Untitled Texas Attorney General Opinion

-- E A’%TI.-ORNEY GENE-L OF TEXAS Honorable W. B. King, Accountant Joint Legislative Committee Austln,ll, Texas Dear Sir: Opinion No. O-5928 Re: Interpretation OS Section 4, Article 1, House Bill 176, 48th Legislature. Your communication addressed to this department and dated March 22, 1944, reads as follows: "Will you please answer the questions set forth below pertainjng to House Bill No; 176, Section 4 of the Equalization Aid Law of Texas. "We quote the followingfrom Section 4: "'Sixty-five per cent (65%) average ,aaily attendance shall be based for the entire school term or, at the election of the Schools and with the approval of the Legislative Accountant, may be based upon the first four months thereof. 1 "The law itself‘,in no respect, offers any alarity to us concerning the auditing of applications for average dally attendance purposes; and we feel it imperative to have a clarification of this particular Section. "There is a variance of ten days between a school month and.a calendar month; and in this instance, the law does not specify which of these montha, the school or the calendar, shall be used in computing average daily attendance 'based on the first four months of the school term.' Pursuant to this, a ques- tion arises as to whether this 'four months period' begins with the opening of school or whether it pertains to the actual number of days that the school has oper- ated. (For example, many schools begin the term in the month of,August teach for a period of one month or six weeks, and temporarily close for crop,harvestlngs]. -, -_ Honorable W. B. King - Page 2 - (0-5928) "In summation, we respectfully submit the following: “(1) What constitutes four (4) months as spoken of in Section 4, House Bill Number 176, Acts of the 48th Legislature? “(2) Is this four (4 months period (as mentioned aboveI to be based on the actual number of days during which the school operates and is available for scholastic attendance or could holidays and periodic recesses, be excluded in compiling the average daily attendance? "(3) Considering any holding which you make, could a school district submit additional Average Daily Attendance reports, if after its election to file a report at the end of the first 4 months, it failed to meet the re- quirements set forth otherwise in the law?" The Section 4 referred to in your communication Is Section 4 of Article 1 of said House Bill 176. Article 23, Revised Civil Statutes, provides, in part, as follows: "The following meaning shall be given to each of the following words, unless a different meaning is apparent from the context: "i * * "(15) 'Month' means a calendar month. "(16) 'year' means a calendar year." In the case of McKinney v. Staz; (C!;yt;of Crim. Appeals of Texas) 66 S. W 769 it was h 1 a month, as used in the civil statute;, is'a calendar month, and Is determined arbitrarily by the number of days that the calendar gives to each particular month; that is, thirty-one days for January; twenty-eight days for February, except leap year, etc." The same case holds, however, that when used in a criminal statute, the words "one month" mean thirty days. Honorable W. B. King - Page 3 - (O-5928) It should be observed, however, that the meaning to be given to each of the words covered by Article 23, supra, shall be given as therein setforth, unlessa different meaning is apparent from the context. It should likewise be observed that Section 4 of Article 1 of H. B. 176, 48th Legislature, is part of the current bill providing for State aid to public schools, and deals with average daily school attendance; The context of the entire bill has reference to school matters. Therefore, it is clear to our minds that the words "first four months thereof," as used in Section 4, supra, and quoted in your communication to this depart- ment, have reference to school months rather than calendar months. What, then, is a school month? Article 2906, Revised Civil Statutes, reads as follows: "Public schools shall be taught for five days in each week. Schools shall not be closed on legal holidays unless so ordered by the trustees. A School month shall consist of notless than twenty school Bays, inclusive of holidays, and shall b t ht f not less than seven hours each day, inoltdi&ginteE missions and recesses." (Emphasis ours) The statute, while fixing twenty~as the minimum number of school days in a school month, does not fix the maximum number of such days. It.is therefore, in this respect, ambiguous and uncertain. Construction Is required to determine its meaning. 39 Tex. Jur., p. 160, par. 88. "The courts will ordinarily adopt and up- hold a construction placed upon a statute by an executive officer or department charged with its administration, if the statute is ambiguous or uncertain, and the constructionsso given it is reasonable." 