September 9, 1970


Dr. J. W. Edgar                      Opinion No.   M-684
Commissioner of Education
Texas Education Agency               Re: The proper method of alloca-
201 East 11th                            tion of professional units
Austin, Texas                            to school districts when
                                         part of its ADA is trans-
                                         ferred pursuant to pupil
                                         transfers.
Dear Dr. Edgar:

     We quote from your letter requesting an opinion from this
office, in part, as follows:

          "Sections 1 and 2 of Article 2696a (S.B.
     435, 61st Leg., R.S. 1969, ch. 175, p. 510)
     authorize the transfer of any child, other
     than a high school graduate, who is over 6 and
     under 21 years of age, from his resident school
     district to another Texas district, when the
     parent or person having lawful control of the
     child and the receiving district jointly and
     timely agree in writing to the transfer. They
     further provide for the transfer of state per-
     capita apportionment and other --
                                    state aid funds
     to follow then child. Specifically Section 2
     provides
          III. . . and for purposes of computing state
     allotments of districts as are eligible therefor
     under the Foundation Program Act, the attendance
     of the child shall transfer and be counted by
     the transfer receiving district.'




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Dr. J. W. Edgar, page 2           (M-684)


          "The same legislative session which enacted
     Senate Bill 435 (effective May 9, 1969) adopted
     House Bill 240 (Ch. 872, at p. 2650, see Section
     9), which amendsthe first paragraph in Article
     2922-13 to read hereafter as follows:

          "Section 1. Beginning in the school year
     1969-70, all personnel allotted under the Founda-
     tion School Program shall be allocated to school
     districts on the basis of current average daily
     attendance without regard to race, creed or
     color.

          "Enacted at the 2nd Called Session was
     House Bill 21 (Acts 61st Leg., 2nd C.S. 1969,
     Ch. 44, p. 157) effective September 19, 1969
     and codified Article 2922-1113 in Vernon's Civil
     Statut,es. H.B. 21 reads as follows:

          "Section 1. In addition to the method of
     allocating Professional Units under the Minimum
     Foundation Program, on the basis of current Averaqe
     Daily Attendance, any school district may choose
     to utilize the precedinq year's Average Daily
     Attendance to establish the basis for allocation
     of Professional Units in compliance with formulas
     in the Foundation School Program Act.

           "Sec. 2. The fact that many school districts
     can have no assurance at the beginning of the
     school year as to the number of professional
     positions for which they will qualify during that
     year creates an emergency . . .

          "Currently, this question has been raised:
     The propriety of Texas Education Agency's practice
     and/or interpretation exercised in its allocation
     of professional units to school districts when
     part of its ADA is transferred pursuant to S-B.
     435 to follow pupil transfers, and such district
     chooses under H.B. 21 to utilize the preceding
     year's ADA for professional unit allocation benefits.


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Dr. J. W. Edgar, page 3         (M-684)


          "By practice ,and construction, we have been
     applying the transfer of ADA requirement prescribed
     by Section 2 of Article 2696a in computing Foundation
     Program Act allotments in all situations where pupil
     transfers are involved, whether or not the district
     chooses the H.B. 21 option to utilize the preceding
     year's ADA for professional unit allocation purposes.
          I,
           . ..

           ,-Prior to such H.B. 240 amendment, the first
     paragraph ,of Article 2922-13 (Section 16.11(d) and
      (e) T.E.C.) provided for allocation of professional
     units to eligible school districts to be determined
     by its ADA for the next precedinq school year com-
     puted separate for whites and separate for Negroes.
     As amen,ded by H.B. 240, it now requires that the
     allocations shall be on a. current ADA basis 'with-
     out regard to.race, creed or color.' Thus, clearly
     H.B.~ 21,authorizes the option to realize relief
     from unit losses that are occasioned when ADA is
     computed 'without regard to race, creed or color.'



     Article 2922-13, Vernon's Civil Statutes, was both amended
and repealed during the Regular Session of the 61at Legislature
in 1969. Article 2922-13, Sec. 1, which was amended by
Article 2922-14, Sec. 9, was specifically repealed by Section
2(a) of the Texas Education Code (H.B. 543, 61st Leg., R.S.
1969, ch. 889, p. 2735). The subject matter of Article 2922-l
was carried over into the Texas Education Code as its Sections
16.11-16.19. The sections of the Texas Education Code most
pertinent to our discussion are quoted as follows:

          '"16.11. Professional Units - Allotment -
     General Rules

          I,
               .   .   .




