. I.

Hon. S. M.Pliler

County Auditor Opinion No. O-6333 Re: Whois liable for the additional Taylor County tuition fee of the children transferred Abilene, Texas from the Abilene State Hospital Independent School District to the City of Abilene Independent School District? Dear Sir: Anda related question.

Wehave your opinion request which is stated in your letter as follows:

“***An independent school district has, pursuandto law, been created and is nowin existence in the Abilene State Hospital Area. Thebounds of the independent school district so created are co-extensive with the bounds of the Abilene State Hospital. The Abilene State Hospital is located approximately two miles southeast of the City of Abilene. There are about 200inmates of this institution whoattend this school. All of the inmates attending the school are afflicted to the extent that they are nowin the hospital. There are anumberof adult employees wholive in the hospital area, andalso in the independent school area. These adult employees have a numberof children whoare of scholastic age. These children
are normal children, andare not inmates of the institution. Theschool which is operated andmaintained in the above mentioned independent school district at the Abilene State Hospital does not have anormal curriculum, or course of study, but is mostly handicraft teaching. Therefore, the normal children, cannot attend the school so conducted in the Abilene State Hospital independent school district. Therefore, they
are being transferred by the County Superintendent to the Abilene Independent School District maintained within the City of Abilene Hospital independent schooi Texas. TheAbilene State is maintained and operated by the State moneyof $25.00 per capita, andno other funds have been given this particular independent school district. The $25.00 per capita apportionment is, of course, transferred with each student transferring to the Abilene Independent School District in theHon. S. 14.ililer, page 2

City of Abilene, but this amountis insufficient to carry the child, or children, through anine-months school, but only carries him, or them, for a period of four months. TheAbilene city independent school district charges a tuition fee as provided bylaw in the following amount: $5.00 per monthper child for transfers such as the above children, in the elementary grades; and $6.50 per monthin the junior high school grades; and $7.50 per monthin the senior high school.

“Now, the question he desires to have answered is: \!hois liable for the additional tuition fee of the children transferred from ,the Abilene state Hospital independent school district to the City of Abilene independent school district; andalso should this additional tuition, or could the additional tuition, be paid from the k,qualization Fund, as provided in House Bill Number176, Chapter 373, of the Fortyeighth Legislature, andwhich bill was passed and finally approved on May2’7, 1943. ***I’ ._,,,~ Theadditional tuition cannot be paid from the Equalization Fundas provided in House Bill Number176, Chapter~373, 48th Legislature for the reason that the Abilene Independent School District is ineligible to receive State aid, byreason of the fact that it has morethan 500 scholastics. Section 1 of Article 1 of that Act provides that only those districts which had not fewer than 20nor morethan 500original enumerated scholastics were eligible for aid, with three certain exEIP%~“

,“~L District.

none of which are applicable to the Abilene independ-

:-Jeare sure that the Abilene Independent

.~,~ School District has a scholastic population of more than 500.

In Slocomb v. CameronIndependent School District, 1.16Tex. 288, 288 S.::!. 1064, certain scholastics were duly transferred from other school districts of the county to the Cameron Independent School District. TheBoard of School Trustees of the CameronIndependent School District entered anorder requiring these pupils to pay tuition at the rate of ti50.00 per year for high school students and $32.00 for students in grades below the high school, less transfer moneyreceived. Thefather of these pupils refused to pay the tuition and instituted anaction to restrain the school board from attempting to collect the amounts alleged to be due. TheCourt held that the Independent School District could charge tuition to non-resident scholastics under Article 2760 of the Revised Civil Statutes of 1911, (which Article is almost identical with Article 2696, Vernon’s Annotated Civil Statutes) and in the course of its opinion said:‘ion. 3. ‘+I.i,;liler, page 3

“It is our view that the Legislature, in enacting this article; did not intend to require any independent district in this state to educate a scholastic free of charge anylonger than the ,funds transferred with such scholastic would pay such pupills proportionate part of the expense of operating the schools of such district. In other words, as long
as the state apportionment will operate the schools of the independent district, the transfer pupil, whose state apportionment is also transferred, is not required to paytuition. But, whenthe schools of the independent district mustcontinue their termwith money raised by local taxes levied upon the property within such district, then the transfer pupil, anon-resident of such district, mustpay nreasonable tuition.”

For cases in accord see Huckv. Public Free Schools of the City of ,Austin, 290 S. \:i.1118; Musev. McKinneyIndependent School District, 35 S. %. (2d) 780. These cases were under Article 2696 of Revised Civil Statutes of 1925. See also the case of Love v. City of Dallas, 40S.W. (2d) 20, decided bythe SupremeCourt of this State onMay16, 1931, wherein the Court pointed out:

“For morethan fifty years statutes have been in effect permitting transfers from one school district to another, and someconsideration mustbe given to the construction of the Constitution which the enactment of these statutes implies. Since the Constitution does not permit the taxation of the people of a school district for the support of that district, except upon avote of the people of the district, it is not debatable that the Legislature cannot compel one district to use its funds andproperties for the education of scholastics from another district, without just compensation. However, in view of the long operation of the transfer statutes, webelieve that where
a school district has facilities andteachers in excess of those necessary for its ownscholastics, the state has the power to require it to accept transfers from another district, but only upon the paymentof reasonable compensation therefor. ***‘I
It, therefore, is apparent that under the authority of Slocomb v. CameronIndependent jchool District, andLove v. City of Dallas, supra, a receiving independent school district has the right to collect areasonable tuition from non-resident scholastics sufficient to compensate the receiving district forHon. S. M. :~liler, page 4

the education of trmsferred scholastics, whenthe transferred funds received are not sufficient.

Thepupils or their parents or guardians are liable for this tuition.

Yours very truly

By/s/ C. F. Gibson c* :‘* Gibson, Assistant

APPROVES:

ivIAY 12, 1945 /s/ Carlos C. Ashley FIRSTASSISTANT

AT'L'ORNEY

GENWAL

APPROVED:

CPINIi)NCijivIMITTEE BY: CL@,CHAIRMAN

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