Hon. James E. Taylor, Chairman
Senate Finance Committee
51st Legislature
Austin, Texas            Opinion No. V-818.
                               Re:   Authority of Board of
                                     Regents of The Univer-
                                     sity of Texas to use
                                     the "Available Univer-
                                     sity Fund" for perma-
                                     nent impr9vements for
                                     the School of Dentist-
                                     ry or the AK.B. Ander-
                                     aon Hospital,  both lo-
                                     cated at Houston.
Dear Sir:
            We refer to your     request   for an opinion   on
the following   question:
             "Does the Board of Regents of The Uni-
      qersity of Texas have the authority     to'use
     'any portion of the,.*available   University
      funds' for the purpose of erecting buildings
      or other improvements or for the support and
      maintenance of either the School of Dentist-
      ry of The University,of    Texas or the M, Do
      Anderson Hospital for Cancer Research of The
      University   of Texas, both of which institu-
      tions are located in Houston, Harris County,
      Texas?"
          As early as 1917,    when two statutory   schools
(West Texas A. & M. College    and North Texas Agricultural
College) were proposed,    the Attorney General was asked
for an opinion on the constitutionality     of their es-
tablishment at places other than Austin or Bryan.        The
problem involved the question of whether the Legislature
had the power to establish    institutions   of higher learn-
ing in anx manner other than as provided in Article VII
of the Texas Constitution.     In the opinion written by
Hon. James E. Taylor,    Page 2 (V-818.)


Luther Nickels, who later served as a Commissioner to
the Texas Supreme Court, it was held that the Legisla-
ture was authorized   under Section 48 of Article     III to
establish  other colleges   and universities   and support
then out of the general revenue.      It also pointed out
that such statutory   universities  would not be consti-
tutional  branches of The University     of Texas within
the meaning of Article VII, Texas Constitution.        See
excerpts of opinion copies in V-31 attached hereto.

              Again in 1928, the Attorney General was asked
 to determine whether the School of Mines and Metallurgy
.was a branch of The University      of Texas within the in-
 tendment of Article VII, Texas Fonstitution,       and if so
 whether money could be appropriated      out of the general
 fund to be used for the erection      of buildings at El Paso.
 The statutes    provided (and still   provide) that the
 School of Mines *shall be under the management and con-
 trol of the Board of Regents of the State University,
 and the faoultv of said school shall be aooointed bv the
 Board of Regents of The University      of Tex&          aha
 the same is hereby made and constituted       a br&h’onhe,
 State Universit~‘~or    instruation   in the arts of mining
 0 0 0” Art.~ 2433, V.C.S.
           In the opinion written by D. A. Simmons, then
First Assistant Attorney General, and recently President
of the Ameriaan Ear Association,  it was held that:
             “In our opinion,    the School of Mines and
      bletallurgy is not a bradbh of The University
      of Texas, as the term ‘branch9 is used in the
      Constitution    of Texas,. The history of the
      University   as briefly    outlined herein, shows
      very clearly    that the power is not given to
      the Legislature     to create branches of the
      University   wherever it might see fit 0 0 0n
           Itwas further held that the Legislature    had
full authority   to establish a School of Mines and Metal-
lurgy at El Pas3 under authority of Article    111,‘Section
48, including ereotion of buildings with general reventie
funds.   Excerpts from that opinion (Opinion No. 2731 to
Hon. Adrian Pool dated April-18,   1928) are ,quotea in
v-31.
             In Mumme v. Marrs, 120 Tex, 383, 40 S.W. 26 31
 (1931),   Chief Justice Cureton of the Supreme Court wrote
Hon. James E. Taylor,      Page 3 (V-818.)



