. . 3. . 

NE-W GENERAL 

S 

Honorable Manuel DeBusk. Oninion No. M-652 

Chairman 

Coordinating Board Re: Whether the Coordinating 

Texas College and University System 

Sam Houston-State Office Building 

Board, Texas College and 

University System,.has 

Austin, Texas 78701 the authority to determine 

and fix maximum capacity 

enrollments in all Texas 

public senior colleges 

and universities, and 

Dear Mr. DeBusk: related question. 

In your recent letter to this office you have requested our opinion upon the following questions: 

"We would like to have your official opinion 

as to whether or not the Coordinating Board, 

Texas College and University System, has the 

authority to determine and fix maximum capacity 

enrollments in all Texas public senior colleges 

and universities. 

"If you determine that the Coordinating 

Board, Texas College and University System, has 

this authority, what enforcement authority or 

procedures does the Coordinating Board have by 

which it can enforce such annual maximum capacity 

enrollments?" 

The Coordinating Board was created by Article 2919e-2, 

Vernon's Civil Statutes. Its powers and responsibilities are 

dependent upon the provisions of that act. We think it advisable at the outset to set forth in full several of the phrases 

and terms defined in Section 2 of Article 2919e-2 in order to 

delineate properly the scope of the questions presented: 

"cc) 'General academic teaching institution' means The University of Texas, Main 

University; Texas Western College of The 

University of Texas: Texas A&M University, 

-3123- 
Hon. Manuel DeBusk, page 2 (M-652) 

Main University; Arlington State College; 

Tarleton State College; Prairie View A. and 

M. College; Texas Maritime Academy; Texas 

Technological College; North Texas State University; Lamar State College of Technology; 

Texas College of Arts and Industries; Texas 

Woman's University; Texas Southern University; 

Midwestern University; University of Houston; 

Pan American College; East Texas State College; 

Sam Houston State Teachers College; Southwest 

Texas State College; West Texas State University; 

Stephen F. Austin State College; Sul Ross State 

College; Angelo State College; and any other 

college, university or institution so classified 

as provided in this Act. 

"(d) 'Public senior college or university' 

means a general academic teaching institution as 

defined herein. 

II . . . 

" (g) 'Institution of higher education' 

means any public junior college, public senior 

college or university, medical or dental unit 

or other agency of higher education as herein 

defined. 

"(h) 'Governing board' means the body 

charged with policy direction of any public 

. . Junior college, public senior college or 

university, medical or dental unit, or other 

agency of higher education, including but not 

limited to boards of directors, boards of 

regents, boards of trustees, and independent 

school district boards insofar as they are 

charged with policy direction of a public 

junior college." 

Without enumeration, we point out that each of the 

public senior colleges or universities has been placed under 

the management and control of a governing board by various 

legislative enactments. These governing boards have broad 

and general power and authority to control and manage these 

colleges and universities, and to promulgate such rules and 

regulations as are deemed to be necessary for their efficient 

administration. Foley v. Benedict, 122 Tex. 193, 55 S.W.2d 

-3124- 
. . 

. - 

Hon. Manuel DeBusk, page 3 (M-652) 

805 (1932); Cornette v. Aldridge, 408 S.W.2d 935 (Tex.Civ. 

App. 1966, mandamus overruled). The scope of the authoritv of 

the Coordinating Board and the role which it is intended to 

perform in the scheme which the Legislature has provided for the 

management and control of public senior colleges and universities 

must be determined from the provisions of Article 2919e-2. 

Section 1 of Article 2919e-2 states,that the purpose 

of the act is: 

I@ . . . to establish in the field of public 

higher education in the State of Texas an agency 

to provide leadership and coordination for the 

Texas higher education system, institutions and 

governing boards, to the end that the State of 

Texas may achieve excellence for college education of its youth through the efficient and 

effective utiliaation and concentration of, all 

available resources and the elimination of 

costly duplication in program offerings, faculties and physical plants." 

The extent to which the Coordinating Board may act 

in carrying out this purpose has been specified by the Legislature in Section 3 of Article 2919e-2 which reads as follows: 

"There is hereby established the Coordinating Board, Texas College and University 

System which shall have its office in Austin, 

Texas e It shall perform only such functions 

as are herern enumerated and as the Legislature 

may assign to it. Functions,vested in the 

governing,boards.of,the respective,~institutions 

of higher education, not specifically delegated 

to the Board, shall be performed by such boards. 

