### THEATTORNEY GENERAL
OF TEXAS

Aua- aa. TEXAS
WILE. WILSON A-o- GENERAL July 

### 13,1960

Honorable J. W. Edgar Commissionerof 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 Inoculatedwith two Salkvaccine Injections Dear Dr. Edgar: for pollomyelltis.

You have requested an opinion as to whether the Board of Trustees of a schooldfstrlct has the authority to require
as a prerequisite for entrance of pupils Into the first grade that they be Inoculatedwith two Salk vaccine Injections for pollomyelltis. This question requires an Interpretationof statutes setting forth the authority of schooldistrict trustees, particularlyArticle 2749,Vernon's Civil Statutes, dealingwith the trustees of common schooldistricts, and Article 2780,Vernon's Civil Statutes,dealingwith the trustees of Independent schooldistricts. These two Articles are as follows:

Article 2749. (2823-bControl of schools)

"Saidtrustees shallhave the management and control of the public schoolsand public school grounds; and they shalldetermine how many schools shallbe maintained in thelr school district, and at what point they shallbe located; provided, that not more than one school for white childrenand one school for colored children shall be established for each sixteen square miles of territory or major fraction thereof, within such district; and they shalldetermine when the schools shallbe opened and when closed. They shallhave the power to employ and dismiss teachers; but in case of dismissal, teachers shallhave the right of appeal to the county andHonorable 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 countyand State Superintendents;they shallapprove all claims against school funds of their district;provided, that the trustees, in making contractswith teachers, shallnot create a deficiency debt against the district."

Article 

## 2780.(2892Power of trustees)

"Saidtrustees shall adopt such rules, regulations and by-laws as they may deemproper; and the public free schools of such Independent district shallbe under their control; and they shallhave the exclusivepower to manage and govern said schools,and all rights and titles to property for schoolpurposes 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 saidboard Is a party. Acts 1905,p. 263."

Itwas held b this Department ln Attorney General's Opinion No. O-4539 (19x2)that the Board of Trustees for the Wharton Independent School Districthad 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 supportof 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* Zuchtv. King, et al., 

### 225s.w.267 (1920),err. ref.; BooGh et al., v. Board of Education of Fort Worth Independent SchoolDistrict, 70 S.W.2d 350 (19341,err. dlsm. In our opinion it 1s clearly establishedunder these decisions and the authorities cited therein that an ordinance, rule, or regulation by a duly constituted local governingbody, whether a municipalityor a schooldistrict, and wlthln the scope of the delegated authority of the body, Is not In violation of either the State or the Federal Constitutionby reason of requiring vaccination for smallpoxas a prerequisite for entrance to school. We believe these authorltlesare controllingof the question of the constitutionalityof a rule by the Board of Trustees of a schoolHonorable J. W. Edgar, page 3. 

## (ww-882)

district requiringvaccination for pollomyelltls as a prerequisite for entrance to school.

Two of the four cases cited above Involved questions of the authority conferredupon schooldistrict trustees by specialActs of the Legislature,while the remaining two lnvolved questions of the propriety of city ordinances imposing vaccination requirementsupon schoolage children. These cases are thereforenot controlling,but are merely persuasive, as to the question of the authority conferredupon 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 requirepoliomyelitisvaccination as a prerequisite for entering school. These Articles vest In the trustees the power to "manageand supervise"or "manageand 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 exercisedwithout adequate informationor otherwisearbitrarily 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)

Bozemanv. 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 poliomyelitisvaccination Is a reasonable exercise of the board'spower.

The power to control and supervise schools doubtless lneludes the power to see to the prevention of conditionswithin the schoolwhich are such as to make the very act of attending schoola 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, strikingdown the young in preference to the old and often leaving those victimswho survivehorribly and lncurably crippled. In our opinion even a remote possibility that the congregationof unvaccinated childrenat schoolwould Increase the Incidence of pollomyelltlsamong them or in the communityat large would make the requirement of vaccination a reasonable one; that such a requirementwould not be unreasonable Is Indeed the very least that can be said in Its favor. You have informedus of information suppliedyou by the State Department of Health to the effect that poliomyelitis is a communicableand contagiousdisease, 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. Accordinglywe have reached the conclusion that the Board of Trustees of a schooldistrict does have authority to require as a prerequisite for entrance of pupils into the first grade that they be inoculatedwith two Salk vaccine injections forHonorable J. W. Edgar, page 4. 

## (w-882)

poliomyelitis.

SUMMARY

The Board of Trustees of a schooldistrict has authorityunder Articles 2749
or 

## 2780,

Vernon's Civil Statutes, to require as a prerequisite for entrance of pupils Into the first grade that they be inoculatedwith two Salk vaccine injections for pollomyelltls.

Yours very truly,

WILL WILSON Attorney General of Texas

&-d$iyd

Lawrence Hargrove Assistant LH:hb

APPROVED:

OPINION COMMITTEE W. V. Geppert, Chairman

Paul Floyd Donald Bernard Ben M. Harrison

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore