Untitled Texas Attorney General Opinion ( 1978 )

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The Attorney General of Texas
July 20, 1978
JOHN L. HILL
Attorney General
Honorable P. H. (Bub) McDowell Opinion No. H- 1211
President & Chief Executive Officer
East Texas State University Re: Authority of East Texas
Commerce, Texas 75428 State University to establish a
system administration.
Dear President McDowell:
You ask several questions regarding the authority of the Regents of
East Texas State University to establish a system administration. Senate Bill
598 enacted by the 65th Legislature is relevant to your questions. The bill
provides in part:
East Texas State University is a coeducational
institution of higher education with its main campus
located in the city of Commerce.
Educ. Code S 100.01. Another section of the bill provides in part:
The organization, control, and management of the
university is vested in a board of nine regents
appointed by the governor with the advice and consent
of the senate, but no regent may be a resident of the
county in which the main campus is located, nor shall
the Texarkana campus be organized to offer freshman
or sophomore programs, and the metroplex commuter
program may offer only those programs approved by
the Coordinating Board, Texas College and University
System and which are nonduplicative of programs
offered in the Dallas educational area. The board of
regents may establish different rules for the operation
of the facilities and programs in each location. . . .
The board has the powers and duties incident to its
position and to the same extent as is conferred on the
Board of Regents of Texas Woman’s University.
Educ. Code S 1OO.B The bill expressly stated that it did not authorize any
new college, university, branch, or center. Acts 1977, 65th Leg., ch. 226, S 2,
p. 4854
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Honorable F. H. (Bub) McDowell - Page 2 (~-1211)
at 617. According to the bill analysis, it established in law the upper-level
education center in Texarkana and the metroplex commuter program in Dallas,
which were already operating under Coordinating Board approval. The bill confers
on the Regents of East Texas State the powers incident to its position that are
conferred on the Regents of the University of Texas. Educ. Code. SS lOO.ll, 107.41.
With this background in mind, we turn to your questions. You first ask
whether the University has authority to acquire a building in the Dallas/Fort Worth
area for the commuter program center. You now lease a building for this purpose,
and inquire whether you may buy this or another building. You also ask whether
you may acquire it through a leasepurchase agreement. The Board of Regents has
authority under section 55.ll of the Education Code “to acquire, purchase . . . any
property, buildings, . . . or other facilities, for and on behalf of its institution or
institutions, or any branch or branches thereof.” See Educ. Code SS 55.01, 61.003;
Attorney General Opinions H-23 (1973); M-832 m71). Article 61.058 of the
Education Code provides that the Coordinating Board shall
. . . .
(5) endorse, or delay until the next succeeding session of
the legislature has the opportunity to approve or disapprove,
the proposed purchase of any real property by an institution
of higher education. . . .
East Texas State University is subject to this provision. See Educ. Code,
SS 61.003(3), (4), (7). We believe that this provision requires thGpprova1 of the
Coordinating Board or the Legislature before East Texas State may purchase the
building. See Attorney General Opinions C-686, C-686A (1966).
A rider to the General Appropriations Act for the 1975-77 biennium
authorized the Regents of East Texas State University to use bond proceeds, gifts
or grants to acquire a commuter program center. See Acts 1975, 64th Leg., ch.
743, at 2768. This kind of rider has been held to authorize university construction
projects without the consent of the Coordinating Board. Jessen Associates, Inc. v.
Bullock, 531 S.W.2d 593 (Tex. 1975). However, we do not believe a rider to the 1975-
77 Appropriations Act provides current authorization to purchase the building.
Such riders merely direct the expenditure of appropriated funds since general
legislation cannot be included in the appropriations act. Tex. Const. art. 3, S 35,
Jessen Associates, Inc. v. Bullock, m, at 601. The appropriation act to which the
rider belonged was effective for a two year period, ending August 31, 1977. Tex.
