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E ORNEY GENERAL OF EXAS Aus~liu~LTEXAS WILL WILSON *%-ro- GENERtbL February 13, 1961

Dr. J. W. Edgar Opinion No. WW-994 Commissionerof Education State Department of Re: Whether the State under the Education Foundation ProgramAct (ArtAustin, Texas icle 2922-11, et seq.) by way of State allocationshas a responsibility to educate, free of tuition, children within the district residenced, enrolled in and under the custody of a private school for exceptional children for all purposes,where the prlvate school determines that enhancement of the children's progress (physical,mental and otherwise)will result from enrolling them in local Dear Dr. Edgar: public schools?
We have your letter of December 30, 1960, concerning the above stated questionwhich reads in part as follows:

"Unquestionably,their /Fne children's residence in the private school locatedwiclin the school district is bona fide for all purposes --maintenance and care, education and treatment. The private school Is operated for profit.

. . . "Wehave never questioned the eligibility of students residing in non-profit institutions, for example: Boysville located in Judson Rural High School District of Bexar County or the orphans'home located in Round Rock Independent School District of Williamson County,which assume complete custody of each child and is responsible formaintenance and training.

. . ...

Dr. J. W. Edgar, Page 2 (ww-994)

"It is the possible subsidyof a private school operated for profit that gives us concern In this problem of first impression. Necessarily and legallywould it follow that such a private school Is relieved of education costs (toa schooldistrictwherein the institution is locatedand the children reside)when It determines that enrollment of such children In the public schoolswill enhance their development and progress -- social,mental and otherwise.'
Your question resolves Itself to a determination of whether admitting children enrolled in private schools for exceptional children, operating for a profit, to public schools of Texas, tuition free,where all residence requirements have been met, could be interpretedas subsidizing such private school. Article 2901 of Vernon's Civil Statutes states: "Every child In this State of scholastic age shallbe permitted to attend the public free schools of the district or independent district in which It resides at the time it applies for admission,notwithstandingthat It may have been enumerated elsewhere,or may have attended school elsewherepart of the year." Article 2902 of Vernon's Civil Statutes states: "All children,without regard to color, over six years of age and under eighteen years of age at the beginning of any scholasticyear, shallbe Included In the scholastic census and shallbe entitled to the benefit of the public school fund for the year. The board of school trustees of any city or town or independent or common school district shalladmit to the benefits of the public schools any person over six and not over twentyone years old at the beginning of the scholastic year, If suchperson or his parents or legal guardian residewithin said city, town or district." Article 2922-11 of Vernon's Civil Statutes states:Dr. J. W. Edgar, Page 3 (W-994)

"ThisAct shallbe known as the Foundantion School ProgramAct. It is the purpose of this Act to guarantee to each child of school age in Texas the avallabllity of a minimum Foundation School Program for nine (9) fullmonths of the year, and to establish the eligibilityrequirements applicable to Texas public school districts in connection therewith."
We have been unable to find any authority, either statutory or case law,passing on the questionbefore us nor have we been able to find any authoritywhich would prohibit any child or children from enrolling in the free public schools in the district inwhich their residence is established, whether enrolled In a private school or otherwise. On the contrary, the statutespertaining to the free public schools. of Texas state that "Ever be permitted to atten d th; ;hild in this State
. . . shall

ree public schools of the district

. . . inwhich it resides

. . ."and "All children" shallbe entitled to the benefit of the public school if such person, his parents, or legal guardian residewithin each city, town or district. There is no restriction or limitation on the classes of childrenwho may take advantage of the free public schoolswhether they reside in private schools, foster homes, or with their own parents. (Dnphaslsours) Attorney General's Opinion 0-7263 (1946)states as follows: "Thegeneral rule appears to be that in the absence of express and specific statutory restrictions limiting the classes of pupils livingwithin a schooldistrictwho shallbe eligible for public schoolprivileges or free attendance, a child of school age living in a school districtpermanentlywith no present intention of removal,with a guardian or one who stands In locoparentis to him, free from control of the parents or emancipated, is entitled to all schoolprivileges as a resident of the district for schoolpurposes, even though the parents are non-residents

. . ."
It Is true that the questionpropounded involvesa fact questionbut where it can be determined that therewill be little or no benefit to the private schools, either directlyDr. J. W. Edgar, Page 4 (WW-994)

or indirectly,and where public school attendance can only benefit the child or enhance the child'sprogress, the emphasis shouldbe on amplifying rather than restricting the means which will permit children to obtain as much education, enhancement,or benefit as possible.
In connectionwith the benefits to private schools, it is interesting to note that buildings used for schoolpurposes are exempt from taxation and this applies to private schools as well as public schools. Cassianov. Ursuline i%% 64 Tex. 673. The Court states in this opinion as

"The education of themasses Is now recognizedas a function of state government, Those who, from charitable considerations, to forward sectarianviews, or for private profit, have organized or conducted schools,have assisted the state in the performance of a duty It owes to its citizens, which cannotbe too thoroughlyperformed, and which the state has never assumed that it had either themeans or themachinery of doing sufficientlywell without private assistance. I,

. . * Therefore,by virtue of the provisions of Articles2901, 2902, and 2922-11,Vernon's Civil Statutes, and In light of the general ruleherein set out concerningno limitationsor class restrictions in the statutesas to children eligible for free public school attendancewhere residence is established and where it can be proved to the satisfactionof the school district that little or no benefit, either direct or indirect, could accrue to the private school,but only to the children enrolled In such private school, it is the opinion of this department that a school districthas the responsibility to educate, free of tuition, childrenwithin the district residented, enrolled in and under the custody of a private school for exceptional children for all purposes,where the private schooldetermines that enhancement of the children'sprogress (physical,mental and otherwise)will result from enrolling them in localpublic schools.. .

Dr. J. W. Edgar, Page 5 (W-994)

SUMMARY There being no restriction or limitation in the statutes as to children eligible for free public school attendancewhere a bona fide residencehas been established,a school district, therefore, has the responsibilityto educate, free of tuition, childrenwithin the district residencedand enrolled In a private school for exceptional childrenwhere it is determined that enhancement of the children's progresswill result from public school attendance.
Yours very truly,
WILL WILSON Attorney General of Texas

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APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman
Vernon 0. Teofan W. Ray Scruggs Lawrence Hargrove F. C. Jack Goodman
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbitt BY Iola Barron Wilcox / Assistant