You have requested the opinion of this office on the following question:

Should an institutional school such as Boys Ranch, and its average daily attendance (hereinafter, ADA) be considered in average daily attendance

the majority in the reorgani- zation, ” in determining a newly consolidated district’s eligibility for incentive under Sections 23.991 through 23.999 of the Education Code?

Subchapter 23(G) of the Education Code, dealing with incentive aid payments to independent school districts, was added to the Code in 1971 (Acts 1971, 62nd Leg., p. 3013, ch. 994). Generally it provides for finan- cial aid to new districts created through consolidation of older ones retiring existing bonded indebtedness of the older districts or to be used for constructing new buildings.

Section 23.993 provides:

“The new district through consolidation shall contain not fewer or a majority in aver-

age daily attendance the majority in the reorgan- ization. ” (Emphasis added)

The facts which you have submitted to us are that the Vega Independent School District and the Wildorado Independent School District, both located within Oldham Comty, contemplate a consolidation of their districts. Three other school districts have territory ,located in Otdham County. You advise that these five districts and their ADA figures are:

1 . Vega 453 2. Wildorado 60 3. Adrian 150 4. Charming 0 5. Boy’s Ranch 392 Charming Independent School District is a county-line district under the jurisdiction of Hartley County (See § 19.101, Education Code), and probably has no students from Oldham County. The Boy’s ,Ranch District is ,a so-called in 1942 pursuant to Article 2666, V.T.C.S., which has since been repealed. But see $2.10, Education Code, V. T. C. S.

Assuming that the ADA of the childrenin all of the districts is counted, the total would be 1055, and a majority in ADA would be 528. However, if Boys Ranch School District is not included, the total ADA, would be 663 of which a majority in ADA would be 332. The total ADA of Vega Independent School District and Wildorado Independent School District is 513. Therefore, if the Boys Ranch School District is included in the ADA, and based on the figures you hatie’ furnished, the netiljr consolidated having fewer in ADA, will miss’having the required “majority in average daily atten,dan,ce in the county” by 15 at this time.

There is no exclusion of those children in the ADA who are in independent school districts from the calculations required “children” to include all of those in ADA by $ 23.993. We construe the county. Therefore, under the facts you have submit,ted to us, it is our opinion that the proposed consolidated school district does not at this time have sufficient children in ADA to be eligible to receive incentive aid payments under the provisions of the Education Code.

SUMMARY The average daily attendance in a so-called institutional

located within a county must be considered in the county” in order to determine if a consolidated district is to receive incentive under the provisions of $ 23. 993 of the Texas Education Code, V. T. C. S. Very truly yours, Attorney G- al of Texas APPROVED;

n

DAVID M. KENDALL, Chairman

Opinion Committee