Honorable J. W. Edgar          Opinion NO. c-631
Commissioner of Education
Texas Education Agency         Re:   Whether certain policies
Austin, Texas                        applicable to the creation
                                     and perpetuation of school
                                     sponsored departmental,
                                     social and special interest
                                     clubs by interested students
                                     are valid when reviewed in
                                     the light of Article 3Old,
Dear Dr. Edgar:                      V.P.C.
          Your letter requesting an opinion of this office
reads in part as follows:
          "A school district . . . has adopted
     certain policies applicable to the creation
     and perpetuation of school sponsored
     departmental, social, and special interest
     clubs by interested students. (Policies 4a
     and 4b).
          "They have been locally challenged as
     being in violation of Article 301d Vernon's
     Penal Statutes (prohibiting in public schools:
     fraternity, sorority or secret society as de-
     fined in that law) for the reason or on the
     grounds that under such policies it is pO88ible
     for the clubs to be perpetuated by the decision
     of the membership, rather than by the free
     choice of any pupil qualified by school rules
     to fill the special aims of the organization(s).
          "Attention is directed to the fact that
     the clubs are sponsored by a faculty sponsor
     the electlons are supervised, and any student
     may submit his name for membership.
          "This Agency has been requested by the
     Board of Trustees,of such district to obtain
     an opinion from the Office of Attorney General
     as to the validity of the polity(8) when reviewed
     in the light of Article sold, V.P.C."


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Hon. J. W. Edgar, page 2   (c-631)



          Sections 1 and 2 of Article 301d, Vernon's Penal
Code, provide:
          "Section 1. In all counties~of this      ~
     State, Public School Fraternities, Sororities,
     and Secret Societies are hereby prohibited in
     all the Public Schools of this State supported
     in whole or in part from public funds, WInCh
     schools are below the rank or grade of Colleges,
     and including within said provisions all High
     School8 and Junior High School8 and all Public
     School8 of lower grades. The provisions of
     this Act shall not apply to any University,
     College or State Teachers College.
           “Sec. 2.  A Public School Fraternity,
     Sorority, or Secret Society as used in this
     Act is hereby defined to be any organization
     composed wholly or in part of public school
     pupils of public schools below the rank of
     College or Junior College as herein provided,
     which seeks to perpetuate itself by taking in
     additional members from the pupils enrolled
     in such school on the basis of the decision
     of its membership rather than upon the free
     choice of any pupil in the school who is
     qualified by the rules ,of the 8chOOl to fill
     the special aims of the organization."
     (EmphSSi8  added).
          Section 4 of Article 301d   QrOVideS   in part:
           11   .Providing that the above restric-
     tiOn8  ihall not be construed to apply to agencies
     for Public Welfare, viz: Boy Scouts, Hi-Y Girl
     Reserves, DeMolay, Rainbow Girls, Pan-American
     Clubs, and Scholarship Societies, and other
     kindred educational organizations sponsored
     by the State or National education authorities."
          The policies number 4a and 4b in question here
provide as fOllOwS:
          “4.  Departmental, social, and special
     interest clubs
          "Club members shall be selected according
     to the following plan:



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Hon. J. W. Edgar, page 3 (c-631)


           "a. Application for membership
          "A student desiring to become a member of
     a departmental, social, or special interest
     club may apply to the faculty sponsor of the
     club for membership or may have his name pre-
     sented by a student who is already a member
     of the club. The sponsor shall consider all
     names presented in either manner.
           "b . Election of members
          "Before member8 are elected to membership
     in a club, the sponsor shall determine and
     report to the principal the number of member8
     to be elected. The principal shall then set
     a day for the election of club members. Prior
     to such election, the sponsor shall have arranged
     in alphabetical order, in the form of a ballot,
     the name8 of all applicants who meet the require-
     ments for membership in the club. On the day
     designated for the elections, the members of
     each club shall assemble and vote for the new
     members, each one being allowed to vote for as
     many members on the ballot as there are members
     to be elected. All balloting shall be secret,
     and there shall be no remarks or speeches of
     any nature concerning the candidates. Ballot8
     shall be tabulated under the direction of the
     club sponsor. The number of students receiving
     the highest number of votes shall be declared
     elected and so notified in writing by the club
     secretary. In ca8e the balloting results in a
     tie vote all names involved in the tie shall
     be declared elected. Prospective members shall
     not be brought before clubs for inspection or
     approval prior to election." (Emphasis added).
           Of basic importance to the question presented is
the undisputed fact that the organization or club in question
is a public school sponsored departmental, sooial, and special
interest club. The Legislature has power to control and manage
the public school system and its organic detail8 of operation.
Marrs v. Matthews, 273 S.W. 586 (Tex.Civ.App. 1925, error ref.);
51 Tex.Jur.2d 319, fl2. Included within the power granted to
control and manage the public school system 18 the power to
control organization8 declared inimical to the public good when
sponsored by a public school.



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Hon. J. W. Edgar, page 4 (c-631)


          It is our OpiniOn that the public school 8pOn8Ored
clubs in question are in violation of Article 30ld of Vernon's
Penal Code. In c,learand unambiguOu8 language, Section 2 of
Article 301d QrOhibit8 those public school clubs which seek to
perpetuate their existence by taking in additional member8
from public school pupils on the basis of the decision of
its membership. Clearly, that portion of Policy 4b a8 quoted
above violates Article 301d as it states that on the day
designated for the elections the,members of each club shall
assemble and vote for the ne$ members.
          Under the fact8 a8 presented, it is our opinion
that the public school clubs in question are not within those
organization8 permitted in Section 4 of Article 301d as ex-
ceptions to Section 2. Those organization8 are the only agencies
entitled to be free of the restrictions of Section 2. Atty.
Gen. Op. WW-1309. Despite certain 8ChOla8tic requirement8 for
membership eligibility for the clubs in question. these
requirement8 are Insufficient to gain Section 4 exemption.

                       SUMMARY
          The public school sponsored clubs in question
     which perpetuate their membership on the basis of
     the decision of their own members are prohibited by
     Section 2 of Article 3016, Vernon's Penal Code.
     Under the facts presented, the clubs in question
     do not qualify as exceptions in Section 4 of
     Article 301d. Atty. Gen. Op. WW-1309.
                             Very truly yours,
                             WAGGONER CARR
                             Attorney General



                             -v

                                   Gordon Houser
                                   Assistant

GH:mkh:ml
         .   -




Hon. J. W. Edgar, page 5 (c-631)


APPROVED:
OPINION COMMITTEE
w. 0. Shultz, Chairman
Pat Bailey
Howard Fender
Ralph Rash
Paul Phy
APPROVED FOR THE ATTORNEX GENERAL
By: T. B. Wright




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