. . . 

THE ATBTORNE:P GENEOF TirEas 

Honorable A. W. Walker Opinion No. w-1056 

County Attorney 

Dickens County Re: Construction of the compulsory 

Spur, Texas school attendance laws in reference to children attaining 

their sixteenth birthday after 

Dear Mr. Walker: a school term begins. 

You have requested an opinion of this Department relating to the 

compulsory attendance in school of a child who has reached his sixteenth 

year after the school term has begun, 

V.P.C. and Article 2892 V.C.S. 

as contemplated by Article 297, 

In your letter requesting an opinion, dated March 16, 1961, you 

have stated the specific question which reads as follows: 

"Do the compulsory school attendance laws of this state 

apply to a child and his parents after such child has reached his sixteenth birthday and when such child has not completed the work of the ninth grade and when such child's sixteenth birthday came after the opening of the school term in 

the School District where he resides and before the end of 

such school term?" 

Article 297, V.P.C., (and its counter part Article 2892 V.C:S.) is 

quoted as follows: 

"Every child in the State who is seven (7) years and not 

more than sixteen (16) years of age shall be required toattend the public schools in the district of its residence, 

or in some other district to which it may be transferred as 

provided by law, for a period of not less than one hundred 

and twenty (120) days annually. The period of compulsory 

school attendance at each schocl shall begin at the opening 

of the schocl term unless otherwise authorized by the district 

school trustees and notice given by the trustees prior to the 

beginning of such school term; provided, that no child shall 

be required to attend school for a longer period than the 

maximum term of the public school in the district where such 

child resides. Acts 1915, p. 94; Acts 1923, p. 255; Acts 1935, 

44th Leg., p. 409, ch. 160, § 1; Acts 1939, 46th Leg., p. 227, 

so 1. It (tiphasis added) 
Eon. A. W. Walker, Page 2 (~-1056) 

The history of Article 297, V.P.C., is traced through Acts 1915, page 

94, in which.both the penal and civil provisions were combined as one; Acts 

1923, page 225, the penal code was separated from the civil statute and in 

1925 under.the Revised Civil Statute5 the Legislature recodifled the compulsory rchool laws and adopted Article 297 of the Penal Code and Article 

2892 of the civil Statute. Subsequent amendments to Article 297, V;P.C., 

by Acts of 1935 and 1939 are of no consequence here. 

It Is the legal duty of parents to require their children of seven 

(7) years of age and under sixteen (16) years of age to attend school. 

Article 297, V!P.C., Article 299, V.P.C. 

Apparently we are called upon to interpret the meaning of Article 

297 V.P.C. and to this provision we must look to determine the intention 

of the Legislature in its clear and unambigious definition of which children 

shall come under the compulsory attendance provision. The language of the 

statute is susceptible of no interpretation except that it shall apply to 

a child seven (7) years and older and not more than sixteen (16) years of 

age. 

39 Tex. Jur. 27.5, Statutes, Sec. 146,provides as follows: 

"It is a common law rule that penal statutes are strictly 

conStNsd against the state or prosecution and in favor of . 

the accused. But this Nle has been modified or relaxed in 

Texa.5 by'the provision of the Penal Code which directs that 

every law upon the subject of crime be construed 'according 

to the plain import of the language in which it is written'. 

Under this provision, a penal statute will not be construed 

so strictly as to defeat the legislative intention, when that 

intention is plainly manifest or Is fairly deducible from the 

language of the act. In construing such a statute, the Supreme 

Court has said that 'the proper course is to search out and 

to follow the true intent of the Legislature, and to adopt 

that sense which harmonizes best with the context, and pro-‘ 

motes,' in the fullest manner, the apparent policy and objects 

of the.Legislature.' 

"Bevertheless, the rule of strict construction still obtains, 

both in civil and criminal cases, in the sense that a statute 

of a penal nature will not be extended by construction beyond 

the necessities of the case or the plain import of its t9rms. 

Thus it is settled by numerous decisions that a statute imposing a penalty must be strictly COnStNed, and that one 

who seeks to recover a penalty must bring himself clearly within the terms of the statute. The more severe the penalty, and 

the more disastrous the consequences to the persons subjected 

to the provisions of the statute, the more rigid will be the 

constNction." 
Hon. A. W. Walker, Page 3 (~~-1056) 

Article 7 of the Penal Code provides: 

"This code and every other law upon the subject of crime 

which may be enacted shall be construed according to the 

plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects; and 

no person shall be punished for an offense which is no=de 

penal by the plain import of the words of a law." (Emphasis 

added) 

From an examination of the cases directly in point we find very few 

in Texas that can be relied upon as authority. The only case we have found 

which directly deals with this question is that of Butler v. State, 194 S.W. 

166, (Tei. Grim. 1917). The facts before that court related to the compulsory attendance of a child that had reached the age of fourteen (14) 

years before the school term started. (Fourteen (141 years was the maximum 

age at the time of this decision). The court seemed to base its reversal 

in its conclu5ion on the fact that the child was more then fourteen (14) 

years of age the instant after its fourteenth birthday and the court cites 

many authorities to support its position. However, in the conclusion the 

opinion of the court left the impression that its decision might have been 

based, at least in part, on the fact that the child became fourteen before 

the beginning of the school term. The court used this language: 

"In our opinion, under the facts of this case, appellant's 

son having attained the age of 14 years before the compulsory 

term began, the law compelling the attendance of children 

under 14 years of age was not applicable to him..." 

Another case following is Cotterly v. Muirhead, 244 S.W.2d 920 (Civ. 

App. Error Ref. n.r.e. 1951) which Is not In point on the question before 

us but simply states that it is the legal duty of parents to require their 

children 16 years of age or under to attend school as provided in Article 

297 V.P.C. 

Since we do not find decisions In our Texas Courts which might simplify our construction of the meaning of the article we therefore must turn to 

decisions of the courts of other states. One case of particular interest 

and in point is the case of Gingerich v. State, 93 N.E.2d 180 (1950). The 

Indiana Supreme Court cited the rule which is similarly established in Texas, 

that "penal statutes are to be strictly construed, and may not be extended 

by intent..." . 

In the syllabus of the Gingerich case, supra, it is said: 

"Under compulsory school attendance statute providing that 
> ._. . 

Hon. A. W. Walker, Page 4 (~~-1056) 

as used in act word "child" shall mean and include every 

child in state between ages of seven and fifteen years 

'inclusive' , quoted word means years between seventh and 

fifteenth years, and includes seventh anniversary of a 

child*s birth and fifteenth anniversary of his birth and 

does not include period between child's fifteenth and sixteenth year. Bums' Ann. St. $5 28-505b, 28-5o5f." 

Further the Indiana Court stated as follows: 

"This court has held that it is fundamental that penal 

statutes are to be strictly construed, and may not be extended by intent. Loftus v. State, 1944, 222 Ind. 139, 52 

N.E.2d 488; Caudill v. State, 1946, 224 Ind. 531, 69 N.E. 

2d 549. And, as said in Manners v. State, 1936, 210 Ind. 

648, 654, 3 N.E.2d 300, 303: 'It is fundamental that penal 

statutes are to be strictly construed; that a statute in 

derogation of a common right and highly penal in character 

is only to be applied to cases clearly within its provi5ions; that penalties may not be created by construction, 

but must be avoided by construction, unless they are brought 

within the letter and the necessary meaning of the act creating then penalty. This requires that where there is ambiguity 

it must be resolved against the penalty, and only those cases 

brought within the statute that are clearly within its meaning and intention.'" 

The decisions are uniform throughout the cases reviewed in holding 

that "a child when born is in its first year and at the end of that year 

is one year old, so when he arrives at his fourteenth anniversary and is 

then in his fifteenth year he is over 14'pars of age....The statute is 

not amblgious in designating the age limit between 7 and 15 years." Ginge-. 

rich v. State, swa. 

The Court of Criminal Appeals of Texas in the Butler case, supra, 

quoted from a Colorado Supreme Court opinion in Glbsoxeople, 99 Pac. 

333 (1909) *The act here reviewed was one relating to delinquent children 

but the court held that the opinion ~55 in point on the question before it. 

In this decision the court goes at length to distinguish between a child 16 

years of age or over and 16 years of age and under and concluded in this 

paragraph the following: 

"...The alleged delinquent juvenile being sixteen years 

and four months old at the time defendant is said to have 

contributed to his delinquency was 'sixteen years and older, 

not sixteen years or under, ' hence was not a juvenile delinquent person within the meaning of the statute." 
Hon. A. W. Walker, Page 5 (~~-1056) 

Cited in the Butler case was that of Rogers v. &Craw, 61 MO. App. 

407, construing a statute giving the privilege of attendance between six 

and 20 years and holding that one over 20 years of age and under 21 was 

excluded. 

The.Supreme Court of Louisiana In State v. Lanassa, 125 La. 687, 51 

So. 688 (1910), in construing a statute in which children are defined as 

persons "17 years of age and under" held: 

"It is obvious that a days difference In age may remove 

an infant from one class Into another." (Emphasis added) 

In the Butler case, supra, the court stated "in the case of‘Arrendel1 

v. State, 131 S.W. 1096 (Civ. App. 1910), reviewing the juvenile statute, 

which provided exemptions from certain kinds of punishment to a person less 

than 16 years of age, held that one who at the time of the trial has passed 

the sixteenth birthday was not entitled to the benefit of the statute...". 

In Munger v. State, 122 S.W. 875 (Tex. Grim. 1909) it was held that 

one who had passed his 16 birthday at the time the offense was committed 

would not come within the terms of the statute, as the defendant, although 

less than 17 years of age, was more than 16. 

In the Gingerich case, supra, the Supreme Court of Indiana stated: 

"In deciding the question here presented, desirability as, 

to legislation is not a question or problem that this court 

can decide. We cannot sustain or set aside a measure purely 

because it is desirable or undesirable. This problem is for 

the Legislature. The 1949 Legislature of our State presumably intended some change by the new act, since it changed . 

the. compulsory school age of children from the ages of seven 

to sixteen years to seven to fifteen years, inclusive." 

With the above to assist us in arriving at the intent of the Legislature, we have determined that a child who has passed his sixteenth birthday Is not subject to the compulsory school attendance law of the State ~of 

Texas. particle 297, V.P.C. Article 297 of itself leads to the conclusion 

that compulsory attendance is not required of a child after his sixteenth 

birthday. We do not think that the compulsory attendance law after the term 

has commenced has anything to do with a child who is more than sixteen years 

of age and we do not think that the provisions of Article 298, V.P.C. relating to "exempt from attendance" can supersede or remove or enlarge upon 

the clear unambigious provision of Article 297, V.P.C. Therefore, it is 

our opinion that as applied to the instant case, under the circumstances 

outlined by you, a child who has attained his sixteenth birthday does not 

come within the compulsory school law. 
Hon. A. W. Walker, Page 6 (W-1056) 

SUMMARY 

The compulsory school attendance law with reference to a child who is seven years and not more 

than sixteen years of age does not apply to a 

child who has attained his sixteenth birthday, 

irrespective of whether he reaches the age of 

sixteen during a school term or prior to the beginning of the school term. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

~_” .- 

Harris Toler 

Assistant Attorney General 

APPROVED: 

OPINION COMMTITEB 

W. V. Geppert, Chainaan 

Elmer McVey ' 

Jack Goodman 

REVII3lEBPORTiil3ATTORRRf GENERAL 

BY: Morgan Nesbitt