Honorable Dr. J. W. Edgar Opinion No. H-63
Commissioner of Education
Texas Education Agency Re: The application of the
201 E. Eleventh Street Texas laws governing
Austin, Texas 78701 residence of minor
school-age children
,for public school altrnd-
Dear Dr. Edgar: ance purposes.
You have aubmitted several specific questions to us concerning
the appropriate dietrict for a minor to attend school, Generally attend-
ance is governed by $ 21.031(b) and (c) of the Texas Education Code:
“(b) Every child in this state over the age
of six years and not over the age of 21 years on
the first day of September of the year in which
admission is sought shall be permitted to attend
the public free schools oi the district in which he
resides or in which his parent, guardian, or the
person having lawful control of him resides at
the trme --he applies for admisston notwtthstandtng
the fact that he may have been enumerated
---- in the
schoLasti<. census oi a different district or may
have attended school elsewhere for a part 01 the
yea*.
“(c) The board oi trustees of any public free
school distric-t of ILIS state shall admit into the
public free schools of the district free of tuition
all persons over SIX and not over 21 years of age
at the beginning of the scholastic year if suchper-
son or his parent. guardtan or person having law-
fulontrol resides within the school district. ”
(emphasisadded). .--
p. 269
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I .
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Honorable Dr. J.W. Edgar, page 2 (H-63)
While “residence” may have various meanings for various purposes,
and despite the fact that normally the residence of a minor ia that of his
parents [Gulf, C&S. F. Railway Co. v. Lemons ----I 206 S. W. 75 (Tex. 1918)],
the term has received a particular interpretation for school purposes since
1905 when, in an opinion to the then State Superintendent of Public Instruction,
the Attorney General said;
“If the children have merely an ostensible
and not a substantial residence in the district, if
they were sent toRockdale for the sole purpose,
or even for the main purpose, of participating in
the advantages of the public schools of Rockdale,
they are not entitled to free tuition.
“But if they were sent to reside in Rockdale
in good faith in order to give them suitable homes,
with the intention on the part of the father, and of
the persons in whose care he placed them, that the
children should reside there permanently: if the
educational advantages of the residents in Rockdale
were merely inctdental to their going there, and
other considerations induced the father, in good
faith, to select that place as their home. I Lhink
the children are residents of Rockdale within the
meaning of the school law, and entitled to free
tuition there, notwithstanding that the domicile of
the father is elsewhere.”
Referring to the foregoing language, this office In Attorney General
Opinion No. O-586 (1939) added:
“While we recoen? re that a rmnor child may
acquire a bona ride residence separate and apart
from its parents wlthin the contemplation of our
school laws, we do not think that such bona fide
residence IS established by the mere physical pre-
sence of Ihn minor in another district for the pur-
pose of attending school. School Dstrict No. 1.
p. 270
Honorable Dr. J. W. Edgar, page 3 (H-63)
etc. v. School District (Sup. Ct. Mich. 1926).
211 N. W. 60; Yale v. West Middle School
District, 59 Conn. 489, 13 L. R.A. 16l;Anno.
26 L.R.A. 581.”
These rulings have been followed in subsequent opinions of the
Attorney General Nos. O-762 (1939); O-1384 (1939) and O-7176 (1946).
In the last cited opinion it was aaid, by way of illustration:
“The question propounded by you involves a
fact question. If the residence of the child in ques-
tion has been established as a good faith substantial
residence with her Aunt in District #2 it is our opi-
nion that in such event the Aunt would be authorized
to enumerate the child as a scholastic in District #2.
However, if the residence of the child in District #2
is merely an ostensible residence for the purpose of
attending school there and not a good faith substantial
residence, then in such event our ruling would be
that the child should be enumerated by its parent’s in
District #l. ”
Your precise questions to us are as follows:
“(1) Mother and father have and reside at home
in School District A, minor child is living in District
B with grandmother or other relative to attend school
in District B, but child spends weekends and summers
in mother and father’s home.
“Is minor child a bona fide resident of School
District B for school purposes?
“(2) Mother and father are separated without
legal proceedings being instituted. Mother, a resident
in District A. Father, a resident in District B. The
minor child is living at all time with mother in District
A, and attends school in District A.
“Is the minor child a bona fide resident of
District A for school attendance purposes?
p. 271
Y
Honortble Dr. J, W. Edgar, page 4 (H-63)
“(3) Mother-father are rtridtntr of Dirtrict
A. Minor child, legal disabilitiee not removed by
court, liver in apartment in District B, attends
school and work8 to support himself in District B.
Visits on weekends in mother-father home.
“Is minor child a bona fide resident of
District B for school attendance purposes?
“(4) Mother-father art residents of District
A. A guardianship, pursuant to law, has been ob-
tained on minor child by a relative, a bona fide
resident in District B. Minor child attends school
in District B and resides with relative guardian.
“Is minor child a bona fide resident of District
B for school attendance purposes?
“(5) Mother-father have a residence (own
home) in District A. Mother-father also have a
residence (rented home) in District B. The family
including minor child spend about equal time at
the two residences. The minor child attends school
in District B.
“IS minor child a bona fide resident of District
B?
“(6) Same situation as in 5 except the rtsi-
dence in District A is rented, and the residence in
District B is owned.
“Is minor child a bona fide resident of District
B?
“(7) Mother-father are separated. No court
order. Child living with relative for all purposes
with consent of mother and father. Child attending
school in District where relative resides.
p. 272
Honorable Dr. 3. W. Edgar, page 5 (H-63)
“Is the minor child a bona f:de resident of
the relative’s district for school 5 tttndanct purposes?
“(8) Same as 7 except mother-father not
separated.
“Is the minor child a bona fide resident of
the relative’s district for school attendance purposes?”
Each of these presents a fact question as to the reason for the dif-
ferent residences, whether it is a bona fide residence as opposed to an
“ostensible residence for the purpose of attending school. ” Each instance
will have to be determined upon an examination of the detailed facts, which
we do not have before us. In each instance the school official charged in
the first place with responsibility for the decision will have to weigh all
the facts and conclude that the residence is either bona fide or merely
ostensible.
SUMMARY
Residence of a minor for the purpone of
determining his eligibility for free public educa-
tion under $ 21.031 of the Texas Education Code,
normally is that of his parents. Whether residence
elsewhere qualifies the minor will depend upon
whether the residence is bona fide or is merely
an ostensible residence for the purpose of attend-
ing a different school.
Very truly yours,
A
Cl’Attorney General of Texas
p. 273
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Honorable Dr. J. W. Edgar, page 6 (H-63)
0
DAVID M. KENDALL, Chairman
Opinion Committee
p. 274