The opinion
TEE ATTORNEY GENERAL
0~ TEXAS
Hon. J. W. Edgar Opinion No. V-1195-A
Commissioner of Education
Texas Education Agency Re: Reconsideration of holding
Austin, Texas in Att’y Gen. Op. V-1195
(1951) that the Foundation
School Program Act does
not authorize revision of
the economic index of a
county during the four year
index period to give effect
to decline in economic ac-
tivity.
Dear Sir:
We have given further consideration to Opinion V-
1195 (1951) to the extent that it holds that the Foundation
School Program Act (S.B. 116, 51s.t Leg., R.S. 1949, ch. 334,
p. 625. c~odified as Article 2922-11 et seq.. V.C..S,) does not
authorize adjustment of the economic index of a county during
the four year period for which indices are computed in order
to give effect to ‘sudden marked decline in the economic ac-
tivity. m
Reconsideration was undertaken because of the very
able briefs and arguments presented from certain counties as
to the inequities which would result to school districts in coun-
ties which experience sudden decline in economic activity after
computation of the four year county economic index. It is ar-
gued that such a result was not intended by the Legislature. A
strong presentation has been made that the authors of Senate
Bill 116 and those who explained and supported the measure be-
fore the legislative committees understood and intended that a
county economic index could be adjusted during the four year
period. This has caused us to search the history of the Act
and every available evidence of what the Legisbture intended
to do and what it actually did by insertion of the following para-
graph in Section 3 of Article VI of Senate Bill 116 (Art. 2922-16,
Sec. 3, V.C.S.):
“The economic index determined for each
county for the purposes of this Act shall be used
Hon. J. W. Edgar, page 2 (V-1195-A)
for a period of four (4) years, beginning with
the 1951-52 school year, and the State Commis-
sioner of Education, subject to the approval of
the State Board of Education, shall recompute
a new such economic index each four (4) years,
taking such information from the most recently
available official publications and reports of
agencies of the State of Texas or the Federal
Government. Provided that should there be a
sudden marked decline in the economic activity
in a c~ounty. an adjustment of the county’s eco-
nomic index may be made by the State Commis-
sioner of Education, subject to the approval of
the State Board of Education.’
Did the Legislature intend by the last sentence of
the above-quoted paragraph to authorize reduction of a coun-
ty’s economic index due to sudden decline in economic activ-
ity after the calculation of the four year index for all counties
and during such four year period? Or, did the Legislature
intend, by the language finally used in this sentence, merely
to authorize consideration of “sudden marked decline in the
economic activity’ from othsr s~ources than “+e most recent-
ly available official publications and reports’” of State and
Federal agencies in arriving at each four~year computation?
Considering al1 provisions of the Act, we held in
Opinion V-1195 that the Legislature intended that the economic
index be figured at regular intervals of four years; that the
percentage of participation of all counties was to total 100% at
all times; and that adjustments because of “sudden marked
decline’in the economic activity’ could be made only at the
time of computing each four year economic index.
We recognize that corr@atations and adjustments no
more often than at four year intervals may result in hardships
on counties which suffer decline in economic activity during
that period and that increase in economic activity in the same
or other counties will not be given consideration during the
fixed period. However, balancing the equities involved in this
problem is a matter for the Legislature. Col-Tex Refining Co.
v. Railroad Commission of Texas, 240 S.wT;zh747 (Tex. Sup.
Upon further study, we find that the Legislature
specifically considered a provision permitting adjustment dur-
ing the four year period and declined to adopt it. In fact, in the
final draft of the Act the conference c~ommittee struck the spe-
cific words “during any four-year index period- from the last
. . ‘
Hon. J. W. Edgar, page 3 (V-1195-A)
sentence of the paragraph heretofore quoted, and narrowed the
caption of the bill to provide for revision of the economic in-
dex “at regular intervals.’ This was approved and adopted
by both Houses.
The history of this legislation reveals that it is
true that the original draft of the bill contained language
authorizing adjustment of a county’s economic index during the
four year period. Section 3 of Article VI of Senate Bill 116, as
introduced and reported by the committee, contained the follow-
ing paragraph:
“The economic index determined for each
county for the purposes of this Act shall be used
for a period of four (4) years, and the Central Ed-
ucation Agency shall recompute a new such econom-
ic index each four (4) years, taking such information
from the most recently available official publica-
tions and reports of agencies of the State of Texas or
the federal government. Provided that should there
be a sudden marked decline in the economic activity
in a county during any four (4) year index period, an
adjustment m the county’s economic index may be
made by the Central Education Agency.” (Emphasis
added throughout opinion.)
