Untitled Texas Attorney General Opinion

AusTaN na.TEXAS

March 9, 1951

Hon. J. W. Edgar Opinion No. V- 1154 Commissioner of Education Texas Education Agency Re: Authority of the State Boa,rd Austin, Texas of Education to transfer the territory of a militaryreser- vation to a contiguous school district,

Dear Sir:

You request the opinion of this office concerning Senate Bill 274. Acts 44th Leg., 1935, ch. 112. p* 299 (Article 2756(b). V.C.S.,) and ask the following questions:

1. “Is the State Board of Education empowered by terms of the Act to include the territory of a military reservation in a’contiguous school district?*

2. “If the first question is answered in the affirma- tive, is the territory included within the contiguous school district to be considered a part of that district in the de- termination of the local funds to be charged to the dis- trict under Section 5, of Article 2922-16, Vernon’s Civil Statutes 7 ”

Section 1 of Senate Bill 274 provides:

“That the State Board of Education is hereby auth- orized and empowered to establish independent school districts upon any military reservations located within the State of Texas, upon such terms and conditions as may be agreed upon by the State Board of Education and the military authorities; and such districts may be en- titled to enumerate its scholastics. to share in the State per capita apportionment, and such other privileges as are now granted to independent and common school dis- tricts.

“Provided, that the children who are entitled to attend the schools thus established, shall be those of the officers, warrant officers, soldiers and civilian employees residing or employed upon such reserva- tions.

Hon. J. W. Edgar, page 2 (V-1154)

“And provided, that wherever in the opinion of the State Board of Education, the number of children resi- dent upon any military reservation is not sufficient to warrant the establishment of a separate school district, that such military reservation shall for the purpose of this Act be included in any other school district under such regulations as the Board of Education may deter- mine. Provided further, that the Board of Trustees of such district shall have the authority to transfer to any other independent or common school district maintain- ing adequate facilities and standards for elementary, junior or senior high schools, as set up by the State De- partment of Education and Southern Association, any school children who can not be provided for by the dis- trict of their residence.”

Section 2 of that Act sets out many details with regard to the procedure to be followed in the establishment of a school dis- trict on any military reservation. Section 3 is the repealing pro- vision and Section 4 the emergency clause which provides in part:

“The fact that the children within the scholastic age who reside on military reservations located within this State, are not accorded the same privileges of and oppor- tunities for public free school education as is accorded other children living within the State. a O .*

It will thus be seen that the primary purpose of Senate Bill 274 is the education of children residing on military reserva- tions, this primary purpose to be accomplished by one of several methods set out in the Act. That this is the primary purpose is indicated further by the caption of the bill. which provides in part:

“An Act authorizing the State Board of Education to establish Independent School Districts upon any military reservations located within the State of Texas, upon such terms and conditions which may be agreed upon by the State Board of Education, and the military authorities; provided such districts may be entitled to enumerate its scholastics, to share in the State per capita apportionment; providing what children may at- tend such schools; further provided that the children of such military reservations may be included in other school districts; providing that such children may be transferred to other schools. , D 0 eO1

With regard to your first question, it should be noted that in one part of Section 1 it is provided that a “military reservati~on shall for the purpose of this Act be included in any other school

Hon. J. W. Edgar, page 3 (V-1154)

district” by the State Board of Education. Thus, should they de- termine that “the number of children resident upon any military reservation is not sufficient to warrant the establishment of a separate school district,00 the State Board of Education has the power to include the military reservation in another school dis- trict. However, this inclusion, it is provided, is only “for the purpose of this Act.’

It has been pointed out that the purpose of Senate Bill 274 is to provide educational opportunities for children on mil- itary reservations equal to those provided for other children in the State. It would therefore follow that the State Board of Edu- cation may include a military reservation in another school dis- trict for the purpose of allowing the scholastics resident upon the reservation to attend school and be enumerated in the scholas- tic census in the school district in which they are included.

In this regard, it was held in Att’y Gen. Op. O-4829 (1942) that the territory included in a government,reservation is still a part of the school district in which it was located prior to its becoming a part of a government reservation. This opinion holds also that the children who reside upon this reservation are entitled to attend school in the district of their residence. Thus, should the State Board of Education decide to take action under the ‘inclusion’ provisions of Senate Bill 274, the only effect of that action would be to allow the children to attend school in an- other district and be included in that district for per capita pay- ments. For all purposes, the territory w.ould remain in the school district in which it was originally located.

