. ‘. 

~T~~EA~TORNENGENERAL 

OF TEXAS 

September 20, 1949 

Honorable L. P. Sturgeon, Director 

Foundation School Program Act Mvlrlon 

State Auditor's Cfflce 

Austin, Texas Optnlon Ho. V-910 

Re: Transfer of scholastics 

between Texas and other 

states as affecting average dally attendance for 

allocation of clarrroom 

teacher units under Art. 

III, S.B. 116, Acts 51rt 

Leg., R.S., 1949i 

Dear Sir: 

Your request for an opinion relate8 to tranufer of scholastics between Texas and other states as 

affecting average dally attendance upon which to allot 

classroom teacher unlta as provided In S.B. 116, Acts 

5;$" Leg., R.S., 1949. We quote the quertlona 8ubm%t- 

: 

"Is there a legal method nhereby schelaatlcs may be transferred Srom the census 

rolls of one State to ahother? If not, la 

there a legal method by which the average 

dally attendance established by these chlldren may be counted In determining eliglbllity.for claumoom teacher units?" 

Section 1 of Article VII of the Constitution 

of Texas reads In part: 

" ..* It shall be the duty of the Legislature of the State to establish and make 

suitable provision for the support and malntenance of an effecient system of public 

free 8choo1a1." 

Under this provision It la the mandatory duty 

of the Legislature to makes suitable provision Sor the 

. 
Hon. L. P.Sturgeon, Page 2 (V-910) 

support and maintenance of public free schools. The 

'legislative determination of-the methode, restrictions, 

and limitations necessary to make the mandate effective Is exclusive and final unless violative of the 

Copstltutlon. Jlumme v. Marrs, 120 Tex, 383, 40 S.W. 

24 31 (1931). 

tlon 

Section 3 of Article VII of the Conatltuof Texas provides: 

" 

. . . and all school districts may embrace parts of two or more counties, and the 

Legislature shall be authorlzed.to pass laws 

for the assessment and collection of taxes 

ln all said districts and for the management 

and control of the public school or schools 

of such districts..,." 

The property and funds of the public schools 

are held In trust by the district to be used for the 

benefit of the school children of the communltv or dlstrlct In which the propertles exist, or to which the 

school funds have been all allocated. In Love v. CIQ 

of Dallas, 120 Tex. 351, 40 S.W.28 20 (19311, it was 

said at page 27: 

"Since the Constitution, Art. 7, Sec. 3, 

contemplates that districts shall be organized and taxes levied for the education of 

scholastics within the dlstrlct, it Is obvious that the education of non-resident scholaat!ce la not within their ordinary functions. 

. . . 

If authority for transfer of scholastics to 

the census rolls of Texas from another state exists, we 

think It must of necessity exist by virtue of enactments 

of the Legislature specifically providing therefor, The 

Legislature has passed a number of laws relating to transfer of scholastics from one district to another under certain described clrcumstancea. These statutes are Articles 

2678a, 2681, 2695-2699, and 2904a, V,C.S. These statutes 

prescribe no procedure and provide no authority for 

transfer of scholastics between Texas and other states. 

We think the statutes clearly-contemplate transfers between districtsin one or more counties within the State 

of Texas. 
, 

. 

Hon. L. P. Sturgeon, Page 3 (V-910) 

In 1931 the Legislature enacted a law authorizing the Governor to appoint a Comlasloner to negotiate a compact, subject to approval of the Legislature, 

for the formation of state line school districts with 

New Mexico. Acts 42nd Iag., R.S., ch, 251, p. 418. 

Pursuant to this Act, the Commissioner was appointed 

and negotlated a compact which was approved and ratlfled. Acts 44th Leg,, R,S., 1935, ch. 220, P* 516. The 

court, In the case cited below, in considering the valldlty of the compact, said: , 

"Nowhere does the Texas Constitution authorize the State Legislature to fona or create school districts embracing parts of two 

or more statee.,.," 

and held the compact invalid. The court recognized the 

maxim Ek~resslo unlua est excluslo alterlua (the l xpreealon of one thing is exclusive of another l p lied In 

Parks v. West, 102 Tex. 11, lll.S.W. 726 lgo!), stating that this rule of y&y~lon has long been follolmd 

;z the Texas eourtao e Nexlco School Dlatrlct 

1 vr Fxwe& Indenendent School Dlbtrlct, 1@4 S W 

26 b42 (T APP,, 1944) Ye think this rule ip: 

plies to the queitlons submltied, The LeglalatUra not 

having provided for transfer of scholastlcs between Texas 

and other states, It follows that transfers mey not be 

legally made. 

