                      The Attorney              General           of Texas
                                         December    28,   1978

JOHN L. HILL
Attorney General



                   Mr. Lee Drain, Chairman                        Opinion No. H-1312
                   Texas State UniversitySystem
                   505 Sam Houston Suilding                       Re: Whether a Board of Re-
                   Austin, Texas 78701                            gents may determine that the
                                                                  expenditure      of      University
                                                                  auxiliary funds for food and re-
                                                                  freshments under certain condi-
                                                                  tions is a lawful public purpose.

                   Dear Mr. Drain:

                         You have requested our opinion regarding the authority of a board of
                   regents to determine that the expenditure of University auxiliary and other
                   funds for food and refreshments serves a Lawful public purpose. You state
                   that the Board of Regents of the Texas State University System has recently
                   promulgated the following order:

                              The Board of Regents determines that the expendi-
                              tures of auxiliary funds for the purchase of food and
                              refreshments under the provisions set forth in the Sody
                              assists the Universities under its control in carrying
                              out their educational functions, serves to promote
                              education in the State of Texas, and provides an
                              important public purpose; and, accordingly, author&s
                              each University in this system to use auxiliary funds
                              for the purchase of food and refreshments in accord-
                              ance with the provisions set forth in the Rody.

                              Body:
                              Auxiliary funds may be used to purchase food and
                              refreshments at each university in this system under
                              the following provisions:

                              L      AuxiRary funds received by student organizations
                                     may be used for the purchase of food and
                                     refreshments if the appropriate responsible ae-
                                     count manager and the faculty or staff advisor
                                     determine and certify that such purchase serves
                                     a legitimate public purpose and furthers the
                                     educational function of the university.


                                               p.   5164
liunorable Lee Drain   -   Page2    (R-1312)




             2. Funds raceived as registration fees for continuing eduea-
                 tkn conferences seminars, and short courses IllEtYbellSd
                 for the purchase of food and refreshments if provfrkns
                 therefor have been included in the registration fees, and if
                 the appropriate responsible account manager therefor
                 determines and certifies that such purchases serves a
                 legitimate publk purpose and furthers the educational
                 functkn of the university.

             3. Student service fees, receipts from university concessiay
                and other auxiliary funds may be used for the purchase of
                food and refreshments to the extent that such funds have
                been budgeted therefor, if the appropriate responsible
                account manager determines and certifies that such pur-
                chase serves a legitimate public purpose and furthers the
                educatknal function of the university.

             4. Other locally-generated ,kcome and auxiliary funds not
                restricted to Administrative, Education and General Re-
                search, Plant Rxpansion, Loan, Endowment, or Scholarship
                programs may ba used for tha purchase of food and
                refreshments it the appropriate responsible account mana-
                ger and the President of the university, or his desii,
                determine that such purchase serves a legitimate publk
                puytiQand     furthers the, educational function of the
                          .

Article 3, section 51 of the Texas Constitution prohibits the grant of public funds “to any
individual, association of indlvtduals,municipal or other corporations whatsoever. . . .” It
is of course well established that article 3, section 51 is not contravened so long as the
expenditure is made for a proper public purpose. See Rullock v. Calvert, 460 S.W.Bd367
(Tex. l972)i State v. City of Austin, 331 S.W.2d 737v&x. 1960). You ask whether, in light
of article.3, secticm 51, the Board of Regents may validly promulgate such sn ader.

      Section 95.01of the R&cation Code vests

              [the] organkation,   control, and management of the state
              university system . . . in the bard of Regents, Texas State
              University System.

Among other responsibilities conferred on the board by statute is the duty to “purchase
. . . necessary ~rpplks.~ Section 95.21, Education Code. In our opinion, the legislature, in
delegating such duties to the board, authorized it to determine whether any particular
expenditure constitutes a valid public purpose. See Attorney General Gpinkns H-403,
H-257 (1974). Of course, there may be other statutory restrictions on certain of the funds
described in the boardb order, in particular student services f&s, section 54.503(c),
Education Code, and as to such funds, the board must observe the limitations imposed by
the relevant statute. See Letter Advisory No. 50 (l973).


                                          p.   5165
Honorable m    DraJn -    p-3         (H-1312)


      But although UK-Hard of Regents b Itse.Jfempowered to &t-mine whether the
axpaaditum of university auxiliary fun& sew- a valid public purpose, it does not IcIlow
that It may delegate Its authority to make that determination to a *~nsJble    aaoount
mana@ or to a YacuIty cc 6taff advisor. ” h Attorney General GpJnJonH484 Q976), we
held that the Railroad CommJnsJonwas not authorfied by rule to delegate to one of its
divbion dJrectors unlimited discretionary authority Jn matters JnvoMng expedJted
processing cc uncontested poceedJnga. The power to delegate authr&y, we said,

              & ths kind of power tit the Legkrhture must expreerly gJve
              the Railroad CommJssion,and . . . Texas courts wouJdnot find
              it to exJstby implication.

Id. It Is therefore our opinion that, while the Board of Regents of the Texas State
‘isiiiveraity System may itself determine whether a particular expenditure of unJveraJty
funds constitutes a valid public purpose, it may not by rule delegate that determination to
any other person. Of ccurse, it may dalegate the authority to determhe Jf specific
exp~diturea faJJwithin objective guidelJneseatabl&hedby the board.

                                       SUMMARY

              Althaqh tha Board of Regents of ule Texas State University
              System may itseli determine whether a particular expenditure
              of unJversity funds constitutes a valid public purpose, it may
              not by ruJedelegate that determination to any other person. It
              may aelegate the authority to determine Jf SpecJfic expendi-
              tures fall wJthinobjective guidelines established by the board.




APPROVBD:                         v


Sbh4L-Q~
DAVID M. KENDALL,First Asmstant




Opinion Committee




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