Our attention has been called by the attorneys for the El Paso Independent School District to Att’y Gen. Op. O-2027 (1940) and especially that phrase wherein it is stated “the ter- ritory of the military reservation was included in the San An- tonio Independe,nt School District.“ It is argued that this state- ment constitutes an opinion of the Attorney General that Senate Bill 274 authorizes the transfer of territory as well as scholas- tics. A reading of the entire~ opinion, bearing in mind the exact question presented, is all that is necessary to refute this con- tention. The question presented in your request was not before the Attorney General in Opinion o-2027, and neither did he un- dertake to consider whether the transfer of territory, if author- ized, was for the purpose of Senate Bill 274 only. The constitu- tional question was certainly not raised or considered in that opinion.

It should be noted that at the time of the passage of Senate Bill 274 the transfer of territory did not result in any monetary gain to the recipient of the territory transferred.

Hon. J. W. Edgar, page 4 (V-l 154)

State contributions to school districts prior to the Gilmer-Akin Act were entirely upon a per capita basis and were thus depen- dent upon the number of scholastics transferred. Articles 2695- 2699a, V.C.S. Based upon this, it follows that prior to Senate Bill 274 the students residing upon a military reservation were enumerated for scholastic purposes in their home district (i.e., the district within which that portion of the military reservation was included) even though they might attend school in another district. In the event a child resident upon a military reserva- tion attended school in a school district other than the one in which he resided, in order to transfer the per capita funds to the teaching district the parents of each child would have to apply for a transfer. The effect of Senate Bill 274, and we think one of its purposes, was to permit the district which was teaching the child to enumerate him and thereby receive the per capita funds directly instead of indirectly by way of a transfer in each case.

A construction of Senate Bill 274 which would allow the State Board of Education to transfer territory of a military res- ervation from the school district within which it is located to an- other school district would raise a serious constitutional ques- tion. Section 35 of Article III of the Texas Constitution provides that “if any subject shall be embraced in an act. which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.” The caption to Senate Bill 274 provides only “that the children of such military reservations may be included in other school districts.” Under the views above expressed, the effect of the action of the State Board of Education is only to include the children in another school district; hence the body of the act and the caption are in accord. Should the body of the Act be construed as allowing the inclusion of territory for all purposes, this subject is not ex- pressed in the caption and its omission would render this part of the act unconstitutional. Gulf Ins. Go. v. James, 143 Tex. 424, 185 S.W.2d 966 (1945); Pyote‘Ind. School Dist. v. Dyer, 24 S.W.2d 37 (Con-m. App. 1930).

It has been held that a court will always endeavor to in- terpret a statute so that it will be constitutional and will decline to adopt a construction which will result in unconstitutionality, if by any reasonable construction the enactment can be sustained. Greene v. Robison. 117 Tex. 516, 8 S.W.2d 655 (1928); 39 Tex. Jur. 206, Statutes, Sec. 111. The construction we have applied to Senate Bi~ll 274 would be in compliance with this well settled rule of stat- utory construction, since the caption and the body of the act would be in complete harmony -- applying only to the transfer of scholas- tics rather than territory.

245 Hon. J. W. Edgar, page 5 (.Vr !1,54) ,.,. ;~,

We ,are informed tpat,,the,:district ~mvolved in your pres- ent request is the El Paso Independent School ,District and, that,~ , the military reservation involved~is the FortBliss Military ,Res- ervatiou. This, is not the first time that this.office has,been con- fronted with the very s,itu&onabout which you ask,. By virtue of Article VI, Section 4, of Senate Bill 116, Acts 51s.t Leg., ,R.S. 1949, ch. 334, p0 625, ‘the State ,Comptroller~ of Public Accounts was’to supply then information necessary to determine the local ,. fund charge under Section 5 of Article ,2922-16, V.C.S., for the 1949-50 ‘school year. ‘.Part of the information that officer was to supply was the area in each school.dis,trict comprised of non- taxable Federal-owned military reservations. The,,Comptroller. s.ubmitted;information, on the El: Paso, Independe,nt School District which was to the effect that the Fort, Bliss Military;Beservation was not included ~with& ~the,El .Paqo District. The district filed a Motion for Leave to, Fi,le Petitioirfor Mandamus in the Supreme Court.of Texas to,compel the Comptroller to submit information including Fort Bliss ‘wi‘thin’the ~&strict. basing this upon the or- ders of the State Board of Education issued under Senate Bill 274 which attempted to add the, territor,y as well asp the scholastics to the El Paso district. .This office, representing,the Comptroller, fiied a reply in opp&iti9n to this motionin which the points pre- sented in this opinion <were: raised. .The Supreme- Court, ,on Oc- tober 5. 1949, entered its order overruling .the motion for leave to file.

