                            JUSTIN.        TEXAS      78781
CRAWFORD    C.   MARTIN




       Ron. Frank C. R&win, Jr.                 Opinion No. M-466
       Chairman, Board of Regents
       Uni.versity of Texas System              Re:   Whether the Board of Regents
       900 Brown Bldg.                                of The University of Texas
       Austin, Texas                                  System has the authority to
                                                      declare null and void a degree
                                                      that the Board,conferred in
                                                      1954~'and to direct officials
                                                      of The University of Texas at
                                                      Austin to strike the name of
                                                      the recipient of the degree
                                                      from the names of Ph.D. grad?
                                                      uates at that institution,
       Dear Mr. Erwin:                                and related questions.

                 By recent,letter you have requested an opinion
       concern,ing the above stated matter. We quote from your letter
       as follows:

                 "On.May 29, 1954, The University of Texas at Austin
            awarded a graduate student at that institution
            the degree of Doctor of Philosophy, based in part
            on the submission to and approval by a faculty'
            committee of a dissertation.

                 "In 1968 serious allegations were made
            regarding the validity of the doctoral dissertation
            submitted in partial fulfillment of the require-
            ments for that Doctor of Philosophy degree
            awarded in 1954. In order to investigate those
            allegations, the President of The University of
            Texas at Austin appointed an Advisory Committee,
            consisting of six faculty members of The Univer-
            sity of Texas at Austin, and requested the
            committee to submit recommendations regarding
            the actions, if any, that the University should




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Hon. Frank C. Erwin, Page 2 (M-466)


    take in the matter.  The committee found probable
    cause to believe that regulations of The University
    of Texas at Austin had been violated in the
    submission of the dissertation in 1954, and on the
    advice of the committee, the President of the
    University appointed a Faculty Hearing Committee
    to conduct a hearing on two charges:   (1) Did
    the dissertation conform to the University's re-
    quirements for honesty in written work?   (2) Was
    the dissertation of the quality required by the
    Graduate School for an acceptable doctoral
    dissertation?

          "The Hearing Committee found unanimously
    that (1) the 1954 dissertation was 'mainly
    plagiarism,' (2) that the dissertation 'failed
    to meet the standards of quality required for a
    doctoral dissertation,' and that the dissertation
    was 'not acceptable for the award of the Ph.D.
    degree.'

          "All appropriate officials of The University
    of Texas at.Austin and The University of Texas
    System have concurred in the findings of the
    Hearing Committee and have unanimously recommended
    that the Ph.D. degree in question be declared null
    and void and that the appropriate officials of the
    University of Texas at Austin be directed to
    strike the name of the recipient of ,the degree
    from the list of Ph.D. graduates of that insti-
    tution. That unanimous recommendation is presently
    before the ,Board of Regents for consideration and
    final action.

         "The Board of Regents respectfully requests
    your opinion on the following questions:

         ' (1) Under the facts set out above, does
    the Board of Regents have the authority to declare
    null and void the Ph.D. degree that it conferred
    in 1954 and to direct officials of The University
    of Texas at Austin to strike the name of the
    recipient of the degree from the names of Ph.D.
    graduates at that institution?




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Hon. Prank C. Erwin,~Page 3.(M-488)

          "(2) If it were determined that the faculty
     committee that approved the dissertation in 1954
     conducted its work in a negligent manner, would
     such negligence estop the Board of Regents from
     declaring the degree null and void and from
     directing,officials of :The University of Texas at
     Austin to strike the name of the recipient of the
     degree from the names of Ph.D. graduates at that
     institution?

          "(3) Is the Board of Regents barred by
     any statute of limitation or by the doctrine of
     lathes from taking the actions recommended by
     the Hearing Committee and concurred in by the
     University administration?"

             It should be noted at the outset that the legal
problems    raised by your request are unique to the jurisprudence
of this    state. We were unable to find a single reported case
in this    jurisdiction, or any foreign jurisdiction where a
college    degrees has been conferred and then subsequently taken
away by    the conferring authority.

