De Leon v. Harlingen Consol. Independent School Dist.

• Decision Date: 09 June 1977
• Docket Number: No. 1177,1177
• Citation: 552 S.W.2d 922
• Parties: Alicia DE LEON, Adriana Castillo, and Olga Garza, Appellants/Cross-Appellees, v. HARLINGEN CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Appellee/Cross-Appellant.
• Court: Texas Court of Appeals

Page 922

552 S.W.2d 922

Alicia DE LEON, Adriana Castillo, and Olga Garza Appellants/Cross-Appellees, v. HARLINGEN CONSOLIDATED INDEPENDENT SCHOOL DISTRICT Appellee/Cross-Appellant.

No. 1177.

Court of Civil Appeals of Texas, Corpus Christi.

June 9, 1977

Rehearing Denied June 30, 1977.

James A. Herrmann, Texas Rural Legal Aid, Inc., Harlingen, for appellants/cross-appellees.

Orrin W. Johnson, Johnson & Davis, Harlingen, for appellee/cross-appellant.

OPINION

BISSETT, Justice.

This is a school admissions case. The minors, Olga Garza, Adriana Castillo, and Alicia de Leon, by and through their next friends, filed suit in the 197th District Court of Cameron County, Texas, against the Harlingen Independent School District, hereinafter referred to as the "District," seeking to permanently enjoin the District from refusing to enroll them as tuition-free students.

The District answered with a plea to the jurisdiction and a general denial. It was asserted in the plea to the jurisdiction that the trial court did not have any jurisdiction to hear and determine the issues presented by plaintiffs' petition because plaintiffs failed to exhaust their administrative remedies before filing suit. Temporary restraining orders were issued by the trial court which restrained the District from refusing to admit the plaintiffs as tuition free students. The trial court later dissolved the temporary restraining orders previously issued in favor of Alicia de Leon and Adriana Castillo, subject, however, to a stay of time pending appeal, and denied their applications for temporary injunction. The trial court also overruled the District's plea to the jurisdiction, and further converted the temporary restraining order theretofore granted Olga against the District into a temporary injunction, pending final hearing of the cause. Alicia de Leon, Adriana Castillo and the District have perfected appeals to this Court from those portions of the judgment which were adverse to them.

Two questions are presented by this appeal. The first is whether the interpretation and application of Tex.Educ.Code Ann. § 21.031 (Supp.1976), to the plaintiffs by the District is constitutionally permissible. The second is whether the plaintiffs were required to first exhaust their administrative appeals before filing suit against the District to compel the District to enroll them as students in its school system.

It was the policy of the District to admit tuition-free only those students who: 1) resided with their parents within the District; or 2) resided with a legally-appointed guardian within the District; or 3) resided with a person within the District who had lawful control over the prospective student pursuant to orders of the juvenile court or a child welfare agency. In determining the question of whether the applicant was entitled to tuition-free education, initially, the school admissions officer decided whether the child was a bona fide resident of the District, or whether the residence in the District was "ostensibly purely for the purpose of going to school." Each individual case was decided strictly on the particular facts pertaining to the "residence" of the applicant. It was the further policy of the District for anyone who was dissatisfied with the decision of its admissions officer to provide for an appeal to the Superintendent of Schools and then to the Board of Trustees of the District.

It is conclusively established by the record that at the time applications were made, the three children lived in the District, but that their parents resided elsewhere. Olga's mother resided in Houston, and her father was a patient in a state hospital which was situated outside the boundaries of the District; she resided with her grandfather, who was a bona fide resident of the District. Alicia's parents resided in Matamoros, Mexico; she lived with her aunt, who was a bona fide resident of the District. Adriana's parents resided in Reynosa, Mexico; she lived with her uncle, who was a bona fide resident of the District. None of the children had legally-appointed guardians who resided in the District. There is no evidence that the relative with whom each child lived had lawful control of the particular child at the time in question.

