Untitled Texas Attorney General Opinion

November 3, 1976
The Honorable M. L. Brockette Opinion No. H- 891
Commissioner
Texas Education Agency Re: Role of Texas Educa-
201 East 11th Street tion Agency under the
Austin, Texas 78701 Comprehensive Employment
and Training Act, and
related questions.
Dear Commissioner Brockette:
You have asked several questions concerning the relation-
ship between Texas law and Title I of the Comprehensive
Employment and Training Act (CETA), 29 U.S.C. 55 801-822
(19731, with respect to the receipt of funds and the admin-
istration of programs at the local level. An understanding
of the problem requires a brief explanation of the system
set out in CETA for the disbursement of funds and planning
and implementation of manpower programs. Under CETA, funds
are to be distributed to organizational units known as
"prime sponsors," which design and implement "comprehensive
manpower plans" for allocation of funds within their juris-
dictional areas. The chief entities which can serve as
prime sponsors are the States themselves and units of "general
local government" meeting minimum population levels. 29
U.S.C. § 812(a) (1973). Each eligible prime sponsor is to
submit to the Secretary of Labor a comprehensive manpower
plan, under which it will endeavor to provide services which
may include, inter alia, education, institutional skill
training, and manpower training. 29 U.S.C. § 811(3), (10)
(1973). Upon approval of a prime sponsor's plan, the
Secretary of Labor is to grant funds directly to the prime
sponsor for implementing the plan.
P. 3750
The Honorable M. L. Brockette - page 2 (H-891)
Conflicts result when the CETA system for providing
manpower services through prime sponsors is superimposed on
the existing Texas educational system. Texas law vests
local control of educational functions in the boards of
trustees of local public school districts, Education Code
§S 22.01, 23.01, 24.03, and provides for vocational and adult
education to be provided by public school districts, public
junior colleges, and state colleges and universities. Educa-
tion Code 5s 11.18(c), 31.31(b), 31.40. Lacking the requisite
general governmental powers, such as police and taxation
powers, these entities are not considered units of "general
local government" and cannot serve as prime sponsors. See
H.R. Rep. No. 93-659, 93rd Cong., 1st Sess. 2935, 2941 (1973).
On the other hand, cities and counties do possess general
governmental powers and can qualify as prime sponsors under
CETA -- thereby becoming able to provide educational services
which would not otherwise be theirs to provide under Texas
law.
We turn first to your question of whether cities and
counties are given the authority under Texas statutes to
serve as prime sponsors, and provide the types of services
contemplated in CETA. Our ability to answer this question
is limited somewhat by the'importance of the local city
charter in establishing the existence or absence of such
authority for a municipality, and by the inevitable ambiguity
of an opinion written without a detailed examination of the
activities to be carried out under each individual compre-
hensive manpower plan. Each local prime sponsor will
necessarily have some responsibility to determine such
matters for itself. We can, however, provide some general
guidelines.
A home rule city may exercise all powers set out in the
city charter so long as the powers are not denied by the
Constitution or general statutes. Burch v. City of San
Antonio, 518 S.W.2'd 540, 543 (Tex. Sup. 1975). We have
found no constitutional or statutory provision which would
prohibit a home rule city from providing any of the services
permissible under CETA. Cities incorporated under general
or special laws must look to their charters for authority.
P. 3751
*. .
The Honorable M. L. Brockette - page 3 (H-891)
Counties are given more limited powers under Texas law,
with the requirement of express authorization in the Consti-
tution and statutes for any function to be performed by the
county and its commissioners. Laramey, The Legal Authority
of Texas Counties to Contract --
for the Dellvery of
Services to its (sz) Residents, 37 Tex. B.J. 9?? (1974).
With thls-iiaation in mind, this office has held that, by
virtue of article 2351, V.T.C.S., a county commissioners
court could contract with the Department of Labor under
federal statutes for services quite similar in some respects
to the projects permissible under a CETA comprehensive
manpower plan so long as the contract limited the program
to "paupers, the indigent, the needy, and the poor." Attorney
General Opinion M-605 (1970). We believe that a county may
serve as a prime sponsor under CETA and implement a compre-
hensive manpower plan which similarly limits its availability
to the poor persons within the county.
We further note, however, the availability under CETA
of a consortium form of prime sponsorship with two or more
units of general local government participating, so long as
one of the governments would qualify as a prime sponsor if
acting alone, 29 U.S.C. 5 812(a) (3) (19731, and also a
multijurisdictional form of prime sponsorship pursuant to an
agreement between the State and a unit of general local
government having the requisite population. 29 C.F.R. 5
95.3(b) (1) (1975). These two forms of organization could
provide more flexibility of operation, with the county
participating only in services which aid the poor and needy
within county limits, and other programs implemented by the
other participants in the consortium or multijurisdictional
agreement. Cf. Attorney General Opinion M-689 (1970).
