Untitled Texas Attorney General Opinion ( 1947 )

EAATTQRNEY GENERAL
PRICE, DANIEL
Aun-xmu
11.TExas
ATTO.RNEYGENERAL
February 1, 1947
Eonarable @aergo H. Sheppard
camptrol1.r st ?ublio Aoeouats
Austin, Texas Opinion No. V-07
Be: Parchase ef airplanes
by
Board 0r ReSenta the or
University of Texas for
we in omtmes of irstrua-
tion In ArreneuticaI Em-
gheeriq.
Doar Mr. Sheppard:
He hav.0 received yokii letter of January 31, 1947,
w,hloh we qaete in part a8 rdi0wr:
‘1 am att&ching hereto rouaher olaia in rarer af
&ile Fljin~ Senioe ror $8,9l+.CQ rer rour~air-
piano* p.pwka~ea by The Bnireraity 0r Tax88 rer
use'l~'ootarree of IMtruatleI h Aermeutloel ta-
gindeiing .
wI shall thank you to examine this claim in conneo-
tiem with JMT spiai~n 0-401~. ana Op00iri0Oily
to that paragraph whioh reads aa follows:
‘This past ses8lon 6r the Le&rlature
passed Salute 13111 147 which authorizes
the Board of Direotors Or the ApioUltUr-
al and Yeohaniaal College to acquire an
airport and equipment therefor. (Acts
1941, 47th Leg., B. S., Ch. 81, S.B.147,
p. 1QQ; Artitrle 2615c, Vernonls Annotat-
ed Ciril Statutes). This act is certain-
ly indicative that specific legislative
authority is required. The emergency
clause of the act reads in part as follows:’ I
,
“and advise this department whether or not we 1
would be authorized to issue warrant in payment
of such claim.”
,
Opinion Number O-4681, dated July 3, 1942, an-3
: .,, B
Honorable George H; Sheppard, Page 2
addressed to the Sam Houston State Teactheml College,
passed upon the qusstion as to whether thet collogb in&
the authorit to borrow meaey fer-the parpehe or W6perm-
tly its Cir f 1 Pilet Training program and purehaimg
planer to be used in training the boys taking this course.7
It was held In the opinion as follows:
*In the ilrst pS.seo, there Is 110 rtatrztcry
authority far the oolle(e itrolr k m&&lain.
such a prec;mm, In Seatiom 3 or Artiale 264T
it is said: ‘Said board shall not olvlnue any
depsrtment of lnstruotion prori&ed by liw, visa
ne department shall be sstabllehsd for tba aup-
p0Ft o’r whloh prevision has not been made by
‘the LegialatuN,* Pmrislon has not been mado
by tha Leglslaturo ror this pregram. It fol-
lens that. the oellege may not purehno r&r-
planes (I7
Su 8hilituatloa~‘doea not exist with respeot to ``
the Wniversity Or mxat3+ Wntier ArMale 25&5, Rovirrcl Clr-
11 Statute& the Board -or Regents ,ai the University of
Texas has the broad power’ to *regulate the course er in-
struction and prescribe, by and with the ‘advice of the
preressers, the books and authorities used in the seven1
departments, and to qonier suoh degrees and to grant
suoh diplomns as are: usually oenrerred and granted by
universities aW The limitation impwad en the pewor rid
authorfty of the Board of Regents of the State Teaohers
College by Artiole 2647 dper,~not apply to the Board or
Regents of the UniversJlty of Teas; conversely the lat-’
ter-mentioned b,oard has wide latitude and broad direr+
tlonnrr powers with respsot to the oourse of instruatiea,
Seteral fears ago the Board of Rsgents in the
lrereiso of its dlsoretion dotemined that 8, need orirt-
ld for a oourse fn a,eronautf;oal engineering, and under
its poeer “to remlate the course of instruation” and
*to oonier suoh degrees and, tom&rant suah diplomas 8s
are usually aonferred~ and granted by unirersitfes,Wthis
&ours6 was, addad to the ourrfcula+ Thenrise in the im-
po’rtance of aviation an,d allied iields in ~reoent years
and :the need 0r a course in aeronaatioal lryineori~ng in
a rirst-class university lro~ obrious. There ara:bo no
‘doubt that;.the Board of Regents *d the povnr and author-
ity to add ,thPs course. ~Moreover, the Legislat.uro has
eloarly reoo&zed. this power dnd authority of the Board
or BeRents, for it has prorided runde therefer, (See
Aat8 1945, 49th Leg,, Ch. 377 and Aats 1943, 48th Lq.,
Ch. 399,). In Opinion C-4681, mentioned above, we qaotad
Honorable George H. Sheppard, Page 3
the following exoerpt from the mse of Fort Worth Cav-
alry Club vQ Sheppard, 125 Texas 339, 83 S.W., (2d)tXO:
“All publia offioes and orfiaers are creatures of
law e The powers and duties of public orricera
are defined and limited by law. By being defined
and limited by law, we mean the aot of a public
officer must be expressly authorized by law, or
implied therefrom. 22 R.C.I.,p.555, B 114 o..”
