Ron. George Moffett, Chairman State Affairs Committee Texas Senate Austin, Texas

Dear Sir: Opinion No. V-31

Re: Constitutionality of Senate Bill No. 140, establishing

a statutory university for negroes, and related questions

.
On behalf of the State Affairs Committee of the Senate, you have submitted a copy of Senate Bill No. 140, providing for the establishmentof a negro university, togetherwith the following question:

"Is Senate Bill No. 140, in the form attached hereto, constitutional? If not, the Committeewould be pleased to have your department point out amendments or deletions which would bring said Bill into conformitywith the Constitution of this State."

The subject and purpose of the proposed bill is stated in the caption as follows:

*AnAct providing for the establishment, support, maintenance, and direction of a University of the first class for the instruction and training of the colored people of this State in all
courses of instructiontaught at The University of Texas and its branches to be known as 'TheTexas State University for Negroes' and to be located atHon. George Moffett - Page 2

Houston, Harris County; and providing for an Agricultural andMechanical College for colored students to be ,knownas 'ThePrairie View Agricultural and Mechanical College' as same is now located at PrairieView, Wailer County;making an appropriation;and declaring an emergency."

To fully complywith your request, it is necessary to examine the provisions of the Texas Constitutionand the Constitution of the United States, and to review the background and interpretationsthereof as applied to the field of higher education for negroes in this State. Therefore, you will pardon the necessary length of this opinion:

TEXAS CONSTITUTIONAL PROVISIOEF,

Under the Texas Constitution, public education is a division or department of the government, in the conduct of which the Legislature has all legislativepower not denied it by the Constitution. (Mumme,et al vs. Marrs Texas Supreme Court, 31). opinion by Judge Cureton, 40 S. W. (2d) Section 1 of Article VII, of the Constitutionof Texas, reads as follows:

"A general diffusion of knowledgebeing essential to the preservation oftthe liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of
an efficient system of public fxee schools."

Section 40 of Article III of the Texas Constitution empowers the Legislature "to levy taxes or impose burdens upon the people" to raise revenue for many purposes, among them the following:

"The support of public schools, in which shallbe included colleges ja& universities establishedb the State;

. . .'I 7‘i7Xerscoringours7

From the above it is clear that the Legislature of Texas has the power to provide for the establishmentandbn. George Xoffett - Psge 3

operationof a negro universityas contemplatedby Senate Sill 140,,unless there is some other constitutionalprovisionwhich prohibits such action or directs that it be accoalished in a differentmanner. That brings us to an examination of Section 14 of Article VII, of the Constitution zfTexas, the only other constitutionalprovision relating iiirectly

to this question. It reads as follows:

"Sec. 14. Branch University for Colored.--TheLegislature shall also when deemed practicable,establish and provide for the maintenance of a College or Branch University for the instructionof the colored youths of the State, to be locatedby a vote of the people;Provided, that no tax shall be levied, and no money appropriated, out of the general revenue, either for this purpose or for the establishment,and erection of the buildings of theUniversity of Texas."
Immediatelywe are facedwith the question of whether the University contemplatedby Senate Bill 140 is the same as.that oontemplatedby theu;ritersof the above Section of the Constitution in 1876. Is it to be a College (integralpart of a university)or a Branch of the University of Texas? Does the Le.+lature by this Bill "deem it practicable"to provide for the establishmentand maintenance of such College or Branch out of the available fund accruing from the PermanentUniversity Fund and without aid of taxes and appropriations from the General Revenue as would be requiredby the above section of the Constitution? We think the answer is *no**to both of these questions. It is clear from a reading of Senate Bill 140 that the proposednegro university is not to be a Cqllege or Branch of The University of Texas. Its passagewould evidenceno indication that the Legislature "deems it practicable" to establishand maintain suchUniversity under the limitation as to
use of taxes and general revenue for such purpose. On the contrary, passage of Senate Bill 140would indicate that an entirelyseparate university for negroes is to be established free and independent of The University of Texas with full right to establishment,maintenance and erection of buildinas out of the General Revenue Fund of the State.

This conclusion forces the question of whether the Legislature having been authorizedwhen "deemed practicable" to establisha negro university in the manner set out in Section 14 of Article VII of the Constitution, can lawfully adopt aHon. George Moffett - Page 4

differentmethod and establisha different school out of other State funds. In otherwords, does the above section of our Constitution limit the manner of establishin? a nerro school of hither leominT to the procedureand fund~s providedtherein? If so, the statutory school proposer! in SenateBill 140 is unconstitutional,and the only means of creating a negro university in Texas is to establish it as a College or Branch of The University of Texas without appropriations from the general revenue, and its locationnust be inAustin, the city chosen for such college or branch by a vote of the people in 1882. If not, Senate Bill 140 is constitutional, and the negro universitymay be established out of general revenueand at any locationdesired by the Legislature.

