Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
March 21, 1980
MARK WHITE
Attorney General
Honorable Elizabeth C. Jandt Opinion No. ~~-151
Guadalupe County Attorney
Seguin;Texas 78155 Re: Whether Title III of the
Family Code has impliedly repealed
sections 21.302 - 21.304, Education
Code.
Dear Ms. Jandt:
You ask whether Title III of the Family Code has impliedly repealed
sections 21.302 through 21.304 of the Education Code. These Education Code
provisions establish a procedure whereby the school attendance officer may
proceed in juvenile court against a school age child “who is reported to him
as being insubordinate, disorderly, vicious, or immoral in conduct, or who
persistently violates the reasonable rules and regulations of the school which
he attends, or who otherwise persistently misbehaves in such a manner as to
render himself an incorrigible.” Educ. Code S 21.302. The juvenile court
judge has the power to parole a child found guilty of the charges and allow
him to return to school under bond. Educ. Code S 21.303. If the child
violates the conditions of the first parole, the judge shall forfeit the bond.
Educ. Code S 21.304. On finding him guilty of violating a second parole,
“the judge shall commit the child to a suitable training school as determined
by the judge of the juvenile court and the parent of the child convicted.” -Id.
Title III of the Family Code provides that a child who has a certain
number of voluntary unexcused absences from school has engaged in conduct
indicating a need for supervision. Family Code S 5103(b)(2). The juvenile
court has jurisdiction over proceedings against a child who engaged in
conduct indicating a need for supervision. -See Family Code SS 5LO4, 54.03,
54.04.
An almost identical question was addressed in Attorney General
Opinion M-3 (1967). It considered whether article 2898, V.T.C.S., which has
been recodified as sections 21.302 through 21.304 of the Education Code, was
implledly repealed by the predecessor of section 51.03(a) of the Family Code,
defining as a delinquent child one who habitually violated the compulsory
school attendance law of Texas. The opinion determined that the provisions
were cumulative. We believe this conclusion is correct. Section 51.03(b)(2)
of the Family Code relates to voluntary absences from school, while sections
P- 486
Honorable Elizabeth C. Jandt - Page Two (HV+lSl)
21.302 through 21.304 of the Education Code relate to a much broader range of conduct.
The courts will attempt to harmonize two statutes relating to the same subject, and will
permit both to stand if possible. State v. Jackson, 370 S.W.2d 797 (Tex. Civ. App. -
Houston 1963), aff’d, 376 S.W.2d 341 ‘(Tex. 1964).
We note, however, that sections 21302 through 21.304 of the Education Code do not
provide the exclusive method of suspending or expelling a child from schooL Bishop v.
Houston Independent School Dist., 29 S.W.2d 312 (Tex. 1930). The trustees of independent
school districts are vested wit
’ h “exclusive power to manage and govern” their schools and
may exercise this power to enforce school regulations by suspending or expelling students.
Educ. Code S 23.26(b); see Texarkana Independent School Dlst. v. Lewis, 470 S.W.2d 727
(Tex. Civ. App. - Texa%&a 1971, no writ); Attorney General Opinion H-398 (1974).
SUMMARY
Title III of the Family Code &es not repeal sections 21.302 through
21.304 of the Education Code.
m&
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Susan Garrison
Rick Gilpin
David Young
Bruce Youngblood
Lonny Zwiener
p. 487