Ausx-m, TIEEAB
-GE LDANIEL
---
i&ria -1.1, 1949
,, .., .
Hon. H. A. Hull, Chairman ’ Option No. v- 784
Committee of the Whole
House of Repres~entatives Re: Constitutionality of S. B. 19,
51st Legislature 5lst Legislature, supplement-
Austin, Texas ing State Aid appropriation
for teachers’ salaries.
Dear Sir:
Yo~ur request for anyo&ion’of ‘the Attorney General in-
quires as to the’constitutionality of Senate ‘Bill 19.’ Slst Legisiature;
now pending in the House Committee of the Whole, and whether anyof
the money appropriated thereunder may be used kthe payment of in-
t.$rest on moniy~ bor:owed by any individual or’Subdivision ,of the gov-
ernment to meet the obligations proposed to be covered~by~ this supple-
mental appropriation bill, .:
Sections 1. 2, and 3 of tbe~pro$o&d bilI are:
“Section 1. There is hereby . . . appropriated.
the sum of Three Million ($3~,000.000.08) Dollars .as.
a supplemental appropriation to the funds appropriated
for salary aid in House Bill No. 295 of the Acts of the
Regular Session of the 50th Legislature.
“Sec. 2.’ The ‘funds herein aspropriated are to
be used to supplement payments for salary aid for the
first year of the current biennium 1947-1948 Andyfor ’
any other legal purpose. It is specifically provided
that the expenditure of this supplemental appropriation
shall be made under the same~t.&ms and conditions and
in the same manner as~the payment of the regular ap-
‘propriation for salary aid provided in House Bill No.
295, aforementioned, were made, and is to be propor-
tioned by the, schools which are eligible to receive such
.
aid under the provisions of House Bill No. 295,,whlch
schools have been approved for certain amounts, here-
Hon. H. A. Hull, Page 2 (V- 784)
tofore, so that each school is to receive the same
proportionate share of this supplemental appropria-
tion, and the amounts prorated to each school out
of this supplemental approprfation together with the
amounts heretofore appropriated for salary aid in
House Bill NO. 295 is hereby designated to be in full
and complete payment of any claim made by any
school for salary aid under House Bill No. ~2.95 for
the first yea&f k&e &-rent biennial i94;%1948. ‘, “’
:’
“Sec.:3. All applications for salary a&in I1 ’ ~. ~~’
order to be eligible to participate in the provis~ions
of this Act, shall be eligible for aid under the pro&- ‘. ” ‘-
siotis of House Bill No. 295 of the Acts of the Regu-
lar Session of the 50th Legislature.”
The 58th Legislature ,in Article,%III of H. B. 295, the
State aid,school law fork the biennium 1947-49; made ‘the following ap-
...
propriation:
“Section 1. ‘Appropriation. Par the purpose
of promoting the. equalization ‘of educational oppdi-
.
tunities afforded by the St& of Texas’ ‘to all enu-
merated scholastics within the State‘.as hereinabove
set out. there islhereby,appropriated out oft the Gen-
erdl Revenue Fund of the St&e k Texas,~ not other-
wise appropriated, .the sum .of Eighteen hlilliop Dol-
lars ($18.000,008) for the fiscal ‘year ending August
31, 1948. and Eighteen Million Dollars ($18,800,008)~
fork the fiscal year ~en.ding August 31. 1949, or so much
thereof as may be necer iary for the bienniums ending:
August 31. 1949; to be allocated and expended under
the provisions of this Act by the State Department of
Eclu+lon and under the supervision, of the Legisla-
tive Accountant. _; .. :, __;~:
‘Sec. 2. Allocation.. It,.is he&by.specifically
provided that out of t&money appTopriat&d ~for.e&h
school year of the biennium! the sum,‘of Ten lvlilliou,
Seven Hundred and Seventy Th+is&D~llars, ($18.778,
000) is hereby s.et aside for salaiy aid: . .,.”