We are familiarwith the rule of law that a constitutional provisionas to how a thing shallbe done cotititutes

an implied prohibitionof its being done in.any othermanner. However, when the constitutionalprovision is not mandatory but leaves discretionwith the Legislature as towhen, if and how a thing is to be done, it should never be construed

as a limitationby implication on the general power of the Legislature to accomplish the desired end in anothermanner. Especially is this true in the present casewhere another constitutionalprovision (Section48, Article III) written in the same Convention; expressly recognizesthe power of the Legislature to establish and operate other collegesand universities in anothermanner.
Constitutionalprovisions, like statutes, are properly to be interpreted in the light of conditionsexisting at the time of their adoption, the general spirit of the times and the prevailingsentiments of the people. (Rummevs.Marrs, supra) The universal rule of construction is that legislative and executive interpretationsof the organic law, acquiesced in and long continuedare of greatweight in determining the validity of any Act; and in case of ambiguity or doubt will be followed by the courts. 9 Tex. Jur. 439, 6 R. C. L. 62,Mumme vs. Marrs, supra. To understandthe intention of the writers of the Texas Constitution and the legislative and executive interpretationsof the question since 1876, it is necessary thatwe review the history of the educational articles of the Texas Constitution.Hon. Geoqe Moffett - Page 5

HISTORYANIlINTERP~ZT3TIONSOF SECTION 14, AFTTCT3

VII, AND LOTION 48, AETICLF,III, COIZ3TITUTION

OF TEXAS:

The Constitutionof 1865 providedgenerally for a system of education, including "Africans and their children." The ,Zonstitution

of 1869made no provision for a University of any character. In 1871, taking advantage of a Federal land rrant, theAFricultursl andMechanical College was established by statute and locatednear Bryan, Texas.

The ConstitutionalConvention of 1875, headed by E. B. Xckett (who laterbecame the President of the Board of Directors of theA6ricultursl andMechanical College) undertook anon.?

other thing, to provide for the establishmentof oublic free schools and institutionsof hi.c;her learning. That iody pmcose? the document vrhich becane the Constitutisnof 1976. The pertinent educationalprovisions still exist in the origins1 form in X-title III as quoted hereinabove and in ArticleVII, as follows:

*Sec. 10. The.Le,&slature shall as soon
as practicableestablish, 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 stgled, 'TheUniversity of Texas', for the promotion of literature, and the arts and sciences, includin,?

an Agricultural, and ?Lechanical department.

"Sec. 11. In order to enable the Legislature to perform the duties set forth in the foregoisqSection, it is hereby declared that all lands and other property heretofore set apart and agprooriated for the establishmentand maintenance of The University of Texas, together with all the proceeds of sales of the same, heretofore made or hereafter to be made, and all qrants, c'onations

and appropriations that may hereafter be mode by the State of Texas, or from any other source, shall corstitute and became a permanentUniversity Fund.

. . .
Vet. 13. The ASriculbural andMechanical College of Texas, establishedby an Act ofHon. GeorgeMoffett- 'Page6

the Legislature passedApril 17th, 1871, located in the County of Brazes, is hereby made? and constituteda Branch of The Universlty of Texas, for Instruct~ion inAgriculture,theMechanic Arts, and the Natural Sciences connected therewith. And the Legislature shall at itsnext session, make,
an appropriation,not to exceed forty thousand dollars, for the constructionand completion of the buildings and improvements, and for providing,the furniture necessary to put said College in immediate and successful operation.

"Sec. 14. The Legislature shall also when deemed practicable,establish and provEle for the maintenance of a Coflege or Branch University for the instruction ofTh= ored youths of the State, to be locatedby
a vote of the people: Provided, that no tax shallbe levied, ,andno money aopropriated, out of the general revenue, either for this purpose or'for the establishmentand erectionof the buildings of The University of Texas. (Underscoringours).

"Sec. 15. Inaddition to the lands heretofore granted to The University of Texas, there is hereby set apart, and appropriated, for the endowment,maintenance, and support of said University and its branches,
one million acres of the unappropriatedpublic domain of the State, to be designated and surveyed as may be providedby law; and said lands shall be sold under the same regulations,and the proceeds invested in the
same manner, as is provided for the sale and investment of the permanentUniversity fund; and the Legislature shall not have power to grant any relief to the purchasers of said lands."

A fewmonths after the Constitution of 1876 became effective, the Legislature byAct ofAugust 14, 1876 (Acts 15th Leg. ch. 92, p. 136; 8 Gammels Laws, p. 972); provided for an Agricultural andMechanical College for the benefit of colored youths,which was placed under the supervision of the Agricultural andMechanical College established at Bryan in 1871.son.George Moffett - Page 7

The message of Governor 0.M6.Roberts to the Legislature, ,pril6, 1882, discloses that instead of erectingbuildings for this institution, the land and buildings of Alta Vista, ::e:'r Xempstead,were purchased and a school organized. The :n-ispristionfor this institutioncame out of the General
.._ , .?evenue

and not out of The University Funds. Governor Roberts -aid "it is evident that this was not intendedby the Legislat?lre to be the 'collegeor branch university' referred to in iectian14,Article VII of the Constitution. For in the same section providing for thatbranch (Sec. 14) it is expressly orovidej that its location shallbe determined by a vote of the ?eocle,and that 'no tax shall be levied and no money approyriatedout of theGeneral Revenue for this purpose',which :sulE hardly have escaped the attention of the Legislature if ?heyhad intendedby thisAct to establish the 'collegeor jranch university'."

The 16th Legislature (ch. 59, p. 181; 1879) provided for '1 normal school at PrairieView (fomnerlv calledAlta Vista) -?nd attempted to appropriate from the University Fund $S,OOO.OO \ "or its support. Prior to 1882 there were other appropriations :?3?eto the PrairieView School out of the availableUniversity Yund and other indications that certain officials believed this ?:3 be the ColoredBranch contemplatedby Section 14 of Article VII.

Pursuant to the Constitutionalmandate, the Legislature in .1881passed anAct creatingThe University of Texas and provided for a vote of the people to fix its location. The electionwas held and the proposalto separate the main university from the Medical Department prevailed,Austin being chosen for the former and Galveston for the latter.

In 1882 the Legislature recognized that the Prairie View Normal was not the coloredbranch of the University mentioned in the Constitution,and an electionwas ordered for the first Tuesday after the firstMonday in November, 1882, to locate this branch. (Acts 1882, ch. 19, p. 25). The contesting placeswere Austin, Prairie View, Houston, Palestine, Paris, Brenham, Pittsburg and Georgetown. Austin was again successful. Governor Roberts in his message to the 18th Legislature, delivered January 10, 1883, said "all branches of The State University have now been located; the main branch at Austin; the 'uiedical

Department at Galveston; the Agricultural and Mechanical College at Bryan; and at the late General Election, the branch university for colored youths at Austin."Hon. George Moffett - Page 8

At-the Regular Session of the 18th Legislature in 1883, an Act was passed to "provide for the permanent endowment, in lands or,its proceeds, of The University of Texas and itsbranches, including the branch for the instructionof coloredyouths." (Acts 18th Leg., oh. 72, p. 71). This act set aside onemil- 'lion.acres for an additional endowmentof TheUniversity and its branches. The branch for coloredyouthswas expressly included.

Between 1883 and 1897 no legislationpertainingto a negro college or branch of The University of Texaswas passed,althougl several billswere proposed. In 1897 the Legislature set aside

one hundred thousand acres of.the public domain to be used for the endowment of the coloredbranch'~(26th Leg., 1897, ch. 109, p. 148), but later itwas held that the public domainwas exhausted (92Tex. 58) and this endowmentwas ‘neverconsummated.

In 1931Article 2592was enacted,which provided,among other things, that after September 1, 1934, theAvailable University Fund, derived as revenue from the Permanent Fund of one million acres of land provided for in the Constitutionand the additional onemillion acres of land provided for in the Statute of 1083, should be allocated to The University of Texas and the Agricultural and Mechanical College in the proportions of two-thirds and one-third, respectively.

The 49th Legislature in 1945 enactedArticle 2643a which changed the name of Prairie View State Normal and Industrial College to "PrairieView University." TheAct furtherprovided
that "whenever there is any demand for same, the Board of Directors of the Agricultural andMechanical College, in addition to the courses of study now authorized for said institution is authorized to provide for,the establishmentof‘-courses in law, medicine, engineering,pharmacy, journalism,or any other generally recognized college course taught at the University of Texas, in said Prairie View University,which courses shall be substantially equivalent to those offered at the ,University,of Texas.

When two additional'statutory schools (WestTexasA. & M. College and North Texas Agricultural College)were proposed in 1917,Attorney General B. F. Looney was asked for an opinion on the constitutionalityof their establishmentat places other thanAustin or Bryan. The problem involved the same question Of whether the Legislature had the power to-establish inatitutions of higher learning in any other manner than as provided inArticle VII of the Constitution. In an able opinionwritten by Luther Nickels,who later served as a Commissioner to the Texas Supreme Court,,it was held that the Legislaturewas authorized under Seotion 48 of Article III, supra, to establish

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Ron. George Moffett - Page 9

other colleges and universitiesand support them out of the general revenue.
Judge Nickels pointed out that such statutory universitieswould not be branches of The University of Texas within themeaning ofArticle VII. follows: A portion of this opinion is as

YSection 48 of Article 3 of the Constitution empowers the Legislature 'to levy taxes or imposeburdens upon the people,' to raise revenue for the economical administration of the government in which may be included the following purposes:

"t

. . .The support of public schools, in which shall be included colleges and universitiesestablishedby the State;

,

. . .

".

