December 9, 1952

Hon. J.W. Edgar Opinion No. V-1544 Commissioner of Education Texas Education Agency Be: Authority of the CommisAustin, Texas sioner of Education to conduct appellate review in disputes involving Dear Sir: junior college districts.

In your request for an opinion from this office you ask:

"Does the Commissioner of Education have jurisdictiontohear appeals from decisions of the junior colleges?"

governingboards of

Section 4 of Article 28l5h,V.C.S., the junior college district law, provides in part as follows:

11

. . 0The said board of education of such junior college.distri&t,under the provisions of this Act, shall in addition to all of the powers and duties .vestedin them by the terms of thisAct, be furthermore vestedwith all the rights; powers,privileges, and duties conferredand imposeaupon trustees of independentschool districtsby the General Laws of this State, so far as the same may be applicable thereto and not inconsistentwith this Act."

Section 5 of Article 2815h,V.C.S., reads as follows:

"TheBoard of Trustees' of Junior College Districts shallbe governed in the ,establishment,

management and control of the JuniorCollege by the General Law governing the ,establishment, management and control of Independent School District; in so far as the GeneralLaw is applicable.‘
._

Hon. J.W. Edgar, page 2 (V-1544)

Section 1 of Article 2654-5,V.C.S., one of the Cilmer-Aikin lawswhich created the Texas Central EducationAgency, provides in part as follows:

?fhere is hereby establishedthe position of State Commissioner of Education. All powers and duties heretoforevested in the State Superintendentof Public 'Instruction shall be dischargedby the Commissioner,provided said powers and duties are not in conflictwith the provisionsof this Act. O

. *'

Article 2656,V.C.S., provides in part:

?l%e State Superintendent shall be chargedwith the administrationof the school laws and a general superintendencyof the business relating to the public schools of the State, and he shallhave printed for general~distributionsuch number of copies of school laws as the StateBoard of Education may determine. He shallhear and determine all appeals from the rulings and decisions of subordinate school officers, and all such officers and teachers shall conform to his decisions. Appeal shall always be from his rulings to the State Board."

Section 1 of Article 2654-7,V.C.S., reads as follows~

"Partieshaving any matter of dispute among~them arising under provisionsof the schoollaws of Texas, or any person or parties aggrievedby the actions or decisions of any Board of Trustees or Board of Education,may appeal inwriting to the Commissioner of Education who, after due notice to the parties interested, shall examine in
a hearing and render a judgmentwithout cost to the parties involved. However,nothing contained in this Section shall deprive any party of a legal remedy."

Section 2 of Article 2654-1,V.C.S., provides:

"TheCentral EducationAgency shall exercise, under the Acts of the Legislature, general control of the system of publicHon. J.W. Edgar, page 3 (V-1544)

education at the State level. with personsunder twentv-one (21 vears of "7 activity age, which is carried on-within.the"Stateby other State or Federal Agencies, exce t hi h-5iih%+ er education in approved colleges, its educationalasuects be subject to the rules-andregulations of the C&tral EducationAgency. (Emphasisadded.),
Prior to.the enactmentof Article 2654-7, Article 2656 had been construed as making an appeal to the school authorit1es.a conditionprecedent to a right of any party complaining of the decision of a oublic schoolboard to bring the matter in controversv berore the courts. Trustees of Chilicothe ,Independent School Dist.,v. Dudney 142 S W 1007 (Tex.Civ.App. 1911);Warren v0 Sange: Indeplndent School Dist,, 116 Tex. 183 288 S.W. 1 9 (1926)*'HuntingtonIndependent School Dist, v. Scro~ains. 9 i.'W,2d171 (Tex.Civ.ADv. 92tsl

. However,.Imeen impliedlyheld that the governingbodies of institutionsof higher learningwere not within the term "subordinateschool officers',' in Article 2656 and an appeal from their decisions could be taken directly to the courts. Foley v. Benedict, 122 Tex. 193, 55 S.W.2d 805 (1932). In Williams v. White, 223 S.W.2d 278, 281 (Tex.Civ.App.1949 error ref.) the courtheld that junior colleges art institution: of higher learning and are not part of the public free school system, saying:

"Appellantsuggests that the provision relating to the formation of districts embracing 'partsof two or more counties'was adopted in 1909 to meet the decision of the Supreme Court in Parks v. West, 102 Tex. 11, 111 S.W. 726; Id., Tex.Civ.App., 113 S.W. 529, wherein it was held that the Legislature,under the Constitutionas it then existed, couldnot create a district embracing territory lying in more than one county. We think this is correct,but the Constitution
seems to make a distinctionbetween the public free schools (the first seven sections of Article 7 of the Constitution) and other types of educational institutions such as colleges and universitieswhich are above the hdgh ~._ school level of difficultyand generally referred to as institutionsof higher learning. This distinction seems to have been recognizedHon. J. W. Edgar, page 4 (V-1544)

by the legislativeand executivebranches of
our government as pointed out and discussed by Chief Justice Cureton in the case of Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31. We regard the case cited as authority for the proposition that the asserted limitation of Article, 7 8 3, of the Constitution is not applicable to junior colleges."

It would follow from this holding that appellate jurisdiction of the State Superintendentof Public Instruction under Article 2656 did not extend to rulings of junior college governing boards.

There has not been a judicialdeterminationof whether Article 2654-7 has changed the former rule under Article 2656 so as to give an aggrieved party a chocie of appealing to the Commissioner of Education or of appealing directly to a court. Be that as it may, we are of the opinion that neither Article 2654-T nor any other statutory provisionhas increased the Commissioner's jurisdictionto includereview of decisions of governing bodies of junior colleges. In our opinion, the appellate jurisdictionconferred in Article 2654-7 is substantially the same as that theretoforevested in the State Superintendentunder Article 2656 and is limited to disputes and controversies in matters over which he has general administrative control. While the Commissioner of Education and the Central Education Agency, of which he is
a part, perform certain specific dutieswith respect to publicly supported junior colleges, they have no general jurisdictionor supervision over activities of junior colleges as they have over the activities of the public free schools. This lack of general jurisdictionover institutions of higher learning is recognized in Section 2 of Article 2654-1,which expressly excepts their activities from the Central Education Agency's general control of education activities affectingpersons under 21 years old. Therefore, it is our opinion that the Commissioner ofEducation does not have jurisdiction to hear appeals from the decisions of the governing boards of junior colleges,Hon. J. W. Edgar, Page 5 (V-1544)

SUMMARY

The Commissioner of Educqtion has no jurisdictionto hear appeals from the dealsions of the governingboards of junior colleges.

Yours very truly,

APPROVED:

J. C. Davis, Jr. County Affairs Division

MaryKate Wall Reviewing Assistant

Charles D. Mathews First Assistant PRICB DANIEL Attorney General

m&e+Assistant

BA:am