OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
iionorable RoYO~ R. &tkins, Presideat
4at.0 BOaT.3Of Eduoatlon
,utstfn, Texas
cation, at A reocnt :
resolution setting .
the .plaiR of the
tuition of pupili%.
nttetding the Athens
hue been furnished with data snd
~hersimfter qusstiou propoudea
never been.snswerad by you
Dep3rtnent took the posi-
t!m province of the State
Botlre of Zlucation only to ask tho question propoun&-
ed; therefore nt the lust meeting above referred to,
ths Stotc Board of Eduontion autho?Azed ne, as Prea- ~’
i&Et Of thC str\tfJ Board Of 'cdUOE&iOn,t0 prOpCWRd ..
. the question heretofore submitCed to-wit:,
“‘Since the contrncdiog &.atri& bed
* ConQlled with all requircmnts for rc-
wiving nid in this case, cauld the’ fail-
US0 Oi' ~hcS0 b.V GfflChl3 to pcSfO?iu 8
d.nisz~crlaL duty, wsausc of .m alloW
475
erroneoue the law, de-
iutbrprettition of
prim the oontraating or the
aietri0ta
legal right which they had IMd8r the pro-
visions of the rural aid lew, wimn the
failure to perform their duty was without
ftiult,knowledge or consent of eith-r of
the contrsoting parties?*
“Let me suggest that yoa oarefully review
the attached correrpondeutie in ordbr that you osu
have before you all of the fabts and aircumstanae8
surrounding this aituat1on.e
We underrtmnd the raots to be that the Kalnut Creak
Comma School District No, 1C of Benderson County oontraotsd with
the Athena Independent Lohool Distr,fot,in whioh contraot It was
speed that all white and colored aoholartioe were tranrferred to
the Aobsns Independent liohool Distriat, exoept those transferred to
another district prior to August 1, 194E.
The oontraoted (sending) dlstriot agreed to pay monthly
to ths reoelving aohool:
(a) All State and oounty available funds ns
received;
(b) All local saintennnoe funds as
oollsoted.
The receiving aahool agreed to furnlah aooredlted
sohool faailitiee for a term of nine (9) month8 to all White and
colored aoholaetloe of the sending district, end to oooperate wfth
the County Board in furnlrhing transportation faoifities to all
it;,‘,‘; llv1ng more than two and one-halt miles rrom the reo8lving
It we8 furtter agreed tbat the receiving school shall
colleo; additional tuition provided in the Rural Alb Law.
The contract ma duly exeacltstl end filed la the QiilCe
of the County Sur&rintendent of libndoraon County on SUly 6, 1948,
but was not approved by the County Superintendent and was not for-
warded to kuetin for approval of the State Superintendent o? Publio
Instruct ion. neither sohool blatriot was notified that thb oontraot
was not approved and the Superintendent OS the Athens sohoolr was of
the opioion that it had been approved until elementary tuition aid k
was refuerfi the following summer.
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It is admitted that the pupils of the Vialnut Creek
Jlstxfct wsre taught, la the Athew Independent School Dir;trlct
rccoxding to the term of the contra&, and the only question:
),, wheth:.r the failure of the ,County Superintendent aud the State
,,,exlnteudent to approve the contract operi+cs to “deprive the
contracting districts of their legal ri&htsnhich they had under
1~ provisions of the Rural Aid Law.-
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The budeet of Walnut Creek Distriat and all other re-
&rem?tltS prerequisite for receioine State Aid were duly filed
vlth the State Superintendent prior .t.o Cotober 1, 1942.
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The County Superintendent &a as a reason for not
;pprovin& the contract that.'sho had a conversation over the tele-
phmo with an assistant in the State Superintendent’s office, in
uhlch conversstioa she was told that ‘It viould bo best to secure
individual transfers and not send in the oontract, and that this
rauld in no way lessen the amount of money that the Athens dj.s-
trlct would receive. This~ ihforsation was given to the County~
Superintendent a few days prior to our Opinion No. O-5413, in
Whichopinion we held that Individual transfers do not come within
the provisions of. Section 2 of Article .8 of the Rural Aid J&v, be-
cause they are not contracted under ,the provisions thereof.
