Hon. James E. Taylor, Chairman
Senate Finance Committee
51st Legislature
Austin, Texas Opinion No. V-818.
Re: Authority of Board of
Regents of The Univer-
sity of Texas to use
the "Available Univer-
sity Fund" for perma-
nent impr9vements for
the School of Dentist-
ry or the AK.B. Ander-
aon Hospital, both lo-
cated at Houston.
Dear Sir:
We refer to your request for an opinion on
the following question:
"Does the Board of Regents of The Uni-
qersity of Texas have the authority to'use
'any portion of the,.*available University
funds' for the purpose of erecting buildings
or other improvements or for the support and
maintenance of either the School of Dentist-
ry of The University,of Texas or the M, Do
Anderson Hospital for Cancer Research of The
University of Texas, both of which institu-
tions are located in Houston, Harris County,
Texas?"
As early as 1917, when two statutory schools
(West Texas A. & M. College and North Texas Agricultural
College) were proposed, the Attorney General was asked
for an opinion on the constitutionality of their es-
tablishment at places other than Austin or Bryan. The
problem involved the question of whether the Legislature
had the power to establish institutions of higher learn-
ing in anx manner other than as provided in Article VII
of the Texas Constitution. In the opinion written by
Hon. James E. Taylor, Page 2 (V-818.)
Luther Nickels, who later served as a Commissioner to
the Texas Supreme Court, it was held that the Legisla-
ture was authorized under Section 48 of Article III to
establish other colleges and universities and support
then out of the general revenue. It also pointed out
that such statutory universities would not be consti-
tutional branches of The University of Texas within
the meaning of Article VII, Texas Constitution. See
excerpts of opinion copies in V-31 attached hereto.
Again in 1928, the Attorney General was asked
to determine whether the School of Mines and Metallurgy
.was a branch of The University of Texas within the in-
tendment of Article VII, Texas Fonstitution, and if so
whether money could be appropriated out of the general
fund to be used for the erection of buildings at El Paso.
The statutes provided (and still provide) that the
School of Mines *shall be under the management and con-
trol of the Board of Regents of the State University,
and the faoultv of said school shall be aooointed bv the
Board of Regents of The University of Tex& aha
the same is hereby made and constituted a br&h’onhe,
State Universit~‘~or instruation in the arts of mining
0 0 0” Art.~ 2433, V.C.S.
In the opinion written by D. A. Simmons, then
First Assistant Attorney General, and recently President
of the Ameriaan Ear Association, it was held that:
“In our opinion, the School of Mines and
bletallurgy is not a bradbh of The University
of Texas, as the term ‘branch9 is used in the
Constitution of Texas,. The history of the
University as briefly outlined herein, shows
very clearly that the power is not given to
the Legislature to create branches of the
University wherever it might see fit 0 0 0n
Itwas further held that the Legislature had
full authority to establish a School of Mines and Metal-
lurgy at El Pas3 under authority of Article 111,‘Section
48, including ereotion of buildings with general reventie
funds. Excerpts from that opinion (Opinion No. 2731 to
Hon. Adrian Pool dated April-18, 1928) are ,quotea in
v-31.
In Mumme v. Marrs, 120 Tex, 383, 40 S.W. 26 31
(1931), Chief Justice Cureton of the Supreme Court wrote
Hon. James E. Taylor, Page 3 (V-818.)
