Untitled Texas Attorney General Opinion

WI& WILSON A-l-rORNEY GENERAI. July 30, 1962 Ron. J. W. Edgar State Commissioner of Education Texas Education Agency Austin, Texas Opinion No. biti-1408 Re: Whether Section 2 of Article 2815k-3 of Vernon's Civil Statutes prohibits use of a junior college district appropriation to defray any costs of students who are in their third and fourth collegiate years, and related questions. Dear Mr. Edgar: We are in receipt of your request for opinion on the above captioned question. Your letter informs us that a junior college district in Texas is contemplating calling an election pursuant to Article 2815k-3 of Vernon's Civil Statutes to au- thorize the governing body of such district to offer and con- duct classes in the third and fourth collegiate years and to award baccalaureate degrees in those fields not specifically prohibited. Article 2815’k-3 states in part as follows: "Section 1. Any junior college district in this State, situated entirely or in part within the boundaries of any city having a population in excess of one hundred sixty thousand (160,000) according to the last preceding decennial Federal Census and having less than two (2) colleges or universities offering baccalaureate degrees within the boundaries of any such city, is herebv author- &&, subject to the other provisions of this Act, to of fe ih b re ir or accented of wtes for baccalaureate decrees ti the fields of liberal arts. buess tr ' bather education and wit during their A%?!%?&& &or Years, and to award such degrees, to the ex- tent that the governing body of any such district shall deem advisable, provided nothing in this Act shall be construed to permit or authorize any jun- ior college district in this State which elects to ’ . Hon. J. W. Edgar, page 2 (~~-1408) take advantage of this Act to award degrees in the fields of engineering law, medicine, agri- culture, journalism, arch1tecture, or pharmacy. Wet. 2. No funds heretofore or hereafter aupronriated by the Legislature of this State for pavment to anv such junior college district shall be used to defrav nv of the costs of teaching or &j nerwise de3fravi.n:the costs of students who are in their thitrd and fourth colleriate Years. Fur- thermore any college made a senior college under the authority of this Act shall be prohibited from receiving state aid for junior and senior level work for twenty (20) years from the date of the passage of this Act. "Sec. 3. The power and authority herein granted shall not apply or be available to any junior college district unless and until the gov- erning board of such district is authorized to pro- ceed under the terms hereof at an election held for such purpose. Such election shall be held in the following manner: the governing board of such dis- trict shall without the prerequisite of the filing of any petition, order an election to be held in such junior college district, such election to be held not less than twenty (20) days nor more than thirty (30) days from the date of said order call- ing such election, and such governing board shall give public notice of such election by publishing notice of such election in a newspaper of general circulation in such district at least once a week for a period of three (3) consecutive weeks be- tween the date of the order calling the election and the date of the election. Onlv those legallv cualified voters who have duly rendered property for taxation in such junior colleeredistrict shall be oermitted to vote. Except as modified herein, such election shall be conducted and canvassed in accordance with the General Laws relative to elec- tions in Independent School Districts. If a maior- itv of the votes cast at uch election favor the exercise of the Dower herzin aranted. and onlv in such event. the governing bodv of such Suni powers and authority prescribed bv this Act. -"The governing board of such junior college district may call the election herein provided for Hon. J. W. Edgar, page 3 (~~-1408) at any time after the effective date of this Act, but if an election is called and held hereunder and the proposition should fail to receive a me.- jority of the votes cast, then no additional election shall be called on such proposition U'I- til at least one year after the date such prior election was held. "Sec. 4. This Act shall be cumulative of all other laws and shall not be construed to limit or affect the classes not being offered or which may be offered and conducted by junior college dis- tricts not subject to the provisions of this Act; nor to limit or affect the classes which may be offered and conducted in addition to those described in Section 1 above by junior college districts which are subject to the provisions of this Act, whether or not they elect to take advantage of this Act. lgSec.5. If anv Section. sentence. clause phrase. or word in this Act or aoulication theriof to anv uerson or circumstance is held invalid. such holding shall not affect the validitv of the remain- 'nn hereb declare it would have oas d s ch emain a D r tions dzsoite such invalid%."U(Em~hasisi~ddedO)- Your first series of questions is stated as follows: "Query 1. Re first sentence (a): Does Section 2 prohibit use of the junior college district appro- priation (see S.B. 1, Acts 57th Leg. 1st C.S. Arti- cle IV, pg. 396, pars. l-a and 2-e) 40 defray any costs of students who are in their third and fourth collegiate years; viz.? to allow proration thereof so as to enable a tuition uniform for each of the four years. "Re second sentence (b): Does the phrase 'junior and senior level,work' in Section 2 mean junior and senior class work or junior college and senior college level work; viz., does Section 2 prohibit State appropriations to a junior college district which votes to and does operate third and fourth collegiate years." Regarding your Query l(a), as we construe Section 2, the Legislature has prohibited any appropriation by it being used toward the costs of conducting any classes or any other expenses relative to those students in their third and fourth Hon. J. W. Edgar, page 4 (wW-1408) collegiate years of the senior college, when created. It follows that if any special or new teachers are employed, or any laboratories or other facilities are needed relative to the third and fourth collegiate years, that no state appro- priation may be used to defray any part of such expenses. From your letter we are apprised that presently there are several junior college districts operating so-called senior college divisions, but that none of them were created pursuant to Article 2815k-3. It would seem that the purpose of a junior college district is to establish and manage a junior college only; however we note from the provisions of Article 2815”~3 that “any junior college district . . . is hereby authorized, subject to the other provisions of this Act to offer and con- duct classes which may be required or accepEed of candidates for baccalaureate degrees . . . during their junior and senior years and to award such degrees. . . .‘I Therefore, if the jun- ior college district, subject to provisions later discussed, adds work for the junior and senior years and awards degrees, the result is a l’collegemade a senior college under the author- ity of this Act.” It follows that in such districts there will be a junior college division and a senior college division. The caption to Article 2815k-3 states in part as fol- lows : “An Act authorizing certain junior college dis- tricts to offer classes to candidates for baccalaur- eate degrees in certain fields during their junior and senior years, and to award degrees in such fields; . . .I, and so when the Legislature in Section 2 speaks of “junior and senior level work,” we interpret that phrase to mean any work undertaken or classes offered during the junior and senior years, i.e., in the senior college division of the district. Section 2 does not prohibit state appropriations to the junior college dis- trict itself, but does prohibit any state aid to defray costs of the senior college division, which conducts junior and senior level work. Your second series of question are as follows: “Where a junior college district pursuant to Article 28l5k-3 elects and acts to come thereunder: “Query 2: (a) Does adoption of the powers granted therein carry with it or vest in its board authority to assess and levy taxes within maximum Hon. J. W. Edgar, page 5 NW-1408) tax limits previously voted by the qualified prop- erty tax paying voters, for the construction of facilities, bond service and maintenance of the college operating also a 'senior division' the third and fourth collegiate years; or "(b) Must or may a new maintenance tax and bond assumption election be held and carry before the district, whose educational functions have been so enlarged, may legally assess and levy taxes for such maintenance, bond servicing purposes, and is- suance of new bonds; or "Cc) Does authority still exist in the dis- trict only to assess and levy taxes for its 'junior division'--first and second collegiate years--col- lege maintenance and building needs previously voted under provisions of Article 2815h-3b." An inspection of the statutes reveals that if the jun- ior college district elects to assume the responsibility of a senior college wfthin the district the status of the district is still the same, and it has all the powers previously confer- red on it. However, we find that the statutes giving the dis- trict power to levy and collect taxes refer to "Junior college purposes," and therefore when this phrase is used, no taxes may be levied for "senior college purposes.3' For instance Section 7 of Article 281511allows the district to issue bonds provide for interest and sinking funds and to levy taxes "for the support and maintenance of the Jun- ior College," and for "Junior College purposes." Section 10 of that statute, Articles 2815h-3a and 281%-3b all contain the same phraseology; consequently none of these statutes gives the district any authority to assess and levy taxes for support of the senior college division. When the Legislature enacted Article 2815k-3, they also enacted Article 2815r-1, which does not in any section re- quire that money realized from the issuance of bonds and notes be used exclusively for junior college purposes. We call your attention to all eleven sections of this Article, but only quote from Section 1, as follows: "The board of regents of any junior college district heretofore or hereafter organized under the laws of the State of Texas are hereby sever- ally authorized and empowered, each for its re- spective institution or institutions, to construct Hon. J. W. Edgar, page 6 NW-1408) acauire and eouin on behalf of such institution, buildings and other structures and additions to existinG buildings and other structures and ac- ouire land for said additions. buildings and other structures in any manner authorized by law. in- cludinn the power of eminent domain exercised in the manner orescribed for anv indenendent school district if deemed appropriate by said governing body. &id constructions. au'uning and acauisi- tion mav be accomwlished inewh&e or in Dart with proceeds of loans obtained from anv orivate or nub- lit source. The said governine boards are alsp severallv . . .authorized . to enter into contracts .with . ies and s& 1 districts for the loin< construction of said f%litia.