It has developed that the 50~~‘~L~gis~atur~‘underesti-
mared the total valid ,claims of elig+ble school districts for teacher
.’
Hon. H. A. Hull. Page 3 (V- 784 ) ; ~.~~ - ~~ ‘~ :, 2 ,:. ’ ‘. ._
salary aid under H. B.: 295.. presumably to the;extent .~f.~.Sa.000~,00q.O9..
for the 194,7-48, year of the biennjum ~s+r+d to .the. extent .of $8.088.080.80
for the 1948-49 year of the biennium, ‘kpxding: to :the estimates. fixed
in proposed~ 9.~ B. J9,.
..,, ., . ..
Our s,tuay. ofi& law relatiirg’:to this proposed &isla-
&n’ has ret&red a thorough’investi&ioq of the background,. facts,
and~purpqses’. Gf the, appropriation. !C$is~ $a .true:especially ~with ref-
&ei&tO the prop,osed~$3,08b,OOO.O8’to pay in full the.t&al salary,.,~
aid, appIied for by eligible districts~ acting under, H., Bt 395~ for Ethel; .
1947-48 fiscal yeaqthe first year oft the .pre+ent ,bien$um,, : i, .,::
.., ,~
. Wee finds that the 58th ~Legisiatqrey in Ax$& IH of k k.
2.95 fried the salary ‘schedule’ and Jength of, &m’.t&che,rs tb&e$n~shall
serve:and be paid, Eighteen million dollars <“or so much’ thereof as ~,:
may be~necessary” was appropriated for each year of the biennium.
When teacher contracts were entered prior to September 1.1947; ther~e
,was no.apparent reason to doubt the sufficiency of the appropriation;
: The Act provided that, ‘Districts~ receiving aid under the .provisfons
of this Act shall issue warrants for not to exce,ed the amount approved
in the budget . . ;~” The’budgets of .the varjous:,scho@ districts, which
were prepared in August 1947. were approved by the State .+gency. On
the basis of such approved budgets. various contracts with teachers
were entered into.
However, as early as, O&be4 .,& 1947,~ .it ~was _:&ident.
and so announced to County S.upeti&ndents and Superintendents .of.
E&alization Schools .by.letter from~ ~the,Director of F,&lination, State
.Department, of. Education that”salary aid ,w$ll’be approximate>y ,I656
shor~t ,th+ _year.’ That .Jetter sa+d further: .~ : : 1, ~.: :, .-~,
“The&&B be no cut of ite’ms in the b~udget,,, ;’ 1’
but the.‘reduc&in:.wi$.
,. ~~ come in the mG. .salary.grant. .,, ’
Jo ., .,on :a! percentag.e. basis.~ Teachers’ salarie,s:m@.& .I: ;: /s ,’
conwue’to be paid on the schedule; If the schoo$ . . .. . f,
does not have enough money in the allowance per
. .:. tea,& ~and/.or. local tax above the 50$ rate to pay
,, ,ule tot+ salaries for.& full term,,‘it will be net?,. j :.
ossary to cut .the term short ,N avotd a defi.c% in,
the~&uda .of the.$ocal school,..B.is ‘not advisable to .,.’ ~.’( ” ~1.
run into a def$c$f,* .,.
By Ma&h 26? 1948, it wasevide’nt and so announced by
then‘l%ekt& ‘bf~~ipi&z+io~ t&t final salary aid payments for-194’7-48
1411,Hon. H. A. ‘HuIl, Page 4 (V- 784 )
would be 20% short instead of 16%. In the meantime a specialsession
was requested by the Texas State Teachers Association and certain ..
school and State officials to make up the deficit, Thereafter, the Go+
ernor worked out a plan by which the banks of Texas would advance ~.
necessary funds to the teachers or the districts to keep the schools
open for the full term> and avoid a special session of the Legislature.
i
.Gn April 1. 1948, -the Joint.Legislative Committee, after
conference with the .Governor and State Superintendent of ‘Public In-
struction, adopted a resobttion’requesting the State Superintendent to
make payment of 50% of State-aid grants ‘tothe school districts “at
the earliest time possible, the first week in September, for the next
fiscal year beginning September 1, 1948.” The:purpose of this advance
payment, for the 194~8-49 fiscal years was stated in a letter of August 2,
1948. from the Directorof ,Equalisation.to County Superintendents as
follows: .’ ‘.~;
-,
‘The advance ,p+yment is being made early
in 1948149 in order to make up ,for the deficit on
1947-48 until the Legislature meets’ and makes ad-
dition&funds ~availabl,e.‘” :.
It ~appears that various school districts and banks used
various methods to provides funds for teachers’ salaries’ during the
deficit period.. A few districts are reported to have made no addi-
tional payments, merely~proinising to do so if and when the money is
made availabie by the ‘Lk@sl$ure. Other districts issued deficiency
warrants iinciek Sictipn 2 Of’Article IX of H. B. 295. In some cases
the banks’ m’ade ~persbnal~loans to’the teachers to be settIed if and
when their additional warrants are.paid. However, most districts
are said to have borrowed the necessary funds direct from the banks
and already repaid them out of the advance of rural aid funds for 1948-
49. In the latter instances;‘there his now’~no debt tomthe bank3 for 1947-
48 salary advances, the sesame.already having been paid from 1948-49
funds.
:._ .~ .,
~For the sake of~the record, it should be not&d that the
Attorney General was not consulted as to the validity and~constitu-
tionality of these ‘transactions. oneany phase ‘of tbls question., The plans
were negotiated and followed without our knowledge or”advlc&
we are calle.d upon~now for the.first time to pass upon
the legality of, this borrowing by the -school districts because of your‘
Hon. H. A. Hull, Page 5 (V- 784) y ~~ ’
question’as’ to whether ,the’Legislature’can authorize payment of in-
terest on money borrowed b,y any individual or district to meet any
portionof the !$3,008,000.08 deficiency; .This we answer in the nega-
.I
tive,
-School ~Districts are not authorized, to ,borrow money
in excess of their anticipated current year revenues. Clearly H. B.
295, Acts 1947; 1contains .no~pr,ovision ‘authorizing eligible districts to
borrow money and pledge anticipated revenues therefrom in ~payment
of loans.
,..:
Article 2827, ,V. C.. S.; authorizes a’school district to
bor,row ‘money on a short term loan to pay, salaries and interest
,thereon, but it has ~dhfinite limitations which control:~our present
question. It reads ~in’nart as followsi
“The public free school funds shalI not be
exp.e.nded except for tbe~foIlowing purposes:
7’
“1. The State and county avail.abIe funds
shall be used exclusively for the payment of ( ~.
teachers’ and~superintendents”salaries, fees
for :taking the scholastic census;’ and interest tin;
money borrowed’on short time topay-salaries ~~.. ,‘:
of teachers and superintendent.s,~ wbenthese ~sal-.
aries become due before the”schoo1. funds for then.
current year become available; provided that no :
loans for the purpose’of’payment of teachers :I
shall be paid out of funds other than those’for the.
then current.year.”
.
.~.
‘ ~..
‘A&m&that State-aid funds are’ inciuded,in-the above
authorized use, they are specifically~litnited to Yhose for .the then
current year”. No district could have anticipated full State-.aid salary
payments Zbr 1947-48 after’ being notified of at least a 16% shortage by
‘the Director of’Equalization on October,l5, 1947. ‘as heretofore sit,Out.
At such time when those sources bf school revenue which could be.
reasonably anticipated by the district proved to be inaufficient..to meet
the expenses of that current school year, the district trustees were
without authority t&borrow money and pay interest thereon for the
Payment of its teachers’ salaries.
This has been ,&e consistent holding, of,our Supreme
Court under statutes other. &&I. ,B; 2~95. Thus in Collier v. Peacock,
. .