. .The language is that the Legislature may prov1d.e

for 'collegesand universities,' --both termsbeing in the plural. This general language, undoubted-, lv. includes the 'Universitvof Texas' and the 'AgriculturalandMechanical College' establishedby theAct of April 17, 1871, but it also includes such other 'colleges and universities asmay be establishedby State'. The term 'establishedby the State' is both prospective and retrospective inmeaning; thismust be true, because itmodifies the term 'collegesand universities." at the time the-- plural terms, -- while:

provisionwas adopted, there was but one university and one college forwhoseestablishment provmon had beenmade by the Legislature. The people certainly intended that support should be given the one university and the one college already established; they as clearly intended that othersmight be established, else theywould have limited the provision to the one university and the one college instead of using the general plural terms 'collegesand universities.' theHon. George Moffett - Page 10

“.

. .

n

. . . Who, then, shall determinewhat shall constitute a 'college'or a 'university,' howmany and what kinds of 'collegesand universities'we shall have, and when andwhere they shall be located? The answer is obvious The body -- the Legislature -- inwhom is vested,the general power, has also the powerto do all things needful for the full accomplishment of the general purpose.

. . .And that the 'collegesand universities1which may be established under the authority of Section 40
are not limited in number or kindby the provisionswith respect to the 'Universityof Texas' and the particular *Agriculturaland Mechanical College' referred to 1s~ a proposition demonstrable by the fact that the general language of Section 48 ismuch too broad to be limited to these,two institutionsand their branches."

In 1928, the Attorney Generalwas called upon to determir whether the School of Mines and Metallurgy was a branch of The University of Texas within the intendment of Article VII ~ofti Constitution, and if sowhether money could be appropriated OL of the general-revenue to be used for the erection of buildin at El Paso.

An Opinion by D. A. Simmons, then FirstAssistant Attornc General, and recently President of theAmerican Bar Associatic held that the schoolwas not a branch of The University; that 'the Legislature had full.authorityto establisha School of Mines and Metallurgy at El Paso under authority ofArticle II: Section 48, including erection of buildingswith generalrevenue funds. A portion of the opinion reads:

"It is a matter of common knowledge that the availableUniversity fund is not sufficient at this time to pay for the erection of buildings needed at the main universityand the Medical-Department to say nothing of the School of Mines and Metallurgy.

. . . If the School of Mines andMetallurgy is limited by Article VII, Section 14, as a part of the University of Texas, it can look only to the availableUniversity fund just as the University proper, the Medical Department and theHon. George Moffett - Page 11

colored branchmust look to that fund. Parentutional provision, itmay apply to the Legislature for all necessaryrelief.

*In our opinion, the School of Mines and Metallurgy is not a branch~ofthe University of Texas, as the term 'branch'is used in the Constitutionof Texas." (Underscoringours)

In Mumme vs.Marrs.,supra, Chief Justice Curetonwrote that Section 5 ofArticle VII defining the Available School Fund, and declaring that "it shall be distributed to the several counties according to their scholastic population",

was not a limitationwhich prevented the distribution of an appropriation from the general revenue for common school districts in accordancewith the Rural Aid Act. In arriving at such conclusion,Chief Justice Cureton said:

"The history of educational legislation in this State shows that the~provisions of ArticleVII, the educationalarticle of the Constitution,have never been regardedas limitations by implication on the general Dower"--'-' - of the Legislature to pass laws upon the subject of education. This article disclosesa Gell-considered 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 learningwere expressly provided for....The Legislature, however,has gone far beyond the creation of the three institutionsof higher learning specifically requiredby the organic law, and has created ten additional MStitUtiOnS of similar characterwithout direct COnStitUtional grant, beginningwith the Sam Houston Normal in Huntsville in 1879.

. . . In founding these ten institutions, beginningmore than fifty years ago, the Legislature has necessarily held that the specificgrants of power contained in the Constitution to erect and maintain the University of Texas

. were not linitations on its power to create-other schools ofHon. GeorgeMoffett - Page 12

similar purpose, and to maintain them by appropriations from the General Revenue. This interpretationhas never been questioned,and is consistentwith authorities: from other jurisdictions.

. . .I1 (Underscoring ours).

This holding in Mumme vs. Marrs was reaffirmedby the Supreme court of Texas in giving an unqualified refusal to
an application for writ of error inWatson vs. Sabine Royalty Corporation, 120 S. W. (2d) 938, a case upholdingthe constitutionalityof a legislativeAct providing for a different .rateof tax valuation in a particulargroup of countiesby a method different from that set out in the Constitution.

In the meantime, the Legislature, under its generalpowers and those specifically authorizedby Section 48,Article III of the Constitution,has established to date fourteen statutory colleges, to wit:

John Tarleton Agricultural College, North Texas Agricultural College,Texas State College for Women, Texas College of Arts and Industries, Texas Technological College, College of Mines and Metallurgy, East Texas State Teachers College, North Texas State Teachers College, Sam HoustonState Teachers College,Southwest State Teachers College,Stephen F. Austin State Teachers College, Sul Ross State Teachers College,West Texas State Teachers College, and PrairieView University.

It is important to note that although one of these statutory colleges is undermanagement of The University of Texas Board of Regents, none of them have been held to be a branch of The University or subject to-limitationsor restrictions imposedby:ArticleVII on the funds thatmay be used therefor.

