Honorable J. J. Brown, Director 

Vocational Rehabilitation DFvLsion 

State Department of Education 

Austin, Texas 

Dear Sir: Opinion No. O-2412 

Re: Authority of the Vocational Rehabilitation Division of the State 

Department 

tuition of 

of Education to pay 

physically handicapped 

persons In denominational schools. 

We have your letter requesting 

bove subject which reads as follows: 

an opinion on the a- 

?everal years ago the Vocational Rehabllitation Department in the State Department of Educatlon patronized denomlnatlonal schools and the 

Comptroller's Department brought up the question 

as to the legality of the State Department of 

Education patronizing denominational schools. Mr. 

Gagnor Kendall who at that time was Assistant Attorney General made an exhaustive study of this 

matter and told the Director of VocatIonal Rehabilitation, J. J. Brown, that he felt sure that 

if a ruling was made it would be to the effect 

that the Vocational Rehabilitation Department 

could not patronize a denominational school. We 

didnot ask that a ruling be made but simply 

withdrew all students from denominational schools. 

From time to time the question is again brought 

up by various denominational schools as to why 

physically handicapped people cannot have their 

tuition paid in denominational schools." 

In addition to the facts set out Fn your letter, you 

have advised us that it is the'practice of your department to 

select the school and course of training which will be best 

adapted to the needs and. talents of the applicant; that you 

pay no money to the applicant, but make payment of tuition 

direct to the school. 

We understand that vocational rehabilitation is admlnlstered by your department under the authority of Senate Bill 
Honorable J. 3. Brown, page 2 O-2412 

No. 86, Chapter 23, Acts of the 1st Called Session of the 41st 

Legislature, 1929, and pursuant to the regulations of the Federal Board for Vocational Education as provided by an Act of 

Congress passed June 2, 1920, and amended June 5, 1924, entitled "An Act to provide for the promotion of vocational 

rehabilitation of persons disabled in industry or otherwise, 

and their return to civil employment." The Federal and 

State governments both contribute funds for carrying out the 

purposes of your department. 

Your question resolves itself to a determination of 

whether or not the payment of tuition by your department to 

denominational schools for the training of persons eligible for 

assistance Is prohibited by Article I, Section 7, of the 

Constitution of Texas which reads as follows: 

"No money shall be appropriated, or drawn from 

the Treasury for the benefit of any sect, or religious society, theological or religious seminary; 

nor shall property belonging to the State be appropriated for any such purpose." 

The exact question here involved has never been directly 

passed upon by the appellate courts of Texas, so far as we have 

been able to ascertain. The above quoted constltutional provision, however, clearly prohibits state aid to religious institutions. Does the payment of tuition constitute aid to 

the institution? 

In Jernlgan v. Finley, 90 Tex. 205, 38 S. W. 24, the 

Texas Supreme Court in construing the a{alogous provision, 

Art. VII, Sec. 5, which reads in part, . . . ..And no law shall 

ever be enacted appropriating any part of the permanent or 

available school fund to any other purpose whatever; nor shall 

the same or any part thereof ever be approprFat;ed to or used 

for the support of any sectarian school. . . . declared~: 

"The Legislature cannot do by Indirection what it cannot do 

directly." 

We believe that If State monies were used to pay the 

tuition fees of students in denominational schools the State 

would thereby be contributing indirectly to the support of such 

schools. 

The Supreme Court of South Dakota in Synod v. State 

(1891) 2 S. D. 366, 50 N. W. 632, held that the payment of 

tuition of certain students, by the state, to a Presbyterlan 

university was an appropriation for "the benefit of" a sectarian school ln violation of Art. VI, Sec. 3, of the South 

Dakota Constitution which provided that "no money or property 
Honorable J. J. Brown, page 3 O-2412 

of the state shall be given or appropriated for the benefit 

,-of any secterian or religious society or institution." 

A similar provision in the Constitution of Kentucky 

was held to prohlblt the payment, by the Stste, of tuition of 

certain pupils in a sectarian school. Williams v. Stanton 

Graded Common School Dlst., 173 Ky. 708, 191 S. W. 507. The 

Kentucky Court of Appeals declared: 

I, 

. . . to make clear and certain our determination to preserve the spirit of the Constitution and its efforts to keep separate church and 

school, we not only hold that it is a violation 

of the Constitution to appropriate any part of 

the common school fund 'in aid of any church, 

sectarian, or denominational school', but equally 

unlawful for the trustees of any common or graded 

school, or educational institution supported 

in whole or in part by public funds raised by 

taxation, or dedicated to common.school purposes, 

to enter into any contracts, agreements or arrangements through or under which such school or 

educstional institution may be brought directly 

or indirectly under the influence, control, or 

supervision of any denominational or sectarian 

institution or school." 

The Wisconsin Supreme Court declared in State et rel 

Van Straten v. Milquet, 180 Wls. 109, 192 N. W. 392, that a 

school district bus might not carry any children to a parochial 

school. 

See also: Cook County v. Chicago Industrial School, 

125 Iii. 540, 18 N. E. 183; State ex rel Nevada Orphan 

&&um7;; Hallock (1882) 16 Nev. 385; Otkin v. Lawkln, 56 

. ; Jenkins v. Andover, 103 Mass. 94. 

Under the foregoing authorities we believe that your 

department is forbidden by Art. I, Sec. 7, of the Texas Constltutlon, supra, to pay tuition of any persons ln denominational 

or sectarian schools. 
Honoreble J. J. Brown, page 4 O-2412 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

BY s/Walter R. Koch 

Walter R. Koch 

Assistant 

WRK:GO:wc 

APPROVED AUG 16, 1940 

s/Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

This Opinion Considered And Approve In Limited Conference