    The Attorney                 General of Texas
                          August        14,    1979




Mr. Bailey Marshall                             Opinion No. l-W- 4 3
The University Interscholastic   League
Box 8028 - University Station                  Re: Eligibility of foster children
Austin, Texas 78712                            to participate     in interscholastic
                                               league activities.

Dear Mr. Marshall:

       You ask several questions concerning the effect of Senate Bill No.
1218, enacted by the 66th Legislature, on certain rules of the University
Interscholastic  League @IL).       Senate Bill No. 1218 adds the following
subsection to section 21.031 of the Texas Education Code:

               (e)’ A child placed in foster care by an agency of
            the state or a political subdivision shall be permitted
            to attend the public free schools in the district in
            which the foster parents reside free of any charge to
            the foster parents or the agency.         No durational
            residence requirement may be used to prohibit such a
            child from fully participating        in any activity
            sponsored by the school district.

        The UIL schedules contests and meets in numerous extracurricular
activities for its member public schools. Section 21.031(e) prevents school
districts from complying with any UIL rule which imposes a durational
residence requirement     on participation in school activities  under the
circumstances it describes.

      You ask whether the following UIL eligibility          rules are inconsistent
with section 21.031(e) of the Texas Education Code:

              Sec. 6. Attendance. - A person who has not been a
           bona fide regular attendant        in the school unit
           represented     for 30 calendar      days immediately
           preceding the contest, or since the first day of the
           second week of the current school year; i.e., a pupil
           who enrolls after the first day of the second week, is
           ineligible to participate in a League contest.
              ....




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Mr. Bailey Marshall           -   Page Two    (MW-43)



                  Sec.     13. Changing Schools. - A pupil changing schools is not
               eligible     in League contests, until he has been in attendance at the
               school      to which he changes for one year if: a) his parents reside
               outside       the school district; or 2) his parents reside outside the
               school      attendance zone in school districts with more than one high
               school.

                 . . . .

                  Sec. 14. One Year Rule. - A pupil who has represented a high
               school (other than his present school) in either football or
               basketball is ineligible, only in the sport or sports (football or
               basketball) in which he participated,    for one calendar year in a
               school to which he changes.
                  A pupil who has represented his school in the ninth grade in
               either football or basketball will be ineligible only in the sport or
               sports (football or basketball) in the school district to which he
               changes, until he has been in attendance for one year.
                  Exception to Section 14: A student who has only one year of
               eligibility remaining may participate in any new school to which he
               may change provided: 1) His parents have a bona fide residence
               within the district to which the student changes; 2) He has a
               release, signed by the superintendent      of the district or by his
               delegated administrator,    and by the principal and coach of the
               school he previously attended, to the effect that the pupil was not
               recruited and that no undue influence was exerted upon him or his
               family; 3) He is approved by the district executive committee of
               the district to which he is changing. Refusal to release a pupil may
               be reviewed by the receiving district executive committee and this
               committee has the authority to declare the pupil eligible if there is
               no justifiable evidence for denying the release.

Constitution    of The University Interscholastic     League, art. VIII.

       Subsection (e) of section 21.031 relates to the placement of a child with foster
parents residing in the school district or school attendance zone. In our opinion this
statute reaches durational residency requirements        that take a form other than the
straightforward   requirement of physical presence in the district for a set time period. Cf.
Attorney General Opinion H-1092 (1977) (policy indirectly linking mandatory retirement%
attainment of a particular age constitutes mandatory retirement policy). We believe the
statute is designed to apply to students at the time they are placed in a foster home. Thus
a foster child could not be disqualified from participation       in interscholastic activities
when his placement in the foster home causes him to fail to meet a durational residency
requirement. On the other hand, a foster child who has been with a family for a period of
time may be subject to being declared ineligible in the same manner as any other child if
the family with whom he has been placed moves to a new district.




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Mr. Bailey Marshall    -   Page Three    (MW-43)



      Section 6, the attendance rule, renders ineligible for participation     in a League
contest a person who has not attended the. school for 30 calendar days immediately
preceding the contest or since the first day of the second week of the school year. A child
may attend tuition free the public schools in the district where he resides or where his
parent, guardian, or other person having lawful control of him resides.         Educ. Code
S 21.031(c). Thus, in the usual case, school attendance in a district is based on residence
there. In our opinion, the attendance rule constitutes a durational residency requirement
when imposed on foster children whose nonattendance          in school results from their
nonresidence in the district prior to placement with foster parents there.      However, it
would not constitute a durational residency requirement as applied to foster children who
move into a new school district with their foster parents subsequent to placement with
them.

