                THEAITORNE‘Y                GENERAL
                             OPT

,ald C. Mann




  Hono George H. Shspp&rd       OpinioR No.- o-J+167
: Comptroller    of Public      Be8 Whether the desdribed expense
 ; Acccunts                     accounts)  incurred for purposes au-
  Austin, Texas                 thorieed  by the Board of Regents of
i                               the University   of Texas, may be     ’
i,Dear Sir:     I               allowed for payment o
hiI
g:
& ’           You have requested a legal opinion from this dspartinent
. as follows:                                                        I

                 !*I am attaching hereto a complete    file covering                .
           expense accounts of Ed Syers g Executive      Assistant of
           the Publfc Relations Department of the      University  of
           Texas, and Hubon We Black, DIrector of      the UnSversfty
           Development Board of the University    of   Texas,
                “Before   approvtig these expense accounts   for pay-
          ment agajlnst the local   funds of the University   this .
          department    desfres your opfnion as to whether   the Board
           of Regents is authorized    to spend Sts monev for the DUP-
           poses set forth i,~ these   expense accountset*
i.
              One expense account subm%tted with your letter,-     that of
f: Mre Ed Syers, with the title      of Wecutive   Assistant of the Pub112
I’Belatfons   Demrtment of the Unfversfty       of Texas. 9s stated to ha-ve
          xr the- foil .owlng object x
                                                           I   --   --------   --       --   --




                 “Trip to Galveston to aid LnstallatJon         of press
          relations    divisfon   at medical branch at Galveston;
          to publicize     schoo~l-opentng convocation     at mediLca1
          branch and to prepare folder        of publicity   releases
          on medical branch.        Conference with Dean Spies, Wil-
          lfams o Mr o Silas Ragsdale g Galveston News-Tribune=
          Cosaferences were held* wfth Silas Ragsdale g Galveston
          News-Tribune Mmaging Editor; Lloyd Gregory q Honston-
          Post ManagIng Editor,. and MO E. Walter) Houston Chron-
          icle City Editor,      regarding   medfeal branch publfcftyon
     :           The other expense account, that of ‘Mro Hulon W. Black,
     -with the title  of Director  bf the Unfversfty Development Board of
       the UnSversity of Texas 9 is stated to have been for the following
       object:
                “ITo pursue various aspects of the Board?s busfness
          fhcludtig   interview wfth Dr. R, G, Caldwell ti Boston;
Eoni. George Ho Sheppard,     page 2     (O-4167)

      presentation  of radio project;  cultivation  of offi-
      cials of Rockefeller  Foundation and General$ducation
 d    Board; conferences with certain   potential  donors; or-
      ganization    of the Board’s committee in New York; fur-
      ther presentation    of radio pro$ect and various other
      necessary   .oaU.s In Washtigton,  etc2
           Regardieg the position    occupied       by Mr. Syers + we have
been furnished the following    information,
            The Department of tib1i.c Relations        at the University
was established     by the Board of Regents as a department in 1939*
It was an outgrowth of the commIttee on public information,             the
office   of publicity,    and the dfvision     of public lectures   and
publicity,   each of which originated       in the Extension Division &
19X2.0 The office      of publicity’was   first   established   as a separat
admtiistratIve    function in 1920e Following exhaustive reoomenda
fions prepared by a special committee of the general faculty in
1937, and adopted by the general faculty,          and pursuant to recom-
mendations made to the Board of Regents by the President of the
UnSversity,    the Public Relations Department was establIshed          by
the Board of Regents in July, 1939, as an integral            part of the
Unfversity.                                               1
           The function,  purpose and-necessity          for the Department
of PublIe Relations   are described as follows          by the president of
the University:
            Vn institutfon        supported by the State has the
      obligation    of making regular reports to the people of
     what IS taking place or is contemplated,                The Univer-
     sity of Texas in common wfth all other major universi-
     ties,    both state-supported        and private,    maitztains an
     organized    bureau for public Information and servfce*
       The purpose of this department is to keep open the
     channels of informatioa          in regard to the university%
     activities,      to cooperate In the planning of programs
     of public service,        and to dissemdnate news and arti-
     cles of educatIona         value,     Such a department makes
     a state university        3.~ reality   a public InstitutZon,
     If information       on the universlty*s      offerings     are not
     made public, -much of the usefulness           of the whole
     educational      program ts nullified*        Media used mostly
     for the dissemination         of university    tiformation     and
     educational      articles   are the newspaper, magazine, and
     radio O Perhaps equally important ti giving out Infor-
     mation in regard to the educational            offerings     of the
     university     are the conferences       that are held, the let-
     ters that are written,         the 1Sterature published        and the
     personal    visits    that are made. University          press re-
     leases are sent regularly          to the press association        and
     newspaper correspondent          IQ Austin and to the State
               .
         George R, Sheppard,        page 3   (o-4167j .                   iL   745


         daily       and wee&newspapers.”
             Mr. Syers* .expense .account represents   a trip to Galves-
  ton where the medical branch of the Univers’lty- is lotiated.      It
 was made in furtherance      of the program of the Public Relations
  Department as it pertained to that branch of the University.       We
:ar& advised that the medical branch had no public relations        de-
 .partment or personnel. We are further adviied that the trip was
Ffor purposes in addition to those described in the expense ac-
         -auot ed above ‘I and ticluded the gathering of information    on
l,the n&-cancer program and the new tropical       medical program fos-

             The Development Board of the University,        ‘of which Mr.
IBlack Is Director,    w&s estab’lished   by the Board be Regents of the
 University   of Texas on May 31, 1939.-Budgets for the Board were
[tapproved by the Regents for the fiscal      years of 1918-UW:       19390
 1$&o ; and               The resolution
                 1 941 4942   l             establishing-   Ehe %velopment
 Board defined its purpose as being to *Idevelop and carry forward
    program for the development of ‘the University        through gifts and
    dowments I4 The trip represented
                 l                        by Mr. Black’s experise account
    s for the purpose of furthering      plans for gifts and bequests to
   he University.
          Under recent date this department was wrltten as follows
by Dr. Homer 3. Raineyr President 05 the Universityr- . concerning
the two departments &er   revfew:
                **I can say without any hesitation   whatsoever that
          both I and theBoard     of Regents regard these two depart-
         ments as among the most important ‘in the University.
 *
     b   Both are contributing     some outstanding values to the
          development of the University,     and it would be a serious

                 Articles     2584 and 2585, Revised   Civil   Statutes   of Texas
                  1 order     as folXows8
              ftAxt%cle 2584b The government of the University     of
         Texas shall be vested in a -Board of Regents composed of
         nine prsons.   They shall elect a chairman from their num-
         ber who shall- serve at the pleasure of the board.   The
         State Treasurer shall be the treasurer   of the University.
         The board shall have the right to make &d use,a common
         seal and may alter the same at pleasure.
               %%iele     2585. ’They shall establish the dtiparbments
         of a first-class    tiiversity,   determine< the offices     and
         professorshipsj   ‘appoint a president)    who shall,    if’ th.ey
         think it advisable,     also discharge the duties of a profes-
         sor’, appoint the professors     and other officers, fix their
                                                                   ,c
                                                                        u

    746

Hona George Ha Sheppard,       page 4    (024167)

        respective  salaries;   and they shall enact such-by-laws,
        rules and regulations    as may be necessary for the suc-
        eessful management and goverment of theXNI.versity;
        they shall have power to regulate the course of instrae-
        tion and prescribe    by and with the advice of the .profes-
        sors 9 the books and authorities   used ti the several de-
        partments, and to confer suoh degrees and to grant      such
        dlpkmas as are usually conferred and granted by univer-
        sitllees.”
             Regarding   the authority   thus vested   in the ‘Board of Be
gent
   s of the-University   of Texas-under these ~&&&es, the c~mi
sionof $ peals of Texas fa the case of Foley vso Benedict, 55
s&L(‘2d) 805, op%ni on adopted by the Supreme Court, has declared1
               ltBj .the same statute,  the Board is also authorized
        to enact -all such by-laws, rules and regulations         as may
        be necessary to the governmentof         the University.    By and
        with the consent of the faenlty the Board of Regents has
        enacted the rule above quoted; and, further carrying out
        the mandate of the State, they have adonted courses of
        study to be pursued $n the school of mehieine@           Since the
        Board of Regents exercises      delegated powers, itsrules      are
        of the same force as would be a like enactment of the Leg-
        islature 9 and its official     interpretation   placed upon the
        rule so enacted becomes a part of the rule*          West Texas
        Compress and Warehouse Comx>ansvse R, Comx,anv tTex.Comm.
        of AppA 15 &W&a>          558, 560-i***
               Vhe Legislature    of this State having lodged the powe        a
        with the Board of Regents to enact rules and regulations              f
        as may be necessary for the successful      management and gov-
        ernment of the University,      they shall have power. to adopt
        such rules and to regulate the course of instruotion,         and
        prestzribe,   by and with the -advice of the faculty,     the books
        and authorities     used in the several departments,     That au-
        thority   rests with the Board of Regents and the faculty .as
        provided for by statute;     and, if a change or modifieat ion
        is desfred in the rules and regulations,      It is a matter for      f
        the consideration     of the Legislature,   The courts will not       .
        interfere   therewith 9n the absence of a clear showing that
        they have acted arbitrarily      or have abused the authority
        vested in them, The great weight of authority         sustain this
        doctrine,   **rkrt , I
           House Bill No0 272,. Acts of the Forty-seventh     Legisla-
ture 9 is the appropriation bill for the educational    institutions
of hlgher- learning in Texas for the biennium ending -August 31,
1943 Section‘ l(a) of this appropriatfon
    l                                       bill reads. as follows:
              “That all balances in the institutional funds of the
        several State institatioas  d&ed in this J&tit,‘at. the close
                                                                              %
-       _ .-         __
                                                                    r-

r-a*George EL Sheppard,        page 5    (0-4167)                         Y4?

