Untitled Texas Attorney General Opinion

August 28, 1951

Hon. Morris Rolston Opinion NO. v-1261
District Attorney
7th Judicial District Re: Authonity of a county
Mt. Pleasant, Texas school board to use
Stat0 transportation
aid ‘funds for other
school purposes and
Dear Sir: related questions.

We refer to your request concerning the author-
ity of a county school board to use State transportation
aid funds for other school purposes and related penal law
questions. You ask:

Is it a violation of any penal law
of Teks either while the.rural aid bill
,(H. B. 245, Acts 50th Leg., 1947, ch. 228,
p. 401) was in effect or since the effective
date of the Foundation School Program (S.B.
1.16,Acts 51st Leg., R. S. 1949, ch. 334, po
625, codified as Arts.. 2922-11 through 2922-
22, V. C. S.), for a county school board to
us* its State transportation aid funds for
school purposes other than transportatton
purposes’for which they were allocated by
the State?

would a county superintendent
since2the effective dates of House Bill 295
and Senate Bill 116, supra, who executps as
secretary of the county school board a?d ap-
proves a school voucher as such superiptend-
ent, which was signed by the president of the
county board, which transfers money out of
the county’s s,chool transportation fun@ to
the administration fund of a common so@001
district of his county, be guilty of aby
penal offense?

House Bill 295, Acts 50th Leg., sppra, was the
;!at;9;aualization aid. law for the biennium ending August
c) Article V of that law authorized transporta-
ti& aid in certain amounts and on certain Conditions.
Hon, Mor19s Rolston, page 2 (V- 1261 )

Section 2 of Article XIII allocated $~,~~C,OOO.OO as
State transportation aid for each year of the biennium.
The county was regarded as the unit and the State war-
rant was made payable to the County Board Transporta-
tion Fund. The County School Board was required by that
law to distribute the funds equitably to districts op-
erating such transportation system.

Section 3 of Article IX provided:

“Any school which has received any pay-
ments of State Funds in excess of the amount
to which it was legally entitled shall be in-
eligible for any type of aid under the provi-
sions of this Act unless and until the amount
of excess payments has been refunded to the
State Treasury.”

Article XV provided:

“Hny district violating any of the pro-
visions of this Act shall forfeit all rights
to such aid and shall be disqualified to re-
ceive any aid of any nature under any Arti-
cle of this Act for the current year. Should
any school district, which would otherwise be
eligible to receive aid, fail to use the Funds
for the exact purpose for which they were al-
located in the approved budget, such school
district becomes ineligible for further aid
until such offense is corrected. The amount
of money granted for each type of aid except
tuition shall be set up as a separate account
and shall be made only for the specified pur-
poses for which such money was granted. It
shall be unlawful for any county school su-
perintendent or the superintendent of any com-
mon or independent school district, school
teacher, county trustee, and/or district trus-
tee, or any other person to yse or promise to
use, pay or promise to pay, any of the Funds
herein appropriated for the purpose of paying
the salary and/or expense of any person or
persons to maintain a lobby for any purposeew
This law made clear that State aid allocated
for transportation legally could be used only for the
C Han, Morris Ralston, page 3, (V-1261)

exact purpose for which it was appropriated. Any school
district which failed to use such funds for such purpose'
was rendered ineligible for further aid (tuition, salary,
or transportation) under that act until the offense was
corrscted. Uncler this law the school district was made
to suffer the penalty of ineligibility for the wrongs
committed by the local school officials in misapplying
such State funds. Thus, the transfer of transportation
funds by the county board to some other school fund un-
der House Bill 295 did not subject the officers partici-
pating in the transfer to criminal liability.

House Bill 295, su ra was supersedea by the
comprehensive school legis T-5-'
at on of 1949, the Gilmer-
Aiken laws, Senate Bills 115, 116, and 117, Acts 51st
Leg. s R. S. 1949, chs. 299, 334, 335, PP~ 537, 625, 647.
Under Senate Bill 11.6, codified in Vernon's Civil Stat-
utes as Articles 2922-11 to 2922-22, a minimum Founda-
tion School Program is established and made available
to all school districts in Texas.

Part of the costs which enter into the deter-
/--
mination of the sum necessary to operate a Foundation
Program in a school district is for transportation of
its scholastics, Prior to an amendment effective May
17, 1951 ( S. B, 90, Acts 52na Leg., 1951, Oh. 198, p0
325), Section 2 of Article 2922-15, V. C. S. (S. B. 11.6,
Art. V, Sec. 2), provided with respect thereto:

"The County Superintendents .&a CouIity
School Boards of the several counties . . a
are hereby authorized to annually set up the
most econpmical system of transportation pos-
sible for the purpose of transporting pupils
0 0 0 The countyshall be regarded as the
unit and state warrants for transportation
shall be made payable to a County School Tran-
sportation Fund in each county for the total
transportation earned within the county to the
extent allowed under the provisions of this
Act anQ which shall not exceed the total ac-
tual approved cost thereof,

*The total annual transportation cost
allotment for each district shall be the les-
ser of the following:

pa, 0 . D fiuthorizes allotments of
$31.50 per pupil for nine months' transporta-
tion of certain public school pupils in most
Hon, Morris Rolston, page 4, (V-1261)

counties, graduating to $6 .OO per pupil in
designated sparse counties 3

"b. The actual 'approved cost of trans-
portation operation in the district, such
cost to include bus payment reimbursements,
bus driver salaries, and gasoline, oil and
repairs."

