*x-rORxEzY OEN&RAl. August28,1970

Hon. Bevington Reed Commissioner OpinionNo. M- 672 CoordinatingBoard, Texas College Re: Questions regarding laying and University System out of service areas by the Sam Houston Building CoordinatingBoard and anAustin, Texas nexatlon of territory to a junior collegedistrict under the provisions of Acts 1969, 61st Le lslature, Chapter 788 $Chapter Dear Mr. Reed: 2815h-lb,V.C.S.)

Your letter requesting an opinion from this office concerning the abbve captionedmatter presents this factual statement: “On January 15, 1968, the CoordinatingBoard adopted a plan for development of the junior colleges In Texas. That plan, as published in CoordinatingBoard Policy Paper#2, The Development of CommunityJunior Colleges in Texas, says in part: “‘Havingdeterminedminimum student enrollment criteria, and recognizing that Texas has not only centers of heavy population concentration but also large areas with sparsepopulation, the CoordinatingBoard recommends that for community junior collegepurposes, the State be divided Into fifty-threegeographic regions having certain student population characteristics.'
" A geographicregion does not represent a tax district; nor does it define an area in which studentsmust attend a college located thereinfi,to the exclusion of movement across "linesdrawn. “The region does represent that area from which most of the community junior college students should and will come; and represents as well an area wherein at least one community junior college district -3205-,

Hon. Bevington Reed, page 2 (M-672)

is feasibleduring the forthcoming two decades. It is important to understand that the boundaries of each of the fifty-threeproposed regions are flexible and will be subject to change at such time as change seems reasonable and practicable." Based upon these facts,you ask the following questions: "May this action of the CoordinatingBoard be construedas laying out serviceareas for assisting junior colleges as specified in Chapter 788 of the General and Special Laws passed by the 6lst Legislature,Regular Session, 19691 "If the action of the CoordinatingBoard is not so construed, can a junior collegedistrict be expandedunder Chapter 788 of the General and Special Laws as cited?"
A question has been raised at the outset as to whether the Board intended its plan to be construed as laying out service areas for assisting junior colleges. It is our conclusion that such a question cannot be considered. The Legislature,as will be herein later discussed,made its own interpretationof the Board's action and enacted into lawArticle 2815h-lb,Vernon's Civil Statutes, expressly recognizing the authority of the Board to lay out service areas for assisting junior colleges. Such legislative Interpretationsor constructions in a lateract of an existing law are persuasive and entitled to great weight as showing legislative intent in the passage of the act under consideration. 53 Tex.Jur.2d 265-266, Statutes, Sec. 178. l?urthermore, for the purpose of ascertaining intent, it is the general rule of law that a statutemay not be Impeachedby paroleevidence or oral testimony of individual legislators,officers, or members of the legislativebody. 50 Am.Jur.2d 120, Statutes, Sec. 130. Thus, for example the testimony of a legislatoras to the intent of an enactmentpassed by the Legislature of which he was a member is incompetent. Barlow v. Jones, 37 Ariz. ,396,294 Pac. 1106 (1930). It is our opinion that in any event the intention of the Board Is expressed in the wording of the instrument.

As the Texas Supreme Court stated inWebster, et al. v. Texas &IPacificMotor Transport Co., et al., 146Tex. 131, 166 S.W.2d 73 (1942):

II

. . . it was the intentionof the Legislature that the Railroad Commission.

. e shouldbe composed of threemembers, and that the Commission, acting as -3206-Ron. Bevington Reed, page 3 (M-672)

such, and not the individual Commissioners, shouldhave the authority to grant or refuse applications.

. . . "It is a well establishedrule in this State

. . . that where the Legislature has committeda matter to a board

. . .or other administrative agency, such board

. . .must act thereon as a bod at a statedmeeting

. . .' (Emphasisadde + Article 2919e-2,Vernon's Civil Statutes, creating the CoordinatingBoard, Texas College and University System,became effective September 1, 196.5. Section 1 states in part that the purpose of the act is to establish in the field of higher education in Texas an agency to provide leadership and coordinat,on for the Texas higher education system to the end that the Statemay achieve excellence for a college education of its youth through efficient and effectiveutillsation and concentration of all available resources and the elimination of costly duplications In program offerings, faculties and physicalplants.

