                                                     July l&2000



The Honorable Donna J. Gordon                                 Opinion No. JC-0253
Houston County Attorney
100 North 6th, Suite 105                                      Re: Whether “area encompassed” by a school
Crockett, Texas 75835                                         district in section      130.906 of the Local
                                                              Government Code refers to the total area of the
                                                              district or the portion of the district that includes
                                                              a national forest (RQ-0170-JC)


Dear Ms. Gordon:

         Section 130.906 ofthe Local Government Code requires the commissioners court of a county
in which a national forest is located to allocate national forest revenues the county receives to school
districts in proportion to the “area encompassed by each district.” TEX. LOC. Gov’~ CODE ANN. 5
 130.906 (Vernon 1999). You ask whether “area encompassed by each district” refers to the total
area of the school district or only to that portion of the district containing a national forest. We
conclude that “area encompassed by each district” refers to the total area of the school district in the
county.

        Section 130.906 of the Local Government                 Code provides as follows:

                         The commissioners court of a county in which a national
                forest is located and that receives funds Tom the federal government
                 under 16 U.S.C. Section 500 shall allocate 50 percent ofthe funds to
                 the school districts of the county in proportion to the area
                 encompassed by each district and shall either allocate the remaining
                 50 percent for the benefit of the public roads in the county or transfer
                 that amount to the school districts.

Id. $130.906 (emphasis added). Section 130.906 is thenonsubstantivecodificationofformer article
235lb-4 ofthe Revised Civil Statutes.’ See Act ofMar. 1, 1945,49th Leg., RX, ch. 19, § 1, 1945


        ‘Article 235 lb-4 provided   as follows:

                          Whereas     Congress     has heretofore   passed   a law which provides   that
                                                                                                           (continued...)
The Honorable Donna J. Gordon             - Page 2           (X-0253)




Tex. Gen. Laws 29, repealed by Act ofMay 1, 1987,7Oth Leg., R.S., ch. 149, $5 1, 51, 1987 Tex.
Gen. Laws 707, 874, 1308 (nonsubstantive codification of article 235lb-4 at Local Government
Code section 130.006); Act of Feb. 21, 1989, 71st Leg., R.S., ch. 1, 5 23(a)(l), 1989 Tex. Gen.
Laws 1, 25 (renumbering section 130.006 to 130.906). You ask about the correct construction of
“area encompassed by each district” in section 130.906 because of conflicting 1954 and 1947
attorney general opinions construing the term “area” in former article 235 lb-4. Compare Tex. Att’y
Gen. Op. No. S-121 (1954) with Tex. Att’y Gen. Op. No. V-93(1947).

         As a threshold matter, we note that 16 U.S.C. 5 500, the federal law pursuant to which a
county receives the national forest revenues, does not direct the manner in which the federal funds
are to be allocated to school districts. See 16 USC. 5 500 (1994); see also King County v. Seattle
Sch. Dist. No. I, 263 U.S. 361, 364-65 (1923) (the federal act does not direct the division of the
revenues between schools and roads “and the moneys granted by the United States are assets in the
hands of the state to be used for the specified purposes as it deems best.“). Section 500 provides in
pertinent part as follows:

                 [Tlwenty-five per centum of all moneys received during any fiscal
                 year from each national forest shall be paid, at the end of such year,
                 by the Secretary of the Treasury to the State or Territory in which
                 such national forest is situated, to be expended as the State or
                 Territorial legislature may prescribe for the benefit of the public
                 schools and public roads of the county or counties in which such
                 nationalforest is situated: Provided, [t]hat when any national forest


        ‘(-continued)
                   thereafter hventy-five per centurn (25%) of all moneys received during any fiscal
                   year from each national forest shall be paid at the end thereof by the Secretary of
                   the Treasury to the State or Territory in which said forest is situated to be expended
                   as the State or Territorial Legislature may prescribe for the benefit of the public
                   schools and the public roads of the county or counties in which the national forest
                   is situated, and whereas the Legislature oftbe State of Texas has not prescribed any
                   method for prorating       said funds, now, therefore, be it enacted that the
                   Commissioners     Courts of the counties in Texas in which such national forests are
                   situated are hereby authorized to prorate all such funds received and to be received
                   from the Federal Govemment for timber and all other income derived from such
                   lands as follows:

                           Fifty per cent (50%) of such money received shall be allocated to the
                  school districts in proportion to the area in said districts, and fifty per cent (50%)
                  of same to the county for the benefit of the public roads in said county. Provided
                  the Commissioners     Court may transfer the fifty per cent (50%) received by said
                  Court to the school districts.

