Untitled Texas Attorney General Opinion ( 1960 )

THEA~TORNEYGENERAI.
OF -XAS
Aus- II.TEXAS
September 6, 1960
Dr. J. W. Edgar Opinion No. WW-931
Commissioner of Education
Austin, Texas Re: Application of Article
2900a to the Houston
Independent School
District under the
Dear Dr. Edgar: stated facts.
You have asked for the' opinion of this office on the
following recitation:
"On or about the 26th day of December, 1956,
several plaintiffs filed an original complaint in
the United States District Court for the Southern
District of Texas against the Houston Independent
School District on the authority of Brown v. Board
of Education, to speed the process of desegregation
of the Houston Independent School District. The
Defendant District duly answered the complaint and
the case was called to trial on Ray 20, 1957, after
which the Court entered its order on the 15th day
of October, 1957, that the Houston Independent School
'District commence desegregation on a non-discrlmina-
tory basis from and after such time as necessary
arrangements could be made.
"Article 2900a, Texas Civil Statutes, was
passed by the Texas Legislature. This Statute be-
came effective August 23, 1957, after which the
Houston Independent School District has made
efforts to comply therewith. In order to comply
with Article 2900a, the Houston Independent School
District caused petitions to be executed by some
87;OOO qualified electors residing in the district,
ivhich was far in excess of the 20$ required by the
Statute. Thereafter an election was held in which
the majority of the qualified electors voted not
to abolish the dual public school system. In short,
Dr. J. W. Edgar, page 2 (WW-931)
the Houston Independent School District has done
everything possible to comply with both State and
Federal law.
“Thereafter, on the 12th day of August, 1960,
the Federal District Court issued Its order requir-
ing desegregation in the Houston Independent School
District commencing in the first grade. A copy of
said order is attached.
“Obviously, the Houston Independent School
District is confronted with the dilemma of losing
its accreditation and its Foundation Program Funds
and complying with the mandate of the Federal Dls-
trict Court. It should be observed that the dual
public school system as such has not been abolished
In that there will remain segregated systems except
for the first grade in this present scholastic year.
Moreover, the Board of Trustees has not abolished
the dual public sohool system nor has the Board of
Trustees abolished allowance for transfer out of
the district. In short, the Federal District Court
rather than the Board of Trustees has brought about
the noncompliance of the Houston Independent School
District with Article 2900a.”
You state that: “The dual public school system as
such has not been abolished . . .’ It is unnecessary to pass
upon that question in the present opinion.
The answer to your question hinges upon the construc-
tion to be accorded Section 1 of Article 2900a, which provides
as follows:
“That no board of trustees nor any other
school authority shall have the right to abolish
the dual public school system . . . unless by a
prior vote of the qualified electors residing in
such district the dual school system is abolished.”
Prior to the enactment of Article 2900a, the Supreme
Court of the United States had held that racial discrimination
in public education was violative of the Constitution of the
United States. Brown v. Board of Education, 347U.S. 483,349
U.S. 294. However, as the Supreme Court of Texas pointed out
in McKinney v. Blankenship, 282 S.W.2d 691, the Court In the
Brown case did not direct Immediate and complete integration
in all schools. The Court recognized, and has since recognized,
Dr. J. W. Edgar, page 3 (W-931)
by a long line of decisions, that time would be required, the
length of which would be largely dependent upon local condi-
tions, for the full accomplishment of Its decree.
We believe that a careful reading of Article 2900a
evidences recognition by the Legislature of Texas that hasty
and precipitate action by the school districts of the State
in making the transition from racially segregated to inte-
grated schools could conceivably Impede the effectiveness of
our schools. The language of the Act furnishes ample justi-
fication for the conclusion that it was designed to legally
achieve the maximum time for making the transition.
It is significant that Section 1, above quoted,
provides that "no school board or other school authority"
shall have the right to abolish the dual system of oublic
schools. The pains and penalties of the Act are evidently
ap licable only if the dual s stem is abolished by either:
(17 the school board, or (27 other school authority. The
Act provides no penalty where the dual system is abolished
by judicial decree. This leads us to the question: By what
authority has the dual system of public schools been abolished
in the Houston Independent School District? The school board
has entered no order calling for abolition of the dual system.
In fact, the board felt impelled, for reasons it deemed suf-
ficient, to offer legal resistance to the entry of the order
which was in fact entered and Is now in the process of per-
fecting an appeal from that order. In this connection, It
Is significant that Article 2900a provides no penalty where
the dual system of public schools Is abolished by judicial
decree. Such Is the case here, and hence we must conclude
that the dual system of public schools for the Houston Inde-
pendent School District has not been abolished by the "board
of trustees or other school authority," as prescribed by Ar-
ticle 2900a.
'Ihis Article provides in substance that any person
who violates the Act will be guilty of a misdemeanor and shall
be fined not less than $100 nor more than $1000. Should we
construe the Act as prohibiting abolishment of the dual school
system by judicial decree, such as we have here, it would be
tantamount to placing the local school board in a legal dl-
lemma, with their prosecution assured by either State or
Federal authority, and from which there could be no extraca-
tion. If they sought to impede or obstruct the execution of
the Federal Court decree the members of the school board
would thereby render themselves subject to contempt by the
Federal courts. On the other hand, If they did not prevent
execution of the decree they would subject themselves to a
Dr. J. W. Edgar, page 4 (WW-931)
possible fine of not to exceed $1000 under the State law. It
has been said that a court will never adopt a construction
that . . . will lead to absurd conclusions or consequences
if the language of the enactment is susceptible of any other
meaning. 39 Tex.Jur., Statutes, Section 118,Staples v. State,
112 Tex. 61,245 S.W. 639; Fenet v. McCuistion, 105 Tex. 299
147 S.W. 867; Shipley v. Floydada Independent School District
(Comm.App.), 250 S.W. 159.
We believe that the construction which we have ac-
corded to the statute is not only in keeping with the actual
language employed but is calculated to achieve the evident
purpose of the enactment as well. This conclusion la in ac-
cordance with the argument advanced by the Houston School
Board.
SUMMARY
Under the facts as stated, the Board of
Trustees of the Houston Independent School Dis-
trict, or other school authority, has not
abolished the dual system of public schools
within the meaning of Artlale 2900a, Vernon's
Civil Statutes, and hence neither the school
district nor its trustees are subject to the
penalties of said Article.
Yours very truly,
WILL WILSON
Attorney General of Texas
By Leonard Passmore
LP:dhs First Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Gordon Cass
Houghton Brownlee, Jr.
John Reeves
REVIEWEDFOR THE ATTORNEYGENERAL
BY: Henry Braswell