### THF,,~TTORNEY GENERAL
a3
Gerald C. Mann ~~-m,,1~;w,:v

~:h:Ca’&x:UP*x.

Hon. L. A. Woods State Superlnt endent of Public Instruction Austin, Texas Dear Sir: +%~4 asd k.cJ. Opinion No. O-2892
Re: Correction of scholastic census rolls by State Superintendent of Public Education.

Weare in receipt of your request for an opinion by this Department dated November 12, 1940, which reads in part as followst

“Please be referred to Section Five of the Constitution of the State of Texas also &ticle 

### 2663,Article 

### 2665,Article 2685, hrticle 2816, Article 2817, Article 2817A, Article 

### 2819,and Article 2820.

“The school census of Texas is taken annually during the month of Marchas of the first day of April by authorized agencies of the State termed enumerators. Thefamily blanks provided for the purpose of enumerating children in school census ,havejust above the signature of the parents a form affidavit stating that the facts contained in said enumeration are true and correct andthe children were residents in the district on the first of April.

“This enumerator delivers his report to the County School Superintendent whocompiles the report for the entire county. First, all those common school districts are contained in one roll alphabetically arranged. All the rolls for each independent district are typed andthe namesare sent to the State Superintendent for that particular district through the County Superintendent’s affidavit andreport. The State Superintendent acting under the authority of Article 2820 checks, through his Division of Census andTransfers, these rolls for duplications, underages, overages, andfraudulent names.

“The method used in checking the overages is to compare the data of preceding years as furnished to the State by the County with the information furnished by the same,Countyfor the current year=Hon. L. A. Woods, page 2 (O-2892)

“Each nameof the scholastic presented as seventeen for the year 1940-1941 for approval by the State Superintendent is checked against the scholastic census rolls of 1929which began the scholastic age of all of said pupils enumerated as seventeen In 1940.

“Quite frequently it is found that children were enumerated as seven and eight years of age in 1929 but only sixteen or seventeen years in 1940 which is amathematical impossibility and a biological pervert.

“The affidavit of the district andthe affldavit of the county presented to the State for its approval in 1929 recited the fact that the children were eligible scholastics of specific ages. All facts were sworn to, andthe State acting andtaking these affidavits in good faith paid the per capita apportionment to the county andto the district for the amountof apportionment for that scholastic year. Anexact case is presented for your consideration:

“Rosaria Badilla living In Edinburg School District andrendered by CarmenBadilla, the Mother, was presented for payment in 1929 of the State Per Capita Apportionment as being eight years of age. Eleven years later, 1940, Rosaria Bad1110 is presented for payment from Edinburg by her Father, Jose Badillo, as being seventeen years of age.

“Another specific example is Teresa Moltos presented in 1929 from Edinburg for per Capita payment of school funds by Luis G. Moltos, the district and the county as being nine years of age. In 1940 the samechild, by the sameparent, in the sametown and county is presented as seventeen years of age.

“The State has prior to 1929 paid per capita on someof these names, and surely paid it in 1929. Eleven years later the samenamesare being requested to be approved for payment.

“It appears to the State in line with adminlstrative policy that the children should grow one year for each year of scholastic payments, in which case the first child spoken of in this statement would have been nineteen years of age andout of the scholastic age, and the last child spoken of would have been twenty years of age and **out** of the scholastic age..-

Hon. La 8. Woods, page 3 (~-2892)

In order that the facts andyour departmental practice might be fully presented, werequested additional information which,you furnished in your letter of November 29th, as follows:

,““In answer to your inquiry as to the policy of the Census Division in the Department of Education relative to,the checking of scholastic namesoffered in the census, please,be advised that one part of the checking process is the comparison of ages submitted in the roll for the current scholastic ‘year against the entry ,of the children into the scholastic census rolls upthrough 1929 asseven years of age making an eleven year spread for this current year. The current names are checked against the namesoffered for the year 1929 and if the age was shownto be seven in 1929, both lines uponwhich the namesappear are copied and sent to the county school superintendent of the county being checked for his action with the request for action in the following language :

“‘Where wehave listed children’s namesunder the heading ‘1929+1930 vs 1940-1941’ it indicates these children have been on the census rolls for a period of eleven years or longer6 Our opinion is that children enumerated in 1929-1930 should not have been enumerated again, in 1940-1941 regardless of the parents’ claims concerning these children’s ages. (

“

.‘Please strike from’this report those names, which are duplicates and overages andreturn this list to us as soon as possible.’

“Whenthis listing is returned to us with the county superintendent’s action, if the matter has been,fairly considered in our judgment, we take the county superintendent’s action as final.

“But, iP in o.uropinion no action was taken and no consideration given to the information submitted to the county superintendent, the, State Superintendent, acting through his Division of Census, refuses those names which have the,appearance in the makeup of the lines of submitted information of being identities.

“That is, werequire the district to be the same district, the parents to be the sameparents, andthe children’s names,must be the same.Hon. L. A. Woods, page 4 (O-2892)

“This list of refusals is then seut to the county superintendent and If he objects to the refusal of anyone of the particular names, he is permitted to submit to the Division of Census justificat ion for a reinstatement

. In the process of discovering whether the names should be reinstated at the request of the unit or the county the names are checked for each one of the eleven years to see that the State has completely paid a series of payments covering the eligibility of a scholastic between the ages of seven and eighteen. The statute covering the entry of scholastics of the year 1929 covers the entry of children at seven to eighteen.

“If after the children have been checked and found to have been fully paid on the basis of State Apportionment considering the date of entry into the census roll, the State refuses to makea per capita distribution on these children.” You request that we advise youwhether your Department maycorrect these matters andapprove thembased upon original data submitted by the parent, the district andthe county or should the State continue the payment on these scholastics so long as the parent, the district, and county care to report their ages as being less than eighteen. Since your departmental practice of making corrections as outlined above and refusing to approve further payments to the sameunit or county after eleven full annual payments have been madeon aparticular child, you also desire our opinion upon the legality of your action.

Youfurther state that your present departmental policy andmethod of eliminating this type of error was established as aresult of cooperation and consultation with aSenate Investigatlng Committee in 1934, authorized to Investigate irregularities of State Government. This- Committee conducted an ievestigation into the scholastic census and its report maybe found in Senate Journal, 44th Leg., Regular Session, p. 430, et seq. Thereport discusses several cases where excess scholastics were found to have been included in the census rolls by one device or another, andhad been for manyyears. Asbefore mentioned, your present method of handling the difficulty presented in your request wasworked out at that time.

Article 7, SectIon 5 of the Texas Constitution, which provides for the permanent and available school funds, contains the following provisions:

II

. . . andthe available school fund shall be applied annually to the support of the public freeRon. L. A. Woods, page 5 (o-2892)

schools. Andno law shall ever be enacted aoproipriating any,,part of the permanent or avail.ab1.e school fund to any other purpose whatever;

. e a andthe‘availab1.e school fund he,rein provided shall be distributed to the several counties according to their scholastic population andapplied in,such manne~r

as ~may

be provided by law.”
In order that such fund maybe apportioned upon the basis of scholastic population the Legislature has defined the scholastic age,. (,Art. 2902 R&.Si, 1925, asamended; Love v. city of Dallas, 40 S.W.@dj 201, the scholastic census. and,madeprovisions for taking

,titicle 2816, B.C.S., 1925, provides that each year between March 1st and April 1st a census trustee “shall take a census of all children that will be over seven andunder 18 years of age on the first day of .the fo,llowing September, and who,are,residents of the school, district onesaid first day of April. Article 2902, R.C.S., 1925, as amended1929, lowers the scholastic age from over sevento over six. Heis required to visit each.homeandby actual .observation enumerate the children and it is his duty to require the parent, guardian or person having control of the child to subscribe and swear to the information given ,011the census form, which includes the residence anddate of birth of the child. ,Article 294; Penal Code, imposes afine of,not less than five nor more than ten dollars upon conviction, of anyperson having custody of the child who refuses to give: t.he.necessary information or makeoath.

By Article 2817, R.C.S., 1925, the census trustee is required to prepare census rolls and,asummaryof his rolls and “he shall makeoath to all his rolls and summaries, andto the faithful and accurate discharge of his duties, anddeliver said,rolls, with the forms arranged in alphabetical order, to the~county superintendent I(onor before Mayfirst next after his appointment. ,(Art.,~,,2817a, V.T.C.S. i 19251, ,.Article 25&a, Vernon’s ,Penal Code, provides that. any census trustee who

“shall wilfully makeanyfalse ,rep.ort in his rolls or summaries shall be guilty of false swearing .andshall be punished as prescribed by law for that offense.? It ‘is the duty of the county superintendent to report anyviolation of duty to the grand jury, of. the county at its ,aext session after discovering such breach of duty,.