CONCLUSIONOF TEXAS COBSTITUTIOX4LPROVISIOW

The above background and history of legislative, judicial, and executive interpretations leave no cloubt about the intent of thewriters of the educationalprovisions of our Texas Constitution. They intended to provide for establishment of a greatUniversity of Texas with a separatenegro College or Branch to be established and maintained out of the availableUniversity Fund. But in Svicle VII, they left the time -- the "if" and "when" -- of such establishment to the sound discretion of the Texas Legislature byHon.George Moffett - Page 13

use of thewords "when deemed practicable"bythe Legislam ture.

The samewriters, in the same document (Sec.48,Art. III), intended the establishmentandmaintenance of other collegesand universitiesout of general revenue funds. The first of these statutory institutionswas in fact a negro college at Prairie View created by legislativeAct in 1876, shortly after the present Constitutionbecame effective. Some of the members of the ConstitutionalConventionwere also members of the Legislaturewhich interpreted the new Constitutionas permitting and authorizing

a statutory college in addition to the constitutional branchmentioned in Section 14. As heretofore pointed out, the President of the ConstitutionalConvention later served as President of the Board of Directors of A. & M. College and helped to organize and direct the activities of the separate negro college at PrairieView. If it be true that Section 14 presents the only manner in which a negro college can be established,then PrairieView University has been operated in violation of the Texas Constitution, since 1876. Such a constructionwould do violence to the plain and unambiguouswords of the Constitutionand to the intent and interpretationsplaced thereon by the
men who wrote the document and the legislative and executive~interpretationsmade thereon for the past 70 years. True, therewere a few years during which certain officials mistakenlybelieved that Prairie View was the constitutional branch of The University and entitled to 'theuse of the availableUniversity Fund (evenJudge Curetonmistakenly referredto it as such in dictum inMumme vs. Marrs, suPra). But for the past 64 years Prairie View has been treated by the Legislature as a separate statutory institution entitled to appropriations from the General Revenue Fund. As stated above, during these years the Legislature has continued to so interpret and use its power in the creation of 13 additional statutory institutions of higher learning.

It is evident that during the past 70 years the Legislature has deemed it impracticableto establish and maintain a negro college or branch financedwholly out ofcome from the PermanentUniversity Fund. An examination of the available revenues from such fund d,uringthe past 70 years revealswhy such action was not only impracticable but impossible. Since 1876, the revenues from the fund have not been half enough to finance the building program, maintenance and operation of the Main University and the Medical Branch. During the same period of time it has beenHon. George Moffett - Page 14

necessary for the Legislature to appropriate from the General Revenue Fund in excess of fifty-threemillionsdollarsto maintain and operate these two institutions. Texas A. 6c M. College receivedno part of the available fund until 1931, and its share of one-third of such fund produces only a fraction of themoney necessary to maintain and o*mrateA. & M. College. During the first year of the present bienniumthe net
revenue from the Permanent University Fund yielded only $1,932,711.41 for the Main University, theMedical Branch, and Texas A. & M. College. To this amount itwas necessary for the Legislature to add $6,299,551.89 from the General Revenue to operate these schools for the past fiscalyear. (Recordsof C. D. Simmons, Comptroller,University of Texas).

With these figures in mind, the presentLegislature is certainly justified in deeming it impracticableto build and maintain a first class negro university out of the revenues from the University Fund. Senate Bill 140 calls for a total expenditure of two million dollars for the acquisitionof land and the erection of buildings and provides onemillion dollars formaintenance and operation during the next two years. Ifmaintenance of the negrc universitywere limited to a portion of the availableUniversity Fund as required in the case of the constitutionalbranch (Sec. 14,Art. VII), itwould be impossible to sustain a first class universityof the magnitude contemplatedby Senate Bill 140.

In so far as the Texas Constitution is concerned, it is

our opinion that Senate Bill 140 is constitutional. Respecting your request for suggested changes or additions, our only advice in this connection is that a sectionbe added specifically reciting the Legislature's intent and findings as to the impracticability of establishing the school in any other manner. Suggested wording of this sectionwill be deliveredwith this opinion.

U. S. CONSTITUTIONALPROVISIONS
Fortunately, the operation of an educationalsystem within

a S,tateis still a State right. It was so held in an opinion by Chief Justice Hughes in the case of Missouri ex relGaines

vs. Canada, 305 U. S. Reports 337.' The Federal Government and the Federal Courts have not thus far interferedwith the nmnagement and operation of the educational systems of our states, except to say that under the 14thAmendment to the Constitution of the United States, equal protection of the lawmust be given all citizens, and State supported institutionsmust furnish equal facilities for bothwhite and colored citizens. As lateFlon. George Moffett -Page 15

as 1938 in the above case, the Supreme Court of the United~ States recognizedthe right of the states to have separate schools for white and negro citizens, if the separate system furnished equal protectionof the laws and substantially equal educational facilities. The Supreme Court of the United States has not spoken directly on the point since 1938, but it is sincerelybelieved that the Courtwill upholdText right to establish separate schools for negroes if it tztually and in fact provides substantially equivalent facilities and equal protectionas proposed in Senate Bill 140.

