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### NE-W GENERAL S

HonorableManuel DeBusk. OninionNo. M-652 Chairman CoordinatingBoard Re: Whether the Coordinating Texas College and University System Sam Houston-StateOffice Building Board, Texas College and University System,.has Austin, Texas 78701 the authority to determine and fixmaximum 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 followingquestions:

"Wewould like to have your official opinion as to whether or not the CoordinatingBoard, Texas College and University System,has the authority to determine and fixmaximum capacity enrollments in all Texas public senior colleges and universities. "Ifyou 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 annualmaximum capacity enrollments?" The CoordinatingBoard was createdby Article 2919e-2, Vernon's Civil Statutes. Its powers and responsibilitiesare 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 questionspresented:

"cc) 'Generalacademic teaching institution'means The University of Texas, Main University; TexasWestern College of The University of Texas: Texas A&M University,

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Main University;Arlington State College; Tarleton State College; PrairieView A. and M. College; Texas Maritime Academy; Texas TechnologicalCollege; North Texas StateUniversity; 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) 'Publicsenior college or university' means a general academic teaching institution as defined herein. II

. . . "(g) 'Institutionof 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) 'Governingboard'means the body chargedwith policy direction of any public

. . Junior college,public senior college or university,medical or dental unit, or other agency of higher education, includingbut not limited to boards of directors,boards of regents,boards of trustees, and independent school district boards insofar as they are chargedwith policy direction of a public junior college." Without enumeration,we point out that each of the public senior colleges or universitieshas been placed under themanagement and control of a governingboard by various legislative enactments. These governingboards 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

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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 CoordinatingBoard and the rolewhich it is intended to perform in the schemewhich the Legislaturehas 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:

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. . . 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, institutionsand governingboards, to the end that the State of Texasmay achieve excellence for college education of its youth through the efficient and effective utiliaation and concentrationof,all available resources and the elimination of costly duplication in program offerings, faculties and physical plants." The extent to which the CoordinatingBoard may act in carrying out this purpose has been specifiedby the Legislature in Section 3 of Article 2919e-2which reads as follows:

"There is hereby established the Coordinating Board, Texas College and University Systemwhich shall have its office in Austin, Texase 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,therespective,~institutions of higher education, not specificallydelegated to the Board, shall be performedby such boards. The coordinating functions and other duties delegated to the Board in this Act shall apply to all public institutions of higher education." (Emphasisadded.)
From the languageof this section it is clear that (1)the Coordinating Board may perform only those functions enumerated in the act, and (2)the authorityof governing boards of institutionsof higher education are supplanted & to the extent that there has been a specificdelegation of such power to the CoordinatingBoard. We take this as a definitive declarationby the Legislature that the Coordinating

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

Board has no impliedpowers 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 specificallydelegated to it in the act, for certainly it has. Terre11 v. Sparks, 104 Tex. 191, 135 S.W. 519 (1911). But, bv the lansuaceof Section j. the Leaislaturehas stated.-in effect. that the maxim of expressio unius est exclusio.alteriusshall apply to limit the functions and duties of the Coordinating Board to those specificallyenumerated in the act.
lengthen It would serve no purpose other than to unduly

this opinion to attempt to summarizeor allude to the many powers and functions specificallydelegated to the CoordinatingBoard 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 governingboards of the institutions of higher education, and it is not mandatory that such plans and policies be adoptedby the governingboards. On the other hand, a number of the functionsof the CoordinatingBoard involve determinationswhich are mandatory and must be followed by the governingboards.

We have carefully considered all provisions of Article 2919e-2 and are unable to findwithin the enumerated powers and functions of the CoordinatingBoard authority to fix maximum enrollments at all public senior colleges and universities. Indeed, Section 15 expresses an intentionon the part of the Legislature that every effort be made to ".
. . assure efficient use of construction funds and the orderly development of physicalplants to accommodateprojected college student enrollments

. . . .II Board is drrected, (Emphasisadded.) To this end the amonq other things, to devise formulas for space utilization,methods to assuremaximum daily and yearround use of facilities. While paragraph 3 of Section 15 does direct the Board to "Considerplans for selective standards of admissionwhen institutionsof higher education approach capacity enrollment“,we do not construe this language to authorize the fixin iusx may be A of a numericalmaximum, but rather that

considered"whereby a person desiring to enroll irstmeet a prescribed set of standards. While the standardswould necessarilypreclude those from enrollment who failed to meet theirmeasure, nonetheless theywould not limit enrollment to a specificnumber of students.

In any event, we do not construeArticle 2919e-2

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

as making mandatory that a governingboard devised by the CoordinatingBoard 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 enrollmentsbe fixed at a numericalmaximum, Section 16(2)directs the Coordinating Board to "Recommendto the Governor and the Legislative Budget Board supplemental contingent appropriationsto provide for increases in enrollment at the institutionsofh'ighertion." (Emphasis
You are therefore advised that, in our opinion, your first questionmust 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 provisionwhich would authorize the Board to fix the numericalmaximum enrollments for all public senior colleges and universities;however, the Coordinating Board may "consider"a plan whereby a person desiring to enrollmust firstmeet a prescribed set of standards.

Preparedby W. 0. Shultz Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman

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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

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