WI& WILSON 

A-l-rORNEY GENERAI. 

July 30, 1962 

Ron. J. W. Edgar 

State Commissioner of 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 college district 

appropriation to defray any costs of 

students who are in their third and 

fourth collegiate years, 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 contemplating calling an election 

pursuant to Article 2815k-3 of Vernon's Civil Statutes to authorize the governing body of such district to offer and conduct classes in the third and fourth collegiate years and to 

award baccalaureate degrees in those fields not specifically 

prohibited. 

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

"Section 1. Any junior college district in 

this State, situated entirely or in part within 

the boundaries of any city having a population in 

excess of one hundred sixty thousand (160,000) 

according to the last preceding decennial Federal 

Census and having less than two (2) colleges or 

universities offering baccalaureate degrees within 

the boundaries of any such city, is herebv author- 

&&, subject to the other provisions of this Act, 

of tofe ih b re ir 

or accented of wtes for baccalaureate decrees 

ti the fields of liberal arts. buess tr ' 

bather education and 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, provided nothing in this Act 

shall be construed to permit or authorize any junior college district in this State which 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 1 tecture, or pharmacy. 

Wet. 2. No funds heretofore or hereafter 

aupronriated by 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 students who are 

trd and fourth colleriate Years. Furnerwise de in their thi 

thermore any college made a senior college under 

the authority of this Act shall be prohibited from 

receiving state aid for junior and senior level 

work for twenty (20) years from the date of the 

passage of this Act. 

"Sec. 3. The power and authority herein 

granted shall not apply or be available to any 

junior college district unless and until the governing board of such district is authorized to proceed under the terms hereof at an election held for 

such purpose. Such election shall be held in the 

following manner: the governing board of such district shall without the prerequisite of the filing 

of any petition, order an election to be held in 

such junior college district, 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 public notice 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) consecutive weeks between the date of the order calling the election 

and the date of the election. Onlv those legallv 

cualified voters 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 conducted and canvassed in 

accordance with the General Laws relative to elections in Independent School Districts. If a maioritv of the votes cast at uch election favor the 

exercise of the Dower herzin aranted. and onlv in 

such event. the governing bodv of such Suni 

powers and authority prescribed bv this Act. 

-"The governing board of such junior college 

district may call the election herein provided for 
Hon. 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 the votes cast, then no additional 

election shall be called on such proposition U'Itil at least one year after the date such prior 

election was held. 

"Sec. 4. This Act shall be cumulative of all 

other laws and shall not be construed to limit or 

affect the classes not being offered or which may 

be offered and conducted by junior college districts not subject to the provisions of this Act; 

nor to limit or affect the classes which may be 

offered and conducted in addition to those described 

in Section 1 above by junior college districts which 

are subject to the provisions of this Act, whether 

or not they elect to take advantage of this Act. 

lgSec. 5. If anv Section. sentence. clause 

phrase. or word in this Act or aoulication theriof 

to anv uerson or circumstance is held invalid. such 

holding shall not affect the validitv 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 stated as follows: 

"Query 1. Re first sentence (a): Does Section 

2 prohibit use of the junior college district appropriation (see S.B. 1, Acts 57th Leg. 1st C.S. Article IV, pg. 396, pars. l-a and 2-e) 40 defray any 

costs of students who are in their third and fourth 

collegiate years; viz.? to allow proration thereof 

so as to enable a tuition uniform for each of the 

four years. 

"Re second sentence (b): Does the phrase 

'junior and senior level, work' in Section 2 mean 

junior and senior class work or junior college 

and senior college level work; viz., does Section 

2 prohibit State appropriations to a junior college 

district which votes to and does operate third and 

fourth collegiate years." 

Regarding your Query l(a), as we construe Section 2, 

the Legislature has prohibited any appropriation by it being 

used toward the costs of conducting any classes or any other 

expenses relative to those students in their third and fourth 
Hon. J. W. Edgar, page 4 (wW-1408) 

collegiate years of the senior college, when created. It 

follows that if any special or new teachers are employed, or 

any laboratories or other facilities are needed relative to 

the third and fourth collegiate years, that no state appropriation may be used to defray any part of such expenses. 

From your letter we are apprised that presently there 

are several junior college districts operating so-called senior 

college divisions, but that none of them were created pursuant 

to Article 2815k-3. It would 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 college district . . . is hereby authorized, 

subject to the other provisions of this Act 

E 

to offer and conduct classes which may be required or accep ed of candidates 

for baccalaureate degrees . . . during their junior and senior 

years and to award such degrees. . . .‘I Therefore, if the junior college district, subject to provisions later discussed, 

adds work for the junior and senior years 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 there will 

be a junior college division and a senior college division. 

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

“An Act authorizing certain junior college districts to offer classes to candidates for baccalaureate degrees in certain fields during their junior 

and senior years, and to award degrees in such fields; 

I, . . . 

and so when the Legislature in Section 2 speaks of “junior and 

senior level work,” we interpret that phrase to mean any work 

undertaken or classes offered during the junior and senior years, 

i.e., in the senior college division of the district. Section 2 

does not prohibit state appropriations to the junior college district itself, but does prohibit any state aid to defray costs of 

the senior college division, which conducts junior and senior 

level work. 

Your second series of question are as follows: 

“Where a 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 taxes within maximum 
Hon. J. W. Edgar, page 5 NW-1408) 

tax limits previously voted by the qualified property tax paying voters, for the construction of 

facilities, bond service and maintenance of the 

college operating also a 'senior division' the 

third and fourth collegiate years; or 

"(b) Must or may a new maintenance tax and 

bond assumption election be held and carry before 

the district, whose educational functions have 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'--first and second collegiate years--college maintenance and building needs previously 

voted under provisions of Article 2815h-3b." 

