November 3, 1976

The Honorable M. L. Brockette Commissioner Texas Education Agency 201 East 11th Street Austin, Texas 78701 Opinion No. H-891

Re: Role of Texas EducationAgency under the Comprehensive Employment and Training Act, and related questions.

Dear Commissioner Brockette:

You have asked several questions concerning the relationship between Texas lawand Title Iof the Comprehensive Employment and Training Act (CETA), 29U.S.C. 55 801-822 (19731,with respect to the receipt of funds and the administration ofprograms at the local level. An understanding of the problem requires abrief explanation of the system setout inCETA for the disbursement of funds andplanning and implementation ofmanpower programs. Under CETA, funds
are tobedistributed to organizational units known as "prime sponsors," which design and implement "comprehensive manpower plans" for allocation of fundswithin their jurisdictional areas. The chief entities which can serve as prime sponsors are the States themselves and units of "general local government" meeting minimum population levels. 29 U.S.C. § 812(a) (1973). Each eligible prime sponsor is to submit to the Secretary of Labor a comprehensive manpower plan, under which itwill endeavor toprovide services which may include, inter alia, education, institutional skill training, andmanpower training. 29U.S.C. § 811(3), (10) (1973). Upon approval of aprime sponsor's plan, the Secretary of Labor is togrant funds directly to theprime sponsor for implementing theplan.

P. 3750The Honorable M. L. Brockette -page 2 (H-891)

Conflicts result when theCETA system forproviding manpower services through prime sponsors is superimposed on the existing Texas educational system. Texas lawvests localcontrol of educational functions in the boards of trustees of local public school districts, Education Code §S 22.01, 23.01, 24.03, andprovides forvocational and adult education tobeprovided bypublic school districts, public junior colleges, and state colleges and universities. Education Code 5s 11.18(c), 31.31(b), 31.40. Lacking the requisite general governmental powers, such as police and taxation powers, these entities are not considered units of "general local government" and cannot serve asprime sponsors. See H.R. Rep. No. 93-659, 93rdCong., 1st Sess. 2935, 2941 (1973). On the other hand, cities and counties dopossess general governmental powers and can qualify asprime sponsors under CETA -- thereby becoming able toprovide educational services which would not otherwise be theirs toprovide under Texas law.

We turn first toyour question ofwhether cities and counties aregiven the authority under Texas statutes to
serve asprime sponsors, and provide the types of services contemplated inCETA. Our ability toanswer this question is limited somewhat by the'importance of the local city charter in establishing the existence or absence of such authority for amunicipality, and by the inevitable ambiguity of an opinion written without adetailed examination of the activities tobe carried out under each individual comprehensive manpower plan. Each local prime sponsor will necessarily have some responsibility todetermine such matters for itself. We can, however, provide some general guidelines.

A home rule citymay exercise allpowers set out in the city charter so long as thepowers are not denied by the Constitution or general statutes. Burch v. City of San Antonio, 518 S.W.2'd540, 543 (Tex.Sup. 1975). We have found no constitutional or statutory provision which would prohibit ahome rule city from providing any of the services permissible under CETA. Cities incorporated under general
or special lawsmust look to their charters for authority.

P. 3751*.

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The Honorable M. L. Brockette -page 3 (H-891)

Counties are given more limited powers under Texas law, with the requirement of express authorization in the Constitution and statutes forany function tobeperformed by the county and its commissioners. Laramey, The Legal Authority of Texas Counties to Contract for the Dellvery of -- Services to its (sz) Residents, 37Tex. B.J. 9?? (1974). With thls-iiaation inmind, this office has held that, by virtue of article 2351,V.T.C.S., a county commissioners court could contract with the Department of Labor under federal statutes for services quite similar in some respects to theprojects permissible under aCETA comprehensive manpower plan so long as the contract limited theprogram to "paupers, the indigent, the needy, and thepoor." Attorney General Opinion M-605 (1970). We believe that a county may serve as aprime sponsor under CETA and implement a comprehensive manpower plan which similarly limits its availability to the poor persons within the county.

We further note, however, the availability under CETA of a consortium form ofprime sponsorship with two ormore units of general local government participating, so long as one of the governments would qualify as aprime sponsor if acting alone, 29U.S.C. 5 812(a)(3) (19731,and also a multijurisdictional form ofprime sponsorship pursuant to an agreement between the State and aunit of general local government having the requisite population. 29C.F.R. 5 95.3(b)(1) (1975). These two forms of organization could provide more flexibility of operation, with the county participating only in services which aid thepoor and needy within county limits, and other programs implemented by the other participants in the consortium ormultijurisdictional agreement. Cf.Attorney General Opinion M-689 (1970).

Your next question iswhether Texas lawprohibits cities and counties, seeking status as localprime sponsors, frommaking direct application for, and receiving, federal funds for the types of programs contemplated by CETA. You have referred us specifically to section 11.02(c) of the Education Code, which reads:

P. 3752. . .

The Honorable M. L. Brockette -page 4 (H-891)

Except for agreements entered intoby the governing board of a state university or college, the Central Education Agency shall be the sole agency of the State of Texas empowered to enter into agreements with respect to education undertakings, including provision of school lunches and the construction of school buildings, with an agency of the federal government. No county board of education orboard of trustees of a school district shall enter into contracts with, or accept money from, an agency of the federal government except under rules and regulations prescribed by theCentral Education Agency.

We do not believe that section 11.02(c).prevents cities and counties from contracting directly with the federal government to serve as localprime sponsors of CETA programs. Section 11.02(a) gives to theTexas Education Agency "general control of the system ofpublic education," andwe believe that the "education undertakings" referred to in section 11.02(c) must likewise be apart of the “system of public education" to comewithin the scope of that section. CETA is clearly not apart of the system ofpublic education. The purpose of CETA is:

[T]oprovide job training and employment opportunities for economically disadvantaged, unemployed, and underemployed persons, and to
assure that training and other services lead tomaximum employment opportunities and enhance self-sufficiency.

. . . 29U.S.C. 5 801 (1973).

CETA manpower services include abroad range ofprograms and activities, including referral services, health care, medical care, child care, assistance in securing bonds and transitional public service employment programs. 29U.S.C. S 811 (1973). The programs created by CETA would be in the realm of employment programs, rather than traditional programs of public education. Not insignificantly, CETA programs are administered on the federal levelby the Department of Labor -- not theDepartment of Health, Education andWelfare. It is, therefore, our opinion that CETA programs are notwithin the scope of section 11.02(c) of the Education Code, even though some aspects of CETA services may be described broadly

p. 3753. . .

The Honorable M. L. Brockette -page 5 (H-891)

as "educational* innature. To find otherwise would require that numerous federally funded programs with some educational aspects, such as family planning services, maternal and child -healthservices, child abuse programs and law enforcement assistance programs, could be contracted for only by the Texas Education Agency. We think it clear that the Legislature did not intend such a result inenacting section 11.02(c).
Finally, you have asked whether the answers to either of the foregoing questions differ for funds appropriated through theGovernor under 29U.S.C. 5s 813(c) and 822 (1973). Under these two sections, fiveper cent of CETA's funds are tobe appropriated to State governors forassisting local prime sponsors inproviding vocational education and related
services. The statute and regulations require that programs tobeprovided with these funds be pursuant to an agreement between the local prime sponsor and the State board having authority over vocational education -- inTexas. the Texas State Board forVocational Education. 29U.S.C: S 822(c) (1973); 29C.F.R. 5 95.58 (1975). Applicable regulations require the local prime sponsor to submit to the State Board forVocational Education its plan for use of the section 813(c) funds appropriated for
use in itsarea: the only constraint on the authority of the Board to approve or disapprove theplan is that such plan must be consistent with theprime sponsor's comprehensive manpower plan. 29C.F.R. fi95.58(a) (1975). The very nature of an "agreement," as this arrangement isdenominated in the statute and regulations, is that it isnot consummated until both parties are satisfied with the termswhich result. Since federal lawgives the State Board forVocational Education thepower toapprove or disapprove theplan, and limits that power only by requiring that theplan be consistent with theprime sponsor's comprehensive manpower plan, we believe the State Board is free to impose any reasonable limitations upon the expenditure of section 813(c) funds, whether or not required by State law, so long
as theplan finally approved by the State Board isconsistent with theAct and regulations and theprime sponsor's comprehensive manpower plan.

P. 3754The Honorable M. L. Brockette -page 6 (H-891)

SUMMARY

Texas statutes do notprohibit municipalities from serving as local prime sponsors under the Comprehensive Employment and Training Act (CETA), so long as the local city charter authorizes the city toprovide the types of services contemplated inCETA. Counties may also serve asprime sponsors pursuant to their statutory duty toprovide forpoor persons within the county. Neither cities nor counties areprohibited from entering into agreements with the federal government such as the comprehensive manpower plans required ofprime sponsors. The State Board forVocational Education may impose reasonable limitations inproviding vocational education services toprime sponsors with CETA funds appropriated to it through theGovernor.
Very truly yours,

eneral of Texas

DAVID ,& KENDALL, First Assistant 

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Opinion CommittLe
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P- 3755