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                    E   A’%TI.-ORNEY      GENE-L
                            OF   TEXAS




     Honorable W. B. King, Accountant
     Joint Legislative Committee
     Austln,ll, Texas
     Dear Sir:                         Opinion No. O-5928
                                       Re: Interpretation OS Section 4,
                                            Article 1, House Bill 176,
                                            48th Legislature.
               Your communication addressed to this department
     and dated March 22, 1944, reads as follows:
               "Will you please answer the questions set forth
          below pertainjng to House Bill No; 176, Section 4 of
          the Equalization Aid Law of Texas.
                 "We quote the followingfrom Section 4:
                 "'Sixty-five per cent (65%) average
                 ,aaily attendance shall be based for
                  the entire school term or, at the
                  election of the Schools and with the
                  approval of the Legislative Accountant,
                  may be based upon the first four months
                  thereof. 1
               "The law itself‘,in no respect, offers any alarity
          to us concerning the auditing of applications for average
          dally attendance purposes; and we feel it imperative
          to have a clarification of this particular Section.
               "There is a variance of ten days between a school
          month and.a calendar month; and in this instance,
          the law does not specify which of these montha, the
          school or the calendar, shall be used in computing
          average daily attendance 'based on the first four
          months of the school term.' Pursuant to this, a ques-
          tion arises as to whether this 'four months period'
          begins with the opening of school or whether it pertains
          to the actual number of days that the school has oper-
          ated. (For example, many schools begin the term in
          the month of,August teach for a period of one month or
          six weeks, and temporarily close for crop,harvestlngs].
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Honorable W. B. King - Page 2 - (0-5928)

          "In summation, we respectfully submit the
     following:

          “(1)    What constitutes four (4) months
                  as spoken of in Section 4, House
                  Bill Number 176, Acts of the 48th
                  Legislature?

          “(2)    Is this four (4 months period (as
                  mentioned aboveI to be based on the
                  actual number of days during which
                  the school operates and is available
                  for scholastic attendance or could
                  holidays and periodic recesses, be
                  excluded in compiling the average
                  daily attendance?

          "(3)    Considering any holding which you
                  make, could a school district submit
                  additional Average Daily Attendance
                  reports, if after its election to
                  file a report at the end of the first
                  4 months, it failed to meet the re-
                  quirements set forth otherwise in
                  the law?"

          The Section 4 referred to in your communication Is
Section 4 of Article 1 of said House Bill 176.
          Article 23, Revised Civil Statutes, provides, in part,
as follows:
          "The following meaning shall be given to
     each of the following words, unless a different
     meaning is apparent from the context:
          "i * *

          "(15)    'Month' means a calendar month.
          "(16)    'year' means a calendar year."
          In the case of McKinney v. Staz; (C!;yt;of Crim.
Appeals of Texas) 66 S. W 769 it was h 1          a month, as
used in the civil statute;, is'a calendar month, and Is determined
arbitrarily by the number of days that the calendar gives to
each particular month; that is, thirty-one days for January;
twenty-eight days for February, except leap year, etc." The
same case holds, however, that when used in a criminal statute,
the words "one month" mean thirty days.
Honorable W. B. King - Page 3 - (O-5928)

           It should be observed, however, that the meaning to
be given to each of the words covered by Article 23, supra,
shall be given as therein setforth, unlessa different meaning
is apparent from the context.
           It should likewise be observed that Section 4 of
Article 1 of H. B. 176, 48th Legislature, is part of the current
bill providing for State aid to public schools, and deals with
average daily school attendance; The context of the entire bill
has reference to school matters. Therefore, it is clear to our
minds that the words "first four months thereof," as used in
Section 4, supra, and quoted in your communication to this depart-
ment, have reference to school months rather than calendar months.
           What, then, is a school month?
           Article 2906,   Revised Civil Statutes, reads as
follows:
           "Public schools shall be taught for five days
     in each week. Schools shall not be closed on legal
     holidays unless so ordered by the trustees. A School
     month shall consist of notless than twenty school
     Bays, inclusive of holidays, and shall b t    ht f
     not less than seven hours each day, inoltdi&ginteE
     missions and recesses." (Emphasis ours)
           The statute, while fixing twenty~as the minimum
number of school days in a school month, does not fix the
maximum number of such days. It.is therefore, in this respect,
ambiguous and uncertain. Construction Is required to determine
its meaning. 39 Tex. Jur., p. 160, par. 88.
           "The courts will ordinarily adopt and up-
     hold a construction placed upon a statute by an
     executive officer or department charged with its
     administration, if the statute is ambiguous or
     uncertain, and the constructionsso given it is
     reasonable." 39 Tex. Jur. pp. 235-236,  par. 126.
           It is our understanding from,the office of the
State Superintendent of Public Instruction, that the Depart-
ment of Education has, since its passage, interpreted Article 2906,
Revised Civil Statutes, as defining a sohool month to mean a
month of four weeks consisting of five school days in each
week, including holidays, or a total a' twenty schaol days, in-
cluding holidays, in each school month.' Thus, a school term of
nine months means one consisting of 180 school days, including
holidays. This is not an unreasonable.aonstruction. such ae-
partmental construction has for many.years been the basic guide
in reference to numerous school matters not specifically covered
by our statutes. We, therefore, feel compelled to adopt such
Honorable W. B. King - Page 4 - (O-5928)

