              E
                      OF      ?i?lEXAS

                     i?mJsTnla-   1% Texan


                    October 18, 1962


Hon. J. W. Edgar                     Opinion No. WW-1452
Commissioner of Education
Texas Education Agency               Re:     Whether a board of trustees
Austin, Texas                                of a school district which
                                             teaches only elementary grades,
                                             retain any rights to control
                                             or protest and the county
                                             school board has the authority
                                             to cancel applications for
                                             transfer of resident pupils
                                             who have attained high school
Dear Mr. Edgar:                              status.
          Enclosed in your letter of September 20, 1962, is a
copy of a ruling by your office, rendered on July 11, 1962, which
holds that a resident school district that does not teach high
school grades, is legally ineligible to invoke by protest or other-
wise the jurisdiction of the county school board to annul or can-
cel parental applications for transfer of resident high school
scholastics to a school district teaching high school grades.
          Article 2696, Vernon's Civil Statutes, reads in part:
          "Any child lawfully enrolled in any district
     or independent district may by order of the county
     superintendent, approved In writing,   be transferred
     to the enrollment of any other district or lndepen-
     dent district in the same county upon a written ap-
     plication of the parent or guardian or person having
     lawful control of such child, filed with the county
     superintendent, not later than June 1; provided that
     any district or independent district being dissatis-
     fied with any transfers made by approval in writing
     of the county superintendent may appeal from such
     action to the county board of trustees   of said
     county who shall have the right to annul and can-
     cel the transfer allowed by the county superintendent.
          "The applicant shall state In said application
     that It Is his bona fide intention to send said child
     to the school to which the transfer is asked.
Hon. J. W. Edgar, page 2 (WW-1452)


          0               11
              .   .   .



          Article 2697, Vernon's Civil Statutes, reads:
          "Any child specified in the preceding article,
     and its portion of the school fund, may be trans-
     ferred to an adjoining district in another county,
     in the manner provided in said article. It must
     be shown to the county superintendent that the
     school in the district in which such child resides
     on account of distance or some uncontrollable and
     dangerous obstacle, is inaccessible to such child."
          Under Article 2696, supra, it is mandatory that the
county superintendent approve an application for transfer when
said application is roperly and duly filed. Attorney General's
Opinion O-1073 (19397 and O-1129 (1939). In addition the Article
sets forth a procedure whereby approval of the transfer by the
county superintendent may be appealed to the county board of
trustees. The jurisdiction of the county board may be inroked
by any school district or independent school district dissatisfied
with such transfer and upon obtaining jurisdiction of the matter
the board shall have the right to cancel or annul the transfer.
          The provisions for appeal contained in Article 2696,
supra, have been held to apply to Article 2697, supra, Attorney
General's Opinion 0-6548 (1945).
          In Attorney General's Letter Opinions, Volume 382, p. 941
(1938) we find the following language:
          II
           . . .pupils whose grades are not taught at
     home are entitled to transfer to districts where
     their grades are taught, and such pupils will be
     under the supervision and control of the school
     district to which the pupils transfer.
               .pupils whose grades are not taught in
     their home district may transfer to any high school
     of higher classification, under the language of this
     statute. It is our opinion that the local board of
     trustees has no authority to prescribe the district
     to which such pupils must transfer, this matter being
     within the discretion of the tranaferee.”             .

          We are of the opinion that under the holding in Attorney
General's Letter Opinions, Volume 382, p. 941 (1938), a school
Hon. J. W. Edgar, page 3 (WW-1452)


district which does not teach the high school grades, is not an
interested or proper school district and has no standing to invoke
the jurisdiction of the county board of trustees as provided in
Articles 2696 and 2697, sup-a.
          This is not to say that the county board of trustees
may never exercise its discretionary power to cancel or annul
tranfers, but simply means that before the power can be employed,
protest must be lodged by a proper school district. In absence
of jurisdiction being properly invoked, the cancellation by the
county board of an application for transfer is a nullity.
          Therefore, we are in full accord with your ruling of
July 11, 1962.
                    SUMMARY
         A school district which does not teach the high
    school grades has no standing to invoke jurisdiction
    of the county board of trustees under the provisions
    of Articles 2696 and 2697, Vernon's Civil Statutes,
    to cancel or annul the transfer of one of its resl-
    dent. scholastics to a school district which provides
    high school grades and in absence of proper jurls-
    diction the cancellation of such transfer by the
    county board is a nullity.
                               Sincerely,
                               WILL WILSON
                               Attorney General of Texas


0LB:mkh
APPROVED:
OPINION COMMITTEE
Howard W. Mays, Chairman
Paul Phy
L. P. Lollar
Sam Stone
Tom Peterson
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
