### TIEBEATRMXRNEY 

## GENERAL

GERALDC.MANN AURT~N m.X%x~s

Honorable

Don D. Parker County Auditor Eastland

County Eastlaud,

Texas
Dear Sir: Opinion No. O-1073 Be: Transfer

of scholastics

niihin the county--Countysuporintendenthas no disoretion if proper application filed. Viesre in receiptof your letter of June 27, 1939, in which you 'submit the folloflng

question

to this departmeat

for an opinion: "If parents

wish to tmusfer their children from one district

to another districttithe same county,aud make the proper writtea application to the Comfy Sohool Superintendent, is it optional

or mandatory

with the County School~Superintendent to either appliove

or disapprove

suoha trausPer?" Prior to the 1925 revisicm, Artiole 2760,RevisedCivil Statutes, 1911, provided:
“Art. 2750. APPLICATION OF PARENT OR GUARDIAN. ,Any child lawfullyenrolled in aqy district, oi.iudependent

ds$.t+&t,

_ 3 be transferred to the enrollments

of any other~district, or independeu dietriot, intie same county uponthe writtenapplication of the parent or guardian or person having the lawful aontrol of suoh child,filed with the county superintendeut;

but no child shallbe transferred more than once$ provided the partymaking applioation for transfer'shall state in said applioation that it is the bona fide intention of applioaut

to send ohild to the sahool to which transfer is asked. Dpon the transferof any child, its portionof the school funds shall follow and be paid over tothe district, or independent

district,

to which such ohild is transferred; provided

no transfershallbe made afterAugust first, after the enrollment was made." DatedApril 2'7,

1920, letterbook, vol. 235, page 932,,this depart; ment rendered

au opinion

to Miss Aunie Webb Rlauton, State Superintendent of Publlo Instruction, construing

the 1911 statuteinwhioh it was held that the weld "may"was used in a mandatorysense and shouldbe oonetrued the ssme as "shall." The State Superintendent being dissatisfied

withthe foregoing

opinionrequestedthatthis department reoonsider~its

former cmstruotion ad in response thereto,

the Attorney

General*s

Office issued its conferenoe

opinion

No. 2444,

Vol. 57, page 303, dated July 29, 1922,Hon. Don D. Parker,page 2 (O-1073)

mitten by Assistant Attorney General, BruceWe Bryant,intichthe authorities

were thoroughly

reviewed3

and it was heldthat the word "may"as used in the 1911 statutes shouldbe construed as "shall"and mandatory. Therefore,

upon application

for transfer

being properly.filedwithte OOU~QV superintendent,

he had no discretion in the matter and the transfershould be granted.

Article 2760was carried intothe 1926 revision as Article 2696, and the first sentence

uas changed

to read:
"AZ@? child lawfully

enrolledin any distrlot, or independent

district,

ma atthe disoretioa

of the county superintendent be transferred

to the enro

-3 lment of any other district

. . ."

l@ Acts 1935, 44th Legislature, page 488, oh. 201,Article 2696, R.C.S. 1925,nas amendedto read as follous: "Any child lawfullyenrolled in aq district

or iadepeadent

district,

may by crder of the coon* superintendent, be transferred

to the enrollment

of q other disttiot

or independent

districtin the same county upon a writ. ten applioatioa

of the parent or guardian or persoa.having

la&u1 control of suoh child, filed with the oounty superintendent; povided that any distriot or indepeadent distriot

being dissatisfied

with enyfransfermadeby the county superintendent may appeal frcrm

such action to the county board of -tees of said countyuho shall have the right to annul and cancel the Wansfer allowed by 4he oounty superiatendsnt. "The applioaat

shall state in said application that it is his bona fide intention

to send said child to the schoolto which the transfer is asked. "Upon the oertifioatioa of the transferof ruqr child,from one district to another

district,

by the county superintendent of the oounq inwhich the child residesat the time of the transfer, the State Department of Rduoation shall authorize

the Stats Treasurer to pay over directly the per capita apportionmen%, in independent distriots

of five hundred (500) or more scholastic:

population',

to the district

toahioh such child is transferred; and in all other diatriots,.;.to county superintendents, to be paid iy him to the respective

distriots

towhich such children are transferred3

provided,

ao transfer

shallbe made afterAugust 1st."
In a letter opinion dated &y 18, 1938, writtenby AssfstaatAttorney Caneral

U. J. Kemp, letter book 381, page 572, the oonference opinion

by Mr. Bryant

was followed,

it belag pointedout that the "wording of the presentstatute

has not changed

materially

from that of-thestatute under consideration

ia the opinionof Mr. Rryant," and the statute

lairs held to be mandatory. A similaropinion was nritten by Dr. Xemp datedAugust 6, 1938, letter book 30~2*

page 603. A oontrary opinion,

ho'scver,

WM renderedoa &W-oh 20, 1936, to Mr; Oliwr E. Pape, by the Ron. Joe J. &sup, letter book 371, nage 292, holdingthat it uas disoreticnary withthe aoun~ superintendent

as to "hethoratransfer shouldbe made.Hon. Don D. Parker, page 3 (O-1073)

We are infonaed-that the Department

of Education

has followed

the opinion

by Mr. Kemp, and has placeda similar oonstruction upon Article 2696, the construction and application

being that the transfer should be made upon proper applicatioa being filedwithiti

the required

time, subject to being set aside by the CountyBoard of Trustees, if within their judgment, the transfer should not have been made. Taking into consideration the 1935 Pmendnent of Artiole 2696,prior opinions

by this Department, and their appllcatioa.bythe Departneut

of Eduoation,

we are of the opinionthat such departmemtal construction

should be follonedr

The opinion

datedMarch 30, 1936, addressed to Mr. Alvin E. Pape appearing

in letter book 371, page 292, is hereby overruled.
It is our opinionthat if parents wish to transfer

their children from one districtto another district

in the same countyand make the proper written application to the countyschool superintendent, it is mandatory

that the countysuperintendent make such transfers, subject

to be aetsside

upon appealto the county board of school

trusteesof said county,

as providedin Article 2696,Revised Civil Statutes, 1925.
Yours very truly

ATTOREEYGEW OF lEXAS By /s/Ceoil C. Csmaok

,, CCC:pbp:cgar APPROVEDJDLY 12, 1939 /s/W. F. Moore FIRSTASSIST&ET ATTOFLNEY

GENERAL Cecil C. Camiaok Assi stant

APPROVED OpinionComnittee ByREF Chairman