-   *




                    THE                   NEYGENERAL




                                October   3, 1949



        Hon. C. I-I. Cavness                        Opinion No. V-921
        State Auditor
        Austin, Texas                               Re:     Jurisdiction of State
                                                          ~~Auditor under S. B.
                                                            116 and penalties for
                                                           failure of a district to
                                                           comply with S. B. 116.

        Dear Sir:

                         You have requested an opinion on several       ques-
        tions arising   under the recent Gilmer-Aikin Acts.

                         Your first question is whether S. B. 116 places
        all schools and resident scholastics      under the jurisdiction  and
        authority of the Foundation School Program         Division of the State
        Auditor’s  Office.   This is a broad question with no fact situation
        presented.   It is difficult to make accurate sweeping answers to
        that type of question.    At least generally    speaking, the answer is
        that the Act placesthemunder       that office.   Article X of S. B. 116
        says:

                          II
                          . . 0 after the effective date of this
                Act and until the State Board of Education
                shall have been elected and the State Com-
                missioner   0 . . shall have been appointed...
                the State Auditor shall take over and per-
                form all of the duties herein assigned to the
                State Commissioner,      . . and is hereby au-
                thorized to do and perform all acts neces-
                sary to put this Act into effect. and to oper-
                ate and administer    the same.   . . .

                          “In carrying out the provisions   of
                 this Act.   . . all . . . school officials and
                 employees,    arehereby   directed to furnish
                                                                               .   -




Hon. C. H. Cavness,    Page 2 (V-921)                                      .




        to the State Auditor such reports,    records  and
        other information   as he may require in carry-
        ing out the provisions  of this Act.”    (Emphasis
        added throughout).

                  Your second question is whether Boards of School
Trustees    are liable to penalties under Article XI, Section 2, if they
refuse to pay the minimum salaries       provided in S. B. 116. This is
likewise a hypothetical    question with no facts.  You do not state
that there has been a refusal to comply with S. B. 116. We there-
fore do not deem it expedient to attempt to lay down any hard and
fast, pronouncements     as to what we think the courts would hold un-
til all’the circumstances    of an actual situation are presented.

                 Section 1 of Article   IV of S. B. 116 says    that:

                 “Beginning    with the school year 1949-
        1950, the Board of Trustees       of each and every
        school district in the State of Texas shall pay
        their teachers,   both whites and negroes,       upon
        a .salary schedule providing a minimum begin-
        ning base salary plus increments         above the
        minimum for additional experience          in teach-
        ing as hereinafter    prescribed.     The salaries
        fixed herein shall be regarded as minimum
        salaries  only and each district may supplement
        such salaries.    ~ . .

                “ly     law or parts of laws in conflict
        with Section   1 of Article IV of this Act are
        hereby   repealed.”

                  These salary provisions   are plain,  They repeal
all minimum salary laws in conflict with them.        The Legislature
undoubtedly intended that these provisions     should be complied with
in all districts.   It pronounced that no financial assistance   under
the Act should be given any school which failed to pay the minimum
Hon. C. H. Cavness,     Page   3   (V-921)




salaries.  It further provided any school which failed to pay mini-
mum salaries    would lose its affiliation and accreditation. These
penalties are stated in the 4th paragraph of Section 1 of Article IV:

                 “Provided    that payment of at least the
        minimum salary schedule provided herein
        shall be a condition precedent:     (1) to a school’s
        participatmn    in the Foundation School Fund;
        and (2) to its names being placed or continued
        upon the official list of affiliated or accredited
        schools.   s :’

                It is presumed that officials of the State will per-
form their duties under the law. Mexia I.S.D. v. Mexia, 134 Tex.
95, 133 S.W.2d, 118 (1939); Stewart v. Moore, 291 S.W. 886 (Tex.
Comm. App. 1927); Donna I.S.D. v. Sanders. 57 S.W.2~d 857 (Ter.
civ. App. 1933); Meecham.      Public Offices and Officers 379; Throop,
Public Officers 535; 34 Tex, Jur. 462, Public Officers,    Sec. 81; 17
Tex. Jur. 271. Evidence,    Civil Cases, Sec. 75.

