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