OFFICE OF THE AITORNEY GENERAL OF TEXAS
AUSTIN
Mnorablk Wardlow Lane
Di8trIot Attamey
Center, Term
mar Slrx 0pIn10nso. o-e
ROI Whothor or nsolldatsd
mttleb by allaeven
thel3 rerignation and
aeven more. Row than,
0r the aahool rum
or the attornays who
lefx C.uo sarranto suit
ht agalnut then to oust them tram
oo well established to require a oltation
hat the preeent truetrae OS the oonaoll-
091 dlrtrlot In question hare no cower or
authorlty.to ratliy or approro Illegal oontraots or pre-
viour trusteea. Your Inquiry than Is narrowed to a deter-
alnatlon of whether or not school ttusteee Icay legally es
ploy attorney6 to defend thm in a 8uIt in the nature of
a quo warrant0 brought to oust them rrom orrioe ror offi-
olal mlsoonduot, 80 no to c’onstftute a oharge upm school
runas 0r the dlstriot.
Honorable Fardlow Lane, Tage 2
There are two well ostabllohed principles Of
lax by whloh we must be guide'd. They are first that:
“A quasi public corporation, such ns a
sohool 6Istrlot, which ows speoial. duties to
the pblla, may not enter into say contraot that
Is'not expressly authorized by law or neoeasar-
Ily implied rrom powers expressly granted."
CcCorkel v. DistriOt Trustees, eto. (C.C.k.1838),
121 s. 7. (2A) 240.
And seoond that:
*A sahool district Is a quasi corporation
or a public natMe, and the trustees of said
district oannot lawfully expend money belong-
ing thereto sxoept f.or the purposes authorized
by statute." Adam '1. riles ( Corn. App.), 35
s. 8. (2d) 123.
In dsoiding whether or not authority to so en-
ploy attorneys exists the following artialea of the 2e-
tlsed Civil Satutes of l.E25 (Vernon's Edition) must be
oonsldered:
"Artlole 2748. Said truetses shell bo a
body polltlo and corporate In law, an4 shall be
known by an4 under the title an4 name of dls-
trlot trustees of dlstriot number -, an4 ooun-
ty or , State of Texas; and as suoh may
contra-d be oontraatsa lath, sue aEd be sued,
plead or be Impleaded, In any court of this ltate
of proper Jurisdiotion, an4 may receive any gift,
grant, donation or devise made ror the use of
the public schools ot the dietriot. All reports
an4 other oifiolal papers shall be heade4 with
the number of dlstrlot and name of county."
.“Artiole Z749. Sal4 trustees shall have
the managel;ant and control of the pub110 schools
and pub110 school groun4s; an4 they shall de-
termIne how many schools shall be molntained in
their school dlstriot, an4 at rhat points they
shall be looated; provided, that not more than
one school for white children an4 one sahool
fcr oolored children shnll be established for
each sixteen square miles of territory of major
fraction thereof, within ouch dlntriat; an4 they
shall determine nhsn the schools Hhall bs opened
Honorable i’;ardlow Lane, Fage 3
and when closed. They shall have the power to
employ an4 4ismIss teaahers; but In ease or bls-
missal, teachers shall have the right of appeal
to the oounty and State Superintendents. They
shall oontraot with teachers and manage and
supervies the sohoola), subject to the rules an4
regulations or the oounty an4 State cuperfnten-
dents; they shall approve all claims agalnat
sohool funds ot their Ulstriot; provided, that
the trustees, In making contracts wlth teaohere,
shall not oreats a derlclenoy debt against the
dlstrlot .*
*Artlole 2827. ‘,.‘l. The State an4 county
ava-llable funds shall be use4 exoluslvely for
the payxant ot teachers’ and auperlntenQents~
salaries, fees for taking the scholastic cen-
sus, and Interest on money borrow8 on short
time to pay ,salarles OS teachers an4 superin-
tendentb, when these salaries beoone due be-
rorejthe school funds ror the current yoar be-
come arullable; provided that no loans for the
purpose or payment or teachexs shall be paid
out of funds other than those for the then cur-
rent year.