Your next question is whether Texas law prohibits
cities and counties, seeking status as local prime sponsors,
from making direct application for, and receiving, federal
funds for the types of programs contemplated by CETA. You
have referred us specifically to section 11.02(c) of the
Education Code, which reads:
P. 3752
. . .
The Honorable M. L. Brockette - page 4 (H-891)
Except for agreements entered into by the
governing board of a state university or
college, the Central Education Agency shall
be the sole agency of the State of Texas
empowered to enter into agreements with
respect to education undertakings, including
provision of school lunches and the construc-
tion of school buildings, with an agency of the
federal government. No county board of educa-
tion or board of trustees of a school district
shall enter into contracts with, or accept
money from, an agency of the federal govern-
ment except under rules and regulations pre-
scribed by the Central Education Agency.
We do not believe that section 11.02(c) .prevents cities
and counties from contracting directly with the federal
government to serve as local prime sponsors of CETA programs.
Section 11.02(a) gives to the Texas Education Agency "general
control of the system of public education," and we believe
that the "education undertakings" referred to in section
11.02(c) must likewise be a part of the “system of public
education" to come within the scope of that section. CETA
is clearly not a part of the system of public education. The
purpose of CETA is:
[T]o provide job training and employment
opportunities for economically disadvantaged,
unemployed, and underemployed persons, and to
assure that training and other services lead
to maximum employment opportunities and enhance
self-sufficiency. . . . 29 U.S.C. 5 801 (1973).
CETA manpower services include a broad range of programs and
activities, including referral services, health care, medical
care, child care, assistance in securing bonds and transitional
public service employment programs. 29 U.S.C. S 811 (1973).
The programs created by CETA would be in the realm of employ-
ment programs, rather than traditional programs of public
education. Not insignificantly, CETA programs are admin-
istered on the federal level by the Department of Labor --
not the Department of Health, Education and Welfare. It
is, therefore, our opinion that CETA programs are not within
the scope of section 11.02(c) of the Education Code, even
though some aspects of CETA services may be described broadly
p. 3753
. . .
The Honorable M. L. Brockette - page 5 (H-891)
as "educational* in nature. To find otherwise would require
that numerous federally funded programs with some educational
aspects, such as family planning services, maternal and
child -health services, child abuse programs and law enforce-
ment assistance programs, could be contracted for only by
the Texas Education Agency. We think it clear that the
Legislature did not intend such a result in enacting section
11.02(c).
Finally, you have asked whether the answers to either
of the foregoing questions differ for funds appropriated
through the Governor under 29 U.S.C. 5s 813(c) and 822 (1973).
Under these two sections, five per cent of CETA's funds are
to be appropriated to State governors for assisting local
prime sponsors in providing vocational education and related
services. The statute and regulations require that programs
to be provided with these funds be pursuant to an agreement
between the local prime sponsor and the State board having
authority over vocational education -- in Texas. the Texas
State Board for Vocational Education. 29 U.S.C: S 822(c)
(1973); 29 C.F.R. 5 95.58 (1975).
Applicable regulations require the local prime sponsor
to submit to the State Board for Vocational Education its
plan for use of the section 813(c) funds appropriated for
use in its area: the only constraint on the authority of the
Board to approve or disapprove the plan is that such plan
must be consistent with the prime sponsor's comprehensive
manpower plan. 29 C.F.R. fi95.58(a) (1975). The very
nature of an "agreement," as this arrangement is denominated
in the statute and regulations, is that it is not consummated
until both parties are satisfied with the terms which result.
Since federal law gives the State Board for Vocational
Education the power to approve or disapprove the plan, and
limits that power only by requiring that the plan be con-
sistent with the prime sponsor's comprehensive manpower
plan, we believe the State Board is free to impose any
reasonable limitations upon the expenditure of section
813(c) funds, whether or not required by State law, so long
as the plan finally approved by the State Board is consistent
with the Act and regulations and the prime sponsor's compre-
hensive manpower plan.
P. 3754
The Honorable M. L. Brockette - page 6 (H-891)
SUMMARY
Texas statutes do not prohibit munici-
palities from serving as local prime
sponsors under the Comprehensive Employ-
ment and Training Act (CETA), so long as
the local city charter authorizes the city
to provide the types of services contemplated
in CETA. Counties may also serve as prime
sponsors pursuant to their statutory duty
to provide for poor persons within the county.
Neither cities nor counties are prohibited
from entering into agreements with the federal
government such as the comprehensive manpower
plans required of prime sponsors. The State
Board for Vocational Education may impose
reasonable limitations in providing vocational
education services to prime sponsors with CETA
funds appropriated to it through the Governor.
Very truly yours,
eneral of Texas
DAVID ,& KENDALL, First Assistant
c&igi$&man
Opinion CommittLe
jwb
P- 3755