Act of Mar. 1, 1945,49th   Leg., RX, ch. 19, 5 1, 1945 Tex. Gen. Laws 29.
The Honorable    Donna J. Gordon     - Page 3       (K-0253)




                is in more than one State or Territory or county the distributive share
                to each from the proceeds of such forest shall be proportional to its
                area therein,        The Secretary of Agriculture shall, from time to
                time as he goes through his process ofdeveloping the budget revenue
                estimates, make available to the States his current projections of
                revenues and payments estimated to be made under the Act of May
                23, 1908, as amended, or any other special Acts making payments in
                lieu of taxes, for their use for local budget planning purposes.

 16 U.S.C. 5 500 (1994) (emphasis added). Nothing in section 500 indicates a congressional intent
that the revenues be allocated on the basis ofthe national forest area in a school district. See id.; King
County, 263 U.S. at 364-65; see also Trinity Zndep. Sch. Dist. v. Walker County, 287 S.W.2d 717,
722 (Tex. Civ. App.-Galveston     1956, writ refd n.r.e.) (federal law does not evidence intent to limit
revenues to school districts that contain national forests); Eminence R-I Sch. Dist. v. Hodge, 635
S.W.2d lo,12 (MO. 1982) (Federal “provision clearly allows the states to distribute the forest reserve
funds in any manner as long as the specified purposes of the statute are met, namely, to benefit
public schools and roads of the counties in which the national forest is situated.“); Ariz. Att’y Gen.
Op. No. 189-032 (1989)1989 WL 26690 (disproportionate amount of forest reserve funds may be
allocated between public schools and public roads so long as both categories receive benefit and
concurring that state statute does not limit funds to school districts in which forest reserves are
located). Rather, section 500 leaves the manner of allocating the federal revenues to school districts
to the state.

         Because federal law is not controlling, we begin our analysis by looking at the express
language of section 130.906 of the Local Government Code. In construing a statute, our primary
objective is to give effect to the legislature’s intent. See Mitchell Energy Corp. v. Ashworth, 943
S.W.2d 436,438 (Tex. 1997). To give effect to legislative intent, we construe a statute according to
its plain language. See RepublicBank Dallas, N. A. v. Znterkal, Inc., 691 S.W.2d 605, 607 (Tex.
 1985); Bouldin v. Bexar County Sheriff’s Civil Serv. Comm ‘n, 12 S.W.3d 527,529 (Tex. App.San
Antonio 1999, no pet.). In doing so, we may not insert additional words into a statute unless it is
necessary to effect a clear legislative intent. See Bouldin, 12 S.W.3d at 529. Furthermore, the
meaning of section 130.906’s statutory predecessor is not necessarily controlling. See Fleming
Foods, Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (“directive to the Legislative Council [in
connection with codification of statutes] to refrain from changing the sense, meaning, or effect of
a previous statute [may not] be used as a basis to alter the express terms of a code that the
Legislature enacts as law, even when the Council’s language does change the prior, repealed law.“).

         By its terms, section 130.906 requires allocation to a school district in proportion to the total
area of the school district in the county. First, it establishes that all school districts of the county are
eligible for allocation of the federal revenues: The statute directs a county that receives the funds to
allocate fifty percent “to the school districts of the county,” not school districts of the county
The Honorable Donna J. Gordon       - Page 4       (X-0253)




containingnational~rest      lands. TEX. LOC. GOV’TCODEANN. 5 130.906 (Vernon 1999) (emphasis
added). Second, when the statute apportions the allocation among school districts, it does not do so
with reference to forest lands. Section 130.906 requires allocation “in proportion to the area
encompassed by each district.” Id. (emphasis added). “Each district” here can only refer back to the
preceding phrase “school districts of the county” eligible to receive the allocation, i.e., all school
districts of the county. Additionally, “area” of each school district of the county is not restricted to
the nationalforest    area encompassed by each district. See id. (emphasis added). To read section
 130.906 to require allocation in proportion to the national forest area in a school district would
require inserting additional words, i.e., “containing national forest,” qualifying “school districts of
the county” eligible for the allocation or “national forest” qualifying “area encompassed by each
district” for the purposes of apportioning the allocation among the eligible school districts. But
nothing in section 130.906 indicates a “clear” legislative intent to allocate or apportion revenues on
the basis of the national forest area in a school district that would justify inserting these additional
words. See Sorokolit v. Rhodes, 889 S.W.Zd 239, 241 (Tex. 1994) (if statutory language is
unambiguous, court must seek legislative intent as found in plain and common meaning of words
and terms used).

