Untitled Texas Attorney General Opinion

OFFICE OF THE ATI’ORNEY GENERAL OF TEXAS
AUSTIN

5onorable George 5. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir:
opinion X08-1742

We ar0 in racei
1939, which reads as r0u

ection 10 bf

thorized to issue
claim in its present

return this fils with

o clearly present the facts and ques-
his department, we consider it neces-
material contained in the file accom-
The warrants which are
d to approximately one hundred ninety
ate of Texas are in amounts ranging from
r.warrant to in excess of $25,000.00 per
warrant, totaling $1,067,915.00. Theclaims presented to
ybur department are listed in the, following manner:
Uonorrble “veorje H. 3heppard, @ge 2

“Transportation Ae;ort
“District Ainount of ‘Narrant
Anderson County
County Board $17,749.00 Transportation
Angellna County

county Board 11,784.OO Transportation”
Attached to this list, which was apprantly sub-
mitted to the State Auditor, is the following certificate
which has not been signed or executed.
“I, Tom King, State Auditor, certify that
the herein order passed by the Joint Legislative
Advisory Committee directing the psymaht of
#.l,o67,915.00 is a procedure which will not pre-
vent a complete audit of the transportation ac-
counts as provided in House Bill No. 933 berore
rinalpayments are made.

State AuQltOr and Brflciency Expartw
There Is also attached to said list of proposed
warranta the iollowlng resolution:
Vu!SOLVED, that the Joint Legislative Ad-
visory Committee, under authority vested in it
by House Bill No. 933, Acts of the Forty-sixth
Legislature, Regular Session, hereby approves
for payment the sum of $1,067,915.00 for trans-
portation.
“The Joint Legislative Advisory Committee
hereby authorizes and directs the Comptroller of
Public Accounts of the State of Texas to issue
his warrants against the State Treasury made to
the respective county boards or education listed
herein against appropriation A 786 and deliver
same to the Director of Equallzation for trans-
mittal to the various county depositories.”
Konorable George H. Shapprd, Fage 3

This resolution is signed by Olan i?. Van Zandt,
Chairman, Joint Legislative Advisory Committee.
The correspondence in the file submitted discloses
that on Nov-mber 7, 1939, State Superintendent L. A. Woods
transmitted the foregoing list of warrants to fronorable
George H. Sheppard, State Comptroller, stating that on Oct-
ober 10; 1939, %ransportation aid was granted to the county
boards of education whose names appear bn the attached list
in amounts sat opposite the names ,* by the Joint Legislative
Advisory Committee. The following resolution passed by the
Joint Legislative Advisory Committee on said date is set out
in the letter:
vb?r. Smith moved that the Committee author-
ize the Department of Education to make remittances
to the several school transportation systems of
Texas, as authorized in Section 10 of House Bill
#933, in an amount of fifty per cant of the actual
grants approved for payment for 1933-1939 and all
Suture payments of such transportation grants shall
be audited and adjusted for payment by the Auditor
in charge of rural aid before any such payments are
made. h!otion unanimously carri0d.w
There is also attached to said letter the following
~sworn statamnt by State Superintendent L. A. Woods:
*This is to certify that the reveral grants
herein stated, aggregating $1,067,915.00 are cor-
rect and are unpeld and are due and payable as
shown in the resolution of the Joint Legislative
Advisory Committea.~
Under date of November 21, 1939, State Superintand-
ent L. A. Woods transmitted the above mentioned list of war-
rants to Honorable Tom King, State Auditor and Efficiency
Kxpert, requesting that ha audit the data therewith presented
and give his approval or disapproval. The Honorable Tom C.
King, State Auditor, answered this request on November 22,
1939, as follows:
mYour letter requests that I audit the data
and file presented and approve or disapprove same
ror payment.
“1 regret tha’necassity of returning to you
your request for a partial advanoe disbursement
Honorable Ceoxge U. Sheppard, Fage 4

