Untitled Texas Attorney General Opinion ( 1961 )

. . .
THE ATBTORNE:P GENE-
OF TirEas
HonorableA. W. Walker OpinionNo. w-1056
County Attorney
Dickens County Re: Constructionof the compulsory
Spur, Texas school attendancelaws in re-
ferenceto childrenattaining
their sixteenthbirthdayafter
Dear Mr. Walker: a school term begins.
You have requestedan opinionof this Departmentrelatingto the
compulsoryattendancein schoolof a child who has reachedhis sixteenth
year after the schoolterm has begun, as contemplatedby Article 297,
V.P.C. and Article 2892 V.C.S.
In your letter requestingan opinion,dated March 16, 1961, you
have stated the specificquestionwhich reads as follows:
"Do the compulsoryschool attendancelaws of this state
apply to a child and his parentsafter such child has reach-
ed his sixteenthbirthdayand when such child has not com-
pleted the work of the ninth grade and when such child's six-
teenth birthdaycame after the opening of the schoolterm in
the School Districtwhere he residesand before the end of
such school term?"
Article 297, V.P.C., (and its counterpart Article 2892 V.C:S.) is
quoted as follows:
"Every child in the State who is seven (7) years and not
more than sixteen(16) years of age shall be requiredto-
attend the public schoolsin the districtof its residence,
or in some other districtto which it may be transferredas
providedby law, for a period of not less than one hundred
and twenty (120) days annually. The period of compulsory
school attendanceat each schocl shall begin at the opening
of the schoclterm unless otherwiseauthorizedby the district
school trusteesand notice given by the trusteesprior to the
beginningof such schoolterm; provided,that no child shall
be requiredto attend school for a longer period than the
maximum term of the public school in the districtwhere such
child resides. Acts 1915, p. 94; Acts 1923, p. 255; Acts 1935,
44th Leg., p. 409, ch. 160, § 1; Acts 1939, 46th Leg., p. 227,
so1. It (tiphasisadded)
Eon. A. W. Walker, Page 2 (~-1056)
The history of Article 297, V.P.C., is traced through Acts 1915, page
94, in which.boththe penal and civil provisionswere combined as one; Acts
1923, page 225, the penal code was separatedfrom the civil statuteand in
1925 under.theRevised Civil Statute5the Legislaturerecodifledthe com-
pulsory rchool laws and adoptedArticle 297 of the Penal Code and Article
2892 of the civil Statute. Subsequentamendmentsto Article 297, V;P.C.,
by Acts of 1935 and 1939 are of no consequencehere.
It Is the legal duty of parentsto requiretheir childrenof seven
(7) years of age and under sixteen(16) years of age to attend school.
Article 297, V!P.C., Article 299, V.P.C.
Apparentlywe are calledupon to interpretthe meaning of Article
297 V.P.C. and to this provisionwe must look to determinethe intention
of the Legislaturein its clear and unambigiousdefinitionof which children
shall come under the compulsoryattendanceprovision. The languageof the
statute is susceptibleof no interpretation exceptthat it shall apply to
a child seven (7) years and older and not more than sixteen (16) years of
age.
39 Tex. Jur. 27.5,Statutes,Sec. 146,providesas follows:
"It is a common law rule that penal statutesare strictly
conStNsd against the state or prosecutionand in favor of .
the accused. But this Nle has been modifiedor relaxed in
Texa.5by'the provisionof the Penal Code which directs that
every law upon the subjectof crime be construed'according
to the plain import of the languagein which it is written'.
Under this provision,a penal statutewill not be construed
so strictlyas to defeatthe legislativeintention,when that
intentionis plainly manifestor Is fairly deduciblefrom the
languageof the act. In construingsuch a statute,the Supreme
Court has said that 'theproper course is to search out and
to follow the true intentof the Legislature,and to adopt
that sense which harmonizesbest with the context,and pro-‘
motes,'in the fullestmanner,the apparentpolicy and objects
of the.Legislature.'
"Bevertheless,the rule of strict constructionstill obtains,
both in civil and criminalcases, in the sense that a statute
of a penal nature will not be extendedby constructionbeyond
the necessitiesof the case or the plain import of its t9rms.
