Hon. C. H. Cavness       Opinion No. V-1347
State Auditor
Austin, Texas            Re:   Construction of the
          .F                   limitation on appro-
                               priatxons to insti-
                               tutions of higher
                               education prohibiting
                               the expenditure of
                               funds “for courses of
                               instruction required
                               for any degree ‘which
                               was not offered. ‘. .
Dear Sir:                      on October 1, 1950."
          We quote in part from your recent letter
as follows:
         “In connection with our statutor-
    ily required audits of the accounts
    and funds of the State Institutions of
    Higher Learning, we respectfully re-
    quest your official interpretation of
    part of Section 20.0f ‘ArticleV in
    House Bill 426, Acts 52nd Legislature,
    1951, ch. 499.
         “This Section prohibits the ex-.
    pending of State funds ‘for courses of
    instruction required for any degree
    which was not being offered by the in-
    stitution on October lst, 1950 . . .I
    (excepts Lamar State College of Tech-
    nology, Reserve Officers Training Corps
    instruction, etc.1 In order for us to
    have the guide lines on the part of our
    audits that will be concerned with this
    Section . . ., we need your answers to
    the following questions:
          “1. !Irhatconstitutes the offering
     of a degree within the meaning of the
     above quoted portion of the Section in
     question? . . .
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        Hon. C. H. Cavness, page 2   (V-1347)


                  "2. Where a course is already be-
             ing given as requirement for an exist-
             zingdegree, would the above Section
             have any effect where it may also be re-
             quired for a new degree not previously
             offered? We believe that the above
             quoted part should have stated 'for m
             courses1 and that the answer to this
             question would be *NoI.I1
                  Article V of House Bill 426, Acts 52nd Leg.,
        R.S. 1951; ch. 499, pa 1446, the general appropriation
        bill f.nrthe biennium ending August 31, 1953, makes
        appropriations for the State institutions of higher
        learning. Among the General Provisions of firticleV
        of House Bill 426, at ppa 1468, 1469, it is provided:
                  "The expenditure of the appropria-
             tions herein made and authorized, whether
             from the State General Revenue Fund, lo-
             cal institutional funds, or any other re-
             ceipts and funds whatsoever, except be-
             quests and gifts, shall be subject to the
             following provisions: . . .
                 "Sec. 20. Limitations on Courses of
            Study. pane of the aooroJriatlons herein
            made and authorized, whether from the
            State General Revenue Fund, local instruc-
            tional funds, or any other receipts and
            funds whatsoever except bequests and gifts.
            ghall be exaended for-the continuance-or .
            establishment of a devartment of instruc-
            tion which was not in-existence on October
            1, 1950popr for courses of Instruction re-
            wi ed      anv degree which   s n t beins.
             ff&ed bv the in itution o?OctIber 7,
            &'&, . . .I' ,(Em$a.sisadded.)
                  Your first question concerns the meaning of
        the word "offered" as used in the above-quoted provi-
        sion. A determination of the answer to this question
        involves a study of the procedure followed at each of
        the many institutions of hiSher learning in the offer-
        hg of degrees. The facts which constitute the offer-
        ing at each institution differ, and a decision of the
        question of when a degree is offered would necessnrily
        involve a determination of :Ihatare the existing facts
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               Hon. C. Ii.Cavness, page 3   (V-1347)


               at each institution as well as whether those facts
               constitute an offering of a degree. This office is
               precluded from deciding fact issues and hence we
               cannot answer your first question categorically.
               Att'y Gen. Op. O-3382 (1941).
                         Accompanying your request are a number of
               letters from the administrative heads of institu-
               tions of higher learning containing expressions with
               regard to their interpretation of when a degree is
               actually "offered" at their respective,institutions.
               From these we gather it is the ordinary practice
               that prior to, or as a part of, the offering of a de-
               gree there must be some action approving the degree
               by the administrative and governing board of the in-
               stitution. This authorization generally precedes the
               actual offering of the degree by several months. d-
               ter the degree is authorized, the actual courses re-
               quired by the degree program are made available to
               students who wish to take the courses for the purpose
               of receiving the degree.
                         Thus it seems apparent that the mere author-
               ization of the degree, standing alone, Is not suffi-
               cient to constitute the "offering of a degree." In
               our opinion, before a degree can be considered as "of-
               fered" the courses required by the degree program
               mustbe made available to students who wish to take
               the courses for the purpose of receiving the degree.
               As to whether such courses were actually made avail-
               able to students prior to October 1, 1950, will depend
               upon the particular facts and circumstances at each
               institution of higher learning. Thus, if you deter-
               mine in connection with your audit of the accounts and
               funds of a particular institution that there had been
               authorization for a degree by the governing board and
               that courses required by.the degree program were ac-
               tually made available to students who desired to take
               the courses for the particular degree prior to October
               1, 1950, then we believe you would be justified in de-
               termfning that the degree was actually being offered
               prior to October 1, 1950. Furthermore, the fact tha.L
               students with the required background had actually en-
               rolled and were taking courses leading to a particular
               degree prior to October 1, 1950, would be strong evi-
               dence of the fact that the degree was being offered
               prior to that time.

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    Hon. C. II.Cavness, page 4   (V-1347)
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             The above are just some of the criteria
   to be considered in determining the fact issue of
   whether a degree was being offered within the mean-
   ing of Section 20. There may be others just as
   persuasive, but in our opinion the actual offering
I/of thecourses and enrollment of students in the
   .coursesprior to the date set out in Section 20,
/are   important factual determinations to be made in
   each instance.
              Your second question concerns courses re-
    quired for degrees offered prior to October 1, 1950,
    and also for degrees offered subsequent to that
    date-~ The wording of Section 20 does not prohibit
    the continuation of a course of study already re-
    quired for an existing degree when that same course
    becomes a requirement for a new degree, offered for
    the first time after October 1, 1950. The purpose
    of Section 20, as therein expressed, is to prohibit
;   the establishment of new courses of instruction for
    new degrees. The obvious intent is not to discon-
    ttnue existing courses but to ma3ntainthe status
    qu.o_untilsuch.time as a study6f the.facilities for
    higher education in this State may be completed. We
    therefore agree~with you that-your second question            c
           be answered in the negative.
                            SUMY
              What constitutes the offering of a
        l&degreewithin the terms of Sec. 20 of
         Art. V of H.B. 426 Acts 52nd Leg., R.S.
         1951, ch. 4999 pe i446, is a fact issue
         to be determined from the facts and cir-
         cumstances in each individual case.
         Courses of instruction required for a de-
         gree being offered prior to October 1,
         l.950,may oe continued even though such
         courses are also required for a degree
         offered subsequent to that date.
    APPROVED:                      Yours very truly,
    C. K. Richards                   PRICE DANIEL
    Trial & Appellate Division     Attorney General
    Everett Hutchinson
    Executive Assistant
    Charles D. Mathews
    First Assistant
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