If the Board oi Regents have the power to pro-
.vlde for the teaahing of aeronautical engineering in the
University of Texas, then it follows that authority ex-
ists to make that ,power efi’eotire. The Board of Regents
has detennlned th4t the oourse of instruction could ,be
improved by the use of the airplanes mentioned in your
letter. The Board has the authority to make suoh deter-
mination;, and it appears to us to be most reasonable. It
‘is, therafore, evident thmt it is our opinion that the
Board of Regents has the authority to pumhase subject
planes If funds are available therefor.
You are concerned with that portion of Gpin~on
Bo. O-4681 which reads as follows:
“This past session or the Legislature passed Senate
Bill 147 which authorizes the Board of Directors of
the Agricultural and Mechanical College to acquire
en airport and equipment theref’or, (dots 1941,47th
Leg. R.S,, Ch. 81, S-B. 147, p. 100; Article 2615c,
Vernon’s Annotated Civil Statutes) D This act is cer-
tainly fndioative that speoirlc legislative authbr-
ity la required, The emergency clause of the ,act ~,~,
reads~ in psrt as follows:
*Sec. 3, The feot that said institution In ‘~’
in urgent need of the authority to acquire
and operate an airport in oonneation with
ooursea now being taught and those contem-
“‘: ‘plated, and to permit its more erreotive
*cooperation in the Wationml Defense Program,
creates an emergency, . ** (Emphsais supplied) .”
The quoted matter can clearly be distinguished
from the situation under consideration. In the first plaoe
Senate Bill 147 (Article 2615c, Vernon’s Annotated Civil
Statutes) granted the authority to aoquire en air art ra-
ther than ei lanes, It is our opinion that ‘tF-b’
e s a ute
wma enabte 7f-s-lm the authority to aoquire an airport
would exist without question. Article 2608 provides thst
Honorable George.H, Sheppard, Page 4
the “leading objeot of the College 8bmll be, without ex-
cladim other scientifio and olassitpl studies, and fn-
oludi&g rilitrry tactfos, tb te80h meh branekes of leerst-
iy aa are related to lgTioultur* ~36 the meakaibd rtim.~
Althe h tlm ,Bmrd or DiShet#m M the A@i~ultuhl lti
MeohanY ml doll~ge of Terrti is &+en wise dfre~iWe~
powers w~th.ret eot to the OouPIn ei study (See AGiolb
2613, Seeti@I 6P , still the authority to aaquira,
wee-h pree rrpn dsttBt,f. thyefor4, smate ,111 1
i# *
Arti;lh.8~, whicrk~auWeti.eea th.‘Beard’of Be*
.. gaata to rem&r*9 tie aem0 et iuatxmotieat ua8 lh o tu
by tiie Legislatare fl 1613, a tfme wlU# r?iatier and me-
rolaaut1Qaa ePgiPee~l wbm in thdx iaifue3,~ New awe-
IWU``P ~ruimwsal: 7 8 OM or t;hpr meat akpo*at 0r tbkb
..engldmsring fields d TM Legfalatare drelr r0r065wthat
the imparaitfoa of restrictisne aad lfritstiem on the
onwu tQ be ~tmgkt at a uniremity
would, in etfeot,
rtrlU%:* eduwtie3*1 sdvaremnt
that -
ii a uaivemfty
is to a6atfWe to br aa inrtitrrtion sr the rirst clam,
,it inuat be able to keep abreast of the tire8 by the en-
3mrgsaqat efiatgr6es taagkt ana the addition 0r’llir tlelde
of study0 *
In anmwer to fmar quertfel, pert gre advised tket
it is the oenaf4srad rapiafon of this department tlmt the
Board of Regents is authorized te purohase a$rplanes for
me in ootire~ Of inntmotf@n @fiend in Asroaautloal Ba-
gineering, ff +nds a” available ior that purpose.
The Beard of Regents of the Ukfvenfty ei Texa8
18 authorieed.to pumhme afrplerms for use ia OO~AFSW o?
irrstrua~+oq-ef;eredi? A``ruutfee*f ~neeri&g, if funds
AFE’IWVBB pPtl,1947 ATTOllWf% m OF TEAS
EU: L++. B. fy.+..L
ATTORNEY
GENERAL George W. Spa
Assistant
GWS~jrb ~.
Approved Opinion Committee- By F-D, ,Chalmn