                THEA~TORNEYGENERAI.
                                OF     -XAS
                               Aus-      II.TEXAS




                             September    6, 1960


Dr. J. W. Edgar                           Opinion      No. WW-931
Commissioner   of Education
Austin,  Texas                            Re:       Application     of Article
                                                    2900a to the Houston
                                                    Independent     School
                                                    District    under the
Dear Dr.    Edgar:                                  stated   facts.

             You have asked      for   the' opinion      of   this   office   on the
following    recitation:

              "On or about the 26th day of December,            1956,
       several   plaintiffs    filed    an original   complaint    in
       the United States District         Court for the Southern
      District    of Texas against       the Houston Independent
       School District      on the authority      of Brown v. Board
       of Education,      to speed the process      of desegregation
       of the Houston Independent         School District.       The
      Defendant District       duly answered the complaint         and
       the case was called       to trial    on Ray 20, 1957, after
      which the Court entered         its order on the 15th day
       of October,    1957, that the Houston Independent           School
      'District   commence desegregation         on a non-discrlmina-
       tory basis from and after         such time as necessary
       arrangements     could be made.

              "Article     2900a,    Texas Civil     Statutes,    was
      passed by the Texas Legislature.               This Statute     be-
      came effective        August 23, 1957, after          which the
      Houston Independent          School District        has made
      efforts     to comply therewith.           In order to comply
      with Article        2900a, the Houston Independent           School
      District      caused petitions       to be executed       by some
      87;OOO qualified         electors    residing     in the district,
      ivhich was far in excess          of the 20$ required        by the
      Statute.       Thereafter      an election     was held in which
      the majority        of the qualified       electors    voted not
      to abolish       the dual public       school    system. In short,
Dr.   J.   W. Edgar,   page 2 (WW-931)


       the Houston Independent     School District         has done
       everything     possible to comply with both         State and
       Federal    law.

              “Thereafter,   on the 12th day of August, 1960,
       the Federal District     Court issued Its order requir-
       ing desegregation     in the Houston Independent   School
       District    commencing in the first   grade.  A copy of
       said order is attached.

              “Obviously,      the Houston Independent       School
       District     is confronted      with the dilemma of losing
       its accreditation        and its Foundation     Program Funds
       and complying       with the mandate of the Federal Dls-
       trict    Court.     It should be observed      that the dual
       public    school    system as such has not been abolished
       In that there will         remain segregated    systems except
       for the first       grade in this present      scholastic     year.
       Moreover,      the Board of Trustees       has not abolished
       the dual public        sohool   system nor has the Board of
       Trustees     abolished     allowance   for transfer    out of
       the district.         In short,    the Federal District      Court
       rather than the Board of Trustees            has brought about
       the noncompliance        of the Houston Independent        School
       District    with Article       2900a.”

          You state that:   “The dual public    school   system as
such has not been abolished   . . .’    It is unnecessary    to pass
upon that question  in the present   opinion.

            The answer to your question   hinges upon the              construc-
tion to be accorded   Section 1 of Article    2900a, which             provides
as follows:

              “That no board of trustees        nor any other
       school   authority     shall have the right    to abolish
       the dual public       school system . . . unless by a
       prior vote of the qualified        electors   residing   in
       such district      the dual school    system is abolished.”

           Prior to the enactment of Article      2900a, the Supreme
Court of the United States had held that racial         discrimination
in public  education   was violative    of the Constitution      of the
United States.     Brown v. Board of Education,     347U.S. 483,349
U.S. 294.   However, as the Supreme Court of Texas pointed            out
in McKinney v. Blankenship,      282 S.W.2d 691, the Court In the
Brown case did not direct     Immediate and complete      integration
in all schools.    The Court recognized,    and has since recognized,
Dr.   J.   W. Edgar,   page   3 (W-931)
by a long line of decisions,    that time would be required,    the
length of which would be largely    dependent upon local   condi-
tions,  for the full accomplishment    of Its decree.

