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 questi ons . 

On behalf of the State Affairs Committee of the Senate, 

you have submitted a copy of Senate Bill No. 140, providing 

for the establishment of a negro university, together with 

the following question: 

"Is Senate Bill No. 140, in the form 

attached hereto, constitutional? If 

not, the Committee would be pleased 

to have your department point out 

amendments or deletions which would 

bring said Bill into conformity with 

the Constitution of this State." 

The subject and purpose of the proposed bill is stated 

in the caption as follows: 

*An Act 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 instruction taught at The 

University of Texas and its branches 

to be known as 'The Texas State University for Negroes' and to be located at 
Hon. George Moffett - Page 2 

Houston, Harris County; and providing 

for an Agricultural and Mechanical 

College for colored students to be 

,known as 'The Prairie View Agricultural and Mechanical College' as same 

is now located at Prairie View, Wailer 

County; making an appropriation; and 

declaring an emergency." 

To fully comply with your request, it is necessary to 

examine the provisions of the Texas Constitution and the 

Constitution of the United States, and to review the background and interpretations thereof 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 legislative power 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 Constitution of Texas, reads as follows: 

"A general diffusion of knowledge being 

essential to the preservation oft the 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 

shall be included colleges ja& universities established b the State; . . .'I 

7‘i7Xerscoring ours 7 

From the above it is clear that the Legislature of 

Texas has the power to provide for the establishment and 
bn. George Xoffett - Psge 3 

operation of a negro university as contemplated by Senate 

Sill 140,,unless there is some other constitutional provision which prohibits such action or directs that it be accoalished in a different manner. That brings us to an examination of Section 14 of Article VII, of the Constitution 

zf Texas, the only other constitutional provision relating 

iiirectly to this question. It reads as follows: 

"Sec. 14. Branch University for 

Colored.--The Legislature shall also 

when deemed practicable, establish 

and provide for the maintenance of a 

College or Branch University for the 

instruction of the colored youths of 

the State, to be located by 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 the University of Texas." 

Immediately we are faced with the question of whether the 

University contemplated by Senate Bill 140 is the same as.that 

oontemplated by the u;ritersof the above Section of the Constitution in 1876. Is it to be a College (integral part 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 establishment and maintenance of such College or Branch 

out of the available fund accruing from the Permanent University Fund and without aid of taxes and appropriations from the 

General Revenue as would be required by 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 proposed negro university is not to be a Cqllege or Branch 

of The University of Texas. Its passage would evidence no indication that the Legislature "deems it practicable" to establish and maintain such University under the limitation as to 

use of taxes and general revenue for such purpose. On the 

contrary, passage of Senate Bill 140 would indicate that an 

entirely separate 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 authorized when "deemed practicable" to 

establish a negro university in the manner set out in Section 

14 of Article VII of the Constitution, can lawfully adopt a 
Hon. George Moffett - Page 4 

different method and establish a different school out of other 

State funds. In other words, does the above section of our 

Constitution limit the manner of establishin? a nerro school 

of hither leominT to the procedure and fund~s provided therein? If so, the statutory school proposer! in Senate Bill 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 location nust be in Austin, 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 university may be established out of general revenue and 

at any location desired by the Legislature. 

We are familiar with the rule of law that a constitutional provision as to how a thing shall be done cotititutes 

an implied prohibition of its being done in.any other manner. 

However, when the constitutional provision is not mandatory 

but leaves discretion with the Legislature as to when, if 

and how a thing is to be done, it should never be construed 

as a limitation by implication on the general power of the 

Legislature to accomplish the desired end in another manner. 

Especially is this true in the present case where another 

constitutional provision (Section 48, Article III) written 

in the same Convention; expressly recognizes the power of 

the Legislature to establish and operate other colleges and 

universities in another manner. 

