Untitled Texas Attorney General Opinion ( 1962 )

WI& WILSON
A-l-rORNEY GENERAI.
July 30, 1962
Ron. J. W. Edgar
State Commissioner of Education
Texas Education Agency
Austin, Texas
Opinion No. biti-1408
Re: Whether Section 2 of Article 2815k-3
of Vernon's Civil Statutes prohibits
use of a junior college district
appropriation to defray any costs of
students who are in their third and
fourth collegiate years, and related
questions.
Dear Mr. Edgar:
We are in receipt of your request for opinion on the
above captioned question. Your letter informs us that a junior
college district in Texas is contemplating calling an election
pursuant to Article 2815k-3 of Vernon's Civil Statutes to au-
thorize the governing body of such district to offer and con-
duct classes in the third and fourth collegiate years and to
award baccalaureate degrees in those fields not specifically
prohibited.
Article 2815’k-3 states in part as follows:
"Section 1. Any junior college district in
this State, situated entirely or in part within
the boundaries of any city having a population in
excess of one hundred sixty thousand (160,000)
according to the last preceding decennial Federal
Census and having less than two (2) colleges or
universities offering baccalaureate degrees within
the boundaries of any such city, is herebv author-
&&, subject to the other provisions of this Act,
to
of fe ih b re ir
or accented of wtes for baccalaureate decrees
ti the fields of liberal arts. buess tr '
bather education and wit during their A%?!%?&&
&or Years, and to award such degrees, to the ex-
tent that the governing body of any such district
shall deem advisable, provided nothing in this Act
shall be construed to permit or authorize any jun-
ior college district in this State which elects to
’ .
Hon. J. W. Edgar, page 2 (~~-1408)
take advantage of this Act to award degrees in
the fields of engineering law, medicine, agri-
culture, journalism, arch1tecture, or pharmacy.
Wet. 2. No funds heretofore or hereafter
aupronriated by the Legislature of this State for
pavment to anv such junior college district shall
be used to defrav nv of the costs of teaching or
&j nerwise de3fravi.n:the costs of students who are
in their thitrd and fourth colleriate Years. Fur-
thermore any college made a senior college under
the authority of this Act shall be prohibited from
receiving state aid for junior and senior level
work for twenty (20) years from the date of the
passage of this Act.
"Sec. 3. The power and authority herein
granted shall not apply or be available to any
junior college district unless and until the gov-
erning board of such district is authorized to pro-
ceed under the terms hereof at an election held for
such purpose. Such election shall be held in the
following manner: the governing board of such dis-
trict shall without the prerequisite of the filing
of any petition, order an election to be held in
such junior college district, such election to be
held not less than twenty (20) days nor more than
thirty (30) days from the date of said order call-
ing such election, and such governing board shall
give public notice of such election by publishing
notice of such election in a newspaper of general
circulation in such district at least once a week
for a period of three (3) consecutive weeks be-
tween the date of the order calling the election
and the date of the election. Onlv those legallv
cualified voters who have duly rendered property
for taxation in such junior colleeredistrict shall
be oermitted to vote. Except as modified herein,
such election shall be conducted and canvassed in
accordance with the General Laws relative to elec-
tions in Independent School Districts. If a maior-
itv of the votes cast at uch election favor the
exercise of the Dower herzin aranted. and onlv in
such event. the governing bodv of such Suni
powers and authority prescribed bv this Act.
-"The governing board of such junior college
district may call the election herein provided for
Hon. J. W. Edgar, page 3 (~~-1408)
at any time after the effective date of this Act,
but if an election is called and held hereunder
and the proposition should fail to receive a me.-
jority of the votes cast, then no additional
election shall be called on such proposition U'I-
til at least one year after the date such prior
election was held.