42
Hon. H. A. Hull, Page 6 (V- 784 )
93 Tex. 255, 54 S.W, 1025 (1900). the Court held:
Y. . . the trustees were not authorized to
contract any debt which would cause a deficiency
in the school fund of the district; in other words,
they’ could not contract debts in employment of
teachers to an amount greater than the school
fund apportioned to that district for that scholas-
tic year. This limitation upon the power of the
trustees in making the contract with the teachers
necessarily limits the payment of the debts . . .
and any debt contracted greater 2 . . would be a
violation of the law, and constitute no claim
against the district. . . . The trustees were au-
thorized to expend the sum set apart to the dis-
trict, but not empowered to contract a debt
against-then funds of future years . . . .”
And in Warren v. Sanger I.S.D., 116 Tex. 183, 288 S.W.
159 (1926), the Court wrote:,
~’ )
>
“The ‘act of defendant trustees, however
commendable. the spirit in which it was done,
creating the debt here sought to be paid, was.
void. It was contrary to the express provisions
of law.:;:.‘art. 2749 forbidding trustees to create
a deficiency debt .against the district in the em-
ployment of teachers. The debt as against. the
district being void, there was nothing for the (~
school authorities t&pass on. . . They.couId.in
no event,, have decided in favor of the application
of the. 1925 .taxes to the payment of the deficiency
cre,at+d in a ~previous year.” ~. .’
‘.
. .
~’The most recent: case fin point is that of C~ity State Bank
of Wellington v.. Wellington I.S;D... 142 .Tex.~ 344, ,178 S.W.2d 114.(1944)
where Justice.Brewster said for the Court;
”
. to permit,the,‘bauk
. . to recover.from
the district’s delinquent maintenance taxes on ~: .‘/ ‘:
checks issued against its available school fund,
. . . would be to circumvent the express provi-
sionS of Art. 2749 . . ~. as wel1’a.s. the plainly im-
plied prohibitions of Art. 2827, .L. . unequivocally ‘~’” ‘.
-’ -..
. .
Hon. H. A. Hull, Page 7 (V- 784 )
( / .‘~,. .~.
.
provides that ‘trustees, in making contracts with
teachers, shall not create a deficiency debt against
the district.* . .~ . That is, no valid debt can be
. .. ‘created’against the ‘available fund; to .pay teachers .~~;
’ ; : ‘. .~,d&+s ,a&, c&&nic:m’bs p&d out of avail&le.cw&; ’ :,
&o&g iiif~r~that~~ear~~;.,“,, ,:I ’ :..’ I”’ ‘s.y;~.~-:.,_, - :
,<~‘. “: _,_: :’ ‘.~.: .~. ‘.. .~
2: ,oUy. ~ox&.itu&~~~ &&ide.~~ i&h*, ~The~,Le&lati& shall
haveno power :. . T to ; ;:I pay. nor authqrine ,the paymentof,~,any claim
created against anycounty or munipipalityof the,.State. under any, .agree-
ment or contract, made without authority of law.’ Art; III, Sec. 53. A
scbool~district is-a !‘munlcipallty” =&binthe ,meahing of that Section.
:,. Har1ingen~~:I.S.D. v. ,C,.H, Page 8. Bro.,~,.48..S.SV.2dY983.~, (C,omm. App. ~1932).
,.,
.Therefo.re. the Legislature is without authority .to appro-
pii+ moneyto ,pay interest on,such unauthorized debts’ or to payd,the
debts. themselvest .
. &&, &gate+er &i.he ~said’.her&&f&r .a&ut pr&xib.ng
‘;+&, $ip&jrhg a $‘i&&t. apjii+a&+ f&..p+,.&nt~+f 1947-48~ teacher
;&$i’es,~‘&& ;&me &dd”no+ aiiply..to.& appr:opriation ‘tobajt inter:fst od
.<
ftinds.borro$ed for ~such purposk,‘by ‘then“i5trict~or;~y~in~~dual. ‘,
i;. . ..
