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.'sCivil Statutes, makes itmandatory for public schools to.estab- ,i lish apre-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 fromyour 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, tobe financed inpart by State funds, a new program referred to in the caption as 'providing for akindergarten program.' Section 4 is codified inVernon's Civil Statutes asArticle 2922-lla. "(1)Does the cited lawmake mandatory upon Texas public school districts timely to establish and offer the (kindergarten) preschool program to eligible children in the district, or is the lawpermissive making available state aid to such districts as locally may elect to apply for itsbenefits and operate the program? What year, ifany, would the lawbecome mandatory?

-2633-Honorable J.W. Edgar, page 2 **(M-552)**

"Inconnection with (l),we are concerned with realistic situations where a school district isunable locally to implement thekindergarten program due to such factors as (a)lack of classroom space, (b) inability to secure qualified teachers for theprogram, (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 forpersonnel (for. grades onethrough .'~ 12 classes) 'inSection 2A and Section 2 of House Bill 240 operate to apply:'tostatesupported kindergarten programs?" The pertinent provision ofArticle 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 theebeqinninq of **the** school vear,.who has not vet qraduated fromhigh school, .shallbe 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 inwhich 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 thebeginning 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 inwhich such children will participate in subsequent years ... The benefits of this program forprgschool shall be ex- -tendedon 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.)

-2635-Honorable J.W. Edgar, page 4 (M-552)

Your first question, as towhether the statute ismandatory or permissive for the school districts of the State to establish apreschool program asprescribed, requires an analysis of Section (a)quoted above. The underlined language of Section (a),quoted above, is similar to language found inArticles 2902 and 2904a, Vernon's Civil Statutes (nowSection 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.studentresides within the school district inquestion. 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, nowrit). Also seeAttorney General's Opinion O-1388 (1939). The rationale of the,above cited cases seems tobe that a school operating under the Foundation School Program receiving state funds therefrom, must offer thebenefits of the program to any child who meets the age and residence requirements prescribed by the Foundation School Program. Applying the above rationale .tothe statute inquestion, it seems clear that by the start of.the school year 1977-78 all students between 5and 21years of age, as qualified, would be entitled to the benefits of the Found&ion School Program which would include apreschool orkindergarten program, and all schools subject to,the Poundation School Program would have to provide these students with thebenefits of the program. Consequently, it is our opinion, that the Legislature intended to include the preschool (kindergarten) as apart of the program, to any eligible child whose age and residence requirements are met under the graduated age requirements set out indetail in the statute.

-2636-Honorable J.W. Edgar, page 5 (M-552)

As for the realistic situations, listed inyour 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 apreschool class, etc." The statute inquestion does not speak to these practical problems, unless theprovisions ofgraduated age requirements, and priority of educationally handicapped children were intended to alleviate some of the above listed practical problems, which incidentally would seem tobe present, notwithstanding the provisions ofArticle 2922-lla.
It isour opinion, therefore, that the solutions to these practical problems lieswith the Legislature, and the statute inquestion does not recognize these practical situations as per se'exceptions to the implementation of theprogram required by the statute.' Your second question, as towhether the Texas Education Agency has any authority to allocate the necessary teaching personnel to the preschool program orwhether 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 ismade 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 tob@,,utilizedby thevarious schools according to the average daily attendance of students in the schools.
Itappears,from the above Articles, that the number of classroom teachers tobe assigned depends upon the average daily attendance of students in the.various schools.;and the 'numberof teachers aides depends upon number of classroom teachers assigned under,the Foundation School Program.
We were unable to find any provision inArticle 2922-lla or any provision inHouse Bill 240, including Sections 2and 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 theprovisions.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 isour opinion that the provisions ofArticle 2922L13 relating to number of classroom teachers andArticle 2922-14d relating to teacher aides would apply to the preschool programs provided for inArticle 2922-lla. SUMMARY The provisions ofArticle 2922-lla, Ver- * non's Civil Statutes, requires thevarious school dis~trictsin the State that are subject to the minimum Foundation School Program to offer apreschool program to any eligible child meeting the age and residgnce requirements set out in saidArticle.

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

The allocation of classroom teachers and teachers aides provided inArticles 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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