OFFICE OF THP: ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable 8. A. 61888, DireCtOr
Textbook Dlvlrlon
Department Of SducStiOn
hatin, Texas
Dear 811'1
- Help In dl8t.Fl-
textbooks.
21, 1940, request-
, the letter being
ary 8tQ,tvo ques-
you from this
the wthorlty of
to rel&mrre bond-
textbook8 in looal
or expenditure8 lnour-
cdn vlth the distrlbutlon
bOOk8 t0 pupils Of the pub-
In your OpiniOD Ilo. o-1837,
al'y 16th End rddl’e88ed t0 the
f the Pertbook Dlvl8lon, both
e88 question8 were umvered in the
~Eovever, Upon prelrentatlon of oer-
fain ololnm from local bonded tertboolc
CiU8tOdlti8, vhlch inrOlve parlB8nt for
labor, the Comptroller rejeoted the paw-
mnt of the alalms and returned them ~lth
Honorable a. A. 01a88 - Page 2
the letter Thlch 18 co led belov: (Ciplee
of clal~ are rttoched P
*. il. A. Glars, Director
Textbook Division
State Department of Edacstion
h8tin, tea8
Dear AU'. Gla88:
@*I am returrring the maoant of BOP-
ner Frlzaell In the amOunt of $29.33 and
the account of J. C. latoon in the amOunt
of $7.eo for the reason I believe they
are in violation of the iollovlng Fovla-
Ion oi the Departmental Bill plsklng aa
op~oprlatloa for the Textbook Dlvl8lon
ThlCh prohibits the employing oi any ad-
ditlonal employee8 for your dlvlelonr
*It 1s f?wther worlded that
the anmnte to be expanded for
nev textbook8 and reblndlng shall
be a8 fixed by the State Board of
Educations provided, however, that
no employees, In addltlon to those
listed and lteadzed above, shall
be eEplopeO.*
Very truly yours,
Signed; George Ii. Sheppard
Comptroller of' public
Accounta
Breasler/g
8Slnce It ha8 long been the ourrtom of
this Dltl8lon to psy such claim, and
8bV2.e fu&is are available for the payment
of current clalm8, this Dlvlslon feels
the need of further Interpretation of
this problem. Se therefore respectiully
request your opinion on the f0110vlng
question*
81. Does the rider to the General Ap
proprlatlon Bill tor the biennium ending
&lgU8t,31, ls(l, a8 quoted fn t&3 CODID-
tlonorabls Al. A. Cl088 - Pa&e 3
troller'8 letter, Obviate the atathorlty
of the State Board of SduOatlon to pay
Out Of th8 Textbook btld 811 nSOeS8ary
expenae8 In conneotlon with the distri-
butlw of free textbooks?’
In the general form of yoaw question a8 stated,
It haa
been ana~ered in formar opinion lto. 3091, of date
liovenher T, lQSQ, addressed to the Honorable Ceor U.
Sheppard, and opinion lo. C-lSST1, dated January 16, 1940,
adJlret3sedto you, copies of vhlch opinions you have.
QbviOU817, the 8peclflC qtle8tiOIt71th vhich you
are Qormerned la vhetbtr or not the rider quoted in KP.
Shoppard~s letter ha8 the efreat to forbid the State
Board of fklucatlon to pay out of the Textbook Fun3 Items
of reln&ursement for extra help to llv. Prlzaell aad hr.
Watson for 8emloe8 in a88i8tiXIg in the dlstrlbutlon Of
textbooks. So that, TO ~111 amver your question a8 thus
reetated.
The Comptroller ha8 docllaed to pep these bills
upon the grouwl.that the rider to the Appropriation Bill
puOi&d in his letter forbids such imfment.
It 18 the opinion of this departinent the rider
;;;:,zgt have the eifect attributed to It by the Comp-
We conwend the Comptroller98 vigilance vlth
l
r88pQCt t0 the paying Out of plbl1.o mney8, but we hi8-
agree Tith hi8 con8tructlon of the rider.
The language which has iippelled the Coieptrol-
ler"8 action Is a yvovl80, as f0110~8:
8 + * 4 prodded, hoTever, that no
employees, In aMltlon to those
listed and iteaiiized
above shall be
employed..
The acoepted rule of oonstruetlon with respect
t0 prOtisO8 18 thus stated by &i?. Sutherland 011 Statu-
tory Constructions
Honorable tl. A. Gla8a - Page 4
mThho natural and appropriate office
of the prwieo being to reetraln ok
qualify so126 preceding mtter, It should
be CoDfinod t0 That J8WWie8 it llDb88
It Clearly appear8 t8 have been intended
to apply to 80~~ other matter. It Is to
be COD8tNed In oooll6atlon Tith the eec-
tiOD Of vblch it fOrTI a part* and it 18
8ubetaDtially LO exeaption. If it be a
pm180 t0 8 PWtiOUlW 8eOtiOll, it doe8
Dot apply t0 others UDle88 plainly interad-
ed. It should be construed Tith refer-
ence to the lmmedlately preceding part8
Of the elau8e t0 Thich it 18 8ttaehed.
