                    E
                            OF     TEXAS




                               August   31,   1961



Honorable J. W. Edgar                   Opinion      No.   WW-1127
Commissioner   of Education
Austin,  Texas                          Re:   Whether non-resident      scholastics
                                              who were residents of a given
                                              school district when the last pre-
                                              ceding school census was taken
                                              may be included in that district’s
                                              average daily attendance; and
                                              whether children of scholastic
                                              age who are placed in a district’s
                                              kindergarten   program may be in-
                                              cluded in that district’s   average
Dear Dr.   Edgar:                             daily attendance.

        Your letter of May 30, 1961,      presents     two inquiries   the first   of
which is substantially as follows:

             Whether scholastics who do not reside in the district
        whose schools they attend may be included in average daily
        attendance figures for Foundation Schobl Fund benefits if
        they were residents of that district when the last preceding
        annual school census was taken.

         Section 1 of Particle 2922-13,   Vernon’s    Civil Statutes, after stat-
ing that the number of professional      units to be allotted to each school
district shall be determine$by      that district”6 average daily attendance
during the preceding scholastic      year, continues,    in part, as follows:

             ‘1. . . provided that the attendance of non-resident
        scholastics   whose grades are taught in their home districts
        shall not count toward teacher eligibility,  unless the trans-
        fer of such scholastics  has been approved by the County
        School Board and the State Commissioner      of Education.
        . . . r,
Honorable   J. W.   Edgar,   page 2.(WW-1127)




         Under the facts stated in your inquiry, no formal transfer has
taken place.    Nor is it suggested that the grades to which these scholas-
tics have advanced are not taught in the district in which they reside.
Such are the only exceptions     recognized   by Section 1 of Article 2922-l 3 ‘-
in its exclusion of non-resident    scholastics  from average daily attendance
calculation.

        The statutes dealing with the annual school census in no way sug-
gest that the census will be determinative    of scholastics”  residence.
Article 2816, et seq.,    Vernon’s Civil Statutes,  Therefore,    the fact that
the scholastics  in question were residents   of the district when the last
preceding census was taken is a matter of no consequence.

         Iii Palmer v. District Trustees      of District No. 2l, 289 S. W. 2d 344
(Civ.App.     1956, error ref.,  n. r. e. ), in which certain scholastics  were at-
tending school in a district adjacent to the one in which they resided,       the
Court interpreted     Section 1 of Article 2922-13     as meaning (p. 346) that:

             ‘1. . . the result of such attendance without a formally
        approved transfer would be that no financial benefits from
        state funds under the teacher eligibility provisions   of the
        Gilmer-Aikin    Act would accrue to the school district . . . I’

           It is accordingly  our   opinion that non-resident  scholastics who have
not been properly transferred,          and whose grades are taught in their home
districts,     cannot be included    in average daily attendance figures used for
computing Foundation School          Fund benefits,  even though they were residents
of that district when the last      preceding school census was taken.

        You have ~further inquired       substantially   as follows:

              Whether children of scholastic   age who are placed in a
        district’s kindergarten program     should properly be included
        in computing that school district’s   average daily attendance.

        At the outset we wish to make it clearly understood that this depart-
ment does not purport to pass upon the fact question of whether the subject
kindergartens   are first grade classes     by reason of the curriculum taught in
such classes.    FOP purposes of answering your legal question we proceed
upon the assumption    that the classes   to which six year olds have been as-
signed are in fact kindergarten    classes.
.   .




        Honorable   J. W.         Edgar,   page 3 (WW-1127).




                Since Section 1 of Article 2922-l 3, Vernon’s       Civil Statutes,  es-
        tablishes the “average   daily attendance for the district” as being the cri-
        terion upon which professional     units are to be allotted     to school districts
        under the Foundation School Program        Act,  the precise   question  befnre us
        is whether “average    daily attendance for the district” includes attendance
        of children of school age in kindergartens      maintained by the districts.      It
        is our opinion that this question must be answered in the negative.

                 School districts   derive their power by delegation from the State.
        Love v. City of Dallas,     120 Tex. 35, 40 S. W. 2d 20 (1931).    Artic,Le 2919.
        Vernon’s    Civil Statutes,  supplies the only authority in our statutes for
        the establishment     and maintenance    of a kindergarten by a school district.
        At the, time the Gilmer-Aikin      law was enacted and at ,the time the instant
        opinion was requested~this      statute read in part:

                      “The trustess of any school district in Texas,   upon peti-
                tion of the parents or guardians of twenty-five    or more child-
                ren under the scholastic   age   down to and including five years,
                residing in said district,  shall establish public free schools
                of the said district for the training of children within said ages
                residing in said district . . .

                      ‘1. . . the cost of establishing and maintaining such a kin-
                dergarten shall be paid from the special school tax of said dis-
                trict. ” ~(Emphaqis, added).

                 The above restrictions  on the authority of school districts to main-
        tain kindergartens   have been re-enacted   in an amendment of Article 2919,
        Vernon’s   Civil Statutes, by House Bill 56, passed during the First Called
        Session of the 57th Legislature   and made effective upon signature ot the
        Governor as recently as August 18, 1961.       The relevant portion of the
        statute now reads as follows:

                     “The governing board of any school district in Texas is
                hereby authorized to establish~ and maintain as a part of the
                public free schools of said,district  one or more kindergar-
                tens for the training of children residing in said district who
                are under the scholastic   age and who are at least five years
                of age.