Such Article confers numerous and extensivepowers on the Board (Sections10, 18, 19 and 23.) For example, theBoard is given authority to define a junior college,develop and publish criteria to be used for a basis for determining the need for changing the classificationof any public institution of higher education and for determining the need for new publio colleges, and classify and prescribe the role and scope for each public institutionand hear applications from the institution for changes in such classification,etc. The Board is also given responsibility for adopting policies, enacting regulations and establishinggeneral rules necessary for carrying out the duties with respect to public junior collegesplaced upon it by the Legislature.

Nearly threeyears later on January 15, 1968, the Coordinatir Board adopted and published the plan abovementioned and relatedmap.

Chapter 788, Senate Bill No. 739, pa e 61st Legislature of Texas, Regular Session, 8 2332,Acts of the 19 9 (codifiedby Vernon as Article 2815h-lb),became effective about a year and a half later on September 1, 1969. It permits Inclusion of territory In the boundaries of a junior collegedistrict, for junior collegeRurposes, if such territory Is (1) contiguous to the district and (2) has been laid out by the Coord$natingBoard

. . .as a service area for assisting junior colleges. Such Chapterprovides themanner for determining the question of suchboundary change, that is, by petition and election, It further states that it is cumulativeand wholly
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Hon. Bevington Reed, page 4 (M-672)

sufficientauthority for such inclusion of ttrritory. The emergency requiring its immediateeffect is

. . . the fact that additional and adequate authority is required for changing the boundaries of junior collegedistricts, and the fact that such changesare urgently needed

. . .

We think that Articles 2919e-2 and 2815h-lb, considered In the light of Policy Paper#2, must be construed together, each enactment in reference to the other, and effect given to all the provisions of each act. See 53 Tex.Jur.2d, 280, Statutes, Sec. 186. Otherwise, the authority of the CoordinatingBoard to lay out service areas is questionable?, and the Legislature in enacting the provision in Article 2815h-lb, hat been laid out by the CoordinatingBoard as a service area, has done a useless or futile thing until ;hat'Article is amended or the Legislature specificallygrants the Board suchpower. This is true, because Article 2919e-2nowhere does so, and Article 2815h-lb cannot,because the power is neither expressed in the caption nor germane to the subject, except as an annexation requirement. See Constitution of Texas, Art. III, Sec. 35. Moreover, Policy Paper#2 would be renderedmeaningless and violencewould be done to any proceedinghad under Article 2815h-lb.However, Article 2919e-2 expressed its general Intent, purposes and objectives,and the CoordinatingBoard thereafter adopted Policy Paper #2. While "It Is true that laws speak prospectively ‘unlessthe contrary is clearly indicated” (Freemanv. Terrell, 115 Tex. 530, 284 S.W. 946 (1926),a subsequentLegislature enactedArticle 2815h-lb and clearly employed the East tense in referring to ter:ltorywhich ‘has been laid out as a service area; and also the rule is that a statute speaks as of the time at which it-takes effect.” Moorman v. Terrell, 109 Tex. 173, 202 S.W. 727 (1918). Since P 11 P #2 and itsmap had been adopted and published bzfo% ttgeiegislatureenactedArticle 2815h-lb, itmay be presumed to have known the constructionplaced on Article 291qe-2by the CoordinatingBoard in assuming thepower to adopt and publish Policy Paper#2 and itsmap. As stated in Railroad Commissionv. T & N. 0. R, Co., 42 S.W. 2d 1091 (Tex.Civ.App., 1931, error ref.):

“Anothergeneral rule of statutory construction p&id Is that the interpretationwhich has been

on a statuteby the officers or governmental department chargedwith carrying out
. . . the terms of the law will be accordeddie considerationby the courts In construfng the law.

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.

Hon. BevingtonReed, page 5 (M-672)

See also 53 Tex. Jur.2d, Statutes,pages pages 265, 266, Sec. 178. 276, 277, Sec. 183 and

the amendment ting Board. opinion is not to be construed as restricting

or rescission of Policy Paper#2 by the CoordlnaSUMMARY The plan of the CoordinatingBoard, State Therefore, in our opinion, the action of the Coordinsting Board in adopting Policy Paper#2 may be construed as laying out service areas to assist junior colleges,and junior collegedistrictsmay be expandedunder Article 2815h-lb. However, this

College and University System, for development of the junior colleges in Texas may be construed as laying out service areas for assisting junior colleges as provided for in Article 2815h-lb,V.C.S., and a junior college district is authorized to be expanded under the provis s of such statute. 9 very tru ,

c‘i52 :a MARTIN General of Texas Prepared by Linward Shivers AssistantAttorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman Glenn Brown Ray McGregor Rick Fisher S. J. Aronson
MEADE F. GRlFFIN Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE First Assistant -3209-