                              AusTaN na.TEXAS


                               March     9,   1951


Hon. J. W. Edgar                               Opinion No. V- 1154
Commissioner   of Education
Texas Education Agency                         Re:   Authority of the State Boa,rd
Austin, Texas                                        of Education to transfer     the
                                                     territory  of a militaryreser-
                                                     vation to a contiguous school
                                                     district,

Dear    Sir:

           You request the opinion of this office concerning  Senate
Bill 274. Acts 44th Leg., 1935, ch. 112. p* 299 (Article 2756(b).
V.C.S.,)  and ask the following questions:

            1. “Is the State Board            of Education empowered by
       terms of the Act to include            the territory   of a military
       reservation  in a’contiguous            school district?*

             2. “If the first question is answered in the affirma-
       tive, is the territory  included within the contiguous school
       district to be considered    a part of that district in the de-
       termination   of the local funds to be charged to the dis-
       trict under Section 5, of Article 2922-16,    Vernon’s   Civil
       Statutes 7 ”

               Section   1 of Senate   Bill 274 provides:

             “That the State Board of Education is hereby auth-
       orized and empowered to establish independent school
       districts  upon any military reservations     located within
       the State of Texas, upon such terms and conditions as
       may be agreed upon by the State Board of Education and
       the military authorities;   and such districts   may be en-
       titled to enumerate its scholastics.   to share in the State
       per capita apportionment,    and such other privileges    as
       are now granted to independent and common school dis-
       tricts.

             “Provided,    that the children who are entitled to
       attend the schools thus established,       shall be those of
       the officers,   warrant officers,    soldiers   and civilian
       employees     residing or employed upon such reserva-
       tions.
Hon.   J. W. Edgar,   page 2      (V-1154)




             “And provided, that wherever in the opinion of the
       State Board of Education, the number of children resi-
       dent upon any military reservation      is not sufficient to
       warrant the establishment     of a separate school district,
       that such military reservation     shall for the purpose of
       this Act be included in any other school district under
       such regulations    as the Board of Education may deter-
       mine.    Provided further, that the Board of Trustees       of
       such district shall have the authority to transfer to any
       other independent or common school district maintain-
       ing adequate facilities   and standards for elementary,
       junior or senior high schools,    as set up by the State De-
       partment of Education and Southern Association,         any
       school children who can not be provided for by the dis-
       trict of their residence.”

          Section 2 of that Act sets out many details with regard to
the procedure   to be followed in the establishment   of a school dis-
trict on any military reservation.    Section 3 is the repealing pro-
vision and Section 4 the emergency     clause which provides in part:

             “The fact that the children within the scholastic  age
       who reside on military reservations     located within this
       State, are not accorded the same privileges     of and oppor-
       tunities for public free school education as is accorded
       other children living within the State. a O .*

          It will thus be seen that the primary purpose of Senate
Bill 274 is the education of children residing on military reserva-
tions, this primary purpose to be accomplished      by one of several
methods set out in the Act.    That this is the primary purpose is
indicated further by the caption of the bill. which provides in part:

             “An Act authorizing the State Board of Education
       to establish Independent School Districts        upon any
       military   reservations    located within the State of Texas,
       upon such terms and conditions which may be agreed
       upon by the State Board of Education, and the military
       authorities;   provided such districts     may be entitled to
       enumerate its scholastics,        to share in the State per
       capita apportionment;      providing what children may at-
       tend such schools; further provided that the children
       of such military     reservations    may be included in other
       school districts;    providing that such children may be
       transferred    to other schools. , D 0 eO1

          With regard to your first question, it should be noted that
in one part of Section 1 it is provided that a “military reservati~on
shall for the purpose of this Act be included in any other school
Hon.   J. W. Edgar,   page 3     (V-1154)




district” by the State Board of Education.      Thus, should they de-
termine that “the number of children resident upon any military
reservation   is not sufficient to warrant the establishment    of a
separate school district,00 the State Board of Education has the
power to include the military reservation      in another school dis-
trict.   However, this inclusion,  it is provided, is only “for the
purpose of this Act.’

           It has been pointed out that the purpose of Senate Bill
274 is to provide educational opportunities     for children on mil-
itary reservations     equal to those provided for other children in
the State.    It would therefore follow that the State Board of Edu-
cation may include a military reservation      in another school dis-
trict for the purpose of allowing the scholastics     resident upon
the reservation     to attend school and be enumerated    in the scholas-
tic census in the school district in which they are included.

           In this regard, it was held in Att’y Gen. Op. O-4829
(1942) that the territory    included in a government,reservation       is
still a part of the school district in which it was located prior to
its becoming a part of a government reservation.           This opinion
holds also that the children who reside upon this reservation         are
entitled to attend school in the district of their residence.       Thus,
should the State Board of Education decide to take action under
the ‘inclusion’    provisions    of Senate Bill 274, the only effect of
that action would be to allow the children to attend school in an-
other district and be included in that district for per capita pay-
ments.    For all purposes,     the territory  w.ould remain in the
school district in which it was originally      located.

