DAN MORALES 

ATTORNEY GENERAL 

QWice of tip I?lttornep Qhneral 

.&ate of Qexarr 

January 22,1993 

Mr. Lionel R Meno 

commissioner 

Texas Education Agency 

170 1 North Congress Avenue 

Austin, Texas 78701-1494 

Opiion No. DM- 196 

Rez Whether the prekindergarten program 

established by section 21.136 of the 

Education Code is part of elementaty 

education under Texas Law, and related 

questions (RQ-436) 

Jkar Commissioner Meno: 

You have asked us to answer several questions posed by the United States 

Department of Education (the department) regarding the prekindergarten program 

established by section 21.136 of the Education Code. The department wants answers to 

these questions so that it can determine whether the school districts in Texas are eligible to 

receive impact-aid assistance for children enrolled in prekindergarten classes. 

The impact-aid statute is designed to give local educational agencies (LEAS) 

federal tinancial assistance when federal activities at&t the revenue available to the LEAs 

or the number of children they serve. 20 U.S.C. Q 236. Under section three of the statute, 

an LEA may claim payments for federally-connected childrent who are receiving “6ee 

public education” &om the LEA. Id. 0 238. The regulations enacted under the statute 

iinther provide that, to be eligible for impact aid, an LEA must be responsible under the 

applicable state or federal law for providing free public education to the children for whom 

the aid is claimed and must actually be providing the free public education to those 

children. In addition, the state must provide timds for the education of the children for 

whom the aid is claimed on the same basis as all other children attending public school in 

the state. 34 C.F.R. 8 222.80. The statute defines free public education as “education 

which is provided at public expense, under public supervision and direction, and without 

tuition charge, and which is provided as elementary or secondary school education in the 

applicable State.” 20 U.S.C. 6 244(4). 

p. 1035 
Mr. Lionel R Meno - Page 2 (DM-196) 

The department’s first three questions concern the status of the prehinder~en 

program under Texas law and are as follows: 

1) Is the Terms prekindergarten program considered to be part of 

elementary education under Texas State law? Ifso, how and by what 

authority? 

2) Section 21.03 1 of the Texas @Iducation] Code indicates that 

eveq child who is a citizen of the United States or a legal alien and is 

ovatheageoffiveonthefirstdayofseptrmbashallbeentitkdto 

the benefits of the Available School Fund for that year. The statute 

fbrther provides that every child over the age of five is permitted to 

attend the public free schools of the district in wbicb he resides. In 

addressing question 1, please address the possible implication of 

these provisions that education for four ywr olds is not elementary or 

free public education under Texas law. 

3) Similarly, section 21.13 1 of the Texas ~ucation] Code states 

thateachschoo]districtinTacasshsllestsblimand~asa 

part of the “public 6ee schools” one or more kindergartens for the 

train@ of five year olds. Section 21.136, which authorizes the 

establishment of a prekindergarten program for four year olds, does 

not indicate that the prekindergarten program is considered to be a 

part of the public free schools. In addressing question 1, please 

address the meaning of this omission. 

We conclude that the Texas prekindergarkn program is part of the public 8ee 

schools under Texas law. Section 21.03 1 (a) of the Education Code specitically provides 

that children enrolled in prekindergarten classes are entitled to the bate&s of the available 

school timd. Under article VII, section 5 of the Texas Consthution, however, the 

available school timd may be used only for the support of public free schools. Therefore, 

either the prekindergarten program is a part of the public frse schools under Texas law or 

section 21.03 l(a) of the Education Code is unconstitutional under the Texas Constitution. 

We must presume that a statute is constitutional. County of Gamerun v. Wih, 326 

S.W.2d 162, 165 (Tex. 1959). Furthermore, ail reasonable doubts about the validity of a 

statute must be resolved in favor of its validity. Greene v. Robison, 8 S.W.2d 655,656 

(Tex. 1928). Because nothing in either the constitution or the statutes of Texas suggest 

that the prekindergarten program cannot be part of the public free schools, we believe the 

phrase “public &ee schools” must be interpreted to encompass the prekindergarten 

program. 

Tbe Srst sentence of section 21.031(a) suggests that only children between age 

five and age twenty-one are entitled to the benefb of the available school 8md. However, 

the second sentence of section 21.031(a) explicitly brings prekindergarten children within 

p. 1036 
Mr. Lionel R Meno - Page 3 (DM-196) 

the group of children entitled to the benefits of the available school fund. This section, in 

itsedrety,reads: 

All children who are citizens of the United States or legally 

admitted aliens and who are five years of age or older and under the 

age of 21 years on the first day of September of any scholastic year 

shall be entitled to the be&its of the Available School Fund for that 

year. All other chik&en em-o&d in a prekhhgarten ckzss u&r 

Section 21.136 of this conk are eniiiled to the betq’its of the 

Awikzble School Fund. 

