Untitled Texas Attorney General Opinion

THEAITORNE‘Y GENERAL OPT ,ald C. Mann Hono George H. Shspp&rd OpinioR No.- o-J+167 : Comptroller of Public Be8 Whether the desdribed expense ; Acccunts accounts) incurred for purposes au- Austin, Texas thorieed by the Board of Regents of i the University of Texas, may be ’ i,Dear Sir: I allowed for payment o hiI g: & ’ You have requested a legal opinion from this dspartinent . as follows: I !*I am attaching hereto a complete file covering . expense accounts of Ed Syers g Executive Assistant of the Publfc Relations Department of the University of Texas, and Hubon We Black, DIrector of the UnSversfty Development Board of the University of Texas, “Before approvtig these expense accounts for pay- ment agajlnst the local funds of the University this . department desfres your opfnion as to whether the Board of Regents is authorized to spend Sts monev for the DUP- poses set forth i,~ these expense accountset* i. One expense account subm%tted with your letter,- that of f: Mre Ed Syers, with the title of Wecutive Assistant of the Pub112 I’Belatfons Demrtment of the Unfversfty of Texas. 9s stated to ha-ve xr the- foil .owlng object x I -- -------- -- -- -- “Trip to Galveston to aid LnstallatJon of press relations divisfon at medical branch at Galveston; to publicize schoo~l-opentng convocation at mediLca1 branch and to prepare folder of publicity releases on medical branch. Conference with Dean Spies, Wil- lfams o Mr o Silas Ragsdale g Galveston News-Tribune= Cosaferences were held* wfth Silas Ragsdale g Galveston News-Tribune Mmaging Editor; Lloyd Gregory q Honston- Post ManagIng Editor,. and MO E. Walter) Houston Chron- icle City Editor, regarding medfeal branch publfcftyon : The other expense account, that of ‘Mro Hulon W. Black, -with the title of Director bf the Unfversfty Development Board of the UnSversity of Texas 9 is stated to have been for the following object: “ITo pursue various aspects of the Board?s busfness fhcludtig interview wfth Dr. R, G, Caldwell ti Boston; Eoni. George Ho Sheppard, page 2 (O-4167) presentation of radio project; cultivation of offi- cials of Rockefeller Foundation and General$ducation d Board; conferences with certain potential donors; or- ganization of the Board’s committee in New York; fur- ther presentation of radio pro$ect and various other necessary .oaU.s In Washtigton, etc2 Regardieg the position occupied by Mr. Syers + we have been furnished the following information, The Department of tib1i.c Relations at the University was established by the Board of Regents as a department in 1939* It was an outgrowth of the commIttee on public information, the office of publicity, and the dfvision of public lectures and publicity, each of which originated in the Extension Division & 19X2.0 The office of publicity’was first established as a separat admtiistratIve function in 1920e Following exhaustive reoomenda fions prepared by a special committee of the general faculty in 1937, and adopted by the general faculty, and pursuant to recom- mendations made to the Board of Regents by the President of the UnSversity, the Public Relations Department was establIshed by the Board of Regents in July, 1939, as an integral part of the Unfversity. 1 The function, purpose and-necessity for the Department of PublIe Relations are described as follows by the president of the University: Vn institutfon supported by the State has the obligation of making regular reports to the people of what IS taking place or is contemplated, The Univer- sity of Texas in common wfth all other major universi- ties, both state-supported and private, maitztains an organized bureau for public Information and servfce* The purpose of this department is to keep open the channels of informatioa in regard to the university% activities, to cooperate In the planning of programs of public service, and to dissemdnate news and arti- cles of educatIona value, Such a department makes a state university 3.~ reality a public InstitutZon, If information on the universlty*s offerings are not made public, -much of the usefulness of the whole educational program ts nullified* Media used mostly for the dissemination of university tiformation and educational articles are the newspaper, magazine, and radio O Perhaps equally important ti giving out Infor- mation in regard to the educational offerings of the university are the conferences that are held, the let- ters that are written, the 1Sterature published and the personal visits that are made. University press re- leases are sent regularly to the press association and newspaper correspondent IQ Austin and to the State . George R, Sheppard, page 3 (o-4167j . iL 745 daily and wee&newspapers.” Mr. Syers* .expense .account represents a trip to Galves- ton where the medical branch of the Univers’lty- is lotiated. It was made in furtherance of the program of the Public Relations Department as it pertained to that branch of the University. We :ar& advised that the medical branch had no public relations de- .partment or personnel. We are further adviied that the trip was Ffor purposes in addition to those described in the expense ac- -auot ed above ‘I and ticluded the gathering of information on l,the n&-cancer program and the new tropical medical program fos- The Development Board of the University, ‘of which Mr. IBlack Is Director, w&s estab’lished by the Board be Regents of the University of Texas on May 31, 1939.-Budgets for the Board were [tapproved by the Regents for the fiscal years of 1918-UW: 19390 1$&o ; and The resolution 1 941 4942 l establishing- Ehe %velopment Board defined its purpose as being to *Idevelop and carry forward program for the development of ‘the University through gifts and dowments I4 The trip represented l by Mr. Black’s experise account s for the purpose of furthering plans for gifts and bequests to he University. Under recent date this department was wrltten as follows by Dr. Homer 3. Raineyr President 05 the Universityr- . concerning the two departments &er revfew: **I can say without any hesitation whatsoever that both I and theBoard of Regents regard these two depart- ments as among the most important ‘in the University. * b Both are contributing some outstanding values to the development of the University, and it would be a serious Articles 2584 and 2585, Revised Civil Statutes of Texas 1 order as folXows8 ftAxt%cle 2584b The government of the University of Texas shall be vested in a -Board of Regents composed of nine prsons. They shall elect a chairman from their num- ber who shall- serve at the pleasure of the board. The State Treasurer shall be the treasurer of the University. The board shall have the right to make &d use,a common seal and may alter the same at pleasure. %%iele 2585. ’They shall establish the dtiparbments of a first-class tiiversity, determine< the offices and professorshipsj ‘appoint a president) who shall, if’ th.ey think it advisable, also discharge the duties of a profes- sor’, appoint the professors and other officers, fix their ,c u 746 Hona George Ha Sheppard, page 4 (024167) respective salaries; and they shall enact such-by-laws, rules and regulations as may be necessary for the suc- eessful management and goverment of theXNI.versity; they shall have power to regulate the course of instrae- tion and prescribe by and with the advice of the .profes- sors 9 the books and authorities used ti the several de- partments, and to confer suoh degrees and to grant such dlpkmas as are usually conferred and granted by univer- sitllees.” Regarding the authority thus vested in the ‘Board of Be gent s of the-University of Texas-under these ~&&&es, the c~mi sionof $ peals of Texas fa the case of Foley vso Benedict, 55 s&L(‘2d) 805, op%ni on adopted by the Supreme Court, has declared1 ltBj .the same statute, the Board is also authorized to enact -all such by-laws, rules and regulations as may be necessary to the governmentof the University. By and with the consent of the faenlty the Board of Regents has enacted the rule above quoted; and, further carrying out the mandate of the State, they have adonted courses of study to be pursued $n the school of mehieine@ Since the Board of Regents exercises delegated powers, itsrules are of the same force as would be a like enactment of the Leg- islature 9 and its official interpretation placed upon the rule so enacted becomes a part of the rule* West Texas Compress and Warehouse Comx>ansvse R, Comx,anv tTex.Comm. of AppA 15 &W&a> 558, 560-i*** Vhe Legislature of this State having lodged the powe a with the Board of Regents to enact rules and regulations f as may be necessary for the successful management and gov- ernment of the University, they shall have power. to adopt such rules and to regulate the course of instruotion, and prestzribe, by and with the -advice of the faculty, the books and authorities used in the several departments, That au- thority rests with the Board of Regents and the faculty .as provided for by statute; and, if a change or modifieat ion is desfred in the rules and regulations, It is a matter for f the consideration of the Legislature, The courts will not . interfere therewith 9n the absence of a clear showing that they have acted arbitrarily or have abused the authority vested in them, The great weight of authority sustain this doctrine, **rkrt , I House Bill No0 272,. Acts of the Forty-seventh Legisla- ture 9 is the appropriation bill for the educational institutions of hlgher- learning in Texas for the biennium ending -August 31, 1943 Section‘ l(a) of this appropriatfon l bill reads. as follows: “That all balances in the institutional funds of the several State institatioas d&ed in this J&tit,‘at. the close % - _ .- __ r- r-a*George EL Sheppard, page 5 (0-4167) Y4? P .: of the fiscal year ending August -31 1941, including -. balances in their revolving’ funds at ‘that time, md E the entire Income to said funds during each of the two -.T .fiscal years ending August 31, 19429 and August 3X, k<. 1943,which are not otherwise appropriated for either 5r or both .of said fiscal L’ years are hereby appropriated for the support, maintenance, operation, ’and improve- ;&*_ ment of said State institutions during each of the said p;- fiscal years, respectively.lf FT cg < lp-i gt Subsection (3) of the general riders to this approprfaq I yn bill provides as follows: $? . ffInstitutional Receipts: MO property belonging -:‘to any of the institutions herein provided for, or any agency thereof, shall be sold ‘or disposed of without the consent of its governing board, and’all proceeds 3p. from the sale of such & L- property, from labor performed, __; %: from the sale of materials, crops and supplies, from g fees, and any and all other receipts shall become and t& s$.. far e he rbe Y am onriated as maint nance or 60n t &ngent und to be exokded under the d&&ion and with the k~ aWrova1 of the goverug board having jurl.sdictj.oq, i, : ; ; Said governing boards are authorized to use out of ‘.. *< the proceeds of said receipts and funds, in accordance t;:.. with the provisions of this Act, such amounts as they 8 shall deem necessary for the suunorta maintenance, +, operation and imr> m nts of said inst4tuti ns bY $..* balances remai,n&“ ~~ &e credSt of any of szld*&p ~’stitutlonal local funds at said institutions or in the ;‘~‘State Treasury at the end of any fiscal year ark here- $+- by reappropriated for the above-mentioned purposes for f the succeeding. year.” (Bmphasis added) In subsection (6) appear these provisions: p t . @a** r)rNo traveliag expenses shall be incurred by !k-, board members, heads of institutions, or by any employee -3 J ,of any of the schools, or other agencies named herein, L 63 -de. or out side of the boundaries, of- the State of Texas. <$- except for State busa s and no travel shall. be per- % formed outside the Sta:: &ce& upon the advance written g;. consent of the school’s Board-of Regents or directors. 8.:; The term ‘maintenance 8 may include the traveling expenses. ,‘.> L *4*tq (Emphasis added) 3;?S 4 @I> From th2s review we may make the following observation S First. The Legislature has not assumed to manage ‘and Sol the University of Texas directly, but .has delegated the rment of this ,tistitutton to its Board of Regents. I 1, i. 748 Bono George H. Shespard, -- . page - - 6 (Q-4167) Thestatutes Second* -expressl$ vest the Board of Re- gents with the p-@wer and authority, to-establish dep&rtments in the Uziiver4ity and tci det6zmiae the offices thereof. They en- join upoa the Board’the duty of enaoting such by-laws, Nles a regulations as may be neoessary for the successful management government of the University. Thfrd o The Supreme Court of Texas, through its Commis# sion of Appeals, has clearly recognized and upheld the validity of these statutes and has vouchsafed to the rules enacted bv the Board of Regents tn the exercise of its delegated powers the and effect of like enactments of the &ee:islatureo - -- _-_ - -v- - --- -- - Fourth, The Board of Regents of the Unfversity has es4 tablished both the Public Relations *Department and the Developmen’ Board of the University whereunder both ML Syers and Mr* Black serve in their official capacities, Fifth. Since the’ establishment of these departments b; the Board of Regents, subsequent legfslatures of the State have neither changed nor modIf9ed the action of the Regents in such pi thulars nor in any manner circumscrfbed or restricted the auth ity existent in the Board by virtue of Articles 2584 and 2585, ’ supr a o Ji Sixth e The Forts-seventh --_-- LedsSxture in House ---- B311 -- N'o 272 expressly provided th& “**cAIk $&eed~***from fees, and any and a3.1 other receipts shall become and are hereby apGropria- as maZntenance or contingent fund to be expended under the dlrecl tion and with the approval of the governing board having jurisdic t ion. Said governing boards are authorized to use out of the pri ceeds of said receipts and funds, in accordance with the provisir of this Act, such amounts as they shall deem necessary for the i Port? maintenance. oneration and imProvement of said institutloq: ***The term Imaint enance 1 may %nclude the traveling expenses***rfi ,(Emphasis added) Seventh o The Forty-seventh Legislature expressly prohi Ued the allowance of traveling expenses inside or .outside of th boundarIes of the State of Texas except when such expenses shall have been incurred for ‘“State business.” If the expenses represented by the expense accounts of’ Ike SYers and Mr. Black were incurred for State business, they m be allowed and nald. - -_ -_ r i ---- - A deefsion upon this’ question involves a consideration of whether the creation of the departments involved was within 4 powers granted to the Board of Regents of.the University, and i whether the obgects and purposes for which the expenses were in4 red were 1egitZmate activities in furtherance of the programs tb’ inaugurated. km, George H, Shepptid, page 7 (O-4167) .’ ’ :, : .. 33tate’busiriess”~ signifies -the accomplishment of a governmental function; it z’equiies th;a’t;--the me%msad’ method gdopted be reasonably necessary; it implies that the particular governmental faction. involved be‘ one directly eiztrusted to the knst itution or department assuming its accomplishment. The Legrslatures of Texas have not undertaken to define Wtate business U $.Q.relation to the University of Texas, The g6vernmnt of that institution9 a serious and complex responsibil- tty, has been entrusted to the Board of Regents and to that Board has been given broad and comprehensive powers. It is manifest that the Uministration and Board of Regents of the University @We in a superior position to know and wderstand, and to accom- plish, the successful management and governraent of the University. Upon them has been imposed the responsibility therefor. r The pre- sumption is always in favor of the reasonableness and legality of that which they do. As said by the court $n’Foley v+ *Benedict, supra, “the courts will not interfere therewith in the absence of a clear showing that they have acted arbitrwily or have abused the authority vested in them? This does not mew,of course,that acts beyond the law should be upheld. It does mean, however, that this department should be restrained, as are the courts, in overturning the -deliberate and considered acts of those entrusted with, and peculiarly equipped for, the administration of this State institution. To disallow the expenses under review would mean, ob- viously, a destruction of the Public Relations Department and De- velopment Board of the University created by the Board of Regents &nd which have been functioning for a nmber of years without challenge or modification by the Legislature. This is true because the expenses represent activities which we the essence of the de- partment s themselves. If the expenses incurred, for the purposes for whidh they ware incurred, are. illegal, necessarily the depart- Bents were illegally created beoause that for which the expenses were incurred is the accomplishment of that for which the two de- partment s were established. IIt is our opinion that public relations _apperfaJning to the University of Texas, and the development of the University of Texas, as represented in the Public Relations Department and the Development Board constitute. valid functions of the University; that the means and method adopted for the accomplI.shment of these f.unctions, represented in the expense accounts before us) are rea- sonably and substantially related to the functions of government entrusted to this educational institution, and consistent with the authority granted to the governing board of the Institution. It is our opfnion that the expenses incurred as repre- sented in the expense aoeomts submitted to us of Hr* Syers and h I- , -.-a page u W-41671 . - -' Mr. Bleick were for State bnsiaess~aad therefor@ may be allowed and paid. - ,. * ‘_ r. We are returnfng the Bxpense.aoc0unt.s.herewith. . Yours’ &&y trtLy ATTORN~YQEeJERaLOF TEXBS 1 d By JS/ Zollie CL Steakley ’ Zollie C ?’ Steakley, %ssi&& QPPRWED: OPIBIOH'CO~ITTEE .' BY: BWB a CHAXRMAR ..‘,, . .., 2XSte3rwb rncls. .. I , I’ II .. . ‘. : .