THE ATTOIZSEY GENERAI.
OF TEXAS
March 29, 1990
Mr. Kenneth S. Ashworth Opinion No. JM-1153
Executive Director
Texas Higher Education Re: Constitutionality of legis-
Coordinating Board lation creating Central Texas
P. 0. Box 12788 University (RQ-1861)
Austin, Texas 78711
Dear Mr. Ashworth:
You ask about the constitutionality of a bill that
would, if certain conditions are met, create a four-year
institution of higher education in Killeen to be known as
Central Texas University. Acts 1989, 71st Leg., ch. 1255,
at 5058 (new Educ. Code ch. 113) gmended bv Acts 1989, 71st
Leg., 1st C.S., ch. 37, at 104. You suggest that the
creation of Central Texas University under that statute
would violate article VII, section 17, of the Texas
Constitution because the legislation was not adopted
pursuant to a two-thirds vote of each house of the
legislature.1 We conclude that your argument is based on a
misreading of article VII, section 17.
In November 1984 the voters approved a constitutional
amendment that dealt mainly with funding for higher
education. H.J.R. 19, Acts 1983, 68th Leg., at 6701. The
amendment added article VII, section 17,2 which created the
Higher Education Assistance Fund, a funding mechanism for
1. House Bill 2853, which became chapter 113 of the
Education Code, was passed by the House of Representatives
on May 1, 1989, by a voice vote and by the Senate on May 23,
1989, by a vote of 23 yeas and 8 nays. H. J. of Tex., 71st
Leg., Reg. Sess. 1241 (1989); S. J. of Tex., 71st Leg., Reg.
Sess. 1866 (1989).
2. The previous article VII, section 17, was repealed
on Nov. 2, 1982, as proposed by H.J.R. 1, § 3, Acts 1982,
67th Leg., 2d C.S., at 52.
Mr. H. M. Daugherty, Jr. - Page 2 (JM-1153)
institutions of higher education that are not included in
the University of Texale;;ioexas A&M Systems. It also
revised article VII, to restructure the
Permanent University Fund. See Public Notice,
Proposed Constitutional Amendments, November 6, 1984.
you suggest that the creation of Central Texas
University in accordance with chapter 113 of the Education
Code would violate subsection (c) of article VII, section
17. Article VII, section 17, provides in part:
(a) In the fiscal year beginning September
1, 1985, and each fiscal year thereafter,
there is hereby appropriated out of the first
money coming into the state treasury not
otherwise appropriated by the constitution
(b) The funds appropriated under
Subsection (a) of this section Shall be fey
eliaible aaencies
of hiaher education (even
though their naies may be changed):
[List of 26 state universities]
(c) ,pursuant to a two-thirds vote of the
iw of each house of the leaislature,
institutions of hiaher education mav be
created at a later date bv aeneral law. and,
Yhen created, such. an
. institution shall be
entitled to warticiwate in the fundinq
provided bv this section if it is not created
as a wart of The Universitv of Texas SY stem
or The Texas A&M Universitv Svstem. An
&nstitution that is entitled to warticiwate
n dedicated fundina wrovided bv Article VII,
Section 18. f this constitution m v not be
sntltled too wart iciwate in thea fundinq
provided bv this section.
(d) In the year 1985 and every 10 years
thereafter, the legislature or an agency
designated by the legislature no later than
August 31 of such year shall allocate by
equitable formula the annual appropriations
made under Subsection (a) of this section to
Mr. H. M. Daugherty, Jr. - Page 3 (JM-1153)
the governing boards of &&g,.ible aaencies and
. (Emphasis
added.)
You read subsection (c) as disallowing the creation of any
state university except by a two-thirds vote of each house
of the legislature. We think, however, that the context and
history of article VII, section 17, indicate that subsection
(c) is not an absolute limitation on the power of the
legislature to create institutions of higher education, but
rather is an eligibility standard for participation in the
fund established by article VII, section 17. See aenerallv
Attorney General Opinion V-31 (1947) (holding that under
article III, section 48, of the constitution the legislature
has power to provide for institutions of higher education
not mandated by article VII).