                  It will not be presumed that school trustees will de-
prive their districts    of the financial benefits of the State’s program
and deprive their students of scholastic       affiliation and accredita-
tion. We will therefore      refrain from passing upon the question of
whether any recalcitrant       trustees are criminally    liable to fines
from $100 to $1000 under Section 2 of Article XI if they pay less
than the minimum wage.          The many circumstances       surrounding
criminal responsibility      are such as could not be accurately      antici-
pated and disposed of in an abstract and summary manner.               To say
the least, those who fail to obey this law would subject themselves
to the possibility   of prosecution.    In this regard Section 2 of Article
XI provides:

                  “Any person, including any county su-
        perintendent or ex-officio     county superintend-
        ent, school bus driver, school trustee, or any
        district superintendent,    principal or other ad-
        ministrative    personnel.  or teacher of a school
        district,  or its treasurer   or proper disburs-
        ing officer, who violates    any of the provisions
Hon. C. H. Cavness,    Page 4    (V-921)



        of this Act other than those to which Section 1
        of Article XI of this Act applies, shall be
        guilty of a misdemeanor   and shall be fined
        not less, than One Hundred ($100.00)   Dollars
        nor more than One Thousand ($l,OOO.OO) Dol-
        lars.  ~. . .”

                 Your fourth question inquires about the penalties
applicable if a local school board fails to make an effort to raise
the local funds to assist in the program.        This question also is
too broad for there to be a pin-point answer.         There may be many
different facts and circumstances       surrounding such failure.      For
example,   the provisions   of Article VI would seem to require a
school district to increase its maintenance        tax if necessary   to
meet the local charge determined        for the district.   The Legisla-
ture did not intend that any district should increase        its tax rate
over the $1.50 limit fixed in Article 2784e in order to meet the
local charge or assignment       determined.    It is stated in the fourth
and fifth paragraphs    of Section 5 of Article VI that:

                 “Provided  that if the revenue that
        would be derived from the legal maximum
        local maintenance   school tax is less than
        the amount that is assigned to a school dis-
        trict according to the economic index, and
        if such property valuation is valued for
        State and county purposes,    such lesser
        amount shall be the amount assigned to be
        raised by such school district.

                 “Provided  further, that if a school
        district is unable or for any reason fails to
        collect local maintenance    school funds
        equal to the amount assigned to it as deter-
        mined by this Act, such failure will not
        make the district ineligible for full State
        per capita apportionment    and full Founda-
        tion School Fund grants, but the amount as
        determined by this Act shall be charged
        against the district as budgetary receipts
        whether such amount is collected or not.”
Hon. C. H. Cavness,    Page   5 (V-921)




                 Both Section 3 of Article VII of the Texas Consti-
tution and Article 2784e. V.C.S.,    authorize the levy and collection
of local maintenance    taxes only upon a majority vote of the quali-
fied property taxpaying voters of the district.      The inclusion in
Sen,ate Bill 116 of the above provisions   constitutes legislative    rec-
ognition of such constitutional   and statutory limitations.     Certain-
ly where the people of a school district vote against a tax in-
crease,  the school district trustees would be unable to raise the
funds equal to the amount assigned,

                 The Legislature    has required local boards of
trustees  to extend their, efforts to raising local funds to equal
the amount to be charged and used by the district in carrying out
the purposes of Senate Bill 116. But it cannot force the voters in
a school district to vote for a lo&       maintenance    tax which will
raise that necessary    amount.    It may be that the Legislature
could have guaranteed the establishment         and financing of the pre-
scribed minimum program in every school district in Texas by
adequate appropriations    from State funds of all tlie money re*
quired (over and above State and County Available           School Funds
to-be realized by the Districts)     to take care of the total costs of
the minimum program prescribed,          but it did not do so in Senate
Bill 116. The Bill requires    all local school districts     to raise
from local sources forty-five     million dollars toward the total
cost of the prescribed   minimum program.          It does not guarantee
to each and every district a minimum foundation program.               It
guarantees   only, to the extent of State funds appropriated        for
such purpose, the availability    of a minimum foundation program
to each child of school age in Texas.       Thus, the full cooperation
of the property taxpaying voters of each school district is neces-
sary to effectuate in full the intended purpose and program pre-
scribed in the Act.    To the extent that taxpayers of the school
districts  do provide local funds sufficient to discharge        the ob-
ligation or charge imposed upon them to be used in the minimum
program,    we think the boards of trustees thereof are under a
duty to make available to their scholastics       the minimum pro-
gram provided in the Act.
Hon. C. H. Cavness,               Page   6 (V-921)




               As in answering question two, we will pretermit
any discussion of criminal liability until some specific situation
is presented with all the surrounding circumstances.