Const. art. 8, S 6; see Acts 1975, 64th Leg., ch. 743, at 2417. The appropriation for
the acquisition of a building is no longer in effect, and, in our opinion, the rider
attached to it has no independent existence. Of course, an appropriation for a
capital improvement that has been legally encumbered by contract during the
biennium may be spent after the end of the biennium. Attorney General Opinion
p. 4855
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Honorable F. H. (Bub) McDowell - Page 3 (R-12 11)
M-13 (1967); WW-40 (1957). In that case, we believe the rider would remain in effect
along with the appropriation item. You have not suggested that the Regents
encumbered the 1975-77 appropriation by contracting to purchase the commuter
program building. Therefore, we find no basis for concluding that the Regents have
present authority to buy the building, either outright or by a lease-purchase
agreement.
You next ask whether East Texas State University has legislative authority
to offer courses for resident credit in the Dallas/Fort Worth area through its
commuter program center. Section lOO.ll of the Education Code permits the
metroplex commuter program to offer only those programs approved by the
Coordinating Board which are nonduplicative of programs offered in the Dallas
educational area. The Regents may establish rules for the operation of the
commuter program which apply only to that location. Educ. Code S 1OO.L The
Appropriation Act authorizes East Texas State to use appropriated funds to provide
credit courses in the Dallas/Fort Worth metroplex under criteria established by the
Coordinating Board. In our opinion, the Regents of East Texas State have authority
to offer courses for resident credit in the commuter program center under
appropriate Regents’ rules, provided that the Coordinating Board approves the
course offerings and that they do not duplicate other educational programs offered
in the area. See also Educ. Code SS 61.051(j), 61.054.
You finally ask whether your Board of Regents has authority to establish an
East Texas State University System Administration. The Education Code defines
“1111
niversity system” to mean
the association of one or more public senior colleges or
universities, medical or dental units, or other agencies of
higher education under the policy direction of a single
governing board.
Section 61.003(g). Although the Coordinating Board has authority under section
61.051(b) to define “university system, ” it apparently has not promulgated a
different definition. East Texas State is a public senior university. Educ. Code
S 61.003(3), (4). “Other agency of higher education” is defined to include any unit
established to operate as a component part of a public senior college or university.
Educ. Code, S 61.003(6). In our opinion, the Texarkana campus and the metroplex
center constitute agencies of higher education within this definition. The
association of the two campuses of East Texas State and its metroplex center under
a single Board of Regents thus constitutes a university system for purposes of
section 61.003(6). There is in our opinion legislative authority for the establishment
of a system of administration at East Texas State, which constitutes preexisting
law for an appropriation to fund a system administration. See Tex. Const. art. 3, §
44; Austin National Bank v. Sheppard, 71 S.W.2d 242 (Tex.1934). However, there is
P. 4856
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Honorable F. H. (Bub) McDowell - Page 4 (H-1211)
no appropriation for an East Texas State System Administration. The General
Appropriation Act expressly funds the system administration for the University of
Texas System, the Texas A & M University System, the University System of South
Texas, the University of Houston System, and the Texas State University System.
Acts 1977, 65th Leg., ch. 872, at 3028, 3044, 3058, 3064, 3083. No funds are
earmarked for an East Texas State University System Administration. In view of
the express appropriations for other systems, we believe that East Texas State
must also have an express appropriation before it can use its funds for a system
administration. Since it has no funds for that purpose, it lacks present authority to
pay salaries of system administrators and other expenses incident to the
establishment of a system administration. See
- Educ. Code S 51.006.
SUMMARY
East Texas State University has no authority to buy a
building for its commuter program center, either by pur-
chase or lease-purchase. The University may offer courses
for resident credit in its commuter center provided that the
Coordinating Board approves the course offerings and that
they do not duplicate other educational programs in the
area. The Regents of East Texas have authority to establish
a system administration, but have no appropriated funds to
finance it.
_ Very truly yours,
JOHN L. HILL
Attorney General of Texas
Opinion Committee
p. 4857