Section:44 of .Article III, ‘Constitution~of :Texas,.prouides
gp&: 1; .,:
.“. :
: : ‘. -_ ;
“The Legislature &II not ; . .! gfa+, -by .: ~. .’ .:;I .,~,+-
appropriation or otherwise, any money out.of the
. ,)i Treasury of the State to .eny.individual, on a claim.
v~: .real.,or pretended, .when the:same, shall .not shave..
. . been~.provided for.by pre,existing~ 1a.w;~. ~W+* ;’ ~~ I~
. -, .’ ~.~ :_ T.;
Neither H. B. 295,~ Actsl947,, nor any others pr,eaxis+g
law, authorizes borrowing of money and.payment of interest thereon
by a school district. or. the St&e, unclqr: the. circumstances noiv before US.
‘Therefore. in the absence., of .the:required preexisting,law. an appro-
priation to pay interest or the use of any part of: the ~money’appropriated
byeS. B. 19 for payment of interest would be’unconstitutional.
. $ .B. ,.i9 doe; no; C‘pecin&&$ ‘i;lkntio& inte;est, but You
have asked the question under- the impre.ssion fhat payment.of.:inter-
est was contemplated by the following underscored portion of the
phrase in Sect& 2, “6 be u&d‘t& supplement payments for salary
aid . . . and
” for’
..&, &&ie 21 &‘-yoiee” .; ~‘
mese mder&$e~a wor&
,.
replace the Gords “and for no other pimp&e* .-in other ‘similar bills.
It is our opinion ‘that “the: phrase ‘“a&i for ‘any other’ le-al Purpose”
will not itself support the e%pendlture ‘of ‘any,money for’any’purpose,
because it is too~bro,ad,~.general,and uncertain. Section 6 of Article
VIII of the Texas Constitution provides, “No money shall be drawn
Hon. H. A. Hull, Page 8 (V- 784 )
from the Treasury but in pursuance of specific appropriations made
by law. ” The phrase above quoted cannot qualify as a specific appro-
priation. National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.td 687
(1940); Dallas %ounty v. l&Combs; 135 Tex. 272, 140 S.W.2d 1109 (1940).
It should be rewritten so as to state clearly and specifically what it
is intended,to cover. ~If it is intended to cover an illegal expenditure
such as interest, the phrase should~be eliminated.
While the Legislature cannot constitutionally appro-
priate money to pay interest on unauthorized debts of school districts,
our next .and most vital question presents an entirely different prob-
lem. The cases heretofore cited dealt with powers of the districts
under the general statutes. The districts clearly had no power, under
the above cases, to borrow any money for the purposes here under
consideration. But now we are considering the Legislature itself and
its power to correct and amend in the same biennium its own estimate
of ‘the amount of money it feels necessary to carry out a program it
prescribed itself and proposed to carry out through the various dis-
tricts. The question now is whether the Legislature may supplement
the appropriation of the first fiscal year of the present biennium for
the purpose of paying direct to school districts the amount of salary
aid they qualified for and owe to their teachers under H. B. 295 for
the 1947-k8 &ho&year.
Here we have no question of preexisting law. H. B.
295 provides that the teachers shall be paid a salary within certain
specified limits. It provides the,length of the school term. And it
authorizes the issuance of warrants to cover such contracts. It pro-
vides in Section ~2 of Article IX that:
“Districts receiving aid . . . .shall issue
warrants for not to exceed the amount ,approved
in the budget . . .*
...‘.
Further, the Texas Constitution, Section 1, Article ~VII, reads:
“A general diffusion of knowledge being es-
sential to the preservation of the liberties and ”
rights of the people, its shall be the duty ,of the ~Leg- -
islature of the State to establish and make suitable
provision for the support and maintenance, of an,
efficient system of public free schools,.”
. .
Hon. H. A Hull, Page 9 (V- 784),:::. .‘.i: :: !j T ~. .: ..:X.:T
.-‘;i’, ,. ~:,, .,,‘.~, ., .:, ,,.
