Case Information

*1 GENERAL TIEBEATRMXRNEY GERALDC.MANN AURT~N m.X%x~s

Honorable Don D. Parker

County Auditor

Eastland County

Eastlaud, Texas

Dear Sir: Opinion No. O-1073

Be: Transfer of scholastics niih- in the county--County suporin- tendent has no disoretion if proper application filed.

Viesre in receipt of your letter of June 27, 1939, in which you 'sub- mit the folloflng question to this departmeat for an opinion: "If parents wish to tmusfer their children from one district to another district tithe same county, aud make the proper writtea application to the Comfy Sohool Superintendent, is it optional or mandatory with the County School~Superintendent to either appliove or disapprove suoha traus- Per?"

Prior to the 1925 revisicm, Artiole 2760, Revised Civil Statutes, 1911, provided:

“Art. 2750. APPLICATION OF PARENT OR GUARDIAN. ,Any child lawfully en- rolled in aqy district, oi.iudependent ds$.t+&t, _ be transferred to 3 the enrollments of any other ~district, or independeu dietriot, intie same

county uponthe written application of the parent or guardian or person having the lawful aontrol of suoh child, filed with the county superin- tendeut; but no child shall be transferred more than once$ provided the party making applioation for transfer'shall state in said applioation that it is the bona fide intention of applioaut to send ohild to the sahool to which transfer is asked. Dpon the transfer of any child, its portion of the school funds shall follow and be paid over tothe district, or independent district, to which such ohild is transferred; provided no transfer shall be made after August first, after the enrollment was made."

Dated April 2'7, 1920, letter book, vol. 235, page 932,,this depart; ment rendered au opinion to Miss Aunie Webb Rlauton, State Superintendent of Publlo Instruction, construing the 1911 statute inwhioh it was held that the weld "may" was used in a mandatory sense and should be oonetrued the ssme as "shall." The State Superintendent being dissatisfied withthe foregoing opinion requestedthat this department reoonsider~its former cmstruotion ad in response thereto, the Attorney General*s Office issued its conferenoe opinion No. 2444, Vol. 57, page 303, dated July 29, 1922, *2 mitten by Assistant Attorney General, Bruce We Bryant, intichthe auth- orities were thoroughly reviewed3 and it was held that the word "may" as used in the 1911 statutes should be construed as "shall" and mandatory. Therefore, upon application for transfer being properly.filedwithte OOU~QV superintendent, he had no discretion in the matter and the transfer should be granted.

Article 2760 was carried intothe 1926 revision as Article 2696, and the first sentence uas changed to read:

"AZ@? child lawfully enrolled in any distrlot, or independent district, ma atthe disoretioa of the county superintendent be transferred to the enro -3 l- ment of any other district . . ."

l@ Acts 1935, 44th Legislature, page 488, oh. 201, Article 2696, R.C.S. 1925, nas amended to read as follous:

"Any child lawfully enrolled in aq district or iadepeadent district, may by crder of the coon* superintendent, be transferred to the enrollment of q other disttiot or independent district in the same county upon a writ. ten applioatioa of the parent or guardian or persoa.having la&u1 control of suoh child, filed with the oounty superintendent; povided that any dis- triot or indepeadent distriot being dissatisfied with enyfransfer madeby the county superintendent may appeal frcrm such action to the county board of -tees of said countyuho shall have the right to annul and cancel the Wansfer allowed by 4he oounty superiatendsnt.

"The applioaat shall state in said application that it is his bona fide in- tention to send said child to the school to which the transfer is asked. "Upon the oertifioatioa of the transfer of ruqr child, from one district to another district, by the county superintendent of the oounq inwhich the child resides at the time of the transfer, the State Department of Rduoati- on shall authorize the Stats Treasurer to pay over directly the per capita apportionmen%, in independent distriots of five hundred (500) or more scholastic: population', to the district toahioh such child is transferred; and in all other diatriots,.;.to county superintendents, to be paid iy him to the respective distriots towhich such children are transferred3 provided, ao transfer shallbe made after August 1st."

In a letter opinion dated &y 18, 1938, written by Assfstaat Attorn- ey Caneral U. J. Kemp, letter 381, page 572, the oonference opinion by Mr. Bryant was followed, it belag pointed out that the "wording of the present statute has not changed materially from that of-the statute under consideration ia the opinion of Mr. Rryant," and the statute lairs held to be mandatory. A similar opinion was nritten by Dr. Xemp dated August 6, 1938, letter book 30~2* page 603. A oontrary opinion, ho'scver, WM rendered oa &W-oh 20, 1936, to Mr; Oliwr E. Pape, by the Ron. Joe J. &sup, letter book 371, nage 292, holding that it uas disoreticnary withthe aoun~ super- intendent as to "hethor atransfer should be made.

We are infonaed-that the Department of Education has followed the opinion by Mr. Kemp, and has placed a similar oonstruction upon Article 2696, the construction and application being that the transfer should be made upon proper applicatioa being filed withiti the required time, subject to being set aside by the County Board of Trustees, if within their judg- ment, the transfer should not have been made.

Taking into consideration the 1935 Pmendnent of Artiole 2696, prior opinions by this Department, and their appllcatioa.bythe Departneut of Ed- uoation, we are of the opinion that such departmemtal construction should be follonedr

The opinion dated March 30, 1936, addressed to Mr. Alvin E. Pape appearing in letter 371, page 292, is hereby overruled.

It is our opinion that if parents wish to transfer their children from one district to another district in the same county and make the proper written application to the county school superintendent, it is mandatory that the county superintendent make such transfers, subject to be aetsside upon appeal to the county board of school trusteesof said county, as provided in Article 2696, Revised Civil Statutes, 1925.

Yours very truly ATTOREEYGEW OF lEXAS By /s/Ceoil C. Csmaok Cecil C. Camiaok Assi stant ,, CCC:pbp:cgar APPROVED JDLY 12, 1939

/s/W. F. Moore

FIRSTASSIST&ET APPROVED Opinion Comnittee ATTOFLNEY GENERAL

ByREF Chairman