                  THF,,~TTORNEY                GENERAL
                               a3

  Gerald C. Mann
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                                                     ~4    asd       k.cJ.
        Hon. L. A. Woods                    Opinion No. O-2892
        St ate Superlnt endent of
        Public Instruction                  Re:   Correction of scholastic
        Austin, Texas                       census rolls by State Superin-
                                            tendent of Public Education.
        Dear Sir:
                    We are in receipt of your request for an opinion by
        this Department dated November 12, 1940, which reads in part
        as followst
                     “Please be referred to Section Five of the
              Constitution     of the State of Texas also &ticle
              2663, Article 2665, Article 2685, hrticle 2816,
              Article 2817, Article 2817A, Article 2819, and
              Article    2820.
                     “The school census of Texas is taken annually
              during the month of March as of the first     day of
              April by authorized agencies of the State termed
              enumerators.    The family blanks provided for the
              purpose of enumerating children in school census
              ,have just above the signature of the parents a
              form affidavit    stating that the facts contained in
              said enumeration are true and correct and the chil-
              dren were residents     in the district on the first of
              April.
                     “This enumerator delivers    his report to the
              County School Superintendent who compiles the report
              for the entire county.      First,  all those common
              school districts     are contained in one roll alphabeti-
              cally arranged.      All the rolls for each independent
              district    are typed and the names are sent to the
              State Superintendent for that particular        district
              through the County Superintendent’s       affidavit    and re-
              port.    The State Superintendent acting under the au-
              thority   of Article 2820 checks, through his Division
              of Census and Transfers,      these rolls  for duplications,
              underages, overages,     and fraudulent names.
                   “The method used in checking the overages is to
              compare the data of preceding years as furnished to the
              State by the County with the information  furnished by
              the same ,County for the current year=
Hon. L. A. Woods, page 2     (O-2892)

           “Each name of the scholastic  presented as
     seventeen for the year 1940-1941   for approval by
     the State Superintendent is checked against the
     scholastic  census rolls of 1929 which began the
     scholastic  age of all of said pupils enumerated
     as seventeen In 1940.
           “Quite frequently it is found that children
    were enumerated as seven and eight years of age
    in 1929 but only sixteen or seventeen years in
    1940 which is a mathematical impossibility    and a
    biological   pervert.
           “The affidavit     of the district    and the affl-
     davit of the county presented to the State for its
     approval in 1929 recited the fact that the children
     were eligible     scholastics   of specific   ages.  All
     facts were sworn to, and the State acting and tak-
     ing these affidavits       in good faith paid the per
     capita apportionment to the county and to the dis-
     trict for the amount of apportionment for that
     scholastic    year.    An exact case is presented for
     your consideration:
           “Rosaria Badilla living    In Edinburg School Dis-
     trict    and rendered by Carmen Badilla,  the Mother,
     was presented for payment in 1929 of the State Per
     Capita Apportionment as being eight years of age.
     Eleven years later,    1940,  Rosaria Bad1110 is pre-
     sented for payment from Edinburg by her Father, Jose
     Badillo,    as being seventeen years of age.
           “Another specific example is Teresa Moltos pre-
     sented in 1929 from Edinburg for per Capita payment
     of school funds by Luis G. Moltos, the district  and
     the county as being nine years of age.   In 1940 the
     same child, by the same parent, in the same town and
     county is presented as seventeen years of age.
           “The State has prior to 1929 paid per capita on
     some of these names, and surely paid it in 1929.
     Eleven years later the same names are being requested
     to be approved for payment.
            “It appears to the State in line with adminls-
     trative   policy that the children should grow one year
     for each year of scholastic    payments, in which case
     the first    child spoken of in this statement would have
     been nineteen years of age and out of the scholastic
     age, and the last child spoken of would have been
     twenty years of age and out of the scholastic    age.
.-




     Hon. La 8. Woods, page 3        (~-2892)


               In order that the facts and your departmental prac-
     tice might be fully presented, we requested additional  inform-
     ation which,you furnished in your letter  of November 29th, as
     follows:
                ,““In answer to your inquiry as to the policy of
          the Census Division      in the Department of Education
          relative    to,the  checking of scholastic  names offered
          in the census, please,be      advised that one part of
          the checking process is the comparison of ages sub-
          mitted in the roll for the current scholastic      ‘year
          against the entry ,of the children into the scholas-
          tic census rolls up through 1929 asseven       years of
          age making an eleven year spread for this current
          year.     The current names are checked against the
          names offered for the year 1929 and if the age was
          shown to be seven in 1929, both lines upon which the
          names appear are copied and sent to the county school
          superintendent     of the county being checked for his
          action with the request for action in the following
          language :
                “‘Where we have listed children’s   names under
          the heading ‘1929+1930 vs 1940-1941’ it indicates
          these children have been on the census rolls for a
          period of eleven years or longer6     Our opinion is
          that children enumerated in 1929-1930 should not have
          been enumerated again, in 1940-1941 regardless    of the
          parents’ claims concerning these children’s     ages. (
               “.‘Please strike from’this   report those names,
          which are duplicates  and overages    and return this
          list to us as soon as possible.’