of transportation aid funds in the amoun: or
#1,067,915.00, appropriated under E. 3. 933
passed by the 46th fesular Session of the Texas
Legislatuze, for compliance ‘Nit!I the Following
sections or parts of the follol*:ing sections of
the act: Sections 1, 2, 3, 4, 6, 5, 10, 12, 13,
14, 15, 16, 17, end 24.
“The file submitted by you with your letter
of :lovember 21, 1939, is bein-; returned to you
herewith without action by this department due
to inadequate inlormation in the application, nor
has such information been submitted to this df-
fice in proper form for auditing;”
On November 23, 1939, the State Superintendent noti-
fied the Chairman of the Joint Legislative Advisory Committee
that the State Auditor had declined to give his approval to
the payment of said claims and therefore the State Superin-
tendent was appealing this case to the Joint Legislative Ad-
visory Committee for a decision on the matter.
‘The Chairman of’ the Joint Legislative Advisory Com-
mittee replied to this letter on Kovember 24, 1939. :‘!e quote
in part Iron; his letter since it suggast$ the theory upon
which the Joint Legislative Advisory Committee and the State
Department of Education directed the Comptroller to issue the
warrants in question:
n I also note that you have asked the
Joint La~l~lative Advisory Comittaa, whose powers
are particularly sat out in Section 1 of said Bill
and in Section 17 thereof, also, to take this
matter into consideration.
“In view of the joint authority of said Corn-
mittee and yourself to allocate and expend monies
appropriated in said Bill for the purpose of more
equalizing education opportunities in Texas, I
as Chairman of said Committee, consider that the
authority ‘granted in Section 1 is of superior au-
thority to that granted the State Auditor’s De-
partzent in Sect.ion 17 thereof. However, IL view
of the controversy which has arisen and in ra-
cognition of the appeal taken to se i d Committee,
I am directed by said Committee as Chairman thereof
to pass to you the folio;?-ing information:
Zosorable Ccorge H. SheFyard, Page 5

*The Committee has taken up and considered
the appeal in question as shown by the 1et:ar
attached and arter fnil deliberation and consider-
at.ion thereof apair ;:ders the pagzient. of .:l,Ce?,S;z,
as shown by the attached srder passed b:? :P,e Corn--
mittee on October 10 and shown In your letter to
the Comptroller under date of November 7, and you
are further advised that said Joint Legislative Ad-
visory Committee in all things approves your ask-
in;r the Comptroller to issue warrants as hereto-
fore outlined .v
He shall not attempt’to review ail of House aill
so. 933, however, it will be necessary to discuss in general
the provisions of the Act,
Xouse Eill NO. 933, Acts of the Forty-sixth Legis-
lature, commonly known as the Rural Aid Equalization Law,
-appropriates $6,825,827,00 for the aid of public schools
meeting the raquireuents of the Act for the school year end-
ing August 31, 1940, and allocates $2,160,373.00 for trans-
portation aid. (Sect2ons 1 and 11). Allocations are also
made for salary aid and high school tuition aid. All school
districts in the State of Texas are not entitled to prtici-
pate in the distribution of the money thus appropriated but
the Act contains detailed qualirications, requirements, pro-
visions and procedure to be Pollowed before the money therein
appropriated shall be paid to the various districts. Some
of the elements to be tqken into consideration in detarmin-
ing the aligibillty of a school district to receive aid under
this Act are that it shall coma within certain minimum and.
maximum scholastic population brackets (Section 2); the
school shall not be located within two and one-half miles of
another school OS the same race (Section 3); the district
must be voting, levying and collecting for the currant year
a local maintenance school tax of not less than fifty cents
on the one hundred dollars valuation (Section 6); proper
applications must be filed before October 1, 1939, and ap-
proved and audited and allotments made based upon such ap-
plications (Sections 13, 16, 17, 23); districts must show
a budgetary need for aid (Sections 10, 12 and 13) and other
provisions not necessary to mention here.

Section 10, which specifically refers to transporta-
tion aid, reads in part as follows:
Honorable George Ii.Sheppard, Pago 6

*Th e
lx p enmOf 8Wh tran8QOrtatiOn 8hell
be paid on the be8i8 of budgetary need a8 Indicated
by apprOTed State Aid aDDliCetiOll,out Oi the
fWih8 herein allocated for tran8pOrtatiO!l aid,
. . ."
Seotion 13 provides that *no application for aid
shall be approved until all appllcatIon8 ill d on or before
&ztober 1 of the current year have been oon8idsr8da and also
reada in part:
R Provided, (1180,that all aid grent8d
out of’t~e’funds herein provided shall be alloted
only on the ba8i8 of need, bh8ed upon a proper
budgeting of each dietrlct asking for any type of
aid. The application shall be 8worn to by the
County Superintendent, president and secretary oi
the board of trustees of oaoh Of the 8ChoOl8 ap-
plying for aid. All aid granted out of the find8
provided 8hall be rllotted only on th8 ba8is Of
need based upon an approved budget of eaoh dis-
trict asking for any form of aid eroept a8 other-
wise provided in thi8 AOf. All ippllcations for
aid authorized herein ehall be on file with the
State Department of Eduoatlon not later than Ooto-
ber 1 of each year Of the biennium, end anr rchool
not filing such applioation before 8uOh date of
each y8ar shall Dot be 8ligibl8 for aid for th8
ourrent year and lhall not,be ooneldere’dor lpprov-
ld for the type ot aid appllod for.’

