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 and Article 

2338-1, Vernon's Civil 

Dear Mr. Llndsey: Statutes. 

You have requested our opinion on the construction 

of Article 2898 and Article 2338-1, Vernon's Civil Statutes. 

Your specific questions read as follows: 

"1 . Was Article 2898 repealed by impllcation with the enactment of Article 2338-11 

“2. If It was not repealed by lmpllcatlon, 

can Juvenile Probation Officers, Asslatant Dlstrict Attorneys, and the Texas Youth Council be 

called upon to furnish their services In admlnlsterlng the law?" 

Article 2898, Vernon's Civil Statutes, provides: 

"Any child within the compulsory school 

attendance ages who shall be Insubordinate, 

disorderly, vlclous or immoral In conduct, or 

who persistently violates the reasonable rules 

and regulations of,the school which he attends, 

or who otherwise persistently misbehaves therein so as to render himself an Incorrigible, shall 

be reported to the attendance officer who shall 

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 a bond in 

the sum of not less than ten dollars, conditioned 

that said child shall attend school regularly and 

comply with all the rules and regulations 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- 

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Hon. W. C. Lindsey, page 2 (M-3 ) 

ditlons of his parole, said attendance officer 

shall proceed against such child before the judge 

of the juvenile 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 same manner 

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. The judge of said 

court may, after a fair and Impartial hearing 

given to said child, again parole said child, requiring such bond as he may deem prudent, and require said child to again enter school. If said 

child shall violate the conditions of the second 

parole and shall be convicted of same he shall be 

committed to 8 suitable training school 8s m8y be 

agreed upon by the parent of the child and the 

judge of the juvenile 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, and article 2898, we think, wisely 

places the authority to determine this question In 

the juvenile court, and only authorizes that tribunal to keep the child from school when Its conduct is vicious or immoral, or it so persistently 

violates the rules of the school, or otherwise so 

persistently misbehaves therein a? Lo be deemed 

incorrigible. Even In cases comrllg under this 

provision the child can only be deprived of the 

right to attend school as a last resort, and must 

then be committed to a training school. 

“This statute Is mandatory In its language, 

and under well settled rules of construction the 

procedure and method prescribed by the statute 

is exclusive, and when some other method Is followed 

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on's 

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Hon. W. C. Lindsey, page 3 (M-3 ) 

the proceeding is unauthorized and void. Millhollon v. Stanton Independent School District 

(Tex.Com.App.) 231 S.W. 332." 

Article 2338-l was enacted subsequent to the above 

cited case. The purpose of Article 2338-1, Vernon's Civil 

Statutes, Is stated In Section 1 as 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; and when such 

child Is removed from his own family, to secure 

for him custody, care and discipline as nearly 

as possible equivalent to that which should 

have been given him by his parents. 

"The principle Is hereby recognized that 

children under the jurlsdlctlon of the court 

are wards of the state, subject to the discipline and entitled to the protection of the 

state, which may Intervene to safeguard them 

from neglect or Injury and to enforce the legal 

obligations due to them and from them." 

Section 3 of Article 2338-1, Vernon's Civil Statutes, 

defines the term "delinquent child" ass 

If 

. . . any female person over the age of 

ten (10) years and under the age of eighteen 

(18) years and any male person over the age 

of ten (10) and under 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 and supplemental to Its provisions. 

You are therefore advised that the school attendance 

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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 and the 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, may be 

called upon to furnish their services whenever it is determined that a child,habitually violates a compulsory attendance 

law of this State. 

SUMMARY 

----_-- 

The school attendance law is to be enforced 

by the attendance officer appointed for such 

purpose pursuant to the provisions of Article 

2895, Vernon's Civil Statutes. The juvenile 

officers, pursuant to the provisions of Article 

2338-1, Vernon's Civil Statutes, may be called 

upon for their services whenever it is determined 

that a child habitually violated a compulsory 

attendance law of this State. 

truly yours, 

JR:mh 

Prepared by John Reeves 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

W. V. Geppert, Co-Chairman 

W. 0. Shultz 

James Quick 

Wade Anderson 

Marietta Payne 

STAFF LEGAL ASSISTANT 

A. J. Carubbi, Jr. 

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