In authorizing transportation allotments based
on the.lesser of these two amounts, it is apparent that
the Legislature intended that these allotments under Sen-
ate Bill 116 should be usea only for transportation pur-
poses. It was contemplated that a county school trans-
portation funa should not receive an allotment in excess
of the amount necessary for defraying the actual expenses
of transportation. This intent is made more certain by
the following provision of Article 2922-21 (Art. XI of
s. B. 116):

Should any change or error in
@he P?&s 'forms reports or budgets re-
sult ia any'school'district receiving from
the Foundation School Fund more or less than
it would have been entitled to receive had
said records been correct, the State Commis-.
sioner of Education shall correct such error,
and so far as practicable shall adjust the
payment in such a manner that the amount to
which such district was oorrectly eligible
shall be paid."

In Section 2, subaivision (f), of Article 2922-
15 as amended by Senate Bill 90, supra, it is specifically
provided, as follows:

"0 0 0 All funds paid to the several
transportation units for the operation of
transportation systems of the State shall be
expended for no other purpose. o . oW

Thus, the intent of Senate Bill 116 prior to this amend-
ment is made clear by the incorporation therein of this
specific legislative expression.

But the penalty provisions in Senate Bill 116
are dissimilar to those of the preceding State equaliza-
tion law, House Bill 295, suPraO They do not render a
C Hon. Morris Rolston, page 5, (v-1261)

district ineligible for any or all State aid where a lo-
cal school official, county or district, violates the
purposes of Senate Bill 116, such as using allocated
State aid for school purposes other than those for which
they were appropriated. Its penalty provisions are ai-
rected at the parties perpetrating the wrong, rather than
to the beneficiary local school systems. The policy of
that law seems to be not to punish the school districts
for the wrongs of its agents.

These penalty provisions, Article XI of Senate
Bill 116, are codified as Article 2922-21, V. C. S.,
which provides in part as follows:

"Section 1. Any person who shall con-
fiscate, misappropriate or convert moneys
appropriated to the Foundation School Fund
to carry out the purposes of this Act after
such moneys are received by the school dis-
trict or County Board of School Trustees in
accordance with the terms hereof. shall be
>-
guilty of a felony and upon conviction be
punished by confinement in the State Peni-
tentiary for any term of years not less than
one (1) nor more than five (5). Any person
who shall knowingly make any false statement,
or shall falsify or permit to be falsified,
any record, form, report or budget required
under this Act, or the rules of the State of-
ficials charged with the enforcement of this
Act, in any attempt to defraud the State or
its school system as a result 2f such Act,
shall be guilty of a felony, and upon con-
viction shall be punished by confinement in
the State,Penitentiary for any term of years
not less than one (1) nor more than five (5).
0 . .

"Sec. 2. Any person, including any coun-
ty superintendent or ex-officio county super;
intendent, school bus driver, school trustee,
of any district superintendent, principal or
other administrative personnel, or teacher of
a school district, or its treasurer or proper
disbursing officer, who violates any of the
provisions of this Act other than those to
Hon. Morris Rolston, page 6 (V-1261

which
_ . Section 1 of Article
._ _XI of this Act
applies, shall be guilty of a misdemeanor
and shall be fined not less than One Hun-
area ($100.00) Dollars nor more than One
Thousand ($l,OOO.OO) Dollars. . 0 0

nProvidea further, that if any person
shall knowingly submit incorrect information
to the Central Education Agency in any sworn
report required by this Act or by the rules
of the Agency or the State Commissioner of
Education for the honest administration of
this Act, such offenses shall constitute
false swearing and shall be punished aa
re~scribed by law for that offense."
'IEmphasis added.)
Webster's New International Dictionary (2nd Ed.)
1938) defines mmisappropri8te'V as follows:

"To appropriate wrongly or misapply
in use, exp. wrongfully and for oneself."

That same authority defines "convert" to mean *to appro-
priate dishonestly or illegally,n and defines Vconver-
sion" as *An appropriatibn of,.and dealing with, the
property of another as if it were one's own, without
right; . . ."

The term~nmisapp~opriaten as used in Section 1
of Article 2922-21,.we think, means to convert or put to
one's own use any of the F unaation School Funds allocated
and ~received by,school dis t ricts an& county school boards
for the purposes set out ih Senate Bill 116. Therefore,
any person who uses any of such funds for his own purposes
commits a felony, and Section 1, supra, would have appli-
cation.

