Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
December 28, 1978
JOHN L. HILL
Attorney General
Mr. Lee Drain, Chairman Opinion No. H-1312
Texas State UniversitySystem
505 Sam Houston Suilding Re: Whether a Board of Re-
Austin, Texas 78701 gents may determine that the
expenditure of University
auxiliary funds for food and re-
freshments under certain condi-
tions is a lawful public purpose.
Dear Mr. Drain:
You have requested our opinion regarding the authority of a board of
regents to determine that the expenditure of University auxiliary and other
funds for food and refreshments serves a Lawful public purpose. You state
that the Board of Regents of the Texas State University System has recently
promulgated the following order:
The Board of Regents determines that the expendi-
tures of auxiliary funds for the purchase of food and
refreshments under the provisions set forth in the Sody
assists the Universities under its control in carrying
out their educational functions, serves to promote
education in the State of Texas, and provides an
important public purpose; and, accordingly, author&s
each University in this system to use auxiliary funds
for the purchase of food and refreshments in accord-
ance with the provisions set forth in the Rody.
Body:
Auxiliary funds may be used to purchase food and
refreshments at each university in this system under
the following provisions:
L AuxiRary funds received by student organizations
may be used for the purchase of food and
refreshments if the appropriate responsible ae-
count manager and the faculty or staff advisor
determine and certify that such purchase serves
a legitimate public purpose and furthers the
educational function of the university.
p. 5164
liunorable Lee Drain - Page2 (R-1312)
2. Funds raceived as registration fees for continuing eduea-
tkn conferences seminars, and short courses IllEtYbellSd
for the purchase of food and refreshments if provfrkns
therefor have been included in the registration fees, and if
the appropriate responsible account manager therefor
determines and certifies that such purchases serves a
legitimate publk purpose and furthers the educational
functkn of the university.
3. Student service fees, receipts from university concessiay
and other auxiliary funds may be used for the purchase of
food and refreshments to the extent that such funds have
been budgeted therefor, if the appropriate responsible
account manager determines and certifies that such pur-
chase serves a legitimate public purpose and furthers the
educatknal function of the university.
4. Other locally-generated ,kcome and auxiliary funds not
restricted to Administrative, Education and General Re-
search, Plant Rxpansion, Loan, Endowment, or Scholarship
programs may ba used for tha purchase of food and
refreshments it the appropriate responsible account mana-
ger and the President of the university, or his desii,
determine that such purchase serves a legitimate publk
puytiQand furthers the, educational function of the
.
Article 3, section 51 of the Texas Constitution prohibits the grant of public funds “to any
individual, association of indlvtduals,municipal or other corporations whatsoever. . . .” It
is of course well established that article 3, section 51 is not contravened so long as the
expenditure is made for a proper public purpose. See Rullock v. Calvert, 460 S.W.Bd367
(Tex. l972)i State v. City of Austin, 331 S.W.2d 737v&x. 1960). You ask whether, in light
of article.3, secticm 51, the Board of Regents may validly promulgate such sn ader.
Section 95.01of the R&cation Code vests
[the] organkation, control, and management of the state
university system . . . in the bard of Regents, Texas State
University System.
Among other responsibilities conferred on the board by statute is the duty to “purchase
. . . necessary ~rpplks.~ Section 95.21, Education Code. In our opinion, the legislature, in
delegating such duties to the board, authorized it to determine whether any particular
expenditure constitutes a valid public purpose. See Attorney General Gpinkns H-403,
H-257 (1974). Of course, there may be other statutory restrictions on certain of the funds
described in the boardb order, in particular student services f&s, section 54.503(c),
Education Code, and as to such funds, the board must observe the limitations imposed by
the relevant statute. See Letter Advisory No. 50 (l973).
p. 5165
Honorable m DraJn - p-3 (H-1312)
But although UK-Hard of Regents b Itse.Jfempowered to &t-mine whether the
axpaaditum of university auxiliary fun& sew- a valid public purpose, it does not IcIlow
that It may delegate Its authority to make that determination to a *~nsJble aaoount
mana@ or to a YacuIty cc 6taff advisor. ” h Attorney General GpJnJonH484 Q976), we
held that the Railroad CommJnsJonwas not authorfied by rule to delegate to one of its
divbion dJrectors unlimited discretionary authority Jn matters JnvoMng expedJted
processing cc uncontested poceedJnga. The power to delegate authr&y, we said,
& ths kind of power tit the Legkrhture must expreerly gJve
the Railroad CommJssion,and . . . Texas courts wouJdnot find
it to exJstby implication.
Id. It Is therefore our opinion that, while the Board of Regents of the Texas State
‘isiiiveraity System may itself determine whether a particular expenditure of unJveraJty
funds constitutes a valid public purpose, it may not by rule delegate that determination to
any other person. Of ccurse, it may dalegate the authority to determhe Jf specific
exp~diturea faJJwithin objective guidelJneseatabl&hedby the board.
SUMMARY
Althaqh tha Board of Regents of ule Texas State University
System may itseli determine whether a particular expenditure
of unJversity funds constitutes a valid public purpose, it may
not by ruJedelegate that determination to any other person. It
may aelegate the authority to determine Jf SpecJfic expendi-
tures fall wJthinobjective guidelines established by the board.
APPROVBD: v
Sbh4L-Q~
DAVID M. KENDALL,First Asmstant
Opinion Committee
p. 5166