Honorable J. J. Brown,Director

Vocational RehabilitationDFvLsion State Department of Education Austin, Texas
Dear Sir: Opinion No. O-2412 Re: Authority of theVocational Rehabilitation Division of the State Department tuition of of Education to pay

physicallyhandicapped persons In denominational schools.
We have your letter requesting bove subjectwhich reads as follows: an opinion on the a-

?everal years ago theVocational RehabllitationDepartment in the State Department of Educatlon patronizeddenomlnatlonal schools and the Comptroller'sDepartment 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 theDirector ofVocatIonal Rehabilitation, J. J. Brown, that he felt sure that if a rulingwas made itwould be to the effect that theVocational Rehabilitation Department could notpatronize 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 isagain brought up by variousdenominational schools as towhy physically handicapped people cannot have their tuition paid indenominationalschools."
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 isadmlnlsteredby your department under the authority of Senate BillHonorable 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 forVocational Education as providedby an Act of Congresspassed June 2, 1920, and amended June 5, 1924, entitled "AnAct to provide for the promotion of vocational rehabilitation of persons disabled in industryor otherwise, and their return to civil employment." The Federal and State governmentsboth contribute funds for carrying out the purposes of yourdepartment.

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 prohibitedby Article I, Section 7, of the Constitution ofTexas which reads as follows:

"Nomoney shall be appropriated, ordrawn from the Treasury for the benefit of any sect, or religious society,theological or religious seminary; nor shallpropertybelonging to the State be appropriated for any such purpose." The exactquestion here involvedhas never been directly passed upon by the appellate courts of Texas, so far as we have been able to ascertain. The above quoted constltutionalprovision, however, clearly prohibits stateaid to religious institutions. Does the payment of tuition constituteaid to the institution?

In Jernlganv. Finley, 90 Tex. 205, 38 S.W. 24, the Texas Supreme Court in construing the a{alogous provision, Art. VII, Sec. 5, which reads inpart,
.....Andno law shall ever be enactedappropriating any part of the permanent or available school fund to any other purposewhatever; nor shall the same or any part thereof ever be approprFat;ed to or used for the supportof any sectarian school.

. . . declared~: "TheLegislature cannotdo by Indirectionwhat it cannotdo directly."

We believe that IfState monies were used to pay the tuition fees of students in denominational schools the State would therebybe contributing indirectly to the support of such schools.

The Supreme Court of SouthDakota inSynod 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 universitywas an appropriation for "thebenefit of" a sectarian school lnviolation of Art. VI, Sec. 3, of the South Dakota Constitutionwhich provided that "nomoney or propertyHonorable 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., 173Ky. 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 isa violation of the Constitution to appropriate any part of the common school fund 'inaid of any church, sectarian, or denominational school',but equally unlawful for the trustees of any common or graded school, or educational institution supported inwhole or inpart by public funds raised by taxation, or dedicated to common.schoolpurposes, to enter into any contracts,agreements or arrangements through or underwhich such school or educstional institutionmay be brought directly or indirectlyunder the influence, control, or supervision of any denominational or sectarian institution or school." TheWisconsin Supreme Court declared in State et rel Van Straten v. Milquet, 180Wls. 109, 192 N. W. 392, that a schooldistrict 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 authoritieswe believe that your department is forbidden by Art. I, Sec. 7, of the Texas Constltutlon, supra, to pay tuition of any persons lndenominational or sectarian schools.Honoreble J. J. Brown, page 4 O-2412

Yours very truly
ATTORNEY GENERAL OF TEXAS

BY s/WalterR. Koch Walter R. Koch Assistant
WRK:GO:wc

APPROVED AUG 16, 1940 s/Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL This Opinion ConsideredAnd Approve In Limited Conference