that Section 5 of Article VII, Texas Constitution, de-
fining the Available School Fund, and declaring that *it
shall be distributed to the several counties according
to their scholastic population," was not a limitation
which prevented the distribution of an appropriation
from the general reventie for school districts in accord-
ance with the Rural Aid Aot. In arriving at such con-
clusian, Chief Justice Cureton said:
*The history of educational legislation
in,this State shows that the provisions of Ar-
tide VII, the educational artiole of the Con-
stitutian, have never been regarded as limita-
tions by implication on the general power of
the Legislature to pass laws upon the subject
of education. This article alsoloses a well-
considered purpose on the part of those who
framed it to bring about the establishment and
maintenance of a'comprehensive system of pub-
lic education, consisting of a general public
free school system and a system of higher edu-
cation. Three institutions of higher learninq
were expressly provided for.... The Legisla-
ture, however, has gone far beyond the crea-
tion of the three institutions of higher learn-
ing specifically required by the organic law,
and has created ten additional institutions of
a similar character without direat oonstitu-
tional grant, beginning with the Sam Hbuston
Normal in Huntsville in 1879 o . o O In found-
ing these ten institutions, beginning.more than
fifty years ago, the Legislature has necessarily
held that the specific grants of power con-
tained in the Constitution to erect and main-
tain The University of Texas O O s were not
limitations on its power to create other
schools of similar purpose, and to maintain
them by appropriations from the General Reve-
nue. This interpretation has never been ques-
tioned. and is consistent with authorities from
other jurisdictions. e O On (UnderSCOring ourS,'l
The three institutions of higher learning ex-
pressly provided for and specifically required by con-
stitutional law, as referred to in Chief Justioe Cure-
tonOs opinion, are the constitutional branches of The
University of Texas: the Main University at Austin, the
Medical Department at Galveston, and the Agricultural
and Mechanical College at Bryan.
Hon. James E. Taylor, Page 4 (V-818.)
It will be noted that the School of Mines and
Metallurgy, a college whioh is designated a "branch" in '
the statutes and which is under the management of The
University,of Texas' Board of Regent's, is listed among
other statutory colleges designated in Section 17 of Ar-
ticle VII of the Texas Constitution. However, neither
the Dental College of The University of Texas at Hous-
ton created in 1943, nor the School of Public Health and
a Preoeptorial Training Center authorized by statute to
be established at,Houston (H.B. No. 821, 50th Leg.,
Acts 1947, effective May 27, 1947; Art. 2603f, V.C.S.)
is designated in the provisions of the College Building
Amendment.
The Md.D. Anderson Hospital for Cancer Rel
search was established under Chapter 548, 47th Legisla-
.ture, R. S., Acts 1941 (Art, 26039, V.C.S.), ada was
plaoed under the management ana control of the Board of
Regents of The University of Texas by this Aot.
The Dental College of The University of Texas,
referred to in your letter as the School of Dentistry:
was preated under Chapter 329, 48th Legislature, R.S.,
Acts 1943 (Art, 2623b-1, V.C.S.). This %nstitution was
placed under the mana.gement and control of the,Boara of
Regents of The University of Texas by this Act, and by
this statute was constituted a branoh of The University
of Texas for instruction in dental education.
Seotion 1O;Article VII of the Constitution of
Texas (1876) provides:
*The Legislature shall as soon as prac-
ticable establish, organize and provide for
the maintenance, support and direction of a
University of the first class, to be located
by a vote of the people of this State, and
styled 'The University of Texas,g for the pro-
motion of literature, and the arts and scien-
ces, inoludi~g an Agricultural and Mechanical
departmen~t," (Emphasis ours.)
Section II of the same Article of the Codti-
tution created what is known as the "Permanent Universi-
ty FunC" in order to enable the Legislature to perform
the duties set forth in the faregoing Sectian 10, and
the income derived from the investment of which fund was
made subject to appropriation by the Legislature to ac-
Hon. James E. Taylor, Page 5 (V-818.)
complish the purpose declared in the foregoing section.
The income derived from the investment of the Permanent
University Fund is known and designated as the “Availa-
ble University Fund .fl
It will. be seen from the foregoing that the
Available University Fund was created for a specific pur-
pose; and csnsequently it is a special fund within the
meaning of Section 7 of Article VIII of the Constitution
of Texas which prohibits the Legislature from in any
manner diverting any special fund from its purpose.
However, it will be noted that the power to
locate geographically the University as such., or any of
its branches (others than A, & M. College, Section 13 of
Artiole VII) was vested in the people of the State by
express provisions of the Constitution, as heretofore
shown, to be exercised by a vote cast at an election
held at a time and in the manner as was authorized by
the Legislature.