Constitutional provisions, like statutes, are properly 

to be interpreted in the light of conditions existing at the 

time of their adoption, the general spirit of the times and 

the prevailing sentiments of the people. (Rumme vs. Marrs, 

supra) The universal rule of construction is that legislative and executive interpretations of the organic law, acquiesced in and long continued are of great weight 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 understand the intention of the writers of the Texas Constitution and the legislative and executive interpretations of the question since 

1876, it is necessary that we review the history of the educational articles of the Texas Constitution. 
Hon. Geoqe Moffett - Page 5 

HISTORY ANIl INTERP~ZT3TIONS OF SECTION 14, AFTTCT3 

VII, AND LOTION 48, AETICLF, III, 

COIZ3TITUTION OF TEXAS: 

The Constitution of 1865 provided generally for a system 

of education, including "Africans and their children." The 

,Zonstitution of 1869 made no provision for a University of 

any character. In 1871, taking advantage of a Federal land 

rrant, the AFricultursl and Mechanical College was established 

by statute and located near Bryan, Texas. 

The Constitutional Convention of 1875, headed by E. B. 

Xckett (who later became the President of the Board of Directors of the A6ricultursl and Mechanical College) undertook anon.? other thing, to provide for the establishment of 

oublic free schools and institutions of hi.c;her learning. That 

iody pmcose? the document vrhich becane the Constitutisn of 

1976. The pertinent educational provisions still exist in the 

origins1 form in X-title III as quoted hereinabove and in Article VII, as follows: 

*Sec. 10. The.Le,&slature 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 stgled, 'The University 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 foregoisq Section, it is hereby declared that all lands and other property 

heretofore set apart and agprooriated for 

the establishment and 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 permanent University Fund. . . . 

Vet. 13. The ASriculbural and Mechanical 

College of Texas, established by an Act of 
Hon. George Moffett- 'Page 6 

the Legislature passed April 17th, 1871, 

located in the County of Brazes, is hereby 

made? and constituted a Branch of The Universlty of Texas, for Instruct~ion in Agriculture, the Mechanic Arts, and the Natural 

Sciences connected therewith. And the Legislature shall at its next session, make, 

an appropriation, not to exceed forty thousand dollars, for the construction and 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 provE le 

for the maintenance of a Coflege or Branch 

University for the instruction ofTh= 

ored youths of the State, to be located by 

a vote of the people: Provided, that no 

tax shall be levied, ,and no money aopropriated, out of the general revenue, either for 

this purpose or'for the establishment and 

erection of the buildings of The University 

of Texas. (Underscoring ours). 

"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 unappropriated public domain of the State, to be designated 

and surveyed as may be provided by 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 permanent University fund; 

and the Legislature shall not have power to 

grant any relief to the purchasers of said 

lands." 

A few months after the Constitution of 1876 became effective, the Legislature by Act of August 14, 1876 (Acts 15th Leg. 

ch. 92, p. 136; 8 Gammels Laws, p. 972); provided for an Agricultural and Mechanical College for the benefit of colored 

youths, which was placed under the supervision of the Agricultural and Mechanical College established at Bryan in 1871. 
son. George Moffett - Page 7 

The message of Governor 0. M6. Roberts to the Legislature, 

,pril 6, 1882, discloses that instead of erecting buildings 

for this institution, the land and buildings of Alta Vista, 

::e:'r Xempstead, were purchased and a school organized. The 

.._ :n-ispristion , for this institution came out of the General 

.?evenue and not out of The University Funds. Governor Roberts 

-aid "it is evident that this was not intended by the Legislat?lre to be the 'college or branch university' referred to in 

iectian 14, Article VII of the Constitution. For in the same 

section providing for that branch (Sec. 14) it is expressly 

orovidej that its location shall be determined by a vote of the 

?eocle, and that 'no tax shall be levied and no money approyriated out of the General Revenue for this purpose', which 

:sulE hardly have escaped the attention of the Legislature if 

?hey had intended by this Act to establish the 'college or 

jranch university'." 

The 16th Legislature (ch. 59, p. 181; 1879) provided for 

'1 normal school at Prairie View (fomnerlv called Alta Vista) 

-?nd attempted to appropriate from the University Fund $S,OOO.OO \ "or its support. Prior to 1882 there were other appropriations 

:?3?e to the Prairie View School out of the available University 

Yund and other indications that certain officials believed this 

?:3 be the Colored Branch contemplated by Section 14 of Article 

VII. 

