Untitled Texas Attorney General Opinion

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