               TWEA'ITBRNEY       GENERAL
                         OF TEXAS
                            AUWITN.       T-s         78711



                                       April    18, 1975


The Honorable    hf. L. Brockette                          Opinion   No.   H- 586
Commissioner     of Education
Texas Education    Agency                                  Re: Are alien children    whose
201 East Eleventh    St.                                   parents are illegally   residing
Austin,  Texas    78701                                    in this country entitled to attend
                                                           public schools.

Dear   Commissioner       Brockette:

          You have requested     our opinion as to whether alien children   whose
parents are illegally   residing    in this country are entitled to attend public
schools in the district   of their residence.      You state that the Board of
an Independent    School District    is seeking to exclude students determined
to be illegally  in the country.

         Section   21.031 of the Education         Code provides:

                        (a) All children without regard     to color over
                   the age of six years and under the age of 18 years
                   on the first day of September     of any scholastic  year
                   shall be entitled to the benefits   of the Available
                   School Fund for that year.

                         (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 of the district       in which he resides    or in which
                   his parent,     gua’rdian,    or the person having lawful
                   control    of him resides      at the time he applies for
                   admission     notwithstanding      the fact that he may have
                   been enumerated        in the scholastic    census of a different
                   district   or may have attended school elsewhere           for a
                   part of the year.




                                           p. 2615
,



    The Honorable      hf. L. Brockette     page   2   (H-586)




                             (c) The board of trustees   of any public free school
                       district   of this 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 such person or his parent,     guardian
                       or person having lawful control       resides  within the
                       school district.     (Emphasis  added).

             In applying this statute,  the school boards of the State determine
    whether a child and his parents are residents      of their districts. Attorney
    General    Opinion H-63 (1973).    The question has arisen whether this
    residence    must be lawful.

              Attorney     General    Opinion No. 2318, Book 55, p, 338 (1921), held
    that “[allien     children    have the same right to attend the public free schools
    of the State as do the children         of citizens    of this State. ” The then
    existing    statutes,    article   2899, 2900, Revised        Civil Statutes of 1911,
    contained     language    almost identical      to that of section   21.031 of the Educa-
    tion Code, including         the terms “every      child” and “all children.     ” While
    it is unclear from the opinion whether             the child in question    was a legal
    or illegal    alien,   in our view the reasoning        expressed    is applicable  in
    either instance.

               Quoting from Tape v. Hurley,    6,Pac.  129 (Cal.        Sup.   1885),
    Attorney     General  Opinion O-2318 (1940) notes:

                                 Where a law is plain and unambiguous,
                           whether it be expressed        in general    or limited
                           terms,    the Legislature      should be intended to
                           mean what they have plainly expressed,             and
                           consequently,    no room is left for construction.
                           When the law is clear and explicit,          and its pro-
                           visions   are susceptible     of but one interpretation,
                           its consequences,     if evil,   can only be avoided by
                           a change of the law itself,       to be effected    by legis-
                           lative and not judicial    action.     These rulea are
                           never controverted      or doubted,     although perhaps




                                              p.   2616
The Honorable    M.   L.   Brockette.    page   3   (H-586)




                 sometimes      lost sight of.   In this case, if
                 effect be given to the intention       of the. Legis-
                 lature,   as inidcated   by the clear and un-
                 ambiguous     language used by them, respondent
                 has the same right to enter a public skhool
                 that any other child has.       As the Legislature
                 has not denied to the children       of any race or
                 nationality   the right to enter our public schools,
                 the question whether      it might have done so does
                 not arise in this case.

                  We therefore     conclude    that the Legislature        of this
        State intended that an opportunity          for instruction     in the
        public schools of this State should be afforded              the youth
        of Texas,     and the advantages      of attending     a public school
        should be extended       to all children     regardless    of their
        nationality    or color,   whether    citizen    or alien,   and having
        declared     such to be the rights and privileges          of the children
        of this State,     such right is a vested one, and as such it
        is protected     and is entitled to be protected        by all the
        guarantees     by which other legal rights are protected             and
        secured     to the possessor.

     The Legislature   has made no effort toalter this holding through statutory
amendment.      We believe  the words “all” and “every”    as contained   in
section 21.031 of the Education    Code do not permit   exceptions   to be created
by local school boards.

     Whether    the Legislature     itself may establish    an exception   for illegal
aliens has not been decided by the higher courts.             While we recognize        that
the United States Supreme         Court could sustain such an exercise        of legislative
power,    the existing     case law indicates   that the rights of illegal   aliens are
protected    by 42 U.S. C. A. section 1981 and the Fourteenth          Amendment       to the
~United States Constitution.        Bolanos   v. Kiley,  509 F. 2d 1023 (2nd Cir. 1975);
Williams    v. Williams,       328 F. Supp. 1380 (D. V. I. 1971); Martinez      v. Fox Valley
Bus Lines;. 17 F. Supp. 576 (N. D. Ill. 1936); Commercial             Standard Fire and
Marine    Co. v. Galindo,       484 S. W. 2d 635 (Tex. Civ.App.      --El Paso 1972,
writ  ref’d. , n. r. e. ).




                                        p. 2617
The Honorable   M. L.   Brockette       page    4   (H-586)




                                    SUMMARY

                     Under section 21.031 of the Education           Code,
                alien children      within the State are entitled to
                attend public school in the district        of their
                residence,     regardless     of.whether   they may be
                “legally”   or   “ill~egally”  within  the United States.

                                                       Very   truly    yours,




                                                       Attorney       General   of Texas


APPROVED:


                                   LY,kv
                                       ,
DAVID   I$   KENDALL,      First    Assistant




C. ROBERT   HEATH,       Chairman
Opinion Committee




                                         p. 2618


                                                                                           i
