Untitled Texas Attorney General Opinion

. --; OFFICE OF THE ATTORNEY GENERAL OF, TEXAS AUSTIN Honorable Geo. H. Sheppard Cmptroller of Public Accounts Austin 11, Texas Dear Sir: Opinion No: 6105 Re: Authority of the State Board of Education to make supplenental appor- tionment of Available School Fund on hand, and which will accrue to said fund as of August 31, 1944. Your recent co.mmnication to this departinentreads as follows: "After paying the $25.00 per capita appbW tionment a: fixed by the State Board of Education in its regular meeting July 1943, there will re- main a balance in the Available School Fund as of August 31, 1944, of.approximately $6,000,000: The State Board of Education at its regular meeting -Q J,uly1944 in considering the final distribution of this $6,000,000 in the Available School Fund adopted the following resolut:on: :: qtWr. Stevenson moved that,.!subject to a -ruliq by the Attorney General that our.action is legal, we, the State Board of Education, hereby supplement the per capita apportionment hereto- fore fixed for the school year 1943-1944, to the extent of $4.00 per capita, to be paid out of the funds now in and which Tfiill accrue to the Available School Fund as of August 31, 1944.' X2'. Custard seconded the zotion, which carried ;iith tha follow- ing vote: (All "ayes11except Senator Oneal who was present and not votin&' Hon. Geo. H. Sheppard, p. 2 "This resolution will in effact snakea con- plats distri‘ auti,ohof the Available School Fund for the school year 1343-1944. "The folloi~:i.nS, qu~osti.on imzedi:jtelyarises under the above quoted resolution: "Doss the State Doard of ~Zducationat this tize have tha per capita apportionment is the maximum amount per pupil that can be allottedthe schools of Texas during any fiscal year, would give @eater weight to the Statutes than to tha Constitution. Such construction would be in direct conflict with the.Constitution. It provides that "the available school fund shall be applied annually to the support of the public free schools." S- . 5, Art. 7. This clearly means, from the definitions h&&above quoted, that said fund must be appropriated or allotted annually. The Legistature has no constitutional right to wit,hholdany sub- stantial part.thereof during any one fiscal year. Neither has the Legislature attempted to do SO. See Article 2823, R. S. 1925, hereinabove referred to and quoted in part. This Article Hon. Geo. H. ShaI:pard,p. 6 which has nev,arbeen repealed, clearly follov~s the Constitution, and cannot be ignored. . If the Legislature has attenipted,by any of th.apro- visions of Articles 2665 and 7043, az a:aended,to limit the amount of the available school fund to be applied annually to tho suplzortof the public free schools, then such limitation is clearly unconstitutional and void. On the other hand, it is entirely logical to construe, and we do construe, the per- tinent provisions of said amended articles as intending to provide a yardstick or standard to be used in the fixing of the State ad valorea school tax rate. Such construction does not conflict with the Constitution. It is a wall estabJ.ishedrule of construction "that if an act is fairly capabla of two constructions, under one of which it VJOUld be constitutional and under the other of which it would be invalid, the former must prevail." T. J.~Vol. 39, pp. 206-207. Also, it is elementary that a statute will be con- strued in such manner as to make it effective, if it is fairly susceptible of such interpretation. T. J. Vol. 39, p. 205. It is clear, therefore, that the Legislature can limit the State school ad valorem tax rate by statutory law. This it has done. It cannot, ho-tiqever, limit the per capita- anuortionment to anv amount less than th?:twhich will result f&n the annual ap?iication and equal distribution of -all of the Available School Fund..' The following depastmental appropriation appears on pp. 922 and 923, Acts of 1953, 48th Leg,islature: "For the purpose provided by law, there are appropriated for the bienniun ending August 31, 1945, to the State Board of Education all income to, and balance in, the Available School Fund and the State Textbook Fund, except as otherwise appropriated by this Lepislature, to be expended and distributed ig accordance vii@ the laws of Hon. Gee. Hi Sheppard, p; 9 . this Sta,te,provided that textbooks may be pur- chased and rebound only from fuhds arising from the State ad valorem school tax." (Emphasis ours.) The Constitution is the supreme law of ourstate; regarding the subject matter of this opinion. Therefore, the State Board of Education ,must follow its provisions, as well as all statutory provisions not in conflict therewith; in expending and distributing the Available School Fund and the St.ateTextbook~Fund, which is a part thereof. See es- pecially Article 2823, R. S; 1925, hereinabove referred to. For the reasons stat,-:d, the.question submitted in your communication is answered in the affirmative. Vsi-ytruly yo&s ATTORNZY GENERAL OF TEXAS BY /s/ L.,Hc Flewellen Assistant LRF:jcp:bbh APPROVED'JUL. 27, 1944 /s/ Grover Sellers ATTORREY G,XXRAL OF TEXAS APPROVED OPINION COMMITTEE BY - G. V?.B., Chairmen