“2. Looal school funds iron district taxes,
tuition rees or pupils not entitled to free WI-
tion an4 other looal sources may be use4 ror
the purposes enumerate4 for state and county
runds an4 for purchasing appliances and SUppliSS,
for the paynent of Insuranae pre’cmlums, janitors
and other employee, ror buying school sites, buy-
ing, building an4 repairing and renting school
houses, an4 ior other purposes necessary In the
conduot ot the public eohools to be detertine
by the Board or Trustees, the acoounts an4 vouoh-
era Xqr oountg dIetrIots to be approved by the
aounty superintendent; provided, that vlhen the
State available sohool fund In ‘any oity or dim-
trlat Is aurriclent to maintain the sohools
thereor in any year for at least eight nonthe,
and leave a eurplus, suoh surplus may be expend-
ed for the purposes mentioned herein.
I . . .*
It Is quite apparent that the Leglsleture has
given no express authority to ooneolldated dormon school
dietriot trustees to empfoy oounael to represent then; an4
Eonornble Zsrdlow Lane, r4,s.e 4
provido for their payment with sohocl funds in litigation
ot any neture, end Artiale 2827 has ciroumrrorlbed their
euthorlty to spend aohool tunde. Is the power neoesaarlly
laplied iron porers which era erpr44sly grentad?
As 8tet6d in 37 Tax. Jurla et pegs 9451
*Evan in the ebsaaoe or power axpraesly con-
ferred, trustees may employ attorncrjs to instltuta
and poeeoute action4 in their behalf a4 u neo-
4asary lnoidsnt 0s thblr power4 to contraot, to
aue and wmage and control the sohool erfalra
and lntereote. Likarlae they mey pay such ettor-
neye rsaaonebla compsnsat.$on out of the speolal
maintenanoo fund in the maq~agamsnt end oontrol
0r the truatma.-
An sxam~l4 0r this rula is the case ot Arrlngton
v.'Jonar (c. c. A.) 191 S. w. 361, on4 or many or it4 kind
holding that sohool trust.eee may 4mpl6y 4n attorney *to
r4prea4nt them Jn legal proo44dlng4 respecting sohool ai-
iairs.* Sea al40 Rarding et al v. R4ymondvllls Independent
school Dlrtrlot~(C.C.A. 1932). 51 s. K. .(2Q) 826; Stewart
T. Xowton Icdependent Sohool District (Civ. App. 1939), 134
S. WA’. (2d) 429. The r4preasntatlon in such iastanoeq, how-
ever ia or the 4chool trusteee as 4 body oorporata, 4nd in
no iretanoo havo we found duthorlty for tha proposition that
rohool funds may be ussd to pay attorney's rees lnourred in
a personal suit egainst the truotees ta oust them Imu offios.
Indaed, the rule allowing the school truetsea to
employ attorceya aad oompeasets them out or the pub110 school
rood4 14 limited to nettsra involving aohool aftalrs wherein
the lnter4ste of the sahool er4 involved. D4nm4n v. Kebatsr,
139 Cal. 462, 73 Pac. 139; hyrne v. covington 5oerd or Eduoa-
tloa, 140 Ky. 531, 131 S. 'i;. 260; Tercplin v. Fremont Diatrlot,
36 Iowa 411; Cklahome City Board or Educetlon v. Thorman, 121
'Okle. 108, 247 reo. 996; Z&oKinnonv. State, 70 Fla. 561, 70
So. 567, Kelksr et al v. Yalter et al (C.C.A. 1922], 241 5. ::.
S24; Craves B. Hotichsne v. Diamond Kill Indl rohool Cietriot
(C.C.A. 1922), 243 '. iv. 638.