.&d in Se&oh 3 of .+.hd,&me :&r&lei; we read:’ . : ;
,. : i .” : I~ i ., ..~.>,:~
y . ’. ; provided.: ;howev&; that sh&ld the :
limit.of ~taxation herein named. be insufficient the :
deficit may be met by appropriation from general
funds of the, State . , .”
,
~The’use of generel’:fuirds’ for paid to rurkiikhools and
-the broad atithdrity of the Legislature in such matters was ,settled by
the Texas .Supreme~Colvt in~Mumme~v:Marrs,:lZO Tex;-383, 48 S.W.
2d 3l,.whereip.the.Court~said:‘. ‘~ Y. .; . ” ,~ ,.., .,e. .Y:- ,.~
.: .‘..:I
.1 . ,-Since the Legislature .has the- mandatory
~1dutyto &ake’suiGible provision for the support
cand ~m’aintenarke of ;anefficient system ‘ot:publ,ic “1 ; .j’
‘~* ~’ free. sk!hoo&. ‘and has the power to pass rury,~law :i~
;;relative thereto;not prohibited by .the. CoastituY _.: :
tion; it necessarily ,foilows that it has a choice in- .>
: the selection of methods by,. which the ,object .of i ,. : ,_
the organic law may beg effectuated. The Legis-
.‘J:‘:lature alo&is to judge what means- are:nec.essary 5
.
‘and approprrate for a ,purpose which the Constitu- ? -: :, J’;,.
’ .‘., T:,: -tion makes legitimate. The Legislative-determi-,. .. :“‘Y’ ; ;
,’ .‘:.nation-of the.methods. restrictions, and regula-.:: .:i: I :~ :..
:-.: :-i tions -is final, except when so arbitrary.as- to .be ,:+. ; ,..,’I:‘:. ,,
.” violative of~.the~‘Constitutioual~rights of. the citizen.?~ ~.,: :I.
.. . .~ ,,. ,. ,,,.il. ._,;-. ,iz . ..::i..
Under this Constitutional authority. the Texas. Legis-
lame has many times~ supplemented rural aid funds.for previous
years of the same biennium. In those instances, as in the .present ~.
case, the previous Legislature underestimated .the needs.for the.”
biennium. : The previous Legislatures, having appropriat+,a lesser
sum than was needed. left no -duty or legal.obligation on the subse-
quent Legislatures’to ma&e a supplemer& But each subsequent Leg-
islature has evidently assumed that the Constitution and: former ap-
propriation bill was sufficient.preexisting law.:.towarrant the use of
its discretion in mahing the’supplf?mental,appropii~~on.!: ,Seme Of
the past instances are 8s foliowsi. ~::. -~~, :.’ ‘. ._:: ~..: , ‘..:i. .:
‘.: : I
:
.’ > ~.l;,*In1,929 the 4lst.,Leg&ure(H. B. ,l26,
8,Acts 1929. 2nd C, S;, P. 19) supplemented ,the; ku& .z.,~’z :: . :!. ?’
1 I~:. ral Aid Bil$.of 1927 (S; ‘k. .7,-Acts 1927;lst.C.; S.,., : .) .,. ‘. I ,:
P. 105) in the sum of $450.000.00.
Hon. I-I. A. Hull, Page 10 (V- 784)
2. In 1933 the 43rd Legislature (S. B. 242,
Acts 1933, p. 530) enacted a supplemental appro-
priation of $1.620~000.00 to the 1931 Rural Aid Law
(Chapter 272, Acts 1931). It authorized the use of
this money in tabulated amounts for the priorbi-
ennium years of 1931-32 and 1932-33.
3. In 1937 the 45th Legislature (H. B. 600,
p.,585) supplemented the Rural Aid Bill of 1935
! for the first year of that biennium. The Attorney
General of ~Texas, at least by implication, approved
the constitutionality of that bill. (Letters of