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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which has nev,arbeen repealed, clearly follov~s the Constitution,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