The general subject matter of article VII, section 17,
is the Higher Education Assistance Fund. See aenerally
Attorney General Opinion JM-999 (1988). Subsection (a)
creates the fund: subsection (b) lists the existing
institutions eligible to participate in the fund; and
subsection (d) deals with the allocation of the fund among
eligible institutions. In that context, it makes sense to
read subsection (c) as setting an eligibility standard for
participation in the fund by newly created institutions of
higher education. &S Bradv V. rooks , 89 S.W. 1052 (Tex.
1905) (constitution should be construed as understood by
average voter).
Also, any voter who actually read House Joint
Resolution 19 would have read the provisions governing the
Higher Education Assistance Fund in conjunction with the
proposed revision of article VII, section 18. The proposed
revision of article VII, section 18, contained the following
language as subsection (c):
Pursuant to a two-thirds vote of the
membership of each house of the legislature,
institutions of higher edudation may be
created at a later date as part of The
University of Texas System or The Texas A&M
University System by general law, and, when
created, such an institution shall be
entitled to participate in the funding
provided by this section [the Permanent
University Fund] for the system in which it
is created. An institution that is entitled
P. 6089
Mr. H. M. Daugherty, Jr. - Page 4 (JM-1153)
to participate in dedicated funding provt;;:
by Article VII, Section 17, of
constitution not be entitled to
participate in % funding provided by this
ssction.
Subsection (c) of article VII, section 18, is less ambiguous
than subsection (c) of article VII, section 17: the former
clearly sets an eligibility standard for access to the
Permanent University Fund. The fact that the subsections
regarding eligibility for the respective funds appear in
corresponding positions in sections 17 and 18 of article VII
indicates that the provisions were intended to have
equivalent effect. More important, we think that voters
reading the entire text of House Joint Resolution 19 would
likely have interpreted the two subsections (c) as having
equivalent effect.
The legislative history of article VII, section 17,
supports the view that subsection (c) sets a standard for
eligibility to participate in the fund. The two houses of
the legislature, being unable to agree on various points in
the amendment to be offered to the electorate, appointed a
conference committee to resolve their differences. The
conference committee, which ultimately produced. the
amendment, issued a report analyzing the house version, the
senate version, and its own version of the proposed
amendment. In the report, the conference committee combined
subsection (c) with subsection (b) under the heading
"Eligible Institutions." The entry under that heading is
nThe 26 agencies and institutions listed [in subg;ztiz: (b)]
and any created at a later date with 2/3 the
legislature." Conference Comm. Rep., H.J.R. 19, 68th Leg.
(1983).
The Texas Legislative Council, which publishes reports
on proposed constitutional amendments, described the
amendment as dedicating general revenue funds to be used for
certain purposes by the agencies and institutions listed in
subsection (b). Tex. Leg. Council Info. Rep. No. 84-l:
Analyses of Proposed Constitutional Amendment Appearing on
the November 6, 1984, Ballot (Aug. i984). The report went
on to state:
The legislature may add to the list of
institutions by a two-thirds vote of the
membership, except that institutions within
The University of Texas System or The Texas
A&M System may not be added.
D. 6090
Mr. H. M. Daugherty, Jr. - Page 5 (JM-1153)
Neither the description on the ballot nor the
explanatory statement prepared by the secretary of state in
regard to House Joint Resolution 19 contained any reference
to the provision in question. sns: H.J.R. 19, 5 4, Acts
1983, 68th Leg., at 6712 (ballot description); Public
Notice, Proposed Constitutional Amendments, November 6,
1984. The omission of any such reference supports the view
that subsection (c) was not a significant new restriction on
the authority of the legislature, but rather a restriction
on eligibility for the newly created fund.
Considering the text and the context of the
constitutional amendment in question, and also the
explanatory information available to voters, we do not think
that voters would have interpreted House Joint Resolution 19
as restricting the legislature from creating an institution
of higher education that would not have access to the funds
created by article VII of the constitution.
SUMMARY
Article VII, section 17, of the Texas
Constitution does not prohibit the creation
of Central Texas University in accordance
with new chapter 113 of the,Education Code,
as enacted by the 71st Legislature in the
Regular and First Called Sessions.
JIM MATTOX -
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 6091