Hon. JamesE. Taylor, Chairman

Senate Finance Committee 51st Legislature Austin, Texas Opinion No. V-818.

Re:

Dear Sir: Authority of Board of Regents of TheUniversity of Texas to use the "Available University Fund" for permanent impr9vements for the School of Dentistry or the AK.

B. AnderaonHospital, both located at Houston.

Werefer to your request for an opinion on the following question:

"Does the Board of Regents of TheUniqersity of Texas have the authority to'use 'any portion of the,.*available University funds' for the purpose of erecting buildings

or other improvements or for the support and maintenance of either the School of Dentistry of TheUniversity,of Texas or the M,Do Anderson Hospital for Cancer Research of The University of Texas, both of which institutions are located in Houston, Harris County, Texas?"

As early as 1917, whentwo statutory schools (West Texas A. &M.College andNorth Texas Agricultural College) were proposed, the Attorney General was asked for an opinion on the constitutionality of their establishment at places other than Austin or Bryan. The problem involved the question of whether the Legislature had the power to establish institutions of higher learning in anxmannerother than as provided in Article VII of the Texas Constitution. In the opinion written byHon. JamesE. Taylor, Page 2 (V-818.)

Luther Nickels, wholater served as a Commissioner to the Texas SupremeCourt, it washeld that the Legislature was authorized under Section 48 of Article III to establish other colleges anduniversities andsupport then out of the general revenue. It also pointed out that such statutory universities would not be constitutional branches of TheUniversity of Texas within the meaning of Article VII, Texas Constitution. See excerpts of opinion copies in V-31 attached hereto.

Again in 1928, the Attorney General was asked to determine whether the School of Mines andMetallurgy

.was a branch of TheUniversity of Texas within the intendment of Article VII, Texas Fonstitution, and if so whether moneycould be appropriated out of the general fund to be used for the erection of buildings at El Paso. The statutes provided (and still provide) that the School of Mines *shall be under the managementand control of the Board of Regents of the State University, and the faoultv of said school shall be aooointed bv the Board of Regents of TheUniversity of Tex& aha the sameis hereby madeand constituted a br&h’onhe, State Universit~‘~or instruation in the arts of mining 000 ” Art.~ 2433, V.C.S.

In the opinion written byD. A. Simmons, then First Assistant Attorney General, and recently President of the Ameriaan Ear Association, it washeld that:

“In our opinion, the School of Mines and bletallurgy is not a bradbh of TheUniversity of Texas, as the term ‘branch9 is used in the Constitution of Texas,. Thehistory of the University as briefly outlined herein, shows very clearly that the power is not given to the Legislature to create branches of the University wherever it might see fit 000n

Itwas further held that the Legislature had full authority to establish a School of Mines andMetallurgy at El Pas3 under authority of Article 111,‘Section 48, including ereotion of buildings with general reventie funds. Excerpts from that opinion (Opinion No. 2731 to 1928) are ,quotea in Hon. Adrian Pool dated April-18, v-31.

In Mummev. Marrs, 120Tex, 383, 40S.W. 26 31 (1931), Chief Justice Cureton of the SupremeCourt wroteHon. JamesE. Taylor, Page 3 (V-818.)

that Section 5of Article VII, Texas Constitution, defining the Available School Fund, anddeclaring that *it shall be distributed to the several counties according to their scholastic population," wasnot a limitation which prevented the distribution of an appropriation from the general reventie for school districts in accordance with the Rural Aid Aot. In arriving at such conclusian, Chief Justice Cureton said:

*Thehistory of educational legislation in,this State shows that the provisions of Artide VII, the educational artiole of the Constitutian, have never been regarded as limitations by implication on the general power of the Legislature to pass laws upon the subject of education. This article alsoloses awellconsidered purpose on the part of those who framed it to bring about the establishment and maintenance of a'comprehensive system of public education, consisting of ageneral public free school system and a system of higher education. Three institutions of higher learninq

were expressly provided for.... TheLegislature, however, has gone far beyond the creation of the three institutions of higher learning specifically required by the organic law, andhas created ten additional institutions of

a similar character without direat oonstitutional grant, beginning with the SamHbuston Normal in Huntsville in 1879 o

. oOIn founding these ten institutions, beginning.more than fifty years ago, the Legislature has necessarily held that the specific grants of power contained in the Constitution to erect andmaintain TheUniversity of Texas OOswere not limitations on its power to create other schools of similar purpose, andto maintain themby appropriations from the General Revenue. This interpretation has never been questioned. andis consistent with authorities from other jurisdictions. e OOn **(UnderSCOring** ourS,'l

Thethree institutions of higher learning **ex** pressly provided for and specifically required by constitutional law, as referred to in Chief Justioe CuretonOs opinion, are the constitutional branches of The University of Texas: the MainUniversity at Austin, the Medical Department at Galveston, and the Agricultural andMechanical College at Bryan.Hon. JamesE. Taylor, Page 4 (V-818.)

It will be noted that the School of Mines and Metallurgy, a college whioh is designated a "branch" in ' the statutes andwhich is under the managementof The University,of Texas' Board of Regent's, is listed among other statutory colleges designated in Section 17 of Article VII of the Texas Constitution. However, neither the Dental College of TheUniversity of Texas at Houston created in 1943, nor the School of Public Health and

aPreoeptorial Training Center authorized by statute to be established at,Houston (H.B. No. 821, 50th Leg., Acts 1947, effective May27, 1947; Art. 2603f, V.C.S.) is designated in the provisions of the College Building Amendment.

TheMd.