&81 (Emphasis added) We answer your second group of questions accordingly: Authority is still vested in the junior college district to assess and levy taxes for junior college purposes only or for the "junior college division" under Articles 2815h et seq. The said district has no authority to assess and levy Eaxes for sup- port and maintenance of its senior college division, but may obtain loans, enter into contracts, issue its bonds and notes, pledge its fees or make use of any other proceeding authorized by Article 2815r-1. If the district contains a city of not less than two hundred twenty-five thousand (225,000) population, it may receive donations of cash pursuant to Article 2815i. Your questions continue as follows: "In short, in connection with taxation ques- tions raised in auery 2, what is the legal effect of that sentence in Section 3 reading: Only those legally qualified voters who have duly rendered property for taxation in such junior college dis- trict shall be permitted to vote. Is such sentence consonant with or in violation of Article VI, Sec- tion 2, Constitution of Texas; and if in violation may the problem be resolved in a manner decided in King v. Carlton I.S.D., 295 S.W.2d 408 (Tex.Sup. 1956). See also Section 3 of Article 2784e-1, as amended following King v. Carlton, supra." Section 2 of Article VI of the Constitution of Texas states in part as follows: "Every person subject to none of the foregoing disqualifications who shall have attained the age . ’ Hon. J. W. Edgar, page 7 (W-1408) of twenty-one (21) years and who shall be a citizen of the United States and who shall have resided in this State one (1) year next preceding an election and the last six (6) months within the district or county in which such person offers to vote, shall be deemed a qualified elector; and provided further, that any voter who is subject to pay a poll tax un- der the laws of the State of Texas shall have paid said tax before offering to vote in any election in this State and hold a receipt showing that said poll tax was paid before the first day of February next preceding such election. . . .I' We also call your attention to section 3a of Article VI of the Constitution, reading as follows: "When an election is held by any county, or any number of counties, or any political subdivision of the State, or any political sub-division of a county, or any defined district now or hereafter to be de- scribed and defined within the State and which may or may not include towns villages or municipal cor- porations, or any city, Eown or village, for the puroose of issuie credit, or exoendins m onev or assumlne:anv debt. onlv au *_ fied electors who own taxable arouertv in the State, Four&v. nolitical sub-division, district. citv. town g village where such election is held. and who have dkv rendered the same for taxation. shall be auaa fied to vote and all electors shall vote in the elec- tion orecinct of tmresidence.lr An identical situation, which may prevail if Article 281.%-3 is to be complied with, was presented to the Court in inR . Car 0 deuendent School District; 156 Tex. 365, 295 kw.2: 408 ;;9;65: In that case an electio; to adout the pro- visions of Article 2784e-1 was in question. Article 2784e-1 required that for the $dootion election only "property taxpay- ing qualified voters of such district, whose property has been duly rendered for taxation, shall be entitled to vote." In the course of the opinion Chief Justice Hickman stated at page 412: "Any qualified elector) as defined by that Ar- ticle, is entitled to vote in any election other than one for which additional qualifications are prescribed by some other provision of the Constitu- tion. The Legislature was not authorized to pre- scribe any other standard for voters at the adoption Hon. J. W. Edgar, page 8 ON-14081 election than that of qualified electors as de- fined by Article VI Section 2. More speci- fically stated,the legislature wis'not authorized to limit the voters at the adoption election to 'qualified voters of such district who own prop- erty which has been duly rendered for taxation on the tax rolls of the county for that purpose.' All of the language just quoted following the words 'qualified voters of such district' is in conflict with the provisions of Article VI, Section 2, of the Constitution, and should therefore be stricken from the &tt;" We therefore advise you that the voting qualifications contained in Section 3 of Article 2815k-3 are in violation of Section 2 of Article VI of the Constitution. Since Section 5 of Article 2815k-3 provides a savings clause, it follows that "When the invalid provision is stricken, the Act is made workable, leaving the question of the adoption of the Act to be determined by an election at which ' ualified 1 9 Tex. electors' shall participate. Jordan v. Crudgington, a. 237, 231 S.W.2d 641.” (Emphasis added) Kina v. Carlton, sunra. You are advised that the proposition of whether or not the residents of the junior college district adopt the provi- sions of Article 2815k-3 should be submitted only to the quali- fied voters under Section 2 of Article VI of the Constitution of Texas. King v. Carlton Independent School District, sunra. SUMMARY 1. Section 2 of Article 2815k-3 prohibits the use of junior college appropriations to defray costs of teaching of students in the senior division or any other expenses of such division in a junior college district. 'IJuniorand senior level work" means any work undertaken by students in classes offered in the senior college division of the district. 2. '2neadoption of Article 2815k-3 does not carry with it or vest in the governing body authority to as:ess and levy taxes for the senior college divi- sion. The district's authority to obtain money in this regard is limited to Article 2815r-1, et seq. The district still has authority to assess and levy taxes for its junior college division pursuant to Article 2815'h,or accept donations if the provisions of Article 28151 apply to it. . - Bon. J. W. Edgar, page 9 (~~-1.488) 3. Section 3 of Article 2815k-3 is unconstitu- tional and in order to validly adopt the remaining provisions of such Act, the question of adoption should be presented only to those voters qualified under Section 2 of Article VI of the Constitution of Texas. Yours very truly, Will Wilson r2w7q Fred D. Ward FDW:wb Assistant APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Tom McFarling Frank R. Booth Joe Osborn Bob Shannon REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore