The opinion
.
December 10, 1962
Honorable 0. P. Carillo Opinion No. WW-1490
County Attorney
Duval County Re: Whether Article 2900a,
San Diego, Texas Vernon's Civil Statutes,
violate8 the provisions
of the Texas or United
Dear Mr. Carillo: States Constitutions.
You have requested an opinion from this office upon
the question of:
"Does Article 2900a of the Revised
Civil Statutes of Texas violate the pro-
visions of the Constitution of the State
of Texas, or the Constitution of the United
States of America?"
Article 29COa, Vernon's Civil Statutes, provides
as follows:
"Section 1. That no board of trustees
nor any other school authority shall have
the right to abolish the dual public school
system nor to abolish arrangements for trans-
fer out of the district for students of any
minority race, unless by a prior vote of the
qualified electors residing in such district
the dual school system therein is abolished.
"Sec. 2. An election for such purpose
shall be called only upon a petition signed
by at least twenty per cent (20%) of the
qualified electors residing In such district.
Such petition shall be presented to such of-
fice or board now authorized to call school
elections. Such an election may be set for
the same date as the school trustee election
in that district, If such petition is filed
within ninety (90) day8 to such date, other-
wise the official or board shall call such
an election within sixty (60) days after fll-
ing of such petition. The election shall be
conducted in a manner similar to that for the
Hon. 0. P. Carillo, page 2 (Ww-1490)
election Of School trLX3tees. No subsequent
eleOtiOn on such issues Shall be called wlth-
In two (2) year8 of a prior election held
hereunder.
"Sec. 3. School districts which maln-
talned Integrated schools $or the 1956-1957
school year shall be permitted to continue
doing so hereafter unless such system is
abolished In accordance with the provisions
of this Act. No student shall be denied
transfer from one school to another because
of race or color.
"Sec. 4. Any school district wherein
the board of trustees Shall violate any of
the above provisions shall be ineligible for
accreditation and lnellglble to receive any
Foundation Program Funds during the period
of time of such violation. Any person who
violates any provision hereof shall be guilty
of a misdemeanor and shall be fined not less
than One Hundred Dollars ($100) nor more than
One Thousand Dollars ($l,OOO)."
Since the deci&ion of the United States Su reme Court
in Brown v. Board of Education, 347 U.S. 483 (195E ). which
held that 1n the field of public education the doctrine of
"separate but equal" was no longer applicable, there have
been numerous case8 before the Federal courts concerning the
implementation of the desegregation required of the public
SChOOlS by the Supreme Court in its decision in Brown v.
One of such cases is Boson v.
n which the United State8 Court
had before it an appeal in
an action Seeking to end enforced racial segregation in the
public SOhOOlS of the Dallas Independent School District. In
conformity with certain orders of the District Court the
school authorities had submitted to the Court certain plans
for effectuating a transition to a racially non-discriminatory
School System. One of these plans, in the Word8 of the Court
in Boson v. Rippy, eupra, provided for:
!I the separating and grouping of
the school; into white, Negro and mixed
SChoolS, and for canvassing parents and pu-
pils in order to learn 'who does and who does
not want integration, and thereby give all
concerned what they prefer, as far as is
Hon. 0. P. Carlllo, page 3 @W-1490)
practical and pO88ible.'"
The District Court, in Boson v. :Rippy, au ra express-
ed the opinion that the holding of an election-+F
un er Article
2900a should not be made a condition of a plan of desegrega-
tion, and eliminated from the plans for desegregation submit-
ted by the school authorities those provisions which made an
election and a favorable result a part of the plan of de-
segregation. In its opinion in BOSOn v. Rippe, supra, the
United States Court of Appeals held that~:
~.
"We agree with the district court that
the holding of an election under Article
2gOOa of the Revised Civil Statutes of Texas
should not be made a condition of a plan of
desegregation. It goes without saying that
recognition and enforcement of constitution-
al rights cannot be made contingent upon the
result of any election." (Emphasis added).
In view of the above quoted language in the case of
Boson v. Rippy au ra, we are of the opinion that Article
2gooa Is unconst
' *onal.
SUMMARY
Article 2qOOa, Vernon's Civil
Statutes, requiring an election
prior to the abolishment of a
dual public school system within
a school district, is unconstitu-
tional. Brown v. Board of Educa-
tion, 347 U S 483 (1954) B
V.ppy, 2&'Fed.2d 43 (&%$?
Yours very truly,
WILL WILSON
Pat Bailey
PB&JR:wb:ms John Reeves
Hon. 0. P. Carillo, page 4 (WW-14%))
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Howard Mays
W. 0. Shultz
Ben Harrison
REVIEWED FOR THE ATTGRNEl GENERAL
By: Leonard Passmore