Honorable H. C. Heldenfels OpiniOn NO. C-525 

President of the Board 

The Texas A & M University System Re: Coeducational status of 

College Station, Texas Texas A & M University. 

Dear Mr. Heldenfels: 

Your request for an opinion of this office concerns 

the policy of the Board of~'Directors of the Texas A & M University System in allowing wives and daughters of staff member8,and students and widows and daughters of deceased staff 

members to enter the undergraduate day school. You seek 

interpretation in the light of the Federal Civil Rights Act 

of 1964 and in the light of the equal rights (equal protection) provisions of the State and Federal Constitutions. 

Title IV of the Civil Rights Act of 1964 pertains 

to desegregation of public education. Section 410 provides: 

"Nothing in this title shall prohibit 

classification and assignment for reasons 

other than race, color, religion, OP national origini" 

Although the privilege of admlsslon to a publicly 

supported Institution is a clvll right, in view of the express provisions above quoted, you are advised that the Civil 

Right8 Act of 1964 does not require Texas A & M University to 

admit female students. 

In order to ascertain your con8titutlonal position 

we must first determine the status of the rule adopted by 

the Board of Directors. In Foley v. Benedict, 122 Tex. 193, 

55 S.W.26 805 (1932), speaking of the power8 of the Board of 

Regent8 of the University of Texas, the Supreme Court of 

Texas stated: 

II Since the board 'of regents exercises'delegated powers, its rule8 are of 

the 8ame force a8 would be a like enactment 

of the Legl8lature, and its official interpretation placed upon the rule so enacted 

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Honorable H. C. Heldenfels, page 2 (C-525) 

becomes a part of the rule. West Texas Compress & Warehouse Co. v. R. Co. (Tex.Com. 

App.) 15 S.W.(2d) 558,560.” 

This case goes on to provide: 

The Legislature of this state not 

having Provided who shall be admitted to the 

University, and having delegated the power to 

make rules and regulations necessary to the 

government of the University, to the board of 

regents, they are invested with the power of 

determining what classes of persons shall be 

admitted to the University, provided that the 

rules and regulation8 in that regard must be 

reasonable and, not arbitrary. . . So the courts 

are usually dialnclined to interfere with regulations adopted by school boards and they will 

not consider whether the regulations are wise 

or expedient, but merely whether they are a 

reasonable exercise of power and discretion 

of the board. . . .'I (Emphasis added.) 

Next we must determine the class to whom the rules apPlY. Foley v. Benedict, ibid, states: 

"A student who is admitted to the University receives the privilege of attending 

that institution subject to the reasonable 

rules and regulations promulgated b th 

board of regent8 existing at the tige 0: 

his entrance into the school. The educational facilities of state-supported instltutlons of higher learning are at the disposal of the average student engaged in a 

particular field of study, and a standard 

of excellence which the average student in 

a particular field of etudy is able to 

satisfy is not an unreasonable regulation. . 

. . ' (Emphasis added.) 

Hence we see that the right to attend a school attaches 

to the student and any classification established must be based 

upon the qualification of the student and not some person to 

whom the student may be related by affinity or consanguinity. 

The authority of the Board of Director8 to exclude 

female student8 from TeXa8 A & M University is governed by 

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Honorable H. C. Heldenfels, Page 3 (C-525) 

the principles of law announced In Heaton v. Bristol, 317 S. 

W.2d 86 (Tex.Clv.App. 1958, error ref.) cert.den., app.dism., 

79 S.Ct. 802, 359 U.S. 230, reh.den. 70 S.Ct. 1123, 359 U.S. 

999, and Allred v. Heaton, 336 S.W.2d 251 (Tex.Civ.App., 

error ref., n.r.e.) cert.dism., app.den. 81 S.Ct. 293, 364 

U.S. 517, reh.den. 81 S.Ct. 459, 364 U.S. 944. It is clear 

that the Board of Directors of the Texas A & M University has 

the right, at any time, to cause the student body at the University to be either all male or fully coeducational. 

The present policy of the Board of exclusion of student applicants for the sole reason that said applicants are 

not wives or daughters ofaff members or students, OP widows 

or daughters of deceased staff members, is, in our opinion, 

discriminatory and an unreasonable class distinction. There 

may be other facts and reason8 for the limited class dlstinction that have not been called to our attention. 

In undertaking to determine whether or not the Board 

of Directors ha8 the authority to establish a limited classification of females who shall be eligible to axtend Texas 

A & M University, It would be necessary to have a fact determination on which to base the underlying rules for such classlflcatlon. This is a function which can only be performed in a 

court of law. The Attorney General'8 office does not have 

available to it any method of fact determination. (See attached copy of Opinion Request Procedure for State Officers, 

Agencies, Boards and Departments.) We can, therefore, only 

furnish you with the guiding principles of law upon the ba8iS 

of which you may make the initial fact finding. 

The policy of admitting female student8 on a competitive ba8iS to the graduate school or to courses not offered in 

any other state-supported Institution (such as veterinary medicine) in no way affects the principles enunciated in this 

opinion. 