The coordinating functions and other duties 

delegated to the Board in this Act shall apply 

to all public institutions of higher education." 

(Emphasis added.) 

From the language of this section it is clear that 

(1) the Coordinating Board may perform only those functions 

enumerated in the act, and (2) the authority of governing 

boards of institutions of higher education are supplanted 

& to the extent that there has been a specific delegation 

of such power to the Coordinating Board. We take this as a 

definitive declaration by the Legislature that the Coordinating 

-3125- 
. . 

Hon. Manuel DeBusk, page 4 (M-652) 

Board has no implied powers or functions. By this statement 

we do not mean that the Coordinating Board does not have implied authority to do all things necessary to carry out effectively a power or function specifically delegated to it 

in the act, for certainly it has. Terre11 v. Sparks, 104 

Tex. 191, 135 S.W. 519 (1911). But, bv the lansuace of 

Section j. the Leaislature has stated.-in effect. that the 

maxim of expressio unius est exclusio.alterius shall apply 

to limit the functions and duties of the Coordinating Board 

to those specifically enumerated in the act. 

lengthen 

It would serve no purpose other than to unduly 

this opinion to attempt to summarize or allude to the 

many powers and functions specifically delegated to the 

Coordinating Board by Article 2919e-2. Suffice it to say that 

many of these functions are advisory only and are directed 

toward the formulation of plans and policies for the consideration of the various governing boards of the institutions of 

higher education, and it is not mandatory that such plans and 

policies be adopted by the governing boards. On the other hand, 

a number of the functions of the Coordinating Board involve 

determinations which are mandatory and must be followed by 

the governing boards. 

We have carefully considered all provisions of 

Article 2919e-2 and are unable to find within the enumerated 

powers and functions of the Coordinating Board authority to fix 

maximum enrollments at all public senior colleges and universities. 

Indeed, Section 15 expresses an intention on the part of the 

Legislature that every effort be made to ". . . assure efficient 

use of construction funds and the orderly development of 

physical plants to accommodate projected college student 

enrollments . . . .II 

Board is drrected, 

(Emphasis added.) To this end the 

amonq other things, to devise formulas for 

space utilization, methods to assure maximum daily and yearround use of facilities. While paragraph 3 of Section 15 does 

direct the Board to "Consider plans for selective standards 

of admission when institutions of higher education approach 

capacity enrollment“, we do not construe this language to 

authorize the fixin 

iusx may be A 

of a numerical maximum, but rather that 

considered" whereby a person desiring to enroll 

irst meet a prescribed set of standards. While the 

standards would necessarily preclude those from enrollment 

who failed to meet their measure, nonetheless they would not 

limit enrollment to a specific number of students. 

In any event, we do not construe Article 2919e-2 

-3126- 
.I. 

. . 

Hon. Manuel DeBusk, page 5 (M-652) 

as making mandatory that a governing board 

devised by the Coordinating Board pursuant 

but that such plans are advisory only. No 

contained for the execution of a plan. As 

implement any plan 

to Section X(3), 

language is therein _ further evidence 

that the Legislature did not intend that enrollments be fixed 

at a numerical maximum, Section 16(2) directs the Coordinating 

Board to "Recommend to the Governor and the Legislative Budget 

Board supplemental contingent appropriations to provide for 

increases in enrollment at the institutions ofh'ighertion." 

(Emphasis 

You are therefore advised that, in our opinion, 

your first question must be answered in the negative. No 

answer is required to your second question. 

SUMMARY 

Under the express language of Section 3 

of Article 2919e-2, V.C.S., the powers and 

functions of the Coordinating Board, Texas 

College and University System, are limited to 

those specifically enumerated in the article. 

This statute contains no provision which would 

authorize the Board to fix the numerical maximum enrollments for all public senior colleges 

and universities; however, the Coordinating 

Board may "consider" a plan whereby a person 

desiring to enroll must first meet a prescribed 

set of standards. 

Prepared by W. 0. Shultz 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

-3127- 
Hon. Manuel DeBusk, page 6 (M-652) 

J. C. Davis 

Jack Goodman 

Ralph Rash 

Rick P. Fisher 

Jack Dillard 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

-312P.