Untitled Texas Attorney General Opinion

Hon. L. A. Woods Opinion No. O-5413 State Superintendentof Re: Whether elementary tuition Public Instruction may be paid under current rural Austin, Texas Dear Sir:, We have before us your letter of June 17, 1943, which we quote in part as follows: “There are several situationsin Texas in which the districts request the county board to classify the s_chool,to teach no grades or to teach part . of the ~,elementarygrades and arrange ror some otner school to teach their childrenwhose grades they do not offer. The current Equilizatlon Aid Law does not make specific provision for tuition on elementary studentswho are not contractedas pro- vided in Article 8. In order to try to take care of the situation I am acting under authority of Article 2657, A& s of the 29th Legislature,and am interpretingthe law to mean that we would be au- thorized to pay the cost of instructionon any child living in a district eligible to receive aid whose gr~adeis not taught in his district. You ,w~illnote also that Article 2678a, Acts of the 44th Legislature,authorizes county boards to classify schools in accordancewith the regulationsof the State Superintendentof Public Instructionand that such re,gulationsand classificationsshall be made for promoting the efficiency of the elementary schools and establishinghigh schools at convenient and suitable places. My regulationsfor the past several years have been that a one-teacherschool should not teach more than six grades, that a two- teacher school should not teach more than eight grades, that a three-teacheror four-teacherschool should not teach more than nine grades, and that a five-teacherschool should not teach more than ten grades in a twelve-gradesystem. You will note that Article 2678a provides in part that “Iif said student after having completed the course of study offered in his home district is not Hon. L. A. Woods, page 2 (O-5413) prepared to enter a hiah school,recognized by either _ the county or the State, the superin- _.. tendent OS the school district which maintains the high school he desires to attend shall place said student in the prooer erade. and said, district sh 11 be entitled to receive tuitioq for said stzdent in th same manner as if said student should attend the hkh school of said dig- t&.wi.' "As you know, the general law requires that trustees either provide a school for all the chil- dren who live in their district or pay the cost of teaching them to the school that does teach them. I am holding that aid is based on the eligibility of the district of residence and not on the basis of the type of district to which the resident pupil may elect to attend if his grade is not taught in his home district. To hold otherwise would involve discrimination. I also feel that this general law does not conflict with the Equali- zation Law and that both should be followed in re- gard to the distributionof rural-aid funds and would like to have your opinion as to whether rqv interpretationcan be followed without violation of the statutes.n You have informed us that it is contemplatedthat salary aid moneys will be used to pay the elementary tuition mentioned in your letter, under the provisions of ,ArticleVI?1 of the current rural aid bill. The bill provides for the payment of high school tui- tion in Article IV of the bill. Article IV reads in part as follows: "Section 1. It is hereby expressly provided that a sufficientamount of funds allocated by this Act shall be used for the payment of high school tuition not to exceed Seven Dollars and Fifty Cents ($7.50)per pupil per month, and in no instance shall more than five (5) months tui- tion be paid for any one pupil on the census roll for any one school year. High school tuition shall be paid according to the provisions of House Bill No. 158 General Laws, Regular Session, Forty- fourth Legislature, as amended, and subject to the limitations and restrictionsprovided in this Act." It is obvious that Article IV does not authorize the payment of elementary tuition, for it speaks only of high Hon. L. A. Woods, page 3 (O-5413) school tuition and states that the same shall be paid accord- ing to the terms of House Bill No. 158 General Laws Acts 44th Legislature. House Bill No. 158 fArticle 2922L’(1) Vernon’s AnnotatedCivil Statutes). House Bill No. 158,‘in providing for the payment of tuition deals exclusivelywith high school tuition and the payment thereof for high school studentswhose grade is not taught in their home district. It is thus manifest that Article IV could in no way authorize the use of rural aid funds for the payment of elementarytuition. You state in your letter that the “currentEqualiza- tion Aid Law does not make specific provision for tuition on elementary studentswho are not contractedas provided in Arti- cle 8.” Article VIII reads as follows: “Section 1. For the school year 1941-42 upon the agreement of the Board of Trustees of the &s- tricts concerned on on petition signed by a majority of the qualified voters of the district and subject to the approval