In view of the recent decision of the Supreme Court 

of Texas In Texas State Board of Examiners in Optometry v. 

i?iP 388 s*w*2d 4oy (lY 

b5), an applicant for admlsslon to 

e Texas A & M University who Is denied admission by virtue 

of an order of the Board of Directors ha8 the burden of showing that the administrative order does not have reasonable 

support In substantial evidence. 

Article 1, Section 3 of the Texas Constitution provides: 

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Honorable H. C. Heldenfels, Page 4 (C-525) 

"All free men, when they form a social 

compact, have equal rights, and no man, or 

set of men, is entitled to exclusive separate public emoluments, or privileges, but 

in consideration of public services.” 

Article 1, Section 19, says: 

"No citizen of this State shall be deprived of life, liberty, property, privilege8 

or immunities, or in any manner disfranchised, 

except by the due course of the law of the 

land;" - 

Speaking of the Issues 

a statute in the light of these 

Court of this State ha8 8aid: 

"We recognize that the test is whether 

of constitutional validity of 

two provisions, the Supreme 

there 18 any basis for the cla8slfication 

which could have seemed reasonable to the 

Leglelature. . .Before we may strlke,lt down 

it must appear that there Is no reasonable 

relationship between the classes created and 

the Dulpoaes to be accomDlished or the evils 

to be prevented." San Antonio Retail Qrocers 

v. Lafferty, 156 Tex. fzi14 917 5'16 ?FJ? s W 

?.?d 613, 1515-816 (1957): ' - ' ' ' 

The constitutional purpose of Texas A & 

is set forth in the first sentence of Article 7, 

the Texas Constitution: 

M University 

Section 13 of 

"The Agricultural and Mechanical College 

of Texas, established by an Act of the Leglslature passed April 17th, 1871, located in 

the county of Brazos, is hereby made, and 

constituted a Branch of the University of 

Texas, for instruction In Agriculture, the 

Mechanic Arts, and the Natural Sciences connected therewith. . . .'I 

The Legislature has defined this constitutional object by the 

enactment of Article 2608, Vernon's Civil Statutes, which read8 

as fOllOW8: 

“The leading object of this College shall 

be without excluding other scientific and 

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Honorable H. C. Heldenfels, Page 5 (C-525) 

classical studies, and Including military 

tactics, to,,teach such branches of learning 

as are related to agriculture and the mechanical arts, in such manner as the legislature may prescribe, in order to promote 

the liberal and practical education of the 

industrial classes in the several pursuit8 

and professions in life.” 

In Linen Service Corporation v. Abllene, 169 S.W.2d 

497 (Tex.Civ.App. 1943, error ref.),the court neld void a city ordinance imposing a license fee on suppliers of linen service 

if the washing was done outside the city limits, saying: 

“A linen service company, even though a 

resident of Abilene, if it has Its laundering, 

washing or cleaning dones outaide said city. :, 

may not, unless it takes out a license, deliver Its laundered, washed or cleaned linens, 

towels, cloths or clothes for use in said city; 

,thereby discriminating against It in favor of 

persons, firms or corporations engaged In the 

same business and differing only In the fact 

that they have their linens, towels, cloths, 

or clothes laundered, washed or cleaned indde said city. 

“Corpus Jurls Secundum under the head of 

tDlscrlmination Based on Residence or Citizenship’ and not exactly apropos to that subject, 

butnone the less true, say8 that ‘Attempts 

to distinguish between persons engaged in the 

same business merely on the basis of the locatfon of their business houses: is generally 

held unconstitutional as a denial of the equal 

p~rotection of the laws; and this rule applies 

even where the discrimination operated,only 

within the limits of a municipality.” 169 S, 

W.&i at 500. 

The same sort of vice has been recognized and struck 

down by the Court of Criminal Appeals. 

In Ex parte Dreibelbis, 133 Tex.Crlm. 83, 109 S.W.2d 

476, 497 (193) the Court of Criminal Appeals, in holding invalid~ a kicensihg ordinance imposing a license fee on a”temporary merchant” but exempting those in business in the city for 

a year OF more, said: 

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Honorable H. C. Heldenfels, page 6 (C-525) 

“That ,the ordinance in question lsdlscrlmlnatory Is clearly demonstrated by the 

fact that a person who has been engaged in 

one of the designated businesses In said city 

for a year or more Is exempt from the,payment 

of the tax, while another person who has been 

so engaged for such length of time 1s subject 

to the payment of the tax, and, for his failure 

to do 80, punishable by fine, although both 

parties may be engaged in the same kind of 

business, carrying the aame kind and the same 

amount of merchandise. If this Is not dlscrlminatlon, then what Is It." 