Thus it is settledby numerousdecisionsthat a statute im-
posing a penalty must be strictlyCOnStNed, and that one
who seeks to recover a penaltymust bring himself clearlywith-
in the terms of the statute. The more severethe penalty, and
the more disastrousthe consequencesto the persons subjected
to the provisionsof the statute,the more rigid will be the
constNction."
Hon. A. W. Walker, Page 3 (``-1056)
Article 7 of the Penal Code provides:
"This code and every other law upon the subjectof crime
which may be enacted shall be construedaccordingto the
plain importof the language in which it is written,with-
out regard to the distinctionusually made betweenthe con-
structionof penal laws and laws upon other subjects;and
no person shallbe punished for an offensewhich is no=de
penal by the plain import of the words of a law." (Emphasis
added)
From an examinationof the cases directlyin point we find very few
in Texas that can be reliedupon as authority. The only case we have found
which directlydeals with this questionis that of Butler v. State, 194 S.W.
166, (Tei. Grim. 1917). The facts before that court related to the com-
pulsory attendanceof a child that had reachedthe age of fourteen (14)
years before the schoolterm started. (Fourteen(141 years was the maximum
age at the time of this decision). The court seemedto base its reversal
in its conclu5ionon the fact that the child was more then fourteen (14)
years of age the instantafter its fourteenthbirthdayand the court cites
many authoritiesto supportits position. However,in the conclusionthe
opinion of the court left the impressionthat its decisionmight have been
based, at least in part, on the fact that the child became fourteenbefore
the beginningof the schoolterm. The court used this language:
"In our opinion,under the facts of this case, appellant's
son having attainedthe age of 14 years before the compulsory
term began, the law compellingthe attendanceof children
under 14 years of age was not applicableto him..."
Another case followingis Cotterlyv. Muirhead,244 S.W.2d 920 (Civ.
App. Error Ref. n.r.e.1951)which Is not In point on the questionbefore
us but simply statesthat it is the legal duty of parentsto require their
children16 years of age or under to attend schoolas providedin Article
297 V.P.C.
Since we do not find decisionsIn our Texas Courts which might simpli-
fy our constructionof the meaning of the articlewe thereforemust turn to
decisionsof the courtsof other states. One case of particularinterest
and in point is the case of Gingerichv. State, 93 N.E.2d 180 (1950). The
IndianaSupremeCourt cited the rule which is similarlyestablishedin Texas,
that "penal statutesare to be strictlyconstrued,and may not be extended
by intent..." .
In the syllabusof the Gingerichcase, supra, it is said:
"Under compulsoryschool attendancestatuteprovidingthat
> ._. .
Hon. A. W. Walker,Page 4 (``-1056)
as used in act word "child"shall mean and includeevery
child in state between ages of seven and fifteenyears
'inclusive', quotedword means years between seventhand
fifteenthyears, and includesseventhanniversaryof a
child*sbirth and fifteenthanniversaryof his birth and
does not includeperiod between child'sfifteenthand six-
teenth year. Bums' Ann. St. $5 28-505b,28-5o5f."
Furtherthe IndianaCourt stated as follows:
"This court has held that it is fundamentalthat penal
statutesare to be strictlyconstrued,and may not be ex-
tended by intent. Loftus v. State, 1944, 222 Ind. 139, 52
N.E.2d 488; Caudillv. State, 1946, 224 Ind. 531, 69 N.E.
2d 549. And, as said in Mannersv. State, 1936, 210 Ind.
648, 654,3 N.E.2d 300, 303: 'It is fundamentalthat penal
statutesare to be strictlyconstrued;that a statute in
derogationof a common right and highly penal in character
is only to be appliedto cases clearlywithin its pro-
vi5ions; that penaltiesmay not be createdby construction,
but must be avoidedby construction,unless they are brought
within the letterand the necessarymeaning of the act creat-
ing thenpenalty. This requiresthat where there is ambiguity
it must be resolvedagainstthe penalty,and only those cases
broughtwithin the statutethat are clearlywithin its mean-
ing and intention.'"