The Bill was amended in various respects and passed
by the Senate. Senate Jour., 51st Leg., R.S. 1949, p0 256. The
engrossed bill contained the above paragraph with slight re-
vision of the last sentence thereof as follows:
”
* 0 . Provided that should there be a sudden
marked decline in the economic activity in a county
during any four-year index period, an adjustment in
the county”s economic index may be made by the Cen-
tral Education Agency.”
The House passed the Bill with amendments in which
the Senate refused to concur, and a conference committee was
appointed. Senate Jour., 51st Leg,, R.S. 1949, p. 905. The con-
ference committee struck out the phrase “during any four-year
index period’ and substituted,the words “the State Commission-
er of Education, subject to the approval of the State Board of
Education” for the words “the Central Education Agency.” Its
report (Senate Jour., 51st Leg., R.S. 1949, p0 1272) contains the
sentence in question at page 1284:
‘1
. * * Provided that should there be a sudden
marked decline in the economic activity in a county,
Hon. J. W. Edgar, page 4 (V-1195-A)
an adjustment of the county’s economic index may
be made by the Stats Commissioner of Education,
subject to the approval of the Stats Board of Ed-
ucatlon.”
At the same time, the conference committee fixed
the economic index for the 1949-50 and 1950-51 school years,
listing each county and eac~h county’s percentage of the total
participation in local fund assignments. The total of the in-
dividual county indices for these years was loos, thereby
setting a pattern for future computations by the Commissioner.
Also, the conference committee changed the general
wording of the caption relating to computation of economic in-
dices to a restricted wording so as to provide for “an economic
index for the several counties of the State and for revision there-
of, at regular intervals.”
The report of the conference committee was adopted
by the Senate on May 31,1949, by a vote of 24 yeas and 4 nays
and by the House on June 1. 1949, by a vote of 110 yeas and 25
nays. Senate Jour., 51st Leg., R.S. 1949, pp. 1272,129O; House
Jour., 51st Leg., R.S. 1949, p- 3319.
Thus, the facts and circumstances existing prior to
and at the time of the adoption of Senate Bill 116 and the legisla-
tive history of the Act itself leave no doubt that the Legislature
intended that the economic indices computed for the several
counties be used for four years, as the Act plainly provides;
that adjustments for “sudden marked decline in the economic
activity” be made only when new four year indices are computed;
and that the sum of the indices equal loo%/,.
We held in Opinion V-B95 (1951) that:
“In view of the language of this proviso and
that of the clause which precedes it, and in the light
of the purpose the Legislature sought to accomplish
by the adoption of the Act, we think that the effect
of the proviso is to limit or qualify the other lan-
guage of the Section so as to authorize the Commis-
sioner to cons~ider information with respect to ‘a
sudden marked decline in the economic activity in
a county’ from reliable sources other than “the
most recently available official publications and re-
ports of agencies of the State of Texas or the Fed-
eral Government’ in recomputing the new four year
index, if the latest offic~ial publications and reports
do not reflect such information.*
. . .
Hon, J. W. Edgar, page 5 (V-1195-A)
Further consideration of the holding on this question
in that opinion compels us to adhere to the position there ex-
pressed as the only view possible, in the light of the whole tenor
of the Act, which gives effect to all provisions of the Act. Any
other interpretation of the proviso would render nugatory clear
mandates of the Legislature that the indices be used for a period
of four years and that the sum of the percentages of the county
indices total 100% during the entire four year period.
Some of the interested parties have favored us with
briefs in which it is urged that the economic index of one or
several counties may be adjusted at any time during the four
year index period without adjusting the indices of the remaining
counties of the State. We are not persuaded that this may be
done. If the Legislature had so intended. it would not have struck
from the bill the language “during any four-year index period.”
Elimination of these words authorizing an adjustment during the
four year index period is a clear expression of an intention on the
part of the Legislature not to permit revision of the indices dur-
ing the four year period for which computed. The Legislature
will not be presumed to have done a useless act. If it had in-
tended to grant authority to adjust indices during the index period,
it could have easily done so by adopting the proviso as written
in the bill as introduced and engrossed. This it did not do. In-
stead, it struck the very words which it is now contended that we
should construe into the proviso. This we cannot do.
In holding that the proviso as finally adopted by the
Legislature merely qualifies or modifies the language preceding
it “so as to authorize the Commissioner to consider information
with respect to ‘a sudden marked decline in the economic activ-
ity in a county’ from other reliable sources other than ‘the most
recently available official publications and reports of agencies
of the State of Texas or the Federal Government” in recomput-
ing the new four year index, if the latest official publications
and reports do not reflect such information,” we were merely
applying a time-honored canon of statutory construction.