The pertinentportion of the 14thAmendment to the Constitution of the United States reads as follows:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdictionthereof, are citizens of the United States and of the State wherein they reside. No State shallmake
or enforceany lawwhich shall abridge the privilegesor immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or~property, without due process of law; nor deny to any personwithin its jurisdictionthe equal protection of the laws."

The Texas Constitution,Section 7,Article VII, provides the following:

"Sec. 7. Separate schools shall be provided for the white and colored children,and impartial provision shall be made for both."

Since 1876 the policy of this State has been to maintain separate schools and colleges as contemplatedby Senate Bill 140. The people and public officials of Texas recognize that equivalent educationalopportunitieshave not been available to the degree requiredby both State and Federal Constitutions,
or to the degree demanded by the public sentiment Of the State. But the majority of the people and public officials of Texas also recognize that the only satisfactorymeans of accomplishing equal opportunitieswithin the social order of this Stnte is to have separate schools for the separate races. A recent state-wide poll of both white and colored citizens indicated that such was the sentiment of a great majority of both
races. (BeldenTexas Poll, January 26, 1947).Hon. George Moffett - Page 16

In spite of previous decisions of theUnited States Supreme Court and the sentiment of the majority of both races, there is some agitation in this and other Southern States against separate schools. This office today is defending a case in which one of themain contentions is that the legality of separate schools be denied. (HemanMarion Sweatt vs. Painter, et al, now pending in the Austin Court of CivilAppeals). Other cases are pending in Louisiana, Oklahoma and South Carolina. In each instancethe negro applicantsare contending for admission to the State Universities for white citizens,alleging that equal facilities do not exist for negroes, and concentratingtheir attack against the constitutionality of laws requiring separate schools. These contestants evidenceas much interest in prevailingon the Supreme Court to reverse its former holdings and abolish segregation

as in obtaining equivalent education in separate schools. With this inmind several of the leading decisionsof the United States Supreme Courtwill be cited and discussed.

The United States Supreme Court in Plessy vs. Ferguson, 163U. S. 537, said the following:

"The object of,the (14th)Amendmentwas undoubtedlyto enforce the absolute .equality of the two races before the law,but in the nature of things it could not have been intended to abolishdistinctionsbased upon color, or to enforce social, as distinguished from political equality,or a comminglingof the two races upon termsunsatisfactory to either. Laws permitting, and even requiring,their separation in placeswhere they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and hasbeen generally, if not universally,reoognized as within the competency of the state legislatures in the exercise of their police power. The most common instanceof this is connectedwith the establishmentof separate schools for white and colored children,which has been held to be a valid exercise of the legislativepower even by courts of States where the political rights of the colored race have been longestand most earnestly enforced."Hon. Georgemoffett - Page 17

In the case of Missouri ex rel Gaines vs. Canada, supra, theUnited States Supreme Court considered the Missouri statutes requiring separate schools for colored and white students and reversedan opinion of.the Supreme Court of Missouri, which had denied a negro applicant entrance to the University ofMissouri Law School. In the opinion by l.9.Chief Justice Rughes, the Court ssid:

"In answering petitioner's contentionthat this discriminationconstituted a denial of his constitutionalright, the state court has fully recognized the obligation of the State to provide negroes with advantages for higher education substantially equal to the advantages afforded to white students. The State has sought to fulfill that obligationby furnishing equal facilities in separate schools, a method the validity of which has been sustained bv our. decisions. Plessy v. Ferauson,-,ls~.r2.,S. 537,544;McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S. 151 160; Gong Lum v. Rice,~275 U. S. 70, 85: 86. Compare Cumminn v. Board of Education, 175U. S-528, 544. 545. Resoondents, counsel have acoropriately emphasized the special solicitude of the State for the higher education of negroesas shown in the establishment of LincolnUniversity, a state institutionwell conducted on a planewith the University of Missouri so far as the offered courses are concerned. It .issaid that Missouri~is a pioneer in that field and is the only State in the Union which has established a separate university for negroes on the same basis as the state university for white students. But, commendable as is that action, the fact remains that instruction in law for negroes is not now afforded by the State, eitherat Lincoln University or elsewhere within the State, and that the State excludesnegroos from the advantages of the law school it has established at the University of Missouri. (Underscoringours)

"It ismanifest that this discrimination, if not relieved by the provisionswe shallHon. George Moffett - Page 18

presentlydiscuss,would constitute a denial of equal protection. That was the conclusion of the Court ofAppeals of Maryland in circumstances substantially similar in that aspect. Universit

y of Maryland v. Murray 169Md. 478; 182 A. 590. It there appeared that the State of Maryland had 'undertakenthe functionof education in the law, but had 'omittedstudents of one race from the only adequate provisionmade for it, and omitted them solely because of their color,; that if those studentswere to be offered 'equaltreatment in the performanceof the function, theymust at present,be admitted to the one school provided.,

. . .

n

. . . it appears that the policy of establishing a law school at Lincoln University has not yet ripened into an actual establishment,and it cannotbe said that a mere declarationof purpose, still unfulfilled, is enough. The provision for legal education at Lincoln is at present entirely lacking. Respondents, counsel urge that if, on the datewhen petitioner applied for admission to the University of Mis-' souri, he had instead applied to the curators of LincolnUniversity it would havebeen their duty to establisha law school; that this 'agencyof the State,, towhich he should have applied,was ,specificallgchargedwith the mandatory duty to furnish himwhat he seeks., We d,o not read the opinion of the Supreme Court
as construing the state statute to impose such
a 'mandatoryduty, as the argument see.ms to assert.