Rduc. Code 8 21.031(a) (emphasis added). Therefow this section cxpnmdy and 

unequivocdly supports the conchtsion that the prekindergarkn program is part of the 

public fkee schools. 

Furthermore, we do not believe that the omission of the phrase “public free 

school” from section 21.136 is signi6cant. If a program is eligiile for the be&to of the 

available school timd, then it must be a part of the public @ee schools; whether the statute 

creating the program explicitly refers to it as a part of the public f+ee schools is irrelevant. 

You also ask whether the prekindergarten program is “dememary education” 

under Texas law. “Elementary education” is not a term of art under Texas law and is not 

given a consistent defkition in the Texas statutess We note, however, that the 

prekindergarten program is part of elementaty education in some signi6cant contexts. For 

example, article VIII, sections l-b(c) and l-b(d) of the Texas Consdtution deal with tax 

exemptions and refer to “ad valorem taxation for general elementary and secondary public 

school purposes.” In this context, “elementary. . . public school purposes” must include 

prekindergarten. School districts clearly have the authority to use ad valorem tax revenue 

to support prekindergartm programs, and the tax exemptions must apply to the taxes used 

to support those programs. Because prekindergarten is not a secondary school purpose, it 

must be part of elementary education for the purposes of these sections. Siiy, the 

section of the Texas Administrative Code dealing with dememary&tool curricuhun 

includes the provisions regarding prekindergarten programs. 19 TAC 8 75.141(g); see 

also Educ. Code 55 1501(c), 20.09; Tax Code 0 11.13(m)(2). 

The fourth question has two parts, which we will address separately. Fii the 

department asks whether the state provides firnding for the education of federallyconnected prekindergarten children on the same basis as for all other prekindergarkn 

public-school children in the state. We conclude that it does. The state provides fiuding 

for local school districts through the Foundation School Program, and section 16.003(b) 
Mr. Lionel R. Meno - Page 4 (DM-196) 

of the Education Code specitically states that all prekinderSarten children are entitled to 

the bene6ts of the Foundation School Program. Under the current school-financiq 

scheme,) the Foundation School ProSram has two timdinS tiers. In the Srst tier, each 

school district receives a specitic allotment for each student in average daily attendancef 

This allotment comes from three sources: (1) the school district’s share of the revenue 

collected by the county education district;s (2) the state available school lImds distributed 

to the school district; and (3) a Srant from the commissioner of education equal to the 

difference between the district’s tier-one entitlement and the amount the district receives 

from the other two sources. Rduc. Code 5 16.251(b). The Texas Consthution and the 

Education Code both require that the available school lund be distriiuted to the counties 

accordinS to their scholastic population. Tex. Con& art. VII, 4 5; Educ. Code 

0 15.01(b). Similarly, the amount of the grant fkom the commissioner of education will 

depend on the number of students in the school district and the tax base in the county 

education district. See Rduc. Code 5 16.254(b). In the second tier, the state guarantees 

each school district a certain amount of money per weiShted student for each penny of tax 

etTort up to 45 centh6 m&less of the value of the property in the school district. See 

Educ. Code $5 16.302(a), 16.303. If a school district cannot raise the gtaranteed amount 

fiomitstexbase,thestatemakesupthediffaence.7Thus,inthistier,asintheiirsttier, 

the state’s contribution to each school district depends on the weighted avaage daily 

attendance in the district and the value of the property in the district. We are not aware of 

anythiq in Texas law tbat permits the state to make distinctions between f’ederally- 

%i~6~h~~b~h~~b~~~dtd~dMconstihdional~0d~th~T~~~C01~tit~ti0~byth~T~8~ 

Sup~ane hut; howmr, il will maatn in cfkcl until Joru 1993. See GarmllIon-Fannera Branch Indep. 

Sch. DIeI. v. aE+wood Indep. Sch. DM.. 826 S.W.M 489, 522-23 (Tcs 1992). Thus far, the Texas 

Legibhmharnota&ptcdasl-~rcbrmcloreplaatbcaumllsc~. 

