January 30, 1975 

The Honorable Jack K. Williams 

President 

Texas A&M University 

College Station, Texas 77843 

Opinion No. H- 511 

Re: Whether use of physical 

facilities of state university 

by church affiliated student 

organization would violate 

the U.S. and Texas Constitutions . 

Dear Dr. Williams: 

You have asked our opinion on the legality of the university’s 

recognition of various ch~urch affiliated student organizations and of 

permitting them the same use of university facilities permitted other 

recognized student organizations, including the rent-free use of meeting 

rooms and auditoriums. We understand that religiously oriented organizations would constitute only a small percentage of the total number of 

student clubs recognized by the university. 

The First Amendment to the United States Constitution which 

applies to the states by virtue of the Fourteenth Amendment provides 

in part that: 

Congress shall make no law respecting an 

establishment of religion, or prohibiting the 

free exercise thereof . . . . 

In examining governmental enactments against the backdrop of 

the constitutional language, the Supreme Court has .developed a four .,, 

point test which must be considered. The ‘Guestions which. must be 

considered are: 

p. 2301 
The Honorable Jack K. Williams, page 2 (H-511) 

First, does the Act reflect a secular legislative 

purpose? Second, is the primary effect of the Act ’ 

to advance or inhibit religion? Third, does the 

administration of the Act foster an excessive government entanglement with religion? Fourth, does the 

implementation of the Act inhibit the free exercise 

of religion? 

Tilton v. Richardson, 403 U.S. 672, 678 (1971). See also Hunt v. McNair. 

413 U.S. 734 (1973); Committee for Public Education v. Nyquist. 413 U.S. 

756 (1973); Attorney General Opinions H-203 (1974). H-66 (1973). Letter 

Advisory No. 47 (1973). 

We are not prepared to conclude that theme uniitersity’s policy of recqgnizing student clubs, including some religiously-oriented clubs, does not have 

a secular purpose of encouraging students to meet to discuss ideas and 

pursue goals of common interest and promote the secular purpose of 

establishing a pluralistic community. See Walt V. Tax Commission, 397 

U.S. 664 (1970) (Brennan, concurring);zyishian v. Board of Regents 

of New York, 385 U.S. 589 (1967). 

Neither are we convinced that the university’s policy of recognizing student clubs, including some religiously-oriented clubs, would have 

the primary effect of advancing or hindering religion. The primary effect 

appears to be to encourage the interchange of ideas by all types of groups 

of which religious organizations constitute only a small portion. See Allen 

-- 

v. Morton, 495 F.2d 65 (D.C. Cir. 1973). 

Nor can we say that the entanglement test is violated. We understand 

that recognition of an organization operates as an essentially non-discretionary 

act and that use of facilities by these groups is handled on a “resermtion, 

first come, first served” basis. Greater entanglement problems might 

be pre~sented if the school denied use of its facilities to religious groups and 

was required to ascertain a group’s purposes and monitor its activities. 

Walz v. Tax Commission, 397 U.S. 664 (1970); E,‘Healy v.. James. 408 

U.S. 169 (1972). 

There is an internal tension in the First Amendment between the 

establishment clause and the free exercise clause., Tilton v. Richardson, 

403 U.S. 672 (1971). The Supreme Court has held denials of licenses for 

p. 2302 
. . 

The Honorable Jack K. Williams p. 3 (H-511) 

use of public parks for religious services to be invalid as a denial of equal 

protectioh in the exercise of freedom of religion. Fowler v. Rhode Island, 

345 U.S. 67 (1953); Kunz v. New York,, 340 U.S. 290 (1951); Niemotko v. 

Maryland, 340 U.S. 268 (1951). Although it did not discuss the relation 

between the establishment and free exercise clauses, the Supreme Court 

did not question the use of public parks and streets for religious purposes 

and did rely on the denial of the right of free ‘exercise of religion. If, as 

we understand, use of university facilities by student religious orgati.zations is on the same basis as those facilities are used by other student. 

clubs and there is no university policy or action to encourage attendance, 

we believe any problems concerning denial of the free exercise of religion 

can be avoided. See Stacy v. Williams, 306 F. Supp. 963 (N.D. Miss. 

1969) (3-judge court). 

Of course even protected activities are subject to reasonable regulations respecting the time, place and manner of their exercise. Cantwell v. 

Connecticut, 310 U.S. 296 (1940). The university can and should, however, 

condition the use of its facilities by student religious groups in the same 

manner as it does with non-religious groups. Healy v. James, 408 U.S. 

169 (1972). 

In addition to satisfying the requirements of the First Amendment 

to the United States Constitution, any progra,m of recognizing student 

religious groups is subject tothe limitations of article 1, section 7 of the 

Texas Constitution that: 

No money shall be appropriated, or drawn from the 

Treasury for the benefit of any sect, or religious 

society, theological or religious seminary; nor 

shall property belonging to the State be appropriated 

for any such purposes. 

It has been held in a long and well researched opinion that a school 

building may be rented to a religious group during non-school hours. 

Attorney General Opinion O-5354 (1943). And see Pratt v. Arizona Board 

of Regents, 520 P. 2d 514 (Ariz. 1974). Webelieve that, when.use of a 

small portion of a building by a religious group is permitted as aapart of 

,. 

p. 2303 
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The Honorable Jack K. Williams p. 4 (H-511) 

a larger student-club program which the university has determined is an 

important part of its overall educational function, such use could not be 

correctly termed the “appropriation” of property belonging to the State 

for religious purposes within the intent and contemplation of article 1, 

section 7 of the Texas Constitution. 

Even though there is some expenditure of state funds for utilities 

and maintenance occasioned by the student group’s use of a meeting room, 

we believe the amount is normally so small as to be insignificant. As the 

Florida Supreme Court said in relation to a similar situation under a 

similar constitutional provision: 

We think, however, that it is totally unnecessary 

to become involved in any prolonged discussion of the 

applicability of the separation of Church and State 

principle. In regard to the Florida Constitutional 

prohibition against contributing public funds in aid of 

any religious denomination, we find nothing in this 

record to support a conclusion that any public funds 

have been contributed. Taking note of appellant’s 

insistence that the use of the building is something 

of value and that the wear and tear is an indirect 

contribution from the public treasury, it appears to 

us that we might here properly apply the maxim 

“De minimis non curat lex. ” Nothing of substantial 

consequence is shown and we see no reason to burden 

this opinion with a discussion of trivia. 

Southside Estates Baptist Church v. Board of Trustees, 115 So. 2d 

697, 699 (Fla. 1959). 

” 

Your question is narrow, and we have limited our answe; solely to 

the question raised. We do not pass on any possible action or fact situation 

which might go beyond the scope of the question presented here. 

SUMMARY 

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Where a university provides meeting rooms .I ,I 

p, 2304 
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The Honorable Jack K. Williams, page 5 (H-511) 

for student groups, including some religiously-oriented 

groups, as part of a broad-based student club program, 

it is not precluded from so permitting the use of meeting 

rooms and auditoriums on a non-discretionary, first 

come-first served basis where there is no university 

policy or action to encourage attendance. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH. Chairman 

Opinion Committee 

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p. 2305