### “““““““““” 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 CentralRducation Agencyapprove a program

for non-English speaking

children

pursuantto House Bill 51, 56th Legislature,

Regular Session,

which shall cover a periodof less than Dear Dr. Edgar: three (3) months?

Your request

for an opinion

recites that House Bill 51, Acts 56th Legislature, RegularSession,

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: "Theprogramfor 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 personsexperienced 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 immediatelyprior to September when they would be entering

their first grade. Conferences further developed

that in some districts a programfor a full sixty-day

periodwas not essential; that the regulation

should providefor a 40 to 60-day periodat the election of the participatingdistrict. Further It was pointedout that a teacher supplyfor the program on a 60-day, three-month basis covering

June, July and August, would beDr. i. W. Edgar, page 2 (W+755)

seriously

hampered. Most teachera eligible

for such a program

alreadyteach on a re&zlarnlnemonth basis and simply would n6t sign up for another

three-months

summertenn.” The Legislature

has unquestioned

authority

to provide for a mandatory

periodof 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.2d853 (Tex.C'iv.App. 1933,writ di

smlssed) hat a contract

was illegal

and unenforceable

which did nbt'comply with the provisions of Article2

’781. whichprovided

that "all 12 month contracts

. . . with employees herein mentioned

shallbegin on July 1st and end on June 3Oth...". The Courtheld: "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 partleaIn oontractlng otherwise

than speolfled

in the statute. We think the statute in the partloular

discus6lon

is merely direotory." The Supreme

Court, In Chlsolm

v. BewlesMills,287 S.W.2d943, 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: "ThereIs 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 followfrom 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

Section1, that the pWpose:of the statute ia to provide for a programof 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 programset up pursuantto the statute covera 3-month period woulddefeatthe purposeof the statute when it Is posslble to accomplish

the purpose In a lesser periodof 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 programcould be approved underwhich 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 LeglslatureIntended

to confer such Incidental powersas are necessar to render

effedtlve

the Dower ,granted. Faikner

v. Memorial X.V.ADD. 1. Therefore. Gardens Association,

298-S.W.26

934 (TexTi- .~~__.,. the agency

ha the power to determine whether

a programcov&& a lesser

perl:dthan 3 months can substantially accomplish

t&e statutory

purpose. It Is therefore

our opinionthat Section 2 of H.B. 51 is directory. If, In the opinionof the Central Education Agency,

it Is possible

to accomplish

the purposeof the statute In less than 3 months and It Is not practical to conduct

a 3- monthprogram,

then a programof less than proved.

SUMMARY

The Central

Education

Agency may approve 3 months

may be ?pa programfor non-Rngllsh speakin children pursuant

to House Bill 51, Acts 2 5 th Legislature,

Re ular Session,1959, page 1052 (Article

2 f5&-lLb,Vermon's

Civil Statutes), which coversa period of less than three (3) monthsprovided

the agency finds that the~purpose of the progz?am,

'as expressed

In Se'ctlon

1 of the Aot, can'beaccomplished 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