January 13, 1970
Honorable J. W. Edgar Opinion No. M-552
Commissioner of:Education
201 East 11th Street Re: Whether Article 2922-lla,
Austin, Texas Vernon.'s Civil Statutes,
makes it mandatory for
public schools to.estab-
,i lish a pre-school program
for eligible children,
and related questions.
Dear Dr. Edgar:
By.recent letter you have requested an opinion on the above
stated matter. We quote from your letter as follows:
/House Bill.240 (Chap. 872, Acts 61st Leg.,
B.S. 1969) amends the Foundation School Program~Act
in several respects. Section 4 of the Bill.incor-
porates or adds to such Foundation School Act for the
first time, to be financed in part by State funds, a
new program referred to in the caption as 'providing
for a kindergarten program.' Section 4 is codified
in Vernon's Civil Statutes as Article 2922-lla.
"(1) Does the cited law make mandatory upon
Texas public school districts timely to
establish and offer the (kindergarten) pre-
school program to eligible children in the
district, or is the law permissive making
available state aid to such districts as
locally may elect to apply for its benefits
and operate the program? What year, if any,
would the law become mandatory?
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Honorable J. W. Edgar, page 2 (M-552)
"In connection with (l), we are concerned with
realistic situations where a school district is unable
locally to implement the kindergarten program due to
such factors as (a) lack of classroom space, (b)
inability to secure qualified teachers for the program,
(c) an insufficient number of eligible preschool age
children to justify one preschool class, et cetera . ..
“2 s Does the State Board of Education have
authority to adopt formulas for allocation of
classroom teacher units, other professional per-
sonnel, and teacher-aides for the (kindergarten)
pre-school program, or do the allocations
prescribed for personnel (for.grades one through .'~
12 classes) 'in Section 2A and Section 2 of
House Bill 240 operate to apply:'to statesup-
ported kindergarten programs?"
The pertinent provision of Article 2922-lla, V.C.S., is
quoted as follows:
"(a) Beqinninq with the school year 1977-78, any
child in this state over five and under 21 years
of aqe at thee beqinninq of the school vear,.who has
not vet qraduated from high school, .shall.,be.. entitled
.._.
to the benefits of tli6 ~asic'FOundat;dli"~chool P'roqram" " "
for the ensuing school year. Such eligible child shall
be admitted tuition-free to the public schools of the
district in which he, his parents or leqal quardian,
resides. Provided, however, that for the school years '.
1969-1970 through 1976-1977, the qualifying age li'mits
at the beginning of each school year shall be in
accord with the following table:
,
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. .
Honorable J. W. Edgar, page 3 (M-552)
QUALIFYING AGE LIMITS
AS OF BEGINNING OF SCHOOL YEAR
1969-70 1973-74 1975-76
through and and
1972-73 1974-75 1976-77 '-
Beginning Age:
Years 6 5 5
Months 0 7 4
Highest Age:
Years 20 20 20
"(b) Notwithstanding the provisions of
Paragraph (a) of this Section, the program of
preschool education shall be extended first to 'edu-
cationally handicapped' children as preparation for
the regular school program in which such children
will participate in subsequent years ... The benefits
of this program for prgschool shall be ex-
-tended on a first priority basis to,'educationally
handicapped" children below existing age limits as
shown in the following table:
QUALIFYING AGE LIMITS
AS OF BEGINNING OF SCHOOL YEAR:
1972-73
and
1970-71 1971-72 Thereafter
Beginning Age:
Years 5 5 5.
Months 5 2 0
Highest Age:
Years 21 21 21 ...I( :
(Emphasis added.)
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Honorable J. W. Edgar, page 4 (M-552)
Your first question, as to whether the statute is mandatory
or permissive for the school districts of the State to establish
a preschool program as prescribed, requires an analysis of
Section (a) quoted above.
The underlined language of Section (a), quoted above, is
similar to language found in Articles 2902 and 2904a, Vernon's
Civil Statutes (now Section 21.031, Texas Education Code).
Article 2902, V.C.S., has been construed by our courts
to require a school district to admit a student, within the i:
prescribed age, provided, the .student resides within the school
district in question. Alvin Independent School Dist..v: Cooper,
404 S.W.2d 76 (Tex.Civ.App. 1966,'no writ); Anderson v. Canvon
Independent School District, 412 S.W.2d 287 (Tex.Civ.App. 1967,
no writ). Also see Attorney General's Opinion O-1388 (1939).
The rationale of the, above cited cases seems to be that a
school operating under the Foundation School Program receiving
state funds therefrom, must offer the benefits of the program
to any child who meets the age and residence requirements pre-
scribed by the Foundation School Program.
Applying the above rationale .to the statute in question,
it seems clear that by the start of.the school year 1977-78 all
students between 5 and 21 years of age, as qualified, would be
entitled to the benefits of the Found&ion School Program which
would include a preschool or kindergarten program, and all
schools subject to,the Poundation School Program would have to
provide these students with the benefits of the program.
Consequently, it is our opinion, that the Legislature
intended to include the preschool (kindergarten) as a part of
the program, to any eligible child whose age and residence
requirements are met under the graduated age requirements set
out in detail in the statute.
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Honorable J. W. Edgar, page 5 (M-552)
As for the realistic situations, listed in your request,
which we quote:
"(a). Lack of classroom space
(b) Inability to secure qualified'teachers
for the program
(c) An insufficient number of preschool ag*e
children to justify a preschool class, etc."
The statute in question does not speak to these practical
problems, unless the provisions of graduated age requirements,
and priority of educationally handicapped children were in-
tended to alleviate some of the above listed practical problems,
which incidentally would seem to be present, notwithstanding
the provisions of Article 2922-lla.
It is our opinion, therefore, that the solutions to these
practical problems lies with the Legislature, and the statute
in question does not recognize these practical situations as
per se'exceptions to the implementation of the program required
by the statute.'
Your second question, as to whether the Texas Education
Agency has any authority to allocate the necessary teaching
personnel to the preschool program or whether such allocation
is covered by other provisions of House Bill 240, requires an
analysis of Section 2 (Article 2922-1411) and Section 2A
(Section l(l), Article 2922-13) of House Bill 240.
Article 2922-14d, Vernon's Civil Statutes, provides for
teacher aides, setting forth a salary and reference is made to
the Texas State Public Education Compensation Plan (Article
2922-14c), which provides for various duties of teacher aides.
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..
Honorable J. W. Edgar, page 6 (M-552)
Section l(l), Article 2922-13, Vernon's Civil~Statutes,
provides a detailed system of determining the number of class-
room teachers to b@,,utilized by the various schools according
to the average daily attendance of students in the schools.
It appears, from the above Articles, that the number of
classroom teachers to be assigned depends upon the average daily
attendance of students in the.various schools.; and the 'number of
teachers aides depends upon number of classroom teachers
assigned under,the Foundation School Program.
We were unable to find any provision in Article 2922-lla
or any provision in House Bill 240, including Sections 2 and 2A
discussed above, which authorizes the Texas Education Agency
to determine the allocation of classroom teachers or other
personnel to the preschool program.
The allocation of teachers and teachers aides pursuant to
the provisions.of Articles 2922-13 and 2922-148 based upon average
daily attendance is comprehensive enough to cover the preschool
programs. In this regard it should be noted that Section C of
Article 2922-lla provides that students in the preschool program
should be counted for scholastic purposes'based on average' daily
attendance.
It is our opinion that the provisions of Article 2922L13
relating to number of classroom teachers and Article 2922-14d
relating to teacher aides would apply to the preschool programs
provided for in Article 2922-lla.
SUMMARY
The provisions of Article 2922-lla, Ver- *
non's Civil Statutes, requires the various school
dis~tricts in the State that are subject to the
minimum Foundation School Program to offer a pre-
school program to any eligible child meeting the age
and residgnce requirements set out in said Article.
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.’
L .
Honorable J. W. Edgar, page 7 (x-552)
The allocation of classroom teachers and
teachers aides provided in Articles 2922-13 and
2922-14d, Vernon's Civil Statutes, based upon
average daily attendance would cover the scholastics
in the preschool program required by Article 2922-lla.
Very truly yours,
Attorx@ General of Texas
Prepared by James C. McCoy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
Alfred Walker. Co-Chairman
Austin Bray, Jr.
Fielding Early
Jim Swearingen
Larry Camm
MEADE F> GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant
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