Aa stated in Vol. 24 or Ruling Case Iax at page
6971
Yha question has rrequently arlaen as to
the QlVQriOtp of the nxpQndltur4 or aohool funds
in counsel rees. Sroadly apsaklng a sohool dis-
triot havlng the power to sue and be sued mny
HOnOral: Kardlovr L.808, pa&4 5
employ an attorney lr the 4mQloyluent I4 neoes-
eery for the proteotion of the QUbliO intersets
00tdtt4a to it. The power to employ inoluae4
the Fow4r to co%pepsEse$e, But the power to em-
ploy counsel exist.8 only where e publio inter8st
is oonoerned whloh the board Is oharged~by law
with the duty to proteot, and of oourse echo01
funds cannot bo used to pay ooeta or counsel
reaa In eotlons brought osteoslbly In relation
thereto, but in reality for the benefit of prl-
tate persons. The questlon Usually arlaes end
ir mm aitriouit to detersins where etatutes
exlat providing that 401a4 legal ofiloial shall
act as counsel ror the board. Ii th4 statute
requirea such officer toMappear for the dlatrlct,
it oaanot crmploy anotlxr 9n hi8 plaoe, ii he 1s
able end rllllng to act, though it mey, ln a
proper ctse, employ an assistant oounsel; end
a statute perizlttlng tho enploya8nt of sQeoIa1
counsel uhen reoeesery 1s constitutional. These
deolsions &Spend lhrgely on the local 8tatut84,
=d are i equently or little ralus a4 authorit:,
bspond th a particular jurlndiotlo~. ::hera a
school distrlot 1s expressly authorized to em-
ploy counsal ror certain purposes its authority
wl&l be M.&ted stxlotly to the powers granted.*
In Zerrtlon v. Webster, 4UQr4, it wu4 held that ths
power of the school board to ezqloy oounsal axlets only
where a public interest is oonosrrmd which the board Is
charged by law with the duty to proteot, end that the school
board had no authority to amploy counsel la en electloo con-
test to detcrmlae xho were the de jure members or the eohool
board.
In Dyrne and Read v. Boer4 or gduoatlon or the
City 0r Covington, supra, the queetion was 4s to the right
0r 41x mamb8ra 0r the board of education or Corington to
uploy en attorney to sue to oompel the other SIX members
to meet with the~fomr, so es to proceed with the business
ber0re the board. The oourt held that an attorney could
not be smployed ior suoh purpoees and said:
*The board of eduoetion is a body corporate.
It is en agctncy 0r ~orernczant. Its oeixolty to
oontreot la olroumsorlbed. It oen oontreot only
in bahalr of the oonxon school lntereeta of the
olty in any event. It was not cornpotent for It
to hers contracted to pay ths counsel lees ln-
ourred by Ita individual n;embers In a roatter
wholly amonq tber;selves. If the ease had been
Honortile Qrdlon Lane, rage 6
a contest between two of the llti(pats as to
whioh via8 entitled to the office of ffieizber of
the.board, it would in a sense hove involved
a ratter affecting the schools of the city. So
?loss. the actlon ia question. But it affeots
the uohool interests only a8 an lnoldent. The
aotioa was Fersonal as to its parties. Any cit-
‘izen and patron of the School tight as well
have maintained It. But the test of the lla-
blllty of the board of eduoatlon on the con-
tract Is not whether the pukUc body was bene-
fited by It. It Is never allowed that the
state, or any of Its constituent ems of eov-
erncsnt , though oxpresslyz pemltted to make
oontracts and be sued upon them, cay beoome
liable on Implied asorucpslt. 1,ublio oorpor-
ate bodies mat not only act in a Latter wlth-
in their jurisdlctlsn, but 13 the manner ex-
pressly authotlzed .by lan, or they cannot bind
the pub110 as for debt. Co tho board of educa-
tion alone could contraot a debt agall?st It-
self as a .$ubllo corporation.. Belther a Elaor-
Ity,of the board aoting together, or whatsoever
nuu.bar acting Independently and pemsonally,
oauld Lo. so. Nor, In such Inatanoes, does
the question of benefit or advantage derived
by the public atfeot the question Of the Fub-
llc*e liability. It mst be reh,sc;bcred that
the public In Its quality of sovereign is never
liable at all as for debt, unless It expressly
pcrffilts. And when It psralts such liability
It cust contract, not only for 'We ffiatter, but
only In the manner expressly authorized."