Further, we think the general census statutes, 

Articles 2816-2822, V.C,S., clearly contemplate census 

rolls containing the names of resldents of the respective 

districts within the State of Texas. 

Article 2816, V,C,S,, provides In part: 

" . . . the census trustee .-* shall take 

a census of all the children 1-O who are resldents of the school district..,," 

Manifestly, a scholastic, In order to be lneluded In the census, must be a resident of some school 

district in Texas. In Love v. Cltr ef Dallas, supra, 

the court said at page 23: 

"It is clear, we think, from a conslderatlon of the various transfer statutes ..* 

that scholastics cannot be transferred under 

. 
Iion, L. P. Sturgeon, Page 4 (V-910) 

any circumstances, from the district in 

which they reside to another district, except under the transfer statutes," 

There Is no provision for transfer of scholastics to or from the census rolls of Texas fran or to 

the rolls of another state. 

However, Article 26gga, V,C,S., reads In part: 

"Any child who would be entitled to 

attend the public school of any district 

that lies on the border of Louisiana, Arkansaa, Oklahoma and New Mexico, and who 

may find It more convenient to attend the 

public school In a district of a County of 

said State contiguous to said dlatrlct In 

Texas, may have the State and County per 

capita apportionment of the Available School 

Fund paid to said district in aald State and 

may have additional tuition, If necessary, 

paid by the district of his residence on 

such terms as may be agreed upon between the 

trustees of the receiving district and the 

trustees of the district of realdence of 

such child,,,," 

This statute provides a method by which a 

resident scholastic of Texas may attend school In a 

district of a county of another state contiguous to 

the district of residence and have per capita and tultlon paid to the receiving district, but doers not authorize the Comptroller to draw warrants in distribution 

of the State*8 Available School Pound payable to school 

districts of other states contiguous to Texas, Attorney Generalus Opinion NoJo, O-5805* The statute contemplates an agreement between the Texas district 

and the contiguous out-of-state district under which 

the Texas district pays the amount (Including, but not 

limited to, per capita apportionment received from the 

State and county) agreed upon to the out-of-state .dlatrlct. Attorney General's Opinion No, 0-6332, 

It appears that Article 26gga, supra, provides the only method by which a Texas scholastic leay 

attend an out-of-state school, Specific provision Is 

not made for out-of-state pupils to attend Texas 

schools. In Love v, City of Dallas, supra, It was 
Hon. L. P. Sturgeon, Page 5 (V-910) 

observed that the Legislature Is without power to requlpe school districts to receive non-resident scholaetics without just compensation, Non-residents there 

referred to were residimts of Texas.. Undoubtedly the 

rule applies with peculiar force to non-reside&r of 

Texas. However, it waa p6lnted out that: 

” 0.. In vlew of the long operation of 

the transfer statutes, we believe that w@re 

a school district has facilities and teachers in excesrs of those necessary for its 

own scholastica, the atate haa the power $0 

require it, to accept transfers froa another 

district, but only upon the payment of reasonable compensation therefor....” 

We conclude that scholaatlcs may not be transferred to or from the cenmm rolls of Texas from or to 

those of other etatea rime such pupil8 do not come rithin the general transfer statutes. 

Admission to Texas schools on the same basis 

upon nhich Texas scholastics may attend schools of adjoining states as provided in Art. 2699a, mpra, is a 

matter addressing itself to the dircretion OS local 

boards involved; It Is pur opinion that ii they are 

admitted, just coapensation must be 9;rld;d y ;he 

outprtate dirtrict of reMdance. 

g ? l ll4n, rupra, it wae said at page 30: 

e e Ia 

‘.** a round discretion is left to the 

loarl rchool board8 to determine uhether ..* 

the adlnisrion of noti-resident schelastics 

will be prejudicial to the acholastica o? 

their districts and uhether e0e the statutory 

See uould be compenratory O.O oontrol of our 

publlo mhooll ha8 8lwayr been tested in 

local bo@rdr +.* dimration to be exercired 

by the local boards will not be disturbed by 

the courta, except in CaueLI OS manifest 

8bu8e. ’ 

As MLI already been pointed out, the court in 

this case was considering echolastics who were reeldents of Texas; but we think, eonaidering pertipent 

mtatutes, that local boards have similar pouer to exclude.or edmU non-resident.8 o? Texas, 
Hon. L. P. Sturgeon, Page 6 (v-910) 

. 

