Dr. J. W. Edgar Opinion No. M-1074
Commissioner of Education
Texas Education Agency Re: Use of public school facili-
201 East 11th Street ties by parochial school
Austin, Texas 78701 students
Dear Dr. Edgar:
By letter you have requested our opinion in regard to the
above matter. We quote from your letter as follows:
"The playground and public junior high school
of an independent school district (Crosby Inde-
pendent School District - Harris County) is adjacent
to a church operated eight-grade parochial school
and its playground.
"For some yeare prior to the 1970-71 school
term, the church school (grades 7 and 8) pupils
came to said public school for physical education
(P.E.) claeaee and band practice. Normally, most
of the parochial pupils continue their education
in the public schools upon coming ninth graders.
"Pursuant to a court order (concerning inte-
gration), grades 7 and 8 pupils of the said public
school this year are being taught at another school
of the dietrict located four miles from the parochial
school.
"Currently, permission is sought of the
local school board to continue to allow the parochial
school 7th and 8th graders to participate in the
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Dr. J. W. Edgar, page 2 (M-1074)
public school music (band) program. Now, the
district school board defers to decide thereon until
this Agency has submitted an opinion request and
answer is obtained from the Office of Attorney
General on the following inquiry:
"Legally, may a public school district of
Texas permit and admit children who are duly en-
rolled by parental choice in a parochial school
(and thus exempt from attendance in public school)
to participate regularly in a public school in-
struction program (band-music), pursuant to a
mutual arrangement between the schools?"
Subsequent to your letter, we have been advised by the
Superintendent of the Crosby School that there is no formal
agreement between the public and parochial school boards, and
that the public school deals with each individual student
(parochial) who wishes admission to the band classes at the
public school, and further that the individual student provides
his own transportation to the public school for the class in
question.
The board of trustees of an independent school district
"have the exclusive power to manage and govern the public free
schools of the district" and they "may adopt such rules and
regulations, and by-laws as they may deem proper" under Section
23.26, Texas Education Code. They are required to administer,
Sections 21.031, 21.032, and 21.033 of the Code concerning the
matters of admission of students, their compulsory attendance,
and the determination of which students fall within the classes
of children which are exempt from the requirements of compulsory
attendance. In this connection, they are empowered to make rules
and regulations not inconsistent with the statutory provisions,
and they have the necessary implied power, in order to exercise
the authority granted, to enter int.o contracts governing the
terms and conditions for student admission and attendance in
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Dr. J. W. Edgar, page 3 (M-1074)
the schools of the district. While students attending a private
or parochial school, along with certain other classes of students,
are exempt from compulsory attendance, this fact alone does not
render them legally ineligible to attend the free public schools
pursuant to Section 21.031 and under such reasonable rules or
regulations consistent with statutory provisions as may be
promulgated by the school district. Attorney General's opinion
No. WW-994 (1961). In the cited opinion, it was held that since
there was no restriction or limitation in the statutes as to
children eliqible for free public school attendance, a school
district has the general responsibility to educate, free of
tuition, even those children within the district residenced and
enrolled in private schools for exceptional children where it is
determined that enhancement of the children's progress will
result from public school attendance. The school board may make
such rules and regulations as are necessary to maintain the
constitutionally required "efficient" system without discrimina-
tion or abu.se of discretion. Wilson v. Abilene Independent School Dist
190 S.W.Zd 406 (Tex.Civ.AEp.1945, error ref. w.m.); Article VII,
Constitution of Texas.
In carrying out its responsibility, a school district has
the necessary implied power to so contract. It appears to be
well settled that a quasi public corporation, such as a school
district, has the power to enter into a contract where authorized
by necessary implication from the powers granted to it by statute.
Attorney General's opinion NOB. M-1036 (1972) and V-1054 (1950).
See also McCorkel v. District Trustees,121 S.W.2d 1048, 1053
(Tex.Civ.App. 1938, no writ): Crosbv v. P.L. Marquess & Co.,
226 S.W.Zd 461 (Tex.Civ.App. 1950, error ref., n.r.e.).
Two principal issues remain for disposition. The first is
the question of whether this arrangement would violate the First
Amendment to the United States Constitution, or Section 7 of
Article I of the Texas Constitution concerning the separation
of church and state. Second is the issue of whether the use
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Dr. J. W. Edgar, page 4 (M-1074)
of public school property by the individuals in question amounts
to a gift or grant of public property for a private purpose
prohibited by Section 51 or 52 of Article III of the Texas
Constitution.
It is our opinion that, under the facts presented, there
is no constitutional violation.
The issue of separation of church and state has recently
been considered~ in a series of U.S. Supreme Court cases which
are discussed in Attorney General's Opinion M-1036 (1972), to
which reference is made for authorities there discussed. In
addition, the decisions have permitted the states to provide
private or parochial schools with secular, neutral, or non-idiological
services, facilities, or materials. See P.O.A.U. v. Essex, 28
Ohio St.2d 79, 276 W.E.Zd -(1971); Tilton v. Richardson, 403
U.S. 672 (1971), Board of Education v. Allen, 392 U.S. 236 (1968).
See also In re Leqielature's Request For An Opinion, 180 N.W.Zd
265 (Mich.Sup. 1970), writ dism. 401 U.S. 929, wherein the court
found no constitutional violation under the Michigan Constitution,
which reads identically to Article I, Section 7 of the Texas
Constitution.
The tests (or questions) of church-state separation are
four-fold (see page 6 of M-1036), but for purposes of this
opinion, under the facts submitted, it is our opinion that there
is no fostering or inhibiting of religion, or excessive entangle-
ment of church-state relations under the facts presented. Neither,
in our opinion, is there a primary secular intent, but rather an
intent to aid individual students in acquiring certain skills.
The second issue raised by this opinion request has also
been considered in prior opinions of this office. See M-861
(1971) and the opinions contained therein, and also the authori-
ties above cited, wherein the particular measure under attack
was upheld as being for a governmental public purpose as dis-
tinguished from a private or religious one.
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Dr. J. W. Edgar, page 5 (M-1074)
Even though, as stated in your opinion request, the students
in question are "exempt" from compulsory attendance in public
school because they are parochial school students (Sec. 21.033,
Texas Education Code), that factor alone is not conclusive on
the question.
The thrust of Sections 51 and 52 of Article III of the
Texas Constitution was to prevent the Legislature. and any public
body acting pursuant to express or implied legislative power,
from giving away public money or thing of value, for a private
purpose. These sections were not intended to prevent public
purpose projects, which incidentally may benefit some individual
or group of individuals. See State-v. City of Austin, 160 Tex.
348, 331 s.w.Zd 737 (1960).
Under the facts submitted, it is our opinion the public
school in question, by allowing the parochial school students
to take certain lessons, as stated, would not be in violation of
Section 51 or 52 of Article III of the Texas Constitution.
SUMMARY
Under the facts submitted, the Crosby
Independent School District may permit the
parochial school students to receive band
lessons at the public school, and such
action by the school does not violate the
First Amendment to the United States Con-
stitution or Section 7 of Article I of the
Texas Constitution or Sections 51 and 52
of Article III of the Texas Constitution.
C. MARTIN
General of Texas
Prepared by James C. McCoy
Assistant Attorney General
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Dr. J. W. Edgar. page 6 (M-1074)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Melvin Corley
Houghton Brownlee
Max Hamilton
Linward Shivers
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOW+ WHITE
First Assistant
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