. I. 

Hon. S. M. Pliler 

County Auditor 

Opinion No. O-6333 

Re: Who is 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: And a related question. 

We have your opinion request which is stated in 

your letter as follows: 

“***An independent school district has, pursuand to law, been created and is now in existence in 

the Abilene State Hospital Area. The bounds 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 200 inmates of this institution who attend this 

school. All of the inmates attending the school are 

afflicted to the extent that they are now in the hospital. There are a number of adult employees who live 

in the hospital area, and also in the independent 

school area. These adult employees have a number of 

children who are of scholastic age. These children 

are normal children, and are not inmates of the institution. The school which is operated and maintained in 

the above mentioned independent school district at the 

Abilene State Hospital does not have a normal 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 schoo i 

Texas. The Abilene State 

is maintained and operated 

by the State money of $25.00 per capita, and no 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 the 
Hon. S. 14. ililer, page 2 

City of Abilene, but this amount is insufficient to 

carry the child, or children, through a nine-months 

school, but only carries him, or them, for a period 

of four months. The Abilene city independent school 

district charges a tuition fee as provided by law in 

the following amount: $5.00 per month per child 

for transfers such as the above children, in the elementary grades; and $6.50 per month in the junior 

high school grades; and $7.50 per month in the senior high school. 

“Now, the question he desires to have answered 

is: \!ho is 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; and also should 

this additional tuition, or could the additional tuition, be paid from the k,qualization Fund, as provided 

in House Bill Number 176, Chapter 373, of the Fortyeighth Legislature, and which bill was passed and 

finally approved on May 2’7, 1943. ***I’ ._,,,~ 

The additional tuition cannot be paid from the Equalization Fund as provided in House Bill Number 176, Chapter~373, 

48th Legislature for the reason that the Abilene Independent 

School District is ineligible to receive State aid, by reason 

of the fact that it has more than 500 scholastics. Section 1 

of Article 1 of that Act provides that only those districts 

which had not fewer than 20 nor more than 500 original enumerated scholastics were eligible for aid, with three certain exEIP%~“,“~L District. 

none of which are applicable to the Abilene independ- 

:-Je are sure that the Abilene Independent 

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

In Slocomb v. Cameron Independent School District, 

1.16 Tex. 288, 288 S.::!. 1064, certain scholastics were duly transferred from other school districts of the county to the Cameron 

Independent School District. The Board of School Trustees of 

the Cameron Independent School District entered an order 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 money received. The father 

of these pupils refused to pay the tuition and instituted an action to restrain the school board from attempting to collect 

the amounts alleged to be due. The Court 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 any longer 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 pay tuition. But, when the schools of the independent district must continue their term with money 

raised by local taxes levied upon the property within 

such district, then the transfer pupil, a non-resident 

of such district, must pay n reasonable tuition.” 

For cases in accord see Huck v. Public Free Schools 

of the City of ,Austin, 290 S. \:i. 1118; Muse v. McKinney Independent 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, 40 S.W. (2d) 20, decided by the Supreme Court of this State on May 16, 1931, 

wherein the Court pointed out: 

“For more than fifty years statutes have been 

in effect permitting transfers from one school district to another, and some consideration must be 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 a vote of the people of the district, it is 

not debatable that the Legislature cannot compel one 

district to use its funds and properties for the education of scholastics from another district, without 

just compensation. However, in view of the long operation of the transfer statutes, we believe that where 

a school district has facilities and teachers in excess of those necessary for its own scholastics, the 

state has the power to require it to accept transfers 

from another district, but only upon the payment of 

reasonable compensation therefor. ***‘I 

It, therefore, is apparent that under the authority 

of Slocomb v. Cameron Independent jchool District, and Love v. 

City of Dallas, supra, a receiving independent school district 

has the right to collect a reasonable tuition from non-resident 

scholastics sufficient to compensate the receiving district for 
Hon. S. M. :~liler, page 4 

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

The pupils 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 

FIRST ASSISTANT AT'L'ORNEY GENWAL 

APPROVED: CPINIi)N CijivIMITTEE 

BY: CL@, CHAIRMAN 

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