                       January 13, 1970


Honorable J. W. Edgar                Opinion No. M-552
Commissioner of:Education
201 East 11th Street                 Re: Whether Article 2922-lla,
Austin, Texas                            Vernon.'s Civil Statutes,
                                         makes it mandatory for
                                         public schools to.estab-
                  ,i                     lish a pre-school program
                                         for eligible children,
                                         and related questions.
Dear Dr. Edgar:

     By.recent letter you have requested an opinion on the above
stated matter. We quote from your letter as follows:

          /House Bill.240 (Chap. 872, Acts 61st Leg.,
     B.S. 1969) amends the Foundation School Program~Act
     in several respects. Section 4 of the Bill.incor-
     porates or adds to such Foundation School Act for the
     first time, to be financed in part by State funds, a
     new program referred to in the caption as 'providing
     for a kindergarten program.'  Section 4 is codified
     in Vernon's Civil Statutes as Article 2922-lla.

         "(1) Does the cited law make mandatory upon
         Texas public school districts timely to
         establish and offer the (kindergarten) pre-
         school program to eligible children in the
         district, or is the law permissive making
         available state aid to such districts as
         locally may elect to apply for its benefits
         and operate the program? What year, if any,
         would the law become mandatory?




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Honorable J. W. Edgar, page 2 (M-552)


          "In connection with (l), we are concerned with
     realistic situations where a school district is unable
     locally to implement the kindergarten program due to
     such factors as (a) lack of classroom space, (b)
     inability to secure qualified teachers for the program,
     (c) an insufficient number of eligible preschool age
     children to justify one preschool class, et cetera . ..

          “2 s Does the State Board of Education have
          authority to adopt formulas for allocation of
          classroom teacher units, other professional per-
          sonnel, and teacher-aides for the (kindergarten)
          pre-school program, or do the allocations
          prescribed for personnel (for.grades one through        .'~
          12 classes) 'in Section 2A and Section 2 of
          House Bill 240 operate to apply:'to statesup-
          ported kindergarten programs?"

     The pertinent provision of Article 2922-lla, V.C.S., is
quoted as follows:

          "(a) Beqinninq with the school year 1977-78, any
     child in this state over five and under 21 years
     of aqe at thee beqinninq of the school vear,.who has
     not vet qraduated from high school, .shall.,be.. entitled
                                                       .._.
     to the benefits of tli6 ~asic'FOundat;dli"~chool P'roqram" "       "
     for the ensuing school year. Such eligible child shall
     be admitted tuition-free to the public schools of the
     district in which he, his parents or leqal quardian,
     resides. Provided, however, that for the school years '.
     1969-1970 through 1976-1977, the qualifying age li'mits
     at the beginning of each school year shall be in
     accord with the following table:




                                                              ,




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    Honorable J. W. Edgar, page 3 (M-552)




                              QUALIFYING AGE LIMITS
                         AS OF BEGINNING OF SCHOOL YEAR


                              1969-70   1973-74     1975-76
                              through     and         and
                              1972-73   1974-75     1976-77 '-
        Beginning Age:
           Years                6           5             5
           Months               0           7             4
        Highest Age:
           Years               20         20          20



              "(b) Notwithstanding the provisions of
        Paragraph (a) of this Section, the program of
        preschool education shall be extended first to 'edu-
        cationally handicapped' children as preparation for
        the regular school program in which such children
        will participate in subsequent years ... The benefits
        of this program for prgschool            shall be ex-
        -tended on a first priority basis to,'educationally
        handicapped" children below existing age limits   as
        shown in the following table:



                                  QUALIFYING AGE LIMITS
                             AS OF BEGINNING OF SCHOOL YEAR:

                                                   1972-73
                                                   and
                             1970-71    1971-72    Thereafter

        Beginning Age:
           Years                5           5         5.
           Months               5           2         0
        Highest Age:
           Years               21         21         21       ...I(   :

         (Emphasis added.)



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Honorable J. W. Edgar, page 4 (M-552)


     Your first question, as to whether the statute is mandatory
or permissive for the school districts of the State to establish
a preschool program as prescribed, requires an analysis of
Section (a) quoted above.

     The underlined language of Section (a), quoted above, is
similar to language found in Articles 2902 and 2904a, Vernon's
Civil Statutes (now Section 21.031, Texas Education Code).

     Article 2902, V.C.S., has been construed by our courts
to require a school district to admit a student, within the i:
prescribed age, provided, the .student resides within the school
district in question. Alvin Independent School Dist..v: Cooper,
404 S.W.2d 76 (Tex.Civ.App. 1966,'no writ); Anderson v. Canvon
Independent School District, 412 S.W.2d 287 (Tex.Civ.App. 1967,
no writ). Also see Attorney General's Opinion O-1388 (1939).

     The rationale of the, above cited cases seems to be that a
school operating under the Foundation School Program receiving
state funds therefrom, must offer the benefits of the program
to any child who meets the age and residence requirements pre-
scribed by the Foundation School Program.

     Applying the above rationale .to the statute in question,
it seems clear that by the start of.the school year 1977-78 all
students between 5 and 21 years of age, as qualified, would be
entitled to the benefits of the Found&ion   School Program which
would include a preschool or kindergarten program, and all
schools subject to,the Poundation School Program would have to
provide these students with the benefits of the program.

     Consequently, it is our opinion, that the Legislature
intended to include the preschool (kindergarten) as a part of
the program, to any eligible child whose age and residence
requirements are met under the graduated age requirements set
out in detail in the statute.




                        -2636-
Honorable J. W. Edgar, page 5 (M-552)


     As for the realistic situations, listed in your request,
which we quote:

          "(a). Lack of classroom space

           (b)   Inability to secure qualified'teachers
                 for the program

           (c)   An insufficient number of preschool ag*e
                 children to justify a preschool class, etc."

     The statute in question does not speak to these practical
problems, unless the provisions of graduated age requirements,
and priority of educationally handicapped children were in-
tended to alleviate some of the above listed practical problems,
which incidentally would seem to be present, notwithstanding
the provisions of Article 2922-lla.

     It is our opinion, therefore, that the solutions to these
practical problems lies with the Legislature, and the statute
in question does not recognize these practical situations as
per se'exceptions to the implementation of the program required
by the statute.'

     Your second question, as to whether the Texas Education
Agency has any authority to allocate the necessary teaching
personnel to the preschool program or whether such allocation
is covered by other provisions of House Bill 240, requires an
analysis of Section 2 (Article 2922-1411) and Section 2A
(Section l(l), Article 2922-13) of House Bill 240.

     Article 2922-14d, Vernon's Civil Statutes, provides for
teacher aides, setting forth a salary and reference is made to
the Texas State Public Education Compensation Plan (Article
2922-14c), which provides for various duties of teacher aides.




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                                                                     ..




Honorable J. W. Edgar, page 6 (M-552)


     Section l(l), Article 2922-13, Vernon's Civil~Statutes,
provides a detailed system of determining the number of class-
room teachers to b@,,utilized by the various schools according
to the average daily attendance of students in the schools.

     It appears, from the above Articles, that the number of
classroom teachers to be assigned depends upon the average daily
attendance of students in the.various schools.; and the 'number of
teachers aides depends upon number of classroom teachers
assigned under,the Foundation School Program.

     We were unable to find any provision in Article 2922-lla
or any provision in House Bill 240, including Sections 2 and 2A
discussed above, which authorizes the Texas Education Agency
to determine the allocation of classroom teachers or other
personnel to the preschool program.

     The allocation of teachers and teachers aides pursuant to
the provisions.of Articles 2922-13 and 2922-148 based upon average
daily attendance is comprehensive enough to cover the preschool
programs.   In this regard it should be noted that Section C of
Article 2922-lla provides that students in the preschool program
should be counted for scholastic purposes'based on average' daily
attendance.

     It is our opinion that the provisions of Article 2922L13
relating to number of classroom teachers and Article 2922-14d
relating to teacher aides would apply to the preschool programs
provided for in Article 2922-lla.

                                SUMMARY

               The provisions of Article 2922-lla, Ver-    *
          non's Civil Statutes, requires the various school
          dis~tricts in the State that are subject to the
          minimum Foundation School Program to offer a pre-
          school program to any eligible child meeting the age
          and residgnce requirements set out in said Article.




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                .’
L   .




    Honorable J. W. Edgar, page 7 (x-552)


                   The allocation of classroom teachers and
              teachers aides provided in Articles 2922-13 and
              2922-14d, Vernon's Civil Statutes, based upon
              average daily attendance would cover the scholastics
              in the preschool program required by Article 2922-lla.

                                       Very truly yours,




                                       Attorx@   General of Texas

    Prepared by James C. McCoy
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Kerns Taylor, Chairman
    Alfred Walker. Co-Chairman

    Austin Bray, Jr.
    Fielding Early
    Jim Swearingen
    Larry Camm

    MEADE F> GRIFFIN
    Staff Legal Assistant

    NOLA WHITE
    First Assistant




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