1 8ala Seot&on 2, ‘Article 2’o?T said law in effeot At tho
the the contract was executed- reads as f’ollowsf
*ior the s&o01 years thereaft~er, up’on the
agreement of the Roard of !l!ructees of the dlsttiicts
concerned or on petition signed,bg a majority of the
qualified voters of then district and subject to the
approval.of the oounty superintendent, and the State
Superintendent,. a district which. may be unable to
maintain ~a sutisfactory school may transfer its entire
.soholastic enrollment for one year to an aocredited
sohool of higher rank. 'If' the rticeiving school re-
celves State Aid, the scholastic ccusus rolls both
white and oolorcd shall be combined, the per capita
appoPtionmnt shall be paid direct to the receiving
school, all local taxes of the sending contracting~
district, except those going tothe interest and sink-
ine fund shall be credited to 4he receiving school by
the Tux Collector as oollectctd, and the, teacher-pupil
quota shall beg based on tho coubined census total. ~Xf
the rocoiving school is eat a State Aid school, the
scholastio cenms rolls .both white aad colored shall
bo oombined, the per capita apportiomeut st:all bo paid
direct to the recolv$.ng school, all local taxes of the i
seu$ng contracting district except those going to the
liop..Rayall H?. bo,t+ns, pa&e 4
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lat&est,siid sinkiu~ f&z? eh%ll be Omdittd to the
r6celvir.g school by the Tax Colleotor as mllectca,
; .. . and the, sending oontrocting district will be eligible
for 58 I-,uoh.Selary AId as 1s necessary to supplsaont
: .. . the Ctste Available end Loo51 ::uin$ag$xo9 Funds, cn
.a.i the.-schol5sticsfrm the ecud1r.g %istPict nttendiug
8 school in tho rC;cePvIszgdistrict, to oovez the ep-
)“ pl?OyGdoost 0r instmctioa per scholsotlo in the re-
oeiviag eahool, provided .t!mt such app3+0veacost shall
not eroeed Seven Dollarn ena FiSty Cent6 ($7.50) por
moath for h&h sohool. student5 or Five. Dollsirs ($s.CO) .'
.p6r fionth for elcmntory studcnto."
It Ml1 bs ObSerQod thet ?ectlcn 2 OS Artio1.o 8 of tic;
-.
Rural'Aid Lsc: in effedt 'et the tiae this contract wss executed
pravLde5 Tibet ssne atsl.l. be QlsubJcot to" the opprovol of the
County 3geriutenacnt 5nd the Stetc ?uparintenCent.
.: TheraSore; the question .preBented for our deter&no-. c
tLon Is this: Does the transfer or egreenent in question ke-
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quire the apvrolsl of.the Countr ~~u3erintenden~ am3 the *t&e
FUD9rintchdint before either of the- contrmting distriotx
.Zilj$Eie S0.r sslery eid urkier Dectioc 2 of Art. 8 aforeseia?
:. In our'opilihion, suoh,,approval ,is req.&o+
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-Iti the 6ase'of'HcCorkcl v. Distiict Trustees, ttc.,
(civ. &.I 121 s. 3. (2) 1048, 1052, 5 sinIlar provieion con-
tolned ia e previous &ma3 Aid and ?.quolizoCion Fund~;Ipproprlo-
tion, WRSconsiaerea by..tha Ccurt., The following guototiono
. A-053 soid opinion ore enl&htcoing;:
'?A160) in either c%se (elthor by agroa&ot of
tho ‘tl’UStG~0OS the district9 CoNWIIea or on siguea
petition by n mjo?ity of the quellfied voters), we
think the transScr is to be mae 'subjcot'ti, J&
apmovcll -e OS tho County ~uwrinteaannt -- end YtEto 3wmr-
int.endc9t.r . . The oi&?Lm ue do oxprsno I.0 that th6
wZ5ttcr OS scct.ion .17 (of Chop. ,474,Cen'l. ona
??peo. I,cws of 197, p. 1259).is.not the authorizetion
of controdts, but of transfers to be made, not by the
Courtty Tluperintmasrlt 53 in cssc OS other' transfers .~
.(Vernon’s JimI.Civil ?tetutoa, Art. 26961, but by the
trunteco cf the 2istrict (which.my .zlo umble. to n;aIu-
.ta,in 0 aetisfectory school), b&r t&c~Pcwin&q~
-and conditl~nns Dr0scd.bw-i." mseis Ouru,P
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eon. Royal1 R.‘Watklns, page 5 .
