JUSTIN. **TEXAS** 78781

CRAWFORD C. MARTIN

Ron. Frank C. R&win, Jr. Opinion No. M-466 Chairman, Board of Regents Uni.versityof Texas System Re: Whether the Board of Regents 900 Brown Bldg. of The University of Texas Austin, Texas System has the authority to declare null and void a degree that the Board,conferred in 1954~'andto direct officials ofThe University of Texas at Austin to strike the name of the recipient of the degree from the names of Ph.D. grad? uates at that institution, Dear Mr. Erwin: and related questions.

By recent,letter you have requested an opinion concern,ingthe above stated matter. We quote from your letter
as follows:

"On. May 29, 1954, The University of Texas at Austin awarded agraduate student at that institution the degree of Doctor of Philosophy, based inpart on the submission to and approval by a faculty' committee of adissertation.

"In 1968 serious allegations were made regarding the validity of the doctoral dissertation submitted inpartial fulfillment of the requirements for that Doctor of Philosophy degree awarded in 1954. In order to investigate those allegations, the President of The University of Texas atAustin appointed anAdvisory Committee, consisting of six facultymembers of The University of Texas atAustin, and requested the committee to submit recommendations regarding the actions, if any, that the University should

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take in the matter. The committee found probable
cause tobelieve that regulations of The University of Texas atAustin had been violated in the submission of the dissertation in 1954, and on the advice of the committee, the President of the University appointed aFaculty Hearing Committee to conduct ahearing on two charges: (1)Did the dissertation conform to theUniversity's requirements forhonesty inwritten work? (2) Was the dissertation of the quality required by the Graduate School for an acceptable doctoral dissertation?

"The Hearing Committee found unanimously that (1)the 1954 dissertation was 'mainly plagiarism,' (2)that thedissertation 'failed to meet the standards of quality required for a doctoral dissertation,' and that the dissertation
was 'not acceptable for the award of the Ph.D. degree.'

"All appropriate officials of The University of Texas at.Austin and The University of Texas System have concurred in the findings of the Hearing Committee andhave unanimously recommended that the Ph.D. degree inquestion be declared null and void and that the appropriate officials of the University of Texas atAustin be directed to strike the name of the recipient of ,thedegree from the list of Ph.D. graduates of that institution. That unanimous recommendation ispresently before the ,Boardof Regents for consideration and final action.

"The Board of Regents respectfully requests your opinion on the following questions:

'(1) Under the facts set out above, does the Board 

### of Regents have the authority to declare null andvoid the Ph.D. degree that it conferred in 1954 and todirect officials ofThe University of Texas atAustin to strike thename of the recipient of the degree from thenames of Ph.D. graduates at that institution?

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"(2) If itwere determined that the faculty committee that approved the dissertation in 1954 conducted itswork in anegligent manner, would such negligence estop the Board of Regents from declaring the degree null and void and from directing,officials of :TheUniversity of Texas at Austin to strike thename of the recipient of the degree from thenames of Ph.D. graduates at that institution?
"(3) Is the Board ofRegents barred by any statute of limitation orby the doctrine of lathes from taking the actions recommended by the Hearing Committee and concurred inby the University administration?"

It should be noted at the outset that the legal problems raised by your request are unique to the jurisprudence of this state. Wewere unable to find a single reported case in this jurisdiction, or any foreign jurisdiction where a college degreeshas been conferred and then subsequently taken away by the conferring authority.

The Board of Regents of theUniversity has been given authority by Article 2585, Vernon's Civil Statutes to confer degrees and grant diplomas.

Article 2585 isquoted, inpart, as follows:
II

... they shall have power to regulate the course of instruction andprescribe, by andwith advice of theprofessors, thebooks and authorities used in the several departments, and to confe,rsuch degrees and to grant such diplomas asare usually conferred and granted by universities."

Pursuant to the above quoted article, the board of regents has promulgated various rules and regulations in general and relating to requirements fordegrees for undergraduates and graduate students.

Relative to the facts,at hand, we quote from pertinent rules and regulations in effect in 1953 and regulations in effect in 1953 and 1954:

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-Hon. 

### FrankC.Erwin, Page 4 (M-466)

"Scholastic Dishonesty
'Honestybeing the foundation of all good citizenships,the studentshould maintain ahigh standard ofhonor in,his scholastic work. He should avoid all forms of scholastic dishonesty, especially the following: "Plagiarism.---The appropriation ofpassages, either word forword or in substance, from the writings of another and.the incorporation of these as'one's'ownin written work offered for credit. It is always assumed that thewritten work offered for credit is the student's own unless proper credit is given the original author by the use of quotation marks and footnotes or other explanatory inserts.

_ "Collusion.---Working withyanother person in ,thepreparation of notes, themes, reports, or ,otherw'rittenwork offered for credit unless,suah collaboration is specifically~approved in advance by the instructor. "Cheating on an examination or aquiz.-- Giving or receiving, offering or soliciting, information; or the use ofprepared material in
an examination or aquiz. (See 'Examinations,' p. 65.)

"Persons guilty of scholastic dishonesty
are usually penalized by suspension."



### ”7

. Doctoral dissertaion.-- A doctoral dissertation is required of every candidate. The dissertation must give evidence of ability to do independent investigation in themajor field, and itmust itself constitute a contribution to knowledge. Itmust be accepted'by the candidate's supervising committee, though the committee may appoint a subcommittee topass on the dissertation. Sixty calendar days before the commencement at which the doctoral degree is tobe awarded, the candidate must present two final copies of the dissertation (unbound)to the supervising professor, who shall notify the Dean of the Graduate

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Hon. Frank C. Erwin, Page 5 (m-466)

School of its receipt. Themembers of the supervising committee have thirty calendar days to read the dissertation. After allmembers of the committee (oran authorized ,subcommittee) have read the dissertation, theymay sign anotice of acceptance for thepurpose of examining the student
on the dissertation. This examination is the final oral examination for the doctor's degree. The final oral examination includes the dissertation and the field of thedissertation and such other parts of the student's program as the supervisory committee may determine. After successful completion of the final oral examination, the approval sheets for thedoctoral dissertation and the official recomkendation to theDean of the Graduate School are signed. The student then arranges tohave the original and first carbon copy (plusa second carbon copy for an engineering student) bound promptly in approved~style and deposited in the office of the Dean of the Graduate school.

"9. Summary of routine.--(1) Admission to the Graduate School through official transcripts of previous work in other institutions sent to the Registrar: registration course card from the Office of the Registrar; and registration'by the graduate adviser of the student's major field. (2) Admission to candidacy by themajor department or committee with the approval of the Dean. (3) Selection of a supervising professor and filling out a thesis information card, showing the field of the dissertation as approved by the supervisor, filed in the Dean's office. U(4) Submission 

### of a Record ofWork to'the secretary to theDean, whereupon the supervising committee will be appointed by the Dean. (51,Passing of foreign language'examinations by the beginning of the last fullyear of graduate work (orthe last two fullyears if the department so specifies). Blanks topresent to examiners for certification of results should be secured from the secretary in theDean's office. (6) Notice of expected graduation in June, given

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by filing ~adiploma name card in the Dean's office when an applicant registers in the session inwhich he,expects to gethis degree. (7) Passing 

### ofwritten major andminor examinations conducted by the supervising committee at dates,,setby the committee. (8) 'Submissionof two unbound copies of the dissertation to the supervising committee by April 1. Two bound copies of the dissertation approved by the committee tobe filed in the office of the Dean not later thanMay 1.
"(Each candidate must submit to the office of the Dean with the dissertation twomonths before the degree is tobe conferred enough copies of
abrief abstract ofhis dissertation to allow two copies'to be filed in theDean's office and one to be sent to eachmember of the supervisory committee. Hemust also submit two separate copies of thebiographical sketch.)
"(9) Formal request for the final oral examination, signed by the chairman, filed in the office of the Dean forhis approval.
"(10)Written report, signed by.the supervising committee with respect to the dissertation and the finalwritten and oral examinations, filed in the Dean's office for final approval by the Dean."
Article 2585 does not expressly authorize the Board of Regents to take away adegree once conferred, andwe are unable to find any board rule or regulation expressly conferring such authority upon the university.

Therefore, if such authority exists, itwould have to exist due to implied power conferred by Article 2585, or exist in some contractual right between theUniversity and the degree recipient in question.

The extent of implied power inherent in an administrative agency iswell stated in Corzelius v. Railroad Commission, 182 S.W.Zd 412 (Tex.Civ.App. 1944)nowrit, atpage 415:

"The general rule iswell settled that boards or commissions which are creatures of

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the statutes, can exercise ony such authority
as is conferred upon themby law inclear and express language and that authority will not be construed as being conferred by implication... It is equally well settled, however, thatwhen
a statute imposes amandatory duty upon agovernmental agency to carryout the express and specifically defined purposes and objectives stated in the law, such statute carries with itby necessary ~implicationthe authority todowhatever is reasonably necessary to effectuate the legislative mandate and purpose."

It is our opinion thatArticle 2585 does not impose
amandatory duty upon the Board of Regents to confer or to grant anyparticular degree or diploma to any graduating students, Therefore, it is further our opinion that the Board of Regents has no implied authority, pursuant toArticle.2585, to annul
a degree once conferred.' The power of an admiriistrativebody cannot be derived by inference or implicat,ion. Board of Ins. Commissioner's of Texas v. Guardian Life Ins.~Co. of Texas, 142 Tex. 630, 180 S.W.Zd 906 (1944); 73C.J.S. 372, Pubiic Admin. Bodies, etc., Sec. 50.

Bowever, theUniversity o,fTexas does have contractual authority as declared by the authorities in the conferring or withholding of a College,degree., The courts deem this tobe
amatter of contract law subject to recognized statutory and
common law.

"Ordinarily, onematricula,tingat a college or'university establishes a contractual relationship entitling him on compliance with reasonable regulations as to scholastic standing,,attendance deportment andpayment of tuition topursue his selected course of study to completion and to receive a degree or certificate awa~rdedfor successful completion of such course:..." 14 Corpus Juris Secundum, Colleges and Universities, Section 8,pp. 1337-1338.

Texas courts have recognized this general rule; holding that the rules and regulations set forth in a college catalog constitute awritten contract between the college and the

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student. Vidor v. Peacock, 145 S.W. 672, (Tex.Civ.App. 1912)
no writ: Texas Military College v. Taylor, 275 S.W. 1089, (Tex.Civ.App. 1925) nowrit; See also, S.M.U. v. Evans, 115 S.W.2d 622, 131Tex. 333, (1938).,

We are of the opinion that theprior approval being
an exercise of conferred discretionary power to the Board of Regents, to theprior committee and to the faculty asprovided by statute,was conclusive in the absence ofbad faith, or abuse of discretion 14Corous J&s or a finding of fraud or false representation. Secundum. Colleaes andUniversities. Section 8. p. 133‘8;Edde v. Columbia Univeisity, 8Mist 2d 795; 168N.Y.S:2d 643, 1957 (affirmed 175N.Y.S.2d 556; Foley v. Benedict 122 Tex. 193 55 S.W.Zd 805, 86A.L.R. 477 (1932).

The court in Foley v. Benedict supra stated:

'!Astudent who is admitted to the University receives theprivilege of attending that institution subject to the reasonable rules and regulations promulgated by theboard of regents and existing at the time ofhis entrance into the school. The educational facilities of statesupported institutions of higher learning are at the disposal of the average student engaged in a particular field of study, and a standard of excellence which the average student in aparticular field of study is able to satisfy is not an unreasonable regulation. It follows that a student who is unable tomaintain andmeet the standard of proficiency required isnot entitled to continue to attend a state-supported institution, provided the standard required isnot unreasonable and arbitrary. A rulewhich refuses readmission to a student who has failed to meet a standard of proficiency which the average student in theparticular field of study is able to satisfy, is not unreasonable, where the facilities of the school
are inadequate to accommodate allwho are eligible to apply therefor."

The Court concluded:

"The Legislature of this state having lodged the power with theboard of regents to

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.

enact,, rules and'rggulations~as may be necessary .,,, for the stqx!i?ssful management and governmentof II the llniversity,t~ they'shall have power to a,dopt such rules andto regulate the coUrse of ins:,truction, andprescribe, 'byandwith the advice,"ofthe, faculty, the books and authorities,used in .the sever,+3~,departments."That authority rests.w%th ..;: the board .ofregents and the faculty ag rovlded ~.i'~ ., ~$d~,i~~;t;te;' .dnd,:$f'achange ,ormod~ficaticn',. ,,~

n the rules and regulations,,.itis a ; matter for ,the

censider.ationof the Legislature. The'courfs will not interfere therewith in the absence of a clear showing that they'have acted

or have.abused the authority vested in emphasss 'added).

The:board of regents in awarding the d,egreeo,fDoctor of Philosophy based on the submission to and the approval byea faculty oommittes'of 'adissertation exercised the,authority vested in theboard of regents and the faculty asprovided by statute. .

'Foleyv. Benedict supra. Accordingly, the recipient of the degree has received an award in the nature of
aproperty'right tihjchin our opinion isprotected~by due process. The Legi,slaturehas not seen fit toprescribe an administrative,,,,procedure whereby degrees awarded students may be cancelled:or rescinded ,bythe administrative board, In the absence of such authority, it is our opinion that s:uch degree can only be set aside or annulled by a Cour,tof competent jurisdiction-rather than by an administrative decision. However, this does not preclude the University from taking the legal~' position that by reason of the alleged fraud Ccwill no longer recognize the,degreeinquestion and insofar as it is concerned has cancelled the same. yet the taking of s,uch, position does not alter the legal rights of.the degre.e,recipient
nor have anybinding legal effect as to third parties.

Inview of the foregoing disposition of'this,matter,
we shall defer answering the.second and third questions 'and leave these for decision in a court of competent jurisdiction in the event litigation is tobe pursued.

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SUMMARY -----MT
The Board 

### ofRegents of theUniversity of Texas system does not have statutory authority to annul a degree previously conferred in the exercise of authority granted theboard of regents and the faculty by the Legislature of the State of Texas. Such degree can only be set aside or annulled by a court of aompetant jurisdiction. This opinion, however, is not to be interpreted to the effect that theUniversity is precluded from taking the legalposition that the degree was fraudulently obtained and is cancelled insofar as the .Universityis concerned. 'Thetaking of ,sucha'position,in itsetf " does not alter the legal ri,ghtsof the recipient to the ,degreenor have anybinding legal effect
as to third parties.

y General of Texas
Prepared by John Reeves Assistant Attorney General

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman George Kelton, Vice-Chairman Sarah E. Phillips James McCoy Rick Fisher Wardlow Lane
MEbE F. GRIFFIN Staff Legal Assistant

HAWTHORNE PHILLIPS Executive Assistant

NOLA WHITE First Assistant

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