THEATTORNEY GENERAL 

OF TEXAS 

Aua- aa. TEXAS 

WILE. WILSON 

A-o- GENERAL July 13, 1960 

Honorable J. W. Edgar 

Commissioner of Education 

Austin, Texas 

Opinion NO. w-882 

Re: Authority of the Board of 

Trustees of a school dlstrlct to require as a prerequisite for entrance of 

pupils into the first grade 

that they be Inoculated with 

two Salk vaccine Injections 

Dear Dr. Edgar: for pollomyelltis. 

You have requested an opinion as to whether the Board 

of Trustees of a school dfstrlct has the authority to require 

as a prerequisite for entrance of pupils Into the first grade 

that they be Inoculated with two Salk vaccine Injections for 

pollomyelltis. This question requires an Interpretation of 

statutes setting forth the authority of school district trustees, particularly Article 2749, Vernon's Civil Statutes, 

dealing with the trustees of common school districts, and 

Article 2780, Vernon's Civil Statutes, dealing with the trustees of Independent school districts. These two Articles are 

as follows: 

Article 2749. (2823-b Control of schools) 

"Said trustees shall have the management 

and control of the public schools and public 

school grounds; and they shall determine how 

many schools shall be maintained in thelr school 

district, and at what point they shall be located; 

provided, that not more than one school for white 

children and one school for colored children 

shall be established for each sixteen square 

miles of territory or major fraction thereof, 

within such district; and they shall determine 

when the schools shall be opened and when closed. 

They shall have the power to employ and dismiss 

teachers; but in case of dismissal, teachers 

shall have the right of appeal to the county and 
Honorable J. W. Edgar, page 2. (w-882) 

State Superintendents. They shall contract 

with teachers and manage and supervise the 

schools, subject to the rules and regulations 

of the county and State Superintendents; they 

shall approve all claims against school funds 

of their district; provided, that the trustees, 

in making contracts with teachers, shall not 

create a deficiency debt against the district." 

Article 2780. (2892 Power of trustees) 

"Said trustees shall adopt such rules, 

regulations and by-laws as they may deem proper; 

and the public free schools of such Independent 

district shall be under their control; and they 

shall have the exclusive power to manage and 

govern said schools, and all rights and titles 

to property for school purposes heretofore vested in the mayor, city councils, or school trustees by articles 3995, 4013 and 4032, Revised 

Statutes of 1895, or other statutes, general and 

special, except such cities as are exempted by 

this title, shall be vested In said board of 

trustees and their successors In office; and 

their claims shall apply to any action or suit 

which may arise to which said board Is a party. 

Acts 1905, p. 263." 

It was held b this Department ln Attorney General's 

Opinion No. O-4539 (19x2) that the Board of Trustees for the 

Wharton Independent School District had the authority to require pupils attending the school to be vaccinated for smallpox as a prerequisite to entrance Into school. Among the authorities cited in that opinion in support of Its holding are 

Staf'fel et al v. San Antonio School Board of Education, et al., 

201 S.W. 413 (1918), err. ref.; City of New Braunfels, et al., 

v. Waldschmldt, et al., 109 Tex. 302, 207 S.W. 303 (1918J* 

Zucht v. King, et al., 225 s.w.267 (1920), err. ref.; BooGh et 

al., v. Board of Education of Fort Worth Independent School District, 70 S.W.2d 350 (19341, err. dlsm. In our opinion it 1s 

clearly established under these decisions and the authorities 

cited therein that an ordinance, rule, or regulation by a duly 

constituted local governing body, whether a municipality or a 

school district, and wlthln the scope of the delegated authority of the body, Is not In violation of either the State or 

the Federal Constitution by reason of requiring vaccination 

for smallpox as a prerequisite for entrance to school. We believe these authorltles are controlling of the question of the 

constitutionality of a rule by the Board of Trustees of a school 
Honorable J. W. Edgar, page 3. (ww-882) 

district requiring vaccination for pollomyelltls as a prerequisite for entrance to school. 

Two of the four cases cited above Involved questions 

of the authority conferred upon school district trustees by 

special Acts of the Legislature, while the remaining two lnvolved questions of the propriety of city ordinances imposing 

vaccination requirements upon school age children. These cases 

are therefore not controlling, but are merely persuasive, as 

to the question of the authority conferred upon school district 

trustees by the two Articles of the general law set forth above. 

However this may be, It Is our opinion that these two Articles 

do give authority to the trustees to require poliomyelitis vaccination as a prerequisite for entering school. These Articles 

vest In the trustees the power to "manage and supervise" or 

"manage and govern" the schools of their district. This general 

delegation of the power of supervisory control over the operation 

of schools Is subject only to the requirement that the power be 

exercised reasonably--i.e., that it not be exercised without 

adequate information or otherwise arbitrarily and In abuse of 

the board's discretion. Trustees, Pleasant Grove Independent 

n.r.e., cert. den. 72 S.Ci. 40, 342 U.S. 821, 96 L. Ed. 621'(!%1; 

School District v. Bagsby 237 S.W. 2d 750 (Clv. App. 1950) 

Bozeman v. Morrow, 34 S.W. 2d 654 (Clv. App. 1931); see Booth et ai. 

V. Board of Education, supra. The present question, therefore, Is 

whether the requirement of poliomyelitis vaccination Is a reasonable exercise of the board's power. 

The power to control and supervise schools doubtless lneludes the power to see to the prevention of conditions within 

the school which are such as to make the very act of attending 

school a serious threat to the health of the school child and the 

community generally. Furthermore, It need hardly be remarked, for 

it Is a matter of common knowledge, that pollomyelltls Is a peculiarly cruel disease, striking down the young in preference to the 

old and often leaving those victims who survive horribly and lncurably crippled. In our opinion even a remote possibility that the 

congregation of unvaccinated children at school would Increase the 

Incidence of pollomyelltls among them or in the community at large 

would make the requirement of vaccination a reasonable one; that 

such a requirement would not be unreasonable Is Indeed the very 

least that can be said in Its favor. You have informed us of information supplied you by the State Department of Health to the 

effect that poliomyelitis is a communicable and contagious disease, 

and on the basis of which It appears that the possibility of such 

an increase in the Incidence of the disease as was just mentioned 

is by no means remote. Accordingly we have reached the conclusion 

that the Board of Trustees of a school district does have authority 

to require as a prerequisite for entrance of pupils into the first 

grade that they be inoculated with two Salk vaccine injections for 
Honorable J. W. Edgar, page 4. (w-882) 

poliomyelitis. 

SUMMARY 

The Board of Trustees of a school district has authority under Articles 2749 

or 2780, Vernon's Civil Statutes, to require as a prerequisite for entrance of 

pupils Into the first grade that they 

be inoculated with two Salk vaccine injections for pollomyelltls. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

&-d$iyd 

Lawrence Hargrove 

LH:hb Assistant 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Paul Floyd 

Donald Bernard 

Ben M. Harrison 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore