                                                                        579



        OFFICE   OF   THE   AlTORNEY    GENERAL     OF TEXAS
                               AUSTIN




Hon. T. M. Trlmble                          --d &           AZ   -/&-
Flrat Aas't State Superintendent            -
Department or Education
Au&In, Texas

Dear Sirr         opinion No. o-7128
                  Rer Whether pupils       or   parochial




         Your request for
carefully considered by
your request aa follows:




                      hey actually attend.


    you ‘fgp’your consideration and opinion. Attached
    to this request is a copy of the opinion rendered
    by Mr. Robert Butler.”
         The attorney’s opinion referred to in your letter
reads aa followsr




                                                                              i
                                                                   sao   ’


San. T. M. Trlmble - Page 2


         “Mrs. Bred Relpert, the bearer of this letter,
    -ahosechildren, RugSn8 Relp8rt, age eleven and
    Geraldine lielprrt,age ten , reaitlein the Robstoun
    school district, baa requested an opinion vlth
    reference to the children rldlng the buses operated
    39 the Rob8tOW School Dlatrlct for the purpose of
    3ttendlng the Parochial   sohool, knOWn 88 St. John'8
    ?arOchial School, St Robstown, TSX88. The tvo
    children am vlthln school age.    By the term8 of
    Article 2839 of the Revised Civil Mutes     of the
    State of Texas, school children are apeciflcally
    exempt from public school attendance requlremsnts
    of the state when in attendance of a recognized
    parochial school vhlch haa as the basis of it8 curri-
    culum the teaching o? good citizenship and the Eng-
    'Ash language in all subjects.

           "There is no provlalon in the statutes  pro-
    hibiting children who live In a school district from
     enrolling ln the pub110 school end avalllng   them-
     zelves of the benefits of the system, in 80 far a8
     :renaportation 18 concerned, by virtue of such en-
     rollment. Certainly, If enrolled, they are entitled
     trJ thla service. The quostlon then arises   a8 to
    whether or not the trustees are under a legal duty
     to deny enrollment prcvided the purpose is to use
     the school bus only. The cases wlth reference    to
    vhether or not the board ha8 the admlnlstratlve
    authority to deny admlaslon to the public free school8
     have set out facts vhereln the persons denied have
     violated some express  regulation of the trustees in
     the operation or the school system or who have con-
     travened article 2898 R.C.S. of the State of Texas.
    (SE? M;op    vs. Bourtcm Independant School District 29 S.W.
              .
         "Should these children then be enrolled In the Robs-
    tovn district In the school system in vhlch there is
    available to them school work of a grade appropriate to
    their present advancement and then not In fact attend
    the classes in the public school system but ride the buses
    from their homes to Robstovn, disembark, attend the
    parochial school and return for traneportation at the
    exact place where students in attendance upon the public
    schools embark for roturn to their homes, then to deny
    them the right to get on the buses, the board of trustees
    vauld have to expressly pas8 a written regulation pro-
    Mbltlng them to get on inasmuch as they vould be en-
    rolled In the public school system and under the jurls-
.




    , T. M. Triiblo   - Page 3
     diction of the school 80 long aa the9 were on the
     buses. In this connection,    section five,  article
     seven of the ccnstltutlon vould certainly not be
     violated by the trustees, as the service    they ex-
     tend to the children in the vay of bus rid88 vould
     relate to the chlldrensl enrollment l.nths public
     8ChO018. Certain19 the trustres    would be under no
     duty nor vould the9 have the right to prosecute either
     parents or children for failure   to attend the public
     school because the9 are 8pecl?lcally exempt under
     the provision o? the statute.
          "It la m9 opinion, therefore, that I? the
     children are properly enrolled In their district
     that they have a right to ride the school buses
     by virtue of such enrollment. The9 also have the
     right to attend the parochial school and not be aub-
     mitted to any of the penalties of the truancy LaVm.
     It la further my opinion that the board of trustees
     would not be in a position of giving an9thing of value
     to the parochial school, but only giving the natural
     right o? transportation to those enrolled in lta
     schools that an9 other student would be entitled to
     actually in attendance In the public school.
            "I do not, b9 this opinion, mean to aap that an9
      trustees  have the right to give anpthlng of value to a
      sectarian  school, but sin@9 state that they have
      not the right to deny a child transportation vhere
      he is enrolled in the public school and not violating
      an9 regulation of the school or of state lava or
      constitution .relatlngto the operation and conduct o? such
      public school. Should the 8ChOOl di8tlliCtdesire to pro-
      tect itself against an9 encroachment upon it8 iunds
      allocated to the district under the per capita appor-
      tionment act by the authorities adl&LiStSring the same,
      then I vould suggest that an9 entry be made in the
      minutes of the meeting to th8 following effects

