Honorable    Dr. J. W. Edgar                      Opinion   No. H-63
Commissioner     of Education
Texas Education Agency                            Re:       The application    of the
201 E. Eleventh Street                                      Texas laws governing
Austin,   Texas 78701                                       residence   of minor
                                                            school-age   children
                                                            ,for public school altrnd-
Dear   Dr.   Edgar:                                         ance purposes.

      You have aubmitted several specific      questions to us concerning
the appropriate  dietrict  for a minor to attend school,   Generally   attend-
ance is governed   by $ 21.031(b) and (c) of the Texas Education Code:

                       “(b) Every child in this state over the age
               of six years and not over the age of 21 years on
               the first day of September     of the year in which
               admission     is sought shall be permitted      to attend
               the public free schools oi the district       in which he
               resides    or in which his parent,   guardian,     or the
               person having lawful control of him resides at
               the trme --he applies for admisston     notwtthstandtng
               the fact that he may have been enumerated
               ----                                                 in the
                schoLasti<. census oi a different   district    or may
               have attended school elsewhere       for a part 01 the
               yea*.

                       “(c) The board oi trustees   of any public free
               school distric-t of ILIS state shall admit into the
               public free schools of the district    free of tuition
               all persons over SIX and not over 21 years of age
               at the beginning of the scholastic    year if suchper-
                son or his parent. guardtan or person having law-
               fulontrol     resides within the school district. ”
                (emphasisadded).           .--




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        Honorable   Dr.   J.W. Edgar,   page   2 (H-63)




               While “residence”   may have various meanings for various purposes,
        and despite the fact that normally the residence     of a minor ia that of his
        parents [Gulf, C&S. F. Railway Co. v. Lemons  ----I   206 S. W. 75 (Tex. 1918)],
        the term has received    a particular interpretation   for school purposes  since
        1905 when, in an opinion to the then State Superintendent of Public Instruction,
        the Attorney General said;

                           “If the children have merely an ostensible
                     and not a substantial   residence    in the district,  if
                     they were sent toRockdale      for the sole purpose,
                     or even for the main purpose,       of participating  in
                     the advantages   of the public schools of Rockdale,
                     they are not entitled to free tuition.

                            “But if they were sent to reside in Rockdale
                     in good faith in order to give them suitable homes,
                     with the intention on the part of the father, and of
                     the persons   in whose care he placed them, that the
                     children should reside there permanently:        if the
                     educational   advantages    of the residents in Rockdale
                     were merely inctdental to their going there, and
                     other considerations     induced the father, in good
                     faith, to select that place as their home. I Lhink
                     the children are residents      of Rockdale within the
                     meaning of the school law, and entitled to free
                     tuition there, notwithstanding      that the domicile   of
                     the father is elsewhere.”

               Referring   to the foregoing    language,   this office In Attorney   General
        Opinion No. O-586 (1939) added:
                             “While we recoen?      re that a rmnor child may
                      acquire a bona ride residence       separate and apart
                      from its parents wlthin the contemplation        of our
                      school laws, we do not think that such bona fide
                      residence   IS established    by the mere physical pre-
                      sence of Ihn minor in another district for the pur-
                      pose of attending school.       School Dstrict   No. 1.




                                                p.   270
Honorable    Dr.    J. W. Edgar,    page    3 (H-63)

             etc. v. School District (Sup. Ct. Mich. 1926).
             211 N. W. 60; Yale v. West Middle School
             District, 59 Conn. 489, 13 L. R.A. 16l;Anno.
             26 L.R.A.   581.”

       These rulings have been followed in subsequent opinions                   of the
Attorney General Nos. O-762 (1939); O-1384 (1939) and O-7176                     (1946).

      In the last cited opinion     it was aaid,       by way of illustration:

                     “The   question propounded      by you involves a
             fact question.     If the residence    of the child in ques-
             tion has been established       as a good faith substantial
             residence    with her Aunt in District #2 it is our opi-
             nion that in such event the Aunt would be authorized
             to enumerate the child as a scholastic          in District #2.
             However,     if the residence    of the child in District #2
             is merely an ostensible       residence    for the purpose   of
             attending school there and not a good faith substantial
             residence,     then in such event our ruling would be
             that the child should be enumerated by its parent’s in
             District #l. ”

      Your   precise    questions   to us are as follows:

                       “(1) Mother and father have and reside at home
             in    School District A, minor child is living in District
             B     with grandmother    or other relative to attend school
             in    District B, but child spends weekends and summers
             in    mother and father’s    home.

                     “Is minor child a bona fide resident            of School
             District B for school purposes?

                    “(2) Mother and father are separated without
             legal proceedings   being instituted.  Mother, a resident
             in District A. Father,    a resident in District B. The
             minor child is living at all time with mother in District
             A, and attends school in District A.

                     “Is the minor child a bona fide resident            of
             District A for school attendance purposes?




                                       p.    271
                    Y




Honortble   Dr.    J, W. Edgar,     page 4 (H-63)




                      “(3) Mother-father are rtridtntr of Dirtrict
             A.     Minor child, legal disabilitiee   not removed   by
             court,    liver in apartment in District    B, attends
             school and work8 to support himself in District        B.
             Visits on weekends in mother-father         home.

                     “Is minor child a bona fide resident of
             District   B for school attendance purposes?

                    “(4) Mother-father    art residents   of District
             A. A guardianship,      pursuant to law, has been ob-
             tained on minor child by a relative,      a bona fide
             resident in District B. Minor child attends school
             in District  B and resides with relative guardian.

                   “Is minor child a bona fide resident             of District
             B for school attendance purposes?

                    “(5) Mother-father   have a residence  (own
             home) in District A. Mother-father      also have a
             residence   (rented home) in District B. The family
             including minor child spend about equal time at
             the two residences.     The minor child attends school
             in District  B.

                        “IS minor   child a bona fide resident      of District
              B?

                     “(6) Same situation as in 5 except the rtsi-
             dence in District A is rented, and the residence     in
             District B is owned.

                        “Is minor   child a bona    fide resident   of District
              B?

                     “(7) Mother-father   are separated.   No court
              order.    Child living with relative for all purposes
              with consent of mother and father.      Child attending
              school in District where relative resides.




                                        p. 272
Honorable   Dr.   3. W. Edgar,    page 5     (H-63)




                    “Is the minor child a bona f:de resident of
             the relative’s district for school 5 tttndanct purposes?

                    “(8) Same as 7 except        mother-father     not
             separated.

                    “Is the minor child a bona fide resident of
             the relative’s district for school attendance purposes?”

        Each of these presents a fact question as to the reason for the dif-
ferent residences,     whether it is a bona fide residence    as opposed to an
“ostensible   residence   for the purpose of attending school. ” Each instance
will have to be determined     upon an examination     of the detailed facts, which
we do not have before us. In each instance the school official         charged in
the first place with responsibility    for the decision will have to weigh all
the facts and conclude that the residence      is either bona fide or merely
ostensible.

                                 SUMMARY

                    Residence      of a minor for the purpone of
             determining     his eligibility    for free public educa-
             tion under $ 21.031 of the Texas Education Code,
             normally    is that of his parents.       Whether residence
             elsewhere     qualifies   the minor will depend upon
             whether the residence         is bona fide or is merely
             an ostensible     residence     for the purpose of attend-
             ing a different     school.

                                           Very truly yours,
                                      A




                                   Cl’Attorney        General    of Texas




                                     p.    273
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      Honorable   Dr.   J. W. Edgar,   page 6 (H-63)
                                                0




          DAVID M. KENDALL,      Chairman
          Opinion Committee




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