          Our attention has been called by the attorneys for the
El Paso Independent School District to Att’y Gen. Op. O-2027
(1940) and especially    that phrase wherein it is stated “the ter-
ritory of the military reservation     was included in the San An-
tonio Independe,nt School District.“     It is argued that this state-
ment constitutes    an opinion of the Attorney General that Senate
Bill 274 authorizes   the transfer of territory     as well as scholas-
tics.  A reading of the entire~ opinion, bearing in mind the exact
question presented,    is all that is necessary    to refute this con-
tention.  The question presented in your request was not before
the Attorney General in Opinion o-2027,        and neither did he un-
dertake to consider whether the transfer        of territory,  if author-
ized, was for the purpose of Senate Bill 274 only.          The constitu-
tional question was certainly not raised or considered          in that
opinion.

         It should be noted that at the time of the passage of
Senate Bill 274 the transfer of territory  did not result in any
monetary gain to the recipient of the territory   transferred.
Hon. J. W. Edgar,    page 4     (V-l   154)




State contributions   to school districts   prior to the Gilmer-Akin
Act were entirely upon a per capita basis and were thus depen-
dent upon the number of scholastics       transferred.   Articles  2695-
2699a, V.C.S.     Based upon this, it follows that prior to Senate
Bill 274 the students residing upon a military reservation        were
enumerated for scholastic      purposes in their home district    (i.e.,
the district within which that portion of the military reservation
was included) even though they might attend school in another
district.   In the event a child resident upon a military reserva-
tion attended school in a school district other than the one in
which he resided,    in order to transfer the per capita funds to the
teaching district the parents of each child would have to apply
for a transfer.    The effect of Senate Bill 274, and we think one of
its purposes,    was to permit the district which was teaching the
child to enumerate him and thereby receive the per capita funds
directly instead of indirectly by way of a transfer in each case.

           A construction     of Senate Bill 274 which would allow the
State Board of Education to transfer        territory  of a military res-
ervation from the school district        within which it is located to an-
other school district would raise a serious constitutional          ques-
tion. Section 35 of Article III of the Texas Constitution         provides
that “if any subject shall be embraced in an act. which shall not
be expressed     in the title, such act shall be void only as to so
much thereof, as shall not be so expressed.”           The caption to
Senate Bill 274 provides only “that the children of such military
reservations    may be included in other school districts.”         Under
the views above expressed,        the effect of the action of the State
Board of Education is only to include the children in another
school district;    hence the body of the act and the caption are in
accord.    Should the body of the Act be construed as allowing the
inclusion of territory     for all purposes,   this subject is not ex-
pressed in the caption and its omission would render this part
of the act unconstitutional.      Gulf Ins. Go. v. James, 143 Tex. 424,
185 S.W.2d 966 (1945); Pyote‘Ind.       School Dist. v. Dyer, 24 S.W.2d
37 (Con-m. App. 1930).

          It has been held that a court will always endeavor to in-
terpret a statute so that it will be constitutional  and will decline to
adopt a construction   which will result in unconstitutionality,   if by
any reasonable   construction  the enactment can be sustained.
Greene v. Robison. 117 Tex. 516, 8 S.W.2d 655 (1928); 39 Tex. Jur.
206, Statutes, Sec. 111. The construction    we have applied to Senate
Bi~ll 274 would be in compliance   with this well settled rule of stat-
utory construction,   since the caption and the body of the act would
be in complete harmony -- applying only to the transfer of scholas-
tics rather than territory.
                                                                                   245
 Hon.   J. W. Edgar,   page 5       (.Vr !1,54)      ,.,. ;~,



             We ,are informed tpat,,the,:district     ~mvolved in your pres-
   ent request is the El Paso Independent School ,District and, that,~ ,
   the military reservation      involved~is the FortBliss      Military ,Res-
   ervatiou.    This, is not the first time that this.office    has,been con-
   fronted with the very s,itu&onabout          which you ask,. By virtue
   of Article VI, Section 4, of Senate Bill 116, Acts 51s.t Leg., ,R.S.
   1949, ch. 334, p0 625, ‘the State ,Comptroller~ of Public Accounts
   was’to supply then information       necessary   to determine    the local
,. fund charge under Section 5 of Article ,2922-16,         V.C.S.,   for the
   1949-50 ‘school year. ‘.Part of the information       that officer was to
   supply was the area in each school.dis,trict        comprised     of non-
   taxable Federal-owned       military reservations.      The,,Comptroller.
   s.ubmitted;information,    on the El: Paso, Independe,nt School District
   which was to the effect that the Fort, Bliss Military;Beservation
   was not included ~with& ~the,El .Paqo District.        The district filed
   a Motion for Leave to, Fi,le Petitioirfor       Mandamus in the Supreme
  Court.of    Texas to,compel      the Comptroller    to submit information
   including Fort Bliss ‘wi‘thin’the ~&strict. basing this upon the or-
   ders of the State Board of Education issued under Senate Bill 274
   which attempted to add the, territor,y as well asp the scholastics
   to the El Paso district.     .This office, representing,the      Comptroller,
   fiied a reply in opp&iti9n       to this motionin   which the points pre-
   sented in this opinion <were: raised.       .The Supreme- Court, ,on Oc-
   tober 5. 1949, entered its order overruling .the motion for leave
   to file.

