Untitled Texas Attorney General Opinion ( 1975 )

TWEA'ITBRNEY GENERAL
OF TEXAS
AUWITN. T-s 78711
April 18, 1975
The Honorable hf. L. Brockette Opinion No. H- 586
Commissioner of Education
Texas Education Agency Re: Are alien children whose
201 East Eleventh St. parents are illegally residing
Austin, Texas 78701 in this country entitled to attend
public schools.
Dear Commissioner Brockette:
You have requested our opinion as to whether alien children whose
parents are illegally residing in this country are entitled to attend public
schools in the district of their residence. You state that the Board of
an Independent School District is seeking to exclude students determined
to be illegally in the country.
Section 21.031 of the Education Code provides:
(a) All children without regard to color over
the age of six years and under the age of 18 years
on the first day of September of any scholastic year
shall be entitled to the benefits of the Available
School Fund for that year.
(b) Every child in this state over the age of six
years and not over the age of 21 years on the first
day of September of the year in which admission is
sought shall be permitted to attend the public free.
schools of the district in which he resides or in which
his parent, gua’rdian, or the person having lawful
control of him resides at the time he applies for
admission notwithstanding the fact that he may have
been enumerated in the scholastic census of a different
district or may have attended school elsewhere for a
part of the year.
p. 2615
,
The Honorable hf. L. Brockette page 2 (H-586)
(c) The board of trustees of any public free school
district of this state shall admit into the public free
schools of the district free of tuition all persons over
six and not over 21 years of age at the beginning of the
scholastic year if such person or his parent, guardian
or person having lawful control resides within the
school district. (Emphasis added).
In applying this statute, the school boards of the State determine
whether a child and his parents are residents of their districts. Attorney
General Opinion H-63 (1973). The question has arisen whether this
residence must be lawful.
Attorney General Opinion No. 2318, Book 55, p, 338 (1921), held
that “[allien children have the same right to attend the public free schools
of the State as do the children of citizens of this State. ” The then
existing statutes, article 2899, 2900, Revised Civil Statutes of 1911,
contained language almost identical to that of section 21.031 of the Educa-
tion Code, including the terms “every child” and “all children. ” While
it is unclear from the opinion whether the child in question was a legal
or illegal alien, in our view the reasoning expressed is applicable in
either instance.
Quoting from Tape v. Hurley, 6,Pac. 129 (Cal. Sup. 1885),
Attorney General Opinion O-2318 (1940) notes:
Where a law is plain and unambiguous,
whether it be expressed in general or limited
terms, the Legislature should be intended to
mean what they have plainly expressed, and
consequently, no room is left for construction.
When the law is clear and explicit, and its pro-
visions are susceptible of but one interpretation,
its consequences, if evil, can only be avoided by
a change of the law itself, to be effected by legis-
lative and not judicial action. These rulea are
never controverted or doubted, although perhaps
p. 2616
The Honorable M. L. Brockette. page 3 (H-586)
sometimes lost sight of. In this case, if
effect be given to the intention of the. Legis-
lature, as inidcated by the clear and un-
ambiguous language used by them, respondent
has the same right to enter a public skhool
that any other child has. As the Legislature
has not denied to the children of any race or
nationality the right to enter our public schools,
the question whether it might have done so does
not arise in this case.
We therefore conclude that the Legislature of this
State intended that an opportunity for instruction in the
public schools of this State should be afforded the youth
of Texas, and the advantages of attending a public school
should be extended to all children regardless of their
nationality or color, whether citizen or alien, and having
declared such to be the rights and privileges of the children
of this State, such right is a vested one, and as such it
is protected and is entitled to be protected by all the
guarantees by which other legal rights are protected and
secured to the possessor.
The Legislature has made no effort toalter this holding through statutory
amendment. We believe the words “all” and “every” as contained in
section 21.031 of the Education Code do not permit exceptions to be created
by local school boards.
Whether the Legislature itself may establish an exception for illegal
aliens has not been decided by the higher courts. While we recognize that
the United States Supreme Court could sustain such an exercise of legislative
power, the existing case law indicates that the rights of illegal aliens are
protected by 42 U.S. C. A. section 1981 and the Fourteenth Amendment to the
~United States Constitution. Bolanos v. Kiley, 509 F. 2d 1023 (2nd Cir. 1975);
Williams v. Williams, 328 F. Supp. 1380 (D. V. I. 1971); Martinez v. Fox Valley
Bus Lines;. 17 F. Supp. 576 (N. D. Ill. 1936); Commercial Standard Fire and
Marine Co. v. Galindo, 484 S. W. 2d 635 (Tex. Civ.App. --El Paso 1972,
writ ref’d. , n. r. e. ).
p. 2617
The Honorable M. L. Brockette page 4 (H-586)
SUMMARY
Under section 21.031 of the Education Code,
alien children within the State are entitled to
attend public school in the district of their
residence, regardless of.whether they may be
“legally” or “ill~egally” within the United States.
Very truly yours,
Attorney General of Texas
APPROVED:
LY,kv
,
DAVID I$ KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2618
i