Pursuant to the Constitutional mandate, the Legislature 

in .1881 passed an Act creating The University of Texas and provided for a vote of the people to fix its location. The election was held and the proposal to 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 colored branch of the University mentioned 

in the Constitution, and an election was ordered for the first 

Tuesday after the first Monday in November, 1882, to locate 

this branch. (Acts 1882, ch. 19, p. 25). The contesting places were 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 its branches, 

including the branch for the instruction of colored youths." 

(Acts 18th Leg., oh. 72, p. 71). This act set aside one mil- 

'lion.acres for an additional endowment of The University and 

its branches. The branch for colored youths was expressly included. 

Between 1883 and 1897 no legislation pertaining to a negro 

college or branch of The University of Texas was passed, althougl 

several bills were proposed. In 1897 the Legislature set aside 

one hundred thousand acres of.the public domain to be used for 

the endowment of the colored branch'~(26th Leg., 1897, ch. 109, 

p. 148), but later it was held that the public domain was exhausted (92 Tex. 58) and this endowment was ‘never consummated. 

In 1931 Article 2592 was enacted, which provided, among 

other things, that after September 1, 1934, the Available University Fund, derived as revenue from the Permanent Fund of one 

million acres of land provided for in the Constitution and the 

additional one million 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 enacted Article 2643a which 

changed the name of Prairie View State Normal and Industrial 

College to "Prairie View University." The Act further provided 

that "whenever there is any demand for same, the Board of Directors of the Agricultural and Mechanical College, in addition to 

the courses of study now authorized for said institution is authorized to provide for,the establishment of ‘-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 (West Texas A. & M. 

College and North Texas Agricultural College) were proposed in 

1917, Attorney General B. F. Looney was asked for an opinion on 

the constitutionality of their establishment at places other 

than Austin 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 

in Article VII of the Constitution. In an able opinion written 

by Luther Nickels, who later served as a Commissioner to the 

Texas Supreme Court,, it was held that the Legislature was authorized under Seotion 48 of Article III, supra, to establish 
.I 

Ron. George Moffett - Page 9 

other colleges and universities and support them out of the 

general revenue. 

Judge Nickels pointed out that such statutory universities would not be branches of The University of Texas within 

the meaning of Article VII. 

follows: 

A portion of this opinion is as 

YSection 48 of Article 3 of the Constitution empowers the Legislature 'to levy 

taxes or impose burdens 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 

universities established by the State; 

, . . . 

". . . The language is that the Legislature may prov1d.e for 'colleges and universities,' -- both terms being in the 

plural. This general language, undoubted-, 

lv. includes the 'Universitv of Texas' and 

the 'Agricultural and Mechanical College' 

established by the Act of April 17, 1871, 

but it also includes such other 'colleges 

and universities as may be established by 

State'. The term 'established by the 

State' is both prospective and retrospective in meaning; this must be true, because it modifies the term 'colleges and 

universities." 

at the time the 

-- plural terms, -- while: 

provision was adopted, 

there was but one university and one college for whoseestablishment provmon had 

been made 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 others might be established, 

else they would have limited the provision 

to the one university and the one college 

instead of using the general plural terms 

'colleges and universities.' 

the 
Hon. George Moffett - Page 10 

“. . . 

n 

. . . Who, then, shall determine what shall 

constitute a 'college' or a 'university,' 

how many and what kinds of 'colleges and universities' we shall have, and when and where 

they shall be located? The answer is obvious 

The body -- the Legislature -- in whom is vested, the general power, has also the power to 

do all things needful for the full accomplishment of the general purpose. . . . And that 

the 'colleges and universities1 which may be 

established under the authority of Section 40 

are not limited in number or kind by the provisions with respect to the 'University of 

Texas' and the particular *Agricultural and 

Mechanical College' referred to 1s~ a proposition demonstrable by the fact that the general language of Section 48 is much too broad 

to be limited to these,two institutions and 

their branches." 