                “When this listing       is returned to us with the
          county superintendent’s        action,  if the matter has
          been, fairly considered       in our judgment, we take the
          county superintendent’s        action as final.
                  “But, iP in o.ur opinion no action was taken and
          no consideration     given to the information    submitted
          to the county superintendent,      the, State Superintend-
          ent, acting through his Division       of Census, refuses
          those names which have the,appearance        in the make up
          of the lines of submitted information        of being iden-
          tities.
                 “That is, we require the district to be the same
          district,   the parents to be the same parents, and the
          children’s   names, must be the same.
Hon. L. A. Woods, page 4    (O-2892)


             “This list of refusals   is then seut to the
     county superintendent     and If he objects   to the
     refusal of any one of the particular       names, he is
     permitted to submit to the Division of Census jus-
     t if icat ion for a reinstatement . In the process of
     discovering     whether the names should be reinstated
     at the request of the unit or the county the names
     are checked for each one of the eleven years to
     see that the State has completely paid a series of
     payments covering the eligibility       of a scholastic
     between the ages of seven and eighteen.        The stat-
     ute covering the entry of scholastics       of the year
     1929 covers the entry of children at seven to
     eighteen.
           “If after the children have been checked and
     found to have been fully paid on the basis of State
     Apportionment considering     the date of entry into
     the census roll,    the State refuses to make a per
     capita distribution    on these children.”
           You request that we advise you whether your Department
may correct these matters and approve them based upon original
data submitted by the parent, the district    and the county or
should the State continue the payment on these scholastics    so
long as the parent, the district,   and county care to report their
ages as being less than eighteen.    Since your departmental prac-
tice of making corrections  as outlined above and refusing to ap-
prove further payments to the same unit or county after eleven
full annual payments have been made on a particular    child, you
also desire our opinion upon the legality   of your action.
           You further state that your present departmental pol-
icy and method of eliminating    this type of error was established
as a result of cooperation    and consultation   with a Senate Inves-
tigatlng  Committee in 1934, authorized to Investigate      irregulari-
ties of State Government. This- Committee conducted an ievesti-
gation into the scholastic    census and its report may be found
in Senate Journal, 44th Leg., Regular Session,       p. 430, et seq.
The report discusses   several cases where excess scholastics      were
found to have been included in the census rolls by one device or
another, and had been for many years.       As before mentioned, your
present method of handling the difficulty      presented in your re-
quest was worked out at that time.
            Article   7, Sect Ion 5 of the Texas Constitution, which
provides for the permanent and available      school funds, contains
the following    provisions:
           II. . . and the available school fund shall be
     applied annually to the support of the public free
Ron. L. A. Woods, page 5      (o-2892)


      schools.    And no law shall ever be enacted aopro-
     ipriating any,,part of the permanent or avail.ab1.e
      school fund to any other purpose whatever; . e a
      and the ‘availab1.e school fund he,rein provided shall
      be distributed    to the several counties   according
      to their scholastic    population  and applied in, such
      manne~ras ~maybe provided by law.”
           In order that such fund may be apportioned upon the
basis of scholastic     population the Legislature has defined the
scholastic   age,. (,Art. 2902 R&.Si,   1925, asamended; Love v.
city of Dallas, 40 S.W.@dj 201, and ,made provisions     for taking
the scholastic    census.
             ,titicle  2816, B.C.S.,   1925, provides that each year
between March 1st and April 1st a census trustee            “shall take a
census of all children that will be over seven and under 18
years of age on the first      day of .the fo,llowing September, and
who, are, residents    of the school, district    one said first   day of
April.     Article 2902, R.C.S.,     1925, as amended 1929, lowers the
scholastic     age from over sevento     over six.     He is required to
visit each. home and by actual .observation         enumerate the chil-
dren and it is his duty to require the parent, guardian or per-
son having control of the child to subscribe and swear to the
information     given ,011the census form, which includes the resi-
dence and date of birth of the child.          ,Article 294; Penal Code,
imposes a fine of,not less than five nor more than ten dollars
upon conviction, of any person having custody of the child who
refuses to give: t.he .necessary information        or make oath.
            By Article 2817,      R.C.S.,  1925, the census trustee is
required to prepare census rolls and ,a summary of his rolls
and “he shall make oath to all his rolls and summaries, and to
the faithful    and accurate discharge of his duties,        and deliver
said,rolls,   with the forms arranged in alphabetical         order, to
the ~county superintendent       I( onor before May first    next after
his appointment.     ,(Art.,~,,2817a, V.T.C.S. i 19251, ,.Article 25&a,
Vernon’s ,Penal Code, provides that. any census trustee         who
“shall wilfully    make any false ,rep.ort in his rolls or summaries
shall be guilty of false swearing .and shall be punished as pre-
scribed by law for that offense.?          It ‘is the duty of the county
superintendent    to report any violation        of duty to the grand
jury, of. the county at its ,aext session after discovering         such
breach of duty,.
           When the rolls and summaries are delivered       to the
county superintendent. he. is directed     to file the same and pre-
serve, them in his, office     fgr three years.   It is also his duty
to prepare consolidated      roll,s.  We quote from Article  2819,
R,.C.S., 1925,, further,,defining    his duties:
Hon. L. A. Woods, page 6           (O-2892)


