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--County suporintendent has no disoretion if 

proper application filed. 

Viesre in receipt of 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 

district tithe 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, Revised Civil Statutes, 

1911, provided: 

“Art. 2750. APPLICATION OF PARENT OR GUARDIAN. ,Any child lawfully enrolled 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 written application of the parent or guardian or person 

having the lawful aontrol of suoh child, filed with the county superintendeut; but no child shall be transferred more than once$ provided the 

party making 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 transfer of any child, its 

portion of the school funds shall follow and be paid over tothe district, 

or independent district, to which such ohild is transferred; provided no 

transfer shall be made after August first, after the enrollment was made." 

Dated April 2'7, 1920, letter book, vol. 235, page 932,,this depart; 

ment rendered au opinion to Miss Aunie Webb Rlauton, State Superintendent 

of Publlo Instruction, construing the 1911 statute inwhioh it was held 

that the weld "may" was used in a mandatory sense and should be oonetrued 

the ssme as "shall." The State Superintendent being dissatisfied withthe 

foregoing opinion requestedthat this 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, Bruce We Bryant, intichthe authorities were thoroughly reviewed3 and it was held that the word "may" as 

used in the 1911 statutes should be 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 transfer should 

be granted. 

Article 2760 was carried intothe 1926 revision as Article 2696, and 

the first sentence uas changed to read: 

"AZ@? child lawfully enrolled in 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 amended to read as follous: 

"Any child lawfully enrolled in aq district or iadepeadent district, may 

by crder of the coon* superintendent, be transferred to the enrollment of 

q other disttiot or independent district in 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 enyfransfer madeby 

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 school to which the transfer is asked. 

"Upon the oertifioatioa of the transfer of ruqr child, from one district to 

another district, by the county superintendent of the oounq inwhich the 

child resides at 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 after August 1st." 

In a letter opinion dated &y 18, 1938, written by Assfstaat Attorney Caneral U. J. Kemp, letter book 381, page 572, the oonference opinion by 

Mr. Bryant was followed, it belag pointed out that the "wording of the 

present statute has not changed materially from that of-the statute under 

consideration ia the opinion of Mr. Rryant," and the statute lairs held to be 

mandatory. A similar opinion was nritten by Dr. Xemp dated August 6, 1938, 

letter book 30~2* page 603. A oontrary opinion, ho'scver, WM rendered oa 

&W-oh 20, 1936, to Mr; Oliwr E. Pape, by the Ron. Joe J. &sup, letter 

book 371, nage 292, holding that it uas disoreticnary withthe aoun~ superintendent as to "hethor atransfer should be 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 placed a similar oonstruction upon Article 

2696, the construction and application being that the transfer should be 

made upon proper applicatioa being filed withiti the required time, subject 

to being set aside by the County Board 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 opinion that such departmemtal construction should be 

follonedr 

The opinion dated March 30, 1936, addressed to Mr. Alvin E. Pape 

appearing in letter book 371, page 292, is hereby overruled. 

It is our opinion that if parents wish to transfer their children 

from one district to another district in the same county and make the 

proper written application to the county school superintendent, it is 

mandatory that the county superintendent make such transfers, subject to 

be aetsside upon appeal to the county board of school trusteesof said 

county, as provided in Article 2696, Revised Civil Statutes, 1925. 

Yours very truly 

ATTOREEYGEW OF lEXAS 

By /s/Ceoil C. Csmaok 

,, CCC:pbp:cgar 

APPROVED JDLY 12, 1939 

/s/W. F. Moore 

FIRSTASSIST&ET 

ATTOFLNEY GENERAL 

Cecil C. Camiaok 

Assi stant 

APPROVED 

Opinion Comnittee 

ByREF 

Chairman