             What has been stated in answer to your first,question
 precludes     any’ lengthy ‘discussion      of your second question.     In de-
 termining     the amount of.local funds to be charge,d to each school,
 district to support the, ,Fomida,tion School Progr,am, Section 5 of,
 Article. 2922-16,     V.C.S.,, pr,qvides a, formula to be used by the
 State Commissioner        ,of ,Education.      To arrive at the final amount
 of this charge, Section,5;, above., makes the following proviso:             :.
                                              .- ,,~
                                                     ,~
             ‘Provided    however, that in any district containing’ ”
       . . . Federal-owned       military reservations      . . . the amount
       assigned to such school district shall be reduced in the
       proportion that the area included in the above named
       classifications    bears to the total area of the district.
            m
                                         _....
           It necessarily    follows ~from the conclusion that the action
 of the State Board of Education inincluding          a ~military reserva-
 tion in a contiguous school dis,t&t         is for school attendance and
 census enumeration       Only, that. the, territ&y,. oft the military reser-
 vation is not to be considered       as being in the contiguous ,district
 for any ather purpose.       This would include the “federal-owned        mil-
 itary reservation”     proviso of the local fund charge provision of
 the Gilmer-Akin     Act.   (Sec. 5 of Article 2292-16,       V.C.S.)
246
      Hon.   J. W. Edgar,   page 6     (V-1154)




                  While the former State Board of Education interpreted
       the Act as authorizing    the transfer of territory    as well’as   scho-
       lastics,  the action of the State Board of Education, as presently
       constituted,  supports the conclus~ion reached in this opinion.        A
       question similar to that here presented arose with regard to the
       San Antonio Independent School District and’the Fort Sam Hous-
       ton and Kelly Air Force Base Military Reservations.            There, as
       here, the Board of Education which operated prior to the Gilmer-
       Akin Act had, under Senate Bill 274. transferred         the military   res-
       ervations to the San Antonio District,    and the question arose as
       to the effect of the transfer on the local-fund     charge provisions
      ,of the present education laws.      This question was brought to the
       attention of the Board by the attorney for the San Antonio District
       at the Board’s meeting in Austin on May 8, 1950. In that case,
       the district claimed that it should receive credit under Section
       5 of Article 2292-16,   V.C.S.,  for the amount of area of the mil-
       itary reservations.    At that meeting, it was brought out that the
       Commissioner      of Education had decided that Senate Bill 274 did
       not have the effect of changing the area of the San Antonio’Dis-
       trict and that the area of the military reservation       was not attach-
       ed to the San Antomintrict.         The State Board of Education voted
       to “sustain the decision of the Commissioner         of Education in the
       local fund assignment    under the Foundation Program         Act to the
       San Antonio Independent School District.-


                Thus it is seen that in the only similar circumstances
      the State Board of Education has interpreted       Senate Bill 274 in
      the same manner as that bill is interpreted      in this opinion.  This
      administrative  interpretation,  which is in accord with the decision
      reached herein, is entitled to weight in reaching a final decision
      as to the meaning of Senate Bill 274.    Moorman v. Terrell,      109 Tex.
      173. 202 S.W. 727 (1918); San Antonio UmonJunioi                  ist. v.
      Daniel, 146 Tex. 241. 206S.W.Zd    9%7I947)   .




                                     SUMMARY

                   Senate Bill 274, Acts 44th Leg., 1935, ch. 112, p.
             299, authorizes   the State Board of Education to include
             territory   of a military reservation in any other school
             district only for the purpose of allowing scholastics    to
             attend school and be enumerated in the scholastic     census
Hon.   J. W. Edgar,   page 7      (V-l   154)




       in the school district in which the area is included.
       Any inclusion under that bill has no effect upon the
       amount of local funds to be charged under Article
       2922-16,  V.C.S.

                                                Very   truly yours,

APPROVED:                                        PRICE DANDZL
                                                Attorney General
C-K. Richards
Trial and Appellate    Division

Jesse P. L&on. Jr.
Reviewing Assistant                                     Assistant

Charles D. Mathews
First Assistant

Price Daniel
Attorney General




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