## THE ATHHXNEU GENERAI.
OF ‘?&ZXAS

January 21, 1969

HonorablePreston Smith Governor of Texas State Capitol Building Austin, Texas

Dear Covernor Smith: Re: Whether the Board of Directors of Texas Technological

College may create’&medical school **as** a part of the existing college at Lubbock witho:ut ” the passage of implementing legislation?

Your recent letter requests the Attorney General to render
an opinion on the above question.

The Legislatureof the State of Texas crested Texas .Technological College at Lubbock Ln ‘1923.- Article 2629; et seq., Vernon’s’

Civil Statutes. An examlnatlohof these ‘articles’paveals. that Article 

## 2629

sets out,

the. purpos.e

**fpr** ,whjch

Te,xas

. Technological

College was created. It reads as.followsn Opinion Ro.

## M-333

’ The Texas Technological College at Lubbock shall ‘be

a co-educational

college giving thorough instructionin technologyand textile engineering from which a student may reach the highest degree of education along the lines of manufacturingcotton, wool, leather and textile engineering, the chemistry of materials and technique of weaving, dyeing, tanning and the doing of any and all other things necessary ,for the manufacturingof raw materials intoHonorablePreston Smith, page 2 

## (la-333)

and increase the capacity of the'people for the democraticself-government, and particularlyto give' instruction ii’~ technology, manufactu&g and agriculturalpursuits, domestic husbandryand home economics so that the boys and girls of this State may atta'in

their highest usefulness and greatest happinessand in so doing, may prepare themselvesfor producing from the State its greatestpossiblewealth." (Emphasissupplied)
Further,Article 

## 2631 sets out the courses which are authoriz'ed to be taught. It provides:

" In addition to the courrres nrovlded in

‘

..

or short term courses &ZJ ,.f+q~~,q~d

ranch husbandryand economicsand,the chemistry of soilsand the adaption of farm crops to the peculiar soil, climate and condition of that portion of the State in which the college is located and such other courses and degrees as the board, of, directorsmay see fit to provide as a means of supplying me educational facilitiesnecessary for tnls section of th State. Th board shall Turnisn such assl.sEance to theefaculty

and students of said college as will enable them to do original researchwork and to apply the latest and most approvedmethod of manufacturing

and, fn general, to afford the facilitiesof the college for the purpose of originating, developing,supporting and maintainingall of those agencies for the developmentof the physical,mental and moral welfare of the 8tudent8who attend the college and for Surther purpose of developia&the material resources of the State to their highest point of value and usefulnessby teaching the arts of commerce and manufacturing. All male students

-.1637 -1

HonorablePreston Smith, Page 3 (M-333)

attending this college shall be required to receive such InstructionIn military science and tactic8as the board 'of directorsmay prescribewhich shall at all times comply in full with the requirementsof tie United States Governmentnow given as a prerequisite to any aid now extended or,hereafterto be extendedby the Government of the United States to State institutionsof this character and all such white male students shall, during their attendanceat such college,be subject to such military disciplineand control
as the board of directorsmay prescribe." (Emphasissupplied)
In this connection, the Board of Directors consists of nine directorspursuant to the authority of Article 2630, in which Board is vested the government,control and directionof the college.

The first Inquiry shall be directed to the question of whether the Board of Directorshas authority in the first Instance from these pertinent statutes to create a medical school without implementing

Legislation,

a queetlon to be resolvedaside from limitationswhich may have been later placed on the 'Board of Directors by enactmentsof the Legislature. Such an inquirymust of necessitybegin with a determination of the overridingpurpose for the creation of Texas Technological College. In ascertaining such, certain rules **of** construction pertaining to statutesmust be constantlybornsinmind. The first endeavor is to ascertain the legislativeintent. Lacey v. State Banking Board, 118 Tex. 91, 11 S.W. 2d 496 (1928). S h an ascertainment m come from a general view of the entire Eiactment. Barber
v. Giles, 146 Tex. 401, 208 S.W. 26 553 (1948). Once the-t of the lenislature has been established.the next ob.iective is to construe the statute so as to give effect to the purpose of the Legislature,Houston v. Allred 123 Tex. 334, 71 S.W. 2d 251 (1934) - In this regard, statutoryprovisionsare to be liberally construed to carry out the purpose intended by the Legislature. Free18 v. Walker, 120 Tex. 291, 26 S.W. 2d 627 (19301,Galveston, H. and S.A.R c?irK error ref.) Austin v. Co3 1947, error're?.n.r.e 194. 75, v. Enderle, i70 s,w. 276 (T&x: ?%v:~A~. iPins,200 S.W. 2d 666 (Tex. Civ. App: !,),mex

. Jur. 2d 298, Statutes, Sec~tion

Looking to these statutesand applying the above rules, the conclusionmust be reached that the Legislature must have intended somethingmore than,, collde". and in addition to, a mere "technological

-1638-. .