In 50 Am. Jur, 258, Statutes, Sec. 269, the rule is
stated:
‘in construing statutes, qualifying words,
phrases, and clauses are ordinarily confined to the
last antecedent, or to the words and phrases immed-
iately preceding. The last antecedent, within the
meaning of this rule, has been regarded as the last
word which can be made an antecedent without im-
pairing the meaning of the sentence. This rule of
statutory construction, however, is not controlling
or inflexible. It may be rebutted by the circumstances.
Hon. J. W. Edgar, page 6 (V-1195-A)
Moreover, the rule should not be applied without
reference to the meaninn of the statute when read
as a whole; it prevails where there is nothiig in
the statute as a whole, or in the subject matter or
dominant purpose of the statute, requirmg a drffer-
,ent construction. and is not annlicable where a
further extension or inclusion -is clearly required
by the intent and meaning of the context, or dis-
closed by the entire act. , . -”
See also 24 Words and Phrases (Perm. Ed. 1940) 261; 59 C. J.
985, Statutes, Sec. 583.
Further extens~ion of the proviso clearly is not re-
quired or justified by the intent and meaning of the context of
the Act. A legislative intent to extend the proviso in question
so as to modify the statutory requirement that the index shall
be used for four years is neither expressed in the Act nor
reasonably implied from its provisions. Clearly, an exten-
sion of the proviso so as to qualify the total percentage of par-
ticipation and the total amount to be used annually in assigning
the amount of participation by local school districts is unauthor-
ized and unwarranted.
We are further supported in our view that the indices
of the several counties may be changed only at four year inter-
vals by the fact that any other interpretation would bring the pro-
viso into conflict with the Constitution of Texas.
Section 35 of Article III of the Constitution provides:
“No bill, (except general appropriation bills,
which may embrace the various subjects and accounts,
for and on account of which moneys are appropriated)
shall contain more than one subject, which shall be ex-
pressed in its title. But if any subject shall be embraced
in an act, which shall not be expressed in the title, such
act shall be void only as to so much thereof, as shall not
be so expressed.,,
The only expression in the title of Senate Bill 116 re-
lating to the economic index is as follows:
”
. . . making provision for financing the Foundation
School Program, including the amount to be charged
annually to the local school districts of ,the State,
and the method by which each district shall be re-
quired to pay its proportionate part of such program,
based upon financial ability of such districts; provid-
Hon. J. W. Edgar, page 7 (V-1195-A)
ing in connection therewith, an economic index for
the several counties of the State and for revision
thereof, at regular’intervals; . . .I,
There is not a word in the title of the Act expressing
a purpose to authorize revision of the index of a county at ir-
regular intervals or at any time during the four year index per-
iod, In Pickle v. Finley, 91 Tex. 484. 44 S.W. 480 (1898), opinion
by Chief Justice Gaines, it is said at page 481:
“The members of the legislature are sworn to
support the constitution, and the courts will not pre-
sume that they have intended to violate it when the
language of the law will reasonably admit of another
construction. . . a,,
This rule has been uniformly recognized and followed
by the courts ofthis State, and we think ~tie interpretation urged
upon us would clearly render the proviso unconstitutional. In
Gulf Ins. Co. v, James, 143 Tex. 424, 185 S.W.2d 966 (1945). the
court said at pages 970, 971:
“We recognize the well-established rule that
liberal construction will be indulged in order to
hold that the title of an Act conforms to the require-
ments of the Constitution. 39 Tex. Jur. 95. But the
provision of the Constitution requiring the title to ex-
press the subject of the Act cannot be entirely ignored.
Cannon v. Hemphill, 7 Tex, 184. 208. The rule of liber-
al construction will not be followed to the extent that it
will relieve the legislature of the necessity of disclos-
ing the real subject of the Act in the title thereof, nor
will it be extended so as to hold Acts valid, the titles of
which are deceptive or misleading as to the real contents
of the Acts.
“The purpose of Section 35 of Article III of the
Texas Constitution is to require that the bill shall
advise bo# the Legislature and the people of the
nature of ,each particular bill, such purpose being
stated in Consolidated Underwriters v. Kirby Lumber
-Co., Tex. Corn. App.. 267 S.W. 703. 705. as follows:
‘To advise the Legislature and the people of the
nature of each particular bill, so as to prevent the
insertion of obnoxious clauses which otherwise might
be ingrafted on it and become the law, and to obviate
legislation through the combination upon a composite
bill, of the votes of the proponents of different mea-
sures included in it, some of which would not pass up-
on their merits if separately considered.’
