579
OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Hon. T. M. Trlmble --d & AZ -/&-
Flrat Aas't State Superintendent -
Department or Education
Au&In, Texas
Dear Sirr opinion No. o-7128
Rer Whether pupils or parochial
Your request for
carefully considered by
your request aa follows:
hey actually attend.
you ‘fgp’your consideration and opinion. Attached
to this request is a copy of the opinion rendered
by Mr. Robert Butler.”
The attorney’s opinion referred to in your letter
reads aa followsr
i
sao ’
San. T. M. Trlmble - Page 2
“Mrs. Bred Relpert, the bearer of this letter,
-ahosechildren, RugSn8 Relp8rt, age eleven and
Geraldine lielprrt,age ten , reaitlein the Robstoun
school district, baa requested an opinion vlth
reference to the children rldlng the buses operated
39 the Rob8tOW School Dlatrlct for the purpose of
3ttendlng the Parochial sohool, knOWn 88 St. John'8
?arOchial School, St Robstown, TSX88. The tvo
children am vlthln school age. By the term8 of
Article 2839 of the Revised Civil Mutes of the
State of Texas, school children are apeciflcally
exempt from public school attendance requlremsnts
of the state when in attendance of a recognized
parochial school vhlch haa as the basis of it8 curri-
culum the teaching o? good citizenship and the Eng-
'Ash language in all subjects.
"There is no provlalon in the statutes pro-
hibiting children who live In a school district from
enrolling ln the pub110 school end avalllng them-
zelves of the benefits of the system, in 80 far a8
:renaportation 18 concerned, by virtue of such en-
rollment. Certainly, If enrolled, they are entitled
trJ thla service. The quostlon then arises a8 to
whether or not the trustees are under a legal duty
to deny enrollment prcvided the purpose is to use
the school bus only. The cases wlth reference to
vhether or not the board ha8 the admlnlstratlve
authority to deny admlaslon to the public free school8
have set out facts vhereln the persons denied have
violated some express regulation of the trustees in
the operation or the school system or who have con-
travened article 2898 R.C.S. of the State of Texas.
(SE? M;op vs. Bourtcm Independant School District 29 S.W.
.
"Should these children then be enrolled In the Robs-
tovn district In the school system in vhlch there is
available to them school work of a grade appropriate to
their present advancement and then not In fact attend
the classes in the public school system but ride the buses
from their homes to Robstovn, disembark, attend the
parochial school and return for traneportation at the
exact place where students in attendance upon the public
schools embark for roturn to their homes, then to deny
them the right to get on the buses, the board of trustees
vauld have to expressly pas8 a written regulation pro-
Mbltlng them to get on inasmuch as they vould be en-
rolled In the public school system and under the jurls-
.
, T. M. Triiblo - Page 3
diction of the school 80 long aa the9 were on the
buses. In this connection, section five, article
seven of the ccnstltutlon vould certainly not be
violated by the trustees, as the service they ex-
tend to the children in the vay of bus rid88 vould
relate to the chlldrensl enrollment l.nths public
8ChO018. Certain19 the trustres would be under no
duty nor vould the9 have the right to prosecute either
parents or children for failure to attend the public
school because the9 are 8pecl?lcally exempt under
the provision o? the statute.
"It la m9 opinion, therefore, that I? the
children are properly enrolled In their district
that they have a right to ride the school buses
by virtue of such enrollment. The9 also have the
right to attend the parochial school and not be aub-
mitted to any of the penalties of the truancy LaVm.
It la further my opinion that the board of trustees
would not be in a position of giving an9thing of value
to the parochial school, but only giving the natural
right o? transportation to those enrolled in lta
schools that an9 other student would be entitled to
actually in attendance In the public school.
"I do not, b9 this opinion, mean to aap that an9
trustees have the right to give anpthlng of value to a
sectarian school, but sin@9 state that they have
not the right to deny a child transportation vhere
he is enrolled in the public school and not violating
an9 regulation of the school or of state lava or
constitution .relatlngto the operation and conduct o? such
public school. Should the 8ChOOl di8tlliCtdesire to pro-
tect itself against an9 encroachment upon it8 iunds
allocated to the district under the per capita appor-
tionment act by the authorities adl&LiStSring the same,
then I vould suggest that an9 entry be made in the
minutes of the meeting to th8 following effects
"Be It enacted by the board of trustees of the
Robatovn Independent School District that Eugene Eel-
pert and Geraldine Helpert, who reside in this district
be permitted to enroll in the Robatovn school's dis-
trict for all purposes except actual attendance upon
Classes, the said children being excused therefrom by
Peason o? their contemporaneous enrollment for attendance
in the St. John's Parochial School at Robatovn, Texas, it
being understood b9 the governing authorltiee of this
school that this permission haa been granted In their
sound discretion and in the interests of justice.
582
Hon. T. M. Trlmble - Page 4
“Should 9ou desire to contract for the right of
these children to ride on the bus, that Is, sell the
right of transportation, I:vi11 be pleased to Submit
8n opinion in this connection. There la ample case-
book authorlt9 for the sale or leaae of school pro-
pert9. Certain type8 Of real property, hovever, IEUSt
be sold 8ubject to the approval of the Texas State
Board of Education. The oplnlcn of ths attorney
general covere on19 the giving 0s free transportation
to student8 enrolled only In the parochial schools,
and this b9 way of analogy.’
Seotlon 7 0s Article I, Con8tltutlon 0s Texan, reads
a8 follovs:
“IV0money shall be appropriated or dravn
from the Treasury for the benefit of an9 sect,
or religious society, theological or religloua
seminary; nor shall propert belonging to th;
State be appropriated for an9 such purposes..
Section 5 of Article VII, Constitution of Texas, pro-
vides In part as follovsr
” and no lav shall ever be enacted ap-
proprl;& any part of the permanent or available
szrhoolfund to any other purpose whateveri nor
shall the same or any part thereof ever be ap-
propriated to or ueed for the support of any
sectarian school; . . .’
Article 2899, Vernon’s Annotated Texas Civil Statutes,
Providea I
‘No part of the public school ?und shall be
appropriated to or used for the support of any
sectarian school.”
Construing the above quoted constitutional and statutory
provisions this department In an exhauatlve and vell considered
opinion, Ho. o-4220, held that the pupils of a parochial school.
may not be lavrully transported to their parochial achoola on a
public school bus. We enclose herewlth a copy of Opinion
lo. O-4220.
It 18 our opinion that the plan.outllned In the
Attorney's opinion quoted above, whereby the students of the
.
.
583
Hon. T. M. Trlmble - Page 5
parochial schools would be enrolled In the public schoola
merely for the llmlted purpose of riding in the public school
bus to their parochial schools, 18 plainly and palpably sn at-
tempt to do by Indirection that which could not be done
directly and Is merely a subterfuge which cannot evade the
plain provisions of our State Constltutlon, above set out.
Ne, therefore, hold that the proposed plan above
set out Is Illegal and cantraw to our State Constitution.
Yours very truly
ATTORREY GENERAL OF TEXAS
By ~8Fiff~
.
Asslstsnt