Untitled Texas Attorney General Opinion ( 1969 )

THE ATHHXNEU GENERAI.
OF ‘?&ZXAS
January 21, 1969
Honorable Preston Smith Opinion Ro. M-333
Governor of Texas
State Capitol Building Re: Whether the Board of
Austin, Texas Directors of Texas
TechnologicalCollege
may create’& medical
school as a part of
the existing college
at Lubbock witho:ut”
the passage of imple-
Dear Covernor Smith: menting legislation?
Your recent letter requests the Attorney General to render
an opinion on the above question.
The Legislature of the State of Texas crested Texas .Techno-
logical College at Lubbock Ln ‘1923.-Article 2629; et seq.,
Vernon’s’Civil Statutes. An examlnatlohof these ‘articles’ pa-
veals.that Article 2629sets out,the.purpos.efpr ,whjchTe,xas.
TechnologicalCollege was created. It reads as.followsn
’ The Texas TechnologicalCollege at Lubbock
shall ‘bea co-educationalcollege giving
thorough instruction in technologyand
textile engineering from which a student
may reach the highest degree of education
along the lines of manufacturingcotton,
wool, leather and textile engineering,
the chemistry of materials and technique
of weaving, dyeing, tanning and the doing
of any and all other things necessary ,for
the manufacturingof raw materials into
Honorable Preston Smith, page 2 (la-333)
and increase the capacity of the'people
for the democratic self-government,and
particularly to give'instruction ii’~ techno-
logy, manufactu&g and agriculturalpur-
suits, domestic husbandry and home econo-
mics so that the boys and girls of this
State may atta'intheir highest usefulness
and greatest happiness and in so doing,
may prepare themselvesfor producing from
the State its greatest possible wealth."
(Emphasis supplied)
Further, Article 2631sets out the courses which are author-
iz'edto be taught. It provides:
" In addition to the courrresnrovlded in
‘..
or short term courses &ZJ,.f+q``,q~d
ranch
husbandry and economicsand,the chemistry
of soilsand the adaption of farm crops to
the peculiar soil, climate and condition
of that portion of the State in which the
college is located and such other courses
and degrees as the board,of,directors may
see fit to provide as a means of supplying
me educational facilitiesnecessary for
tnls section of th State. Th board shall
Turnisn such assl.sEanceto theefacultyand
students of said college as will enable
them to do original research work and to
apply the latest and most approved method
of manufacturingand, fn general, to afford
the facilities of the college for the pur-
pose of originating,developing, supporting
and maintainingall of those agencies for
the developmentof the physical, mental and
moral welfare of the 8tudent8 who attend
the college and for Surther purpose of de-
velopia&the material resources of the
State to their highest point of value and
usefulness by teaching the arts of commerce
and manufacturing. All male students
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-
1
Honorable Preston Smith, Page 3 (M-333)
attending this college shall be required to
receive such InstructionIn military science
and tactic8 as the board 'ofdirectors may
prescribe which shall at all times comply
in full with the requirementsof tie United
States Government now given as a prerequisite
to any aid now extended or,hereafterto be
extended by the Government of the United
States to State institutionsof this character
and all such white male students shall, during
their attendance at such college, be sub-
ject to such military disciplineand control
as the board of directors may prescribe."
(Emphasis supplied)
In this connection, the Board of Directors consists of nine
directors pursuant to the authority of Article 2630, in which
Board is vested the government, control and direction of the
college.
The first Inquiry shall be directed to the question of
whether the Board of Directors has authority in the first Instance
from these pertinent statutes to create a medical school without
implementingLegislation,a queetlon to be resolved aside from
limitationswhich may have been later placed on the 'Boardof
Directors by enactments of the Legislature. Such an inquiry must
of necessity begin with a determinationof the overridingpur-
pose for the creation of Texas TechnologicalCollege. In as-
certaining such, certain rules of constructionpertaining to
statutes must be constantly bornsin mind. The first endeavor
is to ascertain the legislativeintent. Lacey v. State Banking
Board, 118 Tex. 91, 11 S.W.2d 496 (1928). S h an ascertainment
m come from a general view of the entire Eiactment. Barber
v. Giles, 146 Tex. 401, 208 S.W. 26 553 (1948). Once the-t
of the lenislaturehas been established.the next ob.iectiveis
to construe the statute so as to give effect to the purpose of
the Legislature,Houston v. Allred 123 Tex. 334, 71 S.W.2d 251
(1934) - In this regard, statutory provisions are to be liberally
construed to carry out the purpose intended by the Legislature.
Free18 v. Walker, 120 Tex. 291, 26 S.W.2d 627 (19301, Galveston,
H. and S.A.R75, v. Enderle, i70 s,w. 276 (T&x: ?%v:~A~. c?irK
error ref.) Austin v. Co3iPins,200 S.W. 2d 666 (Tex. Civ. App:
1947, error're?.n.r.e!,),mex . Jur. 2d 298, Statutes, Sec~tion
194.
Looking to these statutes and applying the above rules, the
conclusionmust be reached that the Legislature must have intended
somethingmore than,,and in addition to, a mere "technological
collde".
-1638-
. .
Honorable Preston Smith, page 4 (M-333)
From the emphasizedportions of the sta'tuteset 'out;Infull
above there is gleaned 'thepervasive idea that the'Legislature
created'whatwas to be a "college of the first Hass" b$ offering
the same"degreesas such a college. The Legislature recognized"'
that in addition to the courses specificallyprovided for techno-
logy and textile engineering,the college should offer all courses
given in standard senior colleges of the first class. Further,
it specificallyprovided explicit power to ~theBoard of'Directors
to provide for such other courses and degrees as'the Board of
Directors might see fit, and to this end the Board evidently
was empowered to act without the need for implementinglegisla-
tion.
It would appear to 'bewithout merit to contend that because
the statute speaks in terms of "college" that there is no authority
to create a school of medicine, since such schools are foreign
to what is envisioned as a four year college and are peculiar '~
only to universities. In addition to the statute dispelling such "
a contention. the definition of "college" itself would likewise
do so for in State v. Erickson, 77 MoiTt.429, 244 P. 287,‘291
~(19263,it is found th t the word 'college"is applied to all
kinds of institutionsFrom universities~to business collegx
ar?olleges: and others. More importantly,Texas Techno&
gical College was designated by the CoordinatingBoard on April
18, 1966, to be a university. It could hardly.he..argued,.w,i.th
... .,........
that throughoutTexas and throughout the United States, higher
education views the term "university"as cb#reiptive of multi-
purpose institutionsoffering instructionin a var,$etyof dis-
ciplines, awarding degrees of all levels, and especially the
doctorate,and organized into a number of componentswhether
they be calle'dschools, colleges, departments or divisions.
As to whether or not Texas TechnologicalCollege can create
a medical school within the confines of the authority granted j8
in the above statutes without implementinglegislation is an-
swered additionallyby the experience of the college itself during
the years it has existed. Today, it is made up of the following
components,none of which were created by Implementinglegis-
lation: the School of Agriculture, the School of Arts and
Sciences, the Schaol of Business Ad&n$stration, the School of
Engineering, the School of Eome Economics3 the School of,Law,
the Graduate School,,and the Divisfonof.Extension. For~years
various departmentshave awarded the.:,Doctor of,Philosophy
degree after completion of the work required. These departments
include biology, chemistry, chemical engineering, civil engineering,
electrical engineering,English, geosciences,government,history,
industrial engineering,mechanfcal engineering,physics, and
psychology.
1639 -
Honorable Preston Smith, page 5 (M-333)
Thus it is seen that using settled rules of law, a Con-
struction of the statutes creating Texas Technological~College
leads one to the conclusion that the Legislaturedesired a
“college of the first class,” and by empowering the Board of
Directors to act to accomplish that purpose the further con-
clusion is reached that the creation of a medical school by
the Board of Directors would be an accomplishmentcalculated
to satisfy the intent and desire of the Legislaturewhen it
gave birth to Texas TechnologicalCollege by the above’~statutes.
