient information is given. The answer
to the fourth question may serve your present purposes just as well.
          As we have previously said, the Board of Trustees has the
discretionary power to set the'cost per meal to each pupil. In
answer to your fourth question, it necessarily follows that the cost
can be set at any level from zero to one hundred per cent. It is
the duty of the Board to establish the necessary guidelines for
determination of need both 'in order that the schools avoid the futi-
lity of trying to teach's hungry child, and avoid the useless act of
donating food to a well-fed one;'
          In answer to your fifth question, you are advised that it
is the opinionof this office that the Board of Trustees has no au-
thority to charge~ariypupil more than the reasonable cost of the
food served to him in the school lunchroom in order to absorb def-
icits incurred by reason of meals served to other students at a re-
duced price.
           Your sixth and last question has in large measure been
answered by the previous
                     '.   discussion, If the Board of Trustees finds
it necessary to provide school lunches to some pupils at less than
cost, it is within their power to do so. Since the Board may not
charge more than the reasonable value of a meal to any other pupil,
the school lunch program must obviously operate with some degree of
loss. Such deficit may be made up from local tax funds, as~dis-
cussed in the answer to the second question, supra. State Avail-
able Funds may be used on1 if the conditions of Article 2827 as to
surplus are met. In eit + er event it is not necessary to discuss any
possible proportioning plan by the Board of Trustees.
                       SUMMARY
                       s---s--
          A school district may budget, levy, collect
     and expend local maintenance taxes to purchase
     food, to pay salaries of personnel, and to pay
     other overhead costs involved in the operation
     of school lunchrooms, when the Board of Trustees
     involved has made a valid determination that such
     expenditures are necessary to the proper conduct
     of the public schools.
          The cost per meal to be charged pupils is a
     matter within the sound discretion of the Board
     of Trustees, and the school lunch program may be
     self-sustaining or supported by local tax funds.
                                 -588-
  Hon. J. W. Edgar, page 6     (~-127)



       Monies from the State Available Fund may be used
       in the lunch program only in the event of a sur-
       plus as described in Article 2827, V. C. S.
            The Board of Trustees has the discretionary
       authority to set the charge .per meal for any
       child at any level up to the full reasonable
       cost thereof. The Board of Trustees has no au-
       thority to charge any child an amount in excess
       of the reasonable cost of his meal in order to
       absorb deficits incurred by reason of meals served
       to other students at a reduced price.
            A school district is not obligated to operate
       its school lunch program on a self-sustaining basis,
       and may make up any deficit $7rom local tax funds.




  Prepared by Malcolm L, Quick
  Assistant Attorney General
  APPROVED:
  OPINION COMMITTEE
  Kerns ,B. Taylor, Chairman
_ W. 0. Shultz, Co-Chairman
  Sam Kelly
  Jack Sparks
  Dyer Moore, Jr.
  John Grace             ,
  A. J. Carubbi, Jr.
  Staff Legal Assistant




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