Untitled Texas Attorney General Opinion ( 1973 )

The Honorable Ward W. Markley Opinion No. H- 47
Jasper County Attorney
Jasper, Texas 75951 Re: Questions relating to method
of procedure for effecting
Article 7, 5 6, Texas Consti-
tution as amended in November,
Dear Mr. Markley: 1972.
You have submitted several questions growing out of the adoption,
in November 1972, of Article 7, 5 6b as an amendment to the Constitution
of the State of Texas. It reads:
“Notwithstanding the provisions of Section 6,
Article VII, Constitution of the State of Texas; any
county, acting through the commissioners court,
may reduce the county permanent school fund of
that county and may distribute the amount of the
reduction to the independent and common school
districts of the county on a per scholastic basis
to be used solely for the purpose of reducing bonded
indebtedness of those districts or for making perman-
ent improvements. The commissioners court shall,
however, retain a sufficient amount of the corpus
of the county permanent school fund to pay ad valorem
taxes on school lands or royalty interests owned at
the time of the distribution. Nothing in this Sectim
affects financial aid to any school district by the
State. ‘I (Emphasis added)
Your first question is what is meant by the words “on a per scholastic
basis” as used in the amendment.
The term “scholastic” is nowhere defined in the Constitution. In
Article 7, $ 5 it is used as an adjective (“scholastic population”). In the
Texas Education Code it is used both as an adjective (“scholastic year, ‘I
scholastic age, etc. 1 and as a noun (“scholastics”). In Love v. City of
p. 193
1 .
. ,
The Honorable Ward W. Markley, page 2 (H-47)
Dalias,. 40 S.W.2d 20 (Tex.
.^---_ 1931) and Mumme v. Marrs, 40 S.W.2d 31
(Tex. 1931), rhe term was used to designate a member of the constitutional
“scholastic population” (a person includable in the “scholastic census”);
all residents between the ages of 6 years and 18 years are includable
III the schoiastlc C~IISUS, without reference to their attendance or non-
attendance upon any school. (Tex. Education Code, 5 5 1401 and 1402).
Despite the fact that in $15. 01 of the Education Code, t,he term
“schoiastic p~>;Gl.ation” is defined to mean “all pupils within the scholastic
age enrolled in average daily attendance the next preceding scholastic
year . . . . ‘I1 because of the dec,isions of the Supreme Court of Texas in
Love
-...--. v. City of Dallas and Mumme v. Marrs, supra. we are compelled
to assign to the wordscholastic, ” as used in the Texas Constitution,
Article 7, $ bb, the meaning: “a person of scholastic age residing in
the school district, whether attending a school therein, or not. ” A differ-
ent interpreta:ion ‘by us would contradict the “trust” concept announced by
plvovL
Therefore, our answer to your first question is that “on a per scho-
,Lastic basis” as used in Article 7, $ 6b of the Constitution means “on the
basis of the number of persons residing in the school district eligible by
age for free education. ” It. has no relation to average daily attendance.
Your seccnd question has to do with scholastics of Jasper County who
attend school districts in adjoining counties.
Here again the decision in Love v. City of Dallas, supra, is of assist-
ance and, under the doctrine of stare decisis, binding upon us. The problem
in that c.ase was one of transferring students from one county to a school
district in another county, and from one school district in a county to
antither dist,rrct in the same county.
%n the ----
Love case, the court said:
“.l,n view of the history of the su’bject and the
st,atulory and constitutiona provisions referred to
above,. it IS plain. we think, that the property and
funds of the p,u’blic school are held in trust by the
city, d,lst,rict, county, or other statutory agency, to
be used for the benefit of the school children of the
p. 194
The Honorable Ward W. Markley, page 3 (H-47)
community or district in which the properties exist,
or to which the school funds have been allocated.
