Hon. James E. Taylor, Chairman 

Senate Finance Committee 

51st Legislature 

Austin, Texas Opinion No. V-818. 

Re: 

Dear Sir: 

Authority of Board of 

Regents of The University of Texas to use 

the "Available University Fund" for permanent impr9vements for 

the School of Dentistry or the AK. B. Anderaon Hospital, both located at Houston. 

We refer to your request for an opinion on 

the following question: 

"Does the Board of Regents of The Uniqersity 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 The University,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, when two statutory schools 

(West Texas A. & M. College and North 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 anx manner other than as provided in Article VII 

of the Texas Constitution. In the opinion written by 
Hon. James E. Taylor, Page 2 (V-818.) 

Luther Nickels, who later served as a Commissioner to 

the Texas Supreme Court, it was held that the Legislature was authorized under Section 48 of Article III to 

establish other colleges and universities and support 

then out of the general revenue. It also pointed out 

that such statutory universities would not be constitutional branches of The University 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 and Metallurgy 

.was a branch of The University of Texas within the intendment of Article VII, Texas Fonstitution, and if so 

whether money could 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 management and 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 The University of Tex& aha 

the same is hereby made and constituted a br&h’onhe, 

State Universit~‘~or instruation in the arts of mining 

0 0 0 ” Art.~ 2433, V.C.S. 

In the opinion written by D. A. Simmons, then 

First Assistant Attorney General, and recently President 

of the Ameriaan Ear Association, it was held that: 

“In our opinion, the School of Mines and 

bletallurgy is not a bradbh of The University 

of Texas, as the term ‘branch9 is used in the 

Constitution of Texas,. The history 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 0 0 0n 

Itwas further held that the Legislature had 

full authority to establish a School of Mines and Metallurgy 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 

Hon. Adrian Pool dated April-18, 1928) are ,quotea in 

v-31. 

In Mumme v. Marrs, 120 Tex, 383, 40 S.W. 26 31 

(1931), Chief Justice Cureton of the Supreme Court wrote 
Hon. James E. Taylor, Page 3 (V-818.) 

that Section 5 of Article VII, Texas Constitution, defining the Available School Fund, and declaring that *it 

shall be distributed to the several counties according 

to their scholastic population," was not 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: 

*The history 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 a wellconsidered 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 a general public 

free school system and a system of higher education. Three institutions of higher learninq 

were expressly provided for.... The Legislature, however, has gone far beyond the creation of the three institutions of higher learning specifically required by the organic law, 

and has created ten additional institutions of 

a similar character without direat oonstitutional grant, beginning with the Sam Hbuston 

Normal in Huntsville in 1879 o . o O In 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 and maintain The University of Texas O O s were not 

limitations on its power to create other 

schools of similar purpose, and to maintain 

them by appropriations from the General Revenue. This interpretation has never been questioned. and is consistent with authorities from 

other jurisdictions. e O On (UnderSCOring ourS,'l 

The three institutions of higher learning expressly 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 Main University at Austin, the 

Medical Department at Galveston, and the Agricultural 

and Mechanical College at Bryan. 
Hon. James E. 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 and which is under the management of 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 The University of Texas at Houston created in 1943, nor the School of Public Health and 

a Preoeptorial Training Center authorized by statute to 

be established at,Houston (H.B. No. 821, 50th Leg., 

Acts 1947, effective May 27, 1947; Art. 2603f, V.C.S.) 

is designated in the provisions of the College Building 

Amendment. 

The Md. 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 management ana control of the Board of 

Regents of The University of Texas by this Aot. 

The Dental College of The University 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.gement and control of the,Boara of 

Regents of The University of Texas by this Act, and by 

this statute was constituted a branoh of The University 

of Texas for instruction in dental education. 

Seotion 1O;Article VII of the Constitution of 

Texas (1876) provides: 

*The Legislature shall as soon as practicable establish, organize and provide for 

the maintenance, support and direction of a 

University of the first class, to be located 

by a vote 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 an Agricultural and Mechanical 

departmen~t," (Emphasis ours.) 

Section II of the same Article of the Codtitution created what is known as 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 

made subject to appropriation by the Legislature to ac- 
Hon. James E. Taylor, Page 5 (V-818.) 

complish the purpose declared in the foregoing section. 

The income derived from the investment of the Permanent 

University Fund is known and designated as the “Available University Fund .fl 

It will. be seen from the foregoing that the 

Available University Fund was created for a specific purpose; and csnsequently it is a special fund within the 

meaning of Section 7 of Article VIII of the Constitution 

of Texas which prohibits the Legislature from in any 

manner diverting any special fund from its purpose. 

However, it will be noted that the power to 

locate geographically the University as such., or any of 

its branches (others than A, & M. College, Section 13 of 

Artiole VII) was vested in the people of the State by 

express provisions of the Constitution, as heretofore 

shown, to be exercised by a vote cast at an election 

held at a time and in the manner as was authorized by 

the Legislature. 

Chapter 75, 17th Legislature, R.S., Acts 1881, 

established The University of Texas and provided far the 

location of the Main University and a Medical Department 

thereof, to be determined by a vote of the people at an 

eleotian to be held on the first Tuesday of September, 

1881. (9 Gammel’s Laws p. 171) This Act expressly provided that the Medical Branch could be located at a different place than the Main University, and that its location should be voted upon separately from the Main University. 

The result of this election was in favor of 

the establishment of the Medical Department of The University of Texas at Galves’ton and the Main University 

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 may not be relocated by legislative enactment; but if there does exist a 

power to so relocate or change the location of such institution or any of its branches as authorized ta be 

created by the Constitution in order to use any portion 

of the Available University Fund for their support and 

maintenance, it is vested in the people of the State of 

Texas to be exercised by a vote of such people cast at 
Ron. James E. Taylor, Page 6 (V-818.) 

an election regularly and properly called for such 

purpose o 

But, as hereinabove determined, the specifio 

grant of power contained in the Constitution to erect 

and maintain The University of Texas is no limitation 

upon the power of the Legislature to create other schools 

of similar purpose, and to maintain them by appropriations from the General Revenue Fund of ~the State of Texas and to place the management of such instltutons as 

the Legislature may deem expedient under the Board of 

Regents of The University of Texas or some other agency. 

Mumme v. Marrs, supra. And the fact that the Legislature may have created such institutions and located them 

in Houston and oonstituted them branches of The University of Texas would not change their status as statutory branches as distinguished from constitutional branches. Such a statutory branch of The University of Texas 

may be fully 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 

money out of the General Revenue Fund of the State for 

the erection of buildings of The University of Texas further demonstrates the conclusion expressed that the framers of the Constitution intended that the Available University Fund should be and remain a special fund for the 

purpose of supporting and maintaining The University 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. 

We have revlewed.the matter and conclude that 

the former opinion of Hon. D. A. Simmons herein referred 

to concerning the School of Mines~ of The University of 

Texas is correct; and we therefore follow that opinion. 

Accordingly, our answer to the submitted question is in 

the negative. 

The Legislature may make appropriations 

from the General Revenue for erection Of 

buildings and other permanent improvements at 
Hon. James E. Taylor., Pate 7 (V-818.) 

the Dental College of The University of Texas 

and the M.,D, Anderson~Rospital for Canoer 

Researoh, both looated in,Houston, Texas. 

Neither igstitution is a constitutional branch 

of The University of Texas for which the Permanent University Fund was .oreated. A. Go Opinion No. 2731 dated April 18, 1928 to 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 OF TEXAS 

CEO:mw 

,ti7pChester E. Ollison 

Assistant