Ammmv. TEXAPJ 78711
,October 19, 1973
The Honorable Tom Hanna Opinion No. H- 133
Criminal District Attorney
P. 0. Box 2553 Re: Reimbursement of expenses
Beaumont, Texas 77701 of school board members
incurred in various ways.
Dear Mr. Hanna:
You have requested our opinion about the propriety of reimbursing
members of boards. of trustees of independent school districts for certain
expenses. Specifically :, you ask whether it would be legal for the school
district to reimburse board members for (1) actual expenses necessarily
incurred for travel, meals and motel rooms to attend a convention of
administrators and school board members at a point outside the State of
Texas, assuming such convention dealt only with solutions to school
problems and the planning of school business, (2) travel expenses and
lodging to attend state conventions of administrators and,,school board
members at a point in Texas, assuming that the member attending has
been designated a delegate and the trip has been authorized by the Board
and that the member will prominently participate in the program which
concerns matters of importance to the school district, (3) necessary
lodging and travel expenses incurred in attending to school business
with the Texas Education Agency at the State Capitol in Austin, and (4)
reasonable and necessary legal expenses, including attorneys fees, for
the defense of a “taxpayer’s suit in the nature of quo warrant0 brought
for the purpose of removing . . . school board members from office, ‘I
assuming that in the actual disposition of the case the issues are
essentially those of judgment and school management, with no issue as
to any alleged illegal act involved and no charge of conflict-of-interests
involved.
You advise that the by-laws of the local school district have for years
authorized reimbursement to members of “expenses incurred in perfor-
mance of duty, ” that school districts “all over the state” regularly
expend money for trips such as those described; and that Texas Education
Agency rules and regulations anticipate such expenditures. But, you also
point out that a 1939 Attorney General Opinion (O-1722) is opposed.
p. 637
The Honorable Tom Hanna, page 2 (H-133)
Some applicable provisions of the Texas Education Code are:
Section 23. 26(b):
“The trustees shall have the exclusive power to
manage and govern the public free school of the
district. ”
Section 23.26(d):
“The trustees may adopt such rules, regulations
and by-laws as they may deem proper. ”
Section 23.19(e):
“Thk trustees shall serve without compensation. ”
Section 2 3. 2 5:
“The board of trustees of an independent school
district shall have the powers and duties described
in this subchapter, in addition to any of the powers
and duties granted or imposed by this code or by
law. ‘I
Section 20.48 entitled “Authorized Expenditures:’ provides in,its
subsection (a) :
“The public free school funds shall not be
expended except as provided in this section. ‘I
No specific mention is made cf reimbursement of expenses. However, it
does provide in subsection (c):
“Local school funds . . . may be used for the purposes
enumerated for state and county funds . . . and for
other purposes necessary in the conduct of the public
schools to be determined by the board of trustees . . .
(Emphasis added)
p. 638
The Honorable Tom Hanna, page 3 (I-I-133)
Similar statutes were in effect when Attorney General Opinion O-1722
(1939) was issued. The predecessor of 5 20.48 was. Article 2827, ,Vernon’s
Texas Civil Statutes. Like subsection (c) of $ 20.48 of today’s Education
Code, its subsection (2) state.d that local school funds might be used “for
other purposes necessary in the conduct of the public school to be deter-
mined by the Board of Trustees. ‘I Among other things, the Opinion O-1722
specificallydealt with whether or not local board members could be re-
imbursed for expenses incurred in attending meetings. of a state organization
similar to, those, you describe.
The 1939 opinion concluded there was “nothing to indicate” that the ,~
existenc,e of the state-wide organizations of school trustees or their con-
ventions was necessary in the conduct of the public schools. It went on
to state that whatever benefit might accrue to the school through the
attendance at those meetings “would be remote and indirect?’ Upon
this reasoning, it was determined that the board members were not
entitled to reimbursement for dues in the state organizations or to meet
expenses in attending its convention.
The problems you pose are somewhat, similar to those considered in
Attorney General Opinion H-70 (1973). The question there was whether
school districts could purchase insurance to protect. school trustees from
costs of litigation growing out of the discharge of official duties. There,
also, early Attorney General opinions had concluded as a matter of law
that thee purchase of indemnity-type insurance was -an unnecessary and
unreasonable expenditure of .public funds. But the ‘1973 opinions indicated
that facts would control - that it was no longer possible to conclude as, a
matter of law that such an expenditure of public funds was unreasonable
and unnecessary. It emphasized the provision $ 20.48(c) of the Education
Code that funds could be used “for other purposes necessary in the conduct
of the public schools to be determined by the board of trustees . . . ”
construed as proper public purposes , and-noted recent developments in
the law.
The concept of “public purpose ” has undergone expansion in thenlast
twenty-five years. The benefits realized need not now be direct or immed-
iate. Change and relaxation of judicial attitudes on~the matter are reflected
in Court decisions from then to the present time. Compare Housing
Authority of City of Dallas v. Higginbotham, 143 S. W. 2d 79 (Tex. 1940);
Friedman v, American Surety Co. of New York,
p. 639
The Honorable Tom Hanna. page 4 (H-133)
151 S. W. 2d 570 (Tex. 1941); Davis v. City of Lubbock, 326 S. W. 2d 699
(Tex. 1959); State v. City of Austin, 331 S. W. Zd 737 (Tex. 1960);
Barrington v. Cokinos. 338 S. W. 2d 133 (Tex. 1960); Bullock v. Calvert,
480 S. W. 2d 367 (Tex. 1972); and Harris County v. Dowlearn 489 S. W. 2d
140 (Tex. Civ. App., Houston [ 14th Dist. ] 1973; err. ref’d., n. r. e. ).
In our opinion, answers to all your questions hinge on a determination
of whether the contemplated expenditures are for “purposes necessary in the
conduct of the public schools. ” And that determination, at least initially,
is to be made by the school board.
School districts are agencies of the State. Mosely v. City of Dallas,
17 S,. W. 2d 36 (Tex. Comm. 1929); 51 Tex. Jur. 2d, Schools, $ 6. If a
school board should properly determine, in the exercise of its delegated
legislative powers, that the payment of the expenses of trustees to attend
school-related meetings is “necessary in the conduct of the public schools, ”
we could not say, except by referring to the particular facts, that such
action would be arbitrary or contrary to law. However, any such expenditure
must not be disguised compensation for services. It must serve a true public
purpose .and not merely private ends. School Boards do not have an unbridled
discretion. The question of whether a true “public purpose” has been served
is ultimately for ,the-courts. Davis v. City of Lubbock. supra. Compare
Attorney General Letter Advisory No. 24 (1973).
,In Attorney General Letter Advisory No. 6 (1973) we were concerned
with institutions of ,higher .learning ,and the scope of $ 54. 503(b) of the Texas
~Education Code, which similarly provides, ‘in part:
“The governing board of an institution of higher
education may charge .and collect from ,students
registered at the ~institution,fees to cover .the
cost of student services which the board deems
necessary or desirable in carrying out the edu-
cational functions of the institution. ‘I .(Emphasis
added)
With reference to the power of the governing boards to authorize the
collection of fees for certain activities, we said:
p. 640
The Honorable Tom Hanna, page 5 (H-133)
“The governing board of an institution of
higher education, in adopting rules and regula-
tions .for its operation, exercises delegated legis-
lative powers, and in the absence of a clear show-
ing that it has acted arbitrarily or has abused the
authority vested in it, the courts will not itierfere. ”
and we concluded:
“We are .of the opinion, therefore, that the
governing board of an educational institution of
higher learning may now authorize-a public inter-
est research activity as a student,service. ‘necessary
.or desirable in carrying out the educational functions
of the institution’, and may provide for the collection
from students of voluntary fees to cover the cost of
such service, provided authorization is pursuant to
regulations comporting with equal protection and due
process constitutional requirement,s. We cannot say
in advance, nor do we think the courts could say that
such authorization would be arbitrary or contrary to
law without firs~t examining the facts of each individual
case. ”
We are led to similar conclusions here. Reimbursements for the
travel expenses you inquired about would not be illegal, in our opinion, if
their payment was “necessary in the conduct of the public schools, ” a
matter to be determined from the particular factual context. Many of your
stated assumptions tend to support a conclusion that expenses could be
reimbursed, but it cannot be said that such a determination in an individual
case would or would not be arbitrary ,or contrary to law without first exam-
ining all the facts.
Your question concerning reimbursement of expenses incurred in
defending a quo warrant0 action require,8 further examination. Though the
principal is the same, the application of it may be modified by the legal
characteristics of a quo warrant0 action, ,which is not an ordinary lawsuit.
p. 641
The Honorable Tom Hanna, page 6 (H-133)
Quo warrant0 is a special type of court action used to determine
whether a public office is occupied by a pretender or a usurper, rather
than by a person legally entitled to hold it. It is a suit to try the title to
an office.
You ask about a situation where a taxpayer has brought a suit in the
nature of a quo warrant0 for the purpose of removing particular members
from office, and where in the actual disposition of the case, the issues
are essentially those of judgment and school management, and where “no
issue as to any illegal act, and no charge of self-dealing, is involved. ”
It is apparent that such facts do not fit the description of a true quo
warrant0 action or a true ouster suit, If considered either, however,
our answer would be the same because in either case, what seemingly
is at stake is only the personal right of the officeholder to the continued
possession of the office. See 47 Tex. Jur. 2d, Public Officers, 5 $ 7. 90.
If other interests are at stake, other perspectives are proper.
In Attorney General Opinion H-70 (1973), it is sa’id:
“It has long been the position of this office that a
school district may retain and pay to protect its
interests in Court . . . . I’
,I
. . .
“But the authority of school trustees to employ
attorneys is limited to those situations where the
legitimate interests of the district - - not merely
the personal interests of the trustees - - require
assertion or defense. See Attorney General
Opinion O-2103 (1940) where payment of attorneys
fees charged for resisting quo warrant0 suit,8
directed against the former trustees was dis-
approved. . . . ‘I
p. 642
The Honorable Tom .Hanna, page 7 (H-133)
Attorney General Opinion H-70 referred to Attorney General Letter,
Advisory No. 24 (1973) where [‘citing City National Bank of Austin v.
Presidio County, 26 S.-W. 775 (Tex. Civ. App., 1894, no writ), among others]
it was said:
‘Fublir money cannot be spent to defend private
interests [Art. 3, $ 51, Texas Constitution] . . .
Of course, suits may be only nominally against
individuals when they are really designed to ob-
struct or control the legitimate performance of
official duties. Such litigation does involve county
interests . . . and there is no constitutional pro-
hibition against the .use of public funds to defend
a county’s interest jn a legal contest, even if
the county is n&named as a party to the suit.
However, if only the private interests of the def-
endant officer or employee are at stake, no defense
could be provided, even though the act which pre-
cipitated the suit occurred while the officer or em-
ployee was ostensibly engaged in the performance
of public duties. The public has no liability’~for’ the
acts of an officer or employee acting outside of (or
beyond) the scope of his legal powers, and ordinarily
it h8.s no interest in protecting him from the con-
sequences of such acts. I’
Attorney General Opinion O-2103 (1940) based its determination that
attorneys fees in the asserted quo warrant0 suits involved there could not
be paid with public funds on a public interest/private interest analysis which
led to the conclusion that only private interests were involved. We cannot
say that in no quo warrantor or ouster case, or other case of a similar nature,
could the delense of such a suit be.vital to the district’s interest and “necessary
in the conduct of the public schools, ‘1 but we believe such a showing would be
difficult, and no reimbursement of expenses, including attorneys fees, would
be permitted in the absence of a proper finding thereof. On the other hand, an
attack against the district in the guise of a quo warrant0 or ouster suit might,
in special circumstances, engage the vital interests of the district and make
the expenditure of funds in connection therewith “necessary” in the public
sense. The facts are determinative.
p. 643
The Honorable Tom Hanna. page 8 (H-133)
SU.MMARY
Reimbursement of travel or legal expenses for
school board members would not be illegal if their
payment was determined to be necessary in the con-
duct of the public schools and to serve a proper public
purpose.
Very truly yours,
u JOHNL.
Attorney
HILL
General of Texas
APPROIED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 644