THEA~TORNEYGENERLAL 

OF TEXAS 

&A& 29-J v.c.s 

April 12, 1961 

Honorable Ted Schulz ' 

County Attorney 

Fort Bend County 

Richmond, Texas 

Opinion No. WW-1038 

Re: Whether a person who refuses on 

February 1, 1961 to answer the 

census trustee as to a child 

under his control and who is 

Dear Mr. Schulz: 

within~the prescribed age, is 

subject to be prosecuted for 

such failure under the proviiions of Article 294'of 

Vernon's Penal Code 

You have requested the opinion of this office as to whether the refusal of a person to enumerate his eligible children for school census 

purposes on February 1, 1961, can form the basis of a criminal prosecution 

for violation of Article 294, Vernon's Penal Code. 

Article 294, Vernon's Penal Code, reads as fo$lows: 

"Every person having control of any child which 

will be over seven and under seventeen years of age 

on the first of September next thereafter and who, 

being requested by the census trustee to prepare the 

form prescribed by law giving the information showing 

the name, sex and date of birth of each child of which 

he has control and which is within said ages, or to 

give the information necessary to enable the trustee 

to prepare the same, shall refuse to do so, or shall 

refuse to make oath to such form when filled according 

to his statement of facts in regard to said children, 

or shall fail to return the form left at his home in 

his absence to the census trustee as required by law, 

shall be fined not less than five nor more than ten 

dollars." 

There is nothing in Article 294 which limits its operation to the 

month of January, and if there be such a limitation it must occur elsewhereAn the statutes. That portion of our laws dealing with the taking 

of the school- census is enumerated in Article 2816, Vernon's Civil Statutes, 

which reads in relevant part as follows: 

"The census trustee, between the first day of January 

and the first day of February after his appointment, 
Hon. Ted Schulz, Page 2, (WW-1038) 

shall take a census of all children that will be over 

six and under eighteen years of age on the first day 

of the following September, and who are residents of 

the school district on said first day of February," 

If Article 2816 were intended by the Legislature to operate as a limitation on Article 294 of the Penal Code, then it would be necessary to 

determine that the use of the word "between" was intended as exclusive 

of the enumerated boundary dates. 

In the view we take of the question presented by your request, 

the determination of this matter will not be necessary. 

The use of the word "shall" is usuallv mandatorv when used in 

statutes, Brinkley v. St 

Supreme Court has 

;ate, 320 S.W.2d 855 ITex. Grim. lp59), but our 

held in a long line of decisions that this word must 

be considered in the light of the remainder of the statute and the intent 

of the legislature. Chisolm v. Bew&ey Mills, 155 Tex. 400, 287 S.W.2d 943 

(1956); Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625 (1948); Markosky v. 

Newman, 134 Tex. 440, 136 S.W.2d 808 (1940); Federal Crude Oil Co. vi 

Yount-Lee oil CO., 122 Tex. 21, 52 S.W.2d 56 (1932). 

Approximately one quarter of the funds expended on primary and 

secondary public education in this state comes out of the state treasury 

and is distributed among the several school districts according to the results of the school census. Without the basic information derived from the 

census, this distribution of funds would fall into chaos and confusion. For 

this reason, the Legislature must have intended their words, 'The census 

trustee, between the first day of January and the first day of February . . . 

shall-take a census . o .II to be directory only and not mandatory, because 

the contrary interpretation could leave an unfinished census with no means 

of completion. For the same reason we conclude that the sanctions imposed 

by Article 294, Vernon's Penal Code, are as valid on the first day of 

February as they would be on any day in January, and that a prosecution 

based on the refusal of a person to answer the questionaire of the census 

trustee on the first day of February, would be a proper one. 

SUMMARY 

A person who refuses on February 1, 1961. to answer 

the census trustee as to a child under his control 

and who is within the prescribed age, is subject to 

be prosecuted for such failure under the provisions 

of Article 294 of Vernon's Penal Code. 
Hon. Ted Schulz, Page 3 (~~-1038) 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

John E. Leonarz 

Assistant Attorney General 

JEL:br 

APPROVED: 

OPINION COMMITTEE 

W. V. GEPPEXT, Chairnan 

W. Ray Scruggs 

Maston Courtney 

Linward Shivers 

REVIEWEDFORTHEATTORNFIG~L 

BY: Morgan Nesbitt