It ir provided in Seotlon la thatt
o . It rhall be the duty of the State
Superf&~ndeot of Public InstNotioe to appoint
the number ot t3eputyState Superfntendents here-
Inafter authorized to make a thorou inte8tiga-
tion, in per8on, of the grounda, bar ldlng equlp-
ment, teaching 8t&, 8nd rinanclal condition or
eaoh rchool appl ing for aid; and no aid 8hall
be given unle88 ft oan be rhown thm prori-
dons of thi8 Aot have been complied with, and
that such 8mount of qid i8 actually needed. . .I
The Legislature toreear the de8irability of making
aynent to the variour 8chool district8 without extended de-
Pay and provided the mrthod for 80 doing in Saotion 16 whloh
,

Honorablr Georgr H. Sheppard, Pago 7

read8 in part:
Wet later than January 15 of eaoh year, the
8tat8 inspection 0r all Rural Aid School8 8hall be
completed. Initial payment by warrant of not more
than fifty per cent I5051 of the total amount al-
lott8d to any on8 school shall then be made, as
-inal payment8 rhall be made a percentage
baai to 8uoh 8ohool8 in 8uoh manner that all
8OhOOl8 whose application8 for aid have been approv-
ed, 80 that each school will reoeire the same pro-
portion of aid."
Section 22 oontains the following provislon8:

“All applications . . . for traneportation aid
coming within the general provirionr of Section 10
of thi8 Act rhall firat be considered, and if appror-
ed in the manner authorized and dlreoted herein,
=a11 first be paid out of thr appropriation madr
for each of the year8 of the ourrent biennium In
the manner and method herein direoted, and 8aihaid,
lr 80 granted, Fhall be first paid out 0r the ap-
propriationr, and allocation8 herein made to an amount
not exceeding one hundred per oept (100%) of the
approved grant therefor, and all lxoeptlon8 to the
general law permitting and granting aid to the 8ev-
era1 rohool dirtriotr of thi8 State 8hall be paid
only if and when tho8e approved appliOation8 oanlng
dthln the general prorlrionr 0r thir Act harr rir8t
been paid, and ruoh eXOOptiOn8 8hall then bo allowad
and admitted a8 approved, and upon approval they
ahall be paid out 0r 8uOh allooationr nmalnlng WI-
lx p endmd a nd
th eupon
n a pro rata per oaplta bari
Out Of the iundr remaining unoxpondrd in laoh oi the
lllooatlon8 heroin made and not otherwler. . . .-
Bo oitatlon of authority ir neoorsary to rupport
the proporition that the appropriation8 made la tb above
bill are to be oontrolled and expendrd under the provision8
thereof and not under the term8 of the Aot oi the Forty-
riith Legislature or the application8 filed and approved for
the year 193S-1939. The Act 18 clear that a rchool, to re-
oeiro any aid for 19394940, must properly rile it8 appllca-
tion not later @an October 1, 1939, 8how a budgetary need
for the ourrent year and meet the other requirement8 bared
upon the current rohool year. When the application8 are rem
Honorable Ceorgr H. Sheppard, Page 8

ceived in the State Department of Education they are then
inreetigated (Section 12) and none oan be approved until
they have all been oonsidered (Seotlon 13). The purpoe.0
Of thi8 inYe8tigation i8 not to determlnr whether the money
has already been properlJ 8pent but to serve a8 a be818 for
approval or rejection of filed applicatlona, wand no aid
shall be given unlese it can be shown that all provisions of
this Act have been oomplied with, and that such amount of
aid 18 actually needed." (Section 12). The investigation
must be complete& by January 15th of each year. Then the
Initial payment dot exceeding fifty per cent (5Omall be
made, i.e. after the investigation Is oompleted. When the
inrestigatfon ir oom leted the Department 18 prepared to ap-
prove Or reject appls CatiOn8. The Legielature having ro-
rlded that traneportation aid ehall be paid on the ba8P 8 of
budgetary need "a8 indioated by roved State Aid gppllca-
tion," and that after the invest on or licatlon8 has
G completed partial payments hen beaLide viethink
the legislative intent i8 clear thatpartial pa&t8 are
not authoriied before the investigations are completed and
applications are approved.
The reoord presented to U8 doe8 not show that any
appllcatlons for 1939-1940 have ever been approved and B are
informed that the Deputy Stat8 Superintendent8 are now en-
gaged In their inYe8tigations.

It ha6 been suggested that Seotions 1 and 17, to-
gether with the action taken by the Joint Legirlatlvo Advieory
Caninittee,may nerve a8 a baai for the proposed a&ion; hdw-
over, we do not think they are controlling of the leaues hare
presented.

Seotion 1 maker the appropriation and provide8 that
the money ir tot
-. . . be allocated and expended by the
Stat8 Superintendent of Publio Inatruotlon through
the Mreotor of Equalization in the State Depqrtr
ment of Education and under the eupanieion and ad-
Yioe of the 8ppeelalJoint Legislative Advisory Corn-
aittee oompoaed or r0ii0ting memberr: . . .~ . In
addition to other power8 and dutie8 they 8hall haYe
appellate and final jurisdiction on all matter8 Of
dispute between said Department of Education and
Honorable George H. Sheppard, page 9

any applicant for aid under the protilrions and
tbna8 of this Act, and until otherwise ohanged
and directed all rule8 and regulation8 of the
State Board Of Education shall govern the di8po-
8ltion of all application8 for aid under the pro-
vision8 of this Act; and said Committee shall
have no authority to make any grant or aid except
thet authorized by this Act. . . .4
Seotion 17 provides:

“The State Auditor’s OfflC4 18 hereby dl-
rected to audit all.appllcations for aid after
same have been passed on by the Director oi
Equalisetion and when such application has bern
approved by said director, it shall then be the
duty of the State Auditor to approve, or reject
8uoh applioation. Whenever there 18 a difference
between the State Auditor and the De artment of
Education, th8 Joint L8gislative Adv P eory Committee
ahall adjuet same on the request of either depart-
ment .4
In this oonneotlon we aleo note that part of Sea-
tion 12 whloh proridee:

“It 8hall be the duty of thb State Superin-

jeot to tlm approval of thr Joint Legislative Ad-
‘visory Coamlttee in this Aot, and tar the
created
best intere8t Of th8 8OhOolS iOr Who84 bensfit
the funds are appropriated. . . . Provided. how-
ever, that no regulation of the State Su it
z State Board of Education or Joint ~~~s~a%;
AdYi8ory Cuamlttee 8ha11 oonrllot with any pro-
visions 0r thir Aot or any present statute. . . .4
As indloated b the sections or the Act hereinabove
disouseed It ir our opin Ion that the payment of money out
of this appropriation other than upon approved applications
would be contrary to and inconeirtent dth the express pro-
visions 0r thir Aot. arid0 from any question 0r auditing.
 - .

~6norsblo George 8. Sheppard, Fage 10

Clearly the provision of Section 1 plsoing the rpending of
the money under the asupervi8ion and advice* of the legls-
lstivr OomIaitteedoe8 not empower the oommittee to suepend
the provirionr 0r the law and provide 8 different ba8i8 for
payment. Likewi8e we do not think the arising of a *dir-
ferenceR between the State Auditor and Department of Educa-
tion, aesumlng a dlfterence a8 oontemplated by Section 17
has arisen, wa8 intended to have the effeot of expanding
the power8 of the Committee to the extent that it might
direct action oontrary to the express provisions of the
rtatute In adjusting such ditf6rence.

It ir our opinidn that the Comptroller of Fublio
Accounts i8 not authorized to issue warrants in payment of
the Olaim8 referred to in your letter of request in their
present Status,

Your0 very truly
ATl’ORllEY GEHEFfAL O~mTEXAS

BY
Ceoil C. Cammack
Assistant
ccc:Im

APPROVED DZC le, 1939
(8) Gerald C. Mann

AlTORwY GENXUL OFlmAs

APPROVED
oplnlon oommitte4
BY BwB
z5ziEzin