Honorable W. C. Lindsey                  Opinion No. M-3
Criminal District Attorney
Jefferson County Courthouse              Re:      Construction  of Article
Beaumont, Texas                                   2898, Vernon's Civil
                                                  Statutes and Article
                                                  2338-1, Vernon's Civil
Dear Mr. Llndsey:                                 Statutes.
            You have requested our opinion on the construction
of Article    2898 and Article 2338-1, Vernon's Civil Statutes.
Your specific    questions read as follows:
              "1 . Was Article 2898 repealed by impll-
     cation     with the enactment of Article 2338-11
           “2. If It was not repealed by lmpllcatlon,
     can Juvenile Probation Officers,  Asslatant Dls-
     trict Attorneys, and the Texas Youth Council be
     called upon to furnish their services   In admlnls-
     terlng the law?"
              Article   2898, Vernon's    Civil     Statutes,   provides:
           "Any child within the compulsory school
     attendance ages who shall be Insubordinate,
     disorderly,    vlclous or immoral In conduct, or
     who persistently      violates   the reasonable rules
     and regulations     of,the    school which he attends,
     or who otherwise persistently        misbehaves there-
     in so as to render himself an Incorrigible,           shall
     be reported to the attendance officer         who shall
     proceed against such child In the juvenile          court,
     If such child is found guilty In said court the
     judge shall have the power to parole said child,
     after requiring     the parent or other person,stand-
     lng ln'parental     relation,    to execute a bond in
     the sum of not less than ten dollars,         conditioned
     that said child shall attend school regularly           and
     comply with all the rules and regulations          of said
     school.     If the superintendent     or principal    of any
     school shall report to the attendance officer           for
     said school that said child has violated          the con-
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Hon. W. C. Lindsey,    page 2 (M-3      )


     ditlons  of his parole,    said attendance officer
     shall proceed against such child before the judge
     of the juvenile    court, and if such child shall be
     found guilty of violating      the conditions   of said
     parole,  the bond shall forthwith be declared        for-
     feited and shall be collected       in the same manner
     as other forfeited     bonds under the general laws
     of this State, and the proceeds of same shall          be
     paid into the available      school fund of the common
     or independent school district.        The judge of said
     court may, after a fair and Impartial hearing
     given to said child,     again parole said child,      re-
     quiring such bond as he may deem prudent, and re-
     quire said child to again enter school.         If said
     child shall violate     the conditions    of the second
     parole and shall be convicted       of same he shall be
     committed to 8 suitable      training school 8s m8y be
     agreed upon by the parent of the child and the
     judge of the juvenile     court In which the child is
     convicted .‘I
            In construing the provisions   of Article 2898, Vernon’s
Civil Statutes,   above quoted, In Bishop v. Houston Independent
School Dlst.,   35 S.W.2d 465 (Tex.Clv.App.,   1931), the Court
stated:
             “It is clear from the language of the statute
     that Its primary purpose is to compel the regular
     presence in school of every child subject to Its
     provisions      for the length of time specified.        This
     purpose might be often defeated If It was left to
     the school authorities        to determine whether a par-
     ticular     child should be denied the rlght of attend-
     ing school, and article        2898, we think, wisely
     places the authority        to determine this question In
     the juvenile       court, and only authorizes    that tri-
     bunal     to keep the child from school when Its con-
     duct is vicious       or immoral,   or it so persistently
     violates     the rules of the school,     or otherwise so
     persistently       misbehaves therein a? Lo be deemed
     incorrigible.        Even In cases comrllg under this
     provision      the child can only be deprived of the
     right to attend school as a last resort,          and must
     then be committed to a training school.
           “This statute Is mandatory In its language,
     and under well settled    rules of construction   the
     procedure and method prescribed    by the statute
     is exclusive,   and when some other method Is followed
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       Hon. W. C. Lindsey,      page 3 (M-3        )


            the proceeding is unauthorized and void.   Mill-
            hollon v. Stanton Independent School District
            (Tex.Com.App.) 231 S.W. 332."
                   Article  2338-l was enacted subsequent to the above
       cited case.     The purpose of Article 2338-1, Vernon's Civil
       Statutes,   Is stated In Section 1 as follows:
                  "The purpose of this Act is to secure for
            each child under Its jurisdiction    such care,
            guidance and control,   preferably  in his own
            home, as will serve the child's    welfare and
            the best Interest   of the state; and when such
            child Is removed from his own family, to secure
            for him custody, care and discipline     as nearly
            as possible  equivalent  to that which should
            have been given him by his parents.
                    "The principle  Is hereby recognized   that
             children under the jurlsdlctlon      of the court
             are wards of the state, subject to the disci-
on's         pline and entitled    to the protection   of the
nt
-            state, which may Intervene to safeguard them
             from neglect or Injury and to enforce the legal
             obligations    due to them and from them."
                   Section 3 of Article   2338-1, Vernon's            Civil     Statutes,
       defines   the term "delinquent   child" ass
                   If. . . any female person over the age of
             ten (10) years and under the age of eighteen
             (18) years and any male person over the age
             of ten (10) and under the age of seventeen
             (17) years, except as provided in Section 6
             of this Act, who


                      "(e) habitually  violates        a compulsory
             school      attendance law of this        State; or
                      11. . . . II

                  Thus it is seen that the provisions  of Article  2338-1,
       Vernon's Civil Statutes,  does not repeal the provisions   of
       Article  2898, Vernon's Civil Statutes,  but on the contrary Is
       cumulative of and supplemental to Its provisions.
                      You are therefore     advised     that the school       attendance
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Hon. W. C. Lindsey,    page 4 (M-3 )


law is to be enforced by the attendance officer       appointed for
such purpose or in the absence of such attendance officer        by.
the school superintendent     and the peace officers   of such county
or district.   Article   2895, Vernon's Civil Statutes.      However,
the juvenile officers    and other administrators    of the pro-
visions of Article    2338-1, Vernon's Civil Statutes,    may be
called upon to furnish their services      whenever it is deter-
mined that a child,habitually     violates  a compulsory attendance
law of this State.
                        SUMMARY
                        ----_--
            The school attendance law is to be enforced
     by the attendance officer     appointed for such
     purpose pursuant to the provisions      of Article
     2895, Vernon's Civil Statutes.       The juvenile
     officers,   pursuant to the provisions    of Article
     2338-1, Vernon's Civil Statutes,      may be called
     upon for their services    whenever it is determined
     that a child habitually    violated   a compulsory
     attendance law of this State.
                                         truly   yours,




JR:mh
Prepared    by John Reeves
Assistant    Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
W. 0. Shultz
James Quick
Wade Anderson
Marietta Payne
STAFF LEGALASSISTANT
A. J. Carubbi, Jr.


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