WI& WILSON

A-l-rORNEY GENERAI. July 30, 1962

Ron. J. W. Edgar State Commissionerof Education Texas Education Agency Austin, Texas Opinion No. biti-1408

Re: Whether Section 2 of Article 2815k-3 of Vernon's Civil Statutes prohibits
use of a junior collegedistrict appropriation to defray any costs of studentswho are in their third and fourth collegiateyears, and related questions. Dear Mr. Edgar:

We are in receipt of your request for opinion on the above captioned question. Your letter informs us that a junior college district in Texas is contemplatingcalling an election pursuant to Article 2815k-3 ofVernon's Civil Statutes to authorize the governing body of such district to offer and conduct classes in the third and fourth collegiateyears and to award baccalaureatedegrees in those fields not specifically prohibited.

Article 2815’k-3 states in part as follows:

"Section 1. Any junior collegedistrict in this State, situated entirely or in partwithin the boundaries of any city having a population in
excess of one hundred sixty thousand (160,000) according to the last precedingdecennialFederal Census and having less than two (2)colleges or universities offering baccalaureatedegreeswithin the boundaries of any such city, is herebv author- &&, subject to the other provisionsof this Act, of to fe ih b re ir
or accented of wtes for baccalaureatedecrees ti the fields of liberal arts. buess tr ' bather educationand wit during their A%?!%?&& &or Years, and to award such degrees, to the extent that the governing body of any such district shall deem advisable, providednothing in this Act shall be construed to permit or authorizeany junior collegedistrict in this Statewhich elects to’

.

Hon. J. W. Edgar, page 2 

### (~~-1408)

take advantage of this Act to award degrees in the fields of engineering law, medicine, agriculture, journalism,arch tecture, 1 or pharmacy.

Wet. 2. No funds heretofore or hereafter aupronriatedby the Legislature of this State for pavment to anv such junior college district shall be used to defrav nv of the costs of teaching or &j 3fravi.n: the costs of studentswho are trdand fourth colleriateYears. Furnerwisede in their thi thermore any collegemade a senior college under the authority of thisAct shall be prohibited from receiving state aid for juniorand senior level work for twenty (20)years from the date of the passage of thisAct.



### "Sec.3. The power and authorityherein granted shall not apply or be available to any junior collegedistrict unless and until the governing board of such district is authorized to proceed under the terms hereof at an electionheld for such purpose. Such election shall be held in the followingmanner: the governing board of suchdistrict shall without the prerequisite of the filing of any petition, order an election to be held in such junior collegedistrict, such election to be held not less than twenty (20)days nor more than thirty 

### (30)days from the date of said order calling such election, and such governing board shall give publicnotice of such election by publishing notice of such election in a newspaper of general circulation in such district at least once a week for a period of three 

### (3)consecutiveweeks between the date of the order calling the election and the date of the election. Onlv those legallv cualifiedvoters who have duly rendered property for taxation in such junior colleere district shall be oermitted to vote. Except as modified herein, such election shall be conductedand canvassed in accordancewith the General Laws relative to elections in IndependentSchool Districts. If a maioritv of the votes cast at uch election favor the exercise of the Dowerherzin aranted. and onlv in such event. the governing bodv of such Suni

powers and authorityprescribedbv thisAct.

-"Thegoverning board of such junior college districtmay call the electionherein providedforHon. J. W. Edgar, page 

### 3 (~~-1408)

at any time after the effective date of this Act, but if an election is called and held hereunder and the proposition should fail to receive a me.- jority of thevotes cast, then no additional election shall be called on such propositionU'Itil at least one year after the date such prior electionwas held.

"Sec.4. This Act shall be cumulative of all other laws and shall not be construed to limit or affect the classesnot being offered orwhich may be offered and conductedby junior collegedistrictsnot subject to the provisions of thisAct;
nor to limit or affect the classeswhich may be offeredand conducted in addition to those described in Section 1 above by junior college districtswhich
are subject to the provisionsof thisAct, whether
or not they elect to take advantage of this Act.
lgSec. 5. If anv Section. sentence. clause phrase. orword in this Act or aoulication theriof to anv uerson or circumstanceis held invalid. such holding shallnot affect thevaliditv of the remain- 'nn hereb declare it would have oas d s ch emain a D r tions dzsoite such invalid%."U(Em~hasisi~ddedO)-

Your first series of questions is statedas follows:
"Query 1. Re first sentence (a): Does Section 2 prohibit use of the junior college district appropriation (seeS.B. 1, Acts 57th Leg. 1st C.S.Article IV, pg. 396, pars. l-a and 2-e) 40 defray any costs of studentswho are in their third and fourth collegiateyears; viz.? to allow proration thereof
so as to enable a tuitionuniform for each of the four years.

"Re second sentence (b): Does the phrase 'juniorand senior level, work' in Section 2 mean juniorand senior classwork or junior college and senior college levelwork; viz., does Section 2 prohibit State appropriations to a junior college districtwhich votes to and does operate third and fourth collegiateyears." Regardingyour Query l(a), as we construe Section 2, the Legislaturehas prohibitedany appropriationby it being used toward the costs of conductingany classes or any other expenses relative to those students in their third and fourthHon. J. W. Edgar, page 4 (wW-1408)

collegiateyears of the senior college,when created. It follows that if any special or new teachersare employed, or any laboratories or other facilitiesare needed relative to the third and fourth collegiateyears, that no state appropriationmay be used to defray any part of such expenses.

