Honorable W. C. Lindsey Opinion No. M-3

Criminal District Attorney Jefferson County Courthouse Re: Construction of Article Beaumont, Texas 2898, Vernon's Civil Statutes andArticle 2338-1, Vernon's Civil DearMr. Llndsey: Statutes.

Youhave requested our opinion on the construction of Article 2898 andArticle 2338-1, Vernon's Civil Statutes. Your specific questions read as follows:

"1

. WasArticle 2898repealed by impllcation with the enactment of Article 2338-11

“2. If It wasnot repealed by lmpllcatlon, can Juvenile Probation Officers, Asslatant Dlstrict Attorneys, andthe Texas Youth Council be called upon to furnish their services In admlnlsterlng the law?" Article 2898, Vernon's Civil Statutes, provides: "Anychild within the compulsory school attendance ages whoshall be Insubordinate, disorderly, vlclous or immoral In conduct, or whopersistently violates the reasonable rules andregulations of,the school which he attends, or whootherwise persistently misbehaves therein so as to render himself an Incorrigible, shall be reported to the attendance officer whoshall proceed against such child In the juvenile court, If such child is found guilty In said court the judge shall have the power to parole said child, after requiring the parent or other person,standlng ln'parental relation, to execute abond in the sumof not less than ten dollars, conditioned that said child shall attend school regularly and comply with all the rules andregulations of said school. If the superintendent or principal of any school shall report to the attendance officer for said school that said child has violated the con- -9-Hon. W.C. Lindsey, page 2 (M-3 )

ditlons of his parole, said attendance officer shall proceed against such child before thejudge of thejuvenile court, and if such child shall be found guilty of violating the conditions of said parole, the bond shall forthwith be declared forfeited and shall be collected in the samemanner as other forfeited bonds under the general laws of this State, and the proceeds of same shall be paid into the available school fund of the common or independent school district. Thejudge of said court may, after a fair and Impartial hearing given to said child, again parole said child, requiring such bond as hemaydeemprudent, and require said child to again enter school. If said child shall violate the conditions of the second parole and shall be convicted of samehe shall be committed to 8 suitable training school 8s m8y be agreed uponby the parent of the child and the judge of thejuvenile court In which the child is convicted

.‘I
In construing the provisions of Article 2898, Vernon’s Civil Statutes, above quoted, In Bishop v. Houston Independent School Dlst., stated: 35 S.W.2d 465 (Tex.Clv.App., 1931), the Court

“It is clear from the language of the statute that Its primary purpose is to compel the regular presence in school of every child subject to Its provisions for the length of time specified. This purpose might be often defeated If It was left to the school authorities to determine whether a particular child should be denied the rlght of attending school, andarticle 2898, wethink, wisely places the authority to determine this question In thejuvenile court, andonly authorizes that tribunal to keep the child from school whenIts conduct is vicious or immoral, or it so persistently violates the rules of the school, or otherwise so persistently misbehaves therein a? Lobe deemed incorrigible. EvenIn cases comrllg under this provision the child can only be deprived of the right to attend school as a last resort, andmust then be committed to a training school.

“This statute Is mandatory In its language, andunder well settled rules of construction the procedure andmethod prescribed by the statute is exclusive, andwhensomeother method Is followed

- lo-on's nt - Hon. W.C. Lindsey, page 3 (M-3 )

the proceeding is unauthorized andvoid. Millhollon v. Stanton Independent School District (Tex.Com.App.) 

### 231S.W. 332." Article 

### 2338-lwasenacted subsequent to the above cited case. Thepurpose of Article 

### 2338-1,Vernon's Civil Statutes, Is stated In Section 1as follows:

"The purpose of this Act is to secure for each child under Its jurisdiction such care, guidance and control, preferably in his own home, as will serve the child's welfare and the best Interest of the state; andwhensuch child Is removed from his ownfamily, to secure for himcustody, care anddiscipline as nearly as possible equivalent to that which should have been given himbyhis parents. "The principle Is hereby recognized that children under the jurlsdlctlon of the court are wards of the state, subject to the discipline andentitled to the protection of the state, which mayIntervene to safeguard them from neglect or Injury and to enforce the legal obligations due to themand from them." Section 

### 3of Article 

### 2338-1,Vernon's Civil Statutes, defines the term "delinquent child" ass

If

. . . any female person over the age of ten (10) years andunder the age of eighteen 

### (18)years andanymale person over the age of ten (10) andunder the age of seventeen 

### (17)years, except as provided in Section 6 of this Act, who

"(e) habitually violates a compulsory school attendance law of this State; or 11 II

. . . . Thus it is seen that the provisions of Article 

### 2338-1, Vernon's Civil Statutes, does not repeal the provisions of Article 2898, Vernon's Civil Statutes, but on the contrary Is cumulative of andsupplemental to Its provisions.

Youare therefore advised that the school attendance

- 11-Hon. W.C. Lindsey, page 4 

### (M-3 )

law is to be enforced by the attendance officer appointed for such purpose or in the absence of such attendance officer by. the school superintendent andthe peace officers of such county or district. Article 

### 2895,Vernon's Civil Statutes. However, the juvenile officers and other administrators of the provisions of Article 

### 2338-1,Vernon's Civil Statutes, maybe called upon to furnish their services whenever it is determined that a child,habitually violates a compulsory attendance law of this State. SUMMARY ----_-- Theschool attendance law is to be enforced bythe attendance officer appointed for such purpose pursuant to the provisions of Article 

### 2895,Vernon's Civil Statutes. Thejuvenile officers, pursuant to the provisions of Article 

### 2338-1,Vernon's Civil Statutes, maybe called uponfor their services whenever it is determined that a child habitually violated a compulsory attendance law of this State. truly yours,

JR:mh Prepared byJohn Reeves Assistant Attorney General APPROVED: OPINIONCOMMITTEE HawthornePhillips, Chairman W.V. Geppert, Co-Chairman W.0. Shultz JamesQuick WadeAnderson Marietta Payne STAFFLEGAL

ASSISTANT A. J. Carubbi, Jr.

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