We think these properties and funds are so plainly
and clearly impressed with a trust in favor of the
local public schools of the city OP district that they
are within the protective claims of both the state and
federal Constitutions, and that the Legislature is with-
out power to devote them to any other purpose or to the
use of any other beneficiary or beneficiaries . I . . ‘I
(40 S. W. 2d at 26)
So far as we can determine this trust theory has not been modified and
still represents the law of the State of Texas. To give to $ 6b of Article 7
of the Constitution any different interpretation would place it in irreconcilable
conflict with $ 6 which vests title to school lands in the counties and provides
that lands, and the proceeds thereof, held by the several counties for educ-
ational purposes “shall be held by said counties alone as a trust for the
benefit of public schools therein I~ . . . ‘I
The “notwithstanding ” language of Article 7, $ 6b, cannot be held to
override the “vested” language of $6 and thereby violate the Federal
Constitution, Article 1, $10. Simpson v. Pontotoc Common County Line
School District No. 31, 275 S.W. 449 (Tex. Civ. App., Austin, 1925, writ
refused). In our opinion such language has reference only to the inve,stment
provisions of $ 6.
We think your second question in fact involves two: (1) How shall
distribution be made where a school district may lie in two counties with
a scholastic resident of the district in one county physically attending
school in the other and (2) How shall distribution be made when a scholastic
resident in one county attends a school in a district which is wholly within
another county?
It is our opinion that where a school district lies in counties A and B
with the schools physically located in county B, county A, in distributing
its county permanent school fund, should allocate to the school district a
pro rata part for each “scholastic” residing in the part of the district within
county A.
p. 195
The Honora’ble Ward W. Markley, page 4 (H-47)
On the other hand, in the second situation where a resident of county
A attends a schoki in a district wholly within county B, the commissions IS
co’urt of county A has no authority to allocate any of its county permanent
school, fund to the school district in county B. Transfers of students and
of funds pald by the State for their education as well as tuition fees which
may be charged for transfer students are covered by subchapter C of
Chapter 21 of t,he Texas Education Code (5 21; 061 -to $ 21.063).
Your final question has to do with the effect distribution under $ 6b of
Article 7 might have upon the appropriation of State funds to the county.
Sectlon 6b specifically provides: “Nothing in this Section affects the
financia:l aid to any school district by the State. ”
The corpus of the county permanent school fund has not been, and
could not ‘be, used in determining the amount of State appropriations a
school district is to receive. Article 7, 5 6, Texas Constitution. Hence,
proceeds realized from distribution of the county permanent school fund
would not ‘be considered part of the Foundation School Program ($16. 71.
et seq. 1 Texas Education Code) nor used in computing local fund assign-
ments (§ 16.76, et seq. B Texas Education Code. ) Only county available
school funds realized buy the district are accountable for Minimum Foun-
dation Program purposes (§ 16. O),, Texas Education Code). ’ Since county.,
available funds are those funds realized from earnings of investments
of the county permanent fund, a reduction in the co,unty permanent fund
would not affect the district’s appropriation of State funds except in one
indirect way: by reducing the earning base. Should the commissiohers
court decide to distribute to the counties’ school districts a portion of the
permanent school fund, then, of course, the estimated county available
school fund (earnings) w,ill be less than reported and the Texas Education
Agency, Division of Finance, should be consulted as to the proper pro-
cedures t,o fol:Y~ow in submitting an amended or corrected estimate.
SUMMARY
For the purposes of a distribution of county
permanent sc,hool funds pursuant to $ 6b of Article 7
of the Constitution of Texas, the language “on a per
scholastic basis” means on the basis of the number
p. ,196
The Honorable Ward W. Markley, page 5 (H-471
of residents of free school age in each district.
Each district lying wholly or in part within the county
should receive its pro rata share of any distribution
based upon its resident scholastics. Receipt of
such a share of the county’s permanent school fund
does not affect the entitlement of the district to State.
funds except ineofar as the available school fund in
also reduced.
Very truly your*,
Attorney General of Texas
APPKOVED:
,
. .
DAVID M. KENDALL, Chairman
Opinion Committee
p. 197