"Sec. 4. This Act shall be cumulative of all
other laws and shall not be construed to limit or
affect the classes not being offered or which may
be offered and conducted by junior college dis-
tricts not subject to the provisions of this Act;
nor to limit or affect the classes which may be
offered and conducted in addition to those described
in Section 1 above by junior college districts which
are subject to the provisions of this Act, whether
or not they elect to take advantage of this Act.
lgSec.5. If anv Section. sentence. clause
phrase. or word in this Act or aoulication theriof
to anv uerson or circumstance is held invalid. such
holding shall not affect the validitv of the remain-
'nn hereb
declare it would have oas d s ch emain a D r
tions dzsoite such invalid%."U(Em~hasisi~ddedO)-
Your first series of questions is stated as follows:
"Query 1. Re first sentence (a): Does Section
2 prohibit use of the junior college district appro-
priation (see S.B. 1, Acts 57th Leg. 1st C.S. Arti-
cle IV, pg. 396, pars. l-a and 2-e) 40 defray any
costs of students who are in their third and fourth
collegiate years; viz.? to allow proration thereof
so as to enable a tuition uniform for each of the
four years.
"Re second sentence (b): Does the phrase
'junior and senior level,work' in Section 2 mean
junior and senior class work or junior college
and senior college level work; viz., does Section
2 prohibit State appropriations to a junior college
district which votes to and does operate third and
fourth collegiate years."
Regarding your Query l(a), as we construe Section 2,
the Legislature has prohibited any appropriation by it being
used toward the costs of conducting any classes or any other
expenses relative to those students in their third and fourth
Hon. J. W. Edgar, page 4 (wW-1408)
collegiate years of the senior college, when created. It
follows that if any special or new teachers are employed, or
any laboratories or other facilities are needed relative to
the third and fourth collegiate years, that no state appro-
priation may be used to defray any part of such expenses.
From your letter we are apprised that presently there
are several junior college districts operating so-called senior
college divisions, but that none of them were created pursuant
to Article 2815k-3. It would seem that the purpose of a junior
college district is to establish and manage a junior college
only; however we note from the provisions of Article 2815”~3
that “any junior college district . . . is hereby authorized,
subject to the other provisions of this Act to offer and con-
duct classes which may be required or accepEed of candidates
for baccalaureate degrees . . . during their junior and senior
years and to award such degrees. . . .‘I Therefore, if the jun-
ior college district, subject to provisions later discussed,
adds work for the junior and senior years and awards degrees,
the result is a l’collegemade a senior college under the author-
ity of this Act.” It follows that in such districts there will
be a junior college division and a senior college division.
The caption to Article 2815k-3 states in part as fol-
lows :
“An Act authorizing certain junior college dis-
tricts to offer classes to candidates for baccalaur-
eate degrees in certain fields during their junior
and senior years, and to award degrees in such fields;
. . .I,
and so when the Legislature in Section 2 speaks of “junior and
senior level work,” we interpret that phrase to mean any work
undertaken or classes offered during the junior and senior years,
i.e., in the senior college division of the district. Section 2
does not prohibit state appropriations to the junior college dis-
trict itself, but does prohibit any state aid to defray costs of
the senior college division, which conducts junior and senior
level work.
Your second series of question are as follows:
“Where a junior college district pursuant to
Article 28l5k-3 elects and acts to come thereunder:
“Query 2: (a) Does adoption of the powers
granted therein carry with it or vest in its board
authority to assess and levy taxes within maximum
Hon. J. W. Edgar, page 5 NW-1408)
tax limits previously voted by the qualified prop-
erty tax paying voters, for the construction of
facilities, bond service and maintenance of the
college operating also a 'senior division' the
third and fourth collegiate years; or
"(b) Must or may a new maintenance tax and
bond assumption election be held and carry before
the district, whose educational functions have been
so enlarged, may legally assess and levy taxes for
such maintenance, bond servicing purposes, and is-
suance of new bonds; or
"Cc) Does authority still exist in the dis-
trict only to assess and levy taxes for its 'junior
division'--first and second collegiate years--col-
lege maintenance and building needs previously
voted under provisions of Article 2815h-3b."
