## THEA~TORNEYGENERLAL OF TEXAS



## &A& 29-J v.c.s April 12, 1961

Honorable Ted Schulz ' CountyAttorney Fort Bend County Richmond, Texas OpinionNo. WW-1038
Re: Whether a person who refuses on February 1, 1961to answer the census trustee as to a child under his controland who is

Dear Mr. Schulz: within~theprescribed age, is subject to be prosecuted for such failureunder 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 enumeratehis eligible children for school census purposes on February 1, 1961, can form the basis of a criminalprosecution for violation of Article 294,Vernon's Penal Code. Article 294,Vernon's Penal Code, reads as fo$lows: "Everyperson having control of any childwhich will be over seven and under seventeenyears of age on the first of Septembernext thereafter and who, being requestedby the censustrustee to prepare the formprescribedby 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 informationnecessary 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 statementof facts in regard to said children, or shall fail to return the form left at his home in his absence to the censustrustee as requiredby law, shallbe finednot less than five nor more than ten dollars." There is nothing inArticle 294 which limits its operationto the month of January, and if there be such a limitation it must occur elsewhereAn the statutes. That portion of our laws dealingwith the taking of the school-

census is enumerated inArticle 2816,Vernon's Civil Statutes, which reads in relevantpart 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 eighteenyears of age on the first day of the followingSeptember, and who are residents of the school district on said first day of February," If Article 2816were intendedby the Legislatureto 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 intendedas exclusive of the enumeratedboundary dates.

In the view we take of the questionpresentedby your request, the determinationof this matter will not be necessary. The use of the word "shall" is usuallv mandatorvwhen used in statutes,Brinkley v. St Supreme Court has ;ate,320 S.W.2d 855ITex. Grim. lp59),but our held in a long line of decisionsthat 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 secondarypublic education in this state comes out of the statetreasury and is distributedamong the several school districtsaccording to the results of the school census. Without the basic informationderived from the census, this distributionof funds would fall into chaos and confusion.For this reason, the Legislaturemust have intended their words, 'The census trustee, between the first day of January and the first day of February
. . . shall-takea census . o .II to be directory only and not mandatory,because the contrary interpretationcould leave an unfinished censuswith no means of completion. For the same reasonwe concludethat 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 questionaireof 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 childunder his control and who is within the prescribedage, is subject to be prosecuted for such failureunder the provisions of Article 294 ofVernon's Penal Code.Hon. Ted Schulz, Page 3 (~~-1038)

Very truly yours, WILL WILSON Attorney General of Texas

John E. Leonarz AssistantAttorney General
JEL:br APPROVED: OPINION COMMITTEE W. V. GEPPEXT, Chairnan
W. Ray Scruggs Maston Courtney Linward Shivers REVIEWEDFORTHEATTORNFIG~L BY: Morgan Nesbitt