                Your last two questions deal with the nine-month
school term:   (1) Is there cr,iminal responsibility    for the failure
of the school trustees to have a nine-months’      school; and (2)
what Gilmer-Aikin    funds, ,if any, are available to a district which
fails to have a full nine-month8    term?

               As in the previous questions,  we pass for the
present the question of criminal liability under Section 2 of Arti-
cle XI quoted herein on page 3.

                 However. it was unquestionably     and positively    the
intention of the Legislature   that a full nine-months” term be held
under the Gilmer-Aikin     program.    Senate Bill 116 declares    at
the outset that:

                 I‘
                      It is the purpose of this
                      .   .   .                       Act to
        guarantee to each child of school age         in
        Texas the availability  of a minimum         Founda-
        tion School Program    for nine (9) full     months
        of the year. . . .”

                An examination of Article IV will reveal that the
salary schedules,   for the most part, contemplate    a minimum of
a nine-,months’ school.   Annual salaries,  in general,  are obtained
by multiplying  the monthly salaries   by nine.

                 However, there is no provision,    as there was
with regard to minimum salaries,     that participation   in the bene-
fits of the program and accreditation    is conditioned on a nine-
months’school.    And it is provided that classroom     teachers
shall be paid an annual salary of the monthly salary multiplied
by nine.

                 6.
                  . . . provided however that if the length
        of the school term is less than nine months, the
        annual salary shall be such base salary and,in-
        crements   multiplied by the number of months in
        the term. ”
Hon. C. H. Cavness,      Page   7 (V-921)




                   A similar provision      is made   as to the salaries
of principals    in certain districts.

                 Although the Legislature     provided for circum-
stances wherein school terms are less than nine months and
did not specifically   set out the consequences    of a failure to
have a nine-months’school,      its dominant objective was “to
guarantee to each child. ~ O the availability     of a minimum
Foundation School Program        for nine full months of the year.”

                 We interpret the program to be one for a mini-
mum of nine months.      Any school district which maintains its
schools for a less period would therefore be entitled only to
a fractional  share of the benefits.    The fraction would be de-
termined by the number of months the schools were operated.
This is indicated by the provisions     of Section 2 of Article V
dealing with transportation   aid, The aid to be given is a
stated amount “for nine months transportation        per public
school pupil. or a proportionate     part thereof if such pupil
is not transported  for nine months.”

                    The above are intended to be but general re-
marks.      It was the general legislative   intent that the public
schools     participating in the Gilmer-Aikin    program should
have a    full nine months’term.    Financial aid is made avail-
able to    insure such a schedule.

                Many problems     will doubtless arise, and we.
of course,  cannot solve them all at this time.    Certainly
school trustees may not discriminate      among pupils similar-
ly situated within their district and furnish some seven
months and others nine months of school under the Gilmer-
Aikin program.     The equal protection clauses of the Texas
and Federal Constitutions    would prohibit that action, and it
would be in violation of the spirit of the Gilmer-Aikin      pro-
gram.    Those districts which have less than a nine-months*
program will be denied a proportionate      part of the financial
assistance   made available under the Acts.
Hon. C. H. Cavness.      Page 8   (V-921)




                        SUMlvfARY

                    The Gilmer-Aikin   Acts fix the minimum
          salaries   for school teachers and other school
          employees.     Payment of at least that salary is
          a condition precedent to a school’s    participation
          in the Foundation School Fund and to its name
          being placed or continued on the official list of
          affiliated or accredited   schools.  Sec. 1 of Art.
          IV, S.B. 116, Acts 51st Leg. 1949.

                   The Gilmer-Aikin     Acts contemplate    a
          full nine months’school    program.    A district
          operating less than nine months of school is
          entitled only to a fractional   share of the Founda-
          tion School Funds.

                                      ‘Yours very   truly,

                            ATTORNEYGENERALOF                TEXAS



                            BY        Joe R. Greenhill
                                      First Assistant




JRG:erc                     ATTORNEYGENERAL
