Dr. J. W. Edgar                      Opinion No. M-1074
Commissioner of Education
Texas Education Agency               Re: Use of public school facili-
201 East 11th Street                     ties by parochial school
Austin, Texas 78701                      students

Dear Dr. Edgar:

     By letter you have requested our opinion in regard to the
above matter. We quote from your letter as follows:

          "The playground and public junior high school
     of an independent school district (Crosby Inde-
     pendent School District - Harris County) is adjacent
     to a church operated eight-grade parochial school
     and its playground.

          "For some yeare prior to the 1970-71 school
     term, the church school (grades 7 and 8) pupils
     came to said public school for physical education
     (P.E.) claeaee and band practice.  Normally, most
     of the parochial pupils continue their education
     in the public schools upon coming ninth graders.

          "Pursuant to a court order (concerning inte-
     gration), grades 7 and 8 pupils of the said public
     school this year are being taught at another school
     of the dietrict located four miles from the parochial
     school.

          "Currently, permission is sought of the
     local school board to continue to allow the parochial
     school 7th and 8th graders to participate in the




                            -5260-
I




    Dr. J. W. Edgar, page 2       (M-1074)



         public school music (band) program. Now, the
         district school board defers to decide thereon until
         this Agency has submitted an opinion request and
         answer is obtained from the Office of Attorney
         General on the following inquiry:

              "Legally, may a public school district of
         Texas permit and admit children who are duly en-
         rolled by parental choice in a parochial school
         (and thus exempt from attendance in public school)
         to participate regularly in a public school in-
         struction program (band-music), pursuant to a
         mutual arrangement between the schools?"

         Subsequent to your letter, we have been advised by the
    Superintendent of the Crosby School that there is no formal
    agreement between the public and parochial school boards, and
    that the public school deals with each individual student
    (parochial) who wishes admission to the band classes at the
    public school, and further that the individual student provides
    his own transportation to the public school for the class in
    question.

         The board of trustees of an independent school district
    "have the exclusive power to manage and govern the public free
    schools of the district" and they "may adopt such rules and
    regulations, and by-laws as they may deem proper" under Section
    23.26, Texas Education Code. They are required to administer,
    Sections 21.031, 21.032, and 21.033 of the Code concerning the
    matters of admission of students, their compulsory attendance,
    and the determination of which students fall within the classes
    of children which are exempt from the requirements of compulsory
    attendance.   In this connection, they are empowered to make rules
    and regulations not inconsistent with the statutory provisions,
    and they have the necessary implied power, in order to exercise
    the authority granted, to enter int.o contracts governing the
    terms and conditions for student admission and attendance in




                              -5261-
Dr. J. W. Edgar, page 3            (M-1074)



the schools of the district. While students attending a private
or parochial school, along with certain other classes of students,
are exempt from compulsory attendance, this fact alone does not
render them legally ineligible to attend the free public schools
pursuant to Section 21.031 and under such reasonable rules or
regulations consistent with statutory provisions as may be
promulgated by the school district. Attorney General's opinion
No. WW-994 (1961). In the cited opinion, it was held that since
there was no restriction or limitation in the statutes as to
children eliqible for free public school attendance, a school
district has the general responsibility to educate, free of
tuition, even those children within the district residenced and
enrolled in private schools for exceptional children where it is
determined that enhancement of the children's progress will
result from public school attendance.  The school board may make
such rules and regulations as are necessary to maintain the
constitutionally required "efficient" system without discrimina-
tion or abu.se of discretion. Wilson v. Abilene Independent School Dist
190 S.W.Zd 406 (Tex.Civ.AEp.1945, error ref. w.m.); Article VII,
Constitution of Texas.

      In carrying out its responsibility, a school district has
the necessary implied power to so contract.   It appears to be
well settled that a quasi public corporation, such as a school
district, has the power to enter into a contract where authorized
by necessary implication from the powers granted to it by statute.
Attorney General's opinion NOB. M-1036 (1972) and V-1054 (1950).
See also McCorkel v. District Trustees,121 S.W.2d 1048, 1053
 (Tex.Civ.App. 1938, no writ): Crosbv v. P.L. Marquess & Co.,
226 S.W.Zd 461 (Tex.Civ.App. 1950, error ref., n.r.e.).

     Two principal issues remain for disposition.  The first is
the question of whether this arrangement would violate the First
Amendment to the United States Constitution, or Section 7 of
Article I of the Texas Constitution concerning the separation
of church and state. Second is the issue of whether the use




                          -5262-
.   .




        Dr. J. W. Edgar, page 4        (M-1074)




        of public school property by the individuals in question amounts
        to a gift or grant of public property for a private purpose
        prohibited by Section 51 or 52 of Article III of the Texas
        Constitution.

             It is our opinion that, under the facts presented, there
        is no constitutional violation.

             The issue of separation of church and state has recently
        been considered~ in a series of U.S. Supreme Court cases which
        are discussed in Attorney General's Opinion M-1036 (1972), to
        which reference is made for authorities there discussed.   In
        addition, the decisions have permitted the states to provide
        private or parochial schools with secular, neutral, or non-idiological
        services, facilities, or materials.   See P.O.A.U. v. Essex, 28
        Ohio St.2d 79, 276 W.E.Zd -(1971);     Tilton v. Richardson, 403
        U.S. 672 (1971), Board of Education v. Allen, 392 U.S. 236 (1968).
        See also In re Leqielature's Request For An Opinion, 180 N.W.Zd
        265 (Mich.Sup. 1970), writ dism. 401 U.S. 929, wherein the court
        found no constitutional violation under the Michigan Constitution,
        which reads identically to Article I, Section 7 of the Texas
        Constitution.

             The tests (or questions) of church-state separation are
        four-fold (see page 6 of M-1036), but for purposes of this
        opinion, under the facts submitted, it is our opinion that there
        is no fostering or inhibiting of religion, or excessive entangle-
        ment of church-state relations under the facts presented.  Neither,
        in our opinion, is there a primary secular intent, but rather an
        intent to aid individual students in acquiring certain skills.

              The second issue raised by this opinion request has also
        been considered in prior opinions of this office.   See M-861
         (1971) and the opinions contained therein, and also the authori-
        ties above cited, wherein the particular measure under attack
        was upheld as being for a governmental public purpose as dis-
        tinguished from a private or religious one.




                                   -5263-
Dr. J. W. Edgar, page 5             (M-1074)



     Even though, as stated in your opinion request, the students
in question are "exempt" from compulsory attendance in public
school because they are parochial school students (Sec. 21.033,
Texas Education Code), that factor alone is not conclusive on
the question.

     The thrust of Sections 51 and 52 of Article III of the
Texas Constitution was to prevent the Legislature. and any public
body acting pursuant to express or implied legislative power,
from giving away public money or thing of value, for a private
purpose. These sections were not intended to prevent public
purpose projects, which incidentally may benefit some individual
or group of individuals.  See State-v. City of Austin, 160 Tex.
348, 331 s.w.Zd 737 (1960).

     Under the facts submitted, it is our opinion the public
school in question, by allowing the parochial school students
to take certain lessons, as stated, would not be in violation of
Section 51 or 52 of Article III of the Texas Constitution.

                          SUMMARY

              Under the facts submitted, the Crosby
          Independent School District may permit the
          parochial school students to receive band
          lessons at the public school, and such
          action by the school does not violate the
          First Amendment to the United States Con-
          stitution or Section 7 of Article I of the
          Texas Constitution or Sections 51 and 52
          of Article III of the Texas Constitution.




                                               C. MARTIN
                                               General of Texas

Prepared by James C. McCoy
Assistant Attorney General

                             -5264-
Dr. J. W. Edgar.    page 6       (M-1074)



APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Melvin Corley
Houghton Brownlee
Max Hamilton
Linward Shivers

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOW+ WHITE
First Assistant




                             -5265-
