                       EIBE AT-Jr0
                                               OF        TEXAS




The     Honorable           J. W.     Edgar                     Opinion       No.     H-     144
Commissioner                of Education
Texas       Education          Agency                           Re:          Whether         an institutional           inde-
20.1 E.       Eleventh       Street                                          pendent        school      district      and its
Austin,        Texas       78701                                             average        daily     attendance          must
                                                                             be considered            in determining
                                                                             eligibility      for     incentive       aid
Dear      Commissioner                Edgar:                                 under      the Education            Code


           You     have      requested          the opinion           of this      office    on the following               question:


                                 Should        an institutional            independent          school
                     district,        such      as     Boys      Ranch,          and its    average        daily
                     attendance           (hereinafter,               ADA)       be considered          in cal-
                     culating         what      constitutes           “a majority           of the children
                     in average           daily      attendance          in the county             containing
                     the majority              of the land        area       involved       in the reorgani-
                     zation,       ” in determining               a newly         consolidated          district’s
                     eligibility        for     incentive         aid    payments           under     Sections
                     23.991        through        23.999         of the Education             Code?


           Subchapter          23(G)      of the Education                 Code,      dealing       with    incentive         aid
payments           to independent              school      districts,         was     added        to the Code        in 1971
(Acts      1971,     62nd     Leg.,       p.     3013,     ch.     994).         Generally         it provides        for    finan-
cial    aid    to new       districts         created       through          consolidation          of older       ones      in
retiring       existing        bonded         indebtedness             of the older         districts       or to be used
for    constructing           new     buildings.


           Section        23.993      provides:


                                 “The     new        district     created         through       consolidation
                     shall     contain         not fewer         than      750    children         in average
                     daily     attendance             or a majority              of the children           in aver-




                                                           p.     680
The     Honorable         J. W.        Edgar,      page         2      (H-144)




                   age    daily        attendance          in the county             containing         the
                   majority            of the land        area        involved        in the reorgan-
                   ization.        ”    (Emphasis           added)


          The    facts    which         you have         submitted              to us are      that    the Vega        Independent
School     District       and the Wildorado                     Independent           School     District,         both located
within    Oldham         Comty,          contemplate                a consolidation            of their       districts.           Three
other    school       districts         have     territory            ,located      in Otdham         County.          You advise
that    these    five    districts       and their         ADA         figures       are:


                              1.       Vega                                        453


                              2.       Wildorado                                     60


                              3.       Adrian                                       150


                              4.       Charming                                        0


                              5.       Boy’s     Ranch                             392


         Charming         Independent             School        District          is a county-line             district         under       the
jurisdiction       of Hartley            County         (See        § 19.101,     Education      Code),         and probably                has
no students        from       Oldham           County.          The       Boy’s     ,Ranch      District        is ,a so-called
“institutional”          independent             school        district         created      in 1942      pursuant             to Article
2666,     V.T.C.S.,           which        has     since        been       repealed.          But see      $2.10,          Education
Code,     V. T. C. S.


         Assuming          that the ADA             of the childrenin                  all   of the districts             is    counted,
the total       would    be 1055,         and a majority                  of the children          in ADA         would          be 528.
However,         if Boys      Ranch        School         District         is     not included,        the total          ADA,      would
be 663     of which       a majority             of children              in ADA     would      be 332.          The       total    ADA
of Vega     Independent            School        District           and Wildorado             Independent          School          District
is 513.  Therefore,  if the Boys Ranch School                                       District      is included          in the ADA,
and based on the figures   you hatie’ furnished,                                    the netiljr       consolidated              district,
having     fewer      than    750       children        in ADA,            will    miss’having          the     required           “majority
of the children          in average             daily    atten,dan,ce             in the county”        by 15 at this              time.




                                                           p.       681
 The    Honorable         J.    W.     Edgar,       page       3         (H-144)




        There     is no exclusion           of those          children          in the ADA                who   are    in
 “institutional”          independent           school        districts         from      the calculations                  required
 by $ 23.993.          We      construe         “children”           to include          all     of those       in ADA         in
 the county.        Therefore,            under      the facts           you have          submit,ted           to us,       it is
 our    opinion    that     the proposed            consolidated             school        district           does    not at this
 time     have    sufficient         children       in ADA          to be    eligible          to receive            incentive
 aid payments          under         the provisions            of the Education                  Code.


                                           SUMMARY


                   The    average         daily     attendance            of children               in a
            so-called          institutional        independent             school         district
            located       within       a county      must          be considered               in cal-
            culating       what       constitutes        “a majority               of the children
            in average          daily     attendance           in the county”               in order
            to determine              if a consolidated              district       is to receive
            incentive          aid payments          under          the provisions                  of
            $ 23. 993       of the Texas            Education            Code,      V. T. C. S.


                                                                Very       truly        yours,




                                                                Attorney           G-          al        of Texas


APPROVED;
  n




DAVID     M.     KENDALL,              Chairman
Opinion    Committee




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