What has been stated in answer to your first,question precludes any’ lengthy ‘discussion of your second question. In de- termining the amount of.local funds to be charge,d to each school, district to support the, ,Fomida,tion School Progr,am, Section 5 of, Article. 2922-16, V.C.S.,, pr,qvides a, formula to be used by the State Commissioner ,of ,Education. To arrive at the final amount of this charge, Section,5;, above., makes the following proviso: :. .- ,,~ ,~ ‘Provided however, that in any district containing’ ” . . . Federal-owned military reservations . . . the amount assigned to such school district shall be reduced in the proportion that the area included in the above named classifications bears to the total area of the district. m _.... It necessarily follows ~from the conclusion that the action of the State Board of Education inincluding a ~military reserva- tion in a contiguous school dis,t&t is for school attendance and census enumeration Only, that. the, territ&y,. oft the military reser- vation is not to be considered as being in the contiguous ,district for any ather purpose. This would include the “federal-owned mil- itary reservation” proviso of the local fund charge provision of the Gilmer-Akin Act. (Sec. 5 of Article 2292-16, V.C.S.)

246 Hon. J. W. Edgar, page 6 (V-1154)

While the former State Board of Education interpreted the Act as authorizing the transfer of territory as well’as scho- lastics, the action of the State Board of Education, as presently constituted, supports the conclus~ion reached in this opinion. A question similar to that here presented arose with regard to the San Antonio Independent School District and’the Fort Sam Hous- ton and Kelly Air Force Base Military Reservations. There, as here, the Board of Education which operated prior to the Gilmer- Akin Act had, under Senate Bill 274. transferred the military res- ervations to the San Antonio District, and the question arose as to the effect of the transfer on the local-fund charge provisions ,of the present education laws. This question was brought to the attention of the Board by the attorney for the San Antonio District at the Board’s meeting in Austin on May 8, 1950. In that case, the district claimed that it should receive credit under Section 5 of Article 2292-16, V.C.S., for the amount of area of the mil- itary reservations. At that meeting, it was brought out that the Commissioner of Education had decided that Senate Bill 274 did not have the effect of changing the area of the San Antonio’Dis- trict and that the area of the military reservation was not attach- ed to the San Antomintrict. The State Board of Education voted to “sustain the decision of the Commissioner of Education in the local fund assignment under the Foundation Program Act to the San Antonio Independent School District.-

Thus it is seen that in the only similar circumstances the State Board of Education has interpreted Senate Bill 274 in the same manner as that bill is interpreted in this opinion. This administrative interpretation, which is in accord with the decision reached herein, is entitled to weight in reaching a final decision as to the meaning of Senate Bill 274. Moorman v. Terrell, 109 Tex. 173. 202 S.W. 727 (1918); San Antonio UmonJunioi ist. v. Daniel, 146 Tex. 241. 206S.W.Zd 9%7I947) .

SUMMARY

Senate Bill 274, Acts 44th Leg., 1935, ch. 112, p. 299, authorizes the State Board of Education to include territory of a military reservation in any other school district only for the purpose of allowing scholastics to attend school and be enumerated in the scholastic census

Hon. J. W. Edgar, page 7 (V-l 154)

in the school district in which the area is included. Any inclusion under that bill has no effect upon the amount of local funds to be charged under Article 2922-16, V.C.S.

Very truly yours,

APPROVED: PRICE DANDZL Attorney General C-K. Richards Trial and Appellate Division

Jesse P. L&on. Jr. Reviewing Assistant Assistant

Charles D. Mathews First Assistant

Price Daniel Attorney General

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