Chapter 75, 17th Legislature, R.S., Acts 1881,
established The University of Texas and provided far the
location of the Main University and a Medical Department
thereof, to be determined by a vote of the people at an
eleotian to be held on the first Tuesday of September,
1881. (9 Gammel’s Laws p. 171) This Act expressly pro-
vided that the Medical Branch could be located at a dif-
ferent place than the Main University, and that its lo-
cation should be voted upon separately from the Main Uni-
versity.
The result of this election was in favor of
the establishment of the Medical Department of The Uni-
versity of Texas at Galves’ton and the Main University
to be located at Austin, these places having received
the necessary majority vote as prescribed ,by the stat-
ute,
Since e vote of the people was necessary to
locate the University, the University or any of its can-
stitutional branches or departments may not be relocat-
ed by legislative enactment; but if there does exist a
power to so relocate or change the location of such in-
stitution or any of its branches as authorized ta be
created by the Constitution in order to use any portion
of the Available University Fund for their support and
maintenance, it is vested in the people of the State of
Texas to be exercised by a vote of such people cast at
Ron. James E. Taylor, Page 6 (V-818.)
an election regularly and properly called for such
purpose o
But, as hereinabove determined, the specifio
grant of power contained in the Constitution to erect
and maintain The University of Texas is no limitation
upon the power of the Legislature to create other schools
of similar purpose, and to maintain them by appropria-
tions from the General Revenue Fund of ~the State of Tex-
as and to place the management of such instltutons as
the Legislature may deem expedient under the Board of
Regents of The University of Texas or some other agency.
Mummev. Marrs, supra. And the fact that the Legisla-
ture may have created such institutions and located them
in Houston and oonstituted them branches of The Univer-
sity of Texas would not change their status as statuto-
ry branches as distinguished from constitutional branch-
es. Such a statutory branch of The University of Texas
may be fully supported out of the General Revenue. Con-
versely, its is not eligible to partioipate in the Avail-
able University Fund, such fund being only legally ex-
pendable for the use of the cotistitutional branches.
The fact that the pertinent provisions of Sec-
tion ll+ of Article VII of the Constitution prohiblts the
Legislature from levying any tax or appropriating any
money out of the General Revenue Fund of the State for
the erection of buildings of The University of Texas fur-
ther demonstrates the conclusion expressed that the fram-
ers of the Constitution intended that the Available Uni-
versity Fund should be and remain a special fund for the
purpose of supporting and maintaining The University of
Texas as thereby established, and that sald fund should
not be dissipated by being expended for any other pur-
pose. A. G. Opinions Nos. o-7091, O-551.
We have revlewed.the matter and conclude that
the former opinion of Hon. D. A. Simmons herein referred
to concerning the School of Mines~ of The University of
Texas is correct; and we therefore follow that opinion.
Accordingly, our answer to the submitted question is in
the negative.
The Legislature may make appropriations
from the General Revenue for erection Of
buildings and other permanent improvements at
Hon. James E. Taylor., Pate 7 (V-818.)
the Dental College of The University of Texas
and the M.,D, Anderson~Rospital for Canoer
Researoh, both looated in,Houston, Texas.
Neither igstitution is a constitutional branch
of The University of Texas for which the Per-
manent University Fund was .oreated. A. Go O-
pinion No. 2731 dated April 18, 1928 to Bon,
Adrian Pool. Tex. Const. Art. VII, Sets, 10, I
11, 13, 14, 17,. 18; Tex. Const. Art. VIII,
Sec. 7; Tex, Const. Art. III, Sec.~ 48; Art.
2603e,-26031, 2623b-1, 2592 and 265&a, Sec. 5,
vd.2.s. ; A. G. Opinion No. V-31.
Yours very truly,
ATTORNEY
GENERALOF TEXAS
,ti7p-
CEO:mw Chester E. Ollison
Assistant