Tex.Educ.Code Ann. § 21.031 (Supp.1976) reads:

"(a) All children who are citizens of the United States or legally admitted aliens and who are over the age of five years and under the age of 21 years on the first day of September of any scholastic year shall be entitled to the benefits of the Available School Fund for that year.

(b) Every child in this state who is a citizen of the United States or a legally admitted alien and who is over the age of five years and not over the age of 21 years on the first day of September of the year in which admission is sought shall be permitted to attend the public free schools of the district in which he resides or in which his parent, guardian, or the person having lawful control of him resides at the time he applies for admission.

(c) The board of trustees of any public free school district of this state shall admit into the public free schools of the district free of tuition all persons who are either citizens of the United States or legally admitted aliens and who are over five and not over 21 years of age at the beginning of the scholastic year if such person or his parent, guardian or person having lawful control resides within the school district."

Under existing law in this State, except under extraordinary circumstances, the residence of a minor child is that of his parents. While we recognize that there are some situations whereby a minor child may acquire a residence separate and apart from that of his parents which will entitle him to a tuition-free education, we do not think that a residence for free education is established by the mere presence of the child in another district for the sole purpose of attending school. There must be other cogent reasons. Such, in effect, was one of the holdings of this Court in Brownsville Independent School District v. Gamboa, 498 S.W.2d 448 (Tex.Civ.App. Corpus Christi 1973, writ ref'd n. r. e.).

The Attorney General of Texas has taken the position that the sending of a child from one school district to another for the sole purpose of participating in the advantages offered by that school district is not sufficient for the furnishing of tuition-free education. Tex.Atty.Gen.Op.Nos. 0-586 (1939), H-63 (1973). It was clearly set out in those opinions that the residence of a child for the purpose of determining his eligibility for free public education under the statute (Sec. 21.031 of the Code) is normally that of his parents, and whether residence elsewhere will qualify the minor to tuition-free education will depend upon whether the residence is bona fide or is merely for the sole purpose of attending a different school.

The state has a legitimate interest in protecting and preserving the quality of education within its school system. See generally Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 31 L.Ed.2d 274 (1962). This includes the setting of reasonable residency or status requirements to insure that those who come within the bounds of that district solely for educational purposes cannot take advantage of the lesser tuition rates. Vlandis v. Kline, 412 U.S. 441, 452-3, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). The variability of student population is a serious impediment to the effective planning of virtually all phases of the educational process. There is no justification for a requirement that a school system educate in tuition-free manner those children whose only indicia of residence is mere presence within the district, accompanied by the student's desire (or that of his parents) to attend school therein. It is reasonable to draw the line of residency, at least for school admission purposes, between those who come within a school district because they had to move into the district for some valid reason other than for educational purposes, and those who have come there for the sole purpose of getting tuition-free education within the district. There is no reason to add to the burdens of a school district by freely admitting to its schools anyone who has previously resided outside the district simply because they want to attend the schools in the district.

The evidence reveals that the District does admit all students to its schools who are bona fide residents of the District, and that its admissions policies and practices are applied uniformly and without discrimination. The evidence further shows that the District has attempted to follow the mandate of Section 21.031 of the Texas Education Code, as well as the guidelines set out in the opinions of the Attorney General.

Alicia and Adriana each assert that the word "reside," as used in Section 21.031 of the Texas Education Code, means merely that the child must be living in the District on the day application for enrollment is made. The word "reside" is not defined in the Code, and, therefore, its meaning must be determined by considering the object and purpose of the statute in which the word is employed. Prince v. Inman, 280 S.W.2d 779, 781-2 (Tex.Civ.App. Beaumont 1955, no writ); Switzerland Gen. Ins. Co. v. Gulf Ins. Co., 213 S.W.2d 161 (Tex.Civ.App. Dallas 1948, writ ref'd n. r. e.); 77 C.J.S. Residence p. 290 (1952).

The word "reside," as used in the statute, can only be given the meaning ascribed by the Attorney General....