. . . "

. . .The basio consideration is not as to what sort of opportunities other States provide, or whether they are as good as those in missouri, but as to what opportunitiesMissouri itself furnishes to white students and denies to negroes solely upon the ground of color. The admissibility of laws separating the races in the enjoyment of privileges affordedby the State rests wholly upon the equality of the privilegeswhich the laws give,to the separated groupswithin the State.

. . .:-

Hon. George Moffett - Page 19

"The equal protectionof the laws is 'a pledge of the protection of equal laws.' Yick Wo v. Hopkins, 118 U. S. 356, 369. Manifectly, the obligation of the State to give the protection of equal laws can be performed onlywhere its laws operate, that is,within its own jurisdiction. It is there that the equality of legal right must be maintained.

. . .
"Nor canwe regard the fact that there is but a limited demand in Missouri for the legal education of negroes as excusing the discrimination in favor of white.

. . .
"Here, petitioner's rightwas a personal
one. It was as an individual that hewas entitled to the equal protection of the laws, and the State was bound to furnish himwithin its borders facilities for legal education substantially equal to thosewhich the State there afforded for persons of the white race,whether or not other negroes sought the same opportunity.

".

. .We are of the opinion that the rulingwas error, and that petitionerwas entitled tobe admitted to the law school of the State University in the absence of other and proper provisions for his legal training within the State."

It is interestingto.note that by the time this case returned to the Missouri Supreme Court and thence to the trial court, the Legislature of Missouri passed a mandatory statute providing an equivalent law school in LincolnUniversity (the State's negro university),and the applicant thereforewas never admitted to the University ofMissouri.

We have quoted at length from the leading Supreme Court decision on the subject so that your committeemay have full knowledge of the requirements therein announced necessary to sustain the constitutionalityof separate schools.
Briefly stated, to meet the U. S. Constitutionalprovisions, the systemmust (1) offer equal educationalopportunities and (2)offer equal protection of the laws. APPlYi%Hon. George Moffett - Page 20

this test to the plan proposed in Senate Bill 140, the first requirement of equal opportunitiesand facilities surelywill be met if this Bill is enacted and conscientiouslyadministered by the Board to be appointed thereunder.

It is only on the second requirement -- equal protection of the laws -- that advocates of a constitutional rather than
a statutory school raise two objectionsworth considering.

The first objection is that a constitutionalCollege or Branch under Section 14,Article VII of the Texas Constitution would give the negro school largerand more permanent funds than those available to a statutory university; that by devoting all of the availableUniversityFund to white schools already established,and financing the negro university from the general revenue,equal protection of laws is denied the negro race and the negro school. This objection involvesa distinctionwithout a differenceand would have no bearing whatever on the constitutionalityof Senate Bill 140. As far
as finances are concerned, equal protectionwill be given so long as sufficient funds are appropriated to establishand operate an equivalent university for negroes. It makes no differencewhich pocket the State pays themoney from so'long
as equal facilities are afforded. As far asmoney is concerned, this bill has nothing to dowith the Permanent University Fund. In fact, a real discrimination and unequal protectionwould exist if the proposed universitywas created as
a College orBranch underArticle VII, because thatArticle (Sec. 14) denies use of the general fund formaintenance of a negro university,but permits use of the general fund for ~maintenanceof the white university. Whether on purpose or through inadvertence,the writers of Article VII included a financial discrimination in Section 14 that does not apply to the other Sections. Senate Bill 140 would appropriatemore money ($2,000,000.00)for constructionof a negro university than the entireUniversity Fund produced last year. It would appropriate $500,000.00 per year for maintenance and operation, a sum in excess of one-fourth of the total present annual revenue from the University Fund. It is obvious that this is more money than a constitutionalNegro College or Branch would ever receive if confined to a share of the University Fund for its existence. Therefore, financially, far greater protection is given the statutory university under Senate Bill 140 than it would receive as a constitutional Branch under Section 14.

