Untitled Texas Attorney General Opinion ( 1959 )

THEA~TORNEY GENERAL
OFTEXAS
April 6, 1959
Dr. J. W. Edgar
Commissioner of Rducation
Texas Education Agency
Austin, Texas
Opinion No. WW-591
Re: Constitutionality of
Section 1, Subsection (&)a,
Article 922-13, Vernon's
Civil Sta
% utes, as amended,
relating to allotment of
exceptional children teach-
Dear Dr. Edgar: er units.
We have received your request relating to the constl-
tutionality of Section 1, Subsection (&)a of Artlcleq22-13,
Vernon's Civil Statutes, as amended, when considered In the
light of Subsection (A)b of the ssme Article. Subsection (4)a
Is as follows:
“a. It is the purpose of th~isallotment
of exceptional children teacher units to
provide competent educational services for
the exceptional children in Texas between
and fnaludinn the axes of,six, (b) and seven-
teen (17), f‘;)r
whom-the regular school facili-
ties are Inadequate or are not available.
'In interpreting and carrying out the.,pro-
viatons of this Act, the words 'exceptional
children,*wherever used, will be construed
to mean physically handicapped children and
mentally retard d hildren; the words 'physi-
tally handicappzd thildren' wherever ,used,
will be construed to Include any child of
educable mind whose body functions 'or members
are so imDaired that he cannot be saf~elyor
adequately educated In the regular classes of
the public schools,wlthout the ,provlsion of
special services; and the words 'mental1
retarded c~hildren'wherever used,-!ITid
w 1 con-
- any child whose mental condi-
tion is &ch that~he cannot be adequately edu-
. _
Dr. J. W. Edgar, page 2 (Ww-591)
cated In the regular classes of the public
schools, without the rtrovisionof sneclal
services. The term IspecIal services! may
be Interpreted to mean transportation;
special teaching in the public school
curriculum; corrective teaching, such as
lip reading, speech correction, sight
conservation.and corrective health habits;
and the provision of special seats, books
and teaching supplies, and equipment re-
quired for the Instruction of exceptional
children." (Rnphasls added.)
Subsection (4)b of such Article reads as follows:
"(4)b. In any school district where the
parents of the required number of any type
of exceptional children, or types which
may be taught together, petition the Board
of Education of that district for a sneclal
class, it shall be the duty of such Board
to request the State Commissioner of Educa-
tion to cooperatein the establishment of
such class or classes. The State Commls-
sioner of Education shall allot to such dls-
trict such;number of exceptional children
teacher units to operate special or convales-
cent classes for exceptional children within
said district pursuant to rules and regula-
tions adopted by the State Board of Education.
Provided that districts not eligible for a
full exceptional children teacher unit may
enter, by vote of their respective Boards
of Trustees, into one cooperative agreement
to provide exceptional children teacher units,
such units to be approved by the County School
Superintendent. The teacher for an'exceptional
children teacher unit shall be employed by
the Board of Trustees of the district in which
the class Is to be taught, and such unit shall
be adminlstered solely~and exclusively by the
Superintendent of ,suchdistrict. The State
Commissioner of Education, upon certification
of such agreement by the County School Superin-
tendent, shall ,allot to each district party to
such agreement a fractional part of an exceptional
children teacher unit, provided that the sum of
m. J. W. Edgar, page 3 NW-591)
suah units so allotted shall not be greater
than the number of units for which said
district would be eligible provided no co-
operative agreement existed." (hphasis added.)
Section 1 of Artiale VII of the Constitution of
Texas reads a8 follows:
"Section 1. A general diffusion
of knowledge being essential to the pre-
servation of the liberties and rights
of the people, it shall be the duty of
the Legislature of the State to establish
and make suitable provision for the sup-
port and maintenance of an efficient sys-
tem of public free schools."
The Constitution of Texas provides, In other sections,
for the general maintenance, financing ,and operation of pub-
lic free sahools and Institutions of higher learning.
The constitutional question raised by your request,
In our opinion, concerns Section (&)a when considered in
the light of Section (4)b, relating to whether the Leglsla-
ture is prohibited from imposing a duty upon the Board of
Education of a school district "to cooperate (with the Texas
Education Agency) in the establishment of such class or
classes" for the teaahlng of exceptional children, in Texas.
The Constitution requires a system of public free
schools to be maintained, and It Is clear that the Leglsla-
ture Is vested with broad discretion insofar as providing
the details of how suah is to be accomplished.
Mumme v. Marrs, 120 Tex. 383, 40~S.W.2d 31, is a
landmark case concerning the nature of legislative control
over education in this State:
91. * .
'The history of educational legislation
in this state shows that the provisions of artl-
ale 7, the eduaational article of the Constitu-
tion, have never been regarded as limitations by
implication on the general power of the Legislature
to pass laws upon the subject of education. This
Dr. J. W. Edgar, page 4 (am-591)
article dlsloses a well-considered purpose on
the part of those who framed it to bring about
thelestabllshment and maintenance 'of a compre-
hensive system of public education, consisting
of a general publio free school system and a sys-
tem of higher eduaatlon. . . .
11
. . .