         If the legislature intended that the federal revenues be allocated on the basis of the national
forest area in a school district, it would have so expressly provided, as it has in section 403.101 of
the Government Code. Under section 403.101, allocation of flood control lease revenues received
from the federal government pursuant to 33 U.S.C. 5 701~.3 is limited to political subdivisions that
contain federally acquired flood control land and is based on the area of such land within the political
subdivision. See TEX. GOV’T CODE ANN. 5 403.101 (Vernon 1998). Section 403.101 provides in
pertinent part as follows:

                  (a) The comptroller may receive and give receipt for money due or
                payable under 33 U.S.C. Section 701c-3 (1986).

                   (b) Each person having the duty to collect school or road taxes for
                a school district, county, or other political subdivision all or part of
                which is within a flood control district or      area     shall prepare
                and file with the comptroller a sworn report showing:

                        (1) the total number of acres acquired by the United States fox
                flood control purposes within the boundaries of the school district,
                county, or other political subdivision; and

                         (2) the tax rate for each $100 of valuation for school and road
                purposes levied by the school district, county, or other political
                subdivision for the year in which the report is made.
The Honorable    Donna J. Gordon    - Page 5       (JC-0253)




                    (c) On or before September 15 of each year the comptroller shall
                 pay to a school district, county, or other political subdivision the
                proportionate share of money in thejood area school and roadfund
                 that wasproduced by leases on landacquired by the UnitedStatesfor
                jlood control purposes within the school district, county, or other
                political subdivision.    The school district, county, or other political
                 subdivision is entitled to a proportionate part ofthe money in the fund
                 based on the ratio that the district’s, county’s, or subdivision’s tax
                 rate bears to the sum of the school tax rate and the road tax rate. The
                 money may be used for the purposes permitted by federal law.

Id. 5 403.101(a), (b), (c) (emphasis added). The statutory predecessor of section 403.101(atticle
4366a of the Revised Civil Statutes) was adopted by the same legislature that adopted the
predecessor to section 130.906. See Act ofMay 22, 1945,49th Leg., R.S., ch. 250, 1945 Tex. Gen.
Laws 387 (article 4366a); Act ofMar. 1, 1945,49th Leg., R.S., ch. 19, 5 1, 1945 Tex. Gen. Laws
29 (article 2351b-4).

          Furthermore, we note that our construction of section 130.906 is consistent with the
controlling judicial construction of its statutory predecessor. Prior judicial and attorney general
opinions concluded that “area in said districts” for the purposes of allocation and distribution of the
national forest revenues in the predecessor to section 130.906, former article 235 lb-4 of the Revised
Civil Statutes, referred to area of a school district rather than area of a national forest in the school
district, See Trinity Indep. Sch. Dist. v. Walker County, 287 S.W.2d 717 (Tex. Civ. App.-Galveston
1956, writ refd n.r.e.); Tex. Att’y Gen. Op. No. V-93 (1947).

         In Trinity Independent School District Y. Walker County, the court rejected the contention
that only school districts containing national forest land were entitled to a share of the federal
revenues because the payments were in lieu of taxes lost to counties and school districts in which
the tax-exempt national forest lands were located. See Trinity, 287 S.W.2d at 720-722; see also
Georgia Pac. Corp. v. CountyofMendocino,         357 F. Supp. 380,388-89 (N.D. Cal. 1973) (and cases
cited therein) (agreeing with Trinity court’s interpretationofthe  federal law and rejecting contention
that federal national forest revenues are payments in lieu of taxes); Eminence R-l Sch. Dist., 635
S.W.2d at 12 (federal statute cannot be viewed strictly as in lieu oftax provision, Congress intended
to aid generally schools and roads upon which impact of federal presence falls most heavily). The
 Trinity court first determined that the federal law, 16 U.S.C. 4 500, “evidences no intention on the
part of Congress to make payments in lieu of taxes, but rather a friendly purpose to create trusts for
the benefit of counties in which national forests are located in recognition of the national interest in
 education and road building” and “that the county as an entirety is the beneficiary of the trust” Id.
 at 722. But more importantly, setting aside the “foregoing considerations,” the court concluded that
based on the plain language of former article 2351b-4, all the public schools of the county or
The Honorable   Donna J. Gordon     - Page 6       (X-0253)




counties in which a national forest is situated are beneficiaries    of the federal funds under article
2351b-4, see id. at 722-725, stating:

                         When the language alone ofthe statute is looked to, and there
                is no indulgence in speculation as to the possible meaning ofwhat we
                consider a clear, literal expression of the legislative intent, there
                would appear to be no reasonable grounds for finding any ambiguity
                in the statute, nor for ascribing to the Legislature an intent to exclude
                from the benefit ofthe Federal fund any school district ‘ofthe county
                or counties,’ that is to say, to segment a county on the basis of the
                presence in various school districts of the Federal forest lands.
                It is the presence in the county of the national forest lands which is
                the determinative factor, not the presence of such lands in a particular
                school district      .”

