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                             E         ORNEY         GENERAL
                                     OF      EXAS
                                    Aus~liu ~LTEXAS
         WILL   WILSON
     *%-ro-       GENERtbL
                                 February 13, 1961

         Dr. J. W. Edgar               Opinion No. WW-994
         Commissioner of Education
         State Department of           Re:   Whether the State under the
          Education                          Foundation Program Act (Art-
         Austin, Texas                       icle 2922-11, et seq.) by
                                             way of State allocations has
                                             a responsibility to educate,
                                             free of tuition, children
                                             within the district residenc-
                                             ed, enrolled in and under the
                                             custody of a private school
                                             for exceptional children for
                                             all purposes, where the prl-
                                             vate school determines that
                                             enhancement of the children's
                                             progress (physical, mental
                                             and otherwise) will result
                                             from enrolling them in local
          Dear Dr. Edgar:                    public schools?
               We have your letter of December 30, 1960, concerning the
          above stated question which reads in part as follows:
                     "Unquestionably, their /Fne children's
                residence in the private school located wi clin
                the school district is bona fide for all pur-
                poses -- maintenance and care, education and
                treatment. The private school Is operated for
                profit. . . .
                     "We have never questioned the eligibility
                of students residing in non-profit institutions,
                for example: Boysville located in Judson Rural
                High School District of Bexar County or the
                orphans' home located in Round Rock Independent
                School District of Williamson County, which
                assume complete custody of each child and is
                responsible for maintenance and training. . . .
                                                               ..




Dr. J. W. Edgar, Page 2 (ww-994)


         "It is the possible subsidy of a private
    school operated for profit that gives us con-
    cern In this problem of first impression.
    Necessarily and legally would it follow that
    such a private school Is relieved of education
    costs (to a school district wherein the institu-
    tion is located and the children reside) when
    It determines that enrollment of such children
    In the public schools will enhance their develop-
    ment and progress -- social, mental and otherwise.'
     Your question resolves Itself to a determination of
whether admitting children enrolled in private schools for
exceptional children, operating for a profit, to public
schools of Texas, tuition free, where all residence require-
ments have been met, could be interpreted as subsidizing
such private school.
     Article 2901 of Vernon's Civil Statutes states:
         "Every child In this State of scholastic
    age shall be permitted to attend the public
    free schools of the district or independent
    district in which It resides at the time it
    applies for admission, notwithstanding that It
    may have been enumerated elsewhere, or may
    have attended school elsewhere part of the
    year."
     Article 2902 of Vernon's Civil Statutes states:
          "All children, without regard to color, over
     six years of age and under eighteen years of age
     at the beginning of any scholastic year, shall be
     Included In the scholastic census and shall be en-
     titled to the benefit of the public school fund
     for the year. The board of school trustees of any
     city or town or independent or common school dis-
     trict shall admit to the benefits of the public
     schools any person over six and not over twenty-
     one years old at the beginning of the scholastic
     year, If such person or his parents or legal
     guardian reside within said city, town or district."
     Article 2922-11 of Vernon's Civil Statutes states:
Dr. J. W. Edgar, Page 3 (W-994)


         "This Act shall be known as the Foundantion
    School Program Act. It is the purpose of this
    Act to guarantee to each child of school age in
    Texas the avallabllity of a minimum Foundation
    School Program for nine (9) full months of the
    year, and to establish the eligibility require-
    ments applicable to Texas public school districts
    in connection therewith."
     We have been unable to find any authority, either statu-
tory or case law, passing on the question before us nor have
we been able to find any authority which would prohibit any
child or children from enrolling in the free public schools
in the district in which their residence is established,
whether enrolled In a private school or otherwise. On the
contrary, the statutes pertaining to the free public schools.
                     d th; ;hild in this State . . . shall
of Texas state that "Ever
be permitted to atten       ree public schools of the district
. . . in which it resides . . ." and "All children" shall be
entitled to the benefit of the public school if such person,
his parents, or legal guardian reside within each city, town
or district. There is no restriction or limitation on the
classes of children who may take advantage of the free public
schools whether they reside in private schools, foster homes,
or with their own parents. (Dnphasls ours)
     Attorney General's Opinion 0-7263 (1946) states as
follows:
          "The general rule appears to be that in
     the absence of express and specific statutory
     restrictions limiting the classes of pupils
     living within a school district who shall be
     eligible for public school privileges or free
     attendance, a child of school age living in a
     school district permanently with no present
     intention of removal, with a guardian or one
     who stands In loco parentis to him, free from
     control of the parents or emancipated, is en-
     titled to all school privileges as a resident
     of the district for school purposes, even
     though the parents are non-residents . . ."
     It Is true that the question propounded involves a fact
question but where it can be determined that there will be
little or no benefit to the private schools, either directly
Dr. J. W. Edgar, Page 4 (WW-994)


or indirectly, and where public school attendance can only
benefit the child or enhance the child's progress, the em-
phasis should be on amplifying rather than restricting the
means which will permit children to obtain as much education,
enhancement, or benefit as possible.
     In connection with the benefits to private schools, it
is interesting to note that buildings used for school pur-
poses are exempt from taxation and this applies to private
schools as well as public schools. Cassiano v. Ursuline
         64 Tex. 673. The Court states in this opinion as
i%%
          "The education of the masses Is now
     recognized as a function of state govern-
     ment, Those who, from charitable consider-
     ations, to forward sectarian views, or for
     private profit, have organized or conducted
     schools, have assisted the state in the per-
     formance of a duty It owes to its citizens,
     which cannot be too thoroughly performed,
     and which the state has never assumed that it
     had either the means or the machinery of doing
     sufficiently well without private assistance.
     . . *I,
     Therefore, by virtue of the provisions of Articles2901,
2902, and 2922-11, Vernon's Civil Statutes, and In light of
the general rule herein set out concerning no limitations or
class restrictions in the statutes as to children eligible
for free public school attendance where residence is estab-
lished and where it can be proved to the satisfaction of the
school district that little or no benefit, either direct or
indirect, could accrue to the private school, but only to the
children enrolled In such private school, it is the opinion
of this department that a school district has the responsibility
to educate, free of tuition, children within the district resi-
dented, enrolled in and under the custody of a private school
for exceptional children for all purposes, where the private
school determines that enhancement of the children's progress
(physical, mental and otherwise) will result from enrolling
them in local public schools.
.   .




        Dr. J. W. Edgar, Page 5 (W-994)


                               SUMMARY
              There being no restriction or limitation in the
              statutes as to children eligible for free public
              school attendance where a bona fide residence has
              been established, a school district, therefore,
              has the responsibility to educate, free of tuition,
              children within the district residenced and enrolled
              In a private school for exceptional children where
              it is determined that enhancement of the children's
              progress will result from public school attendance.
                                         Yours very truly,
                                         WILL WILSON
                                         Attorney General of Texas


                                         BY
                                              Iola Barron Wilcox     /
                                              Assistant

        1BW:mm
        APPROVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
        Vernon 0. Teofan
        W. Ray Scruggs
        Lawrence Hargrove
        F. C. Jack Goodman
        REVIEWED FOR THE ATTORNEY GENERAL
        BY:   Morgan Nesbitt