that Section 5 of Article VII, Texas Constitution,         de-
fining the Available School Fund, and declaring        that *it
shall be distributed   to the several counties according
to their scholastic   population,"    was not a limitation
which prevented the distribution      of an appropriation
from the general reventie for school districts      in accord-
ance with the Rural Aid Aot.       In arriving at such con-
clusian,  Chief Justice Cureton said:
            *The history of educational          legislation
     in,this    State shows that the provisions            of Ar-
     tide VII, the educational           artiole     of the Con-
     stitutian,    have never been regarded as limita-
     tions by implication        on the general power of
     the Legislature      to pass laws upon the subject
     of education.       This article      alsoloses    a well-
     considered purpose on the part of those who
     framed it to bring about the establishment and
     maintenance of a'comprehensive            system of pub-
     lic education,      consisting     of a general public
     free school system and a system of higher edu-
     cation.     Three institutions        of higher learninq
     were expressly      provided for....       The Legisla-
     ture, however, has gone far beyond the crea-
     tion of the three institutions            of higher learn-
     ing specifically      required by the organic law,
     and has created ten additional            institutions      of
     a similar character without direat oonstitu-
     tional grant, beginning with the Sam Hbuston
     Normal in Huntsville        in 1879 o . o O In found-
     ing these ten institutions,           beginning.more      than
     fifty   years ago, the Legislature           has necessarily
     held that the specific         grants of power con-
     tained in the Constitution           to erect and main-
      tain The University       of Texas O O s were not
     limitations     on its power to create other
     schools of similar purpose, and to maintain
     them by appropriations         from the General Reve-
     nue.    This   interpretation      has never been ques-
      tioned. and is consistent         with authorities       from
      other jurisdictions.        e O On (UnderSCOring        ourS,'l
            The three institutions    of higher learning ex-
pressly provided for and specifically        required by con-
stitutional   law, as referred    to in Chief Justioe Cure-
tonOs opinion,   are the constitutional      branches of The
University   of Texas: the   Main  University   at Austin, the
Medical Department at Galveston,      and the Agricultural
and Mechanical College at Bryan.
Hon. James E. Taylor,    Page 4 (V-818.)


             It will be noted that the School of Mines and
Metallurgy,    a college    whioh is designated a "branch" in    '
the statutes    and which is under the management of The
University,of    Texas' Board of Regent's, is listed among
other statutory     colleges   designated in Section 17 of Ar-
ticle VII of the Texas Constitution.         However, neither
the Dental College of The University        of Texas at Hous-
ton created in 1943, nor the School of Public Health and
a Preoeptorial    Training Center authorized by statute       to
be established    at,Houston (H.B. No. 821, 50th Leg.,
Acts 1947, effective      May 27, 1947; Art.   2603f, V.C.S.)
is designated in the provisions        of the College Building
Amendment.
           The Md.D. Anderson Hospital for Cancer Rel
search was established   under Chapter 548, 47th Legisla-
.ture, R. S., Acts 1941 (Art, 26039, V.C.S.),  ada was
plaoed under the management ana control of the Board of
Regents of The University   of Texas by this Aot.
             The Dental College of The University      of Texas,
referred   to in your letter     as the School of Dentistry:
was preated under Chapter 329, 48th Legislature,         R.S.,
Acts 1943 (Art, 2623b-1, V.C.S.).        This %nstitution    was
placed under the mana.gement and control of the,Boara of
Regents of The University       of Texas by this Act, and by
this statute    was constituted    a branoh of The University
of Texas for instruction      in dental education.
          Seotion 1O;Article      VII of the Constitution     of
Texas (1876) provides:
            *The Legislature     shall as soon as prac-
     ticable    establish,   organize and provide for
     the maintenance, support and direction         of a
     University     of the first   class,  to be located
     by a vote of the people of this State, and
     styled 'The University       of Texas,g for the pro-
     motion of literature,       and  the arts and scien-
     ces,   inoludi~g    an Agricultural   and Mechanical
     departmen~t,"      (Emphasis ours.)
           Section II of the same Article   of the Codti-
tution created what is known as the "Permanent Universi-
ty FunC" in order to enable the Legislature    to perform
the duties set forth in the faregoing Sectian 10, and
the income derived from the investment of which fund was
made subject to appropriation  by the Legislature   to ac-
Hon. James E. Taylor,   Page 5 (V-818.)


