           “““““““““”
                 A~~~RIUEX          GENERAL
                      OFTEXAS
                      Auerrnr is. TBxnn

                        December7, 1959

Dr. J. W. Edgar                   OpinionNo. WW-755
Commissioner of Rducatlon
Austin,Texas                      Re: May the CentralRduca-
                                      tion Agencyapprovea
                                      programfor non-English
                                      speakingchildrenpur-
                                      suantto House Bill 51,
                                      56th Legislature,Regular
                                      Session,which shall cover
                                      a periodof less than
Dear Dr. Edgar:                       three (3) months?
          Your requestfor an opinionrecites that House Bill
51, Acts 56th Legislature,RegularSession,1959,page 1052
(Article2654-lb,Vernon'sCivil Statutes)authorizesthe
CentralEducationAgency to developa pre-schoolInstructional
programfor non-Englishspeakingchildren.
         Section2 of House B111.51provldes:
             "The programfor non-Rnglishspeaking
         childrenshall cover a period of three (3)
         months. . . .n
         Your requestpoints out the problemthat has arisen
in connectionwith the effectuationof the programas follows:
             "In consultationswith personsexperienced
         In teachingnon-Englishspeakingchildren,it
         was determinedthat this programwould be most
         beneflclalfor eligiblechildrenif operated
         and administeredin the summermonthsimmedi-
         ately prior to Septemberwhen they would be
         enteringtheir first grade. Conferencesfurther
         developedthat in some districtsa programfor
         a full sixty-dayperiod was not essential;that
         the regulationshouldprovidefor a 40 to 60-day
         periodat the electionof the participating  dis-
         trict. FurtherIt was pointedout that a teacher
         supplyfor the program on a 60-day,three-month
         basis coveringJune, July and August,would be
Dr. i. W. Edgar,page 2 (W+755)


             seriouslyhampered. Most teacheraeligiblefor
             such a programalreadyteach on a re&zlarnlne-
             month basis and simplywould n6t sign up for
             anotherthree-monthssummertenn.”
         The Legislaturehas unquestionedauthorityto provide
for a mandatoryperiodof Instruction.Whetherthe Legislature
has providedfor a mandatoryperiod or whetherSection2 Is
mere17 directorycanno%be determinedsolelyfrom the use of the
word 'shall."
          It was contendedin Smith v. Morton IndependentSchool
District,85 S.W.2d853 (Tex.C'iv.App.   1933, writ dismlssed)
 hat a contractwas illegaland unenforceable    which did nbt'com-
ply with the provisionsof Article2’781. which providedthat "all
12 month contracts... with employeeshereinmentionedshallbe-
gin on July 1st and end on June 3Oth...". The Court held: "The
statutedoes not afflrmatlvely declarethat a contraotcovering
definitemonths OS thenschoolyear would be void, nor Is there
any penaltyattachedto the Aot of the partleaIn oontractlng
otherwisethan speolfledin the statute. We think the statute
in the partloulardiscus6lonis merely direotory."
           The SupremeCourt, In Chlsolmv. Bewles Mills,287
S.W.2d943,   held that-thethirty-d.ay~mng reqwrement in
Art. 3523,  Texas RevisedCivil Statutes,1925, was not manda-
t.ory* statingthe applloablerule of oonetruotlon as Sollowb:
                  "ThereIs no absoluteteat by whloh it
             may be determinedwhethera statutorypro-
             vlslonIs mandatoryor dlreotory. The funda-
             mental rule Is to ascertainand give effeot
             to the leglslatlve     Intent. Althoughthe word
             lshall'1s generallyconstrued to be mandatory,
             It may be and frequentlyIS held to be merely
             dlreotory. In determlnlngwhether~theLegla-
             lature Intendedthe partloularprovlslonto be
             mandatoryor merely dlreotory,      oonsideratlon
             should be given    to the entlre sot, Its nature
             and objeot,and the oonsequknoesthat would
             followfrom eaoh oonstliuotlon.      Provlslone
             whloh.are not of the essenoe of the thlng to
             be done, but whloh are lnoiuded for the purpose
             of protnotlng,the    proper,orderly and prompt
             oonduotof bualneee,are not generally         regarded
             as mandatory,”
Dr. J. W. Edgar,page 3 (WW-755) "     '


          It Is obvlous.froma *ding of Its provisions,   es-
peciallySection1, that the pWpose:of the statute ia to pro-
vide for a programof instructionIn basic Englishwords for
non-Englishspeakingchildrento better enablethem to complete
successfully their first year of work in the public schools.
         The teachingof these basic Englishwords,and not
tierely
      the conductingof a 3-monthperiod of instruction,Is
the essenceof the thing to be done.
          An'interpretatlonof Se&ion 2 which requiredthat
everyprogramset up pursuantto the statutecovera 3-month
periodwould defeatthe purposeof the statutewhen it Is possl-
ble to accomplishthe purpose In a lesserperiodof time and
when It Is not practicalto set up the programoiia 3-month
basis,sincethis might keep some eligibleschooldistricts
from participating.It shouldbe assumed,of course,that it
was intendedthat a programcould be approvedunder which the
purposeof the statutecould be accomplished.
         The CentralEducationAgency Is given the retiponslbll-
ity of developingthe program. It 1s presumedthat the Legls-
latureIntendedto confer such Incidentalpowersas are necessar
to rendereffedtlvethe Dower ,granted.Faiknerv. Memorial
GardensAssociation, 298-S.W.26934 (TexTi-       1. Therefore.
                                           .~~__.,.
                                       X.V.ADD.
the agencyha the power to determinewhethera programcov&&
a lesserperl:dthan 3 months can substantially  accomplisht&e
statutorypurpose.
          It Is thereforeour opinionthat Section2 of H.B. 51
is directory. If, In the opinionof the CentralEducation
Agency,it Is possibleto accomplishthe purposeof the statute
In less than 3 months and It Is not practicalto conducta 3-
month program,then a programof less than 3 monthsmay be ?p-
proved.

                            SUMMARY
             The CentralEducationAgencymay approve
         a programfor non-Rngllshspeakin children
         pursuantto House Bill 51, Acts 52th Legis-
         lature,Re ular Session,1959, page 1052
         (Article2f5&-lLb,Vermon'sCivil Statutes),
         which coversa period of less than three (3)
         months providedthe agency finds that the
         ~purposeof the progz?am,
                                'asexpressedIn
                1 of the Aot, can'beaccomplished
         Se'ctlon
         by a shorterperiod of Instruction.

                                Yours very truly,
                                WILL WILSON
                                AttorneyGeneralOS Texas


                                BY


JAO:bh:ljb
APPROVED:
OPINIONCOMMITTEE
W, V. *ppert, Chairman
Ray Loftln
c. PC.Richards
Riley Fletcher
L. P. Lollar
RF(TIEWEDFORTREATTORNWQENERAL
BY    LeonardPassmore