The creation of a medical school would be, as demonstrated
above, entirely consonant with Its experience of ~operating
under these statutes from its inception. It certainly can-
not be said that it would be a deviation from the purpose of
the statute.
Having concluded that by the above statutes, the Board
of Directors can create a medical school without implementing
legislation,the further inquiry remains as to whether the
Higher Education CoordinatingAct of 1965, Vernon’s Civil
Statutes, Article 2919e-2, modifies or limits the power re-
siding in the Board of Directorsto create a medical school
without resort to enabling legislation.
Texas TechnologicalCollege, being one of the many insti-
tutions in Texas which Is supported~by...appropriations.from
the
Legislature of the State of Texas is subject to all of the pro-
visions of the Higher Education CoordinatingAct of 1965. This
Act creates a CoordinatingBoard, Texas College and University
System and outlines specificallythe powers and duties of the
CoordinatingBoard, such CoordinatingBoard being the successor
agency to the previous Texas Commission on Higher Education.
The applicable portions of Article 2919e-2, Vernon’s Civil
Statutes include Section 2 (e) which provides as follows:
” ‘Medicaland dental unit t means The Univer-
sity of Texas Medical Branch; Southwestern
Medical School; South Texas Medical School;
The University of Texas Dental Branch; M.D.
Anderson Hospital and Tumor Institute;
Graduate School of Biomedical Sciences at
Houston; and such other medical or dental
schools as may be establishedby statute
or as provided in this Act.” (Emphasis
supplied1
In Section 2 (g),the following definition is found:
l”Institutionof higher education’”means any
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Honorable Preston Smith, page 6 (M-333)
public ,junior.college,public senior college ’ ~’ ,,
or ‘university,medical oredental ‘unitor
other agency of higher education as herein,’ ~
defined.‘I
Section 2 (j) of Article 2919e-2 reads:
“‘Degree program’ means any grouping of the
subject matter courses which, when satis-
factorily completed by a student, will
entitle him to a degree from a public senior
college or university or a medical or den-
tal unit.’
Section 3 of the Act provides;
” There isshereby established the Coordinating
Board, Texas College and University System
which shallhave its office in Austin, Texas.
It shall perform only such functions as are
herein enumerated and as the Legislature
may assign to it. Functions vested in the
governing,boardsof the respective institu-
tions of higher education, not specifically
delegated to the Board, shall be performed
by such boards. The coordinatingfunctions
and,other duties delegated to the Board in
this Act shall apply to all public institu-
tions of higher education.I’
There is found in Section 10 (6) that the Board representing
the highest authority in the State in matters of public higher
education shall:
consolidationor
or certificatepro-
grams where sue- is in the best
interest of the institutionsthemselves
,or the general requirementsof the State
of Texas> or when such action offers hope
of achieving excellence by a concentra-
tion of available resources. No new
- 1641-
Honorable Preston Smith, page 7 (M-,133)
Section 13 of the Act provides:
"Eo funds appropriatedto any institution
of higher education shall be expended for
any program which has been disapprovedby
the Board, unless said program'is subse-
quently specificallyapproved by the Legis-
lature. Ho new department, school or degree
or certificateprogram approved by the Board
or its predecessorj the Texas Commission on
Higher Education, shall be initiated by any
institution of higher education after th
efrective date of this Act until the Boared
shall make a written finding that the de-
partment, school or degree or certificate
program is adequately financed by legis-
lative appropriation,by funds allocated
by the Board, and/or by funds from other
sources. Any proposed statute which would
establish an additional institutionof
higher education except a public junior
college shall be submitted,either prior
to introductionor by the standing commlttee
considering same, to the Board for its
opinion as to need of the State therefor, and
the Board shall report its findings to the
Covernor and the Legislature,provided that
a recommendationthat an additional insti-
tution is needed shall require the favorable
vote of at least two-thirds (2/3) of the
members of the Board. But a recommendation
of the Board shall not be considered a con-
dition to the introductionor passage of
any proposed statute.“ (Emphasissupplied)
The legislativeintention regarding medical schools is
initially discerned from Section 2 (e) of the Act as quoted above.