In 1928, the Attorney General was 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 ~of ti 

Constitution, and if so whether 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 First Assistant Attornc 

General, and recently President of the American Bar Associatic 

held that the school was not a branch of The University; that 

'the Legislature had full.authority to establish a School of 

Mines and Metallurgy at El Paso under authority of Article II: 

Section 48, including erection of buildings with general revenue funds. A portion of the opinion reads: 

"It is a matter of common knowledge that the 

available University fund is not sufficient 

at this time to pay for the erection of buildings needed at the main university and the 

Medical-Department to say nothing of the 

School of Mines and Metallurgy. . . . If 

the School of Mines and Metallurgy is limited 

by Article VII, Section 14, as a part of the 

University of Texas, it can look only to the 

available University fund just as the University proper, the Medical Department and the 
Hon. George Moffett - Page 11 

colored branch must look to that fund. Parentutional provision, it may apply to the Legislature for all necessary relief. 

*In our opinion, the School of Mines and Metallurgy is not a branch ~of the University of 

Texas, as the term 'branch' is used in the 

Constitution of Texas." (Underscoring ours) 

In Mumme vs. Marrs., supra, Chief Justice Cureton wrote 

that Section 5 of Article 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 limitation which prevented the distribution of an 

appropriation from the general revenue for common school districts in accordance with 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 Article VII, the educational article of the Constitution, have never been regarded as limitations by implication on the general Dower"--'-' - 

of the Legislature to pass laws upon the subject of education. This article discloses a 

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 learning 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 MStitUtiOnS 

of similar character without direct COnStitUtional grant, beginning with the Sam Houston 

Normal in Huntsville in 1879. . . . 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 . were not linitations on its power to create-other schools of 
Hon. George Moffett - Page 12 

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. . . .I1 (Underscoring ours). 

This holding in Mumme vs. Marrs was reaffirmed by the 

Supreme court of Texas in giving an unqualified refusal to 

an application for writ of error in Watson vs. Sabine Royalty Corporation, 120 S. W. (2d) 938, a case upholding the constitutionality of a legislative Act providing for a different 

.rate of tax valuation in a particular group of counties by a 

method different from that set out in the Constitution. 

In the meantime, the Legislature, under its general powers and those specifically authorized by 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 Houston State 

Teachers College, Southwest State Teachers College, Stephen 

F. Austin State Teachers College, Sul Ross State Teachers College, West Texas State Teachers College, and Prairie View 

University. 

It is important to note that although one of these statutory colleges is under management of The University of 

Texas Board of Regents, none of them have been held to be a 

branch of The University or subject to-limitations or restrictions imposed by:Article VII on the funds that may be used 

therefor. 

CONCLUSION OF TEXAS COBSTITUTIOX4L PROVISIOW 

The above background and history of legislative, judicial, and executive interpretations leave no cloubt about the 

intent of the writers of the educational provisions of our 

Texas Constitution. They intended to provide for establishment of a great University of Texas with a separate negro 

College or Branch to be established and maintained out of the 

available University Fund. But in Svicle VII, 

they left the time -- the "if" and "when" -- of such establishment to the sound discretion of the Texas Legislature by 
Hon. George Moffett - Page 13 

use of the words "when deemed practicable"by the Legislam 

ture. 

The same writers, in the same document (Sec. 48, Art. 

III), intended the establishment and maintenance of other 

colleges and universities out of general revenue funds. 

The first of these statutory institutions was in fact a 

negro college at Prairie View created by legislative Act 

in 1876, shortly after the present Constitution became 

effective. Some of the members of the Constitutional Convention were also members of the Legislature which interpreted the new Constitution as permitting and authorizing 

a statutory college in addition to the constitutional 

branch mentioned in Section 14. As heretofore pointed 

out, the President of the Constitutional Convention 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 Prairie View. If it be 

true that Section 14 presents the only manner in which a 

negro college can be established, then Prairie View University has been operated in violation of the Texas Constitution, since 1876. Such a construction would do violence 

to the plain and unambiguous words of the Constitution and 

to the intent and interpretations placed thereon by the 

men who wrote the document and the legislative and executive~interpretations made thereon for the past 70 years. 

