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PHOENIX — Republican lawmakers voted Tuesday to make an end run around the budget by shifting around some money to fund public and private school vouchers for some students.

On an 8-3 vote, the Joint Legislative Budget Committee directed state schools Superintendent Tom Horne to take $5 million out of the funding for public schools and use it instead to finance the voucher programs, which were left out of the $9.9 billion budget.

The money will come from the more than $3.3 billion lawmakers allocated in state aid for public schools. But legislative staffers conceded there will be extra money in that account only if the number of children who enroll in public schools this year is less than anticipated. If enrollment doesn't drop, a $5 million transfer could leave the state short of school funds.

House Majority Leader Tom Boone, R-Peoria, told Horne he doesn't even need permission of the committee or the entire Legislature to make the transfer.

But Horne isn't going to do that, at least not yet. He said doing what the committee directed would be illegal and could subject him to personal liability for misspending public money.

Horne said at the very least, he needs the permission of Bill Bell, director of the state Department of Administration. To that end, Horne wrote Tuesday to Gov. Janet Napolitano, Bell's boss, asking for her OK to shift the funds.

An aide to Bell said the request is under study.

Horne, however, already is preparing for a rejection, given Napolitano's general opposition to vouchers. He said his next step will be to ask Attorney General Terry Goddard if the fund shift is permissible.

If Goddard says no, Horne said, he will file suit.

Lawmakers first funded the vouchers in 2006, with $2.5 million for a program aimed at children with certain disabilities and an equal amount for children who had been in foster care.

The state Court of Appeals ruled earlier this year that the vouchers violate a constitutional provision that bars the use of state tax dollars to aid private or parochial schools.

The court ruling opened the door for budget negotiators, looking for places to cut spending, to not fund the programs for the new fiscal year that began July 1.

After the budget was adopted, though, the state Supreme Court gave permission for the programs to continue while it reviewed their legality.

Boone said Tuesday that the court's ruling gives Horne the legal go-ahead to use any money he can find.

But Horne, who is an attorney, said Boone is misreading what the high court has done.

He said the order simply permits the continued use of state funds. But Horne said the high court cannot — and did not — tell him to disregard the fact that the Legislature did not fund the programs.

The failure to fund the programs this fiscal year has led to protests from parents who said their children had fallen behind in public schools. With the vouchers, they said, their kids were finally getting the special attention they needed.

Some parents said they were trying to find the money to pay the tuition for the new school year; others are hoping for scholarships.

Napolitano has said she does not believe public dollars should go to private and parochial schools. But she agreed to these two programs in 2006 as part of a political deal to get some of her priorities approved, including full funding for all-day kindergarten.