Since it states '. . .and other such medical or dental schools
as may be established‘by statute or as provided in this Act,"
(emphasis supplied), it becomes clear that the creation of medical
schools through some means other than implementinglegislation
was contemplated'bythe Legislature. Further analysis then shows
that in Section 10 (6), the specific authority was granted the
CoordinatingBoard to establish other medical schools than those
now in existence. Finally, looking to the last sentence of Section
10 (6)s it is readily discerned that implicit in the entire section
is the idea that a new department or degree program (which by def-
inition includes medical school) can be created without implementing
legislation so long as prior approval of the Board is obtained.
-.1642-
Honorable Preston Smith, page 8 (M-333)
"
There is nothing in the sedtion about the ‘need’
of’s ecial.‘legis-.’
lation, and such a constructionreadeN Section 10~s6) ‘boimistent
with Section 2’ [e) and gives meaning to b&h sections,~‘adesired
objective. The most that can be said by way 6f suminary’is thav
the Legislaturegranted and’recognized this power in the ‘Coordi-
nating Board while at the same time it did not relinquish its
own right to establish such schools by implementinglegislation
if it so desired.
Section 13 of,,Artlcle 291ge-2 has-as its main thrust the ~.
insuring that any . . .new department, school or degree or certi-
flcate program. . .” uill not be initiated without the Co,ordinating
Board havina exercised the functions for which it was set un.
The second gentence of grction 13 speaks c& “no new dapartmint,
school or degree. . .program”bring “. . .initiatedby any insti-
tution of higher edueatias. . .” emphaaid rupplled unti.1~ It,
‘isfound to be adequately finance6 ‘throughlegislat ve appro-
priation or otherwise. Implicitly;’ at.the very least; is-the
expression of the idea that a mediaal sohool can be created,-
without the need for implementinglegislation,for if imple-
menting legislation is required, one could rationallyassiime
that the Legislature Itself would ensure Its adequate finanoing
such that Its own action would not be r8ntiered nugatory. It
ie,not to be presumed that the LeElslaturewould deStrOY at
birth its own-enactment. Port Ac?es,v. Port Arthur, 346 S.W.
26 324 (Tex. Civ. App. 1960, error ref. n.r.e.) This view is
buttressed ‘byt&s fee% that when Sectioij 13.,of the.statutes..
speaks in terms of a “proposed statute,” it does not appear
until the third sentence of Section 13 and then speaks of the
only function of the Beard as being the rendering of an opinion
as to the”need” of the State for such proposed legislation,
thus merely re-emphasislagthat the creation of a medicillschool
can be done by implglentiaglegislationand if such a route is.
chosen, the role the Baud is to play. If, as a prerequisite
to the establishmentof a new department or degree program,
there must first be obtained the specific priorh, gy;zli$ the
CoordinatingBoard, pursuant to Sectien 10 (6
Section 13 we find that a of t a Coordinating
Board shall not be consid ite to the passage of
a proposed statute establishingan lnlrtituticwref higgcr educs-
tion (which includes a medical school); is it not reasomable to
assume that in one instance the statute is speaking of the creation
of a medical school without implementinglegislationand in the
other Instance is spmof the creation of a mediral school
with implementingle islation? Otherwise, what the LegislatUre
m in Section 10 (8 ) would be rendered ineffectiveby what it
sets out in the last sentence of Section 13. It is to be pre-
ferred that a cona&%ction be given the two portions of ~the
enactment which renders both viable rather than a construction‘~
which would create a conflict.