True, there were a few years during which certain officials 

mistakenly believed that Prairie View was the constitutional branch of The University and entitled to 'the use of the 

available University Fund (even Judge Cureton mistakenly 

referred to it as such in dictum in Mumme 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 impracticable to establish and maintain a negro college or branch financed wholly out ofcome from the Permanent University Fund. An examination 

of the available revenues from such fund d,uring the past 

70 years reveals why 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 been 
Hon. George Moffett - Page 14 

necessary for the Legislature to appropriate from the General 

Revenue Fund in excess of fifty-three millions dollars to maintain and operate these two institutions. Texas A. 6c M. College received no part of the available fund until 1931, and 

its share of one-third of such fund produces only a fraction 

of the money necessary to maintain and o*mrate A. & M. College. During the first year of the present biennium the net 

revenue from the Permanent University Fund yielded only 

$1,932,711.41 for the Main University, the Medical Branch, 

and Texas A. & M. College. To this amount it was necessary 

for the Legislature to add $6,299,551.89 from the General 

Revenue to operate these schools for the past fiscal year. 

(Records of C. D. Simmons, Comptroller, University of Texas). 

With these figures in mind, the present Legislature is 

certainly justified in deeming it impracticable to 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 acquisition of 

land and the erection of buildings and provides one million 

dollars for maintenance and operation during the next two 

years. If maintenance of the negrc university were limited 

to a portion of the available University Fund as required in 

the case of the constitutional branch (Sec. 14, Art. VII), 

it would be impossible to sustain a first class university of 

the magnitude contemplated by 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 section be 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 section will be delivered with 

this opinion. 

U. S. CONSTITUTIONAL PROVISIONS 

Fortunately, the operation of an educational system within 

a S,tate is still a State right. It was so held in an opinion 

by Chief Justice Hughes in the case of Missouri ex rel Gaines 

vs. Canada, 305 U. S. Reports 337.' The Federal Government and 

the Federal Courts have not thus far interfered with the nmnagement and operation of the educational systems of our states, 

except to say that under the 14th Amendment to the Constitution 

of the United States, equal protection of the law must be given 

all citizens, and State supported institutions must furnish 

equal facilities for both white and colored citizens. As late 
Flon. George Moffett - Page 15 

as 1938 in the above case, the Supreme Court of the United~ 

States recognized the right of the states to have separate 

schools for white and negro citizens, if the separate system 

furnished equal protection of 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 sincerely believed that the Court will uphold Text right to establish separate schools for negroes if it 

tztually and in fact provides substantially equivalent facilities and equal protection as proposed in Senate Bill 140. 

The pertinent portion of the 14th Amendment 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 jurisdiction thereof, are citizens 

of the United States and of the State 

wherein they reside. No State shall make 

or enforce any law which shall abridge the 

privileges or 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 person within its jurisdiction the 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 contemplated by Senate Bill 

140. The people and public officials of Texas recognize that 

equivalent educational opportunities have not been available 

to the degree required by 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 satisfactory means of accomplishing equal opportunities within 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. (Belden Texas Poll, January 26, 1947). 
Hon. George Moffett - Page 16 

In spite of previous decisions of the United 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 the main contentions is that the legality of separate schools be denied. (Heman Marion Sweatt vs. 

Painter, et al, now pending in the Austin Court of Civil Appeals). Other cases are pending in Louisiana, Oklahoma and 

South Carolina. In each instance the negro applicants are 

contending for admission to the State Universities for white 

citizens, alleging that equal facilities do not exist for negroes, and concentrating their attack against the constitutionality of laws requiring separate schools. These contestants evidence as much interest in prevailing on the Supreme 

Court to reverse its former holdings and abolish segregation 

as in obtaining equivalent education in separate schools. 

With this in mind several of the leading decisions of the 

United States Supreme Court will be cited and discussed. 

The United States Supreme Court in Plessy vs. Ferguson, 

163 U. S. 537, said the following: 

"The object of,the (14th) Amendment was 

undoubtedly to enforce the absolute .equality of the two races before the law, but 

in the nature of things it could not have 

been intended to abolish distinctions based 

upon color, or to enforce social, as distinguished from political equality, or a 

commingling of the two races upon terms unsatisfactory to either. Laws permitting, 

and even requiring, their separation in 

places where they are liable to be brought 

into contact do not necessarily imply the 

inferiority of either race to the other, and 

has been generally, if not universally, reoognized as within the competency of the 

state legislatures in the exercise of their 

police power. The most common instance of 

this is connected with the establishment of 

separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by 

courts of States where the political rights 

of the colored race have been longest and 

most earnestly enforced." 
Hon. George moffett - Page 17 

In the case of Missouri ex rel Gaines vs. Canada, supra, 

the United States Supreme Court considered the Missouri statutes requiring separate schools for colored and white students and reversed an opinion of.the Supreme Court of Missouri, 

which had denied a negro applicant entrance to the University 

of Missouri Law School. In the opinion by l.9. Chief Justice 

Rughes, the Court ssid: 

