December 9, 1952
Hon. J. W. Edgar Opinion No. V-1544
Commissioner of Education
Texas Education Agency Be: Authority of the Commis-
Austin, Texas sioner of Education to
conduct appellate review
in disputes involving
Dear Sir: junior college districts.
In your request for an opinion from this office
you ask:
"Does the Commissioner of Education
have jurisdiction to hear appeals from
decisions of the governing boards of
junior colleges?"
Section 4 of Article 28l5h, V.C.S., the junior
college district law, provides in part as follows:
11
. . 0 The said board of education of
such junior college.distri&t, under the pro-
visions of this Act, shall in addition to
all of the powers and duties .vested in them
by the terms of this Act, be furthermore
vested with all the rights; powers, privileges,
and duties conferred and imposea upon trustees
of independent school districts by the General
Laws of this State, so far as the same may be
applicable thereto and not inconsistent with
this Act."
Section 5 of Article 2815h, V.C.S., reads as
follows:
"The Board of Trustees'of Junior Col-
lege Districts shall be governed in the
,establishment,management and control of
the Junior College by the General Law govern-
ing the ,establishment,management and control
of Independent School District; in so far as
the General Law is applicable.
‘._
Hon. J. W. Edgar, page 2 (V-1544)
Section 1 of Article 2654-5, V.C.S., one of
the Cilmer-Aikin laws which created the Texas Central
Education Agency, provides in part as follows:
?fhere is hereby established the posi-
tion of State Commissioner of Education. All
powers and duties heretofore vested in the
State Superintendent of Public 'Instruction
shall be discharged by the Commissioner, pro-
vided said powers and duties are not in con-
flict with the provisions of this Act. O . *'
Article 2656, V.C.S., provides in part:
?l%e State Superintendent shall be
charged with the administration of the school
laws and a general superintendency of the
business relating to the public schools of
the State, and he shall have printed for
general ~distributionsuch number of copies of
school laws as the State Board of Education
may determine. He shall hear and determine
all appeals from the rulings and decisions
of subordinate school officers, and all such
officers and teachers shall conform to his
decisions. Appeal shall always be from his
rulings to the State Board."
Section 1 of Article 2654-7, V.C.S., reads as
follows~
"Parties having any matter of dispute
among~them arising under provisions of the
school laws of Texas, or any person or
parties aggrieved by the actions or deci-
sions of any Board of Trustees or Board of
Education, may appeal in writing to the Com-
missioner of Education who, after due notice
to the parties interested, shall examine in
a hearing and render a judgment without cost
to the parties involved. However, nothing
contained in this Section shall deprive any
party of a legal remedy."
Section 2 of Article 2654-1, V.C.S., provides:
"The Central Education Agency shall
exercise, under the Acts of the Legisla-
ture, general control of the system of public
Hon. J. W. Edgar, page 3 (V-1544)
education at the State level.
with persons under twentv-one (21
"7 vears of
activity
age, which is carried on-within.the"State by
other State or Federal Agencies, exce t hi h-
er education in approved colleges,-5iih%+
its educational asuects be subject to the
rules -and regulations of the C&tral Educa-
tion Agency. (Emphasis added.),
Prior to.the enactment of Article 2654-7,
Article 2656 had been construed as making an appeal to
the school authorit1es.a condition precedent to a
right of any party complaining of the decision of a
oublic school board to bring the matter in controversv
berore the courts. Trustees of Chilicothe ,Independent
School Dist.,v. Dudney 142 S W 1007 (Tex.Civ.App.
1911); Warren v0 Sange: Indeplndent School Dist,, 116
Tex. 183 288 S.W. 1 9 (1926)*'Huntington Independent
School Dist, v. Scro~ains. 9 i.'W,2d171 (Tex.Civ.ADv.
. However,.I meen
92tsl impliedly held that the
governing bodies of institutions of higher learning were
not within the term "subordinate school officers',' in
Article 2656 and an appeal from their decisions could
be taken directly to the courts. Foley v. Benedict, 122
Tex. 193, 55 S.W.2d 805 (1932). In Williams v. White,
223 S.W.2d 278, 281 (Tex.Civ.App. 1949 error ref.)
the court held that junior colleges art institution:
of higher learning and are not part of the public free
school system, saying:
"Appellant suggests that the provision
relating to the formation of districts em-
bracing 'parts of two or more counties' was
adopted in 1909 to meet the decision of the
Supreme Court in Parks v. West, 102 Tex. 11,
111 S.W. 726; Id., Tex.Civ.App., 113 S.W.
529, wherein it was held that the Legisla-
ture, under the Constitution as it then ex-
isted, could not create a district embracing
territory lying in more than one county. We
think this is correct, but the Constitution
seems to make a distinction between the public
free schools (the first seven sections of
Article 7 of the Constitution) and other types
of educational institutions such as colleges
and universities which are above the hdgh ~._
school level of difficulty and generally
referred to as institutions of higher learning.
This distinction seems to have been recognized
Hon. J. W. Edgar, page 4 (V-1544)
by the legislative and executive branches of
our government as pointed out and discussed
by Chief Justice Cureton in the case of
Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31.
We regard the case cited as authority for the
proposition that the asserted limitation of
Article, 7 8 3, of the Constitution is not
applicable to junior colleges."
It would follow from this holding that appellate juris-
diction of the State Superintendent of Public Instruc-
tion under Article 2656 did not extend to rulings of
junior college governing boards.
There has not been a judicial determination of
whether Article 2654-7 has changed the former rule under
Article 2656 so as to give an aggrieved party a chocie
of appealing to the Commissioner of Education or of ap-
pealing directly to a court. Be that as it may, we are
of the opinion that neither Article 2654-T nor any other
statutory provision has increased the Commissioner's
jurisdiction to include review of decisions of governing
bodies of junior colleges. In our opinion, the appellate
jurisdiction conferred in Article 2654-7 is substantially
the same as that theretofore vested in the State Superin-
tendent under Article 2656 and is limited to disputes
and controversies in matters over which he has general
administrative control. While the Commissioner of Educa-
tion and the Central Education Agency, of which he is
a part, perform certain specific duties with respect to
publicly supported junior colleges, they have no general
jurisdiction or supervision over activities of junior
colleges as they have over the activities of the public
free schools. This lack of general jurisdiction over
institutions of higher learning is recognized in Section
2 of Article 2654-1, which expressly excepts their
activities from the Central Education Agency's general
control of education activities affecting persons under
21 years old. Therefore, it is our opinion that the
Commissioner ofEducation does not have jurisdiction to
hear appeals from the decisions of the governing boards
of junior colleges,
Hon. J. W. Edgar, Page 5 (V-1544)
SUMMARY
The Commissioner of Educqtion has no
jurisdiction to hear appeals from the deal-
sions of the governing boards of junior
colleges.
Yours very truly,
APPROVED: PRICB DANIEL
Attorney General
J. C. Davis, Jr.
County Affairs Division
Mary Kate Wall
Reviewing Assistant m&e+
Assistant
Charles D. Mathews
First Assistant
BA:am