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. ,
Honorable Preston Smith, page 9 (M-,133)
The above constructionthen harmonizes Section 13 and Section
10 (6) with the indicationnoted in Section 2 (e) of Article 291ge-
2, and thus comports with the establishedand cardinal rule of
construction that “all the language and every part of a statute
shall be given effect, if reasonablypossible” and “. . .effect
and meaning should be given to each and every sentence, clause,
phrase, and word of the Act, as nearly as can be done consistently
with the object and purpose of the legislature.‘I53 Tex. Jur .
26 228, Statutes, Section 159.
Such an analysis can only point to the conclusion that the
Higher Education CoordinatingAct of 1965 presents no impediment
to the creation of a medical school at Texas Technological
College at Lubbock without implementinglegislation. It should
‘be pointed out that according to informationfurnished this
office, the requirementsof the Act are being met, for on Decem-
ber 3, 1968, the CoordinatingBoard, meeting in Austin, received
a report from a CoordinatingBoard Special Committee which.recog-
nized the necessity for a medical school to serve the special
needs of West Texas, and thereafter,at a meeting of the Coordi-
nating Board on January 9, 1969, authorized Texas Technological
College to request funds from the Legislature for the orderly
planning and development of an Innovativemedical school on the
campus of Texas TechnologicalCollege at Lubbock. The Coordi-
nating Board further stated that the medical school could be
commenced as soon as facilitiesand programs are judged to ‘be
adequate by the CoordinatingBoard and full financing provided
by the Legislature.
Although the Legislaturedid attempt to pass a bill for
establishinga medical department as shown by the fact that in
1965 the 59th Legislature enacted House Bill No. 14 (authorizing
the Board of Directors of Texas TechnologicalCollege to establish
a medical department of the College), this enactment was sub-
sequently vetoed by the Governor and thus did not become effective.
No further attempt has been made since that time by the LegiS-
lature to pass such legislation. As shown by the discussion
of the statutes creating Texas TechnologicalCollege, such a
method of creating a medical school was certainly available
although not mandatory. Likewise, the Higher Education Coordi-
nating Act of 1965, as demonstratedabove, recognizes that this
is an alternative to the procedures to be complied with under
the various mandates establishingthe CoordinatingBoard. The
veto message of the Bill (House Journal, Texas House of Repre-
sentatives,April 13, 1965, pages 1138-1143) signed by Governor
Connally lists no legal objection to the creation of the medical
school under discussion without implementinglegislation,nor
does it even insinuate that,the only method of creating such
would be through legislativeaction.
- 1644-
. . .
Honora’ble Preston Smith, page 10 (M-333)
Indeed,the thrust of the veto message'was that the legis-
lation was simply premature, and the requisite findings to his
mind had not been made. Re states on page 1138 that House Bill
No. 14 would authorize the esttiblishment of a'medical'department
by the Board of Directors of Texas TechnologicalCollege prior'
to the completion of any professionalstudy as to medical needs
of the State; and that this would.be contrary to-sound planning
of such graduate programs. Such an objection is, of course,
now met since the CoordinatingBoard has authoriied Texas
Technologicalto request funds for a mediarrlschool.
We therefore find that the Board of Directors of Texas
TechnologicalCollege may create a medical school as~pert of .'
the existing college at Lubbock with,outthe passage of imple-
menting legislationafter full compliance with the Higher Rdu-
cation CoordinatingAct of 1965. It is to be recognized,however,
that althou@ no implementinglegislation is required, the-
Legislatureby virtue of its power over appropriationshas, in
the final analysis,~the power to accept or reject this method
of creating a medical school by Texas Technological.College.
SUMMARY
The Board of Directors of Texas Technological
College may create a medical school as a part of the
existing college atLubbock without the passage of
implementing-leislation through compliance with
Article 2629, 2831, and 2919e-2, Vernon's Civil
Statutes.
truly yours,
YY
C. MARTIN
orney General of Texas
Prepared by Robert C. Crouch
Assistant Attorney General
APPRCVRD D
OPIRIOM COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
John Banks
Rick Fisher
Neil Wil3iams
Mark White
W.V. CRPPRRT ,' i
Staff I&gal Uaf8tent -1645-