The Attorney General of Texas
Febxuary 28, 1978
JOHN L. HILL
Attorney General
Honorable Bob Bullock Opinion No. H-l129
Comptroller of Public Accounts
L.B.J. Building
Austin, Texas Re: Allocation of funds to
colleges and universities under
Dr. Kenneth Ashworth article 7, section 17 of the Texas
Commissioner for Higher Education Constitution.
Coordinating Board, Texas College and
University System
Austin, Texas
Gentlemen:
You have requested our opinion regarding the allocation of funds to
colleges and universities under article 7, section 17 of the Texas Constitution.
Article ‘7, section 17, originally adopted in 1947, and amended in 1956 and
1965, levies a state ad valorem tax “for the purpose of creating a special
fund” to finance permanent improvements at 17 state institutions designated
therein. The 1965 amendment directed the Comptroller to allocate funds
among the various institutions for the 12-year period beginning June 1, 1966,
according to a specific formula:
Eighty-five per cent (85%) of such funds shall be
allocated by the Comptroller of Public Accounts of the
State of Texas on June 1, 1966, and fifteen per cent
(15%) of such funds shall be allocated by said Comp-
troller on June 1, 1972, based on the following
determinations:
(1) Ninety per cent (90%) of the funds allocated on
June 1, 1966, shall be allocated to state institutions
based on projected enrollment increases published by
the Coordinating Board, Texas College and University
System for fall 1966 to fall 1978.
(2) Ten per cent (10%) of the funds allocated on
June 1, 1966,shall be allocated to certain of the eligible
state institutions based on the number of additional
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Honorable Bob Bullock
Dr. Kenneth Ashworth - Page 2 (B-1129)
square feet needed in educational and general facilities by
such eligible state institution to meet the average square
feet per full time equivalent student of all state senior
institutions (currently numbering twenty-two).
(3) All of the funds allocated on June 1, 1972, shall be
allocated to certain of the eligible state institutions based
on determinations used in the June 1, 1966, allocations
except that the allocation of fifty per cent (50%) of the
funds allocated on June 1, 1972, shall be based on projected
enrollment increases for fall 1972 to fall 1978, and fifty per
cent (50%) of such funds allocated on June 1, .1972, shall be
based on the need for additional square feet of education
and general facilities.
The amendment then provides:
Not later than June first of the beginning year of each
succeeding ten-year period them Comptroller of Public
Accounts of the State of Texas shall reallocate eighty-five
per cent (85%) of the funds to be derived from said Ten Cent
(1Oc) ad valorem tax for said ten-year period and not later
than June first of the sixth year of each succeeding ten-year
period said Comptroller shall reallocate fifteen per cent
(15%) of such funds to the eligible state institutions then in
existence based on determinations used in the said ten-year
period that are similar to the determinations used in
allocatin g f unds durin g the twelve-year period begin%
January 1, 1966, except that enrollment projections for
succeeding ten-year periods will be from the fall semester
of the first year to the fall semester of the tenth year. All
such designated institutions of higher learning shall not
thereafter receive any general revenue funds for the
acquiring or constructing of buildings or other permanent
improvements for which said Ten Cent (1Od) ad valorem tax
is herein provided, except in case of fire, flood, storm, or
earthquake occurring at any such institution, in which case
an appropriation in an amount sufficient to replace the
uninsured loss so incurred may be made by the Legislature
out of any General Revenue Funds.
(Emphasis added). In pursuance of the constitutional directive that you reallocate
these funds for the ten-year period beginning June 1, 1978, you first ask whether
state colleges and universities created by the Legislature since 1965 are eligible to
receive the funds allocated by article 7, section 17.
p. 4607
Honorable Bob Bullock
Dr. Kenneth Ashworth - Page 3 (H-1129)
In our opinion, the funds described in article 7, section 17 may be distributed
only to those institutions named therein. The language of the amendment is clear:
The following state institutions then in existence shall be
eligible to receive funds raised from said Ten Cent IlOd) tax
levy for the twelve-year period beginning January 1, 1966,
and for the succeeding ten-year period:
(Emphasis added). It is well established that tax monies levied and collected for a
particular purpose may be expended only for that purpose. Carroll v. Williams, 202
S.W. 504, 506-07 (Tex. 1918). In Attorney General Opinion C-687 (19661, this office
held that
ItI he five cent tax levied for the year 1965 was levied for
the purposes set out in Article VII, Section 17 prior to the
November, 1965 amendment and therefore should be dis-
tributed among the twelve schools listed at the time the tax
levy was made. . . . [WI hether based on the tax levied under
the 1947, 1956, or 1965 amendments the distribution of funds
would depend on which allocation was in effect at the time
the particular tax was levied.
