January 13, 1970 

Honorable J. W. Edgar 

Commissioner of:Education 

201 East 11th Street 

Austin, Texas 

Opinion No. M-552 

Re: Whether Article 2922-lla, 

Vernon.'s Civil Statutes, 

makes it mandatory for 

public schools to.estab- 

,i lish a pre-school program 

for eligible children, 

and related questions. 

Dear Dr. Edgar: 

By.recent letter you have requested an opinion on the above 

stated matter. We quote from your letter as follows: 

/House Bill.240 (Chap. 872, Acts 61st Leg., 

B.S. 1969) amends the Foundation School Program~Act 

in several respects. Section 4 of the Bill.incorporates or adds to such Foundation School Act for the 

first time, to be financed in part by State funds, a 

new program referred to in the caption as 'providing 

for a kindergarten program.' Section 4 is codified 

in Vernon's Civil Statutes as Article 2922-lla. 

"(1) Does the cited law make mandatory upon 

Texas public school districts timely to 

establish and offer the (kindergarten) preschool program to eligible children in the 

district, or is the law permissive making 

available state aid to such districts as 

locally may elect to apply for its benefits 

and operate the program? What year, if any, 

would the law become mandatory? 

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Honorable J. W. Edgar, page 2 (M-552) 

"In connection with (l), we are concerned with 

realistic situations where a school district is unable 

locally to implement the kindergarten program due to 

such factors as (a) lack of classroom space, (b) 

inability to secure qualified teachers for the program, 

(c) an insufficient number of eligible preschool age 

children to justify one preschool class, et cetera . . . 

“2 s Does the State Board of Education have 

authority to adopt formulas for allocation of 

classroom teacher units, other professional personnel, and teacher-aides for the (kindergarten) 

pre-school program, or do the allocations 

prescribed for personnel (for. grades one through .'~ 

12 classes) 'in Section 2A and Section 2 of 

House Bill 240 operate to apply:'to statesupported kindergarten programs?" 

The pertinent provision of Article 2922-lla, V.C.S., is 

quoted as follows: 

"(a) Beqinninq with the school year 1977-78, any 

child in this state over five and under 21 years 

of aqe at thee beqinninq of the school vear,.who has 

not vet qraduated from high school, .shall be entitled 

., . . .._. 

to the benefits of tli6 ~asic'FOundat;dli"~chool P'roqram" " " 

for the ensuing school year. Such eligible child shall 

be admitted tuition-free to the public schools of the 

district in which he, his parents or leqal quardian, 

resides. Provided, however, that for the school years '. 

1969-1970 through 1976-1977, the qualifying age li'mits 

at the beginning of each school year shall be in 

accord with the following table: 

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, 
. . 

Honorable J. W. Edgar, page 3 (M-552) 

QUALIFYING AGE LIMITS 

AS OF BEGINNING OF SCHOOL YEAR 

1969-70 1973-74 1975-76 

through and and 

1972-73 1974-75 1976-77 '- 

Beginning Age: 

Years 6 5 5 

Months 0 7 4 

Highest Age: 

Years 20 20 20 

"(b) Notwithstanding the provisions of 

Paragraph (a) of this Section, the program of 

preschool education shall be extended first to 'educationally handicapped' children as preparation for 

the regular school program in which such children 

will participate in subsequent years . . . The benefits 

of this program for prgschool shall be ex- 

-tended on a first priority basis to,'educationally 

handicapped" children below existing age limits as 

shown in the following table: 

QUALIFYING AGE LIMITS 

AS OF BEGINNING OF SCHOOL YEAR: 

1972-73 

and 

1970-71 1971-72 Thereafter 

Beginning Age: 

Years 5 5 5. 

Months 5 2 0 

Highest Age: 

Years 21 21 21 . ..I( : 

(Emphasis added.) 

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Honorable J. W. Edgar, page 4 (M-552) 

Your first question, as to whether the statute is mandatory 

or permissive for the school districts of the State to establish 

a preschool program as prescribed, requires an analysis of 

Section (a) quoted above. 

The underlined language of Section (a), quoted above, is 

similar to language found in Articles 2902 and 2904a, Vernon's 

Civil Statutes (now Section 21.031, Texas Education Code). 

Article 2902, V.C.S., has been construed by our courts 

to require a school district to admit a student, within the i: 

prescribed age, provided, the .student resides within the school 

district in question. Alvin Independent School Dist..v: Cooper, 

404 S.W.2d 76 (Tex.Civ.App. 1966,'no writ); Anderson v. Canvon 

Independent School District, 412 S.W.2d 287 (Tex.Civ.App. 1967, 

no writ). Also see Attorney General's Opinion O-1388 (1939). 

The rationale of the, above cited cases seems to be that a 

school operating under the Foundation School Program receiving 

state funds therefrom, must offer the benefits of the program 

to any child who meets the age and residence requirements prescribed by the Foundation School Program. 

Applying the above rationale .to the statute in question, 

it seems clear that by the start of.the school year 1977-78 all 

students between 5 and 21 years of age, as qualified, would be 

entitled to the benefits of the Found&ion School Program which 

would include a preschool or kindergarten program, and all 

schools subject to,the Poundation School Program would have to 

provide these students with the benefits of the program. 

Consequently, it is our opinion, that the Legislature 

intended to include the preschool (kindergarten) as a part of 

the program, to any eligible child whose age and residence 

requirements are met under the graduated age requirements set 

out in detail in the statute. 

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Honorable J. W. Edgar, page 5 (M-552) 

As for the realistic situations, listed in your request, 

which we quote: 

"(a). Lack of classroom space 

(b) Inability to secure qualified'teachers 

for the program 

(c) An insufficient number of preschool ag*e 

children to justify a preschool class, etc." 

The statute in question does not speak to these practical 

problems, unless the provisions of graduated age requirements, 

and priority of educationally handicapped children were intended to alleviate some of the above listed practical problems, 

which incidentally would seem to be present, notwithstanding 

the provisions of Article 2922-lla. 

It is our opinion, therefore, that the solutions to these 

practical problems lies with the Legislature, and the statute 

in question does not recognize these practical situations as 

per se'exceptions to the implementation of the program required 

by the statute.' 

Your second question, as to whether the Texas Education 

Agency has any authority to allocate the necessary teaching 

personnel to the preschool program or whether such allocation 

is covered by other provisions of House Bill 240, requires an 

analysis of Section 2 (Article 2922-1411) and Section 2A 

(Section l(l), Article 2922-13) of House Bill 240. 

Article 2922-14d, Vernon's Civil Statutes, provides for 

teacher aides, setting forth a salary and reference is made to 

the Texas State Public Education Compensation Plan (Article 

2922-14c), which provides for various duties of teacher aides. 

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. . 

Honorable J. W. Edgar, page 6 (M-552) 

Section l(l), Article 2922-13, Vernon's Civil~Statutes, 

provides a detailed system of determining the number of classroom teachers to b@,,utilized by the various schools according 

to the average daily attendance of students in the schools. 

It appears, from the above Articles, that the number of 

classroom teachers to be assigned depends upon the average daily 

attendance of students in the.various schools.; and the 'number of 

teachers aides depends upon number of classroom teachers 

assigned under,the Foundation School Program. 

We were unable to find any provision in Article 2922-lla 

or any provision in House Bill 240, including Sections 2 and 2A 

discussed above, which authorizes the Texas Education Agency 

to determine the allocation of classroom teachers or other 

personnel to the preschool program. 

The allocation of teachers and teachers aides pursuant to 

the provisions.of Articles 2922-13 and 2922-148 based upon average 

daily attendance is comprehensive enough to cover the preschool 

programs. In this regard it should be noted that Section C of 

Article 2922-lla provides that students in the preschool program 

should be counted for scholastic purposes'based on average' daily 

attendance. 

It is our opinion that the provisions of Article 2922L13 

relating to number of classroom teachers and Article 2922-14d 

relating to teacher aides would apply to the preschool programs 

provided for in Article 2922-lla. 

SUMMARY 

The provisions of Article 2922-lla, Ver- * 

non's Civil Statutes, requires the various school 

dis~tricts in the State that are subject to the 

minimum Foundation School Program to offer a preschool program to any eligible child meeting the age 

and residgnce requirements set out in said Article. 

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.’ 
L . 

Honorable J. W. Edgar, page 7 (x-552) 

The allocation of classroom teachers and 

teachers aides provided in Articles 2922-13 and 

2922-14d, Vernon's Civil Statutes, based upon 

average daily attendance would cover the scholastics 

in the preschool program required by Article 2922-lla. 

Very truly yours, 

Attorx@ General of Texas 

Prepared by James C. McCoy 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

Alfred Walker. Co-Chairman 

Austin Bray, Jr. 

Fielding Early 

Jim Swearingen 

Larry Camm 

MEADE F> GRIFFIN 

Staff Legal Assistant 

NOLA WHITE 

First Assistant 

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