JUSTIN. TEXAS 78781 

CRAWFORD C. MARTIN 

Ron. Frank C. R&win, Jr. Opinion No. M-466 

Chairman, Board of Regents 

Uni.versity of 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~'and to direct officials 

of The 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,ing the above stated matter. We quote from your letter 

as follows: 

"On. May 29, 1954, The University of Texas at Austin 

awarded a graduate student at that institution 

the degree of Doctor of Philosophy, based in part 

on the submission to and approval by a faculty' 

committee of a dissertation. 

"In 1968 serious allegations were made 

regarding the validity of the doctoral dissertation 

submitted in partial 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 at Austin appointed an Advisory Committee, 

consisting of six faculty members of The University of Texas at Austin, and requested the 

committee to submit recommendations regarding 

the actions, if any, that the University should 

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Hon. Frank C. Erwin, Page 2 (M-466) 

take in the matter. The committee found probable 

cause to believe that regulations of The University 

of Texas at Austin had been violated in the 

submission of the dissertation in 1954, and on the 

advice of the committee, the President of the 

University appointed a Faculty Hearing Committee 

to conduct a hearing on two charges: (1) Did 

the dissertation conform to the University's requirements for honesty in written 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 the dissertation '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 and have unanimously recommended 

that the Ph.D. degree in question be declared null 

and void and that the appropriate officials of the 

University of Texas at Austin be directed to 

strike the name of the recipient of ,the degree 

from the list of Ph.D. graduates of that institution. That unanimous recommendation is presently 

before the ,Board of 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 and void the Ph.D. degree that it conferred 

in 1954 and to direct officials of The University 

of Texas at Austin to strike the name of the 

recipient of the degree from the names of Ph.D. 

graduates at that institution? 

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Hon. Prank C. Erwin,~Page 3.(M-488) 

"(2) If it were determined that the faculty 

committee that approved the dissertation in 1954 

conducted its work in a negligent manner, would 

such negligence estop the Board of Regents from 

declaring the degree null and void and from 

directing,officials of :The University of Texas at 

Austin to strike the name of the recipient of the 

degree from the names of Ph.D. graduates at that 

institution? 

"(3) Is the Board of Regents barred by 

any statute of limitation or by the doctrine of 

lathes from taking the actions recommended by 

the Hearing Committee and concurred in by 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. We were unable to find a single reported case 

in this jurisdiction, or any foreign jurisdiction where a 

college degrees has been conferred and then subsequently taken 

away by the conferring authority. 

The Board of Regents of the University has been given 

authority by Article 2585, Vernon's Civil Statutes to confer 

degrees and grant diplomas. 

Article 2585 is quoted, in part, as follows: 

II . . . they shall have power to regulate 

the course of instruction and prescribe, by 

and with advice of the professors, the books 

and authorities used in the several departments, 

and to confe,r such 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 for degrees 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. Frank C. Erwin, Page 4 (M-466) 

"Scholastic Dishonesty 

'Honesty being the foundation of all good 

citizenships, the studentshould maintain a high 

standard of honor in, his scholastic work. He 

should avoid all forms of scholastic dishonesty, 

especially the following: 

"Plagiarism. ---The appropriation of passages, 

either word for word 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 the written 

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 withy another person in 

,the preparation of notes, themes, reports, or 

,other w'ritten work offered for credit unless, suah 

collaboration is specifically~ approved in advance 

by the instructor. 

"Cheating on an examination or a quiz.-- 

Giving or receiving, offering or soliciting, 

information; or the use of prepared material in 

an examination or a quiz. (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 the major field, and 

itmust itself constitute a contribution to 

knowledge. It must be accepted'by the candidate's 

supervising committee, though the committee may 

appoint a subcommittee to pass on the dissertation. 

Sixty calendar days before the commencement at 

which the doctoral degree is to be 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. The members of the supervising committee have thirty calendar days to read 

the dissertation. After all members of the 

committee (or an authorized ,subcommittee) have read 

the dissertation, they may sign a notice of 

acceptance for the purpose 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 the dissertation 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 the doctoral dissertation and 

the official recomkendation to the Dean of the 

Graduate School are signed. The student then 

arranges to have the original and first carbon 

copy (plus a 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 the major 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 of Work to' the 

secretary to the Dean, whereupon the supervising 

committee will be appointed by the Dean. 

(51, Passing of foreign language'examinations 

by the beginning of the last full year of graduate 

work (or the last two full years if the department so specifies). Blanks to present to examiners 

for certification of results should be secured 

from the secretary in the Dean's office. 

(6) Notice of expected graduation in June, given 

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Hon. Frank C. Erwin, Page 6 (M-466) 

by filing ~a diploma name card in the Dean's office 

when an applicant registers in the session 

in which he, expects to get his degree. 

(7) Passing of written major and minor examinations conducted by the supervising committee at 

dates,,set by the committee. 

(8) 'Submission of two unbound copies of the dissertation to the supervising committee by April 1. 

Two bound copies of the dissertation approved by 

the committee to be filed in the office of the 

Dean not later than May 1. 

"(Each candidate must submit to the office 

of the Dean with the dissertation two months before 

the degree is to be conferred enough copies of 

a brief abstract of his dissertation to allow 

two copies'to be filed in the Dean's office and 

one to be sent to each member of the supervisory 

committee. He must also submit two separate 

copies of the biographical sketch.) 

"(9) Formal request for the final oral 

examination, signed by the chairman, filed in 

the office of the Dean for his approval. 

