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                        December 10, 1962

    Honorable 0. P. Carillo          Opinion No. WW-1490
    County Attorney
    Duval County                     Re:    Whether Article 2900a,
    San Diego, Texas                        Vernon's Civil Statutes,
                                            violate8 the provisions
                                            of the Texas or United
    Dear Mr. Carillo:                       States Constitutions.
           You have requested an opinion from this office upon
    the question of:
                "Does Article 2900a of the Revised
          Civil Statutes of Texas violate the pro-
          visions of the Constitution of the State
          of Texas, or the Constitution of the United
          States of America?"
           Article 29COa, Vernon's Civil Statutes, provides
    as follows:
                "Section 1. That no board of trustees
          nor any other school authority shall have
          the right to abolish the dual public school
          system nor to abolish arrangements for trans-
          fer out of the district for students of any
          minority race, unless by a prior vote of the
          qualified electors residing in such district
          the dual school system therein is abolished.
                 "Sec. 2. An election for such purpose
           shall be called only upon a petition signed
           by at least twenty per cent (20%) of the
           qualified electors residing In such district.
           Such petition shall be presented to such of-
           fice or board now authorized to call school
           elections. Such an election may be set for
           the same date as the school trustee election
           in that district, If such petition is filed
           within ninety (90) day8 to such date, other-
           wise the official or board shall call such
           an election within sixty (60) days after fll-
           ing of such petition. The election shall be
           conducted in a manner similar to that for the
Hon. 0. P. Carillo, page 2 (Ww-1490)


       election Of School trLX3tees. No subsequent
       eleOtiOn on such issues Shall be called wlth-
       In two (2) year8 of a prior election held
       hereunder.
             "Sec. 3.  School districts which maln-
       talned Integrated schools $or the 1956-1957
       school year shall be permitted to continue
       doing so hereafter unless such system is
       abolished In accordance with the provisions
       of this Act. No student shall be denied
       transfer from one school to another because
       of race or color.
             "Sec. 4.  Any school district wherein
       the board of trustees Shall violate any of
       the above provisions shall be ineligible for
       accreditation and lnellglble to receive any
       Foundation Program Funds during the period
       of time of such violation. Any person who
       violates any provision hereof shall be guilty
       of a misdemeanor and shall be fined not less
       than One Hundred Dollars ($100) nor more than
       One Thousand Dollars ($l,OOO)."
         Since the deci&ion of the United States Su reme Court
in Brown v. Board of Education, 347 U.S. 483 (195E ). which
held that 1n the field of public education the doctrine of
"separate but equal" was no longer applicable, there have
been numerous case8 before the Federal courts concerning the
implementation of the desegregation required of the public
SChOOlS by the Supreme Court in its decision in Brown v.
                              One of such cases is Boson v.
                                n which the United State8 Court
                                   had before it an appeal in
an action   Seeking to end enforced racial segregation in the
public SOhOOlS of the Dallas Independent School District. In
conformity with certain orders of the District Court the
school authorities had submitted to the Court certain plans
for effectuating a transition to a racially non-discriminatory
School System. One of these plans, in the Word8 of the Court
in Boson v. Rippy, eupra, provided for:
               !I      the separating and grouping of
        the school; into white, Negro and mixed
         SChoolS, and for canvassing parents and pu-
        pils in order to learn 'who does and who does
        not want integration, and thereby give all
        concerned what they prefer, as far as is
Hon. 0. P. Carlllo, page 3 @W-1490)


       practical and pO88ible.'"
       The District Court, in Boson v. :Rippy, au ra express-
ed the opinion that the holding of an election-+F
                                                un er Article
2900a should not be made a condition of a plan of desegrega-
tion, and eliminated from the plans for desegregation submit-
ted by the school authorities those provisions which made an
election and a favorable result a part of the plan of de-
segregation. In its opinion in BOSOn v. Rippe, supra, the
United States Court of Appeals held that~:
               ~.
             "We agree with the district court that
       the holding of an election under Article
       2gOOa of the Revised Civil Statutes of Texas
       should not be made a condition of a plan of
       desegregation. It goes without saying that
       recognition and enforcement of constitution-
       al rights cannot be made contingent upon the
       result of any election." (Emphasis added).
       In view of the above quoted language in the case of
Boson v. Rippy au ra, we are of the opinion that Article
2gooa Is unconst
              ' *onal.
                         SUMMARY
              Article 2qOOa, Vernon's Civil
              Statutes, requiring an election
              prior to the abolishment of a
              dual public school system within
              a school district, is unconstitu-
              tional. Brown v. Board of Educa-
              tion, 347 U S 483 (1954) B
              V.ppy,    2&'Fed.2d 43 (&%$?

                          Yours very truly,
                          WILL WILSON


                           Pat Bailey


PB&JR:wb:ms               John Reeves
Hon. 0. P. Carillo, page 4 (WW-14%))


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Howard Mays
W. 0. Shultz
Ben Harrison
REVIEWED FOR THE ATTGRNEl GENERAL
By: Leonard Passmore