Whenthe rolls and summaries are delivered to the county superintendent. he.is directed to file the sameandpreserve, themin his, office fgr three years. It is also his duty to prepare consolidated roll,s. Wequote from Article 2819, R,.C.S., 1925,, further,,defining his duties:Hon. L. A. Woods, page 6 (O-2892)

“In making these consolidated rolls, he~shall scrutinize carefully the work of the’ census trustee affI and shall have powerto ;&nu@on witnesses, take davits and correct any-errors he mayfind in anycensus trustee’s rolls, andhe,shall carefully exclude all duplicates; If he deems it ‘necessary he mayreject any roll, andappoint another census trustee to take the census of the district, in which case he shall not approve the warrant to pay the census trustee whose work has bean rejected. When the county superintendent has prepared his aonsolidated census rolls, one for each race, he shallh makea duplicate of each, andhe shall makeaffidavit to the correctness of both originals andduplicatas. The originals he shall, on or before July first, forward to the State Superintendent, andthe duplicates shall be filed with the county clerk and become permanent records of his office. The county superintendent shall forward with his consolidated rolls an abstract on the prescribed form, under oath, showing the number of children of each race, of the different years of school age, andthe total number of children of each race, andthe total of both races in his county. In makinghis aonsolidated rolls and in investigating the work of any census trustee, the county superintendent shall refer to the forms androlls of previous years, when necessary, andthey shall be carefully preserved for this purpose.” Article 2820, R.C.S., 1925, defines the duties of the State Superintendent of Public Instruction as follows:

“The State Superint endrnt shall have authority to investigate the census of any county, to correct errors, and la extreme cases whenhe believes gross errors have occurred or that fraud has been practiced, he may, with the approval OSthe State Board, reject any county roll andrequire the census OSthe county to be retaken.” Articles 2656, 2657, 2663, and 2665, R.C.S., 1925, as amended, also pertain to the duties OSthe State Superintendent andthe apportionmemt of ’ the available school fund. The State Superintendent is authorized by &tlcle 2820, quoted above, to investigate the census reports andto correct errors, and in so doing we think he mayproperly refer to andmakecomparison with the census rolls OSprior years which are a part of the records oShis office. Referring to theHon. L. A.Woods, page 7 (O-2892)

examples cited by you, it is apparent that children whowere eight or nine years old on t&e first day of September, 1929 would be in excsss of eighteen years of age on September Is4 1940, andthere is prima facie anerror or illegal entry on , the census, roll which requires correction. At times the County superintendent concurs in the exceptions taken by your department but you are concerned .wlth the instances in which the county officials challenge the ruling of the State Department andpresent additional affidavits andevidence in support of the eligibility of the child, notwithstanding the sworn records on file in your office showsuch child to be in excess of the scholastic age andthat the particular district and county has received eleven full annual per c,apita apportionments on such child. In such cases the various affidavits and representations presented to you after such controversy arises are not necossarily controlling. In considering whether there ars errors in the census of the nature mentioned above, it is necessary for the State Superintendent to determine as a fact the age of the child in question. Youmayhave a consecutive line of affidavits on file in your office as a part of your official records which are sought to be imprached by representations, in many instances by the sameindividuals uho originally swore the child was ‘of a different age in order to secure state moneyfor previous years. Whensuch conflicts arise it is our opinion that the State Superintendent mayconsider all the facts andclrcumstances, including prior reports and official records on file in your office, and if upon due consideration you find that the child is over-age, that is anerror to be corrected, and it becomes the duty of the State Superintendent to carect the roll andrefuse to certify an apportionment upon such illegal enumeration. Theholdings of the courts on questions of a similar nature indicate that whenthe State Superintendent has madehis finding of fact, such finding will be sustained if there Is substantial evidence to support the same. Under certain circumstances set out in Article 2820 the entire roll might be rejected andthe census retaken.

It is our opinion that the procedure outlined in your request is onewhich maybe followed by your department in investigating andcorrecting errors in the scholastic census. APPROVED

DEC20, 1940 Yours very truly Is/ Grover Sellers ATTORWEY GENERAL

OFTEXBS FIRSTQSSIST

ANTATTORNEY

GENERAL By/s/ Cecil C. Canrnack APPROVED;

OPINIORCOMMITTEW Cecil C. Cammack,Assistant BY: BWB,CRBIRMAN CCC:N:wb