“““““““““” A~~~RIUEX GENERAL 

OFTEXAS 

Auerrnr is. TBxnn 

December 7, 1959 

Dr. J. W. Edgar 

Commissioner of Rducatlon 

Austin, Texas 

Opinion No. WW-755 

Re: May the Central Rducation Agency approve a 

program for non-English 

speaking children pursuant to House Bill 51, 

56th Legislature, Regular 

Session, which shall cover 

a period of less than 

Dear Dr. Edgar: three (3) months? 

Your request for an opinion recites that House Bill 

51, Acts 56th Legislature, Regular Session, 1959, page 1052 

(Article 2654-lb, Vernon's Civil Statutes) authorizes the 

Central Education Agency to develop a pre-school Instructional 

program for non-English speaking children. 

Section 2 of House B111.51 provldes: 

"The program for non-Rnglish speaking 

children shall cover a period of three (3) 

months. . . .n 

Your request points out the problem that has arisen 

in connection with the effectuation of the program as follows: 

"In consultations with persons experienced 

In teaching non-English speaking children, it 

was determined that this program would be most 

beneflclal for eligible children if operated 

and administered in the summer months immediately prior to September when they would be 

entering their first grade. Conferences further 

developed that in some districts a program for 

a full sixty-day period was not essential; that 

the regulation should provide for a 40 to 60-day 

period at the election of the participating district. Further It was pointed out that a teacher 

supply for the program on a 60-day, three-month 

basis covering June, July and August, would be 
Dr. i. W. Edgar, page 2 (W+755) 

seriously hampered. Most teachera eligible for 

such a program already teach on a re&zlar nlnemonth basis and simply would n6t sign up for 

another three-months summer tenn.” 

The Legislature has unquestioned authority to provide 

for a mandatory period of Instruction. Whether the Legislature 

has provided for a mandatory period or whether Section 2 Is 

mere1 7 directory canno% be determined solely from the use of the 

word 'shall." 

It was contended in Smith v. Morton Independent School 

District, 85 S.W.2d 853 (Tex.C'iv.App. 1933, writ di smlssed) 

hat a contract was illegal and unenforceable which did nbt'comply with the provisions of Article 2’781. which provided that "all 

12 month contracts . . . with employees herein mentioned shall begin on July 1st and end on June 3Oth...". The Court held: "The 

statute does not afflrmatlvely declare that a contraot covering 

definite months OS then school year would be void, nor Is there 

any penalty attached to the Aot of the partlea In oontractlng 

otherwise than speolfled in the statute. We think the statute 

in the partloular discus6lon is merely direotory." 

The Supreme Court, In Chlsolm v. Bewles Mills, 287 

S.W.2d 943, held that-the thirty-d.ay~mng reqwrement in 

Art. 3523, Texas Revised Civil Statutes, 1925, was not mandat.ory* stating the applloable rule of oonetruotlon as Sollowb: 

"There Is no absolute teat by whloh it 

may be determined whether a statutory provlslon Is mandatory or dlreotory. The fundamental rule Is to ascertain and give effeot 

to the leglslatlve Intent. Although the word 

lshall' 1s generally construed to be mandatory, 

It may be and frequently IS held to be merely 

dlreotory. In determlnlng whether~the Leglalature Intended the partloular provlslon to be 

mandatory or merely dlreotory, oonsideratlon 

should be given to the entlre sot, Its nature 

and objeot, and the oonsequknoes that would 

follow from eaoh oonstliuotlon. Provlslone 

whloh.are not of the essenoe of the thlng to 

be done, but whloh are lnoiuded for the purpose 

of protnotlng,the proper, orderly and prompt 

oonduot of bualneee, are not generally regarded 

as mandatory,” 
Dr. J. W. Edgar, page 3 (WW-755) " ' 

It Is obvlous.from a *ding of Its provisions, especially Section 1, that the pWpose:of the statute ia to provide for a program of instruction In basic English words for 

non-English speaking children to better enable them to complete 

successfully their first year of work in the public schools. 

The teaching of these basic English words, and not 

tierely the conducting of a 3-month period of instruction, Is 

the essence of the thing to be done. 

An'interpretatlon of Se&ion 2 which required that 

every program set up pursuant to the statute cover a 3-month 

period would defeat the purpose of the statute when it Is posslble to accomplish the purpose In a lesser period of time and 

when It Is not practical to set up the program oii a 3-month 

basis, since this might keep some eligible school districts 

from participating. It should be assumed, of course, that it 

was intended that a program could be approved under which the 

purpose of the statute could be accomplished. 

The Central Education Agency Is given the retiponslbllity of developing the program. It 1s presumed that the Leglslature Intended to confer such Incidental powers as are necessar 

to render effedtlve the Dower ,granted. Faikner v. Memorial 

Gardens Association, 298-S.W.26 934 (TexTi- X.V.ADD. .~~__.,. 1. Therefore. 

the agency ha the power to determine whether a program cov&& 

a lesser perl:d than 3 months can substantially accomplish t&e 

statutory purpose. 

It Is therefore our opinion that Section 2 of H.B. 51 

is directory. If, In the opinion of the Central Education 

Agency, it Is possible to accomplish the purpose of the statute 

In less than 3 months and It Is not practical to conduct a 3- 

month program, then a program of less than 

proved. 

SUMMARY 

The Central Education Agency may approve 

3 months may be ?pa program for non-Rngllsh speakin children 

pursuant to House Bill 51, Acts 5 2 th Legislature, Re ular Session, 1959, page 1052 

(Article 2 f 5&-lLb,Vermon's Civil Statutes), 

which covers a period of less than three (3) 

months provided the agency finds that the 
~purpose of the progz?am, 'as expressed In 

Se'ctlon 1 of the Aot, can'be accomplished 

by a shorter period of Instruction. 

Yours very truly, 

WILL WILSON 

Attorney General OS Texas 

BY 

JAO:bh:ljb 

APPROVED: 

OPINION COMMITTEE 

W, V. *ppert, Chairman 

Ray Loftln 

c. PC. Richards 

Riley Fletcher 

L. P. Lollar 

RF(TIEWEDFORTREATTORNWQENERAL 

BY Leonard Passmore