The question of whether or not a student can acquire 

a derivative legal right by reason of parentage or marriage Is 

disposed of by the following statement In 12 Tex.Jur. 453, 

Constitutional Law, Sec. 103: 

"In prohibiting exclusive separate public 

emolument8 or privileges except in consideration 

of public services the constitution declares the 

principle of equality in political rights and a 

denial of title to individual privileges, honors, 

and distinctions except for public services. The 

provision is directed against superiority of 

personal and political rights, distinctions of 

rank, birth, or station; and all claims of emoluments by any man or Set of men over any other 

citizen. It declaree that honors, emoluments, 

and privileges of a personal and political 

character are alike free and open to all the 

citizens of the state." 

Ordinarily there is a presumption of constitutionality 

when an attack Is made upon a statute, but the right in question 

here, i.e., the right to attend a state-supported Institution 

of higher education, 18 a civil right (although not covered specifically by the Civil Right8 Act of 1964),. The Supreme Court 

of the United State8 ha8 said: 

"There is no presumption in favor of the 

con8titutlonallty of any regulation involving 

civil rights." Schneider v. State of New 

Jersey, 308 U.S.m-(rV59). 

Perhaps the best exposition of the lnabil$ty to create 

arbitrary class legislation is contained In Ex parte Smythe, 28 

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Honorable H. C. Heldenfels, page 7 (C-525) 

S.W.2d 161 (Tex.Crlm. 1930), where 

the right of the City of Marshall 

question was raised as to 

person-engaged in the bUSine88 of 

from transacting any part of that 

that city. The Court pointed out 

lect his bill on the city street8 

no mention of a past due note. 

to make it unlawful for a 

lending and collecting money, 

business on the streets of 

that the grocer could colwhile the banker mlght make 

In view of the foregoing, there is a serious legal 

quastion as to whether or not, on a trial in court, we could 

successfully defend an attack upon the present classification 

established by the Board of Directors for admission of female 

students as being a reasonable classification. We would like 

to point, out, however, that even if this cla88lflcatlon were 

SUCCessfUlIy attacked in court the Board of Directors would 

still have full authority to make Texas A & M University either 

all,male or completely coeducstlonal withoutany prejudice to 

such a,uthority having arisen from the present system of limited 

cla8slflcation. 

SUMMARY 

1; The Civil Rights Act of 1964 Is not applicable to rules and regulations of Texas A 

& M University Insofar a8 discrimination 

by sex is concerned. 

24 The Board of Directors of Texas A & M Unlversity ha8 the unquestioned right to Issue 

rules and regulations making the University 

either all male students or all coeducatlonal.’ 

3. The present policy of the Board of exclusion 

of student applicant8 for the sole reason 

that said applicant8 are not wm or daughters of staff members or students, or widows 

or daughters of deceased staff membera, is, 

In our opinion, discriminatory and an unreasonable class distinction. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

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Honorable H. C, Heldenfels, page 8 (C-525) 

Assistant Attorney General 

APPROVED: 

OPINION COMI!lTEE 

W. V. Geppert, Chairman 

Sam Kelley 

James Strook 

Vlnce Taylqr 

Jerry B-rock 

APPROVED FORTHE ATTORN?ZYGENERAL 

B9: T, B. Wright 

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Honorable H. C. Heldenfels, page 9 (C-525) Austin, Texas 

January 28, 1963 

OPINION REQUEST PROCEDURE 

To District and County Attorneys and County Auditors of Texas: 

This memorandum details the opinion request procedure of the Attorney General’s Office, and it is distributed to facilitate a mutual understanding between the Attorney General and those officers entitled to secure his 

opinions. 

1. County Auditors opinion requests should be submitted to the County 

or District Attorney in accordance With the provisions of Article 334 of Vernon’s Civil Statutes. If the County or District Attorney fails or refuses to 

answer the Auditor’s request, or if the County Auditor, County Judge or any 

officer affected by the opinion disagrees with the County or District Attorney’s opinion, or believes that it is in conflict with former opinions of the 

Attorney General’s Office, then this department will accept an opinion request direct from the County Auditor. 

2. County and District Attorneys and Criminal District Attorneys 

should request opinions in accordance with Article 4399 of Vernon’s Civil 

Statutes. The request should give a complete statement of facts rather than 

a hypothetical question, and the County or District Attorney should not submit the request if the same is involved in either civil or criminal litigation. 

Further, the officer requesting the opinion should file a complete brief with 

his request, giving the conclusions of the briefer and the reasons which 

support his views. If the County or District Attorney briefs the questions 

very carefully at the local level, he will resolve a multitude of problems 

without calling on this office for aid and assistance. However, if his opinion does not settle the question, then his brief will be of invaluable assistance to the Attorney General and the members of his staff. 

3. Regardless of whether the opinion request is submitted by the 

County Attorney, District Attorney, Criminal District Attorney or County 

Auditor, it must clearly appear that the requester has an official interest in 

the subject matter involved and that the official or officials are not just asking the question for their own information and enlightenment. Questions involving cities OP independent school districts and the like should not be submitted unless they concern a subject covered by the jurisdiction and duties 

of the office of the official submitting the question. 

This practice will enable our office to render quicker and better service on legitimate requests for opinions, and your full and complete cooperation will be greatly appreciated. 

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General of Texas