               “In making these consolidated         rolls,    he ~shall
        scrutinize    carefully    the work of the’ census trus-
        tee    and shall have power to ;&nu@onwitnesses,              take
        aff I davits and correct any- errors he may find in
        any census trustee’s       rolls,    and he, shall carefully
        exclude all duplicates;           If he deems it ‘necessary
        he may reject     any roll,     and appoint another census
        trustee to take the census of the district,               in which
        case he shall not approve the warrant to pay the
        census trustee whose work has bean rejected.                When
        the county superintendent          has prepared his aonsoli-
        dated census rolls,       one for each race, he shallh
        make a duplicate      of each, and he shall make affida-
        vit to the correctness        of both originals       and dupli-
        catas.     The originals    he shall,    on or before July
        first,    forward to the State Superintendent,            and the
        duplicates     shall be filed with the county clerk and
        become permanent records of his office.               The county
        superintendent      shall forward with his consolidated
        rolls an abstract on the prescribed           form, under
        oath, showing the number of children of each race,
        of the different      years of school age, and the total
        number of children of each race, and the total of
        both races in his county.           In making his aonsoli-
        dated rolls and in investigating          the work of any
        census trustee,      the county superintendent         shall re-
        fer to the forms and rolls of previous years, when
        necessary,     and they shall be carefully          preserved
        for this purpose.”
             Article 2820, R.C.S., 1925, defines the duties                  of the
State    Superintendent of Public Instruction  as follows:
               “The St ate Superint endrnt shall have authority
        to investigate    the census of any county,  to correct
        errors,   and la extreme cases when he believes   gross
        errors have occurred or that fraud has been prac-
        ticed,   he may, with the approval OS the State Board,
        reject   any county roll and require the census OS the
        county to be retaken.”
          Articles  2656, 2657, 2663,   and 2665, R.C.S., 1925, as
amended, also pertain to the duties OS the State Superintendent
and the apportionmemt of’ the available   school fund.
          The State Superintendent is authorized by &tlcle
2820, quoted above, to investigate the census reports and to
correct errors, and in so doing we think he may properly refer
to and make comparison with the census rolls OS prior years
which are a part of the records oS his office.   Referring to the
Hon. L. A. Woods, page 7       (O-2892)


examples cited by you, it is apparent that children who were
eight or nine     years old on t&e first     day of September, 1929
would be in excsss of eighteen years of age on September Is 4 ,
1940, and there is prima facie an error or illegal             entry on
the census, roll which requires correction.           At times the County
superintendent     concurs in the exceptions      taken by your depart-
ment but you are concerned .wlth the instances           in which the
county officials      challenge the ruling of the State Department
and present additional       affidavits  and evidence in support of
the eligibility     of the child, notwithstanding        the sworn records
on file    in your office    show such child to be in excess of the
scholastic    age and that the particular      district     and county has
received eleven full annual per c,apita apportionments on such
child.     In such cases the various affidavits         and representations
presented to you after such controversy         arises are not necossar-
ily controlling.       In considering   whether there ars errors in
the census of the nature mentioned above, it is necessary for
the State Superintendent to determine as a fact the age of the
child in question.       You may have a consecutive       line of affidav-
its on file in your office        as a part of your official      records
which are sought to be imprached by representations,             in many
instances by the same individuals        uho originally      swore the child
was ‘of a different     age in order to secure state money for prev-
ious years.      When such conflicts    arise it is our opinion that
the State Superintendent may consider all the facts and clrcum-
stances,    including prior reports and official         records on file
in your office,     and if upon due consideration        you find that the
child is over-age,      that is an error to be corrected,        and it be-
comes the duty of the State Superintendent to carect the roll
and refuse to certify       an apportionment upon such illegal        enumer-
ation.     The holdings of the courts on questions of a similar
nature indicate     that when the State Superintendent has made his
finding of fact,      such finding will be sustained if there Is sub-
stant ial evidence to support the same. Under certain circum-
stances set out in Article 2820 the entire roll might be re-
jected and the census retaken.
              It is our opinion that the procedure outlined in your
request is      one which may be followed by your department in in-
vestigating      and correcting errors in the scholastic census.
APPROVED DEC 20, 1940                      Yours very truly
Is/ Grover Sellers                         ATTORWEY  GENERALOF TEXBS
FIRST QSSISTANT ATTORNEY
                       GENERAL             By /s/ Cecil C. Canrnack
APPROVED;OPINIOR COMMITTEW                 Cecil C. Cammack, Assistant
BY:       BWB, CRBIRMAN
CCC:N:wb