P

  .: of the fiscal         year ending August -31 1941, including
  -. balances in their revolving’ funds at ‘that time, md
 E the entire Income to said funds during each of the two
 -.T .fiscal years ending August 31, 19429 and August 3X,
k<. 1943,which are not otherwise appropriated                  for either
5r or both .of said fiscal
L’                                    years are hereby appropriated
       for the support, maintenance, operation, ’and improve-
;&*_ ment of said State institutions               during each of the said
p;-    fiscal    years,   respectively.lf
FT
cg <
lp-i
gt            Subsection      (3) of the general riders to this approprfaq            I




 yn bill provides as follows:
 $?       .
              ffInstitutional      Receipts:      MO property belonging
    -:‘to any of the institutions            herein provided for, or any
       agency thereof,        shall be sold ‘or disposed of without
       the   consent    of  its   governing board, and’all proceeds
 3p. from the sale of such
 &
 L-                                  property,     from labor performed,
 __;
 %: from the sale of materials,               crops and supplies,     from
g fees,         and any and all other receipts           shall become and
t&
s$.. far e he rbe Y am onriated as maint nance or 60n t &ngent
         und to be exokded under the d&&ion                 and with the
 k~ aWrova1 of the goverug                board having jurl.sdictj.oq,       i, : ;
;      Said governing boards are authorized to use out of                   ‘..
*< the proceeds of said receipts                 and funds, in accordance
t;:.. with the provisions          of this Act, such amounts as they
8 shall deem necessary for the suunorta maintenance,
+, operation and imr>               m nts of said inst4tuti        ns    bY
$..*   balances    remai,n&“   ~~    &e    credSt    of any of  szld*&p
    ~’stitutlonal       local funds at said institutions           or in the
   ;‘~‘State Treasury at the end of any fiscal              year    ark here-
$+- by reappropriated           for the above-mentioned purposes for
f the succeeding. year.”               (Bmphasis added)
               In subsection   (6) appear these provisions:
p
t .            @a** r)rNo traveliag
                                 expenses shall be incurred by
!k-, board members, heads of institutions,     or by any employee
-3 J ,of any of the schools,  or other agencies named herein,
L
63   -de.    or out side of the boundaries, of- the State of Texas.
<$- except for State busa      s and no travel shall. be per-
% formed outside the Sta::      &ce&    upon   the advance written
g;. consent   of the school’s  Board-of Regents or directors.
8.:; The term ‘maintenance 8 may include the traveling     expenses.
,‘.>
  L *4*tq (Emphasis added)
3;?S
4
@I>        From th2s review we may make the following     observation                     S

          First.   The Legislature    has not assumed to manage ‘and
    Sol the University   of Texas directly,   but .has delegated the
    rment of this ,tistitutton     to its Board of Regents.
                                                                                           I
1,
i.   748

Bono George H. Shespard,
                  --     . page
                           -  - 6                           (Q-4167)


                    Thestatutes
                   Second*         -expressl$ vest the Board of Re-
gents with the p-@wer and authority,   to-establish      dep&rtments in
the Uziiver4ity and tci det6zmiae the offices       thereof.    They en-
join upoa the Board’the   duty of enaoting such by-laws,  Nles a
regulations  as may be neoessary  for the successful  management
government of the University.
          Thfrd o The Supreme Court of Texas, through its Commis#
sion of Appeals, has clearly  recognized  and upheld the validity
of these statutes and has vouchsafed to the rules enacted bv the
Board of Regents tn the exercise   of its delegated powers the
and effect of like enactments of the &ee:islatureo
                                  -              --   _-_    -    -v-   -   ---   --   -




