. . .

THE ATBTORNE:P 

# GENEOF TirEas

Honorable

A. W. Walker OpinionNo. w-1056 County Attorney Dickens County Re: Construction of the compulsory Spur, Texas school attendance laws in referenceto children attaining their sixteenth

birthdayafter Dear Mr. Walker: a school term begins.

You have requested an opinionof this Department relating

to the compulsory

attendance

in schoolof a child who has reached his sixteenth year after the schoolterm has begun, V.P.C. and Article 2892V.C.S. as contemplated by Article 297,

In your letterrequesting an opinion,dated March 16, 1961, you have stated the specific question

which reads as follows:
"Do the compulsory

schoolattendance

laws of this state apply to a child and his parentsafter such child has reached his sixteenth

birthdayand when such child has not completed the work of the ninth grade and when such child's sixteenth birthdaycame after the openingof the schoolterm in the School District where he residesand before the end of such school term?" Article 297, V.P.C., (and its counterpart 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 shallbe requiredtoattend the public schoolsin the districtof 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 schoclterm unless otherwise authorized

by the district school trustees

and notice givenby the trustees prior to the beginningof such schoolterm; provided, that no child shall be required

to attend school for a longerperiod 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 throughActs 1915, page 94, in which.both

the penal and civilprovisions were combinedas one;Acts 1923, page 225, the penal code was separated from the civil statuteand 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 parentsto requiretheir childrenof 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 languageof the statute is susceptible of no interpretation exceptthat 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 modifiedor 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 languagein which it is written'. Under this provision, a penal statute

will not be construed so strictly

as to defeatthe legislative intention,

when that intention

is plainlymanifestor Is fairly deduciblefrom the language

of the act. In construing such a statute,

the Supreme Court has said that 'theproper course is to search out and to follow the true intentof 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 importof its t9rms. Thus it is settledby numerous decisions

that a statute imposinga penaltymust be strictly COnStNed, and that one who seeks to recover a penalty must bring himself clearlywithin the terms of the statute. The more severethe 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 subjectof crime which may be enacted shall be construed according

to the plain importof the language in which it is written,without regard to the distinction usuallymade betweenthe 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 directlyin point we find very few in Texas that can be reliedupon as authority. The only case we have found which directly

dealswith this questionis 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 reachedthe age of fourteen (14) years before the schoolterm started. (Fourteen (141 years was the maximum age at the time of this decision). The court seemedto 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 supportits 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 childbecame fourteenbefore the beginning

of the schoolterm. The court used this language:
"In our opinion,

under the facts of this case, appellant's son havingattained 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 parentsto require their children

### 16 years of age or under to attend schoolas provided in Article 

### 297 V.P.C. Since we do not find decisionsIn our Texas Courts which might simplify our construction of the meaning of the articlewe therefore must turn to decisions

of the courtsof other states. One case of particularinterest and in point is the case of Gingerich v. State, 93 N.E.2d 180 (1950). The IndianaSupremeCourt cited the rule which is similarly establishedin Texas, that "penal statutes are to be strictlyconstrued, and may not be extended by intent..."

. In the syllabus

of the Gingerichcase, supra, it is said: "Under compulsory

school attendancestatute providing

that> ._. .

Hon. A. W. Walker,Page 4 

### (~~-1056)

as used in act word "child"shallmean and include every child in statebetweenages of sevenand fifteen years 'inclusive'

, quotedword means years between seventhand fifteenth

years, and includesseventhanniversary of a child*s

birth and fifteenth anniversary

of his birth and does not include

periodbetween child'sfifteenth and sixteenth year. Bums' Ann. St. $5 28-505b,28-5o5f." Furtherthe IndianaCourt statedas follows: "This court has held that it is fundamental that penal statutes

are to be strictly construed,

and may not be extendedby 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 highlypenal in character is only to be appliedto 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 letterand the necessary meaningof the act creating then

penalty. This requires that where there is ambiguity it must be resolved againstthe penalty, and only those cases broughtwithin the statutethat are clearly within its meaning and intention.'" The decisions

are uniformthroughout the cases reviewed in holding that "a childwhen born is in its firstyear and at the end of that year is one year old, so when he arrivesat his fourteenth anniversary

and is then in his fifteenth year he is over 14'pars of age....The statute is not amblgiousin 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 SupremeCourt opinionin 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 lengthto distinguish between a child 16 years of age or over and 

### 16 years of age and under and concludedin this paragraph

the following: "...The

allegeddelinquent juvenile

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

to his delinquency

was 'sixteen

years and older, not sixteenyears or under,' hence was not a juveniledelinquent

personwithin the meaningof 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

givingthe privilege of attendance

between six and 20 years and holdingthat 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 statutein which children are definedas persons "17 years of age and under" held:

"It is obviousthat a days difference In age may remove an infantfrom 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 juvenilestatute, which providedexemptions from certainkinds 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 benefitof the statute...".
In Mungerv. State, 122 S.W. 875 (Tex. Grim. 1909) it was held that one who had passedhis 16 birthdayat 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 SupremeCourt 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 sustainor set aside a measurepurely because it is desirable or undesirable. This problem is for the Legislature.The 1949 Legislature of our State presumably intendedsome change by the new act, since it changed
. the. compulsory

schoolage of childrenfrom the ages of seven to sixteen

years to seven to fifteenyears, inclusive." With the above to assistus in arrivingat the intentof the Legislature,we have determined that a child who has passedhis sixteenthbirthday Is not subject to the compulsory

schoolattendance

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 Article298, V.P.C. relating to "exempt

from attendance"

can supersede

or removeor enlargeupon the clear unambigious provision

of Article 297, V.P.C. Therefore, it is our opinionthat as appliedto the instantcase, under the circumstances outlinedby you, a childwho has attainedhis sixteenth birthdaydoes not come within the compulsory school law.Hon. A. W. Walker,Page 6 (W-1056)

SUMMARY The compulsory

schoolattendance

law with reference to a child who is sevenyears and not more than sixteenyears of age does not apply to a child who has attained his sixteenth

birthday, irrespective

of whetherhe reachesthe age of sixteenduringa schoolterm or prior to the beginningof the schoolterm. Very truly yours,
WILL WILSON Attorney General of Texas



### ~_” .- Harris Toler Assistant Attorney General

APPROVED:
OPINIONCOMMTITEB W. V. Geppert,Chainaan Elmer McVey ' Jack Goodman REVII3lEBPORTiil3ATTORRRf GENERAL BY: Morgan Nesbitt