In other Torde, the prWi80 will be 80
restritted ID the abeonce of anything la
it8 tel’ms, Ol' the subject it deal8 Tith,
erinclng a~ Intention to glre It a broad-
er effect.4 e l
*Story, J., oaffl he Ta8 led to the
general lule of 1aT which ha8 alvays pre-
veiled and become oonseorated a8 alTio8t
a xnaxlm in the interpretation of statu-
tes, that vhen the enacting clause 18
general in It8 language and objeatr, and
a pWV180 18 afterward8 lDtmduce!a, that
protlso 18 striotly construed, and take8
DO Case out of the enacting clause which
does not fall fully ~lthln it8 term6.m
Sutherland on Statutory Construefion
223, p. 297)
Applying this rule of COD8tNOtfOD to the statute,
the pm~i80 above quoted is applioable to the enactment con-
tain& ID the section of Thlch it is a part, to-wit, the erl-
actment that *all awunta to be expmded for new textbook8
ad rebinding books shall be as fired by the State Board of
&lucation.* It Is In respect to these tro item that the
prwiso forbids enployoes ID sddition to thO8e listed and
ltamized in the Appropriation Aat. The prOvia has 8 very
definite a?eani&z Then thus applied t0 that part Of the 8eQ-
tlon imnecllately preceding it, that la, that no employee,
fn addition to those 118ted a?rl itemized, should be emplg-
ed Tith reapect to the expense8 for DeT textbook8 and re-
blndlng books; ID other words, that the handllng of there
Items should be confided alone to 801~ of those employee8
specially listed and itexkzed in the bill.
r ’
klonorablo L. A. GlP80 - Pago S
It could hardly be contemplated that the
Act means that in DO WODt EX%y the Board engage em-
ployeee, other than thO8e listed a& Itemized, be-
cause by item 26, under the hesd of gSalarlesv,
there is epecially prOTided 'Seaeonal Eelpr Clerl-
oal, atenograpbic and labor, @OOO.OO.m lb18 itrelf
18 express authority for the employment of clerleal,
stenograyhlc and labor help beyond tho8e employee8
liarted in item8 1 t0 26.
A&D, it 18 our OpiDiOD those &k3r8OD8 ald-
ing in the distribution of free textbooks and psia by
&Jr. Prlssell and hr. 18t8OD, the custodians, are not
employees ID the 8ense In vhlch that Tord Is ased In
the proviso. To think it 18 there ueed In the 8en8e
of persons or employees vhose tenure of eenlce va8
pernrnent rather than temporary, seaeonal, or.occas-
lonal. Ua are borne out in this C0DCl~610~ by the
further rider declaring #all eaployees in the Tert-
book Dlvisioa of the Gducatlon Dapartmontshall be
appointed or removed by the State Superintendent of
Public Instruction, 8UbjeCt to the approval of the
State Board of 2ducation.v This bears out the Idea
that 8ooployeesv, within the meaning of the Act and
of the prwi80, are such persons as those Those em-
ployment Is for a given tenure, and in a sense per-
wnent , rather than that occaslonal 8ervlce render-
ed to Frizsell and Fafsonl It is the fapdllar ejus-
dam gmeris rule of CODStNCtiOn. Any other COD-
struction of the Act vould a;akc It 1mposslble for
the Board to employ a messenger to deliver a con-
signzcint of books hovever 88811, and yet such sivd-
lar and inc1deDtal expenses in connection Tith the
di8tr1bUt1OD of tortbooks Is inevitable. The Legls-
lature never conterqlated that they were to be for-
bidden. Such a COD5trUCtiOn would not harawniae v1t.h
the recoznisod 8~d declared policy of the State to
furnish md Zstributo toxtboolrs froe of further
costs.
lioreover, the rules proscribed by the State
Board of XuCatiOn Or11 CODtrary t0 8UCh COD8tNOtiOn
and lnrlicato the CODetNCtiOD Te are giving the rider.
Thcsc rules among other thiDgS provide for reislburse-
pent for (1) extra help for a short time, (2) reaeon-
able drayaga thargee, (3) freight or parcel post
chargee. ID at least tT0 of these Item8 the elenrent
of personal eertlce enter8, and In all of them the rs-
Honorably ii. d. Glass - Fcrge 8
ldmrecm.nt is of expenseta Incurred in the distrl-
bution of Woe text books.
You are therefore advised In the opinion of
this department the roimburoemant Items of Mr. Friz-
tell aml Ur. Watson should be paid out of the Taxt
Book Furd.
Very truly yours
ATTORNCC!LG~NERATJ 03 TXXM
OS-KR