Untitled Texas Attorney General Opinion ( 1970 )

. . 3. .
NE-W GENERAL
S
Honorable Manuel DeBusk. Oninion No. M-652
Chairman
Coordinating Board Re: Whether the Coordinating
Texas College and University System Board, Texas College and
Sam Houston-State Office Building University System,.has
Austin, Texas 78701 the authority to determine
and fix maximum capacity
enrollments in all Texas
public senior colleges
and universities, and
Dear Mr. DeBusk: related question.
In your recent letter to this office you have re-
quested our opinion upon the following questions:
"We would like to have your official opinion
as to whether or not the Coordinating Board,
Texas College and University System, has the
authority to determine and fix maximum capacity
enrollments in all Texas public senior colleges
and universities.
"If you determine that the Coordinating
Board, Texas College and University System, has
this authority, what enforcement authority or
procedures does the Coordinating Board have by
which it can enforce such annual maximum capacity
enrollments?"
The Coordinating Board was created by Article 2919e-2,
Vernon's Civil Statutes. Its powers and responsibilities are
dependent upon the provisions of that act. We think it advis-
able at the outset to set forth in full several of the phrases
and terms defined in Section 2 of Article 2919e-2 in order to
delineate properly the scope of the questions presented:
"cc) 'General academic teaching institu-
tion' means The University of Texas, Main
University; Texas Western College of The
University of Texas: Texas A&M University,
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Hon. Manuel DeBusk, page 2 (M-652)
Main University; Arlington State College;
Tarleton State College; Prairie View A. and
M. College; Texas Maritime Academy; Texas
Technological College; North Texas State Uni-
versity; Lamar State College of Technology;
Texas College of Arts and Industries; Texas
Woman's University; Texas Southern University;
Midwestern University; University of Houston;
Pan American College; East Texas State College;
Sam Houston State Teachers College; Southwest
Texas State College; West Texas State University;
Stephen F. Austin State College; Sul Ross State
College; Angelo State College; and any other
college, university or institution so classified
as provided in this Act.
"(d) 'Public senior college or university'
means a general academic teaching institution as
defined herein.
II
. . .
" (g) 'Institution of higher education'
means any public junior college, public senior
college or university, medical or dental unit
or other agency of higher education as herein
defined.
"(h) 'Governing board' means the body
charged
. . with policy direction of any public
Junior college, public senior college or
university, medical or dental unit, or other
agency of higher education, including but not
limited to boards of directors, boards of
regents, boards of trustees, and independent
school district boards insofar as they are
charged with policy direction of a public
junior college."
Without enumeration, we point out that each of the
public senior colleges or universities has been placed under
the management and control of a governing board by various
legislative enactments. These governing boards have broad
and general power and authority to control and manage these
colleges and universities, and to promulgate such rules and
regulations as are deemed to be necessary for their efficient
administration. Foley v. Benedict, 122 Tex. 193, 55 S.W.2d
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. . . -
Hon. Manuel DeBusk, page 3 (M-652)
805 (1932); Cornette v. Aldridge, 408 S.W.2d 935 (Tex.Civ.
App. 1966, mandamus overruled). The scope of the authoritv of
the Coordinating Board and the role which it is intended to
perform in the scheme which the Legislature has provided for the
management and control of public senior colleges and universities
must be determined from the provisions of Article 2919e-2.
Section 1 of Article 2919e-2 states,that the purpose
of the act is:
I@
. . . to establish in the field of public
higher education in the State of Texas an agency
to provide leadership and coordination for the
Texas higher education system, institutions and
governing boards, to the end that the State of
Texas may achieve excellence for college edu-
cation of its youth through the efficient and
effective utiliaation and concentration of,all
available resources and the elimination of
costly duplication in program offerings, facul-
ties and physical plants."
The extent to which the Coordinating Board may act
in carrying out this purpose has been specified by the Legis-
lature in Section 3 of Article 2919e-2 which reads as follows:
"There is hereby established the Coordi-
nating Board, Texas College and University
System which shall have its office in Austin,
Texas e It shall perform only such functions
as are herern enumerated and as the Legislature
may assign to it. Functions,vested in the
governing,boards.of,the respective,~institutions
of higher education, not specifically delegated
to the Board, shall be performed by such boards.