But it any such transportation funds are used
for a school purpose other than one for which they were
appropriated apa allocated, the person or persons so vi-
olating an expressed provigion of Senate Bill 116 in that
respect would be subject td prosecution under the provis-
ions of Section 2, Article 2922-21, and upon conviction
for the misdemeanor would be subject to a fine of not less
than $100.00 nqr more than $l,OOO.OO
 Han, Morris Rolston, page 7 (v-1261)

As previously pointed out, prior to the amend-
ment by Senate Bill 90, su ra (effective May 17, 1951),
Senate Bill 116, supra, +-*ha no provision which expressly
prohibited the use of transportation funds for purposes
other than operation of transportation systems. But by
Senate Bill 90, subdivision (f) of Section 2, Article
2922-15, was amended to provide specifically that ". D 0
All funds paid to the several transportation units for
the operation of transportation systems of the State
shall be expended for no other purposer"

The policy of our system of criminal law is
stated in Article 7 of the Penal Code as follows:
I,e . e and no person shall be punished
for an offense which is not made penal by the
plain import of the words of a law."

In Ratcliff v. State,, 106 Tex. Grim. 37, 289
S. W, 1072, l-6)' the court quotes statements from
Black, Interpretation oi Laws (18961, which appear to be
applicable here:

"It is not enough that the case may be
within the apparent reason and policy of the
legislation upon the subject, if the Legis-
lature has omitted to include it within the
terms of its enactments, 'Nhat the Legisla-
ture has, from inadvertence or otherwise,
omitted to include within the express provi-
sions of a penal law, reasonably construed,
the courts cannot supply."

"To create offenses by mere construction
is not only to entrap the unwary, but to en-
danger the rights of the citizen."

And instate v. Kingsbury 37 Tex. 159 (1872)
the Supreme Court, in affirming a jidgment sustaining eg-
ceptions to an indictment for unlawfully approving an ac-
count against the county, stated:
ItBy Article 1605, Paschal's Digest, it
is declared ethat no person shall be punish-
ed for any act or omission as a penal offense,
unless the same is expressly defined, and the
penalties affixed by the written law of the
C State,' There is no written law of this State
expressly defining the act of the County Court
in unlawfully approving an account against 'the
Hon. Morris Rolston, page 8 (V-1261)

county, as a penal offense e . .”

Article 1605 of Paschal’s Digest has been brought for-
ward into the present Penal Code as Article 3, by which
it is deK@red that “no person shall be punished for
any act of omission,,unless the same is made a penal
offense, and a penalty is affixed thereto by the written
law of this State.”

While House Bill 295, supra, was in effect,
prosecutions for false swearing under Article 310, V.P,
C were available then as now. But for other viola-
t&is under House Bill 295 that bill prescribed the
drastic penalty of render&g the entire school district
ineligible for State aid. Under Senate Bill 116, supra,
now in effect, any person who violates an express pro-
vision of that law is, by the express provisions of that
law, subject to prosecution,

Accordingly, if a member or members of the
county school board or a county school superintendent
by his or their several acts diverts moneys allocated
to the county school transportation fund from the State
Foundation School Fund to purposes other than transpor-
tation, subsequent to the effective date of Senate Bill
90, su ra he or they are subject to prosecution under
Sect T% on of Article 2922-21, V, C. S. -for violation of
an express provision of Senate Bill lib, supra. But
since there ,was no express provision in Senate Bill 116
prior to the. amendment of Senate Bill 90 specifically
prohibiting,the use of allocated transportation funds
for other school purposes, then there could be no crim-
inal liability for such transfers, for the reason that
the law as then written did not expressly prohibit or
limit the use of such funds for transportation purposes.
Since Senate Bill 116, prior to amendment by Senate Bill
90,did not contain the express prohibition inserted by
that bill, there could be no violation of a transporta-
tion fund provision ofthelaw as it then existed such as
would constitute a crime under Section 2 of Article 2922-
21.

With respect to the second question, it is for
the prosecutor to determine, of course, whether the money
transferred from the county transportation fund to the
adminfstratige fund of a common school district was law-
fully transferred to cover transportation coats of that
district or whether it was transferred for unauthorized
and unlawful purposes.
Hon. Morris Rolston, page 9 (V-1261)

SUMMARY

Under House Bill 295, Acts 50th Leg.,
1947, ch* 228, p, 401, or under Section 2,
Article V, Senate Bill 116, Acts 51st Leg.,
R. S. 1949, ch. 334, p. 625, prior to amend-
ment in 1951, transfer of transporation
funds by a county school board to some other
school fund for purposes other than trans-
portation did not subject the officers par-
ticipating in the transfer to criminal li-
ability.

Under Section 2 of Article V, Senate
Bill 116 su ra (Art. 2922-15, Sec. 2, subd,
(f) v. c-d? as amended by Senate Bill 90,
Act; 52nd Leg.: R. S. 1951, ch. 198, p. 325
(effective May 17, 1951), transfer of traas-
portation funds by a county school board to
some other~~school fund for purposes other
than transporation would subject the offi-
cers participating in the transfer to crimi-
nal liability. Art. 2922-21, Sec. 2, V. e.
SO

APPROVED: Yours very truly,

J. C. DavIB, Jr,
CountvAffairs Division PRICE DANIEL
Attorney General
Everett Hutchinson
Executive Assistant
B;+ii+2hykJ
Price Daniel
Attorney General Chester E. Ollison
Assistant

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