Honorable Dr. J. W. Edgar 

Commissioner of Education 

Texas Education Agency 

201 E. 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 to us 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 21 years on 

the first day of September of the year in which 

admission is sought shall be permitted to attend 

the public free schools oi the district in which he 

resides or in which his parent, guardian, or the 

person having lawful control of him resides at 

the trme he applies for admisston notwtthstandtng 

-- 

the fact that he may have been enumerated in the 

---- 

schoLasti<. census oi a different district or may 

have attended school elsewhere for a part 01 the 

yea*. 

“(c) The board oi trustees of any public free 

school distric-t of ILIS state shall admit into the 

public free schools of the district free of tuition 

all persons over SIX and not over 21 years of age 

at the beginning of the scholastic year if suchperson or his parent. guardtan or person having lawfulontrol resides within the school district. ” 

(emphasisadded). .-- 

p. 269 
. 

I . 

- 

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 of a minor ia that of his 

parents [Gulf, C&S. F. Railway Co. v. Lemons 206 S. W. 75 (Tex. 1918)], ----I 

the term has received a particular interpretation for school purposes since 

1905 when, in an opinion to the then State Superintendent of Public Instruction, 

the Attorney General said; 

“If the children have merely an ostensible 

and not a substantial residence in the district, if 

they were sent toRockdale for the sole purpose, 

or even for the main purpose, of participating in 

the advantages of the public schools of Rockdale, 

they are not entitled to free tuition. 

“But if they were sent to reside in Rockdale 

in good faith in order to give them suitable homes, 

with the intention on the part of the father, and of 

the persons in whose care he placed them, that the 

children should reside there permanently: if the 

educational advantages of the residents in Rockdale 

were merely inctdental to their going there, and 

other considerations induced the father, in good 

faith, to select that place as their home. I Lhink 

the children are residents of Rockdale within the 

meaning of the school law, and entitled to free 

tuition there, notwithstanding that the domicile of 

the father is elsewhere.” 

Referring to the foregoing language, this office In Attorney 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 IS established by the mere physical presence of Ihn minor in another district for the purpose of attending school. School Dstrict No. 1. 

p. 270 
Honorable Dr. J. W. Edgar, page 3 (H-63) 

etc. v. School District (Sup. Ct. Mich. 1926). 

211 N. W. 60; Yale v. West Middle School 

District, 59 Conn. 489, 13 L. 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). 

In the last cited opinion it was aaid, by way of illustration: 

“The question propounded by you involves a 

fact question. If the residence of the child in question has been established as a good faith substantial 

residence with her Aunt in District #2 it is our opinion that in such event the Aunt would be authorized 

to enumerate the child as a scholastic in District #2. 

However, if the 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 be enumerated 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 

B with grandmother or other relative to attend school 

in District B, but child spends weekends and summers 

in mother and father’s home. 

“Is minor child a bona fide resident of School 

District B for 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 a bona fide resident of 

District A for school attendance purposes? 

p. 271 
Y 

Honortble Dr. J, W. Edgar, page 4 (H-63) 

“(3) Mother-father are rtridtntr of Dirtrict 

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 a bona fide resident of 

District B for 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 B and resides with relative guardian. 

“Is minor child a bona fide resident of District 

B for 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 a bona fide resident of District 

B? 

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

District B is owned. 

“Is minor child a bona 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. 272 
Honorable Dr. 3. W. Edgar, page 5 (H-63) 

“Is the minor child a bona f:de resident of 

the relative’s district for school 5 tttndanct purposes? 

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

separated. 

“Is the minor child a bona fide resident of 

the relative’s district for school attendance purposes?” 

Each of these presents a fact question as to the 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 to be determined upon an examination of the detailed facts, which 

we do not have before us. In each instance the school official charged in 

the first place with responsibility for the decision will have to weigh 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 of his 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 

p. 273 
. . , - 

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

0 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 274