An inspection of the statutes reveals that if the junior college district elects to assume the responsibility of a 

senior college wfthin 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 therefore when this phrase is used, no taxes may 

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; consequently none of these statutes gives the 

district any authority to assess and levy taxes for support of 

the senior college division. 

When the Legislature enacted Article 2815k-3, they 

also enacted Article 2815r-1, which does not in any section require 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 or hereafter organized under 

the laws of the State of Texas are hereby severally authorized and empowered, each for its respective institution or institutions, to construct 
Hon. J. W. Edgar, page 6 NW-1408) 

acauire and eouin on behalf of such institution, 

buildings and other structures and additions to 

existinG buildings and other structures and acouire land for said additions. buildings and other 

structures in any manner authorized by law. includinn the power of eminent domain exercised in 

the manner orescribed for anv indenendent school 

district if deemed appropriate by said governing 

body. &id constructions. au'uning and acauisition mav be accomwlished inewh&e or in Dart with 

proceeds of loans obtained from anv orivate or nublit source. The said governine boards are alsp 

severallv authorized to enter into contracts with . . . . 

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 still vested in the junior college district to 

assess and levy taxes for junior college purposes only or for 

the "junior college division" under Articles 2815h et seq. The 

said district has 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 proceeding authorized 

by Article 2815r-1. If the district contains a 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 continue as follows: 

"In short, in connection with taxation questions raised in auery 2, what is the legal effect 

of that sentence in Section 3 reading: Only those 

legally qualified voters who have duly rendered 

property for taxation in such junior college district shall be permitted to vote. Is such sentence 

consonant with or in violation of Article VI, Section 2, Constitution of Texas; and if in violation 

may the problem be 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 following King v. Carlton, supra." 

Section 2 of Article VI of the Constitution of Texas 

states in part as follows: 

"Every person subject to none of the foregoing 

disqualifications who shall have 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 shall have resided in 

this State one (1) year next preceding an 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 provided further, 

that any voter who is subject to pay a poll tax under the laws of the State of Texas shall have paid 

said tax before offering to vote in any election in 

this State and hold a receipt showing that said poll 

tax was paid before the first day of February next 

preceding such election. . . .I' 

We also call your attention to section 3a of Article 

VI of the Constitution, reading as follows: 

"When an election is held by any county, or any 

number of counties, or any political subdivision of 

the State, or any political sub-division of a county, 

or any defined district now or hereafter to be described and defined within the State and which may 

or may not include towns 

E 

villages or municipal corporations, or any city, own or village, for the 

puroose of issui e credit , 

or exoendins m onev or assumlne: anv debt. onlv au *_ 

fied electors who own taxable arouertv in the State, 

Four&v. nolitical sub-division, district. citv. town 

g village where such election is held. and 

dkv rendered the same fo 

who have 

r taxation. shall be auaa 

fied to vote and all electors shall vote in the election orecinct of tmresidence.lr 

An identical situation, which may prevail if Article 

281.%-3 is to be complied with, 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-1 was in question. Article 2784e-1 

required that for the $dootion election only "property taxpaying qualified voters of such district, whose property has been 

duly rendered for taxation, shall be entitled to vote." 

In the course of the opinion Chief Justice Hickman 

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 qualifications are 

prescribed by some other provision of the Constitution. The Legislature was not authorized to prescribe any other standard for voters at the adoption 
Hon. J. W. Edgar, page 8 ON-14081 

election than that of qualified electors as defined by Article VI Section 2. More specifically stated,the legislature wis'not authorized 

to limit the voters at the adoption election to 

'qualified voters of such district who 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 the words 

'qualified voters of such district' is in conflict 

with the provisions of Article VI, Section 2, of 

the Constitution, and should therefore be stricken 

from the &tt;" 

We therefore advise you that the voting qualifications 

contained in Section 3 of Article 2815k-3 are in violation of 

Section 2 of Article VI 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 is made workable, leaving the question of the adoption 

of the Act to be determined by an election at which ' ualified 

electors' shall participate. Jordan v. Crudgington, a. 1 9 Tex. 

237, 231 S.W.2d 641.” (Emphasis added) Kina v. Carlton, sunra. 

You are advised that the proposition of whether or not 

the residents of the junior college district adopt the provisions of Article 2815k-3 should be submitted only to the qualified voters under Section 2 of Article VI of the Constitution of 

Texas. King v. Carlton Independent School District, sunra. 

SUMMARY 

1. Section 2 of Article 2815k-3 prohibits the 

use of junior college appropriations to 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 level work" means any 

work undertaken by students in classes offered in the 

senior college division of the district. 

2. '2ne adoption of Article 2815k-3 does not 

carry with it or vest in the governing body authority 

to as:ess and levy taxes for the senior college division. The district's authority to obtain money in 

this regard is limited to Article 2815r-1, et seq. 

The district still has 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 of Article 2815k-3 is unconstitutional and in order to validly adopt the remaining 

provisions of such Act, the question of adoption 

should be presented only to those voters qualified 

under Section 2 of Article VI of the Constitution of 

Texas. 

Yours very truly, 

Will Wilson 

r2w7q 

Fred D. Ward 

FDW:wb Assistant 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Tom McFarling 

Frank R. Booth 

Joe Osborn 

Bob Shannon 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore