Untitled Texas Attorney General Opinion ( 1948 )

AUSTIN. TEXAS
November 8, 1948
Hon. L. A. Woods Opinion lo. v-713
State Superintendent
Department of Education Re: The authority of the
Austin, Texas Department of Educa-
tion to accept appli-
cations for special
classes for exception-
al children when the
applications are not
filed within the stat-
utory period.
Dear Sir:
We quote frqm your request for optilor as fol-
lows:
"Section 2 of Article II of the law
providing special education for exceptlon-
al children, Senate Bill 123, 30th Leg,,
fzts 1947 (Articles 2922-P to 2922-8, V.C.
l, Inclusive) provides, in part:
“1 that to be eligible for aid under
thi &?lsions of this Act, the school dis-
trict establishing and maintaining special
classes for exceptional children must file
with the Division of Special Education in
the State Department of Education on or be-
fore September 1st of each school year, on
forms furnished by the State Department of
Education a tentative budget containing the
anticipated expenditures of such special
classes. On or before July 15th of each
school year, each School district malntain-
ing special classes for exceptional chll-
dren s;lallmake a detailed, accurate finan-
cial record of aI1 moneys paid out by it
for maintenance of these classes, and such
financial record shall be subject to the
approval of the State Superintendent of
Public Instruction. . .’
“One school district mailed Its appll-
cation on September 2, and it was received
in this office on September 3; another dls-
Hon. L. A. Woods, page 2 (v-713)
trictmailed the application on September 3,
and it was received on September 4; one was
mailed on September 4 and received on Sep-
tember 7; one was mailed on September 9 and
received on September 11; one was mailed on
September 2 and received on September 4; and
another was mailed on September 3 end receiv-
ed on September 7.
"Does the above provision of the law
prohibit this office fro? accepting the ap-
plications as submitted?
It is a general rule of statutory construction
thst statutory provisions which are affirmatively worded
and merely set forth the time or mode for the proper or
orderly conduct of business are not mandatory. Suther-
land on Statutory Construction, page 1117, Section 612.
City of Uvalde v. Burney, 145 S.W. 311; State v. Fox
133 S.W.(2d) 987; Smith v. Morton I.S.D., 85 S.W.(2dj
853, at 858. The same, however, is not true where such
provisions are negatively worded, or are followed by
words of limitation showing that such time or mode is
exclusive. Burney case, supra; Gomez v. Timon, 128 S.
W. 656; Attorney General’s Opinions Nos. O-5423, O-6141,
construing Section 2 of Article II of H. B. 176, Acts
1943, appearing also in the State aid law, Acts 1947, R.
B. 295.
Furthermore, in determining whether a statu-
tory provision Is mandatory or directory, the legisla-
tive intent, as ascertained from the conelderation of
the entire statute end its nature, its object, and con-
sequences that would result from both constructions,
should be considered. Sutherland, Statutory Construc-
tion, Section 611, at page 1114; State u. Fox, supra.
Applying these rules of statutory construction
to Section 2 of Art. II of Article 2922-3 above quoted,
we believe that the Leglslature'intended it as a direc-
tory statutory provision with respect to the time of mak-
ing an application for aid for exceptional children con-
taining a tentative budget showing the anticipated ex-
penditures for such special classes. It contains no lan-
guage of prohibition for filing the tentative-budget-
application after the date named in the statute, such as
we find in Section 2 of Article II of H. D. 295, Acts
1947. It Is affirmatively worded. Indeed, the same
provision requires that at a date later than the fixed
Ron. L. A. Woods, page 3 (V-713)
filing date, each school district seeking such a,idshall
make a detailed, accurate financial record of all moneys
paid out by it for maintenance of these classes" in or-
der that it may be reimbursed for the difference in ex-
penditures occasioned in this program. See Section 3 of
Art. II, Article 2922-3.
Clearly, time is not the essence of the thing
or purpose sought to be accomplished in the quoted Sec-
tion 2 of the statute. Section 1 of Art. I of Article
2922-2reads:
"It is the purpose of this Act to pro-
vide competent educational services for the
exceptional children in Texas between and
including the ages of six (6) and seventeen
(17) for whom the regular school facilities
are inadequate or not available."
The manifest reason for the fixing of the time for fll-
ing the tentative budget was for the purpose of securing
the proper, orderly, and prompt conduct ~'1" bi>?:i.-il~ess.
It
is directory with respect to time. Conceivably, it is
designed to enable proper authorities to advise district5?
,?pplgl.ns ,~;ld
cliglble under the Act as to the extent of
reimbursement they may reasonably expect from the appro-
priations made in Section 3 of Article V of ,said law, in
the event said appropriation is not adequate to cover all
applications made.
It is our opinion that you may accept the above
mentioned applications which were filed after September 1.
SUMMARY
Section 2 of Art. II of Article 2922-
3, v. c. s., does not prohibit the Depart-
ment of Education from accepting applica-
tions for aid for exceptional children af-
ter September 1st of the school year. In
this regard the statute is directory and
not mandatory.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
& f Q&y&.&
BY
Chester E. Ollison
CEO:mw Assistant