Hon. J. W. Edgar, page 8 (V-1195-A)
“Other authorities state the purpose of such
a requirement as follows: ‘The purpose of the con-
stitutional requirement is to give notice through the
title of the bill, not only to members of the legisla-
ture, but to the citizens at large, of the subject-
matter of the projected law; and thereby prevent
the surreptitious passage of a law upon one, subject
under the guise of a title which expresses another.,
Adams & Wickes v; San Angelo Water Works Co.,
86 Tex. 485, 487, 25 SW. 605, 606. ‘But the title
must be such as to reasonably apprise the public
of the interests that are or may be affected by the
statute. ’ Cooley, Constitutional Limitations (8th Ed.),
Vol. 1. p, 300. See also Giddings v. City of San An-
tonio, 47 Tex. 548, 26 Am. Rep. 321.
“We are of the opinion that the language used
in the title of the Act in question is misleading and
that it is not sufficient to properly advise the Leg-
islature and the public as to the subject of the Act.
[Citing authorities.]
,“It is significant in this connection that the
bill as originally introduced contained only the mat-
ter set out in Section 1 of the Act, Vernon’s Ann.
Civ, St. art. 6687b, S 15, relating to the transfer of
the operator’s and chauffeur’s license fund. ,The
caption to the Act was entirely appropriate to cover
that subject, but was not appropriate to cover a
transfer of any other funds. Thereafter, some time
on the last day of that session of the Legislature, the
bill was amended by a free conference committee to
include the seventeen additional funds, as provided
for in Section 2 of the Act, Vernon’s Ann. Civ. St.
Art. 4385a. But no material change was made in the
title to the bill when this amendment was added. This
created an ideal situation whereby the members of
the Legislature might be misled by the title to the
Act. *
Under the decision in Gulf Ins. Co. v. James, supra,
we think the title of the Act is insuffrcrent to support a coni-
tion of the proviso authorizing revision of the index of a:single
county at any time other than at four year intervals. We must,
and have, given the Act a reasonable interpretation in harmony
with the Constitution and one which gives effect to each of its
provisions.
Hon. J. W. Edgar, page 9 (V-1195 -A)
As heretofore pointed out, the Bill as originally
introduced contained the proviso in a form that would have
authorized changing indices during the index period. The
caption of the Act was cast in general terms “providing for
an economic index for counties,, appropriate to cover the
object expressed in the proviso in the body of the Bill as
originally introduced. The conference committee changed
the proviso, circumscribed its effect, and changed the gen-
eral language of the title, fitting it to the proviso as amended.
If the Legislature had thought that the proviso after amend-
ment had the same meaning as before amendment, it could
have had no purpose in amending the caption. The fact is
that both the proviso and the portion of the title relating to
it were amended. The purpose and effect of the amendments
was to deny authority to revise the indices in any respect
during the four year index period.
Opinion V-1195 is affirmed. This includes that
part of the opinion which was not reconsidered here and which
held that the Commissioner, with Board approval, may recall
the index recently released for the ensuing four year period
and recompute the index if it is determined that the prior re-
lease was premature and that a recomputation is necessary
in order to give due consideration to -sudden marked decline
in the economic activity” of any county before the four year in-
dex becomes final.
SUMMARY
The Foundation School Program Act does
not authorize revision of the economic index of
a county after final computation of the four year
economic index for all counties of the State (af-
firming holding in Att’y Gen. Op. V-1195). This
,interpretation is confirmed by the fact that the
Act as originally considered by the Legislature
provided for revision “during any four-year in-
dex period,,, but these words were stricken from
the Act in conference committee and the caption
of the Bill was narrowed so as to provide that
revisions of the economic index were to be made
“at regular intervals.* This action was approved
by both Houses.
The Commissioners, with Board approval,
may recall the index recently released for the
ensuing four year period and recompute the in-
dex if it is determined that the prior release was
. . .
Hon. J. W. Edgar, page 10 (V-1195-A)
premature and tBat a recomputation is neces-
sary in order to give due consideration to “sud-
.
den marked decllpe in the economic activity” of
any county before the four year index becomes
final.
Yours very truly,
PRICE DANIEL
APPROVED: Attorney General
Charles D. Mathews I
First Assistant
BY
Price Daniel iA crett Hutchinson
Attorney General Exkcutive Assistant
EH:b