We do not consider the rule exnreeslo unlua, 

supra, applicable to deny district8 the right to receive pupils from adjoining states under Art. 2699, 

aupra, ~a8 Its application *ouXd not aaalat in detersifir 

lngand giving effect to leglalatlV8 %ntente 39 'lb& 

Jur. 190, Statutes, Sec. 100, and caaas there cite& 

Seatlon 5 of Article VfT of the Constitution 

of Texas reads In part: 

v,.,, the available soho fund 

ln provided shall be distributed to 

several counties according to their 

astlc population,.,." 

hem 

tha 

acholArticle 2665, V,c.S., provides for apportlm 

ment of the Fund pursuant to the Csnnstitutlon and cotalns much of the language of Section 5 of Article m. 

Thus It la apparent that per capita apportion- 

;rAy not be paid districts for acholaatlce raSl&- 

lng In other states and attending schools ln 'paras. 

Proper charge, therefore, sufficient to cover the coat 

of Instruction must be made by the Texas dlatrictr 

Since the coat OS Instruction muat be pxwr!oviddl by the sending district, we conclude aeholastica fmD 

other states attending Texas aahoola ahbuld not, %nd 

could not legally, be counted in eatabllshlng 8-w 

dally attendance for determlnlng allocatloti of ctiaar0ala 

teacher units* Flowever, we think average dally attendance established by Texas scholaStica attending i3cho@~b 

of other states may be taken into account in allocating 

classroom teacher units to the dlatricrt of residence. 

This conclusion is reached as a necssaary inference from the intent of the Oilmer-Aikln Acts and 

Article 26gga, V,C.S, The latter statute provides that 

any child residing In a district adjoining another state 

who finds it more convenient to attend school In a dlatrict of a county of the adjoining state contiguous to 

the Texas dlatrict may do so and have his proportionate 

share of State and county available funds, plus neceasary tuition, paid to the out-of-state district by the 

dlatr2ct of rasldence. The Texas district haa the 

responsibility of eduaatlng the child and average daily 

attendance established by each child residing In the 

district should be considered by the State Commlasloner of Eduaatlon in determining the total funda neceaeary to provide a foundation school program In the 
Han, L. P. Sturgeon, Page 7 (v-910) 

district, regardless of where such child actually attends school. Otherwise, the amount of foundation 

school funds for which the district la eligible would 

be reduced and the district financially penalleed. 

Similarly, average dally attendance established by a 

child attending school In an out-of-state district 

should be counted in allocating classroom teacher unit8 

to the district in order to provide adequate teachers 

Sor any out-of-state students that may attend schools 

of the district where the coat of instruction la paid 

to the district by the out-of-state district of realdence. 

Power of the Legislature to provide by general law for transfer of scholastics to or from Texas 

froin or to districts of other states contiguous to 

Texas districts and count average dally attendance 

established by such transferees attending Texas public 

schools is not before us for determination and we express no opinion with regard thereto., 

Scholastics may not be transferred between Texas and other 8tate8, and average 

dally attendance established by non-resident 

pupils In attendance at Texas public schools: 

may not be considered in determining allocation of classroom teacher units, but average 

dally attendance established by Texas acholaatlca attending schools of other states msy 

be counted in allocating classroom teacher 

units to the district of residence. (Construing Arts, 2695-26gga, and related atatutea and provlalona of the Constitution of 

Texas as affecting application of Subsection 

(1) of Section 1, Art. III, SOB, 116, Acts 

Slot Leg., R,S., 19490) 

Very truly yours 

APPROVED: 

e* 

FIRST ASSISTANT 

ATTORNEY GENERAL 

ATTORNRY GENERAL OFTEXAS 

*y/-d*LL 

Everett Hutchinson 

Assistant 

EH:db