Untitled Texas Attorney General Opinion ( 1961 )

THEA~TORNEYGENERLAL
OF TEXAS
&A& 29-J v.c.s
April 12, 1961
Honorable Ted Schulz ' Opinion No. WW-1038
County Attorney
Fort Bend County Re: Whether a person who refuses on
Richmond, Texas February 1, 1961 to answer the
census trustee as to a child
under his control and who is
within~the prescribed age, is
subject to be prosecuted for
such failure under the pro-
viiions of Article 294'of
Dear Mr. Schulz: Vernon's Penal Code
You have requested the opinion of this office as to whether the re-
fusal of a person to enumerate his eligible children for school census
purposes on February 1, 1961, can form the basis of a criminal prosecution
for violation of Article 294, Vernon's Penal Code.
Article 294, Vernon's Penal Code, reads as fo$lows:
"Every person having control of any child which
will be over seven and under seventeen years of age
on the first of September next thereafter and who,
being requested by the census trustee to prepare the
form prescribed by law giving the information showing
the name, sex and date of birth of each child of which
he has control and which is within said ages, or to
give the information necessary to enable the trustee
to prepare the same, shall refuse to do so, or shall
refuse to make oath to such form when filled according
to his statement of facts in regard to said children,
or shall fail to return the form left at his home in
his absence to the census trustee as required by law,
shall be fined not less than five nor more than ten
dollars."
There is nothing in Article 294 which limits its operation to the
month of January, and if there be such a limitation it must occur else-
whereAn the statutes. That portion of our laws dealing with the taking
of the school-census is enumerated in Article 2816, Vernon's Civil Statutes,
which reads in relevant part as follows:
"The census trustee, between the first day of January
and the first day of February after his appointment,
Hon. Ted Schulz, Page 2, (WW-1038)
shall take a census of all children that will be over
six and under eighteen years of age on the first day
of the following September, and who are residents of
the school district on said first day of February,"
If Article 2816 were intended by the Legislature to operate as a limi-
tation on Article 294 of the Penal Code, then it would be necessary to
determine that the use of the word "between" was intended as exclusive
of the enumerated boundary dates.
In the view we take of the question presented by your request,
the determination of this matter will not be necessary.
The use of the word "shall" is usuallv mandatorv when used in
statutes, Brinkley v. St;ate, 320 S.W.2d 855 ITex. Grim. lp59), but our
Supreme Court has held in a long line of decisions that this word must
be considered in the light of the remainder of the statute and the intent
of the legislature. Chisolm v. Bew&ey Mills, 155 Tex. 400, 287 S.W.2d 943
(1956); Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625 (1948); Markosky v.
Newman, 134 Tex. 440, 136 S.W.2d 808 (1940); Federal Crude Oil Co. vi
Yount-Lee oil CO., 122 Tex. 21, 52 S.W.2d 56 (1932).
Approximately one quarter of the funds expended on primary and
secondary public education in this state comes out of the state treasury
and is distributed among the several school districts according to the re-
sults of the school census. Without the basic information derived from the
census, this distribution of funds would fall into chaos and confusion. For
this reason, the Legislature must have intended their words, 'The census
trustee, between the first day of January and the first day of February . . .
shall-take a census . o .IIto be directory only and not mandatory, because
the contrary interpretation could leave an unfinished census with no means
of completion. For the same reason we conclude that the sanctions imposed
by Article 294, Vernon's Penal Code, are as valid on the first day of
February as they would be on any day in January, and that a prosecution
based on the refusal of a person to answer the questionaire of the census
trustee on the first day of February, would be a proper one.
SUMMARY
A person who refuses on February 1, 1961.to answer
the census trustee as to a child under his control
and who is within the prescribed age, is subject to
be prosecuted for such failure under the provisions
of Article 294 of Vernon's Penal Code.
Hon. Ted Schulz, Page 3 (``-1038)
Very truly yours,
WILL WILSON
Attorney General of Texas
John E. Leonarz
Assistant Attorney General
JEL:br
APPROVED:
OPINION COMMITTEE
W. V. GEPPEXT, Chairnan
W. Ray Scruggs
Maston Courtney
Linward Shivers
REVIEWEDFORTHEATTORNFIG~L
BY: Morgan Nesbitt