# THEA~TORNEYGENERAI.

OF -XAS

Aus- II.TEXAS

September 

### 6, 1960

Dr. J. W.Edgar Commissioner of Education Austin, Texas

Dear Dr. Edgar: Opinion No. WW-931

Re: Application of Article 2900a to the Houston Independent School District under the stated facts.

Youhave asked for the' opinion of this office onthe following recitation:

"Onor about the 26th day of December, 1956, several plaintiffs filed anoriginal complaint in the United States District Court for the Southern District of Texas against the Houston Independent School District onthe authority of Brownv. Board of Education, to speed the process of desegregation of the Houston Independent School District. The Defendant District duly answered the complaint and the case was called to trial onRay20, 1957, after which the Court entered its order onthe 15th day of October, 1957, that the Houston Independent School 'District commence desegregation onanon-discrlminatory basis from andafter such time as necessary arrangements could bemade.

"Article 2900a, Texas Civil Statutes, was passed by the Texas Legislature. This Statute becameeffective August 23, 1957, after which the Houston Independent School District has made efforts to comply therewith. In order to comply with Article 2900a, the Houston Independent School District caused petitions to be executed bysome 87;OOOqualified electors residing in the district, ivhich wasfar in excess of the 20$ required bythe Statute. Thereafter anelection washeld in which the majority of the qualified electors voted not to abolish the dual public school system. In short,Dr. J. W.Edgar, page 2 (WW-931)

the Houston Independent School District has done everything possible to comply with both State and Federal law.

“Thereafter, onthe 12th day of August, 

# 1960, the Federal District Court issued Its order requiring desegregation in the Houston Independent School District commencing in the first grade. Acopy of said order is attached.

“Obviously, the Houston Independent School District is confronted with the dilemma of losing its accreditation andits Foundation Program Funds andcomplying with the mandate of the Federal Dlstrict Court. It should be observed that the dual public school system as such has not been abolished In that there will remain segregated systems except for the first grade in this present scholastic year. Moreover, the Board of Trustees has not abolished the dual public sohool system nor has the Board of Trustees abolished allowance for transfer out of the district. In short, the Federal District Court rather than the Board of Trustees has brought about the noncompliance of the Houston Independent School District with Article 2900a.”

Youstate that: “The dual public school system as such has not been abolished

. . .’ It is unnecessary to pass upon that question in the present opinion.

Theanswer to your question hinges upon the construction to be accorded Section 1of Article 2900a, which provides

as follows:

“That noboard of trustees nor anyother school authority shall have the right to abolish the dual public school system

. . .unless bya prior vote of the qualified electors residing in such district the dual school system is abolished.”

Prior to the enactment of Article 2900a, the Supreme Court of the United States hadheld that racial discrimination in public education wasviolative of the Constitution of the United States. Brownv. Board of Education, 

# 347 U.S.

# 483,

349 U.S. 294. However, as the Supreme Court of Texas pointed out in McKinney v. Blankenship, 282 S.W.2d 691, the Court In the Brown case did not direct Immediate andcomplete integration in all schools. TheCourt recognized, andhas since recognized,Dr. J. W.Edgar, page

# 3(W-931)

byalong line of decisions, that time would be required, the length of which would be largely dependent upon local conditions, for the full accomplishment of Its decree.

We believe that acareful reading of Article 2900a evidences recognition bythe Legislature of Texas that hasty andprecipitate action bythe school districts of the State in making the transition from racially segregated to integrated schools could conceivably Impede the effectiveness of

our schools. Thelanguage of the Act furnishes ample justification for the conclusion that it wasdesigned to legally achieve the maximumtime for making the transition.

It is significant that Section 1, above quoted, provides that "no school board or other school authority" shall have the right to abolish the dual system of oublic schools. Thepains andpenalties of the Act are evidently ap (17licable only if the dual sstem is abolished byeither: the school board, or (27 other school authority. The Act provides nopenalty where the dual system is abolished byjudicial decree. This leads us to the question: Bywhat authority has the dual system of public schools been abolished in the Houston Independent School District? Theschool board has entered noorder calling for abolition of the dual system. In fact, the board felt impelled, for reasons it deemed sufficient, to offer legal resistance to the entry of the order which wasin fact entered andIs nowin the process of perfecting anappeal from that order. In this connection, It Is significant that Article 2900a provides nopenalty where the dual system of public schools Is abolished byjudicial decree. Such Is the case here, andhence wemust conclude that the dual system of public schools for the Houston Independent School District has not been abolished bythe "board of trustees or other school authority," as prescribed by Article 2900a.

'Ihis Article provides in substance that anyperson whoviolates the Act will beguilty of amisdemeanor and shall be fined not less than $100nor more than $1000. Should we construe the Act as prohibiting abolishment of the dual school system byjudicial decree, such aswehave here, it would be tantamount to placing the local school board in alegal dllemma, with their prosecution assured byeither State or Federal authority, andfrom which there could benoextracation. If they sought to impede or obstruct the execution of the Federal Court decree the members of the school board would thereby render themselves subject to contempt bythe Federal courts. Onthe other hand, If they did not prevent execution of the decree they would subject themselves to aDr. J. W.Edgar, page 4 (WW-931)

possible fine of not to exceed $1000 under the State law. It has been said that acourt will never adopt aconstruction that

. . .will lead to absurd conclusions or consequences if the language of the enactment is susceptible of any other meaning. 39Tex.Jur., Statutes, Section 

## 118, Staples v. State, 112Tex.

# 61,

245 S.W. 639; Fenet v. McCuistion, 105 Tex. 299 147 S.W. 867; Shipley v. Floydada Independent School District (Comm.App.), 250S.W. 159.

Webelieve that the construction which wehave accorded to the statute is not only in keeping with the actual language employed but is calculated to achieve the evident purpose of the enactment aswell. This conclusion la in accordance with the argument advanced bythe Houston School Board.

SUMMARY

Under the facts as stated, the Board of Trustees of the Houston Independent School District, or other school authority, has not abolished the dual system of public schools within the meaning of Artlale 2900a, Vernon's Civil Statutes, andhence neither the school district nor its trustees are subject to the penalties of said Article.

Yours very truly,

WILLWILSON Attorney General of Texas

LP:dhs ByLeonard Passmore First Assistant

APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman Gordon Cass Houghton Brownlee, Jr. John Reeves

REVIEWED

FORTHEATTORNEY GENERAL BY: HenryBraswell