.   I.




         Hon. S. M. Pliler         Opinion No. O-6333
         County Auditor            Re:    Who is liable for the additional
         Taylor County             tuition  fee of the children transferred
         Abilene, Texas            from the Abilene State Hospital Inde-
                                   pendent School District   to the City
                                   of Abilene Independent School District?
         Dear Sir:                 And a related question.
                       We have your opinion   request   which is   stated   in
         your letter     as follows:
                      “***An independent school district      has, pursu-
              and to law, been created and is now in existence           in
              the Abilene State Hospital Area.          The bounds of the
              independent school district        so created are co-extensive
              with the bounds of the Abilene State Hospital.            The
              Abilene State Hospital is located approximately two
              miles southeast of the City of Abilene.          There are
              about 200 inmates of this institution         who attend this
              school.      All of the inmates attending the school are
              afflicted     to the extent that they are now in the hospi-
              tal.     There are a number of adult employees who live
              in the hospital      area, and also in the independent
              school area.       These adult employees have a number of
              children who are of scholastic        age.   These children
              are normal children,       and are not inmates of the institu-
              tion.      The school which is operated and maintained in
              the above mentioned independent school district           at the
              Abilene State Hospital does not have a normal curricu-
              lum, or course of study, but is mostly handicraft
              teaching.       Therefore,  the normal children, cannot at-
              tend the school so conducted in the Abilene State
              Hospital independent school district.          Therefore,   they
              are being transferred       by the County Superintendent to
              the Abilene Independent School District         maintained
              within the City of Abilene         Texas.   The Abilene State
              Hospital independent schoo i is maintained and operated
              by the State money of $25.00 per capita,         and no other
              funds have been given this particular         independent
              school district.        The $25.00 per capita apportionment
              is, of course, transferred        with each student transfer-
              ring to the Abilene Independent School District           in the
  Hon. S. 14. ililer,     page 2


        City of Abilene, but this amount is insufficient        to
        carry the child,    or children,    through a nine-months
        school, but only carries him, or them, for a period
        of four months. The Abilene city independent school
        district   charges a tuition     fee as provided by law in
        the following    amount: $5.00 per month per child
        for transfers    such as the above children,     in the ele-
        mentary grades; and $6.50 per month in the junior
        high school grades; and $7.50 per month in the sen-
        ior high school.
               “Now, the question he desires to have answered
        is:    \!ho is liable    for the additional    tuition fee of
        the children transferred        from ,the Abilene state Hos-
        pital independent school district         to the City of
        Abilene independent school district;          and also should
        this additional      tuition,   or could the additional   tui-
        tion, be paid from the k,qualization        Fund, as provided
        in House Bill Number 176, Chapter 373, of the Forty-
        eighth Legislature,        and which bill was passed and
        finally    approved on May 2’7, 1943. ***I’                             ._,,,~
               The additional     tuition     cannot be paid from the Equali-
    zation Fund as provided in House Bill Number 176, Chapter~373,
    48th Legislature   for the reason that the Abilene Independent
    School District   is ineligible      to receive State aid, by reason
    of the fact that it has more than 500 scholastics.             Section 1
    of Article   1 of that Act provides that only those districts
    which had not fewer than 20 nor more than 500 original            enumer-
    ated scholastics   were eligible       for aid, with three certain ex-
               none of which are applicable          to the Abilene independ-
    EIP%~“,“~L District.     :-Je are sure that the Abilene Independent
.~,~School District   has a scholastic        population of more than 500.
              In Slocomb v. Cameron Independent School District,
   1.16 Tex.   288, 288 S.::!. 1064, certain scholastics   were duly trans-
   ferred from other school districts      of the county to the Cameron
   Independent School District.      The Board of School Trustees of
   the Cameron Independent School District      entered an order requir-
   ing these pupils to pay tuition     at the rate of ti50.00 per year
   for high school students and $32.00 for students in grades be-
   low the high school,    less transfer   money received.     The father
   of these pupils refused to pay the tuition       and instituted    an ac-
   tion to restrain    the school board from attempting to collect
   the amounts alleged to be due.       The Court held that the Independ-
   ent School District    could charge tuition    to non-resident    schol-
   astics under Article    2760 of the Revised Civil Statutes of 1911,
    (which Article  is almost identical    with Article 2696, Vernon’s
    Annotated Civil Statutes)    and in the course of its opinion said:
‘ion.   3.   ‘+I.i,;liler,   page 3


              “It is our view that the Legislature,      in
        enacting this article;     did not intend to require any
        independent district    in this state to educate a schol-
        astic free of charge any longer than the ,funds trans-
        ferred with such scholastic     would pay such pupills
        proportionate    part of the expense of operating the
        schools of such district.      In other words, as long
        as the state apportionment will operate the schools
        of the independent district,     the transfer   pupil, whose
        state apportionment is also transferred,      is not required
        to pay tuition.     But, when the schools of the independ-
        ent district    must continue their term with money
        raised by local taxes levied upon the property within
        such district,    then the transfer pupil, a non-resident
        of such district,    must pay n reasonable tuition.”
           For cases in accord see Huck v. Public Free Schools
of the City of ,Austin, 290 S. \:i. 1118; Muse v. McKinney Inde-
pendent School District,  35 S. %. (2d) 780.    These cases were
under Article 2696 of Revised Civil Statutes of 1925.      See
also the case of Love v. City of Dallas, 40 S.W. (2d) 20, de-
cided by the Supreme Court of this State on May 16, 1931,
wherein the Court pointed out:

               “For more than fifty      years statutes have been
        in effect    permitting transfers     from one school dis-
        trict    to another, and some consideration       must be given
        to the construction      of the Constitution    which the en-
        actment of these statutes implies.          Since the Constitu-
        tion does not permit the taxation of the people of a
        school district     for the support of that district,        ex-
        cept upon a vote of the people of the district,           it is
        not debatable that the Legislature         cannot compel one
        district    to use its funds and properties       for the edu-
        cation of scholastics      from another district,     without
        just compensation.       However, in view of the long oper-
        ation of the transfer      statutes,   we believe that where
        a school district      has facilities    and teachers in ex-
        cess of those necessary for its own scholastics,            the
        state has the power to require it to accept transfers
        from another district,       but only upon the payment of
        reasonable compensation therefor.         ***‘I
            It, therefore,   is apparent that under the authority
of Slocomb v. Cameron Independent jchool District,       and Love v.
City of Dallas, supra, a receiving      independent school district
has the right to collect     a reasonable tuition  from non-resident
scholastics    sufficient  to compensate the receiving  district    for
Hon. S. M. :~liler,     page 4


the education of trmsferred  scholastics,          when the trans-
ferred funds received are not sufficient.
               The pupils or their   parents   or guardians   are
liable   for    this tuition.
                                       Yours very truly


                                       By /s/ C. F. Gibson
                                       c* :‘* Gibson, Assistant

APPROVES:ivIAY12, 1945
/s/ Carlos C. Ashley
FIRST ASSISTANTAT'L'ORNEY
                        GENWAL
APPROVED:CPINIi)N CijivIMITTEE
BY:     CL@, CHAIRMAN
CFG:EP:wb