D. Anderson Hospital for Cancer Rel search was established under Chapter 548, 47th Legisla- .ture, R. S., Acts 1941 (Art, 26039, V.C.S.), ada was plaoed under the managementana control of the Board of Regents of TheUniversity of Texas by this Aot.

TheDental College of TheUniversity of Texas, referred to in your letter as the School of Dentistry:

was preated under Chapter 329, 48th Legislature, R.S., Acts 1943 (Art, 2623b-1, V.C.S.). This %nstitution was placed under the mana.gementand control of the,Boara of Regents of TheUniversity of Texas by this Act, andby this statute was constituted abranoh of TheUniversity of Texas for instruction in dental education.

Seotion 1O;Article VII of the Constitution of Texas (1876) provides:

*TheLegislature shall as soon as practicable establish, organize andprovide for the maintenance, support anddirection of a University of the first class, to be located by avote of the people of this State, and styled 'The University of Texas,g for the promotion of literature, and the arts and sciences, inoludi~g anAgricultural andMechanical departmen~t," (Emphasis ours.)

Section II of the sameArticle of the Codtitution created what is knownas the "Permanent University FunC"in order to enable the Legislature to perform the duties set forth in the faregoing Sectian 10, and the income derived from the investment of which fund was madesubject to appropriation by the Legislature to ac-Hon. JamesE. Taylor, Page 5 (V-818.)

complish the purpose declared in the foregoing section. Theincome derived from the investment of the Permanent University Fundis knownanddesignated as the “Available University Fund.fl

It will. be seen from the foregoing that the Available University Fundwascreated for a specific purpose; and csnsequently it is a special fund within the meaning of Section 7of Article VIII of the Constitution of Texas which prohibits the Legislature from in any mannerdiverting anyspecial fund from its purpose.

However, it will be noted that the power to locate geographically theUniversity as such., or anyof its branches (others thanA, &M.College, Section 13of Artiole VII) wasvested in the people of the State by express provisions of the Constitution, as heretofore shown, to be exercised by a vote cast at anelection held at a time andin the manneras was authorized by the Legislature.

Chapter 75, 17th Legislature, R.S., Acts 1881, established TheUniversity of Texas andprovided far the location of the MainUniversity and aMedical Department thereof, to be determined bya vote of the people at an eleotian to be held on the first Tuesday of September, 1881. (9 Gammel’s Lawsp. 171) This Act expressly provided that the Medical Branch could be located at a different place than the MainUniversity, andthat its location should bevoted upon separately from the MainUniversity.

Theresult of this election was in favor of the establishment of the Medical Department of TheUniversity of Texas at Galves’ton and the MainUniversity to be located at Austin, these places having received the necessary majority vote as prescribed ,by the statute,

Since e vote of the people was necessary to locate the University, the University or any of its canstitutional branches or departments maynot be relocated by legislative enactment; but if there does exist a power to so relocate or change the location of such institution or anyof its branches as authorized ta be created by the Constitution in order to use any portion of the Available University Fundfor their support and maintenance, it is vested in the people of the State of Texas to be exercised by avote of such people cast atRon. JamesE. Taylor, Page 6 (V-818.)

an election regularly andproperly called for such purposeo
But, as hereinabove determined, the specifio grant of power contained in the Constitution to erect andmaintain TheUniversity of Texas is nolimitation upon the power of the Legislature to create other schools of similar purpose, and to maintain thembyappropriations from the General Revenue Fundof ~theState of Texas and to place the managementof such instltutons as the Legislature maydeemexpedient under the Board of Regents of TheUniversity of Texas or someother agency. Mumme v. Marrs, supra. Andthe fact that the Legislature mayhave created such institutions andlocated them in Houston and oonstituted thembranches of TheUniversity of Texas would not change their status as statutory branches as distinguished from constitutional branches. Such a statutory branch of TheUniversity of Texas maybefully supported out of the General Revenue. Conversely, its is not eligible to partioipate in the Available University Fund, such fund being only legally expendable for the use of the cotistitutional branches.

The fact that the pertinent provisions of Section ll+of Article VII of the Constitution prohiblts the Legislature from levying any tax or appropriating any moneyout of the General Revenue Fundof the State for the erection of buildings of TheUniversity of Texas further demonstrates the conclusion expressed that the framers of the Constitution intended that the Available University Fundshould be andremain a special fund for the purpose of supporting andmaintaining TheUniversity of Texas as thereby established, and that sald fund should not be dissipated by being expended for any other purpose. A. G. Opinions Nos. o-7091, O-551.

Wehave revlewed.the matter and conclude that the former opinion of Hon. D. A. Simmonsherein referred to concerning the School of Mines~of TheUniversity of Texas is correct; andwetherefore follow that opinion. Accordingly, our answer to the submitted question is in the negative.

TheLegislature maymakeappropriations from the General Revenue for erection Of buildings andother permanent improvements atHon. JamesE. Taylor., Pate 7 (V-818.)

the Dental College of TheUniversity of Texas andthe M.,D, Anderson~Rospital for Canoer Researoh, both looated in,Houston, Texas. Neither igstitution is a constitutional branch of TheUniversity of Texas for which the PermanentUniversity Fundwas.oreated. A. GoOpinion No. 2731 dated April 18, 1928to Bon, Adrian Pool. Tex. Const. Art. VII, Sets, 10, I 11, 13, 14, 17,. 18; Tex. Const. Art. VIII, Sec. 7; Tex, Const. Art. III, Sec.~48; Art. 2603e,-26031, 2623b-1, 2592 and 265&a, Sec. 5, vd.2.s. ; A. G. Opinion No. V-31.

Yours very truly,

ATTORNEY

GENERAL

OFTEXAS

CEO:mw 

# ,ti7pChester E. Ollison

Assistant