                           June 22, 1960

Mr. William J. Gillespie      Opinion No. WW-862
County Attorney
Lubbock County               Re:   Does Article 2892, Ver-
Lubbock, Texas                     non's Civil Statutes,
                                   mean that children can
                                   be compelled to attend
                                   school only during the
                                   first one hundred twen-
                                   ty days of the school
                                   year, and related
Dear Mr. Gillespie:                questions.
        We are In receipt of your letter requesting an opinion
on the following questions:
            "a) Does Article 2892 pernon's Civil
       Statuteg mean that children can be compel-
       led to attend school only during the first
       one hundred twenty days of the school year?
            "b) Does Article 2892 pernon's Civil
       Statutegmean   that children can be compel-
       led to attend school at any time during the
       school year until a total of one hundred
       twenty days attendance Is reached.
            "c) Does the failure to file a com-
       plaint within the first one hundred twenty
       days of the school year preclude a criminal
       action against the parent under Article 299?"
        Article 2892, Vernon's Civil Statutes, reads as follows:
            "Every child In the State who Is seven
       years and not more than sixteen years of
       age shall be required to attend the public
       schools In the district of its residence, or
       In some other district to which It may be
       transferred as provided by law, for a period
       of not less than one hundred and twenty days.
       The period of compulsory school attendance at
       each school shall begin at the opening of the
       school term unless otherwise authorized by
                                                           i.   -   -   I




Mr. William   J. Gillespie, Page 2 (~~-862)

         the district school trustees and notice given
         by the trustees prior to the beginning of such
         school term; provided that no child shall be
         required to attend school for a longer period
         than the maximum term of the public school In
         the district where such child resides."
        The Court In Trimmer v. Carlton, 116 Tex. 572, 296
S.W. 1070 (1927), In interpreting a statute held that It Is
the duty of the court to ascertain the Intention of the Leg-
islature and that words will not be given their literal
meaning where such an Interpretation will lead to an absur-
dity or thwart the plain purpose of the Legislature. The
Court also held that in Interpreting a statute It is the
duty of the court to consider the whole Act, including the
caption, the Act Itself and the emeraencv clause. in order
to-arrive at the Intention of the Legislature. ~The Supreme
             rs v. City of San Antonio, 110 Tex. 618, 223
             0) held these to be the primary rules of con-
struction.
        The caption of the original compulsory education Act,
Acts 1915, page 92, begins as follows:
              "An Act to compel attendance upon public
         schoo+,sof Texas by children between the ages
         . . .
        Section 1 of this Act, from which Article 2892, Ver-
non's Civil Statutes, and Article 297, Vernon's Penal Code,
were derived, reads In part as follows:
              "Section 1. Attendance Requirements and
         Provisions. - Every child In this State who Is
         eight years and not more than fourteen years
         old shall be requlred to attend the public
         schools In the district of Its residence, or In
         some other district to which It may be trans-
         ferred, as provided by law, for a period of not
         less than sixty days for the scholastic year,
         beginning September 1, 1916, and for a period
         of not less than eighty days for the scholastic
         year beginning September 1, 1917, and for the
         scholastic year 1918-19. and each scholastic
         year thereafter a~minlmkn attendance of IO0
         days shall be required. . . .I'(Emphasis added)
        It Is our opinion that the language of this Act shows
the primary Intent of the Legislature to compel a minimum
Mr. William J. Gillespie, Page 3 (~11-862)

attendance and that the number of days rather than a partl-
cular calendar period ls,what was Intended by Section 1.
        This view Is In accord with that of the Texarkana
Court of Appeals which hel'd'as follows In the case of Palmer
v. District Trustees of District No. 21, 289 S.W. 2d 344,
error ref. n.r.e. [lgbb).
             II
                  . It Is our view that the para-
        mount purpose of the,compulsory school law
        Is to compel parents, or'persons~standlng
        In parental relation to children,subject to
        the compulsory school law, to see that such
        children attend school . . i"
        This interpretation is supported further by the Acts
of 1939, 46th Legislature, page 227, which amended Article
297 of Vernon's Penal Code. The Legislature In 193.5(Acts
1935, 44th Legislature, page 409, chapter 160) had amended
Article 2892, Vernon's Civil Statutes, and Article 297, Ver-
non's Penal Code, to lower the minimum age and raise the
maximum age. Article 2892, Vernon's Civil Statutes quoted
above is identical to the,1935 Act. The Legislature In the
1939 amendment inserted the word "annually" after the words
"one hundred twenty days" In Article 297. Section 2 of the
1939 amendment expresses the legislative Intent as follows:
             "Sec. 2. The fact that the word 'annu-
        ally' was omitted from Article 297 as amended
        whereas it was clearly the Intent of the Leg-
        islature as expressed in the Act to require
        school attendance of one hundred and twenty
        (120) days each scholastic year . . .'
         This language shows clearly that the Legislature was
 concerned with a minimum number of days In attendance In con-
 trast to a certain period on the calendar. It Is our opinion
 that by the doctrine of "par1 materia" (See Texas Jurls. Vol.
'39, page 253) Article 2892, Vernon's Civil Statutes, would beg
 governed by the same Interpretation, as Article 297, Vernon's
 Texas Penal Code.
        In view of the reasons and rules of construction stat-
ed above you are advised that your first question Is answered
in the negative and that your second question Is answered In
the affirmative.
        Applying the same reasons and rules of construction
stated above we are of the opinion that the failure to file a
complaint within the first one hundred and twenty days of the
Mr. William J. Gillespie, Page 4 (~~-862)

school year will not preclude a criminal action against the
parent or person standing ln.parental relation to the child
under Article 299 of the Penal Code.
        Your third question Is, therefore, answered in the
negative.
                           SUMMARY
             The compulsory education law, specl-
             flcaIIy Articles 2892, Vernon's civil
             Statutes, and.297, Vernon's Penal Code,
             requires school attendance for a minl-
             mum of one hundred twenty (120) days a
             year. The failure to file a complaint
             within the first one hundred and twenty
             days of the school year will not pre-
             clude a criminal action against the
             parent or the person standing In parent-
             al relation to the child under Article
             299 of the Penal Code.
                                     Very truly yours,


                                     Robert A. Rowland
                                     Assistant Attorney General
RAR:mm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Donald R. Bernard
Houghton Brownlee, Jr.
Riley Eugene Fletcher
James R. Irlon, III
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Leonard Passmore