An inspection of the statutes reveals that if the jun-
ior college district elects to assume the responsibility of a
senior college wfthin the district the status of the district
is still the same, and it has all the powers previously confer-
red on it. However, we find that the statutes giving the dis-
trict power to levy and collect taxes refer to "Junior college
purposes," and therefore when this phrase is used, no taxes may
be levied for "senior college purposes.3'
For instance Section 7 of Article 281511allows the
district to issue bonds provide for interest and sinking funds
and to levy taxes "for the support and maintenance of the Jun-
ior College," and for "Junior College purposes." Section 10 of
that statute, Articles 2815h-3a and 281%-3b all contain the
same phraseology; consequently none of these statutes gives the
district any authority to assess and levy taxes for support of
the senior college division.
When the Legislature enacted Article 2815k-3, they
also enacted Article 2815r-1, which does not in any section re-
quire that money realized from the issuance of bonds and notes
be used exclusively for junior college purposes. We call your
attention to all eleven sections of this Article, but only quote
from Section 1, as follows:
"The board of regents of any junior college
district heretofore or hereafter organized under
the laws of the State of Texas are hereby sever-
ally authorized and empowered, each for its re-
spective institution or institutions, to construct
Hon. J. W. Edgar, page 6 NW-1408)
acauire and eouin on behalf of such institution,
buildings and other structures and additions to
existinG buildings and other structures and ac-
ouire land for said additions. buildings and other
structures in any manner authorized by law. in-
cludinn the power of eminent domain exercised in
the manner orescribed for anv indenendent school
district if deemed appropriate by said governing
body. &id constructions. au'uning and acauisi-
tion mav be accomwlished inewh&e or in Dart with
proceeds of loans obtained from anv orivate or nub-
lit source. The said governine boards are alsp
severallv
. . .authorized
. to enter into contracts .with
.
ies and s& 1 districts for the loin<
construction of said f%litia.&81 (Emphasis
added)
We answer your second group of questions accordingly:
Authority is still vested in the junior college district to
assess and levy taxes for junior college purposes only or for
the "junior college division" under Articles 2815h et seq. The
said district has no authority to assess and levy Eaxes for sup-
port and maintenance of its senior college division, but may
obtain loans, enter into contracts, issue its bonds and notes,
pledge its fees or make use of any other proceeding authorized
by Article 2815r-1. If the district contains a city of not less
than two hundred twenty-five thousand (225,000) population, it
may receive donations of cash pursuant to Article 2815i.
Your questions continue as follows:
"In short, in connection with taxation ques-
tions raised in auery 2, what is the legal effect
of that sentence in Section 3 reading: Only those
legally qualified voters who have duly rendered
property for taxation in such junior college dis-
trict shall be permitted to vote. Is such sentence
consonant with or in violation of Article VI, Sec-
tion 2, Constitution of Texas; and if in violation
may the problem be resolved in a manner decided in
King v. Carlton I.S.D., 295 S.W.2d 408 (Tex.Sup.
1956). See also Section 3 of Article 2784e-1, as
amended following King v. Carlton, supra."