       Section 13, which provides a one year waiting period for students changing schools if
the parents reside outside of the school district or school attendance zone, is clearly a
durational residency requirement as applied to foster children who change schools upon
placement with foster parents.     However, a foster child who changes schools by moving
with his foster parents after placement with them would still be subject to section 13.

      Section 14 provides a one year period of ineligibility in football or basketball for a
student who changes schools after having represented another school in that sport. Like
the 30 day attendance rule, this rule imposes a durational residency requirement on a
student who changes schools because he has changed his residence. It may not be applied
to students who change schools due to placement with foster parents. However, it can be
imposed upon students who change schools by moving with their parents after placement.

       You also ask whether section 21.031(e) applies to students assigned to foster homes
by  judges. The statute refers to a “child placed in foster care by an agency of the state or
a political subdivision. . . .‘I In our opinion, “agency of the state” is not confined to
administrative   agencies in the executive branch of government.       Cf. Attorney General
Opinion M-1266 (1972) (distinction between “agency of the state”xd           “state agency”).
Words and phrases in a statute are to be construed according to common usage, unless
they have acquired a technical or particular meaning. Code Construction Act, V.T.C.S.
art. 5429b-2, S 2.01. The dictionary defines “agency” as “a person or thing through which
power is exerted or an end is achieved.” Webster’s Third International Dictionary, at 40.
A judge exercises part of the judicial power of the state. Tex. Const. art. V, SS 1, 7; see
Morrow v. Corbin, 62 S.W.2d 641 (Tex. 1933); Kruegel v. Murphy, 126 S.W. 343 (Tex. Civ.
 App. 1910 writ ref’d). Senator Jones, the sponsor of Senate Bill 1218, stated during the
Senate committee hearing on the bill that it applies to a child who was in a particular
place not through his own volition but through assignment to a foster home.              Tape
 recording, Senate Committee on Education, public hearing April 11, 1979. We believe the
legislature intended “agency of the state I1 to include all state instrumentalities     which
assign students to foster homes, including the courts. There is precedent in Texas law and
in cases from other jurisdictions for construing “agency of the state” to include a court.
The Texas Tort Claims Act includes the following definition:




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Mr. Bailey Marshall   -   Page Four    (NW-4 3 1



              (1) ‘Unit of government’ or ‘units of government’ shall mean the
           State of Texas and all of the several agencies of government which
           collectively   constitute  the government of the State of Texas,
           specifically including, . . . all . . . courts. . . .

V.T.C.S. art. 6252-19, S 2(l). See also Amalgamated Meat Cutters and Butcher Workmen
of North America, Local No. 427, A.F.L. v. Fairlawn Meats, Inc., 353 U.S. 20 (1957) (state
court is state agency within statute on powers of NLRB); U.S. v. Ste hens 315 F. Supp.
1008,lOlO (W.D. Okla. 1970) (court is agency or department odkithin                  statute
prohibiting false statements before such agencies).      Cf. Murphy v. Mack, 341 So.2d 1006
(Fla. App. 1977) (sheriff is agency of the state within public employment statute). Section
21.031(e) applies to students asigned to foster homes by a court.

     Your final questions are as follows:

           Are students assigned by judges from one family home to another
           family home eligible by these rules?

           Are students who are currently living in an orphans home that are
           assigned to a family home, eligible by these rules?

We believe section 21.031(e) applies at the time of each placement            in a foster home,
without regard to whether the student previously resided in another          foster home, in an
orphans home, or with his own family.

                                       SUMMARY

           The enactment of section 21.031(e) of the Education Code prevents
           the application   to students placed in a foster home of three
           University Interscholastic   League rules which impose durational
           residence requirements     on them.    Section 21.031(e) applies to
           students placed in a foster home by a judge. It applies at the time
           of each placement in a foster home, even when the previous
           residence was another foster home or an orphans home.

                                                 Very truly yours,     A


                                                 MARK     WHITE
                                                 Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General




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Mr. Bailey Marshall   -   Page Five   (Ml+43)




Prepared by Susan Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Bobert Heath, Chairman
Susan Garrison
Rick Gilpin
William G Reid
David Young
Bruce Youngblood




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