TWEA'ITBRNEY 

OF 

AUWITN. 

GENERAL 

TEXAS 

T-s 78711 

April 18, 1975 

The Honorable hf. L. Brockette 

Commissioner of Education 

Texas Education Agency 

201 East Eleventh St. 

Austin, Texas 78701 

Opinion No. H- 586 

Re: Are alien children whose 

parents are illegally residing 

in this country entitled to attend 

public schools. 

Dear Commissioner Brockette: 

You have requested our opinion as to whether alien children whose 

parents are illegally residing in this country are entitled to attend public 

schools in the district of their 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 of the Education Code provides: 

(a) All children without regard to color over 

the age of six years and under the age of 18 years 

on the first day of September of any scholastic year 

shall be entitled to the benefits of the Available 

School Fund for that year. 

(b) Every child in this state over the age of six 

years and not over the age of 21 years on the first 

day of September of the year in which admission is 

sought shall be permitted to attend the public free. 

schools of the district in which he resides or in which 

his parent, gua’rdian, or the person having lawful 

control of him resides at the time he applies for 

admission notwithstanding the fact that he may have 

been enumerated in the scholastic census of a different 

district or may have attended school elsewhere for a 

part of the year. 

p. 2615 
, 

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

(c) The board of trustees of any public free school 

district of this state shall admit into the public free 

schools of the district free of tuition all persons over 

six and not over 21 years of age at the beginning of the 

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 of the State determine 

whether a child and his parents are residents of their 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 

of the State as do the children of citizens of this State. ” The then 

existing statutes, article 2899, 2900, Revised Civil Statutes of 1911, 

contained language almost identical to that of section 21.031 of the Education Code, including the terms “every child” and “all children. ” While 

it is unclear from the opinion whether the child in question was a legal 

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 a law 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 of but one interpretation, 

its consequences, if evil, can only be avoided by 

a change of the law itself, to be effected by legislative and not judicial action. These rulea are 

never controverted or doubted, although perhaps 

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

sometimes lost sight of. In this case, if 

effect be given to the intention of the. Legislature, as inidcated by the clear and unambiguous language used by them, respondent 

has the same right to enter a public skhool 

that any other child has. As the Legislature 

has not denied to the children of any race or 

nationality the right to enter our public schools, 

the question whether it might have done so does 

not arise in this case. 

We therefore conclude that the Legislature of this 

State intended that an opportunity for instruction in the 

public schools of this State should be afforded the youth 

of Texas, and the advantages of attending a public school 

should be extended to all children regardless of their 

nationality or color, whether citizen or alien, and having 

declared such to be the rights and privileges of the children 

of this State, such right is a vested one, and as such it 

is protected and is entitled to be protected by all the 

guarantees by which 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 of the 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 of legislative 

power, the existing case law indicates that the rights of illegal aliens are 

protected by 42 U.S. C. A. section 1981 and the Fourteenth Amendment to the 

~United States 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;. 17 F. Supp. 576 (N. D. Ill. 1936); Commercial Standard Fire and 

Marine Co. v. Galindo, 484 S. W. 2d 635 (Tex. Civ.App. --El Paso 1972, 

writ ref’d. , n. r. e. ). 

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

SUMMARY 

Under section 21.031 of the Education Code, 

alien children within the State are entitled to 

attend public school in the district of their 

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 

i