Section 2 of Article VI of the Constitution of Texas
states in part as follows:
"Every person subject to none of the foregoing
disqualifications who shall have attained the age
. ’
Hon. J. W. Edgar, page 7 (W-1408)
of twenty-one (21) years and who shall be a citizen
of the United States and who shall have resided in
this State one (1) year next preceding an election
and the last six (6) months within the district or
county in which such person offers to vote, shall
be deemed a qualified elector; and provided further,
that any voter who is subject to pay a poll tax un-
der the laws of the State of Texas shall have paid
said tax before offering to vote in any election in
this State and hold a receipt showing that said poll
tax was paid before the first day of February next
preceding such election. . . .I'
We also call your attention to section 3a of Article
VI of the Constitution, reading as follows:
"When an election is held by any county, or any
number of counties, or any political subdivision of
the State, or any political sub-division of a county,
or any defined district now or hereafter to be de-
scribed and defined within the State and which may
or may not include towns villages or municipal cor-
porations, or any city, Eown or village, for the
puroose of issuie credit,
or exoendins m onev or assumlne:anv debt. onlv au *_
fied electors who own taxable arouertv in the State,
Four&v. nolitical sub-division, district. citv. town
g village where such election is held. and who have
dkv rendered the same for taxation. shall be auaa
fied to vote and all electors shall vote in the elec-
tion orecinct of tmresidence.lr
An identical situation, which may prevail if Article
281.%-3 is to be complied with, was presented to the Court in
inR . Car 0 deuendent School District; 156 Tex. 365, 295
kw.2: 408 ;;9;65: In that case an electio; to adout the pro-
visions of Article 2784e-1 was in question. Article 2784e-1
required that for the $dootion election only "property taxpay-
ing qualified voters of such district, whose property has been
duly rendered for taxation, shall be entitled to vote."
In the course of the opinion Chief Justice Hickman
stated at page 412:
"Any qualified elector) as defined by that Ar-
ticle, is entitled to vote in any election other
than one for which additional qualifications are
prescribed by some other provision of the Constitu-
tion. The Legislature was not authorized to pre-
scribe any other standard for voters at the adoption
Hon. J. W. Edgar, page 8 ON-14081
election than that of qualified electors as de-
fined by Article VI Section 2. More speci-
fically stated,the legislature wis'not authorized
to limit the voters at the adoption election to
'qualified voters of such district who own prop-
erty which has been duly rendered for taxation on
the tax rolls of the county for that purpose.'
All of the language just quoted following the words
'qualified voters of such district' is in conflict
with the provisions of Article VI, Section 2, of
the Constitution, and should therefore be stricken
from the &tt;"
We therefore advise you that the voting qualifications
contained in Section 3 of Article 2815k-3 are in violation of
Section 2 of Article VI of the Constitution.
Since Section 5 of Article 2815k-3 provides a savings
clause, it follows that "When the invalid provision is stricken,
the Act is made workable, leaving the question of the adoption
of the Act to be determined by an election at which ' ualified
1 9 Tex.
electors' shall participate. Jordan v. Crudgington, a.
237, 231 S.W.2d 641.” (Emphasis added) Kina v. Carlton, sunra.
You are advised that the proposition of whether or not
the residents of the junior college district adopt the provi-
sions of Article 2815k-3 should be submitted only to the quali-
fied voters under Section 2 of Article VI of the Constitution of
Texas. King v. Carlton Independent School District, sunra.
SUMMARY
1. Section 2 of Article 2815k-3 prohibits the
use of junior college appropriations to defray costs
of teaching of students in the senior division or any
other expenses of such division in a junior college
district. 'IJuniorand senior level work" means any
work undertaken by students in classes offered in the
senior college division of the district.
2. '2neadoption of Article 2815k-3 does not
carry with it or vest in the governing body authority
to as:ess and levy taxes for the senior college divi-
sion. The district's authority to obtain money in
this regard is limited to Article 2815r-1, et seq.
The district still has authority to assess and levy
taxes for its junior college division pursuant to
Article 2815'h,or accept donations if the provisions
of Article 28151 apply to it.
. -
Bon. J. W. Edgar, page 9 (~~-1.488)
3. Section 3 of Article 2815k-3 is unconstitu-
tional and in order to validly adopt the remaining
provisions of such Act, the question of adoption
should be presented only to those voters qualified
under Section 2 of Article VI of the Constitution of
Texas.
Yours very truly,
Will Wilson
r2w7q
Fred D. Ward
FDW:wb Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Tom McFarling
Frank R. Booth
Joe Osborn
Bob Shannon
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore