Honorable Dr. J.W. Edgar

Commissioner of Education Texas Education Agency 201E. Eleventh Street Austin, Texas 78701
Dear Dr. Edgar: Opinion No. H-63 Re: The application of the

Texas laws governing residence of minor school-age children ,for public school altrndance purposes. You have aubmitted several specific questions tous concerning the appropriate dietrict for a minor to attend school, Generally attendance is governed by $21.031(b) and (c) of the Texas Education Code:

“(b) Every child in this state over the age of six years and not over the age of 21years on the first day of September of the year inwhich admission is sought shall be permitted to attend the public free schools oi the district inwhich he resides or inwhich his parent, guardian, or the person having lawful control ofhim resides at the trme he applies for admisston notwtthstandtng

-- the fact that he may have been enumerated inthe ---- schoLasti<. census oi a different district or may have attended school elsewhere for apart 01the yea*.

“(c) The board oi trustees of any public free school distric-t of ILISstate shall admit into the public free schools of the district free of tuition all persons over SIXand not over 21years ofage at the beginning of the scholastic year ifsuchperson or his parent. guardtan or person having lawfulontrol resides within the school district. ” (emphasisadded). .--

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Honorable Dr. J.W.Edgar, page 2 (H-63)

While “residence” may have various meanings for various purposes, and despite the fact that normally the residence ofa minor ia that of his parents [Gulf, C&S. F. Railway Co. v. Lemons 206S.W. 75 (Tex. 1918)], ----I the term has received aparticular interpretation for school purposes since 1905when, inan opinion tothe then State Superintendent of Public Instruction, the Attorney General said;

“If the children have merely an ostensible and not a substantial residence inthe district, if they were sent toRockdale for the sole purpose, or even for the main purpose, ofparticipating in the advantages of the public schools ofRockdale, they are not entitled to free tuition.

“But ifthey were sent to reside in Rockdale in good faith in order to give them suitable homes, with the intention on the part ofthe father, and of the persons inwhose care he placed them, that the children should reside there permanently: if the educational advantages of the residents in Rockdale were merely inctdental totheir going there, and other considerations induced the father, ingood faith, to select that place as their home. ILhink the children are residents of Rockdale within the meaning of the school law, and entitled tofree tuition there, notwithstanding that the domicile of the father is elsewhere.” Referring tothe foregoing language, this office InAttorney General Opinion No. O-586 (1939) added:
“While we recoen? re that a rmnor child may acquire a bona ride residence separate and apart from its parents wlthin the contemplation of our school laws, we do not think that such bona fide residence ISestablished by the mere physical presence of Ihnminor inanother district for the purpose of attending school. School Dstrict No. 1.

p. 270Honorable Dr. J.W. Edgar, page 3 (H-63) **etc.** v. School District (Sup. Ct.Mich. 1926). 211N.**W.** 60; Yale v. West Middle School District, 59 Conn. 489, 13L.R.A. 16l;Anno. 26 L.R.A. 581.” These rulings have been followed in subsequent opinions of the Attorney General Nos. O-762 (1939); O-1384 (1939) and O-7176 (1946). Inthe last cited opinion it was aaid, by way of illustration:

“The question propounded byyou involves a fact question. Ifthe residence of the child in question has been established as agood faith substantial residence with her Aunt in District #2it is our opinion that in such event the Aunt would be authorized to enumerate the child as a scholastic in District #2. However, ifthe residence of the child in District #2 is merely an ostensible residence for the purpose of attending school there and not a good faith substantial residence, then in such event our ruling would be that the child should beenumerated by its parent’s in District #l. ” Your precise questions to us are as follows:

“(1) Mother and father have and reside at home in School District A, minor child is living in District Bwith grandmother or other relative toattend school in District B, but child spends weekends and summers in mother and father’s home.

“Is minor child abona fide resident of School District Bfor school purposes?

“(2) Mother and father are separated without legal proceedings being instituted. Mother, a resident in District A. Father, a resident in District B. The minor child is living at all time with mother in District A, and attends school in District A.

“Is the minor child abona fide resident of District A for school attendance purposes?

p. 271Y
Honortble Dr. J,W. Edgar, page 4 (H-63)
“(3) Mother-father are rtridtntr ofDirtrict A. Minor child, legal disabilitiee not removed by court, liver in apartment in District B, attends school and work8 to support himself in District B. Visits on weekends in mother-father home.

“Is minor child abona fide resident of District Bfor school attendance purposes?

“(4) Mother-father art residents of District A. A guardianship, pursuant to law, has been obtained on minor child by a relative, a bona fide resident in District B. Minor child attends school in District Band resides with relative guardian.

“Is minor child abona fide resident of District Bfor school attendance purposes?

“(5) Mother-father have a residence (own home) in District A. Mother-father also have a residence (rented home) in District B. The family including minor child spend about equal time at the two residences. The minor child attends school in District B.

“IS minor child abona fide resident ofDistrict B?

“(6) Same situation as in 5except the rtsidence in District A is rented, and the residence in District Bis owned.

“Is minor child abona fide resident of District B?

“(7) Mother-father are separated. No court order. Child living with relative for all purposes with consent of mother and father. Child attending school in District where relative resides.

p. 272Honorable Dr. 3.W. Edgar, page 5 (H-63)

“Is the minor child a bona f:de resident of the relative’s district for school 5tttndanct purposes?

“(8) Same as 7except mother-father not separated.

“Is the minor child abona fide resident of the relative’s district for school attendance purposes?” Each of these presents a fact question as tothe reason for the different residences, whether it is a bona fide residence as opposed to an
“ostensible residence for the purpose of attending school. ” Each instance will have tobe determined upon an examination of the detailed facts, which we do not have before us. Ineach instance the school official charged in the first place with responsibility for the decision will have toweigh all the facts and conclude that the residence is either bona fide or merely ostensible. SUMMARY Residence of a minor for the purpone of determining his eligibility for free public education under $21.031 of the Texas Education Code, normally is that ofhis parents. Whether residence elsewhere qualifies the minor will depend upon whether the residence is bona fide or is merely an ostensible residence for the purpose of attending a different school. Very truly yours, A 

# Cl’Attorney General of Texas

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Honorable Dr. J.W. Edgar, page 6 (H-63) 0

DAVID M. KENDALL, Chairman Opinion Committee

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