Untitled Texas Attorney General Opinion ( 1976 )


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  • The Honorable Bevington Reed        Opinion No. H-771
    Commissioner
    Coordinating Board                  Re: Authority of out-of-
    Texas College and University        state educational institu-
    System                         tions to conduct courses
    P. 0. Box 12788, Capitol Station    leading to degrees without
    Austin, Texas 78711                 the permission of the
    Coordinating Board.
    Dear Commissioner Reed:
    You have requested our opinion regarding whether out-
    of-state institutions of higher education may conduct courses
    at United States military bases located in the State of
    Texas without the express permission of the Coordinating
    Board. Section 61.402 of the Education Code, enacted in
    1975, provides:
    Public institutions of higher education
    established outside the boundaries of the
    State of Texas must have the approval of
    the coordinating board before offering a
    course or a grouping of courses within
    the State of Texas.
    A similar provision requires Coordinating Board approval for
    private out-of-state institutions. Education Code 9 61.301
    et seq.
    The Legislature has recognized the right of the United
    States to the possession of certain lands within the geograph-
    ical boundaries of the State of Texas. V.T.C.S. art. 5242.
    p. 3256
    The Honorable Bevington Reed - page 2 (H-771)
    The Governor is authorized to cede to the United States
    exclusive jurisdiction over such lands, provided that cession
    is made upon the express condition that the State shall
    retain concurrent jurisdiction with regard to the execution
    of civil and criminal process. V.T.C.S. art. 5247. Since
    you have not limited your inquiry to specific military
    bases, we will first assume that the federal government has
    obtained exclusive jurisdiction over the geographical area
    in which the courses are conducted, subject to the proviso
    of article 5247.
    In Pacific Coast Dairy, Inc. v. Department of Agriculture
    of California, 
    318 U.S. 285
    294 (1943) the United States
    Supreme Court held that a California milk'control statute
    enacted after the federal government had acquired juris-
    diction of a military enclave was without force within the
    enclave. In James Stewart & Co. v. Sadrakula, 
    309 U.S. 94
    (1940), the Court reached a similar result:
    Since only the law in effect at the time
    of the transfer of jurisdiction continues
    in force, future statutes of the state
    are not a part of the body of laws in
    the ceded 
    area. 309 U.S. at 100
    .
    See also Murray v.
    -- Joe Gerrick & Co., 
    291 U.S. 315
    (1934).
    Texas courts have recognized,this federal prerogative.
    of El Paso v. Central
    Civ.App.-Austin 1952)I
    the court quoted a
    ihich found that "the
    e jurisdiction for
    school purposes over a military reservation owned by the
    United States government and . . . our various statutes
    regulating school affairs generally have been superseded in
    such territory by such provisions as the Congress of the
    United States may make. . . 
    ." 247 S.W.2d at 605
    . In Adams
    v. Calvert, 
    396 S.W.2d 948
    , 951-52 (Tex. Sup. 19651, the
    sxas Supreme Court declared that, where~the State had ceded
    exclusive jurisdiction over certain lands to the United
    States, reserving only the jurisdiction to execute judicial
    process thereon, the State was without authority to tax
    p. 3257
    The Honorable Bevington Reed - page 3 (H-771)
    privately owned coin-operated machines located on those
    lands. And in Attorney General Opinion O-4764 (1942), this
    office held that, as to persons practicing dentistry under
    the order and direction of the commanding officer of an
    alien detention camp maintained by the federal government,
    State regulations regarding the practice of dentistry are
    not applicable even though the United States has not acquired
    exclusive jurisdiction over the federal enclave.
    The substantial weight of authority thus indicates that
    the Coordinating Board does not have jurisdiction to regulate
    the activities of out-of-state educational institutions
    operating upon lands over which the United States has pre-
    viously o,btainedexclusive jurisdiction.~ As a result, it is
    our opinion that, in such areas, out-of-state'institutions
    of higher education may conduct courses at United States
    military bases without the.express permission of the Coordin-
    ating Board. Even though such courses are offered to dependents
    of military personnel or to civilians not related to military
    personnel, we believe that, so long as the United States
    exercises exclusive jurisdictionsover a particular geograph-
    ical area, the State is without authority to regulate the
    educational acti~vitiesconducted within that area.
    As to military bases over which the United States has
    not obtained exclusive jurisdiction, the-answer to your
    question depends upon the terms of the deed by which the
    land was ceded to the federal government. As the Texas
    Supreme Court observed in Adams v. 
    Calvert, supra
    :
    By the federal law the Governor could
    preserve~a11 jurisdiction over the lands
    consistentwith the federal uses, but no
    more. and bv Article 5247 the Governor
    was required to reserve on1 jurisdiction
    to execute state judiciaI?process anywhere
    on the lands. There is no sound reason
    for saying that the authority conferred
    on the Governor by Art. 5241 to cede
    exclusive jurisdiction does not include
    authority to cede a lesser jurisdiction.
    p. 3258
    The Honorable Bevington Reed - page 4 (H-771)
    We hold, therefore, that in the area
    between the maximum permitted by federal
    law and the minimum required by Article
    5241, the extent of jurisdiction reserved
    to the State over lands acquired by the
    United States with the consent given in
    Article 5242 is, in the absence of other
    limitations, a matter for negotiation by
    the Governor and is settled and concluded
    by his deed of cession. . . . 396
    S.W.Zd at 950.
    See Attorney General Opinion H-110 (1973).
    -
    In order, however, for any limitation contained in the
    cession agreement to apply~to a subsequently enacted statute,
    the agreement would have to specify that the cession was
    made subject to "any statute hereinafter adopted by the
    Legislature" or to some similar condition. Absent such a
    broad reservation of State jurisdiction in the cession
    agreement, no statute enacted thereafter could be deemed to
    be included therein. Thus, we conclude that the Coordinating
    Board may not regulate the activities of out-of-state educa-
    tional institutions operating on military bases over which
    the United States has not obtained exclusive jurisdiction
    unless the deed of cession to the federal'government specified
    that the cession was made subject to any subsequent act of
    the Legislature.
    SUMMARY
    In areas where the~United States has
    obtained exclusive jurisdiction, out-of-
    state institutions of higher education
    may conduct courses at federal military
    bases without the express permission of
    the Coordinating Board. On military
    bases over which the United States has
    p. 3259
    The Honorable Bevington Reed - page 5 (H-771)
    not acquired exclusive jurisdiction, the
    Coordinating Board is nevertheless
    without authority to regulate the activities
    of such educational institutions unless
    the deed of cession to the federal
    government specified that the cession
    was made subject to any subsequent act
    of the Legislature.
    Very truly yours,
    General of Texas
    APPROVED:
    C. ROBERT HEATH, Chairman
    Opinion Committee
    jwb
    p. 3260
    

Document Info

Docket Number: H-771

Judges: John Hill

Filed Date: 7/2/1976

Precedential Status: Precedential

Modified Date: 2/18/2017