The Attorney General of Texas 

December 28, 1978 

JOHN L. HILL 

Attorney General 

Mr. Lee Drain, Chairman 

Texas State University System 

505 Sam Houston Suilding 

Austin, Texas 78701 

Opinion No. 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 lawful public purpose. 

Dear Mr. Drain: 

You have requested our opinion regarding the authority of a board of 

regents to determine that the expenditure of University auxiliary and other 

funds for food and refreshments serves a Lawful public purpose. You state 

that the Board of Regents of the Texas State University System has recently 

promulgated the following order: 

The Board of Regents determines that the expenditures of auxiliary funds for the purchase of food and 

refreshments under the 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 

important public purpose; and, accordingly, author&s 

each University in this system to use auxiliary funds 

for the purchase of food and refreshments in accordance with the provisions set 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 AuxiRary funds received by student 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 

educational function of the university. 

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

2. Funds raceived as registration fees for continuing edueatkn 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. Student service fees, receipts from university concessiay 

and other auxiliary funds may be used for the purchase of 

food and refreshments to the extent that such funds have 

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 responsible account 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 51 of the Texas Constitution prohibits the grant of public funds “to any 

individual, association of indlvtduals, municipal or other corporations whatsoever. . . .” It 

is of course well established that article 3, section 51 is not contravened so long as the 

expenditure is made for a proper public purpose. See Rullock v. Calvert, 460 S.W.Bd 367 

(Tex. l972)i State v. City of Austin, 331 S.W.2d 737v&x. 1960). You ask whether, in light 

of article.3, secticm 51, the Board of Regents may validly promulgate such sn ader. 

Section 95.01 of the R&cation Code vests 

[the] organkation, control, and management of the state 

university system . . . in the bard of Regents, Texas State 

University System. 

Among other responsibilities conferred on the board by statute is the duty to “purchase 

. . . necessary ~rpplks.~ Section 95.21, Education Code. In our 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 may be other statutory restrictions 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. 5165 
Honorable m DraJn - p-3 (H-1312) 

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

axpaaditum of university auxiliary 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 uncontested poceedJnga. The power to delegate authr&y, we said, 

& ths kind of power tit the Legkrhture must expreerly gJve 

the Railroad CommJssion, and . . . Texas courts wouJd not find 

it to exJst by implication. 

Id. It Is therefore our opinion that, while the Board of Regents of the Texas State 

‘isiiiveraity System may itself determine whether a particular expenditure of unJveraJty 

funds constitutes a valid public purpose, it may not by rule delegate that determination to 

any other person. Of ccurse, it may dalegate the authority to determhe Jf specific 

exp~diturea faJJ within objective 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 unJversity funds constitutes a valid public purpose, it may 

not by ruJe delegate that determination to any other person. It 

may aelegate the authority to determine Jf SpecJfic expenditures fall wJthin objective guidelines established by the board. 

APPROVBD: v 

Sbh4L-Q~ 

DAVID M. KENDALL, First Asmstant 

Opinion Committee 

p. 5166