.   ‘.




               ~T~~EA~TORNENGENERAL

                            OF   TEXAS




                        September 20, 1949

         Honorable L. P. Sturgeon, Director
         Foundation School Program Act Mvlrlon
         State Auditor's Cfflce
         Austin, Texas           Optnlon Ho. V-910
                                 Re: Transfer of scholastics
                                     between Texas and other
                                                                   .
                                     states as affecting aver-
                                     age dally attendance for
                                     allocation of clarrroom
                                     teacher units under Art.
                                     III, S.B. 116, Acts 51rt
                                     Leg., R.S., 1949i
         Dear Sir:
                   Your request for an opinion relate8 to tranu-
         fer of scholasticsbetween Texas and other states as
         affecting average dally attendance upon which to allot
         classroom teacher unlta as provided In S.B. 116, Acts
         5;$" Leg., R.S., 1949. We quote the quertlona 8ubm%t-
            :
                  "Is there a legal method nhereby schel-
             aatlcs may be transferredSrom the census
             rolls of one State to ahother? If not, la
             there a legal method by which the average
             dally attendance establishedby these chll-
             dren may be counted In determiningeliglbll-
             ity.for claumoom teacher units?"
                   Section 1 of Article VII of the Constitution
         of Texas reads In part:
                   "..* It shall be the duty of the Leg-
              islature of the State to establish and make
              suitable provision for the support and maln-
              tenance of an effecient system of public
              free 8choo1a1."
                   Under this provision It la the mandatory duty
         of the Legislatureto makessuitable provision Sor the
Hon. L. P.Sturgeon,Page 2   (V-910)


 support and maintenanceof public free schools. The
'legislativedeterminationof-the methode, restrictions,
 and limitationsnecessary to make the mandate effec-
 tive Is exclusive and final unless violative of the
 Copstltutlon. Jlummev. Marrs, 120 Tex, 383, 40 S.W.
 24 31 (1931).
          Section 3 of Article VII of the Conatltu-
tlon of Texas provides:
          "... and all school districtsmay em-
     brace parts of two or more counties, and the
     Legislatureshall be authorlzed.topass laws
     for the assessment and collectionof taxes
     ln all said districts and for the management
     and control of the public school or schools
     of such districts..,."
          The property and funds of the public schools
are held In trust by the district to be used for the
benefit of the school children of the communltv or dls-
trlct In which the propertles exist, or to which the
school funds have been all allocated. In Love v. CIQ
of Dallas, 120 Tex. 351, 40 S.W.28 20 (19311, it was
said at page 27:
          "Since the Constitution,Art. 7, Sec. 3,
     contemplatesthat districts shall be organ-
     ized and taxes levied for the education of
     scholasticswithin the dlstrlct, it Is ob-
     vious that the education of non-residentschol-
     aat!ce la not within their ordinary functions.
     ...
          If authority for transfer of scholasticsto
the census rolls of Texas from another state exists, we
think It must of necessity exist by virtue of enactments
of the Legislaturespecificallyproviding therefor, The
Legislaturehas passed a number of laws relating to trans-
fer of scholasticsfrom one district to another under cer-
tain described clrcumstancea. These statutes are Articles
2678a, 2681, 2695-2699,and 2904a, V,C.S. These statutes
prescribe no procedure and provide no authority for
transfer of scholasticsbetween Texas and other states.
We think the statutes clearly-contemplatetransfers be-
tween districtsin one or more counties within the State
of Texas.
                                                            ,
                                   .



Hon. L. P. Sturgeon, Page 3   (V-910)


          In 1931 the Legislatureenacted a law author-
izing the Governor to appoint a Comlasloner to nego-
tiate a compact, subject to approval of the Legislature,
for the formation of state line school districts with
New Mexico. Acts 42nd Iag., R.S., ch, 251, p. 418.
Pursuant to this Act, the Commissionerwas appointed
and negotlated a compact which was approved and ratl-
fled. Acts 44th Leg,, R,S., 1935, ch. 220, P* 516.   The
court, In the case cited below, in consideringthe valld-
lty of the compact, said:      ,
           "Nowheredoes the Texas Constitutionau-
     thorize the State Legislatureto fona or cre-
     ate school districts embracing parts of two
     or more statee.,.,"
and held the compact invalid. The court recognized  the
maxim Ek~resslo unlua est excluslo alterlua (the lxpree-
alon of one thing is exclusive of another lp lied In
Parks v. West, 102 Tex. 11, lll.S.W. 726 lgo!), stat-       .
ing that this rule of y&y~lon      has long been follolmd
;z the Texas eourtao         e Nexlco School Dlatrlct
    1 vr Fxwe& IndenendentSchool Dlbtrlct, 1@4 S W
26 b42 (T         APP,, 1944) Ye think this rule ip:
plies to the queitlons submltied, The LeglalatUranot
having provided for transfer of scholastlcsbetween Texas
and other states, It follows that transfers mey not be
legally made.
          Further, we think the general census statutes,
Articles 2816-2822, V.C,S., clearly contemplate census
rolls containing the names of resldents of the respective
districts within the State of Texas.
          Article 2816, V,C,S,, provides In part:
          "... the census trustee .-* shall take
     a census of all the children 1-O who are resl-
     dents of the school district..,,"
          Manifestly,a scholastic,In order to be ln-
eluded In the census, must be a resident of some school
district in Texas. In Love v. Cltr ef Dallas, supra,
the court said at page 23:
          "It is clear, we think, from a consld-
     eratlon of the various transfer statutes ..*
     that scholasticscannot be transferredunder
Iion,L. P. Sturgeon, Page 4   (V-910)


    any circumstances,from the district in
    which they reside to another district, ex-
    cept under the transfer statutes,"
          There Is no provision for transfer of schol-
astics to or from the census rolls of Texas fran or to
the rolls of another state.
         However, Article 26gga, V,C,S., reads In part:
          "Any child who would be entitled to
     attend the public school of any district
     that lies on the border of Louisiana,Ar-
     kansaa, Oklahoma and New Mexico, and who
     may find It more convenient to attend the
     public school In a district of a County of
     said State contiguousto said dlatrlct In
     Texas, may have the State and County per
     capita apportionmentof the Available School
     Fund paid to said district in aald State and
     may have additional tuition, If necessary,
     paid by the district of his residence on
     such terms as may be agreed upon between the
     trustees of the receiving district and the
     trustees of the district of realdence of
     such child,,,,"
          This statute provides a method by which a
resident scholasticof Texas may attend school In a
district of a county of another state contiguous to
the district of residence and have per capita and tul-
tlon paid to the receiving district, but doersnot au-
thorize the Comptrollerto draw warrants in distribution
of the State*8 Available School Poundpayable to school
districts of other states contiguousto Texas, At-
torney Generalus Opinion NoJo,
                             O-5805* The statute con-
templates an agreement between the Texas district
and the contiguous out-of-statedistrict under which
the Texas district pays the amount (Including,but not
limited to, per capita apportionmentreceived from the
State and county) agreed upon to the out-of-state.dla-
trlct. Attorney General's Opinion No, 0-6332,
          It appears that Article 26gga, supra, pro-
vides the only method by which a Texas scholasticleay
attend an out-of-stateschool, Specific provision Is
not made for out-of-statepupils to attend Texas
schools. In Love v, City of Dallas, supra, It was
Hon. L. P. Sturgeon, Page 5   (V-910)



observed that the LegislatureIs without power to re-
qulpe school districts to receive non-residentschol-
aetics without just compensation, Non-residentsthere
referred to were residimts of Texas.. Undoubtedlythe
rule applies with peculiar force to non-reside&r of
Texas. However, it waa p6lnted out that:
          ”0.. In vlew of the long operation of
     the transfer statutes,we believe that w@re
     a school district has facilities and teach-
     ers in excesrsof those necessary for its
     own scholastica,the atate haa the power $0
     require it, to accept transfers froa another
     district, but only upon the payment of rea-
     sonable compensationtherefor....”
          We conclude that scholaatlcsmay not be trans-
ferred to or from the cenmm rolls of Texas from or to
those of other etatea rime such pupil8 do not come rith-
in the general transfer statutes.
          Admission to Texas schools on the same basis
upon nhich Texas scholasticsmay attend schools of ad-
joining states as provided in Art. 2699a, mpra, is a
matter addressing itself to the dircretion OS local
boards involved; It Is pur opinion that ii they are
admitted, just coapensationmust be 9;rld;d y ;he
outprtate    dirtrict of reMdance.         e e Ia
g ? lll4n, rupra, it wae said at page 30:
          ‘.** a round discretion is left to the
     loarl rchool board8 to determine uhether ..*
     the adlnisrionof noti-residentschelastics
     will be prejudicial to the acholasticao?
     their districts and uhether e0e the statutory
     See uould be compenratoryO.O oontrol of our
     publlo mhooll ha8 8lwayr been tested in
     local bo@rdr +.* dimration to be exercired
     by the local boards will not be disturbed by
     the courta, except in CaueLIOS manifest
     8bu8e.’
          As MLI already been pointed out, the court in
this case was consideringecholasticswho were reel-
dents of Texas; but we think, eonaideringpertipent
mtatutes, that local boards have similar pouer to ex-
clude.or edmU non-resident.8 o? Texas,
Hon. L. P. Sturgeon, Page 6   (v-910)
                               .