           "Be It enacted by the board of trustees   of the
      Robatovn Independent School District that Eugene Eel-
      pert and Geraldine Helpert, who reside in this district
      be permitted to enroll in the Robatovn school's dis-
      trict for all purposes except actual attendance upon
      Classes, the said children being excused therefrom by
      Peason o? their contemporaneous enrollment for attendance
      in the St. John's Parochial School at Robatovn, Texas, it
      being understood b9 the governing authorltiee of this
      school that this permission haa been granted In their
      sound discretion and in the interests of justice.
                                                                        582


Hon. T. M. Trlmble - Page 4

          “Should 9ou desire to contract for the right of
     these children to ride on the bus, that Is, sell the
     right of transportation, I:vi11 be pleased to Submit
     8n opinion in this connection. There la ample case-
     book authorlt9 for the sale or leaae of school pro-
     pert9. Certain type8 Of real property, hovever, IEUSt
     be sold 8ubject to the approval of the Texas State
     Board of Education. The oplnlcn of ths attorney
     general covere on19 the giving 0s free transportation
     to student8 enrolled only In the parochial schools,
     and this b9 way of analogy.’
          Seotlon 7 0s Article I, Con8tltutlon   0s   Texan,   reads
a8 follovs:

           “IV0money shall be appropriated or dravn
     from the Treasury for the benefit of an9 sect,
     or religious society, theological or religloua
     seminary;  nor shall propert  belonging to th;
     State be appropriated for an9 such purposes..
          Section 5 of Article VII, Constitution of Texas,       pro-
vides In part as follovsr
          ”      and no lav shall ever be enacted ap-
     proprl;&    any part of the permanent or available
     szrhoolfund to any other purpose whateveri nor
     shall the same or any part thereof ever be ap-
     propriated to or ueed for the support of any
     sectarian school; . . .’
             Article 2899, Vernon’s Annotated Texas Civil Statutes,
Providea I
          ‘No part of the public school ?und shall be
     appropriated to or used for the support of any
     sectarian school.”
          Construing the above quoted constitutional and statutory
 provisions this department In an exhauatlve and vell considered
 opinion, Ho. o-4220, held that the pupils of a parochial school.
 may not be lavrully transported to their parochial achoola on a
 public school bus. We enclose herewlth a copy of Opinion
 lo. O-4220.
          It 18 our opinion that the plan.outllned In the
 Attorney's opinion quoted above, whereby the students of the
    .
.
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        Hon. T. M. Trlmble - Page 5

        parochial schools would be enrolled In the public schoola
        merely for the llmlted purpose of riding in the public school
        bus to their parochial schools, 18 plainly and palpably sn at-
        tempt to do by Indirection that which could not be done
        directly and Is merely a subterfuge which cannot evade the
        plain provisions of our State Constltutlon, above set out.

                  Ne, therefore, hold that the proposed plan above
        set out Is Illegal and cantraw to our State Constitution.
                                             Yours very truly
                                           ATTORREY GENERAL OF TEXAS


                                            By   ~8Fiff~
                                                      .
                                                           Asslstsnt