The coordinating functions and other duties
delegated to the Board in this Act shall apply
to all public institutions of higher education."
(Emphasis added.)
From the language of this section it is clear that
(1) the Coordinating Board may perform only those functions
enumerated in the act, and (2) the authority of governing
boards of institutions of higher education are supplanted
& to the extent that there has been a specific delegation
of such power to the Coordinating Board. We take this as a
definitive declaration by the Legislature that the Coordinating
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. .
Hon. Manuel DeBusk, page 4 (M-652)
Board has no implied powers or functions. By this statement
we do not mean that the Coordinating Board does not have im-
plied authority to do all things necessary to carry out ef-
fectively a power or function specifically delegated to it
in the act, for certainly it has. Terre11 v. Sparks, 104
Tex. 191, 135 S.W. 519 (1911). But, bv the lansuace of
Section j. the Leaislature has stated.-in effect. that the
maxim of expressio unius est exclusio.alterius shall apply
to limit the functions and duties of the Coordinating Board
to those specifically enumerated in the act.
It would serve no purpose other than to unduly
lengthen this opinion to attempt to summarize or allude to the
many powers and functions specifically delegated to the
Coordinating Board by Article 2919e-2. Suffice it to say that
many of these functions are advisory only and are directed
toward the formulation of plans and policies for the considera-
tion of the various governing boards of the institutions of
higher education, and it is not mandatory that such plans and
policies be adopted by the governing boards. On the other hand,
a number of the functions of the Coordinating Board involve
determinations which are mandatory and must be followed by
the governing boards.
We have carefully considered all provisions of
Article 2919e-2 and are unable to find within the enumerated
powers and functions of the Coordinating Board authority to fix
maximum enrollments at all public senior colleges and universities.
Indeed, Section 15 expresses an intention on the part of the
Legislature that every effort be made to ". . . assure efficient
use of construction funds and the orderly development of
physical plants to accommodate projected college student
enrollments . . . .II (Emphasis added.) To this end the
Board is drrected, amonq other things, to devise formulas for
space utilization, methods to assure maximum daily and year-
round use of facilities. While paragraph 3 of Section 15 does
direct the Board to "Consider plans for selective standards
of admission when institutions of higher education approach
capacity enrollment“, we do not construe this language to
authorize the fixin of a numerical maximum, but rather that
iusx may be Aconsidered" whereby a person desiring to enroll
irst meet a prescribed set of standards. While the
standards would necessarily preclude those from enrollment
who failed to meet their measure, nonetheless they would not
limit enrollment to a specific number of students.
In any event, we do not construe Article 2919e-2
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.I.
. .
Hon. Manuel DeBusk, page 5 (M-652)
as making mandatory that a governing board implement any plan
devised by the Coordinating Board pursuant to Section X(3),
but that such plans are advisory only. No language is _therein
contained for the execution of a plan. As further evidence
that the Legislature did not intend that enrollments be fixed
at a numerical maximum, Section 16(2) directs the Coordinating
Board to "Recommend to the Governor and the Legislative Budget
Board supplemental contingent appropriations to provide for
increases in enrollment at the institutions ofh'ighertion."
(Emphasis
You are therefore advised that, in our opinion,
your first question must be answered in the negative. No
answer is required to your second question.
SUMMARY
Under the express language of Section 3
of Article 2919e-2, V.C.S., the powers and
functions of the Coordinating Board, Texas
College and University System, are limited to
those specifically enumerated in the article.
This statute contains no provision which would
authorize the Board to fix the numerical maxi-
mum enrollments for all public senior colleges
and universities; however, the Coordinating
Board may "consider" a plan whereby a person
desiring to enroll must first meet a prescribed
set of standards.
Prepared by W. 0. Shultz
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
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Hon. Manuel DeBusk, page 6 (M-652)
J. C. Davis
Jack Goodman
Ralph Rash
Rick P. Fisher
Jack Dillard
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-312P.