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- Certatnly, the Legislature had renson tor recuir-
- lng the apjirooal of both County and State ~Up@r~nt6nCkIit6of
all transfers to be effected under. the pro+fons of ?ection 2
of Apt. 8, supro. It must not be overlooked thvt transfers
o$ cntire scholestic ecrollmsnts, allowed under this section,
are only authorlzcd rbon pistrlcts m unhbio to nointsin
sohoo~s, am? then only i’or 0110 yeFin e%ch
the trustece of t&e proposed sending district
&&&etermino that It Is nnatle to, maintain a sat1sfaotory
‘Iha County ana State tiuperLntsndcnts,or elthor of
then, &ter investl@tion and Bue consideration, might ages
or disagree s3.t.h Said conclusion. If they agreed, th8ir aP-
provsl-would be-given to the trsnstar. Otherwise it would be
iithhelb. It is olesr, thareforc, that nuoh approve1 is not
aio?ply a ministeriel requiresent. It is to be based upon
dlsoret$on end juogment . It le a quosl-judicial fuwtion.
t’hen an ezecutive offioor, in the ‘exeroise of NE functions,
is roqtired to Pass upon roots anO to betsrm1ne his action by
the rocts round, suoh is sometimes called a gU6bjUaichd
~tlmotlon. Ry. Co. v. Shamon, 100 Tox. 379, 100 Z. Gi;. 138;
10 I,. R. A. (X.5.) 681. A130 300 Beldscchi v. Coo&et (Civ.
;\PP.). 145 s. w. 325, 328, (Error Refused) .’
The file submitted contrjlns a lcttor from the County
‘. S!upe&sndnat to tir. PI. B. gin&, AuOltor, 3teto Board’of Xduce
ti0n; bt6a AUK. 30,. 1343. Tbe follovi@g paragrsgh is quoted
thersircw
Tl!h’h’ero ~103 no lntontlon oft in UP to Atbtins in
any wep ana we wera assurea by ----J-4
the .X&e Department
that no injury would be dmo in chani&un&from fi dls-
triet contr%cS to inaividusl tr*nsPers.e
. This letter clearly intiicateo that the procedure Pro-
tided‘ for ‘in ?!oc. 2 of Art. 8. aforoonid wno abandoned m d that
individual transfers ‘YIere effected.
Also, the coPy of the nOontraot’to Tronsfur Districts
%ccdrding to Article 8 of the Equelizotion’Iew For 1942-1$43”,
contained in the fi.le subxitte4, shOpiSno EP$WOVO~ t!lcr~~fby
either tho County Zuperj.ntendc;nt ox the !Xetc~ Superintendent.
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Ke now oall attention to t% nature of H. B.
2Sl,, Chap. 519, Aots Of the 47th LGgiShtUJ'e, R. S. Itrj
’ baadine is “Appro,7ristion - Rural Aid To Publio !Zahool.n.*
It is osseatlelly a? appropriation bill. Lpeo; 2 of Art. 8,
$cpri3, is a oofcponent part t&roof. It is elmentary that
oonditioncr of sn.approprlatloa bill atiat be conplied with
before xconcys am ba paid out thereunder. Nalthcr cm
money be drawn tron tho Trcesury but in
SJhif~C EDDrOpri~tiO~S~D!-C&bJ &.
C~astitution of Taras.
.Thhsol.roua&anoea surrounding tha quontlon sub-
mitted ov3.deMly oooarrcd OS 8 result CZ nn erroncowin-
terpqetstion of law. Ehhile this is unfortunate end is to
bo regrettad, the law oannot be changed thereby.
Our opinion in this oonmotion ia as above
steted. .
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Very truly youra : .
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Asa.ifitant
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