The decisionsare uniformthroughoutthe cases reviewed in holding
that "a child when born is in its first year and at the end of that year
is one year old, so when he arrivesat his fourteenthanniversaryand is
then in his fifteenthyear he is over 14'pars of age....Thestatute is
not amblgiousin designatingthe age limit between7 and 15 years." Ginge-.
rich v. State, swa.
The Court of CriminalAppeals of Texas in the Butler case, supra,
quoted from a ColoradoSupreme Court opinionin Glbsoxeople, 99 P.
333 (1909)* The act here reviewedwas one relatingto delinquentchildren
but the court held that the opinion~55 in point on the questionbefore it.
In this decisionthe court goes at lengthto distinguishbetween a child 16
years of age or over and 16 years of age and under and concludedin this
paragraphthe following:
"...Thealleged delinquentjuvenilebeing sixteenyears
and four months old at the time defendantis said to have
contributedto his delinquencywas 'sixteenyears and older,
not sixteenyears or under,' hence was not a juvenilede-
linquentperson within the meaningof the statute."
Hon. A. W. Walker, Page 5 (``-1056)
Cited in the Butler case was that of Rogers v. &Craw, 61 MO. App.
407, construinga statutegivingthe privilegeof attendancebetween six
and 20 years and holdingthat one over 20 years of age and under 21 was
excluded.
The.SupremeCourt of LouisianaIn State v. Lanassa,125 La. 687, 51
So. 688 (1910),in construinga statutein which childrenare definedas
persons "17 years of age and under" held:
"It is obviousthat a days differenceIn age may remove
an infantfrom one class Into another."(Emphasisadded)
In the Butler case, supra,the court stated "in the case of‘Arrendel1
v. State, 131 S.W. 1096 (Civ.App. 1910), reviewingthe juvenilestatute,
which providedexemptionsfrom certainkinds of punishmentto a person less
than 16 years of age, held that one who at the time of the trial has passed
the sixteenthbirthdaywas not entitledto the benefitof the statute...".
In Munger v. State, 122 S.W. 875 (Tex. Grim. 1909) it was held that
one who had passed his 16 birthdayat the time the offensewas committed
would not come within the terms of the statute,as the defendant,although
less than 17 years of age, was more than 16.
In the Gingerichcase, supra,the SupremeCourt of Indiana stated:
"In decidingthe questionhere presented,desirabilityas,
to legislationis not a questionor problem that this court
can decide. We cannot sustainor set aside a measurepurely
because it is desirableor undesirable. This problem is for
the Legislature. The 1949 Legislatureof our State presum-
ably intendedsome changeby the new act, since it changed .
the.compulsoryschoolage of childrenfrom the ages of seven
to sixteenyears to seven to fifteenyears, inclusive."
With the above to assist us in arrivingat the intentof the Legis-
lature, we have determinedthat a child who has passedhis sixteenthbirth-
day Is not subjectto the compulsoryschoolattendancelaw of the State ~of
Texas. particle297, V.P.C. Article 297 of itself leads to the conclusion
that compulsoryattendanceis not requiredof a child after his sixteenth
birthday. We do not think that the compulsoryattendancelaw after the term
has commencedhas anythingto do with a child who is more than sixteenyears
of age and we do not think that the provisionsof Article298, V.P.C. re-
lating to "exemptfrom attendance"can supersedeor removeor enlargeupon
the clear unambigiousprovisionof Article 297, V.P.C. Therefore,it is
our opinionthat as appliedto the instantcase, under the circumstances
outlinedby you, a child who has attainedhis sixteenthbirthdaydoes not
come within the compulsoryschool law.
Hon. A. W. Walker, Page 6 (W-1056)
SUMMARY
The compulsoryschool attendancelaw with refer-
ence to a child who is seven years and not more
than sixteenyears of age does not apply to a
child who has attainedhis sixteenthbirthday,
irrespectiveof whether he reachesthe age of
sixteen during a schoolterm or prior to the be-
ginning of the schoolterm.
Very truly yours,
WILL WILSON
Attorney General of Texas
~_” .-
Harris Toler
Assistant Attorney General
APPROVED:
OPINIONCOMMTITEB
W. V. Geppert,Chainaan
Elmer McVey '
Jack Goodman
REVII3lEBPORTiil3ATTORRRf
GENERAL
BY: Morgan Nesbitt