             We believe     that a careful     reading    of Article   2900a
evidences    recognition     by the Legislature       of Texas that hasty
and precipitate      action   by the school     districts     of the State
in making the transition         from racially     segregated    to inte-
grated schools     could conceivably      Impede the effectiveness         of
our schools.      The language of the Act furnishes            ample justi-
fication   for the conclusion        that it was designed       to legally
achieve   the maximum time for making the transition.

              It is significant         that Section      1, above quoted,
provides    that "no school       board or other school            authority"
shall have the right to abolish               the dual system of oublic
schools.      The pains and penalties            of the Act are evidently
ap licable      only if the dual s stem is abolished                by either:
(17     the school    board,   or     (27     other school      authority.     The
Act provides      no penalty     where the dual system is abolished
by judicial      decree.     This leads us to the question:                By what
authority    has the dual system of public               schools    been abolished
in the Houston Independent           School District?           The school     board
has entered no order calling              for abolition      of the dual system.
In fact,    the board felt       impelled,       for reasons     it deemed suf-
ficient,    to offer     legal   resistance        to the entry of the order
which was in fact entered           and Is now in the process            of per-
fecting    an appeal from that order.               In this connection,        It
Is significant       that Article       2900a provides       no penalty     where
the dual system of public           schools      Is abolished      by judicial
decree.     Such Is the case here,            and hence we must conclude
that the dual system of public               schools   for the Houston Inde-
pendent School District          has not been abolished            by the "board
of trustees      or other school        authority,"      as prescribed      by Ar-
ticle    2900a.

               'Ihis Article    provides     in substance    that any person
who violates        the Act will be guilty         of a misdemeanor and shall
be fined not less than $100 nor more than $1000.                    Should we
construe     the Act as prohibiting          abolishment    of the dual school
system by judicial         decree,    such as we have here,       it would be
tantamount to placing          the local     school   board in a legal     dl-
lemma, with their         prosecution     assured by either      State or
Federal     authority,     and from which there could be no extraca-
tion.     If they sought to impede or obstruct              the execution      of
the Federal       Court decree the members of the school             board
would thereby        render themselves       subject   to contempt by the
Federal     courts.      On the other hand, If they did not prevent
execution      of the decree they would subject            themselves    to a
Dr.   J.   W. Edgar,   page 4 (WW-931)


possible  fine of not to exceed $1000 under the State law. It
has been said that a court will never adopt a construction
that . . . will    lead to absurd conclusions   or consequences
if the language of the enactment is susceptible       of any other
meaning.    39 Tex.Jur.,  Statutes,  Section  118,Staples v. State,
112 Tex. 61,245 S.W. 639; Fenet v. McCuistion,        105 Tex. 299
147 S.W. 867; Shipley v. Floydada Independent      School District
(Comm.App.),   250 S.W. 159.

          We believe  that the construction    which we have ac-
corded to the statute  is not only in keeping with the actual
language employed but is calculated    to achieve   the evident
purpose of the enactment as well.     This conclusion   la in ac-
cordance with the argument advanced by the Houston School
Board.

                                  SUMMARY

              Under the facts    as stated,     the Board of
       Trustees     of the Houston Independent        School Dis-
       trict,    or other school     authority,   has not
       abolished     the dual system of public        schools
       within the meaning of Artlale          2900a, Vernon's
       Civil    Statutes,   and hence neither      the school
       district     nor its trustees     are subject     to the
       penalties     of said Article.

                                      Yours   very   truly,

                                      WILL WILSON
                                      Attorney General        of   Texas



                                  By Leonard Passmore
LP:dhs                               First  Assistant


APPROVED:
OPINION COMMITTEE
W. V. Geppert,  Chairman
Gordon Cass
Houghton Brownlee,   Jr.
John Reeves

REVIEWEDFOR THE ATTORNEYGENERAL
BY: Henry Braswell