                        ‘1. . .
Honorable   J. W.   Edgar,    page 4,(WW-1127)




              “The cost of establishing and maintaining such kinder-
        gartens shall be paid from the special school tax of said dis-
        tricts. ‘I ,(Emphasis  added).

        The foregoing quotations make two things clear:   (1) kingergartens
are for children under the scholastic age, and (2) kingergartens   are to be
maintained from funds of local school districts.

         The scholastic  age in Texas is “over six years of age and under
eighteen years of age at the beginning of the scholastic    year. ” Arts.   2901,
2902, V. C,. S. Hence, there can be no doubt that the legislative    intention
in Article 2919, Vernon’s   Civil Statutes,  is to exclude six year olds from
kindergartens   which~ are part of the public free schools.

        Article   2922-11.   Vernon’s   Civil   Statutes,   provides   in part:

             “It is the purpose of this Act to guarantee to each child
        of school age in Texas the availability   of a minimum Founda-
        tion School Program.    . . . ”

        From this alone~ it might be argued that regardless     of where a
child is placed in the public school system,   even if it be kindergarten,  if
the child be six years of age the school district is entitled to credit for
his attendance and to the consequent financial benefits accruing from the
minimum Foundation School Fund.

         However,   it is a settled rule of statutory construction,    being known
as the fule of pari materia,     that in interpreting a statute it is to be viewed
together with other enactments       on the same subject matter and construed
so as to be consistent with such enactments where possibl,e.          Love v. City
of Dallas,  supra.    The statutes referred to above are in pari materia
since they relate to the same class of persons or things.         Upon viewing
the statutes together it is evident to us that the Legislature     has manifested
an intent to extend state support to local school districts     for the education
of children over six years of age in grades 1 through 12 and not in kinder-
gartens.

        This construction  is also supported by the rule of interpret.ation
which holds that in case of a conflict between a general provision and a
special provision  dealing with the same subject,  the former is co&rolled
Honorable   J. W.   Edgar,   page 5 (WW-1127)



or limited by the latter.   39 Tex. Jur. 212. Statutes,   Sec. 114. Here we
have a statute which deals specially with the authority of school districts
to teach children of certain ages in kindergarten     and we have another statute
which concerns the state aid which is to be afforded school districts      in
the teaching of children of school age.    This latter statute primarily    re-
lates to the financial administration   and allocation of school funds.   To
the extent that they deal with the same subject matter,     the teaching of
children in kindergarten,   the former,   being the more specific,    must pre-
vail over the latter=.

         Then in contemplation     of law,, as it now stands, there are no chil-
dren of scholastic   age in kindergartens     maintained by school districts be-
cause school districts    are not empowered to maintain kindergartens        for
children of scholastic    age.  For that reason,     we cannot ascribe to the
Legislature   an intention in the Gilmer-Aikin      Law, Article 2922, Vernon’s
Civil Statutes,  to allocate state funds to local districts    on the basis of the
attendance of six-year     olds in kindergartens.

         Moreover,      it is a rule of long standing that in construing     statutes
an interpretation    will not be adopted that will lead to absurd or ridiculous
consequences,     if the language is susceptible      of any other meaning.      39
Tex. Jur. 222, Statutes,       Sec. 118. If the school districts    are without au-
thority to maintain a kiudergarten        for children of six years of age, it
necessarily   follows that the districts     are without authority to employ tea-
chers for such purposes.         Hence, the minimum Foundation School Pro-
gram cannot in fact accrue to the benefit of a six-year          old in a kinder-
garten any more than to a child of school age that is not in school at all.
Then is it reasonable       to count the attendance of such students?       Clearly
it is not.  Since the financial assistance       afforded by the Gilmer-Aikin
Act cannot produce any direct benefit to kindergart,ens          or to six-year    olds
in kindergarten,     it would be altogether illogical     and, indeed, absurd to
count the attendance of such chil,dren for purposes of the Foundation Pro-
gram.

        In view of the foregoing, it is the opinion of ,this office that chil-
dren of scholastic  age who are attending a school districtas kindergarten
are not to be included in average daily attendance figures for that dis-
trict.

                                      SUMMARY

        Scholastics who are not residents of a given school district
        may not be included in average daily attersdance figures for
        Foundation School Fund benefits,  even though they may have
                                                                            -   .




Honorable    J. W.   Edgar,   page 6 (WW-1127)




          been residents of that district when the last preceding
          annual school census was taken, unless properly trans-
          ferred.  Children of scholastic   age who are placed in a
          school district’s kindergarten   program  should not be in-
          cluded in the average daily attendance of that district for
          the purpose of determining    Foundation School Fund bene-
          fits.



                                          Yours    very truly,

                                          WILL WILSON
                                          Attorney General       of Texas




                                          /%
                                           BY              -
                                                Henry Braswell
                                                Assistant



HB:lTdh



APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman,

W. Rays Scruggs
Elmer McVey
John Reeves
Ben Harrison

REVIEWEDFORTHEATTORNEYGENERAL
BY:  Howard W. Mays