(Underscoring oura)
The case of %ith v. i‘lttsburRh 'chool l'lstrlct,
70 Fa. zuper. 184, Is dlreotly in point. lr: that case the
sohool board etipLoyed attorneys to represent thelr in an
Ration instituted to restrain then from rapreaenting the
sahool in certain scatters since an aot of t.he I,aglslaturo
(which the defendonta alleged to be unconstltutlonal) ter-
,Einated their offlces durinq the year. Flalntiffs in the
.preSent OaSe Wore thCir attOrney5 in the F~x!v~ou~ action
whloh they lost; and the present action was Instituted to
Moover attorneysr tees. The court said:
"The holder of an office has an undisputed
right to contest the validity of leglSlation
which ousts hlni. That is personal to h11~1elf.
The ~1111 of the pUbli0 is voiced by tho legiels-
ture, and he who raises the oontest. a~‘.??u;i:eSthe
i-;onore+le riardlow Lane, Pnea 7
burden of c5tablishing his right, and tho bur-
den of ooeta. axwnses. etc.. are lncldent to
that contest; Zia has no vesied rlrbt to an of-
floe created by the loglslature, ana lndependent-
‘Iy of the legislatdve ~111, the public has uo
Interoat in continuing these p3rtioular persons
UC directors of thls sub-school dlatrlot.
* . . .
“The old board of Qlreotors of the aub-
5obnol dlstriot bud no power to make these de-
fendants liable for profaasIonal aervlces In
suoh a contest, The dlreotors viere axarclslng
powers delegated to them by Saw, and only In
the exerolse or suoh parers, aotlng exolu5lve-
ly in their oftlola oapaoltle8 as the Immed-
late representatlvea of the pub110 and purely
and In behalf, could they b&id the public. .
. .I (UnderscorIng ours)
Ye bellbve that this 15 the lan In ~cxas and
opiniona of prcvloua adnilnI5tratIon5 of t.his departiient
are In aocord with this view. See O&i’iOll dated Ootober
11, 1937, to Eonorable A. A. b’lller, County Attorney, New-
ton Couaty.
In xalker et al v. Xalter at al, (C .C.A. 1922)
241 3. 2. 924, a cult was filed to remove certain trustees
of an irdepsndcnt sohool district rrom oflice, plalntlff
alla&g various aots of offlola mIsoonduot asd lnoom-
petenoy. The petition also prayed for a taxqorary In$uho-
tlon enjoining defendants irom spending any lnoney or funds
belonging to the school dietriot to defend the cause. The
Court of Civil Ap;.eals although reforming In part the
judgment below continued the temporary Injunction to pro-
Nblt the paying out of sohool funds for any oi the erpen5e5
of lItlgatIon.
For a case slmllar In principle restraining com-
mom school dlstrlot trusteee from Spending publie funds
which expenditures would beaaflt the trustees personally,
8ee Barton Y. Vlokery, (C. C. A. 1916) 189 .‘. ‘::. 1103.
The case of Craves (G W>utohens v. Clanond El11
Ind. !?chool Clstrlot, (C. C. A. 1922) 243 ‘:. 7'. 630, ln-
valved the appl.IoatIon of prlnolplea of law elnllar to those
Involved In the Lnatant ease. In that cane the t~rusteea of
the independent sohool dlstrlot had entered Into a contract
with a firm of attorneys for the purpose of having then de-
feat oartaln bllla pending In the &!glaleture. The court
Honorable "ardlow Lane, page 8
held that the coqtraot was ultra vires, opposed to pub110
~~~lloy and void. In the course of the opinion Chief Justice
Conner stated the rule as follows:
While It is doubtless true that there is
p&er in a board of trusteea of an independent.
sohool dlat+zt to mploy counsel-and pay out
or the publia funds or, the dletrlot a reason-
able ree in oases where the interests of the
diatriO,t require aaaertlOn or derenae 113 the
toour 8 0 orltp, after
oaretul search, either expressed or implied in
the statutes or this ataie to .anploy counsel and
expend tte pub110 funds o'r'the diatrlot ln the
attempt to aeoure or dereat leglalatlon."
(Underaoorlng ours)
Consequently, it is the opinion of tkls depart-
ment and YOU ar8 respeatrully adrlaed that sohool funds or
the oonsolldatqd common school district in question my not
be used to pay attorney's tees incurred by certain neffibers
ot a pretiou8 board of trustees in the defense ot a quo
mrranta suit brought agatnat them.
Yours rsry truly
ATTORN CEXCRAL Or TFmS
JDS:LE