                  THE    I~TIUXZNEY           GENERAL

                              UBF%%XAS

                           AUSTIN.TEXAS      78711
c:W*wPORD c. MARTIN
 Ax-x-ORNEY GENRRAI-
                                 May 11, 1971




     Dr. J. W. Edgar                        Opinion No. M-854
     Commissioner of Education
     Texas Education Agency                 Re:   Liability of school district
     201 East 11th Street                         which operates only the first
     Austin, Texas 78701                          two years of high school for
                                                  tuition of its high school
                                                  pupils who transfer to another
                                                  high school district to com-
                                                  plete their junior and senior
     Dear Dr. Edgar:                              year's schooling.
               In your letter requesting an opinion from this office
     you submit the following facts:
                'An independent school district (Martlns-
           ville) operates a ten grade school, an accredlted
           two-year high school district. For several years,
           resident scholastics therein of junior and senior
           grade status have been attending the adjoining
           Nacogdoches district high school (with a few ex-
           ceptions); tuition provided for by their home
           district, and the Nacogdoches district designated
           as the receiving district for transportation pur-
           poses only.
                "Next year (1971-72), the Nacogdoches dis-
           trict will charge a tuition rate estimated at
           $172 for each of the non-resident students,
           grades eleven and twelve, attending Its schools.
           There are three other accredited 12-grade school
           districts which adjoin Martinsville; two are
           closer than Nacogdoches, one is three miles
           farther.


                 With regard to these facts you ask the following question:
                "Would the resident home district Martins-
           ville) be legally obligated to pay the 4172 tuition
           rate to Nacogdoches district on above-grade children

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Dr. J. W. Edgar, page 2                        (M-854)



     who transfer to and attend Nacogdoches district
     school, should the Martinsville school board
     arrange or agree with one of such other school
     districts for their education at a lower tuition
     rate?"

           The applicable laws of Article 2696a, Vernon's Civil
Statutes, and Sections 21.067-21.072, Texas Education Code, We
refrain from quoting these provisions of the law because their
Portiffns.'relating to your question were discussed and passed
upon In Attorney General's Opinion M-649 (1970) from which we
quote as follows3
          "Any pupil not more than twenty-one (21)
     years of age who has been promoted to a high
     school grade not taught in his home district
     shall have the right to transfer to and to
     attend a standardized, classified, or affll-
     iated high school either in his home county
     or in any other county in the state. Trans-
     fers of funds under such conditions shall be
     regulated by Sections 21.068-21.072 of this
     code.'
          "Sections 21.068-21.072, Texas Education
     Code, provide for a high school tuition fee to
     be paid by the sending school district to the
     receiving district for each pupil transferred.


          "Article 2696(a) Is silent regarding who
     pays tuition fees to receiving districts for
     the transfer of eligible pupils promoted to a
     high school grade not taught in their resident
     districts and who desire to transfer to a
     twelve-grade system. Sections 21.068-21.072
     of the Code, specifically place this respon-
     sibility on the sending school district. . + .'
          We have been informed that rior to the enactment of
Article 2696a (effective May 9, wW?-=      Texas Education Agency's
policy was that the boards of local school districts had no authority
to prescribe the district to which pupils whose grades are not
taught in their own districts must transfer, this matter being
within the discretion of the transferee. This policy was obviously
based on the holding In Attorney General's Letter Opinion, Volume
                          -4146-
Dr. J. W.   Edgar, page 3                         (M-854)



 82,    age 941, 1938, and Attorney General's Opinion WW-1452
?1962P. We quote from the holding in Attorney General's Opinion
WW-1452 (1962) In part as followsz
            'In Attorne General's Letter Opinions,
       Volume 382, p. 9e 1 (1938) we find the following
       language3
            8,
             . . .
            t1    .pupils whose grades are not taught in
       their io;e 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
       transferee.
            "This is not to say that the county board of
       trustees may never exercise its discretionary
       power to cancel or annul transfers, but simply
       means that before the power can be employed, pro-
       test must be lodged by a proper school district.
       In absence of jurisdiction being properly invoked,
       the cancellation by the county board of an applica-
       tion for transfer Is a nullity.
            "Therefore, we are in full accord with your
       ruling of July 11, 1962.
            "A school district which does not teach the
       high school grades has no standing . . . to cancel
       or annul the transfer of one of its resident scholas-
       tics to a sc$ool district which provides high school
       grades . . .
          Following the effective date of Article 2696a and on
June 7, 1969, the Texas Education Agency adopted its Revised Policy
statement relating to the transfer of pupils and mailed It to all
school administrators. We quote from the pertinent provisions of
this revised policy statement, Section 6.13 "Transfer of pupils",
as follows:
            "Any resident scholastic of a district
       whose grade is not taught within the district
       may be transferred for Foundation Program bene-
       fits at any time during the school year upon
                            -4147-
Dr. J. W. Edgar, page 4                       (M-854)


    proper application to the receiving district.
          "The receiving district may charge a tuition,
     fee not to exceed the difference between the dis-
     trict's actual expenditure per student In average
     dally attendance for the preceding school year,
     as determined by its board of trustees, and
     State aid received for that year. However,
     such tuition fee shall not exceed that of the
     preceding school year unless properly set out on
     the transfer application form prior to its execu-
     tion by the parent or guardian or person having
     lawful control of such child and the receiving
     district.
          11
           . . .
          "The resident district is responsible for
     the tuition fee on any transfer whose grade is
     not taught in the resident district and the
     receiving district shall notify all such resident
     district: in writing of the tuition, if any, to be
     charged.
          It is our opinion based on the prior Attorney General's
Opinions cited above and the policy statements of the Texas Educa-
tion Agency which are in conformity with the holding of these
opinions and the pertinent statutes, that a pupil who has been
promoted to a high school grade not taught In his home district
has a right to transfer to and attend any other accredited high
school in the State under the provisions of Article 2696a, Sec-
tion 1. The resident school district, which in this instance Is
the Martinsville School District, has the obligation to pay to
the receiving district the legally imposed high school tuition fee
for each pupil transferred.
          This opinion does not consider any matter relating to
the transportation of these transfer pupils.
                     SUMMARY
          A pupil who has been promoted to a high school
     grade not taught in his home district has a right to
     transfer to and attend any other accredited high
     school in the State under the provisions of Article


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      c   .




Dr. J. W. Edgar, page 5                           (M-854)



     2696a, Section 1, and the resident school district,
     which in this instance is the Martinsville School
     District, has the obligation to pay to the receiving
     district the legally Imposed high school tuition
     fee for each pupil transferred.
                             ~fjh3 very tru/:y,

                            c/i&&
                           i'           ic,;$%

                             Attort-kyG&era1   of Texas

Prepared by Ivan R. Williams, Jr.
Assistant Attorney Qeneral
APPROVED:
OPINION COMMI'PTRR
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Ben Harrison
James McCoy
Guy Fisher
Sally Phillips
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant




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