I‘
. ‘. . the Constitution has been liberally
construed with reference to the creation of insti-
tutions of higher education, and the same liberal
rules should apply in determiningthe power of
the Legislature with reference to the public
school system. We cannot readily suppose that
those who framed the Constitution would have left
the Legislature with plenary power to areate and
maintain a system of higher eduoatlon, and at the
same time have intentionally so drawn the instru-
ment that the legislatfve hands would be tied when
changed oondit,ionrendered it desirable or neces-
sary to give aid to the public school system in
the manner outlined in the law before us.
II. . .
1, . in asoertaining the power which the
Legislature may constitutionally exeralse with
reference to the school svstem. we are not to
limit or restrlot that power, including the power
to assign revenue derived from sources other than
those spealfiaally named, to~the school fund, un-
less we find In the Constitution itself a specific
limitation or one whloh arises by necessary-lmpli-
cation from the language used. . . . (Emphasis by
the Court.)
"Under our Constitution, public education
is a division or department of the government,
the affairs of which sre administered by public
offlaers, and In the conduct of which the Legls-
lature has all legislative power not denied It
by the Constitution. . . .
"Under the Constitution, our public schools
are essentially state schools, and authority to
control their operation, except as otherwise pro-
vided, Is inaluded among the power conferred
upon the Legislature. Webb County v. School
Dr. J. W. Edgar, page 5 (M'W-5911
Trustees, 9.5Tex. 132, 135, 65 S.W. 878; Con-
stitution, art. 7. . . .
I,. . . Since the Legislature has the
mandatory duty to make suitable provision for
the support and ma1ntenanc.eof an efficient
system of publlc.free schools, and has the power
to pass any law relative thereto, not prohibited
by the Constitution, It necessarily follows that
it has a choice in the selection of methods by
which the object of the organic law may be ef-
fectuated. The Legislature alone is to judge
what means are necessary and appropriate for
a purpose whiah the Constitution makes legiti-
mate. The legislative ,determinatlon:of the
methods, restriotions, and regulations is
final, except when so arbitrary as to be viola-
tive of the constitutional rightsof the citizen.
. . .
11
. . l
"Theword 'suitable' used in connection
with the word 'provision' in this section of
the Constitution, is an elastic term, depending
upon the necessities of changing times or condl-
Mans, and elearly leaves to the Legislature the
rightto determine what is suitable, and its de-
termination will not be reviewed by the courts
if the aot has a real relation to the subject and
object of the Constitution. . . ."
In our opinion, the Constitution of Texas does not
prohibit the Legislature from providing that exceptional
children, as defined by Section (4)a,shall be taught or trained,
to the extent that they may be, by the free public schools of
this State. We are not concerned with whether such determlna-
tlon is in accordance with accepted educational policies. We
do not imply that it is not in accord. Our limited inquiry
here is only if it is prohibited.
It is true that the Legislature may not divert or
require the diversion of a public fund created for educational
purposes to other than educational purposes. (See Love v.
City of Dallas, 40 S.W.2d 20). 'Ihis,doesnot imply-the
Leglsture is prohibited from establishing provisions for
. .
Dr. J. W. Edgar, page 6 (WW-591)
courses for ahildren who oannot compete, for physical or
mental reasons, with the students In the regular normal
curriculum; nor Is It implied that the Legislature is pro-
hibited from making provision for suoh children in their
home community, even though an Eleemosynary Institution is
maintained by the State for children who may reside in an
area which does not have such services available, It is
within the provision of the Legislature to determine the
entrance requirements of Eleemosynar
Attorney General's Opinion WW-975 ~&``itUtI~oZ~ o~R?on,
the Legislature is not prohibited from providing for these
services by the looal school dlstriots. We call your at-
tention to an Attorney General's Opinion, dated June 4, 1917,
addressed to Honorable W. F. Doughty, concerning the Act,
whloh provided for the establishment and maintenance of free
kindergartens upon petitions of parents or guardians:
"In our opinion the language used in this
Act Is mandatory and that upon a filing of a
proper petition executed by the required number
of parents or guardlans the Trustees of every
district in the State, when so petitioned, may
be required to Institute the free kindergarten
so prescribed in the Act. We are also of the
opinion that this Act applies to all districts,
whether they be aommon school districts or in-
dependent districts created under any of the
various modes authorized by law for their
creation."
In our opinion Seation 1, Subsection (&)a, of Article
Z&l3 of Vernon's Civil Statutes, as amended, Is constitu-
when consiideredin the light of Subsection (4)b.
SUMMARY
Seation 1, Subsection (4)a of
``````s``~-~e~pde``~o8~::g````l
tlonal insofar as It requires a
looal sehool'distrlct, upon proper
petition, to provide the enumerated
. -. ,
Dr. J. W. Edgar, page 7 NW-591)
services for exceptional children,
as defined by Subsection (&)a.
Yours very truly,
WILL WILSON
Attorney General of Texas
BY
Tom I. McFarling
Assistant
TIM:mfh
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
W. Ray Scruggs
Robert T. Lewis
Wallace Finfrock
REUEWED FOR'THE ATTORNEY GENERAL
BY; W. V. GEPPERT