construction as being reasonable and proper. See Railroad
comission of Texas v. T. & N. 0. R/Co., 42 S. W.mmgl,
error refused; State v. Cunter, 8.1S W 1028, error refused:
Cotton v. Commonwealth Loan Co., (Sui. &. of Ind.) 190 N. E.
   .
           The Indiana case last cited is particularly applicable
to a proper interpretation of the word "months," as contained in
your first question. The appellants in that case plead usury
as a defense in the court below, They urged that the word "month,"
as used in the statute, meant a calendar month. They relied
upon Section 247, Burns' 1926, which read as follows:
           "The construction of all statutes of this State
1:'. (Indiana) shall be by the following rules, unless such
     construction be plainly repugnant to the intent o,fthe
    legislature or of the context of the same statute; * g    *


           "Fifth. The word 'month1 shall mean a calendar
   _ month, and word 'year' shall mean a calendar year,
     unless otherwise expressed1 * + *' (Emphasis ours)
           Appellee was a lioensee under the petty loan statute
of Indiana. Such licensees  were origlnally under the supervision
of the Auditor of State. In 1919 the Legislature transferred
the supervisory power of the auditor to the State Banking De-
partment. Said Banking Department, through its Division of
Industrial Loans, had from time to time issued regulations govern-
ing licensees under said statute. One of Its printed rules re-
quired that "all interest shall be computed on a basis of 30
days to each of the 12 months of the year." Also, "interest
shall be oomputed on the exact amount of money for the actual
number of days, not to exceed 30 days to the month."
           In disposing of said case, the Court took notice of
said departmental interpretation of the statute, as it would
take notice of an inferior court's decision. The court further
stated: "It (the departmental Interpretation) does not bind us
in our construction of the statute, but lends support to the
oontention that the statute may be reasonably construed as in-
tending that thirty days might be treated as a month." In ovelr
ruling the deaision of the Appellate Court of Indiana, in Bane,
184 N. E. 578, the Supreme Court of Indiana in effect adopted
the departmental interpretation as above set forth. It held
that the word "month" as used in said petty loan statute, had
reference to the comme,roialmonth of thirty days. While a con-
struotion of the statutes providing for forfeitures was also
involved in said Supreme Court Opinion, it is obvious that the
same conclusion as therein stated would have been reached had
such construction not been involved.
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                  Honorable W. B. King - Page 5 - (O-5928)

                             Attention Is also directed to Article 2903, Revised
                  Civil Statutes, which provides as follows:
                             "The scholastic year shall commence on the
                       first day of September of each year and end on the
                       thirty-first day of August thereafter."
                             In view of the foregoing, your questions as submitted,
                  are answered as follows:
                             (1) Eighty school days, including holidays, consti-
                  tute four months within the meaning of Section 4, Article 1,
                  H. B. 176, Acts of the 48th Legislature.
                              (2) Holidays and periodgc recesses, during which
                   schools are ordered closed by the trustees, are to be excluded
                   in computing the average daily attendance. Holidays on which
                   schools are taught and not closed by proper order or orders
                   of the trustees, are to be included in such computation.
                             (3) Based on the wording of the provisions of Sec-
                  tion 4, Article 1, H. B. 176, 48th Legislature, it Is the opin-
                  ion of this department that the required sixty-five (65s) per
                  cent average daily attendance is primarily based upon the entire
                  school term. Therefore, a school district which files a report
                  at the end of the first four school months, which report fails
                  to show an average daily attendance of sixty-five (65%) per cent,
                  may thereafter submit a Daily Attendance Report based upon the
                  entire school term.
                              Let it be understood that the forego&g answers are
                   based on school months and school terma included within a .schoias-
                   tic year, as hereinabove defined.
                                                        Very truly yours
                                                  AT'l'OR~\Tf
                                                           GEKERAL OF TEXAS
                  ,APPROVED APRIL 11, 1944
                                                        /S/    L. H. Flewellen
                  /a/ G. P. Blackburn
                                                   BY
                   G. P. Blackburn                      ,L. H. Flewellen
                   Acting Attorney General of Texas        Assistant

                                                     APPROVED
                   LRF:EP:ELB                         Opinion
                                                     Committee
                                                   By B.W.B.
                                                     Chairman
