Untitled Texas Attorney General Opinion ( 1967 )

Honorable W. C. Lindsey Opinion No. M-3
Criminal District Attorney
Jefferson County Courthouse Re: Construction of Article
Beaumont, Texas 2898, Vernon's Civil
Statutes and Article
2338-1, Vernon's Civil
Dear Mr. Llndsey: Statutes.
You have requested our opinion on the construction
of Article 2898 and Article 2338-1, Vernon's Civil Statutes.
Your specific questions read as follows:
"1 . Was Article 2898 repealed by impll-
cation with the enactment of Article 2338-11
“2. If It was not repealed by lmpllcatlon,
can Juvenile Probation Officers, Asslatant Dls-
trict Attorneys, and the Texas Youth Council be
called upon to furnish their services In admlnls-
terlng the law?"
Article 2898, Vernon's Civil Statutes, provides:
"Any child within the compulsory school
attendance ages who shall be Insubordinate,
disorderly, vlclous or immoral In conduct, or
who persistently violates the reasonable rules
and regulations of,the school which he attends,
or who otherwise persistently misbehaves there-
in so as to render himself an Incorrigible, shall
be reported to the attendance officer who shall
proceed against such child In the juvenile court,
If such child is found guilty In said court the
judge shall have the power to parole said child,
after requiring the parent or other person,stand-
lng ln'parental relation, to execute a bond in
the sum of not less than ten dollars, conditioned
that said child shall attend school regularly and
comply with all the rules and regulations of said
school. If the superintendent or principal of any
school shall report to the attendance officer for
said school that said child has violated the con-
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Hon. W. C. Lindsey, page 2 (M-3 )
ditlons of his parole, said attendance officer
shall proceed against such child before the judge
of the juvenile court, and if such child shall be
found guilty of violating the conditions of said
parole, the bond shall forthwith be declared for-
feited and shall be collected in the same manner
as other forfeited bonds under the general laws
of this State, and the proceeds of same shall be
paid into the available school fund of the common
or independent school district. The judge of said
court may, after a fair and Impartial hearing
given to said child, again parole said child, re-
quiring such bond as he may deem prudent, and re-
quire said child to again enter school. If said
child shall violate the conditions of the second
parole and shall be convicted of same he shall be
committed to 8 suitable training school 8s m8y be
agreed upon by the parent of the child and the
judge of the juvenile court In which the child is
convicted .‘I
In construing the provisions of Article 2898, Vernon’s
Civil Statutes, above quoted, In Bishop v. Houston Independent
School Dlst., 35 S.W.2d 465 (Tex.Clv.App., 1931), the Court
stated:
“It is clear from the language of the statute
that Its primary purpose is to compel the regular
presence in school of every child subject to Its
provisions for the length of time specified. This
purpose might be often defeated If It was left to
the school authorities to determine whether a par-
ticular child should be denied the rlght of attend-
ing school, and article 2898, we think, wisely
places the authority to determine this question In
the juvenile court, and only authorizes that tri-
bunal to keep the child from school when Its con-
duct is vicious or immoral, or it so persistently
violates the rules of the school, or otherwise so
persistently misbehaves therein a? Lo be deemed
incorrigible. Even In cases comrllg under this
provision the child can only be deprived of the
right to attend school as a last resort, and must
then be committed to a training school.
“This statute Is mandatory In its language,
and under well settled rules of construction the
procedure and method prescribed by the statute
is exclusive, and when some other method Is followed
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Hon. W. C. Lindsey, page 3 (M-3 )
the proceeding is unauthorized and void. Mill-
hollon v. Stanton Independent School District
(Tex.Com.App.) 231 S.W. 332."
Article 2338-l was enacted subsequent to the above
cited case. The purpose of Article 2338-1, Vernon's Civil
Statutes, Is stated In Section 1 as follows:
"The purpose of this Act is to secure for
each child under Its jurisdiction such care,
guidance and control, preferably in his own
home, as will serve the child's welfare and
the best Interest of the state; and when such
child Is removed from his own family, to secure
for him custody, care and discipline as nearly
as possible equivalent to that which should
have been given him by his parents.
"The principle Is hereby recognized that
children under the jurlsdlctlon of the court
are wards of the state, subject to the disci-
on's pline and entitled to the protection of the
nt
- state, which may Intervene to safeguard them
from neglect or Injury and to enforce the legal
obligations due to them and from them."
Section 3 of Article 2338-1, Vernon's Civil Statutes,
defines the term "delinquent child" ass
If. . . any female person over the age of
ten (10) years and under the age of eighteen
(18) years and any male person over the age
of ten (10) and under the age of seventeen
(17) years, except as provided in Section 6
of this Act, who
"(e) habitually violates a compulsory
school attendance law of this State; or
11. . . . II
Thus it is seen that the provisions of Article 2338-1,
Vernon's Civil Statutes, does not repeal the provisions of
Article 2898, Vernon's Civil Statutes, but on the contrary Is
cumulative of and supplemental to Its provisions.
You are therefore advised that the school attendance
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Hon. W. C. Lindsey, page 4 (M-3 )
law is to be enforced by the attendance officer appointed for
such purpose or in the absence of such attendance officer by.
the school superintendent and the peace officers of such county
or district. Article 2895, Vernon's Civil Statutes. However,
the juvenile officers and other administrators of the pro-
visions of Article 2338-1, Vernon's Civil Statutes, may be
called upon to furnish their services whenever it is deter-
mined that a child,habitually violates a compulsory attendance
law of this State.
SUMMARY
----_--
The school attendance law is to be enforced
by the attendance officer appointed for such
purpose pursuant to the provisions of Article
2895, Vernon's Civil Statutes. The juvenile
officers, pursuant to the provisions of Article
2338-1, Vernon's Civil Statutes, may be called
upon for their services whenever it is determined
that a child habitually violated a compulsory
attendance law of this State.
truly yours,
JR:mh
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
W. 0. Shultz
James Quick
Wade Anderson
Marietta Payne
STAFF LEGALASSISTANT
A. J. Carubbi, Jr.
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