"In answering petitioner's contention that 

this discrimination constituted a denial 

of his constitutional right, 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 obligation by 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, 175 U. 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 Lincoln University, a state institution well 

conducted on a plane with the University of 

Missouri so far as the offered courses are 

concerned. It .is said 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, either at Lincoln University or elsewhere within the State, and that the State 

excludes negroos from the advantages of the 

law school it has established at the University of Missouri. (Underscoring ours) 

"It is manifest that this discrimination, 

if not relieved by the provisions we shall 
Hon. George Moffett - Page 18 

presently discuss, would constitute a denial 

of equal protection. That was the conclusion 

of the Court of Appeals of Maryland in circumstances substantially similar in that aspect. 

Universit y of Maryland v. Murray 169 Md. 478; 

182 A. 590. It there appeared that the State 

of Maryland had 'undertaken the function of 

education in the law, but had 'omitted students of one race from the only adequate provision made for it, and omitted them solely 

because of their color,; that if those students were to be offered 'equal treatment in 

the performance of the function, they must 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 cannot be said that a mere declaration of 

purpose, still unfulfilled, is enough. The 

provision for legal education at Lincoln is at 

present entirely lacking. Respondents, counsel urge that if, on the date when petitioner 

applied for admission to the University of Mis-' 

souri, he had instead applied to the curators 

of Lincoln University it would have been their 

duty to establish a law school; that this 

'agency of the State,, to which he should 

have applied, was ,specificallg charged with 

the mandatory duty to furnish him what he seeks., 

We d,o not read the opinion of the Supreme Court 

as construing the state statute to impose such 

a 'mandatory duty, 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 opportunities Missouri 

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 afforded by the 

State rests wholly upon the equality of the 

privileges which the laws give,to the separated groups within the State. . . . 
:- 

Hon. George Moffett - Page 19 

"The equal protection of 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 only where its laws operate, 

that is, within its own jurisdiction. It 

is there that the equality of legal right 

must be maintained. . . . 

"Nor can we 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 right was a personal 

one. It was as an individual that he was 

entitled to the equal protection of the 

laws, and the State was bound to furnish 

him within its borders facilities for legal 

education substantially equal to those which 

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 ruling was error, and that petitioner was entitled to be 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 interesting to. 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 Lincoln University (the 

State's negro university), and the applicant therefore was never 

admitted to the University of Missouri. 

We have quoted at length from the leading Supreme Court 

decision on the subject so that your committee may have full 

knowledge of the requirements therein announced necessary to 

sustain the constitutionality of separate schools. 

Briefly stated, to meet the U. S. Constitutional provisions, the system must (1) offer equal educational opportunities 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 opportunities and facilities surely will 

be met if this Bill is enacted and conscientiously administered 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 objections worth considering. 

The first objection is that a constitutional College or 

Branch under Section 14, Article VII of the Texas Constitution 

would give the negro school larger and more permanent funds 

than those available to a statutory university; that by devoting all of the available University Fund 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 involves a 

distinction without a difference and would have no bearing 

whatever on the constitutionality of Senate Bill 140. As far 

as finances are concerned, equal protection will be given so 

long as sufficient funds are appropriated to establish and 

operate an equivalent university for negroes. It makes no 

difference which pocket the State pays the money from so'long 

as equal facilities are afforded. As far as money is concerned, this bill has nothing to do with the Permanent University Fund. In fact, a real discrimination and unequal protection would exist if the proposed university was created as 

a College or Branch under Article VII, because that Article 

(Sec. 14) denies use of the general fund for maintenance of a 

negro university, but permits use of the general fund for 

~maintenance of 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 appropriate more 

money ($2,000,000.00) for construction of a negro university 

than the entire University 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 constitutional Negro 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 its branches for white students (Main 
Hon. 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 ,future that it would 

adequately finance all the constitutional branches (including a 

negro branch) ,when and if the general revenue should ever be insufficient. Morally .this does.sound unfair, but legally the 

answer is both fair and moral. .To.the extent of every dollar 

intended and needed for negro~education out of the University 

Fund but actually used for white schools, the Legislature has 

been appropriating from the general revenue an equal amount for 

Prairie View, 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 so much revenue that it can adeqsately maintain and support the present constitutional schools 