          We do not consider the rule exnreeslo unlua,
supra, applicable to deny district8 the right to re-
ceive pupils from adjoining states under Art. 2699,
aupra,~a8 Its application*ouXd not aaalat in detersifir
lngand giving effect to leglalatlV8%ntente 39 'lb&
Jur. 190, Statutes, Sec. 100, and caaas there cite&
          Seatlon 5 of Article VfT of the Constitution
of Texas reads In part:
          v,.,,the available soho fund hem
     ln provided shall be distributedto tha
     several counties according to their achol-
     astlc population,.,."
          Article 2665, V,c.S., provides for apportlm
ment of the Fund pursuant to the Csnnstitutlonand co-
talns much of the language of Section 5 of Article m.
        Thus It la apparent that per capita apportion-
;rAy     not be paid districts for acholaatlceraSl&-
lng In other states and attending schools ln 'paras.
Proper charge, therefore, sufficientto cover the coat
of Instructionmust be made by the Texas dlatrictr
          Since the coat OS Instructionmuat be pxwr!ovid-
dl by the sending district, we conclude aeholasticafmD
other states attending Texas aahoola ahbuld not, %nd
could not legally, be counted in eatabllshlng8-w
dally attendance for determlnlngallocatloti of ctiaar0ala
teacher units* Flowever,we think average dally attend-
ance establishedby Texas scholaSticaattending i3cho@~b
of other states may be taken into account in allocating
classroom teacher units to the dlatricrtof residence.
          This conclusion is reached as a necssaary in-
ference from the intent of the Oilmer-AiklnActs and
Article 26gga, V,C.S, The latter statute provides that
any child residing In a district adjoining another state
who finds it more convenient to attend school In a dla-
trict of a county of the adjoining state contiguousto
the Texas dlatrict may do so and have his proportionate
share of State and county available funds, plus necea-
sary tuition, paid to the out-of-statedistrict by the
dlatr2ct of rasldence. The Texas district haa the
responsibilityof eduaatlng the child and average daily
attendance establishedby each child residing In the
district should be consideredby the State Commlaslon-
er of Eduaatlon in determining the total funda necea-
eary to provide a foundation school program In the
 Han, L. P. Sturgeon, Page 7     (v-910)


 district, regardless of where such child actually at-
 tends school. Otherwise, the amount of foundation
 school funds for which the district la eligible would
 be reduced and the district financiallypenalleed.
 Similarly, average dally attendance establishedby a
 child attending school In an out-of-statedistrict
 should be counted in allocating classroom teacher unit8
 to the district in order to provide adequate teachers
 Sor any out-of-statestudents that may attend schools
 of the district where the coat of instructionla paid
 to the district by the out-of-statedistrict of real-
 dence.
               Power of the Legislatureto provide by gen-
     eral law for transfer of scholasticsto or from Texas
     froinor to districts of other states contiguous to
     Texas districts and count average dally attendance
     established by such transfereesattending Texas public
     schools is not before us for determinationand we ex-
     press no opinion with regard thereto.,



              Scholasticsmay not be transferredbe-
         tween Texas and other 8tate8, and average
         dally attendance establishedby non-resident
         pupils In attendance at Texas public schools:
         may not be considered in determiningalloca-
         tion of classroom teacher units, but average
         dally attendance establishedby Texas achol-
         aatlca attending schools of other states msy
         be counted in allocating classroom teacher
         units to the district of residence. (Con-
         struing Arts, 2695-26gga,and related atat-
         utea and provlalona of the Constitutionof
         Texas as affecting application of Subsection
         (1) of Section 1, Art. III, SOB, 116, Acts
         Slot Leg., R,S., 19490)
                                      Very truly yours
     APPROVED:                   ATTORNRY GENERAL OFTEXAS


e*                               *y/-d*LL
     FIRST ASSISTANT                   Everett Hutchinson
     ATTORNEY GENERAL                           Assistant
     EH:db