39 Tex. Jur. pp. 235-236, par. 126. It is our understanding from,the office of the State Superintendent of Public Instruction, that the Depart- ment of Education has, since its passage, interpreted Article 2906, Revised Civil Statutes, as defining a sohool month to mean a month of four weeks consisting of five school days in each week, including holidays, or a total a' twenty schaol days, in- cluding holidays, in each school month.' Thus, a school term of nine months means one consisting of 180 school days, including holidays. This is not an unreasonable.aonstruction. such ae- partmental construction has for many.years been the basic guide in reference to numerous school matters not specifically covered by our statutes. We, therefore, feel compelled to adopt such Honorable W. B. King - Page 4 - (O-5928) construction as being reasonable and proper. See Railroad comission of Texas v. T. & N. 0. R/Co., 42 S. W.mmgl, error refused; State v. Cunter, 8.1S W 1028, error refused: Cotton v. Commonwealth Loan Co., (Sui. &. of Ind.) 190 N. E. . The Indiana case last cited is particularly applicable to a proper interpretation of the word "months," as contained in your first question. The appellants in that case plead usury as a defense in the court below, They urged that the word "month," as used in the statute, meant a calendar month. They relied upon Section 247, Burns' 1926, which read as follows: "The construction of all statutes of this State 1:'. (Indiana) shall be by the following rules, unless such construction be plainly repugnant to the intent o,fthe legislature or of the context of the same statute; * g * "Fifth. The word 'month1 shall mean a calendar _ month, and word 'year' shall mean a calendar year, unless otherwise expressed1 * + *' (Emphasis ours) Appellee was a lioensee under the petty loan statute of Indiana. Such licensees were origlnally under the supervision of the Auditor of State. In 1919 the Legislature transferred the supervisory power of the auditor to the State Banking De- partment. Said Banking Department, through its Division of Industrial Loans, had from time to time issued regulations govern- ing licensees under said statute. One of Its printed rules re- quired that "all interest shall be computed on a basis of 30 days to each of the 12 months of the year." Also, "interest shall be oomputed on the exact amount of money for the actual number of days, not to exceed 30 days to the month." In disposing of said case, the Court took notice of said departmental interpretation of the statute, as it would take notice of an inferior court's decision. The court further stated: "It (the departmental Interpretation) does not bind us in our construction of the statute, but lends support to the oontention that the statute may be reasonably construed as in- tending that thirty days might be treated as a month." In ovelr ruling the deaision of the Appellate Court of Indiana, in Bane, 184 N. E. 578, the Supreme Court of Indiana in effect adopted the departmental interpretation as above set forth. It held that the word "month" as used in said petty loan statute, had reference to the comme,roialmonth of thirty days. While a con- struotion of the statutes providing for forfeitures was also involved in said Supreme Court Opinion, it is obvious that the same conclusion as therein stated would have been reached had such construction not been involved. _-, -..- ‘- Honorable W. B. King - Page 5 - (O-5928) Attention Is also directed to Article 2903, Revised Civil Statutes, which provides as follows: "The scholastic year shall commence on the first day of September of each year and end on the thirty-first day of August thereafter." In view of the foregoing, your questions as submitted, are answered as follows: (1) Eighty school days, including holidays, consti- tute four months within the meaning of Section 4, Article 1, H. B. 176, Acts of the 48th Legislature. (2) Holidays and periodgc recesses, during which schools are ordered closed by the trustees, are to be excluded in computing the average daily attendance. Holidays on which schools are taught and not closed by proper order or orders of the trustees, are to be included in such computation. (3) Based on the wording of the provisions of Sec- tion 4, Article 1, H. B. 176, 48th Legislature, it Is the opin- ion of this department that the required sixty-five (65s) per cent average daily attendance is primarily based upon the entire school term. Therefore, a school district which files a report at the end of the first four school months, which report fails to show an average daily attendance of sixty-five (65%) per cent, may thereafter submit a Daily Attendance Report based upon the entire school term. Let it be understood that the forego&g answers are based on school months and school terma included within a .schoias- tic year, as hereinabove defined. Very truly yours AT'l'OR~\Tf GEKERAL OF TEXAS ,APPROVED APRIL 11, 1944 /S/ L. H. Flewellen /a/ G. P. Blackburn BY G. P. Blackburn ,L. H. Flewellen Acting Attorney General of Texas Assistant APPROVED LRF:EP:ELB Opinion Committee By B.W.B. Chairman