(Emphasis in original).
Furthermore, the Legislature has recognized that distribution of funds under
article 7, section 17 is limited to the institutions named therein by providing other
means for financing permanent improvements at recently created state univer-
sities. See e. Acts 1973, 63rd Leg., ch. 659, at 2119; Acts 1977, 65th Leg., ch.
872, at 3058
-P Texas A & I - Corpus Christi State University); Acts 1975, 64th Leg.,
ch. 743, at 2786; Acts 1977, 65th Leg., ch. 872, at 3081 (Texas Eastern University).
If these institutions were permitted to share in the allocation of article 7, section
17, any appropriation to them for permanent improvements would be in contraven-
tion of that portion of the amendment which prohibits the expenditure of “any
general revenue funds for the acquiring or constructing of buildings or other
permanent improvements for which said Ten Cent (1OC) ad valorem tax is herein
provided . . . .” In addition, the legislative history of amendments and attempted
amendments to this section indicate clearly that the section has been consistently
interpreted as applying only to those institutions specifically listed. It is our
opinion, therefore, that only those institutions designated by name in article 7,
section 17 are eligible to receive funds allocated thereunder.
You also ask whether the Comptroller may, for the allocation to be made in
June, 1978, vary the formula from the 90 percent enrollment - 10 percent square
footage basis used in 1966. Article 7, section 17 requires that the reallocation shall
be
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Honorable Bob Bullock
Dr. Kenneth Ashworth - Page 4 (R-1129)
based on determinations for the said ten-year period that
are similar to the determinations used in allocating funds
during the twelve-year period beginning January 1, 1966 . .. . .
(Emphasis added). “Similar” does not mean “identical,” but rather “having
characteristics in common: very much alike . . . alike in substance or essentials.”
Webster’s New International Dictionary (3d ed.). As the court noted in Guarantee
Mutual Life Insurance Co. v. Harrison, 358 S.W.2d 404 (Tex. Civ. App. - Austin
1962, writ ref’d n.r.e.1,
[il t is a word with different meanings depending on the
context in which it is used.
E at 406.
In this instance, we believe that the context leaves no room for a variable
allocation formula. The use of “similar” rather than “identical” probably reflects
the uncertainty of forecasting in 1965 whether there would indeed be projected
enrollment increases for a period beginning 13 years thereafter. Additionally, in
one instance the formula will be based on a ten year period while in another it is
based on a twelve year period. Jn any case, it is obvious that any determination
made in 1978 is unlikely to be identical to one made in 1965, if only because the raw
data are somewhat different. Furthermore, were we to construe “similar” to
permit a flexible allocation formula, we would have no means by which to
determine what degree of variation from 90-10 is permissible. Finally, in
Guarantee Mutual Life Insurance Co. v. Harrison, e, the court rejected a 1951
Attorney General’s Opinion which had attributed a flexible meaning to “similar.”
358 S.W.2d at 406-08. In our opinion, the Comptroller may not vary the 1978
allocation formula from the 90 percent enrollment - 10 percent square footage
basis used in 1966.
SUMMARY
Only those institutions of higher education designated by
name in article 7, section 17 are eligible to receive funds
allocated thereunder. The Comptroller may not vary the
1978 allocation formula from the 90 percent enrollment - 10
percent square footage basis used in 1986.
Attorney General of Texas
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Honorable Bob Bullock
Dr. Kenneth Ashworth - Page 5 (H-U.29)
APPROVED:
DAVID M. KENDALL, First Assistant
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C. ROBERT HEATH, Chairman
Opinion Committee
jst
D. 4610