The only possible remaining financial argument is that the University and itsbranches for white students (MainHon.George Moffett - Page 21

University,Medical School, and~A.& M.) are using income from the available fund,' part of which was intended for negroes, and that the Fund,may become so great in the ,futurethat itwould adequately finance all the constitutionalbranches (includinga negrobranch) ,whenand if the general revenue should ever be insufficient. Morally .thisdoes.soundunfair, but legally the
answer is both fair and moral. .To.theextent of every dollar intendedand needed for negro~education out of the University Fundbut actually used for white schools, the Legislature has been appropriating from the general revenue an equal amount for PrairieView, and now seeks to appropriate an even greater amount for a Negro University of the first class. When the day comes that the University Fund has somuch revenue that it can adeqsatelymaintain and support the present constitutional schools 2nda Negro University, that may be the time when the Legislaturewill deem it practicable to establish a Negro College or SranchUniversity underSection 14. Unless changed or reTealed,Section 14 will remain for future use and needs if they should 'arise,and nothing done in connectionwith Senate Xl1 140 will.have any effect upon presentsor future rights of negro citizens accorded thereby.

The second objectionmade to 'astatutory university, under the requirement of equal protection of laws, is that a statutory school lacks the guarantee of permanence that is enjoyed by the constitutionalschools; that equal .protectionfrom abandonment and change now afforded the constitutionalwhite universityand its brancheswould not be.afforded the statutory negro university. This argumenthas apparent merit. It is not an objectionthat would make Senate Bill 140 unconstitutional, but itmay be used as persuasiveargument against the constitutionality of a system of separate schools which gives greater protection to the legal existence of the university.forwhites and itsbranches than to the university for negroes.

It is believed that there is enoughmerit in this last objectiontowarrant your consideration of a constitutional amendment recognizing the universitywhich may be established by Senate Bill 140 as a constitutional university for negroes and giving the term of its existence the same guarantee as that now afforded the Main University for white students. Such amendmentwould necessitateno delay in consideration of Senate Bill 140. It could be submitted and voted upon after passage of Senate Bill 140, simply giving constitutional approval and recognition to the new universitycreated by Senate Bill 140.

In this connection, considering the past, present, and prospective impossibilitiesand discrimination of Section 14Hon. GeorgeMoffett - Page 22

of Article VII of our Texas Constitution,you may wish to consider the advisabilityof repealing or amending that Section by substituting therefor the amendment suggested above and substituting financial provisionsas contemplatedby Senate Bill 140 in place of participation in an already inadequate Permanent University Fund. If such financial provisionsare at least equal to any anticipated share for negroes from the University Fund, this would forever end the contentions now beingmade in the courts and public forum against a statutory university.

CONCLUSION ON U. S. CONSTITDTIONALPROVISIORS

As indicatedabove, eral that Senate Bill 140it is the opinion of theAttorney Gendoes not violate the 14th amendment to the Constitutionof the United States. The State olan of separate schools is valid so long as substantially equal facilitiesand equal protection of the lawsare afforded.

A decision to this effectwas recentlymade by a District Court of Travis County in the case of Sweatt vs. Painter, et al. This case is now on appeal, and all indicationsare that itwill go to the Supreme Court of the United States. Thus unless the 50th Legislature takes immediateaction on this iubject, the Supreme Courtmay be called upon to pass on the issue of separate schools in Texas without knowledgeof the prevailing sentiment, intention,and actual establishmentof a first class negro university in Texas.

Prompt enactment of a bill similar to Senate Bill 140 would actually providewhat our Negro citizens are entitled to, and itwould have a great bearing upon successful defense of the constitutionalityof separate schools. Both of these propositionsare of foremost importance to Texas. If the Bill is enacted, this office will make known its existenceand operation to the courts in all pending cases.

In linewith your request for suggestions, it is further recommendedthat the provisions of the Bill for interim instruction pending establishment of the Texas State University for Negroes be strengthened and made mandatory. The suggested changes and additions have been prepared and will be delivered herewith.Hon. George Moffett - Page 23

SUMMARY
(1) Section 14,ArticleVII of the Texas Constitutionproviding for a colored College or Branch of the University "when deemed practicable"by the Legislature, does not limit the power of the Legislature to establish a separate and different statutory university for negroes under the general powers expressed in Section 48, Article III of the Constitution.

(2) The requirement of separate schools and colleges for negro citizens does not violate the 14th.Amendmentof the Constitution of the United States if the separate system affords substantially equal educationalopportunities and equal protection of the laws.

(3) Senate Bill 140 of the 50th Legislature is constitutional. With the added provisions suggested in this opinion, its enactmentand contemplatedoperation thereunderwould afford the fair and equal educational opportunities and protection of laws to which negro citizens of Texas are entitled. Its early enactment and operation will add great strength to Texas' position in pending oaseswherein the constitutionality of separate schools is under attack.
Respectfully yours,

Price Danie Attorney General of Texas

oe R. Greenhill tant Attorney GeneralSon. GeorgeUoffett - Page 24

The foregoing opinion,written by theAttorney Generai and Mr. Greenh:i.ll,

was consideredand approved in Conference composed offthe.

First Assistant, and.AssistantAttorneys General Ocie Speer, Jackson Littleton,Bruce W. Bryant, and Ben Rice TIT.

First AssistantAttorney General Chairman of the Conferenc,e

.