THF,,~TTORNEY GENERAL 

a3 

Gerald C. Mann 

~~-m,,1~;w,:v ~:h:Ca’&x:UP*x. 

Hon. L. A. Woods 

St ate 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. 

We are 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 March as of the first day of 

April by authorized agencies of the State termed 

enumerators. The family blanks provided for the 

purpose of enumerating children in school census 

,have just above the signature of the parents a 

form affidavit stating that the facts contained in 

said enumeration are true and correct and the children were residents in the district on the first of 

April. 

“This enumerator delivers his report to the 

County School Superintendent who compiles 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 and the names are sent to the 

State Superintendent for that particular district 

through the County Superintendent’s affidavit and report. The State Superintendent acting under the authority of Article 2820 checks, through his Division 

of Census and Transfers, these rolls for duplications, 

underages, overages, and fraudulent 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 ,County for the current year= 
Hon. L. A. Woods, page 2 (O-2892) 

“Each name of the scholastic presented as 

seventeen for the year 1940-1941 for approval by 

the State Superintendent is checked against the 

scholastic census rolls of 1929 which 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 a mathematical impossibility and a 

biological pervert. 

“The affidavit of the district and the 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, and the State acting and taking these affidavits in good faith paid the per 

capita apportionment to the county and to the district for the amount of apportionment for that 

scholastic year. An exact case is presented for 

your consideration: 

“Rosaria Badilla living In Edinburg School District and rendered by Carmen Badilla, 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 

same child, by the same parent, in the same town and 

county is presented as seventeen years of age. 

“The State has prior to 1929 paid per capita on 

some of these names, and surely paid it in 1929. 

Eleven years later the same names are 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 and out 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 and your departmental practice might be fully presented, we requested 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 names offered 

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 up through 1929 asseven years of 

age making an eleven year spread for this current 

year. The current names are checked against the 

names offered for the year 1929 and if the age was 

shown to be seven in 1929, both lines upon which the 

names appear 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 we have listed children’s names under 

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 and return this 

list to us as soon as possible.’ 

“When this 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.ur opinion 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 make up 

of the lines of submitted information of being identities. 

“That is, we require the district to be the same 

district, the parents to be the same parents, and the 

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 any one of the particular names, he is 

permitted to submit to the Division of Census just if icat 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 make a per 

capita distribution on these children.” 

You request that we advise you whether your Department 

may correct these matters and approve them based upon original 

data submitted by the parent, the district and the 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 same unit or county after eleven 

full annual payments have been made on a particular child, you 

also desire our opinion upon the legality of your action. 

You further state that your present departmental policy and method of eliminating this type of error was established 

as a result of cooperation and consultation with a Senate Investigatlng Committee in 1934, authorized to Investigate irregularities of State Government. This- Committee conducted an ievestigation into the scholastic census and its report may be found 

in Senate Journal, 44th Leg., Regular Session, p. 430, et seq. 

The report discusses several cases where excess scholastics were 

found to have been included in the census rolls by one device or 

another, and had been for many years. As before mentioned, your 

present method of handling the difficulty presented in your request was worked out at that time. 

Article 7, Sect Ion 5 of the Texas Constitution, which 

provides for the permanent and available school funds, contains 

the following provisions: 

II 

. . . and the available school fund shall be 

applied annually to the support of the public free 
Ron. L. A. Woods, page 5 (o-2892) 

schools. And no law shall ever be enacted aoproipriating any,,part of the permanent or avail.ab1.e 

school fund to any other purpose whatever; . e a 

and the ‘availab1.e school fund he,rein provided shall 

be distributed to the several counties according 

to their scholastic population and applied in, such 

manne~r as ~may be provided by law.” 

In order that such fund may be 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 ,made provisions 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 and under 18 

years of age on the first day of .the fo,llowing September, and 

who, are, residents of the school, district one said first day of 

April. Article 2902, R.C.S., 1925, as amended 1929, lowers the 

scholastic age from over sevento over six. He is required to 

visit each. home and by 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 ,011 the census form, which includes the residence and date of birth of the child. ,Article 294; Penal Code, 

imposes a fine of,not less than five nor more than ten dollars 

upon conviction, of any person having custody of the child who 

refuses to give: t.he .necessary information or make oath. 

