# TWEA'ITBRNEY OF
AUWITN. 

# GENERAL

TEXAS
T-s 78711
April 18, 1975
The Honorable hf.L. Brockette Commissioner of Education Texas Education Agency 201East Eleventh St. Austin, Texas 78701 Opinion No. H- 586 Re: Are alien children whose parents 

### areillegally residing in this country entitled toattend public schools. Dear Commissioner Brockette:

You have requested our opinion as towhether alien children whose parents are illegally residing in this country are entitled to attend public schools in the district oftheir residence. You state that the Board of an Independent School District is seeking to exclude students determined to be illegally in the country.

Section 21.031 ofthe Education Code provides:

(a) All children without regard to color over the age of six years and under the age of 18years on the first day ofSeptember ofany scholastic year shall be entitled to the benefits ofthe Available School Fund for that year. (b) Every child in this state over the age of six years and not over the age of 21years on the first day ofSeptember ofthe year in which admission is sought shall be permitted to attend the public free. schools ofthe district in which he resides or in which his parent, gua’rdian, 

### orthe person having lawful control ofhim resides at the time he applies for admission notwithstanding the fact that he may have been enumerated in the scholastic census 

### ofa different district or may have attended school elsewhere for a part ofthe year.

p. 2615,
The Honorable hf. L. Brockette page 2 (H-586)

(c) The board oftrustees of

### anypublic free school district ofthis state shall admit into the public free schools of the district free oftuition all persons over six and not over 21years ofage at the beginning ofthe scholastic year if such person or his parent, guardian or person having lawful control resides within the school district. (Emphasis added). In applying this statute, the school boards ofthe State determine whether a child and his parents are residents oftheir districts. Attorney General Opinion H-63 (1973). The question has arisen whether this residence must be lawful.

Attorney General Opinion No. 2318, Book 55, p,338 (1921), held that “[allien children have the same right to attend the public free schools ofthe State as do the children of citizens ofthis State. ” The then existing statutes, article 2899, 2900, Revised Civil Statutes of 1911, contained language almost identical to that ofsection 21.031 ofthe Education Code, including the terms “every child” and “all children. ” While it is unclear from the opinion whether the child in question was alegal or illegal alien, in our view the reasoning expressed is applicable in either instance.

Quoting from Tape v. Hurley, 6,Pac. 129 (Cal. Sup. 1885), Attorney General Opinion O-2318 (1940) notes: Where alaw is plain and unambiguous, whether it be expressed in general or limited terms, the Legislature should be intended to mean what they have plainly expressed, and consequently, no room is left for construction. When the law is clear and explicit, and its provisions are susceptible ofbut one interpretation, its consequences, if evil, can only be avoided by a change ofthe law itself, to be effected bylegislative and notjudicial action. These rulea are never controverted or doubted, although perhaps

p. 2616The Honorable M. L. Brockette. page 3 (H-586)

sometimes lost sight of. Inthis case, if effect be given to the intention ofthe.Legislature, as inidcated by the clear and unambiguous language used by them, respondent has the same right to enter apublic skhool that any other child has. As the Legislature has not denied to the children ofany race or nationality the right to enter our public schools, the question whether it might have done so does not

### arisein this case. We therefore conclude that the Legislature ofthis State intended that an opportunity for instruction in the public schools ofthis State should be afforded the youth of Texas, and the advantages ofattending apublic school should be extended to all children regardless oftheir nationality or color, whether citizen or alien, and having declared such to be the rights and privileges ofthe children ofthis State, such right is a vested one, and as such it is protected and is entitled to be protected by all the guarantees bywhich other legal rights are protected and secured to the possessor. The Legislature has made no effort toalter this holding through statutory amendment. We believe the words “all” and “every” as contained in section 21.031 ofthe Education Code do not permit exceptions to be created by local school boards. Whether the Legislature itself may establish an exception for illegal aliens has not been decided by the higher courts. While we recognize that the United States Supreme Court could sustain such an exercise oflegislative power, the existing case law indicates that the rights ofillegal aliens are protected by 42 U.S. C.A. section 1981and the Fourteenth Amendment to the ~UnitedStates Constitution. Bolanos v. Kiley, 509 F. 2d 1023 (2nd Cir. 1975); Williams v. Williams, 328 F. Supp. 1380 (D.V.I. 1971);Martinez v. Fox Valley Bus Lines;. 17F.Supp. 576 (N. D. Ill. 1936); Commercial Standard Fire and Marine Co. v. Galindo, 484 S.W. 2d635 (Tex. Civ.App. --El Paso 1972, writ ref

’d. ,n.r.e.).

p. 2617The Honorable M. L. Brockette page 4 (H-586)

SUMMARY Under section 21.031 ofthe Education Code, alien children within the State are entitled to attend public school in the district oftheir residence, regardless of.whether they may be

“legally” or “ill~egally” within the United States. Very truly yours,

Attorney General of Texas APPROVED: 

# LY,kv , DAVID I$ KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

p. 2618

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