of the County Superintendent,State Superintendent,and Joint Legislative AdvisoryCom- mittee, the trustees of a district which may be un- able to maintain a satisfactoryschool may transfer its entire schelastic n 011~ nt. o anv numbe of grades thereof to a c&fvenie% schzol of high& rank, and in such evint all of the funds of the district includingthe State Aid to which the district would’ otherwisebe entitled under‘the provisionsof this Act, or such proportionatepart thereof as may be necessary shall be used in carrying out said agree- ment; provided that no aid shall be allowed for teach- ers that are not actually employed in the contracting schools. “Section 2. For the school years thereafter, upon the agreement of the.Board of Trustees of the ,districtsconcerned or on petition signed by a major- ity of the qualified voters of the district and sub- ject to the approval of the county superintendent, and the State Superintendent,a district which may be unable to maintain a satisfactoryschool mav transfer jts entire schQ;Lasticenrollmen&for one year to an accredited school of higher rank. If the receiving school receives State Aid, the scholasticcensus rolls both white and colored shall be combined the per capita apportionmentshall be paid direc4 to the re- ceiving school all local taxes of the sending &n- tracting district, except those going to the interest and sinking fund shall be credited to the receiving Hon. L. A. Woods, page 4 (O-5413) school by the Tax Collector as collected,and the teacher-pupilquota shall be based on the combined census total. If the receiving school is not a State Aid school the scholasticcensus rolls both white and coloreB shall be combined the per capita apportionmentshall be paid direct $0 the receiving school, all local taxes of the sending contracting district except those going to the interest and sinking fund shall be credited to the receiving school by the Tax Collector as collected, and the sending contractingdistrict will be eligible for as much Salary ,Aidas is necessary to supplementthe State Available and Local MaintenanceFunds on the scholasticsfrom the sending district attencling a school inthe receiving district, to cover the ap- proved cost of instructionper scholasticin the re- ceiving school, provided that such approved cost shall not exceed Seven Dollars and Fifty Cents ($7.50) per month for high school students or Five Dollars ($5.00) per month for elementary students.” (Empha- sis supplied). Section 1 of Article VIII applied by its terms only to the school year 1941-42. Section 2 applies to the current school year. You will notice that Section 1 authorizedthe transfer of the entire scholasticenrollment,or env glambr f Prades thereof. Section 2 authorizes only the transfer 0; t:e entire scholasticenrollment. The exclusion of the phrase “or any number of grades thereof” from Section 2 is obviously clear that the same is not authorizedby Section 2. In other words, only the transfer of the entire scholasticenrollment may be ef- fected under the terms of Section 2. The transfers about which you inquire do not therefore, come within the provisions of Section 2 of Article 8, her the elementary students mentioned in your letter are not contracted under the provisionsthereof. You cite in your letter Article 2678a, Vernon’s Anno- tated Civil Statutes. It is our opinion that this st;tutehas no effect on the question of elementarytuition payment under consideration,for Article IV deals with high school tuition and expressly states that the same shall be paid under the terms of House Bill 158 (Article 2922L(l) ),supra, and Section 2 of Article VIII is concernedwith the transfer of the entire schol- astic enrollment,which is not the case here. It is elementarythat moneys appropriatedfor one pur- pose may not be used for another purpose and that the conditions Hon. L. A. Woods, page 5 (o-5413) of an appropriationbill must be met before moneys can be paid out thereunder. It is fundamentalthat no money may be drawn from the Treasury but in pursuance of a specific appropriation made by law. Article VIII, Section 6, Constitutionof Texas. You are, therefore, advised that the payment of ele- mentary tuition as outlined in your letter,is not authorized either by Article IV, Article VIII, or any other provision of the rural aid act; consequently,rural aid moneys cannot be ex- pended therefor. We are not unmindful of the force of the arguments advanced by members of your department and other educators as to the desirabilityand need for such payment. However, the power to pass statutes and make appropriationsof public moneys is lodged in the Legislature not in the Attorney General or the State Superintendent,ad such arguments present considera- tions of policy the determinationof which is the prerogative of the Legislature,and not of this department. Very truly yours ATTORNEY GENERAL OF TEXAS By /s/ George W. Sparks George W. Sparks, Assistant APPROVED JUL 13, 1943 /s/ Gerald C. Mann ATTORNEY GENERAL OF TEXAS APPROVED: OPINION COMMITTEE BY: BWB, CHAIRMAN GWS-s:wb.