DAN MORALES

ATTORNEY GENERAL 

### QWice of tip I?lttornep Qhneral 

## .&ate of Qexarr January 22,1993

Mr. LionelR Meno commissioner Texas Education Agency 1701North 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 establishedby section 21.136 of the Education Code. The department wants answers to these questions so that it can determinewhetherthe school districts in Texas are eligibleto receive impact-aidassistancefor childrenenrolledin prekindergartenclasses.

The impact-aid statute is designed to give local educational agencies (LEAS) federal tinancial assistancewhen federal activities at&t the revenue availableto the LEAs
or the number of childrenthey 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 eligiblefor impact aid, an LEA must be responsibleunder the applicablestate or federal law for providingfree publiceducationto the childrenfor 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 applicableState.” 20 U.S.C. 6 244(4).

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The department’ sfirst three questions concern the status of the prehinder~en program under Texas law and are as follows:

1) Is the Termsprekindergartenprogram considered to be part of elementaryeducationunder Texas State law? Ifso, how andby what authority? 2) Section 21.03 1 of the Texas @Iducation]Code indicates that eveq childwho is a citizenof the United States or a legal alien and is ovatheageoffiveonthefirstdayofseptrmbashallbeentitkdto the benefits of the AvailableSchool 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 provisionsthat educationfor four ywr olds is not elementaryor free publiceducationunder 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 establishmentof a prekindergartenprogram for four year olds, does not indicate that the prekindergartenprogram is considered to be a part of the public free schools. In addressing question 1, please address the meaningof 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 speciticallyprovides that childrenenrolledin prekindergartenclassesare entitled to the bate&s of the available school timd. Under article VII, section 5 of the Texas Consthution, however, the availableschool timd may be used only for the support of publicfree schools. Therefore, either the prekindergartenprogram is a part of the publicfrse schoolsunder Texas law or section 21.03l(a) of the Education Code is unconstitutionalunder 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 reasonabledoubts 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 prekindergartenprogram cannot be part of the publicfree schools, we believethe 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 entitledto the benefb of the availableschool 8md. However, the second sentence of section 21.031(a) explicitlybrings prekindergartenchildrenwithin

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the group of childrenentitled to the benefitsof the availableschool 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 shallbe entitled to the be&its of the AvailableSchool Fund for that year. All other chik&enem-o&d in a prekhhgarten ckzss u&r Section 21.136 of this conk are eniiiled to the betq’its of the Awikzble SchoolFund.
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 publicfkeeschools.
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 @eeschools;whether the statute creating the program explicitlyrefers to it as a part of the publicf+eeschools is irrelevant.

You also ask whether the prekindergarten program is “dememary education” under Texas law. “Elementaryeducation”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 prekindergartenprogram 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 exemptionsand refer to “advalorem taxation for general elementary and secondary public school purposes.” In this context, “elementary.

. . public school purposes” must include prekindergarten. School districts clearlyhave the authority to use ad valorem tax revenue to support prekindergartm programs, and the tax exemptionsmust apply to the taxes used to support those programs. Because prekindergartenis 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-schoolchildren in the state. We concludethat it does. The state provides fiuding for local school districts through the Foundation School Program, and section 16.003(b)Mr. LionelR. Meno - Page 4 (DM-196)

of the Education Code specitically states that all prekinderSartenchildren 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 collectedby the county education district;s (2) the state availableschool lImds distributed to the school district; and (3) a Srant from the commissionerof education equal to the differencebetween the district’ stier-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 availableschool 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 fkomthe 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 etTortup 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 cannotraise 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-

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SeeGarmllIon-Fannera Branch Indep. Sch. DIeI. v. aE+wood Indep. Sch. DM.. 826 S.W.M 489, 522-23 (Tcs 1992). Thusfar, theTexas Legibhmharnota&ptcdasl-~rcbrmcloreplaatbcaumllsc~. ~lllotmmtforcachdiari*coodas~~baricallommtwitbanyrpplicsblcedjurtmentsplus special all-. For tk Ml-1992 school year, tbc

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raxivrs spcdalaUotmentsfowariousprogramEnrhasrpedplaiucation. Id. 55 16.151-.160.

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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’ sportion of the state fundingwas 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%omour own knowledge. However, we are informedby 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’ sallocation was reduced by 4.2 percent. During the 1990-1991 school year, each school district’ s allocationwas reducedby approximately23 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 limitedto childrenwho 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 childrenwho wish to attend. Section 21.136 provides, in pertinentpart:

(a) Any school district may offer prekindergarten classes, but a district shah offer prekindergarten classes if the district identifies 15
or more eligiblechildrenwho are at least four years of age. A school district may offer prekindergarten classes if the district identifies 15
or more eligiblechildrenwho are at least three years of age. (b) To be eligible for enrollment in a prekindergarten class a childmust be at least three years of age and must be: (1) unableto speak and comprehendthe Englishlanguage; or (2) from a family whose income, accordiig to standards set by the State Board of Education, is at or below subsistencelevel. 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 prekindergartenclasses when they identity 15
or more “eligiblechildren,”as that term is definedin 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,notjust four year-old childrenwho meet the criteria in

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section 2 1.136@). However, districts are required to offer prekindergartenclasses only to childrenwho meet the criteria in section 21.136(b) and only when a district identities 15 or more of these children.
SUMMARY

The prelrindergartenprogram created by section 21.136 of the Education Code must be a part of the *publicfke 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 availableschoolfbnd canbe used only for the support ofthe publicti schools..
The state bases the timding it provides to local school districts
on the district’ sweighted 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 fundingfor the prekindergartenprogram.
Texas schooldistricts are permittedto enroll any four year old in prekindergarten classes. However, the statute requires the districts to establisha prekindergartenprogram when they identity 15 or more childrenwho meet the criteria in section 21.136(b) of the Education Code.

DAN MORALES Attorney Generalof Texas

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WILLPRYOR First Ass&ant Attorney General

MARYKELLER Deputy AssistantAttorney General

RENEAHICKS SpecialAssistantAttorney General

MADELEINEB. JOHNSON Chair,Opiion Committee Prepared by Margaret A. Roll AssistantAttorney General