                           EAY~TORNEW                GENERAL
                                   OIFTEXA~
                                  A~-STIN    11, TEXAS

  WI&       WILSON
A’LTORNEY      OENISRAL.                    June 28, 1960

             Dr. J. W. Edgar                   Opinion   NO.   w-868
             Commissioner of Education
             Capitol Station                   Re:   Legal Status of Texas
             Austin 11, Texas                        Public Junior Colleges
                                                     as regards their ellgi-
                                                     billty for financial
                                                     assistance under Title
                                                     III of the National De-
                                                     fense Education Act of
             Dear Dr. Edgar:                         1958.
                       We have received your letter of recent date in
             which you ask the opinion of this Department as to the
             legal status of Texas Public Junior Colleges as regards
             their eliglblllty for financial assistance under Title
             III of the National Defense Education Act of 1958.
                       Your letter requesting this opinion contains the
             following information: -
                                The National Defense Act of 1958
                           authorizes financial assistance to the
                           States over a period of four fiscal
                           years In establishing and maintaining
                           a two-part program for strengthening
                           science, mathematics and modern foreign
                           language instruction in public schools.
                           (Sections 441-445, Title 20, USCA)
                                Section 441, Title 20, USCA, author-
                           izes an appropriation of $70 mllllon for
                           the fiscal year ending June 30, 1959, and
                           for each of the three succeeding fiscal
                           years for payments to state educational
                           agencies under this Title for the acquisi-
                           tion of equipment suitable for use In pro-
                           viding education in science, mathematics
                           and modern foreign languages In the elemen-
                           tary and secondary schools of the State and
                           for minor remodeling of laboratory or other
                           space used for such equipment. This section
Dr. J. W. Edgar, Page 2 (ww-868)

         further authorizes $5 million for like
         fiscal years for payments to state
         educational agencies for the expansion
         and improvement of state supervision
         and related services in the fields of
         science, mathematics and modern foreign
         language instruction in the elementary
         and secondary schools and for the
         administration of the.state plan.
              "Under other provisions of Public
         Law 85-864, and a Texas State Plan
         adopted pursuant thereto many of the
         elementary and 12-grade school districts
         of this State are currently participating
         In Title III program, which Is administer-
         ed through the Texas Central Education
         Agency.
              "Recently, Interested Public Junior
         College Districts of Texas have observed
         that such districts may likewise realize
         Title III program benefits needed If this
         Agency would obtain a ruling from the
         Office of Attorney General that Texas
         Public Junior Colleges constitute a part
         of the State public secondary school system
         for purposes of that law."
          Section 403 (h), Title 20, USCA, known as the
National Defense Education Act of 1958, contains the
following definitions of the terms or clauses used in
the law:
               "The term 'secondary school' means
          a school which provides secondary educa-
          tion, as determined under State law, ex-
          cept that it does not include any educa-
          tion provided beyond grade 12. For pur-
          poses of Sections 441 through 444 of the
          title, the term 'secondary school' may
          include a public junior college, as
          determlned under State law."
          Regulations adopted as applicable to the admln-
istration of Title III, Sections 301-304, issued by the
U. S. Commissioner of Education define in Subpart A.1 as
follows:
Dr. J. w. Edgar, Page 3 (w-868)


              "(PI 'Secondary school' means a
         school which provides secondary educa-
         tion, as determined under State law, at
         grade 12 or below, and may include a
         public junior college providing educa-
         tion beyond the 12th grade if determined
         under State law to be a part of the State
         public secondary school system."
          Webster's International Dictionary, second
edition, defines "secondary," from an educational stand-
point, as being "intermediate between elementary and
collegiate." Webster's International Dictionary defines
"Junior College" as "a college providing courses of
Freshman and often of Sophomore grade, either as an
independent unit, or as a part of a standard college, or
                                                      -
as a secondary school."
          Section 12, Article 281511,Vernon's Civil Stat-
utes, states that a junior college consists of the Fresh-
man and Sophomore College work taught either separately or
in conjunction with the Junior and Senior years of the High
School and the course of study must be submitted and approv-
ed by the Central Education Agency before it may be offered.
          The Texas statutes have not specifically defined
the meanlngof theterm Junior College nor has Its legal
status been determined, but neither has the meaning of the
term been limlted in any way. (Nixon-Clay Commercial Col-
le e v. Wood, 170 S.W. 2d 1019, 1
a-e           question before us,g~~'~ec~~~ef;~~~~s~~y
to look to the characteristics of Public Junior Colleges in
Texas and the similarities between public junior colleges
in relation to public secondary schools in Texas, such as
public high schools, to determine the legal status of public
junior colleges under State law.
          Sections 1, 2 and 3, of Article 2654-1, Vernon's
Civil Statutes, read in part as follows:
               "Section 1. There is hereby estab-
          lished a Central Education Agency compos-
          ed of the State Board of Education, the
          State Board for Vocational Education, the
          State Commissioner of Education, and the
          State Department of Education. It shall
          carry out such educational functions as
          may be assigned to It by the Legislature,
Dr. J. w. Edgar, Page 4 (w-868)

         but all educational functions not speci-
         fically delegated to the Central Education
         Agency shall be performed by County Boards
         of Education or District Boards of Trustees.
              "Sec. 2. The Central Education Agency
         shall exercise, under the Acts of the Legis-
         lature, general control of the system of
         public education at the State level.
         activity with persons under twenty-oneATil)
         years of age which is carried on within the
         State by other State or Federal Agencies,
         except higher education in approved colleges,
         shall in its educational aspects be subject
         to the rules and regulations of the Central
         Education Agency.
              "Sec. 3. The Central Education Agency
         shall be the sole agency of the State of
         Texas empowered to enter into agreements
         respecting educational undertakings, including
         the providing of school lunches and the con-
         struction of school buildings, with an agency
         of the Federal Government, except such agree-
         ments as may be entered into by the Governing
         Board of a State university or college. No
         County Board of,Education or Board of Trustees
         of a school district shall enter into contracts
         with, or accept moneys from, an agency of the
         Federal Government except under rules and
         regulations prescribed by the Central Education
         Agency."
          Sections 1, 2 and 3, of Article 2654-3, Vernon's
Civil Statutes, read In part as follows:
               "Section 1. The State Board of Educa-
          tion is hereby declared to be the policy
          forming and planning body for the Public
          School System of the State. . D q
               "Sec. 2, It shall have the duties and
          powers prescribed in the statute for the
          State Board of Education and the State Board
          of Vocational Education. As one part of the
          Central Education Agency, It shall have the
          specific responsibility for adopting policies,
          enacting regulations and establishing general
Dr. J. w. Edgar, Page 5 (wb-868)

         rules for carrying out the duties placed
         upon It or upon the Central Education
         Agency by the Legislature. . . .
              "Sec. 3. The State Board of Education
         shall review periodically the educational
         needs of the State and adopt or promote plans
         for meeting these needs. It shall evaluate
         the outcomes being achieved in the educational
         program. . . .
          Sections 1 and 3 of Article 2654-6, Vernon's
Civil Statutes, read In part as follows:
                  "Section 1. There is hereby establlsh-
         ed the State Department of Education, which
         shall be the professional, technical, and
         clerical     staff of the Central Education Agen-
                  It shall be organized Into such divisions
         z,"d subdivisions as shall be established by
         the State Board of Education upon recommenda-
         tion of the State Commissioner of Education,"
              "Sec. 3. The functions of the State De-
         partment of Education shall be to carry out
         the mandates, prohibitions, and regulations
         for which it is made responsible by statute,
         the State Board of Education, and the Commls-
         sioner of Education. It shall have no power
         over local school districts except those
         specifically granted in statute, but it shall
         seek to assist local school districts in
         developing effective and improved programs
         of education through research and experimenta-
         tion, consultation, conferences, and evalua-
         tion. In discharging these functions the State
         Department of Education shall make free and
         full use of advisory committees and commissions
         composed of professional educators and/or other
         citizens of the State."
          Sections 1, 3, 4 and 7, of Article 2815h, Vernon's
Civil Statutes, read in part as follows:
              "Section 1. Any     Independent School Dis-
         trict, or city, which    has assumed control of
         its schools, having In    either case an assess-
         ed property valuation    of not less than Twelve
Dr. J. w. Edgar, Page 6 (w-868)

         Million ($12,000,000.00) Dollars .
         that will meet the needs of the propos-
         ed Junior College District, said need
         to be determined by the State Board of
         Education .     may by vote of the quall-
         fied voters of-the district or city
         estab$ish and maintain a junior college
         . . .
              "Sec. 3. It shall be the duty of
         the State Board of Education, with the
         advice of the State Superintendent of
         Public Instruction1 to determine whether
         or not the conditions set forth in Sec-
         tion No. 1 have been complied with, and
         also whether, in consideration of the
         geographic location with respect to
         colleges already established, it is feas-
         ible and desirable to establish such
         Junior College District. In passing upon
         this question, it shall be the duty of
         the State Board of Education to consider
         the needs of the State and the welfare of
         the State as a whole, as well as the wel-
         fare of the community involved. The
         action of the State Board of Education
         shall be final and shall be communicated,
         through the State Superintendent of Public
         Instruction, to the Board together with an
         order of the State Board of Education,
         authorizing further procedure in the estab-
         lishment of the Junior College District, if
         said State Board lndorses its establishment.
         . . .!I
              "Sec. 4. A junior college established
         and maintained by an independent school dis-
         trict or city that has assumed control of
         its schools, or where the same has been or-
         ganized as a junior college district under
         the provisions of this Act prior to October
         15, 1935, as an Independent entity, or may
         hereafter be so created, and/or wherein the


lOfflce abolished and powers and duties transferred to
 State Commissioner of Education. See Arts. 2654-5,
 2654-7, Vernon's Civil Statutes.
(.   -




         Dr. J. w. Edgar, Page 7 (w-868)

                  boundaries of the junior college district
                  are the same, or substantially the same,
                  as the independent school district, shall
                  be governed, administered, and controlled
                  by and under the direction of the board of
                  education of such district or city. The
                  said board of education of such junior
                  college district, under the provisions of
                  this Act, shall in addition to all of the
                  powers and duties vested In them by the
                  terms of this Act, be furthermore vested
                  with all the rights, powers, privileges,
                  and duties conferred and Imposed upon
                  trustees of independent school districts
                  by the General Laws of this State, so far
                  as the same may be applicable thereto and
                  not inconsistent with this Act. . . .'
                       "Sec. 7. The Junior College District
                  created under this Act shall have the power
                  to issue bonds for the construction and
                  equipment of school buildings and the ac-
                  quisition of sites therefor, and to provide
                  for the interest and sinking fund for such
                  bonds by levying of such taxes as will be
                  necessary in this connection. The Junior
                  College District shall also levy and collect
                  taxes for the support and maintenance of the
                  Junior College, provided that no bonds shall
                  be Issued and no taxes shall be collected
                  until by vote of the majority of the qualified
                  voters of the Junior College District, at an
                  election called for that purpose in accordance
                  with the provisions of the General Law provid-
                  ing for similar elections In Independent School
                  Districts, such bonds and taxes are authorized.
                  . . .I,
                   Sections 1, 2 and 3 (a)(b) (c) and (d), Article
         2815k-2, Vernon's Civil Statutes, read in part as follows:
                       "Section 1. The Central Education
                  Agency shall exercise, under the Acts of
                  the Legislature, general control of the
                  Public Junior Colleges of this State. All
                  authority not vested by this Act or other
                  laws of the State in the Central Education
Dr. J. w. Edgar, Page a (w-868)

         Agency or its component parts, is reser-
         ved and retained locally in each respec-
         tive Public Junior College District or
         governing board of each Public Junior
         College as provided in the laws applicable
         thereto.
              “Sec. 2.   The State Board of Education
         shall have the responsibility for adopting
         policies, enacting regulations and establish-
         ing general rules necessary for carrying out
         the duties with respect to Public Junior
         Colleges placed upon it or upon the Central
         Education Agency by the Legislature. The
         State Commissioner  of Education shall be re-
         sponsible for carrying out such policies and
         enforcing such rules and regulations.
              "Sec. 3. The State Board of Education,
         with the advice and assistance of the State
         Commissioner of Education, shall have author-
         ity to:
              "(a) Authorize the creation of Public
         Junior College Districts as provided in the
         laws pertaining thereto. In the exercise of
         this authority the State Board of Education
         shall give particular attention to the need
         for a Public Junior College in the proposed
         district, and the ability of the district
         to provide adequate local financial support;
              "(b) Dissolve any Public Junior Col-
         lege District which has failed to establish
         and maintain a Junior College therein within
         three (3) years from the date of its author-
         ization;
              "(c) Maintain a Public Junior College
         Division within the State Department of
         Education. The State Commissioner of Educa-
         tion shall have the authority to appoint,
         subject to the confirmation of the State Board
         of Education, an Assistant Commissioner of
         Education for Public Junior Colleges, and to
         prescribe his duties and functions;
&’   -




         Dr. J. w. Edgar, Page 9 (ww-868)

                       "(d) Adopt standards for the
                  operation of Public Junior Colleges
                  and prescribe the rules and regula-
                  tions therefor; . . ."
                   As set out in Article 2815h, Vernon's Civil
         Statutes, the Texas Public Junior Colleges are govern-
         ed, administered and controlled by the Board of Educa-
         tion of the Independent School Districts or Junior
         College Districts of the particular district in which
         each is located and all such districts are under the
         general control of the Central Education Agency as stated
         in Article 2654-1, Vernon's Civil Statutes.  Under Article
         2815h, Vernon's Civil Statutes, the Junior College Dis-
         tricts are given power to issue bonds, levy taxes to
         service same, and levy and collect taxes for their support
         and maintenance. Therefore, Junior Colleges of Texas are
         an integral part of the local public school system, and,
         as such, are a part of the secondary public school program
         which Includes high schools and junior colleges. Although
         from a curriculum standpoint, the Texas Public Junior
         Colleges are considered higher education, since they offer
         work parallel to that of the first two years of the four
         year colleges, they also come within the definition of
         secondary schools in Texas, being governed and financed in
         the same manner on the State and local levels as are other
         secondary schools in Texas and we conclude that this is con-
         trolling in determining their legal status as secondary
         schools.
                    Therefore, It Is the opinion of this Department
         that the Texas Public Junior Colleges are an integral part
         of the local public school system, and, as such, under
         State law,  are a part of the public secondary school system
         of Texas which entitles  them to financial assistance under
         Title III of the National Defense Education Act of 1958.
                                  SUMMARY
                        The Public Junior Colleges of
                        Texas, an integral part of
                        local public school systems,
                        are considered a part of the
                        secondary school program of
                        Texas under State law even
                        though the curriculum Is paral-
                        lel to that of the first two
Dr. J. w. Edgar, Page 10 (hw-868)

              years of a four year college,
              and therefore, the Public
              Junior Colleges of Texas are
              eligible for financial asslst-
              ante under Title III of the
              National Defense Education Act
              of 1958.
                               Yours very truly,
                               WILL WILSON


                               ~y~~?L!!!d
                               Assistant Attorney General

1BW:mm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Mary K. Wall
Robert G. Scofield
Gordon Cass
Arthur Sandlin
REVIEWED FOR TRE ATTORNEY GENERAL
BY: Leonard Passmore