          Fourth,    The Board of Regents of the Unfversity has es4
tablished both the Public Relations *Department and the Developmen’
Board of the University whereunder both ML Syers and Mr* Black
serve in their official   capacities,
            Fifth.   Since the’ establishment    of these departments b;
the Board   of Regents,   subsequent legfslatures    of the State have
neither  changed nor modIf9ed the action of the Regents in such pi
thulars   nor in any manner circumscrfbed      or restricted   the auth
ity existent    in the Board by virtue of Articles      2584 and 2585, ’
supr a o                                                                Ji
            Sixth e The Forts-seventh                  --_--
                                        LedsSxture in House    ----
                                                               B311 --
                                                                    N'o
272 expressly provided th&       “**cAIk $&eed~***from    fees, and
any and a3.1 other receipts   shall become and are hereby apGropria-
as maZntenance or contingent fund to be expended under the dlrecl
tion and with the approval of the governing     board having jurisdic
t ion.  Said governing boards are authorized to use out of the pri
ceeds of said receipts    and funds, in accordance with the provisir
of this Act, such amounts as they shall deem necessary for the i
Port? maintenance. oneration and imProvement of said institutloq:
***The term Imaint enance 1 may %nclude the traveling    expenses***rfi
,(Emphasis added)
           Seventh o The Forty-seventh    Legislature expressly prohi
Ued the allowance of traveling     expenses inside or .outside of th
boundarIes of the State of Texas except when such expenses shall
have been incurred  for ‘“State business.”
          If the expenses represented   by the expense accounts of’
Ike SYers and Mr. Black were incurred for State business,    they m
be allowed and nald.
               -    -_   -_   r
                                      i
                                      ----   -




           A deefsion upon this’ question involves  a consideration
of whether   the creation of the departments involved was within 4
powers granted to the Board of Regents of.the University,     and   i
whether the obgects and purposes for which the expenses were in4
red were 1egitZmate activities   in furtherance  of the programs tb’
inaugurated.
km,     George H, Shepptid,   page   7 (O-4167) .’       ’

:,
 : ..        33tate’busiriess”~    signifies   -the accomplishment of a
governmental function;        it z’equiies th;a’t;--the me%msad’ method
gdopted be reasonably necessary;           it implies that the particular
governmental faction.        involved be‘ one directly     eiztrusted to the
knst itution    or department assuming its accomplishment.
           The Legrslatures       of Texas have not undertaken to define
Wtate business     U $.Q.relation   to the University   of Texas,      The
g6vernmnt of that institution9         a serious   and complex   responsibil-
tty, has been entrusted to the Board of Regents and to that Board
has been given broad and comprehensive powers.           It is manifest
that the Uministration        and Board of Regents of the University
@We in a superior position        to know and wderstand,     and to accom-
plish, the successful      management and governraent of the University.
Upon them has been imposed the responsibility          therefor.    r The pre-
sumption is always in favor of the reasonableness           and legality     of
that which they do.       As said by the court $n’Foley v+ *Benedict,
supra, “the courts will not interfere         therewith in the absence of
a clear showing that they have acted arbitrwily            or have abused
the authority vested in them?          This does not mew,of course,that
acts beyond the law should be upheld.          It does mean, however,
that this department should be restrained,          as are the courts,     in
overturning the -deliberate       and considered acts of those entrusted
with, and peculiarly      equipped for, the administration       of this
State institution.
           To disallow the expenses under review would mean, ob-
viously,  a destruction    of the Public Relations      Department and De-
velopment Board of the University         created by the Board of Regents
&nd which have been functioning        for a nmber of years without
challenge  or modification     by the Legislature.      This is true because
the expenses represent     activities     which we the essence of the de-
partment s themselves.     If the expenses incurred,      for the purposes
for whidh they ware incurred,        are. illegal, necessarily  the depart-
Bents were illegally    created beoause that for which the expenses
were incurred is the accomplishment of that for which the two de-
partment s were established.
             IIt is our opinion that public relations     _apperfaJning to
 the University    of Texas, and the development of the University       of
 Texas, as represented    in the Public Relations Department and the
 Development Board constitute.      valid functions   of the University;
 that the means and method adopted for the accomplI.shment of these
 f.unctions,  represented   in the expense accounts before us) are rea-
sonably and substantially      related to the functions     of government
 entrusted to this educational      institution,   and consistent  with the
 authority granted to the governing board of the Institution.

             It is our opfnion that the expenses incurred as repre-
 sented   in the expense aoeomts   submitted to us of Hr* Syers and



h
                                                     I-        , -.-a
                                    page u           W-41671 .                   -
                                                                        -'

     Mr. Bleick were for State      bnsiaess~aad                  therefor@ may be allowed
     and paid.           -                                       ,. *      ‘_           r.
                 We are returnfng     the Bxpense.aoc0unt.s.herewith.
                                                                                                 .
                                                          Yours’ &&y trtLy
                                                          ATTORN~YQEeJERaLOF TEXBS                   1
                                                                                                     d
                                                          By JS/ Zollie CL Steakley ’
                                                          Zollie C ?’ Steakley, %ssi&&




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