. . - 

E ORNEY GENERAL 

OF EXAS 

Aus~liu ~LTEXAS 

WILL WILSON 

*%-ro- GENERtbL 

February 13, 1961 

Dr. J. W. Edgar Opinion No. WW-994 

Commissioner of Education 

State Department of Re: Whether the State under the 

Education Foundation Program Act (ArtAustin, Texas icle 2922-11, et seq.) by 

way of State allocations has 

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 question which reads in part as follows: 

"Unquestionably, their /Fne children's 

residence in the private school located wi cl in 

the school district is bona fide for all purposes -- maintenance and care, education and 

treatment. The private school Is operated for 

profit. . . . 

"We have 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 for maintenance and training. . . . 
. . 

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

"It is the possible subsidy of a private 

school operated for profit that gives us concern In this problem of first impression. 

Necessarily and legally would it follow that 

such a private school Is relieved of education 

costs (to a school district wherein the institution is located and the children reside) when 

It determines that enrollment of such children 

In the public schools will 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 interpreted as subsidizing 

such private school. 

Article 2901 of Vernon's Civil Statutes states: 

"Every child In this State of scholastic 

age shall be permitted to attend the public 

free schools of the district or independent 

district in which It resides at the time it 

applies for admission, notwithstanding that It 

may have been enumerated elsewhere, or may 

have attended school elsewhere part 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 scholastic year, shall be 

Included In the scholastic census and shall be 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 shall admit 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 such person or his parents or legal 

guardian reside within said city, town or district." 

Article 2922-11 of Vernon's Civil Statutes states: 
Dr. J. W. Edgar, Page 3 (W-994) 

"This Act shall be known as the Foundantion 

School Program Act. 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) full months of the 

year, and to establish the eligibility requirements 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 question before us nor have 

we been able to find any authority which would prohibit any 

child or children from enrolling in the free public schools 

in the district in which their residence is established, 

whether enrolled In a private school or otherwise. On the 

contrary, the statutes pertaining 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 

. . . in which it resides . . ." and "All children" shall be 

entitled to the benefit of the public school if such person, 

his parents, or legal guardian reside within each city, town 

or district. There is no restriction or limitation on the 

classes of children who may take advantage of the free public 

schools whether they reside in private schools, foster homes, 

or with their own parents. (Dnphasls ours) 

Attorney General's Opinion 0-7263 (1946) states as 

follows: 

"The general rule appears to be that in 

the absence of express and specific statutory 

restrictions limiting the classes of pupils 

living within a school district who shall be 

eligible for public school privileges or free 

attendance, a child of school age living in a 

school district permanently with no present 

intention of removal, with a guardian or one 

who stands In loco parentis to him, free from 

control of the parents or emancipated, is entitled to all school privileges as a resident 

of the district for school purposes, even 

though the parents are non-residents . . ." 

It Is true that the question propounded involves a fact 

question but where it can be determined that there will be 

little or no benefit to the private schools, either directly 
Dr. J. W. Edgar, Page 4 (WW-994) 

or indirectly, and where public school attendance can only 

benefit the child or enhance the child's progress, the emphasis should be on amplifying rather than restricting the 

means which will permit children to obtain as much education, 

enhancement, or benefit as possible. 

In connection with the benefits to private schools, it 

is interesting to note that buildings used for school purposes are exempt from taxation and this applies to private 

schools as well as public schools. Cassiano v. Ursuline 

i%% 

64 Tex. 673. The Court states in this opinion as 

"The education of the masses Is now 

recognized as a function of state government, Those who, from charitable considerations, to forward sectarian views, 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 cannot be too thoroughly performed, 

and which the state has never assumed that it 

had either the means or the machinery of doing 

sufficiently well 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 rule herein set out concerning no limitations or 

class restrictions in the statutes as to children eligible 

for free public school attendance where residence is established and where it can be proved to the satisfaction of 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 district has the responsibility 

to educate, free of tuition, children within the district residented, enrolled in and under the custody of a private school 

for exceptional children for all purposes, where the private 

school determines that enhancement of the children's progress 

(physical, mental and otherwise) will result from enrolling 

them in local public 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 attendance where a bona fide residence has 

been established, a school district, therefore, 

has the responsibility to educate, free of tuition, 

children within the district residenced and enrolled 

In a private school for exceptional children where 

it is determined that enhancement of the children's 

progress will result from public school attendance. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

1BW:mm 

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