From your letterwe are apprised that presently there
are several junior college districts operating so-called senior college divisions, but that none of themwere created pursuant to Article 2815k-3. Itwould seem that the purpose of a junior college district is to establish and manage a junior college only; however we note from the provisions of Article 2815”~3 that “any junior collegedistrict

. . . is hereby authorized, subject to the other provisions of this Act E to offer and conduct classeswhich may be required or accep ed of candidates for baccalaureatedegrees

. . . during their junior and senior years and to award such degrees.

. . .‘ITherefore, if the junior college district, subject to provisions later discussed, adds work for the juniorand senioryears and awards degrees, the result is a l’college made a senior college under the authority of this Act.” It follows that in such districts therewill be a junior collegedivision and a senior collegedivision.

The caption to Article 2815k-3 states in part as follows:

“An Act authorizing certain junior collegedistricts to offer classes to candidatesfor baccalaureate degrees in certain fields during their junior and senioryears, and to award degrees in such fields; I,

. . . and so when the Legislature in Section 2 speaks of “juniorand senior levelwork,” we interpret that phrase to mean any work undertaken or classes offered during the junior and senioryears, i.e., in the senior collegedivision of the district. Section 2 does not prohibit state appropriations to the junior collegedistrict itself, but does prohibit any state aid to defray costs of the senior college division,which conducts juniorand senior levelwork.

Your second series of question are as follows:

“Wherea junior college district pursuant to Article 28l5k-3 elects and acts to come thereunder:
“Query 2: (a) Does adoption of the powers granted therein carry with it or vest in its board authority to assess and levy taxeswithin maximumHon. J. W. Edgar, page 

### 5 NW-1408)

tax limits previouslyvoted by the qualifiedproperty tax payingvoters, for the construction of facilities, bond service and maintenance of the college operatingalso a 'seniordivision' the third and fourth collegiateyears; or
"(b) Must or may a new maintenance tax and bond assumption election be held and carry before the district,whose educationalfunctionshave been
so enlarged,may legally assess and levy taxes for such maintenance, bond servicing purposes,and issuance of new bonds; or
"Cc) Does authority still exist in the district only to assess and levy taxes for its 'junior division'--firstand second collegiateyears--college maintenance and buildingneeds previously voted under provisions of Article 2815h-3b."

An inspection of the statutes reveals that if the junior college district elects to assume the responsibilityof a senior collegewfthin the district the status of the district is still the same, and it has all the red on it. powers previously conferHowever,we find that the statutes giving the district power to levy and collect taxes refer to "Junior college purposes,"and thereforewhen this phrase is used, no taxesmay be levied for "senior college purposes.3'

For instance Section 7 of Article 281511 allows the district to issue bonds and to levy taxes "for provide for interest and sinking funds the support and maintenance of the Junior College,"and for "Junior College purposes." Section 10 of that statute,Articles 2815h-3a and 281%-3b all contain the
same phraseology; consequentlynone of these statutes gives the district any authority to assess and levy taxes for support of the senior collegedivision.

When the Legislatureenacted Article 2815k-3, they also enactedArticle 2815r-1,which does not in any sectionrequire that money realized from the issuance of bonds and notes be used exclusively for junior college purposes. We call your attention to all eleven sections of this Article,but only quote from Section 1, as follows:

"The board of regents of any junior college district heretofore orhereafter organizedunder the laws of the State of Texas are hereby severally authorizedand empowered, each for its respective institution or institutions, to constructHon. J. W. Edgar, page 6 NW-1408)

acauire and eouin on behalf of such institution, buildings and other structuresand additions to existinG buildings and other structures and acouire land for said additions.buildings and other structures in any manner authorizedby law. includinn the power of eminent domain exercised in the manner orescribedfor anv indenendent school district if deemed appropriateby said governing body. &id constructions. au'uning and acauisition mav be accomwlished inewh&e or in Dartwith proceeds of loans obtained from anv orivate or nublit source. The said governine boards are alsp severallv authorized to enter into contractswith

. . . . construction of said f%litia.&81 . .

ies and s& 1 districts for the loin<
added) (Emphasis

We answer your second group of questions accordingly: Authority is stillvested in the junior collegedistrict to assess and levy taxes for junior college purposes only or for the "junior college division" underArticles 2815h et seq. The said districthas no authority to assess and levy E axes for support and maintenance of its senior college division, but may obtain loans, enter into contracts, issue its bonds and notes, pledge its fees or make use of any other proceedingauthorized by Article 2815r-1. If the district containsa city of not less than two hundred twenty-five thousand (225,000)population,it may receive donations of cash pursuant to Article 2815i.