Id. at 725. It follows that if presence of a national forest in a school district is unnecessary, “area”
for the purposes of allocating the federal revenues cannot refer to the area of the forest contained in
the school district.

        The Trinity court also approved Attorney General Opinion V-93, a 1947 opinion of this
office construing former article 2351b-4 to apply to all school districts in the county receiving the
federal funds and construing “area in said districts” to refer to the total area of a school district
within the county. See Trinity, 287 S.W.2d at 725-26. Attorney General Opinion V-93 advised that:

                [Nlational forest receipts received by the county by virtue of the
                provisions ofTitle 16, Chapter 2, Section 500, U.S.C.A., and Article
                2351b-4 [of the Revised Civil Statutes], for public school purposes
                should be prorated and transferred by the Commissioners Court to all
                the school districts within the county in proportion to the area in said
                school district; further, that the term “area “as used in Article 2351b-
                4. means area of the school districts located in the county, and does
                not mean area of nationalforest lands.

Tex. Att’y Gen. Op. No. V-93 (1947) at 2 (emphasis added); see also Trinity, 287 S.W.2d at 726.

         The Trinity court rejected Attorney General Opinion S-l 21, a 1954 opinion ofthis office that
overruled Attorney General Opinion V-93 and concluded that national forest revenues should be
allocated to school districts based on the national forest area contained in each district. See Trinity,
287 S.W.2d at 726; Tex. Att’y Gen. Op. No. S-121 (1954) at 2. Attorney General Opinion S-121
premised its conclusion on the assumption that Congress and the legislature intended to provide the
national forest revenues in lieu of taxes. See Trinity, 287 S.W.2d at 726; Tex. Att’y Gen. Op. No.
The Honorable Donna J. Gordon                Page 7        (X-0253)




S-121 (1954) at 2. The Trinity court concluded that “such assumption is the sole basis upon which
the opinion rests” and “[o]ur study [of the federal law] convinces us that the assumption is incorrect
and we feel the earlier and more nearly contemporaneous          [Attorney General Opinion V-93’s]
construction to be on firmer ground          .” Trinity, 287 S.W.2d at 726. Thus, Attorney General
Opinion S-121 (1954) has been judicially disapproved, and we therefore overrule it.

          Finally, we note that since Trinity, Congress amended 16 U.S.C. 5 500 in 1976, but in doing
so, it did not direct the allocation of the federal revenues or affect the validity of Trinity’s state law
analysis. The amendment is some indication that the national forest revenues are provided in lieu of
taxes.’ See Act of Oct. 22, 1976, Pub. L. No. 94-588,s 16,90 Stat. 2949. However, the manner in
which the federal revenues are to be allocated between public roads and public schools or among
school districts, is left to the discretion ofthe state legislature. See 16 U.S.C. 5 500 (1994). Other
courts and state attorneys general considering the same question after 1976 have reached the same
conclusion. See Eminence R-l Sch. Dist. v. Hedge, 635 S.W.2d at 12 (federal provision allows state
to distribute forest reserve funds in any manner as long as specified purposes of benefitting public
schools and roads of counties in which national forests are situated are met); Ariz. Att’y Gen. Op.
No. 189-032 (1989) 1989 WL 266960 (disproportionate amount of forest reserve funds may be
allocated between public schools and public roads so long as both categories receive benefit and
state statute does not limit funds to school districts in which forest reserves are located). The Trinity
court’s construction     of the predecessor to section 130.906, while informed by the court’s
interpretation ofthe federal law that the federal payments were not in lieu oftaxes, was not premised
on this interpretation. Rather, the Trinity court determined that the Texas Legislature did not intend
to restrict allocation ofthe federal funds to school districts containing national forest lands based on
the plain language of the statute. See Trinity, 287 S.W.2d at 725-26.

        In sum, the phrase “area encompassed” by a school district in section 130.906 of the Local
Government Code refers to the total area of a school district in the county. This construction is not
only plain from the statute’s face but is also consistent with the judicial construction of the statute’s
predecessor.




          * The 1976 amendment states that: “The Secretary of Agriculture shall          make available to the States his
current projections of revenues and payments estimated to be made under the Act of May 23,1908, as amended, or any
other special Acts making payments in lieu oftaxes, for their use for local budget planning purposes.” 16 U. S.C. 5 500
(1994) (emphasis added).
The Honorable Donna J. Gordon      - Page 8       (JC-0253)




                                        SUMMARY

                       “Area encompassed” by a school district under section
               130.906 ofthe Local Government Code for the purposes ofallocation
               of national forest revenues refers to the total area of a school district
               in the county.

                       Attorney General Opinion S-121 (1954) has been judicially
               disapproved, and it is overruled.




                                                Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General - Opinion Committee