HonorablePreston Smith, page 4 (M-333)

From the emphasizedportions of the sta'tute set 'out;In

full above there is gleaned 'the pervasive idea that the'Legislature created'whatwas to be a "college of the first Hass" b$ offering the same"degrees

as such a college. The Legislaturerecognized"' that in addition to the courses specifically provided for technology and textile engineering,the college should offer all courses given in standard senior colleges of the first class. Further, it specifically

provided explicitpower to ~the Board of'

Directors to provide for such other courses and degrees as'the Board of Directorsmight see fit, and to this end the Board evidently
was empowered to act without the need for implementinglegislation.

It would appear to 'be withoutmerit to contend that because the statute speaks in terms of "college"that there is no authority to create a school of medicine, since such schools are foreign to what is envisionedas a four year college and are peculiar '~ " only to universities. In addition to the statute dispelling such a contention.the definitionof "college" itself would likewise
~(19263,it is found th t the word 'college" is applied to all do so for in State v. Erickson, 77 MoiTt. 429, 244 P. 287,‘291
kinds of institutions From universities ~to business collegx ar?olleges: and others. More importantly, Texas Techno& gical College was designatedby the Coordinating Board on April 18, 1966, to be a university. It could hardly. he.. argued,.w,i.th

.. ., . . . . . . . that throughoutTexas and throughoutthe United States, higher educationviews the term "university" as cb#reiptiveof multipurpose institutionsoffering instructionin a var,$ety of disciplines, awarding degrees of all levels, and especiallythe doctorate,and organized into a number of componentswhether they be calle'd

schools, colleges,departmentsor divisions.

As to whether or not Texas Technological College can create a medical school within the confines of the authoritygranted j8 in the above statuteswithout implementinglegislationis answered additionallyby the experienceof the college itself during the years it has existed. Today, it is made up of the following components,none of which were created by Implementinglegislation: the School of Agriculture,the School of Arts and Sciences, the Schaol of BusinessAd&n$stration, the School of Engineering,the School of Eome Economics3 the School of,Law, the Graduate School, ,and the Divisfonof.Extension. For~years various departments have awarded the.:,Doctor f, Philosophy degree after completionof the work required. These departments includebiology, chemistry,chemical engineering, civil engineering, electricalengineering, English, geosciences,government, history, industrialengineering, mechanfcal engineering, physics, and psychology.

1639

-HonorablePreston Smith, page 5 (M-333)

Thus it is seen that using settled rules of law, a Constructionof the statutes creating Texas Technological ~College leads one to the conclusion that the Legislaturedesired a “college of the first class,” and by empoweringthe Board of Directors to act to accomplish that purpose the further conclusion is reached that the creation of a medical school by the Board of Directorswould be an accomplishment calculated to satisfy the intent and desire of the Legislaturewhen it gave birth to Texas Technological College by the above’~ statutes. The creation of a medical school would be, as demonstrated above, entirely consonantwith Its experienceof ~operating under these statutes from its inception. It certainly cannot be said that it would be a deviation from the purpose of the statute. Having concluded that by the above statutes, the Board of Directors can create a medical school without implementing legislation,the further inquiry remains as to whether the Higher EducationCoordinating Act of 1965, Vernon’s Civil Statutes,Article 2919e-2,modifies or limits the power residing in the Board of Directorstocreate a medical school without resort to enabling legislation.

Texas Technological College, being one of the many institutions in Texas which Is supported~by...appropriations.from the Legislatureof the State of Texas is subject to all of the provisions of the Higher Education Coordinating Act of 1965. This Act creates a Coordinating Board, Texas College and University System and outlines specificallythe powers and duties of the Coordinating

Board, such Coordinating Board being the successor agency to the previous Texas Commission on Higher Education.

The applicableportions of Article 2919e-2,Vernon’s Civil Statutes include Section 2 (e) which provides as follows:

” ‘Medical

and dental unit t means The University of Texas Medical Branch; Southwestern Medical School; South Texas Medical School; The University of Texas Dental Branch;M.D. Anderson Hospital and Tumor Institute; Graduate School of Biomedical Sciencesat Houston; and such other medical or dental schools as may be establishedby statute or as provided in this Act.” (Emphasis supplied

1

In Section 2 (g) ,the followingdefinition is found:
l”Institution

of higher education’” means any

-1640-

.Honorable Preston Smith, page 6 (M-333)

public ,junior.college,
or ‘university,

medical other agency of higher defined.

‘I public senior college ’ ~’ ,,

ore dental ‘unit

or educationas herein,’ ~

Section 2 (j) of Article 2919e-2 reads:
“‘Degreeprogram’means any grouping of the subjectmatter courses which, when satisfactorily completedby a student,will entitle him to a degree from a public senior college or universityor a medical or dental unit.’
Section 3 of the Act provides;

” There issherebyestablishedthe Coordinating Board, Texas College and UniversitySystem which shallhave its office in Austin, Texas. It shall perform only such functionsas are herein enumeratedand as the Legislature may assign to it. Functionsvested in the governing,boards

of the respective institutions of higher education,not specifically delegated to the Board, shall be performed by such boards. The coordinatingfunctions and, other duties delegated to the Board in this Act shall apply to all public institutions of higher education .I’
There is found in Section 10 (6) that the Board representing the highest authority in the State in matters of public higher education shall:
consolidationor or certificateprograms where sue- is in the best interest of the institutionsthemselves ,orthe general requirementsof the State of Texas> or when such action offers hope of achieving excellence by a concentration of available resources. No new

- 1641-Honorable Preston Smith, page 7 (M-,133)

Section 13 of the Act provides:

"Eo funds appropriatedto any institution of higher education shall be expended for any program which has been disapprovedby the Board, unless said program'is subsequently specifically approvedby the Legislature. Ho new department,school or degree or certificateprogram approved by the Board or its predecessorjthe Texas Commissionon Higher Education, shall be initiatedby any institutionof higher education after th efrectivedate of this Act until the Boared shall make a written finding that the department, school or degree or certificate program is adequately financedby legislative appropriation, by funds allocated by the Board, and/or by funds from other sources. Any proposed statutewhich would establishan additional institutionof higher educationexcept a public junior college shall be submitted,either prior to introductionor by the standing commlttee consideringsame, to the Board for its opinion as to need of the State therefor,and the Board shall report its findings to the Covernor and the Legislature, provided that
a recommendationthat an additional institution is needed shall require the favorable vote of at least two-thirds (2/3) of the members of the Board. But a recommendation of the Board shall not be considereda condition to the introductionor passage of any proposed statute.“ (Emphasissupplied)
The legislativeintention regardingmedical schools is initiallydiscerned from Section 2 (e) of the Act as quoted above. Since it states '.

. .and other such medical or dental schools as may be established‘by statute or as provided in this Act," (emphasissupplied), it becomes clear that the creation of medical schools through some means other than implementinglegislation
was contemplated 'bythe Legislature. Further analysis then shows that in Section 10 (6), the specificauthoritywas granted the Coordinating

Board to establishother medical schools than those now in existence. 10 (6)s Finally, looking to the last sentence of Section

it is readily discerned that implicit in the entire section is the idea that a new departmentor degree program (whichby definition includesmedical school) can be created without implementing legislationso long as prior approval of the Board is obtained.

-.1642-Honorable Preston Smith, page 8 (M-333)
"

There is nothing in the sedtion about the ‘need’ of’ s
secial. ‘legis- .’ lation, and such a constructionreadeN Section 10~ 6) ‘boimistent with Section 2’ [e) and gives meaning to b&h sections,~‘a desired objective. The most that can be said **by** way 6f suminary’is thav the Legislaturegranted and’ recognizedthis power in the ‘Coordinating Board while at the same time it did not relinquishits
own right to establish such schools **by** implementinglegislation if it so desired.
Section 13 of,,Artlcle 291ge-2 has-as its main thrust the ~. insuring that any
. . .new department,

. .” school or degree or certiflcate program. uill not be initiatedwithout the Co,ordinating Board havina exercised the functions for which it was set un. The second gentence of grction 13 speaks c& “no **new** dapartmint, school or degree.

. .program” bring “.

. .initiated by any institution of higher edueatias.

. .” ‘isfound to be adequately finance 6emphaaid rupplled unti.1~ It, priation or otherwise. ‘throughlegislatve approImplicitly;’

at.the very least; is- the expressionof the idea that a mediaal sohool can be created,- without the need for implementinglegislation,for if implementing legislationis required,one could rationallyassiime that the LegislatureItself would ensure Its adequate finanoing such that Its own action would not be r8ntiered nugatory. It ie, not to be presumed that the LeElslaturewould deStrOY at birth its own-

enactment. Port Ac?es,v. Port Arthur, 346 S.W. 26 324 (Tex. Civ. App. 1960, error ref. n.r.e.) This view is buttressed ‘byt&s fee% that when Sectioij 13., of the. statutes.. speaks in terms of a “proposedstatute,” it does not appear until the third sentence of Section 13 and then speaks of the only function of the Beard as being the renderingof an opinion
as to the”need”of the State for such proposed legislation, thus merely re-emphasislag that the creation of a medicill school
can be done by implglentiaglegislationand if such a route is. chosen, the role the Baud is to play. If, as a prerequisite to the establishmentof a new departmentor degree program, there must first be obtained the specificprior Coordinating

Board, pursuant to Sectien 10 (6 gy;zli$ the
Section 13 we find that a of h,

t a Coordinating Board shall not be consid ite to the passage of
a proposed statute establishing an lnlrtituticwr

ef higgcr educstion (which includesa medical school); is it not reasomableto assume that in one instance the statute is speaking of the creation of a medical school without implementinglegislationand in the other Instance is spmof the creation of a mediral school with implementingle islation?
m in Section 10 ( 8 ) Otherwise,what the LegislatUre would be rendered ineffectiveby what it sets out in the last sentence of Section 13. It is to be preferred that a cona&%ction be given the two portions of ~the enactmentwhich rendersboth viable rather than a construction‘~ which would create a conflict.

- 1643 -. ,

Honorable Preston Smith, page 9 (M-,133)

The above constructionthen harmonizesSection 13 and Section 10 (6) with the indicationnoted in Section 2 (e) of Article 291ge2, and thus comports with the established and cardinal rule of constructionthat “all the language and every part of a statute shall be given effect, if reasonablypossible”and “.

. .effect and meaning should be given to each and every sentence, clause, phrase, and word of the Act, as nearly as can be done consistently with the object and purpose of the legislature .‘I 53 Tex. Jur

. 26 228, Statutes, Section 159.
Such an analysis can only point to the conclusion that the Higher EducationCoordinating Act of 1965 presents no impediment to the creation of a medical school at Texas Technological College at Lubbock without implementinglegislation. It should

‘be pointed out that according to informationfurnished this office, the requirementsof the Act are being met, for on December 3, 1968, the CoordinatingBoard, meeting in Austin, received
a report from a CoordinatingBoard Special Committeewhich.recognized the necessity for a medical school to serve the special needs of West Texas, and thereafter, at a meeting of the Coordinating Board on January 9, 1969, authorizedTexas Technological College to request funds from the Legislature for the orderly planning and developmentof an Innovativemedical school on the campus of Texas Technological College at Lubbock. The Coordinating Board further stated that the medical school could be commencedas soon as facilitiesand programs are judged to ‘be adequate by the Coordinating Board and full financingprovided by the Legislature.
Although the Legislaturedid attempt to pass a bill for establishing

a medical departmentas shown by the fact that in 1965 the 59th Legislatureenacted House Bill No. 14 (authorizing the Board of Directors of Texas Technological College to establish
a medical departmentof the College), this enactmentwas subsequentlyvetoed by the Governor and thus did not become effective. No further attempt has been made since that time by the LegiSlature to pass such legislation. As shown by the discussion of the statutes creating Texas Technological College, such a method of creatinga medical school was certainly available although not mandatory. Likewise, the Higher Education Coordinating Act of 1965, as demonstrated above, recognizes that this is an alternativeto the procedures to be compliedwith under the variousmandates establishingthe Coordinating Board. The veto message of the Bill (HouseJournal, Texas House of Representatives,

April 13, 1965, pages 1138-1143) signed by Governor Connally lists no legal objection to the creation of the medical school under discussionwithout implementinglegislation, nor does it even insinuate that, the only method of creating such would be through legislativeaction.

- 1644 -. . .

Honora’ble Preston Smith, page 10 (M-333)

Indeed,the thrust of the veto message'was that the legislation was simply premature,and the requisite findings to his mind had not been made. Re states on page 1138 that House Bill No. 14 would authorize the esttiblishment of a'medical'department by the Board of Directors of Texas Technological College prior' to the completionof any professional study as to medical needs of the State; and that this would.be contrary to-soundplanning of such graduateprograms. Such an objection is, of course, now met since the CoordinatingBoard has authoriiedTexas Technologicalto request funds for a mediarrl school.

We therefore find that the Board of Directors of Texas Technological

Collegemay create a medical school as~pert of .' the existing college at Lubbock with,out the passage of implementing legislationafter full compliancewith the Higher Rducation Coordinating Act of 1965. It is to be recognized, however, that althou@ no implementinglegislationis required, theLegislatureby virtue of its power over appropriations has, in the final analysis,~ the power to accept or reject this method of creatinga medical school by Texas Technological.College.

SUMMARY
The Board of Directors of Texas Technological Collegemay create a medical school as a part of the existing college atLubbock without the passage of implementing-le

8islation Article 2629, through compliancewith

2 31, and 2919e-2,Vernon's Civil Statutes. 

# YY truly yours,

C. MARTIN orney General of Texas Preparedby Robert C. Crouch AssistantAttorney General

APPRCVRD D OPIRIOM COMMITTEE

Kerns Taylor, Chairman George Kelton, Vice-Chairman John Banks Rick Fisher Neil Wil3iams Mark White

W.V. CRPPRRT ,' Staff I&gal Uaf8tent i -1645-