# The Attorney General of Texas
December 28, 1978 JOHN L. HILL Attorney General

Mr. Lee Drain, Chairman Texas State UniversitySystem 505SamHoustonSuilding Austin, Texas 78701 OpinionNo. H-1312 Re: Whether a Board of Regents may determine that the expenditure of University auxiliary funds for food and refreshments under certain conditions is a lawfulpublicpurpose. Dear Mr. Drain: You have requested our opinion regarding the authority of a board of regents to determine that the expenditure of University auxiliaryand other funds for food and refreshments serves a Lawfulpublic purpose. You state that the Boardof Regents of the Texas State University Systemhas recently promulgated thefollowing order:

The Board of Regents determines that the expenditures of auxiliary funds for the purchase of food and refreshmentsunderthe provisions set forth in the Sody assists the Universities under its control in carrying out their educational functions, serves to promote education in the State of Texas, and provides an importantpublic purpose; and, accordingly, author&s each University in this system to use auxiliary funds for the purchase of food and refreshments in accordance withthe provisionsset forth in the Rody. Body: Auxiliary funds may be used to purchase food and refreshments at each university in this system under the following provisions: L AuxiRaryfunds received bystudent organizations may be used for the purchase of food and refreshments if the appropriate responsible aecount manager and the faculty or staff advisor determine and certify that such purchase serves a legitimate public purpose and furthers the educationalfunction of the university.

p. 5164liunorable Lee Drain - Page2 (R-1312)

2. Funds raceived as registration fees for continuing eduea

### tkn conferences seminars, and short courses IllEtYbellSd for the purchase of food and refreshments if provfrkns therefor have been included in the registration fees, and if the appropriate responsible account manager therefor determines and certifies that such purchases serves a legitimate publk purpose and furthers the educational functkn of the university. 3. Studentservice fees, receipts from universityconcessiay and other auxiliary funds may be used for the purchaseof food and refreshments to the extent that such fundshave been budgeted therefor, if the appropriate responsible account manager determines and certifies that such purchase serves a legitimate public purpose and furthers the educatknal function of the university. 4. Other locally-generated ,kcome and auxiliary funds not restricted to Administrative, Education and General Research, Plant Rxpansion,Loan, Endowment,or Scholarship programs may ba used for tha purchase of food and refreshments it the appropriate responsibleaccount manager and the President of the university, or his desii, determine that such purchase serves a legitimate publk puytiQand furthers the, educational function of the

. Article 3, section 51of the Texas Constitution prohibits the grant of publicfunds “to any individual,association of indlvtduals,municipalor other corporations whatsoever.

. . .” It is of course well established that article 3, section 51is not contravened so long as the expenditure is made for a proper public purpose. See Rullock v. Calvert, 460S.W.Bd367 (Tex. l972)i State v. City 

### of Austin, 331S.W.2d 737v&x. 1960). You ask whether, in light of article.3, secticm51,the Boardof Regents mayvalidlypromulgatesuchsn ader. Section 95.01of the R&cation Code vests 

### [the] organkation, 

### control, and 

### management of the 

### state university system

. . . in the bard of Regents, Texas State UniversitySystem. Among other responsibilities conferred on the board by statute is the duty to “purchase

. . . necessary ~rpplks.~ 

### Section 95.21,EducationCode. Inour opinion, the legislature, in delegating such duties to the board, authorized it to determine whether any particular expenditure constitutes a valid public purpose. H-257 (1974). See Attorney General Gpinkns H-403,

Of course, there maybe other statutoryrestrictions on certain of the funds described in the boardb order, in particular student services f&s, section 54.503(c), Education Code, and as to such funds, the board must observe the limitations 

### imposed by the relevant statute. See Letter Advisory No. 50(l973).

p. 5165Honorablem DraJn - p-3 (H-1312)

But although UK-Hard of Regents b Itse.Jf empowered to &t-mine whether the axpaaditumof universityauxiliary fun& sew- 

### a valid public purpose,it does not IcIlow that It may delegate Its authority to make that determination to a *~nsJble aaoount 

### mana@ or to a YacuIty cc 6taff advisor.” h Attorney General GpJnJon H484 Q976),we held that the Railroad CommJnsJon was not authorfied by rule to delegate to one of its divbion dJrectors unlimited discretionary authority Jn matters JnvoMng expedJted processing cc uncontestedpoceedJnga. The power to delegate authr&y, we said,

& ths kind of power tit the Legkrhture must expreerlygJve the RailroadCommJssion,and

. . . Texas courts wouJd not find it to exJstby implication. Id. It Is therefore our opinion that, while the Board of Regents of the Texas State

‘isiiiveraitySystem 

### may itself determine whether a particular expenditure of unJveraJty funds constitutes a valid public purpose, it maynot by rule delegatethat determination to any other person. Of ccurse, it may dalegate the authority to determhe Jf specific exp~diturea faJJ

withinobjective guidelJnes eatabl&hed

by the board.
SUMMARY Althaqh tha Board of Regents of ule Texas State University System may itseli determine whether a particular expenditure of unJversityfunds constitutes a valid public purpose,it may not byruJedelegate that determination to any other person. It may aelegate the authority to determine JfSpecJficexpenditures fall wJthin

objective guidelinesestablishedby theboard.

APPROVBD: v 

# Sbh4L-Q~

DAVIDM. KENDALL,First Asmstant

OpinionCommittee

p. 5166