"(10) Written report, signed by. the supervising committee with respect to the dissertation 

and the final written 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 a degree once conferred, and we are 

unable to find any board rule or regulation expressly conferring 

such authority upon the university. 

Therefore, if such authority exists, it would have 

to exist due to implied power conferred by Article 2585, or exist 

in some contractual right between the University and the 

degree recipient in question. 

The extent of implied power inherent in an administrative agency is well stated in Corzelius v. Railroad Commission, 

182 S.W.Zd 412 (Tex.Civ.App. 1944) no writ, at page 415: 

"The general rule is well settled that 

boards or commissions which are creatures of 

-2318- 
Bon. Frank C. Erwin, Page 7 (M-466) 

the statutes, can exercise ony such authority 

as is conferred upon them by law inclear and 

express language and that authority will not be 

construed as being conferred by implication... 

It is equally well settled, however, that when 

a statute imposes a mandatory duty upon a governmental agency to carryout the express and specifically defined purposes and objectives stated in 

the law, such statute carries with it by necessary 

~implication the authority to do whatever is 

reasonably necessary to effectuate the legislative 

mandate and purpose." 

It is our opinion that Article 2585 does not impose 

a mandatory duty upon the Board of Regents to confer or to 

grant any particular degree or diploma to any graduating students, 

Therefore, it is further our opinion that the Board of Regents 

has no implied authority, pursuant to Article.2585, to annul 

a degree once conferred.' The power of an admiriistrative body 

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); 73 C.J.S. 372, 

Pubiic Admin. Bodies, etc., Sec. 50. 

Bowever, the University o,f Texas does have contractual 

authority as declared by the authorities in the conferring or 

withholding of a College,degree., The courts deem this to be 

a matter of contract law subject to recognized statutory and 

common law. 

"Ordinarily, one matricula,ting at a college 

or'university establishes a contractual relationship 

entitling him on compliance with reasonable regulations as to scholastic standing,, attendance 

deportment and payment of tuition to pursue 

his selected course of study to completion and 

to receive a degree or certificate awa~rded for 

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 a written contract between the college and the 

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Hon. Frank C. Erwin, Page 8 (M-466) 

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) no writ; See also, S.M.U. v. Evans, 115 

S.W.2d 622, 131 Tex. 333, (1938)., 

We are of the opinion that the prior approval being 

an exercise of conferred discretionary power to the Board of 

Regents, to the prior committee and to the faculty as provided by 

statute,was conclusive in the absence of bad faith, or abuse 

of discretion 

14 Corous J&s 

or a finding of fraud or false representation. 

Secundum. Colleaes and Universities. Section 8. 

p. 133‘8; Edde v. Columbia Univeisity, 8 Mist 2d 795; 168 N.Y.S:2d 

643, 1957 (affirmed 175 N.Y.S.2d 556; Foley v. Benedict 122 

Tex. 193 55 S.W.Zd 805, 86 A.L.R. 477 (1932). 

The court in Foley v. Benedict supra stated: 

'!A student who is admitted to the 

University receives the privilege of attending that 

institution subject to the reasonable rules and 

regulations promulgated by the board of regents 

and existing at the time of his 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 a particular field of study is able to satisfy is not an 

unreasonable regulation. It follows that a student 

who is unable to maintain and meet the standard 

of proficiency required is not entitled to continue 

to attend a state-supported institution, provided 

the standard required is not unreasonable and 

arbitrary. A rule which refuses readmission to a 

student who has failed to meet a standard of proficiency which the average student in the particular field of study is able to satisfy, is not 

unreasonable, where the facilities of the school 

are inadequate to accommodate all who are eligible 

to apply therefor." 

The Court concluded: 

"The Legislature of this state having 

lodged the power with the board of regents to 

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Hon. Frank C. 'Erwin, Page 9-'(M-466:,) 

,~. ~’ 

. 

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 and to regulate the coUrse of ins:,truction, and prescribe, 'by and with the advice,"of the, 

faculty, the books and authorities, used in .the 

sever,+3 ~,departments." That authority rests. w%th ..;: 

the board .of regents and the faculty ag rovlded ~.i'~ ., 

~$d~,i~~;t;te;' .dnd,:$f 'a change ,or mod~ficaticn',. ,,~ 

n the rules and regulations,, .it is a ; 

matter for ,the censider.ation of 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,egree o,f Doctor 

of Philosophy based on the submission to and the approval bye a 

faculty oommittes'of 'a dissertation exercised the,authority 

vested in theboard of regents and the faculty as provided 

by statute. 

. 

'Foley v. Benedict supra. Accordingly, the 

recipient of the degree has received an award in the nature of 

a property'right tihjch in our opinion is protected~ by due 

process. The Legi,slature has not seen fit to prescribe an 

administrative,,,,procedure whereby degrees awarded students may 

be cancelled: or rescinded ,by the 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 Cc will no longer 

recognize the ,degree in question 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 any binding legal effect as to third parties. 

In view 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 to be pursued. 

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Hon. Frank C. Erwin, Page 10 (M-466) 

SUMMARY -----MT 

The Board of Regents of the University 

of Texas system does not have statutory authority 

to annul a degree previously conferred in 

the exercise of authority granted the board 

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 the University is precluded from taking the legal position 

that the degree was fraudulently obtained and 

is cancelled insofar as the .University is concerned. 'The taking of ,such a'position, in itsetf " 

does not alter the legal ri,ghts of the recipient 

to the ,degree nor have any binding 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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