Untitled Texas Attorney General Opinion ( 1939 )

May 25, 1939
Honorable W. C. McDonald
County Attorney
Coke County
Robert.Lee, Texas
Dear Sir: Opinion No. O-586
Re: Enumeration of soholastlos In
the distrlot of their residence.
We are inreoelpt of ,your letter of April 4,
1939, ln which you,request the opinion of this department
upon the following question:
"Whatschool district Is legally.entltled to
enumerate Florlne Presslar, a girl age 16 years?"
You submit the following facts:
The parents of this girl reside in Sanco Common School
Dlstrlct and'olalmthls to be the'irhome.
"'Herfather, Green Presslar, rented an
apartment In the town of Robert Lee in the Robert
Lee Independent Sohool District ln September, 1938,
and his daughter, Florlne Presslar, has been re-
siding ln Robert Lee, Texas, attending the Robert
Lee Independent Sahool'during the 1938-1939 term;
she and her father both claiming Robert Lee Is her
home and where this child now resides except on
some wee,k-endsshe vLsits her father and mother In
said Sano,oCommon School District and spends her
summer vacations ln said Sanco Common School District.
Her father has refused to enumerate this child In the
Sanco Common School Dlstrlct, and did, on the 29th
day of March, 1939, enumerate her ln the Robert Lee
Independent School Dist,rlct,which he olalms to be
her home, and as she fs physically pesent and re-
siding In said Robert Lee Independent School Dlstrlot,
he refuses to enumerate her elsewhere; except in said
Robert Lee School Distrlot, claiming that under the
law he has the right to enumerate hls child ln the
school district In whiah she'ls physically present
and in which she resides; also claiming it to be her
intention to reside ln said Robert Lee Independent
School~District until she flnlshes school."
Honorable W. C. McDonald, May 25, 1939, Page 2;G-586
We assume that Green Presslar and his wife reside
In Sanco Common School Dlstrlot.
Article 2816, Revised Civil Statutes, provides
that the census trustee of each distrlot shall show on the
proper form "the name and number of the school district In
which the children reside", and It is provided In Article
2901, Revised Civil Statutes that "every child In this
State of scholastic age shall be permitted to attend the
public free schools of the district or independent district
ln *Ioh it resides at the time It applies for admission,
notwithstanding that it may have been enumerated elsewhere,
or may nave attended sohool elsewhere part of the year."
It Is also provided ln Article 2892, as follo&s:
"F&erg ohlld in the State who Is seven years,
and not more than sixteen years of age shall be re-
quired to attend the pub110 sohool In the dlstrlot.
of Its resldenoe, or in some other dlstriot to which
It may be transferred~as provided by law, for the
period of~not less than one hundred and twenty days.
99%"
Other statutes provlde for the transfer of a child
attending school in a dlstriot other than Its residence.
We think the statutes are sufficiently olear in
expressing an Intention that a ohild of scholastic age shall
be enumerated for the soholastla cenms In the district in
which It resides.
The Attorney General's Ruling as set out in
"The Handbook of Texas School Law", page 546, to which you
refer Is cited as making the following ruling In said
handbook:
YSoholastics should be enumerated only In the
dlstr$,ctwhere.they are physl~callJpresent and reside
on April lst, notwithstanding the domicile of their
natural guardian, and the state apportionment oan be
Kide only on suoh basis." (Letter Opinion Book NO.
381, p. 586, dated May 18, 1936.)
This opinion distinguishes between "residence"
and "domicile", but the language oontalned in this opinion,
when ;aken alone, is susJeptlble to the construction given
and probabl::makes a broader ruling than the ,faats presented
required. However, when the opinion as whole is read In the
light of the specifio faots therein presented the result of the
opinion, we think, .ls correct. In that case the writer had
under consideration the enumeration of children who lived with
their parents in one school district and there was an attempt
- -
Honorable W. C. McDonald, May 25, 1939, Page 3, O-506
to enumerate these children ln the dlstrlot in which the
father worked.
This department rendered an opinion on November
4, 1905, to the Honorable R. By.~ouslns, State Superintendent
of Public Instruction on a similar question which we think
substantially expresses the proper rule to be applied In the
Instant ease. It was there stated:
"If the children have merely an ostensible
and not a substantial residence in the district,
If they were sent to Rookdale for the sole purpose,
or even for the main purpose, of psrtiolpating in
the advantages of the public sohools of Eockdale,
they are not entitled to free tuition.
"But If they were sent toreside In Rookdale
in good faith In order to~glve them suitable homes,
with the intention on the part of the father, and
of the persons In whose care he plaaed them, that
the ahlldren should reside there permanently; If
the educational advantages of the residents in
Rockdale were merely incidental to their going there,
and other oonslderations induoed the father, In good
faith, -to select that plaae aa their home, I think
the children-are residents of Rookdale within the
meaning of the school law, and entitled to free tuition
there, notwithstanding that the domicile of the father
is elsewhere."
While we reoognlze that a minor child may acquire a
bona fide resldenoe separate and apart from Its parents
within the oontemplatlon of our aohool laws, we do not think
that such bona fide resldenoe Is established by the mere
physical presenoe of the minor in another distrlot or by
living temporarily In another district for the purpose of
attending school. School Dlstrlot No. 1, eta. vs. School
District (Sup. Ct. Mloh. 1926), 211 NiW. 60; Yale vs. West
Middle School District, 59 Conn. 489, 13 L.R.A. 161; Anno.
26 L.R.A. 581.
We understand that the opinion herein expressed is
in accord with a long established construction placed upon
our census laws by the State Department of Education.
It Is our opinion that if the facts develop that
Florine Presslar Is living In the Robert Lee Independent
Sohool Distriat for the sole or principal purpose of at-
tending the schools of that district, she Is a resident of
Sanco Common School District for the purpose of scholastic
enumeration, and should be enumerated~,inthe saholastic
census of that district. However,, if.she has in good faith
Honorable W. C. McDonald, May 25, 1939, Psge 4, O-586
established a substantial residence, and not' a mere
ostensible residence for the purpose of attending school,
she may properly be enumerated In the Robert Lee Independent
School District.
In your brief you raise some question as to
whether the County Superintendent has authority to change
an enumeration which has been,llstad in the wrong district.
In this connection we call your attention to Article 2919,
Revised Civil Statutes, 1925, which requires the County
Superintendent to make affidavit to the correctness of his
consolidated cerisusrolls and whichfurther povides:
"In making these consolidated rolls, he
shall.scrutinlze carefully the work of the census
trustees, and shall shave power to summon witnesses,
take affidavits and correct any errors he may find
inany census trustee's roll, ,end he shall carefully
exclude all duplicates."
Yours very truly
ATTOR1v GENERAL OF TEXAS
s/ Ceoll C. Cammack
JXY
Cecil C. Cammadk
Assistant
CCC:FG-og
APPROVED:
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED: Opinion Committee
By REK Chairman