By Article 2817, R.C.S., 1925, the census trustee is 

required to prepare census rolls and ,a summary of his rolls 

and “he shall make oath to all his rolls and summaries, and to 

the faithful and accurate discharge of his duties, and deliver 

said,rolls, with the forms arranged in alphabetical order, to 

the ~county superintendent I( onor before May first 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 make any false ,rep.ort in his rolls or summaries 

shall be guilty of false swearing .and shall be punished as prescribed by law for that offense.? It ‘is the duty of the county 

superintendent to report any violation of duty to the grand 

jury, of. the county at its ,aext session after discovering such 

breach of duty,. 

When the rolls and summaries are delivered to the 

county superintendent. he. is directed to file the same and preserve, them in his, office fgr three years. It is also his duty 

to prepare consolidated roll,s. We quote 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 

aff I 

and shall have power to ;&nu@on witnesses, take 

davits and correct any- errors he may find in 

any census trustee’s rolls, and he, shall carefully 

exclude all duplicates; If he deems it ‘necessary 

he may reject any roll, and appoint 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 

make a duplicate of each, and he shall make affidavit to the correctness of both originals and duplicatas. The originals he shall, on or before July 

first, forward to the State Superintendent, and the 

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, and the total 

number of children of each race, and the total of 

both races in his county. In making his aonsolidated rolls and in investigating the work of any 

census trustee, the county superintendent shall refer to the forms and rolls of previous years, when 

necessary, and they 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 St ate Superint endrnt shall have authority 

to investigate the census of any county, to correct 

errors, and la extreme cases when he believes gross 

errors have occurred or that fraud has been practiced, he may, with the approval OS the State Board, 

reject any county roll and require the census OS the 

county to be retaken.” 

Articles 2656, 2657, 2663, and 2665, R.C.S., 1925, as 

amended, also pertain to the duties OS the State Superintendent 

and the apportionmemt of’ the available school fund. 

The State Superintendent is authorized by &tlcle 

2820, quoted above, to investigate the census reports and to 

correct errors, and in so doing we think he may properly refer 

to and make comparison with the census rolls OS prior years 

which are a part of the records oS his office. Referring to the 
Hon. L. A. Woods, page 7 (O-2892) 

examples cited by you, it is apparent that children who were 

eight or nine years old on t&e first day of September, 1929 

would be in excsss of eighteen years of age on September Is 4 

1940, and there is prima facie an error 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 

and present additional affidavits and evidence in support of 

the eligibility of the child, notwithstanding the sworn records 

on file in your office show such child to be in excess of the 

scholastic age and that 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. You may have 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 same individuals uho originally swore the child 

was ‘of a different age in order to secure state money for previous years. When such conflicts arise it is our opinion that 

the State Superintendent may consider all the facts and clrcumstances, 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 an error to be corrected, and it becomes the duty of the State Superintendent to carect the roll 

and refuse to certify an apportionment upon such illegal enumeration. The holdings of the courts on questions of a similar 

nature indicate that when the State Superintendent has made his 

finding of fact, such finding will be sustained if there Is substant ial evidence to support the same. Under certain circumstances set out in Article 2820 the entire roll might be rejected and the census retaken. 

It is our opinion that the procedure outlined in your 

request is one which may be followed by your department in investigating and correcting errors in the scholastic census. 

APPROVED DEC 20, 1940 Yours very truly 

Is/ Grover Sellers ATTORWEY GENERAL OF TEXBS 

FIRST QSSIST ANT ATTORNEY GENERAL By /s/ Cecil C. Canrnack 

APPROVED; OPINIOR COMMITTEW Cecil C. Cammack, Assistant 

BY: BWB, CRBIRMAN 

CCC:N:wb