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AG Abbott's Constitutional Miss on Federal Education Dollars

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Can the Governor sign a funding assurance clause? Yes.

Why did the Texas Attorney General file a Petition on September 23, 2010 requesting set-aside of federal education dollars after the Secretary of Education agreed to hold the funds for Texas? Why was the AG FOR the Governor's written assurances of 3 fiscal years of Texas education funding in 2009 before the AG was AGAINST it in 2010? The answer includes cover-up of malpractice in 2009, when education money was wrongly diverted.

Texas obtained 2009 federal education money on the strength of Gov. Rick Perry's signature on July 1, 2009, to a federal application, with no alteration to the form. The purpose of the federal award to Texas was undeniably education. The Governor of Texas agreed, for fiscal years 2009, 2010, and 2011: "... the State will maintain State support for elementary and secondary education at least at the level of such support in FY 2006." This assurance is part of a legal clause called Maintenance of Effort (MOE) to show that the State will maintain support for education, clarified in pages upon pages of legal explanations issued by the federal government, including how the State could have requested a Waiver of the MOE requirements.

The Governor boldly signed on July 1, 2009. While his signature strays outside the top and bottom lines, he made the assurance of Maintenance of Effort with neither alteration nor tortured language.

Texas used the $3.2 billion in federal stimulus education money to replace state money siphoned from the education fund.

The federal government has now promised to set aside $830 million for Texas education, even though Texas altered the 2010 form, added limiting language on "specified" funding levels, and had the Commissioner of Education sign. The federal government accepted the signature without complaint, but not the alterations.

The U.S. Department of Education wrote to the Texas Commissioner of Education confirming conversations with Commissioner Scott (who signed the September 3, 2010 application after altering it) and other Texas State officials that the "State envisions submitting an application at a later date that does not contain conditional assurances." This U.S. Department of Education letter stamped September 8, 2010 makes clear the "shared goal of providing elementary and secondary school students in Texas the benefits of the Ed Jobs program."

After the Secretary of Education promised to hold Texas funds for Texas, the Attorney General of Texas filed an unnecessary pleading called "Petition for Review" in the Fifth Circuit. The Petition claims its purpose is to "prohibit Respondents (U.S. Department of Education) from distributing funds allocated for Texas under the Education Jobs Fund to any other state or for any other purpose, pending judicial review." Press reports make it clear: The Department of Education has already agreed not to give away Texas's allocated money and awaits the promised documents.

In 2009, at the time the federal moneys were converted from education purpose, the AG committed malpractice in failing to advise his clients and particularly the State of Texas that it was subject to "clawback" of $3.2 billion of money which was promised for allocation to education and then wrongly put to other use.

The AG was FOR the Governor committing the State to 3 fiscal years level of funding in 2009 before he was AGAINST it in 2010. The issue of whether the Governor could sign a funding assurance clause is apparently debatable for the Attorney General. The AG let the Governor sign in 2009 with no alteration of the form, knowing that the legislature makes appropriations and that legislative activity might intervene. The Texas Constitution Article 16, Section 6, specifically referenced by the AG, does not support the AG's arguments. He will find other law on legislative versus gubernatorial powers (and the general weakness of our governor's role) concerning his arguments, but no constitutional provision that prohibits a state official from signing the specific MOE. Article 8, section 6 of the Texas Constitution, not referenced by the Attorney General in his press release or brief, explains that no money is to be drawn from the Treasury "but in pursuance of specific appropriations; nor shall any appropriation of money be made for a longer term than two years." This provision clearly didn't concern the AG in 2009 as the Governor made written assurances, knowing that the Legislature makes appropriations.

The provisions which should have greatly concerned the AG deal with diversion of funds, referenced more than once in our State's Constitution. Article 8, Section 7 of the Texas Constitution: "The Legislature shall not have power to ... in any manner divert from its purpose, any special fund that may, or ought to, come into the Treasury; and shall make it penal for any person or persons to borrow, withhold, or in any manner divert from its purpose any special fund, or any part thereof."

Clearly, when the Governor signed the original 2009 MOE to receive $ 3.2 billion, the Governor and Attorney General had no problem taking the money and making the written promise to the Secretary of Education on July 1, 2009 "Here in Texas, public school funding and student performance is a top priority."

The AG's malpractice: failing to advise the State of Texas against reallocation of the $3.2 billion. In addition to the violation of Texas Constitutional language on "purpose" of the funds, the AG placed the taxpayers of Texas at risk for being required to pay the money back to the federal government.

The AG should advise the Governor to allow the Commissioner of Education to sign the application. The Department of Education accepted that surrogate signature in the September 2010 application, evidence of courtesy and toleration by the federal government. Up to the time of Mr. Abbott's Fifth Circuit filing, they were working with us. The AG must also advise the State that stealing money from education, this time just as with last time, raises the danger of federal demand for reimbursement. Texas officials also violated the spirit and the letter of the Texas Constitution, by thwarting the purpose of the money requested by Governor Perry in his July 2009 application and received by Texas.