2nd a Negro University, that may be the time when the Legislature will deem it practicable to establish a Negro College or 

Sranch University under Section 14. Unless changed or reTealed, Section 14 will remain for future use and needs if 

they should 'arise, and nothing done in connection with Senate 

Xl1 140 will. have any effect upon presents or future rights of 

negro citizens accorded thereby. 

The second objection made to 'a statutory university, under 

the requirement of equal protection of laws, is that a statutory school lacks the guarantee of permanence that is enjoyed 

by the constitutional schools; that equal .protection from abandonment and change now afforded the constitutional white university and its branches would not be.afforded the statutory negro 

university. This argument has apparent merit. It is not an objection that would make Senate Bill 140 unconstitutional, but 

it may be used as persuasive argument against the constitutionality of a system of separate schools which gives greater protection to the legal existence of the university.for whites and 

its branches than to the university for negroes. 

It is believed that there is enough merit in this last objection to warrant your consideration of a constitutional amendment recognizing the university which 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 amendment would necessitate no 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 university created by Senate Bill 140. 

In this connection, considering the past, present, and 

prospective impossibilities and discrimination of Section 14 
Hon. George Moffett - Page 22 

of Article VII of our Texas Constitution, you may wish to consider the advisability of repealing or amending that Section 

by substituting therefor the amendment suggested above and 

substituting financial provisions as contemplated by Senate 

Bill 140 in place of participation in an already inadequate 

Permanent University Fund. If such financial provisions are 

at least equal to any anticipated share for negroes from the 

University Fund, this would forever end the contentions now 

being made in the courts and public forum against a statutory university. 

CONCLUSION ON U. S. CONSTITDTIONAL PROVISIORS 

As indicated above, 

eral that Senate Bill 140 

it is the opinion of the Attorney Gendoes not violate the 14th amendment 

to the Constitution of the United States. The State olan of 

separate schools is valid so long as substantially equal facilities and equal protection of the laws are afforded. 

A decision to this effect was recently made by a District 

Court of Travis County in the case of Sweatt vs. Painter, et 

al. This case is now on appeal, and all indications are that 

it will go to the Supreme Court of the United States. Thus 

unless the 50th Legislature takes immediate action on this iubject, the Supreme Court may be called upon to pass on the issue 

of separate schools in Texas without knowledge of the prevailing sentiment, intention, and actual establishment of a first 

class negro university in Texas. 

Prompt enactment of a bill similar to Senate Bill 140 

would actually provide what our Negro citizens are entitled 

to, and it would have a great bearing upon successful defense 

of the constitutionality of separate schools. Both of these 

propositions are of foremost importance to Texas. If the Bill 

is enacted, this office will make known its existence and operation to the courts in all pending cases. 

In line with your request for suggestions, it is further 

recommended that 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, Article VII of the Texas 

Constitution providing 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.Amendment of the Constitution of the United States if the separate system affords substantially equal 

educational opportunities 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 

enactment and contemplated operation thereunder would 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 oases wherein the constitutionality of separate schools is under 

attack. 

Respectfully yours, 

Price Danie 

Attorney General of Texas 

oe R. Greenhill 

tant Attorney General 
Son. George Uoffett - Page 24 

The foregoing opinion, written by the Attorney Generai and 

Mr. Greenh:i.ll, was considered and approved in Conference composed 

off the. First Assistant, and.Assistant Attorneys General Ocie 

Speer, Jackson Littleton, Bruce W. Bryant, and Ben Rice TIT. 

First Assistant Attorney General 

Chairman of the Conferenc,e 

.