complish the purpose declared in the foregoing  section.
The income derived from the investment of the Permanent
University  Fund is known and designated as the “Availa-
ble University Fund .fl
           It will. be seen from the foregoing    that the
Available University   Fund was created for a specific     pur-
pose; and csnsequently   it is a special    fund within the
meaning of Section 7 of Article VIII of the Constitution
of Texas which prohibits    the Legislature   from in any
manner diverting   any special  fund from its purpose.
           However, it will be noted that the power to
locate geographically    the University    as such., or any of
its branches (others than A, & M. College,      Section 13 of
Artiole VII) was vested in the people of the State by
express provisions    of the Constitution,    as heretofore
shown, to be exercised by a vote cast at an election
held at a time and in the manner as was authorized by
the Legislature.
             Chapter 75, 17th Legislature,  R.S., Acts 1881,
established    The University of Texas and provided far the
location   of the Main University   and a Medical Department
thereof,    to be determined by a vote of the people at an
eleotian    to be held on the first  Tuesday of September,
1881.    (9 Gammel’s Laws p. 171) This Act expressly pro-
vided that the Medical Branch could be located at a dif-
ferent place than the Main University,     and that its lo-
cation should be voted upon separately from the Main Uni-
versity.
            The result of this election was in favor of
the establishment of the Medical Department of The Uni-
versity of Texas at Galves’ton and the Main University
to be located at Austin, these places having received
the necessary majority vote as prescribed ,by the stat-
ute,
            Since e vote of the people was necessary to
locate the University,    the University  or any of its can-
stitutional   branches or departments may not be relocat-
ed by legislative   enactment; but if there does exist a
power to so relocate    or change the location  of such in-
stitution   or any of its branches as authorized ta be
created by the Constitution    in order to use any portion
of the Available University    Fund for their support and
maintenance, it is vested in the people of the State of
Texas to be exercised by a vote of such people cast at
Ron. James E. Taylor,     Page 6 (V-818.)


an election   regularly   and properly      called   for   such
purpose o
            But, as hereinabove determined, the specifio
grant of power contained in the Constitution          to erect
and maintain The University      of Texas is no limitation
upon the power of the Legislature       to create other schools
of similar purpose, and to maintain them by appropria-
tions from the General Revenue Fund of ~the State of Tex-
as and to place the management of such instltutons           as
the Legislature    may deem expedient under the Board of
Regents of The University      of Texas or some other agency.
Mummev. Marrs, supra.        And the fact that the Legisla-
ture may have created such institutions         and located them
in Houston and oonstituted      them branches of The Univer-
sity of Texas would not change their status as statuto-
ry branches as distinguished      from constitutional     branch-
es.   Such a statutory    branch of The University      of Texas
may be fully supported out of the General Revenue.             Con-
versely,  its is not eligible    to partioipate    in the Avail-
able University    Fund, such fund being only legally        ex-
pendable for the use of the cotistitutional        branches.
            The fact that the pertinent      provisions   of Sec-
tion ll+ of Article VII of the Constitution        prohiblts    the
Legislature   from levying any tax or appropriating         any
money out of the General Revenue Fund of the State for
the erection    of buildings    of The University    of Texas fur-
ther demonstrates the conclusion       expressed that the fram-
ers of the Constitution      intended that the Available Uni-
versity Fund should be and remain a special fund for the
purpose of supporting and maintaining The University            of
Texas as thereby established,       and that sald fund should
not be dissipated    by being expended for any other pur-
pose.    A. G. Opinions Nos. o-7091, O-551.
             We have revlewed.the  matter and conclude that
the former opinion of Hon. D. A. Simmons herein referred
to concerning the School of Mines~ of The University      of
Texas is correct;    and we therefore  follow that opinion.
Accordingly,    our answer to the submitted question    is in
the negative.


            The Legislature may make appropriations
      from the General Revenue for erection Of
      buildings  and other permanent improvements at
Hon. James E. Taylor.,   Pate 7 (V-818.)


     the Dental College of The University         of Texas
     and the M.,D, Anderson~Rospital        for Canoer
     Researoh, both looated in,Houston,         Texas.
     Neither igstitution      is a constitutional    branch
     of The University     of Texas for which the Per-
     manent University     Fund was .oreated.     A. Go O-
     pinion No. 2731 dated April 18, 1928 to Bon,
     Adrian Pool.      Tex. Const. Art. VII, Sets, 10, I
     11, 13, 14, 17,. 18; Tex. Const. Art. VIII,
     Sec. 7; Tex, Const. Art. III, Sec.~ 48; Art.
     2603e,-26031,     2623b-1, 2592 and 265&a, Sec. 5,
     vd.2.s. ; A. G. Opinion No. V-31.

                                 Yours     very truly,
                             ATTORNEY
                                    GENERALOF TEXAS


                             ,ti7p-
CEO:mw                          Chester    E. Ollison
                                            Assistant