~lllotmmtforcachdiari*coodas~~baricallommtwitbanyrpplicsblcedjurtmentsplus 

special all-. For tk Ml-1992 school year, tbc basic rdblnmt was $2,200; for tbc 1992-1993 

scl~dyear,tkbasicaUotmcntwiUbc.S2,4M. E4k.C!ak~16.101. Tbcbasicallommtis~to 

rdkt gwgJaphic variations io lesouKc cc6l6andthcco6t6ofuhKadonductofpdolEhcyondulc 

diatria’s contml. Id. 8 16.102. The basic allotnxnt is also adjustal for padaddy small or spmely 

pop&d die&i& Id. $0 16.103,16.104. Lo addition to lb lwic allotment, each sclud diarict raxivrs 

spcdalaUotmentsfowariousprogramEnrhasrpedplaiucation. Id. 55 16.151-.160. 

p. 1038 
Mr. Lionel R Meno - Page 5 (DM-196) 

co~ected children and other children with regards to providiig funds for any publicschool programs. 

The second part of the fourth question asks this office to indicate whether each 

LEA’s portion of the state funding was reduced for the 1990 and 1991 fiscal years and, if 

so, at whose expense. The opinion process is not designed to respond to questions 

regarding facts; therefore, we cannot answer this question t%om our own knowledge. 

However, we are informed by the General Counsel of the Texas Education Agency that 

the state did reduce each LEA’s allocation proportionally for the 1989-1990 and 

1990-1991 school years. The reduction was accomplished by a percentage proration 

across the state. During the 1989-1990 school year, each school district’s allocation was 

reduced by 4.2 percent. During the 1990-1991 school year, each school district’s 

allocation was reduced by approximately 23 percent. 

Fiiy, the department asks: “[O]n what basis do Texas school districts offer 

prekindergarten classes? For example, are they permitted to educate any four year olds 

that may wish to attend or is attendance strictly limited to children who are either limited 

English proficient or t?om a family whose income is at or below subsistence level.” We 

conclude that section 21.136 of the Education Code permits school districts to offer 

prekindergarten classes to aJl four-year-old children who wish to attend. Section 21.136 

provides, in pertinent part: 

(a) Any school district may offer prekindergarten classes, but a 

district shah offer prekindergarten classes if the district identifies 15 

or more eligible children who are at least four years of age. A school 

district may offer prekindergarten classes if the district identifies 15 

or more eligible children who are at least three years of age. 

(b) To be eligible for enrollment in a prekindergarten class a 

child must be at least three years of age and must be: 

(1) unable to speak and comprehend the English language; or 

(2) from a family whose income, accordiig to standards set 

by the State Board of Education, is at or below subsistence level. 

Although this language is susceptible to two interpretations, the legislative history 

indicates that any four year old may attend prekindergarten classes. During the hearings 

regarding this legislation in the House Committee on Public Education, it was explained 

tbat this section permits any school district to provide prekindergarten classes if it so 

desires and requires school districts to offer prekindergarten classes when they identity 15 

or more “eligible children,” as that term is defined in section 21.136(b). Hearings on H.B. 

72 Before the House Comm. on Public Education, 68th Leg. (June 14. 1984) (tape 

available from House Committee Coordinator). Thus, school districts are permitted to 

educate all four year-old children, not just four year-old children who meet the criteria in 

p. 1039 
Mr. Lionel R Meno - Page 6 (DM-196) 

section 2 1.136@). However, districts are required to offer prekindergarten classes only to 

children who meet the criteria in section 21.136(b) and only when a district identities 15 or 

more of these children. 

SUMMARY 

The prelrindergarten program created by section 21.136 of the 

Education Code must be a part of the *public fke schools” under 

Texas law because prekindergarten students are entitled to the 

bene6ts of the available school fund; under article VII, section 5 of 

the Texas Constitution, the available school fbnd can be used only for 

the support of the public ti schools.. 

The state bases the timding it provides to local school districts 

on the district’s weighted average daily attendance and its tsx base; 

we can 6nd nothing in Texas law that permits the state to make 

disUnctions between federaUy-connected children and other children 

with regards to funding for the prekindergarten program. 

Texas school districts are permitted to enroll any four year old in 

prekindergarten classes. However, the statute requires the districts 

to establish a prekindergarten program when they identity 15 or more 

children who meet the criteria in section 21.136(b) of the Education 

Code. 

DAN MORALES 

Attorney General of Texas 

p. 1040 
Mr. Lionel R Meno - PaSe 7 

WILL PRYOR 

First Ass&ant Attorney General 

MARYKELLER 

Deputy Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opiion Committee 

Prepared by Margaret A. Roll 

Assistant Attorney General