Honorable J. W. Edgar Opinion No. WW-1112
Commissioner of Education
Austin, Texas Re: Authority of the Legis-
lature to provide an oper-
ating fund for the Central
Education Agency in the
General Appropriation Act
and to have transferred
thereto monies in the Text-
Dear Mr. Edgar: book Fund.
Your request for an opinion reads as follows:
"Under the proposed and current draft of the
Free Conference Appropriation Bill for the
coming biennium there is a provision that
the Central Education Agency may create a
Operating Fund in the State Treasury and
transfer funds for administration to such
Operating Fund.
"On July 3, 1961, the State Board of Educa-
tion pursuant to Section 3 of Article VII,
Constitution of Texas, and Articles 2867,
2868 and 2869, V.C.S., set aside and allo-
cated out of the State Available Fund for
the next biennium $10,023,190 for textbooks
and administration commonly referred to as
the State Textbook Fund.
"In the biennium beginning September 1, 1961,
this Agency is contemplating the creati.onof
an Operating Fund in the State Treasury and
transferring to such Fund for State textbook
administration such sums from the State Text-
book Fund as shall be approved and directed
for State textbook administration purposes
by the State Board of Education.
"In his letter dated July 19, 1961, the Of-
fice of Comptroller of Public Accounts has
advised, in substance, that such contem-
plated transfer will be made if the Attorney
- . .
Honorable J. W. Edgar, page 2 (WW-1112)
General will express in an opinion that such
a transfer legally can be made.
"It will be appreciated if your office will
render an opinion in this matter as will
serve to authorize the Comptroller when di-
rected to make a transfer to an Operating
Fund for this Agency of State Textbook Funds
for the State textbook administration."
The Legislature has the authority to createoperating
findsas an efficient method of carrying out the purposes
I'orwhich special'funds are created. Attorney General's
Opinions W-554 (1959), W-557 (1959) and W-573 (1959).
Section 3 of Article VII of the Constitution provides
in part as follows:
it shall be the duty of the State
Board Af'E&cation to set aside a sufficient
amount out of the saladta.&-;to
provide free
text books for the use of children attending
the public free schools of this State; . . ."
Article 2867, Vernon's Civil Statutes, provides as fol-
lows :
"In order to carry out the provisions of
this Act the State Board of Education shall
annually at a meeting designated by them each
year, set apart out of the available free
school fund of the Stafe an amount sufficient
to purchase and distribute the necessary school
books for the use of the pupils of this State
for the scholastic year ensuing."
Article 2868, Vernon's Civil Statutes, provides as fol-
lows:
"The State textbook fund of this State
shall consist of the fund set aside by the
State Board of Education from the available
school fund as is provided for in this Act,
together with all funds accruing from the
sale of disused books and all'moneys derived
from the purchase of books from boards of
Honorable J. W. Edgar, page 3 (WW-1112)
school trustees by private individuals, by
schools, or from any other source."
Article 2869, Vernon's Civil Statutes, provides in part
as follows:
. . Funds transferred in the text-
book f;nd shall remain permanently in this
fund until expended, and shall not lapse to
the Siate at the close of the fiscal year.
. . .
The proposed creation of an operating fund in the State
Treasury and transferring to such fund for State textbook
administration purposes of such sums from the State Textbook
Fund as shall be approved and directed for State textbook
administration purposes by the State Board of Education is
carrying out the explicit provisions of Section 3 of Article
VII of the Constitution of Texas and Articles 2867, 2868 and
2869, Vernon's Civil Statutes, to-wit: that the State Text-
book Fund shall be used Iltoprovide free text books for the
use of children attending the public free schools of this
State."
Attorney General's Opinion o-561 (1939) holds that Sec-
tion 3 of Article VII of the Constitution of Texas does not
confer upon the State Board of Education the power to control
the expenditure of the State Textbook Fund, rather the Legis-
lature has the authority and, therefore, the Textbook Fund
is subject to the provisions of the General Appropriation Act;
provide, of course, that it is expended for the purpose of
acquiring textbooks and paying all necessary costs relating
thereto in administering such Fund.
It is our opinion that it is within the discretion of
the Legislature to determine the method of expending the State
Textbook Fund for the purpose of providing free textbooks.
The creation of an operating fund in the State Treasury and
transferring to such fund for State textbook administration
purposes sums from the State Textbook Fund constitutes a
method of carrying out the provisions of Section 3 of Article
VII of the Constitution of Texas. The creation of the oper-
ating fund is therefore a constitutional exercise of legis-
lative power.
You are, therefore, advised that the Comptroller of Public
Accounts is authorized to make the transfers outlined in your
Honorable J. W. Edgar, page 4 (WW-1112)
request to an operating fund, provided .the
. Legislature
-
creates such operating fund by appropriate language In
the General Appropriation Act.
SUMMARY
The Legislature is authorized to provide
in the General Appropriation Act for the
creation of an operating fund for the
Central Education Agency and direct the
Comptroller of Public Accounts to transfer
to such operating fund for State textbook
administration purposes such sums from the
State Textbook Fund as shall be approved
and directed for State textbook adminis-
tration purposes by the State Board of Edu-
cation.
Yours very truly,
WILL WILSON
Attorney General of Texas
John Reeves
JR:ms Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Ben M. Harrison
Sam Lane
Ralph R. Rash
I. Raymond Williams, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.