It is well known that one of the causes of the Texas Revolution was the onforced national religion of the Republic of Mexico. As a consequence, certain provisions were inoluded in our Constitution to divorce the ohurch from the state and to guarantee absolute religious freedom. Sections 6 and 7 of our Bill of Rights (Article I of the Texas Constitution) read respectively as follows: "Sec. 6. All men have a natural and inde- feasible right to worship almighty God acoording to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship." "Sec. 7. No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purposes."

Section 8 of Article VII, Constitution of Texas, provides, in part, as follows: " * * And no law shall ever be enacted appropriating any part of the permanent or available sohool fund to any other purpose whatever;

*3 Honorable John C. Marburger, page 83

man shall the same, or any part thereof ever be appropriated to or used for the support of any seetarian school; & & & . See also Article 2899, R. C. S.

These provisions were before the supreme court of Texas in the case of Church et al. v. Bullock et al., 109 S.W. 118. In that case it was held in effect that the holding of morning exercises in the public schools which consisted of reading by the teacher without comment of nonseetarian extracts from the Bible, and the singing of appropriate songs, in which the pupils were invited but not required to join, was not objectionable under the above quoted provisions of the Constitution. See also Pfeiffer v. Board of Education (Mich.); 77 M. W. 250; People ex rel. Vollmar v. Stanley (Colo.); 255 P. 610; Hackett v. Brooksville Graded School Dist.; (Ky.); 87 S. W. 792; Stevenson v. Hanyon; 7 Pa. Dist. R. 565. However, the court emphatically stressed the point that the exercises were nonseetarian in character. We quote the following from the opinion of the court:

" & & It was the purpose of the Constitution to forbid the use of public funds for the support of any particular denomination of religious people, whether they be christians or of other religions."

Therefore, exercises which would include any expression representing the peculiar or distinctive view or dogma of any sect or denomination would not be nonseetarian. Such exercises would be in violation of our Constitution.

In Corpus Juris (Volume 12, pages 942, 943) it is stated that there is now a tendency both in constitutional provisions and in judicial construction to exclude any religious instruction in the public schools. See also 16 C. J., 300. 604. Our supreme court in the Bullock case has not gone that far, but it definitely committed itself to the doctrine that if religious exercises are held, they must be strictly nonseetarian in character. You state that the instruction is "of a particular denomination or sect exclusively, and is not merely general instruction in religion." Your first question is, therefore, answered in the negative.

*4

Honorable John O. Marburger, page 44

You ask whether the noon hour is part of the school day. There can be no doubt that under Article 2906, Revised 01111 Statutes, it is. See that part of Article 2906 which provides: "A sohool month shall oonait of not leas than twenty achool days, inclusive of holidays, and shall be taught for not lese than seven hours each day, inoluding internigalons and reoesses." (Haphasia aupplied)

However, even without this atatute we think that the noon hour would be a part of the achool day. The board of trustees determines the time and length of reoesses, and the students are aubjeet to the supervision of the achool authorities. Your second question is, therefore, answered in the affirmative.

You ask the second question in oonnetion with the of fering of religious instruction in the achool. We think it proper to state here the following rule announced by the Supreme Court in Jerngan v. Finley, 90 Tex. 205, 38 F. N. 24, in conatruing that part of Section 5, Article VII of the constitution which we have heretofore quoted: "The Legialature cannot do by indiraction what it cannot do directly."

We think this ruling applies to all three of the conatitutional provisions under consideration. In other words, the achool cannot offer religious instruction of a sectarian oharacter regardiess of when or how it is offered. The achool cannot do by indiraction what it cannot do directly.

We wish to thank you for your very able brief.

Very truly yours ATTORNEY GENERAL OF TEXAS By Hanyor Apa George W. Sparks Assistant APPRI CHIN COMMI AY 36 cable