Your questions continueas follows:

"In short, in connectionwith taxation questions raised in auery 2, what is the legal effect of that sentence in Section 3 reading: Only those legally qualifiedvoters who have duly rendered property for taxation in such junior collegedistrict shall be permitted to vote. Is such sentence consonantwith or in violation of Article VI, Section 2, Constitutionof Texas; and if in violation may the problembe resolved in a manner decided in King v. Carlton I.S.D., 295 S.W.2d 408 (Tex.Sup. 1956). See also Section 3 of Article 2784e-1, as amended followingKing v. Carlton, supra."
Section 2 of ArticleVI of the Constitution of Texas states in part as follows:

"Every person subject to none of the foregoing disqualificationswho shallhave attained the age. ’

Hon. J. W. Edgar, page 7 (W-1408)

of twenty-one (21)years and who shall be a citizen of the United States and who shallhave resided in this State one (1)year next precedingan election and the last six (6)months within the district or county in which such person offers to vote, shall be deemed a qualified elector; and providedfurther, that any voterwho is subject to pay a poll tax under the laws of the State of Texas shallhave paid said tax before offering to vote in any election in this State and hold a receipt showing that said poll taxwas paid before the first day of Februarynext preceding such election.

. . .I'

We also callyour attention to section 3a of Article VI of the Constitution,reading as follows:

"Whenan election isheld by any county, or any number of counties, or any political subdivision of the State, or any political sub-divisionof a county,
or any defined district now orhereafter to be described and definedwithin the State and which may ormay not include towns E villages or municipal corporations, or any city, own or village, for the puroose of issui

e credit

, or exoendinsmonev or assumlne: anv debt. onlv au *_ fied electorswho own taxable arouertv in the State, Four&v. nolitical sub-division,district. citv. town g villagewhere such election is held. and dkv rendered the same fo who have
r taxation. shall be auaa fied tovote and all electors shallvote in the election orecinctof tmresidence.lr

An identical situation,which may prevail if Article 281.%-3 is to be compliedwith, was presented to the Court in inR

. Car 0 kw.2: 408 ;;9;65: deuendent School District; 156 Tex. 365, 295 In that case an electio; to adout the provisions of Article 2784e-1was in question. Article 2784e-1 required that for the $dootion election only "propertytaxpaying qualifiedvoters of such district,whose propertyhas been duly rendered for taxation, shall be entitled to vote."

In the course of the opinion Chief JusticeHickman stated at page 412:

"Any qualified elector) as defined by that Article, is entitled to vote in any election other than one for which additional qualificationsare prescribedby some other provision of the Constitution. The Legislaturewas not authorized to prescribe any other standard for voters at the adoptionHon. J. W. Edgar, page 8 ON-14081

election than that of qualified electorsas defined by Article VI Section 2. More specifically stated,the legislaturewis'not authorized to limit thevoters at the adoption election to 'qualifiedvoters of suchdistrictwho own property which has been duly rendered for taxation on the tax rolls of the county for that purpose.' All of the language just quoted following thewords 'qualifiedvoters of such district' is in conflict with the provisions of ArticleVI, Section 2, of the Constitution,and should thereforebe stricken from the &tt;"

We thereforeadvise you that thevoting qualifications contained in Section 3 of Article 2815k-3 are in violation of Section 2 of ArticleVI of the Constitution.

Since Section 5 of Article 2815k-3 provides a savings clause, it follows that "When the invalid provision is stricken, the Act ismade workable, leaving the question of the adoption of the Act to be determinedby an election at which 'ualified electors' shall participate. a. Jordanv. Crudgington,1 9 Tex. 237, 231 S.W.2d 641.” (Emphasisadded) Kinav. Carlton, sunra.

You are advised that the proposition of whether or not the residents of the junior collegedistrict adopt the provisions of Article 2815k-3 should be submitted only to the qualified voters under Section 2 of ArticleVI of the Constitutionof Texas. King v. Carlton IndependentSchool District, sunra.

SUMMARY

1. Section 2 of Article 2815k-3 prohibits the
use of junior college appropriationsto defray costs of teaching of students in the senior division or any other expenses of such division in a junior college district. 'IJunior and senior levelwork" means any work undertakenby students in classes offered in the senior collegedivision of the district.

2. '2ne

adoption of Article 2815k-3does not carrywith it or vest in the governing body authority to as:ess and levy taxes for the senior collegedivision. The district'sauthority to obtainmoney in this regard is limited to Article 2815r-1, et seq. The district stillhas authority to assess and levy taxes for its junior college division pursuant to Article 2815'h,

or accept donations if the provisions of Article 28151 apply to it.. -

Bon. J. W. Edgar, page 9 (~~-1.488)

3. Section 3 ofArticle 2815k-3 is unconstitutional and in order to validly adopt the remaining provisions of suchAct, the question of adoption shouldbe presented only to those voters qualified under Section 2 of ArticleVI of the Constitutionof Texas.

Yours very truly,

Will Wilson r2w7q

Fred D. Ward Assistant FDW:wb

APPROVED:

OPINIONCOMMITTEE

W. V. Geppert, Chairman Tom McFarling Frank R. Booth Joe Osborn Bob Shannon

REVIEWED FOR THEATTORNEY GENERAL

BY: Leonard Passmore