          "(d) The number of professional units al-
     lotted for the purpose of this program to each


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Dr. J. W. Edgar, page 4         (M-684)


     school district, except as otherwise provided
     herein, shall be based upon and determined by
     the average daily attendance for the district
     for the next preceding school year.

           "(e) Separate allotments may be made for
     whites and Negroes.

          "(f) Where a school district is consolidated
     or contracted with another district, or annexed in
     whole or part to another district or districts, or
     where the number of grades taught has been reduced,
     or where the scholastics are transferred to another
     district, or when there is an annual fluctuation in
     the attendance in the district, or where for any
     reason there is a marked increase or decrease in
     the attendance of any school district, adjustments
     in professional allotments shall be made by the
     state commissioner of education subject to the
     applicable rules and regulations of the State Board
     of Education.



     It is obvious that Article 2922-14, Section 9, Vernon's
Civil Statutes, which amended Section 1, Article 2922-13, is
in conflict with the provisions of Section 16.11(d) and (e),
Texas Education Code. In this regard, Section 5 of the Texas
Education Code provides as follows:

           "Section 5. If any act passed at the same
     session of the legislature conflicts with any
     provision of the Texas Education Code, the act
     prevails."

      In view of the provisions of Section 5. supra, it is our
opinion that the provisions of Article 2922-14, Section 9,
prevail over the conflicting provisions of the Texas Education
Code.




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Dr. J. W. Edgar, page 5        (M-684)


     We construe the provisions of Article 2922dlib. Vernon's
Civil Statutes, as granting an option to a school district to
utilize either the preceding year's average daily attendance
or the current year's average daily attendance to establish the
basis for the allocation of professional units in compliance with
formulas in the Foundation School Program Act (Ch, 16, Texas
Education Code).

     Attorney General's Opinion M-649    (1970) holds, in part,
as follows:

          "Where conflict exists between the pro-
     visions of Article 2696(a) and those of Sections
     21.067-21.072 of the Texas Education Code, relatihq
     to transfer of pupils from their resident school
     district to other school districts, the provisions
     of Article 2696(a) control."

     The holding of Attorney General's Opinion tie649 (19?(l)
establishes the provisions of Article 2696(a). Vernon's Civil
Statutes, as controlling annual pupil transfers between school
districts. We construe the language of Sec. 2 of the Act, sUpra,
as requiring that the attendance of the transferred child be
transferred to the receiving school district for purposes of
the Foundation School Program.

     Based on preceding discussion of the applicable statutes,
it is our opinion that a school district Ls authoriiea Under
the provisions of Article 2922-lib, Vernon's Civil Statutes, to
use the "current" average daily attendance or the "preceding"
year's average daily attendance to establish the basis for
allocation of professional units in compliance with formulas
in the Foundation School Program Act. Since the provisions of
Article 2922-14, Section.9, which amends Article 2922-l.3,
Section 1, prevail over.the Texas Education Code provisions on
the same subject, you are additionally advised that all pro-
fessional allotments must be made without regard to race, creed
or color.




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Dr. J. W. Edgar, page 6          (M-684)



     However, regardless of the method a school district
utilizes to determine its average daily attendance in order to
establish the basis for allocation of professional units. in
compliance with formulas in the Foundat:ion School Program Act, the
Texas Education Agency is authorized under the provisions of
Section 16.11(f), Texas Education Code, to make appropriate
adjustments in a school district's professional allotments to
take into account the average daily attendance that is required
to be transferred from one district to another district as a
result of pupil transfers authorized by the provisions of
Article 2696a. Vernon's Civil Statutes.

                           SUMMARY

               Regardless of the me,thod a school dis-
          trict utilizes to determine its average daily
          attendance in order to establish the basis for
          allocation of professional units in compliance
          with formulas in the Foundation School Program
          Act, the Texas Education Agency is authorized under
          the provisions of Section 16.11(f), Texas Education
          Code, to make appropriate adjustments in a school
          district's professional allotments to take into
          account the average daily attendance that is
          required to be transferred from one district to
          another district as a result of pupil transfers
          authorized by the provisions of Article 2696a,
          Vernonls Civil Statutes.'

               All professional allotments under the Founda-
          tion School Program must be made without regard to
          race, creed or color.




                                              General of Texas

Prepared by Ivan R. Williams, Jr.
Assistant Attorney General


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Dr. J. W. Edgar, page 7         (M-684)



APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Gordon Cass
Austin Bray, Jr.
Jack Goodman
Melvin Corley

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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