          The Board of Regents of the University has been given
authority by Article 2585, Vernon's Civil Statutes to confer
degrees and grant diplomas.

            Article 2585 is quoted, in part, as follows:
          II. ..they shall have power to regulate
     the course of instruction and prescribe, by
     and with advice of the professors, the books
     and authorities used in the several departments,
     and to confe,r such degrees and to grant such
     diplomas asare usually conferred and granted
     by universities."

          Pursuant to the above quoted article, the board
of regents has promulgated various rules and regulations in
general and relating to requirements for degrees for under-
graduates and graduate students.

          Relative to the facts,at hand, we quote from pertinent
rules and regulations in effect in 1953 and regulations in
effect in 1953 and 1954:




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                                  -
Hon. Frank C. Erwin, Page 4 (M-466)


                     "Scholastic Dishonesty

         'Honesty being the foundation of all good
    citizenships, the studentshould maintain a high
    standard of honor in,his scholastic work. He
    should avoid all forms of scholastic dishonesty,
    especially the following:

          "Plagiarism. ---The appropriation of passages,
    either word for word or in substance, from the
    writings of another and.the incorporation of
    these as'one's'ownin    written work offered for
    credit.   It is always assumed that the written
    work offered for credit is the student's own
    unless proper credit is given the original author
    by the use of quotation marks and footnotes or
    other explanatory inserts.

       _ "Collusion.---Working withy another person in
    ,the preparation of notes, themes, reports, or
    ,other w'ritten work offered for credit unless, suah
    collaboration is specifically~ approved in advance
    by the instructor.

          "Cheating on an examination or a quiz.--
    Giving or receiving, offering or soliciting,
    information; or the use of prepared material in
    an examination or a quiz. (See 'Examinations,'
    p. 65.)

          "Persons guilty of scholastic dishonesty
     are usually penalized by suspension."

         ”7 . Doctoral dissertaion.-- A doctoral
    dissertation is required of every candidate. The
    dissertation must give evidence of ability to do
    independent investigation in the major field, and
    itmust itself constitute a contribution to
    knowledge.  It must be accepted'by the candidate's
    supervising committee, though the committee may
    appoint a subcommittee to pass on the dissertation.
    Sixty calendar days before the commencement at
    which the doctoral degree is to be awarded, the
    candidate must present two final copies of the
    dissertation (unbound) to the supervising pro-
    fessor, who shall notify the Dean of the Graduate




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                                                   -.,      --




Hon. Frank C. Erwin, Page 5 (m-466)


     School of its receipt. The members of the super-
     vising committee have thirty calendar days to read
     the dissertation.  After all members of the
     committee (or an authorized ,subcommittee) have read
     the dissertation, they may sign a notice of
     acceptance for the purpose of examining the student
     on the dissertation.  This examination is the
     final oral examination for the doctor's degree.
     The final oral examination includes the disser-
     tation and the field of the dissertation and such
     other parts of the student's program as the super-
     visory committee may determine. After successful
     completion of the final oral examination, the
     approval sheets for the doctoral dissertation and
     the official recomkendation to the Dean of the
     Graduate School are signed. The student then
     arranges to have the original and first carbon
     copy (plus a second carbon copy for an engineering
     student) bound promptly in approved~style and
     deposited in the office of the Dean of the Graduate
     school.

           "9. Summary of routine. --(1) Admission to
     the Graduate School through official transcripts
     of previous work in other institutions sent to
     the Registrar: registration course card from the
     Office of the Registrar; and registration'by the
     graduate adviser of the student's major field.
      (2) Admission to candidacy by the major depart-
     ment or committee with the approval of the Dean.
      (3) Selection of a supervising professor and
     filling out a thesis information card, showing
     the field of the dissertation as approved by the
     supervisor, filed in the Dean's office.
     U (4) Submission of a Record of Work to' the
     secretary to the Dean, whereupon the supervising
     committee will be appointed by the Dean.
      (51, Passing of foreign language'examinations
     by the beginning of the last full year of graduate
     work (or the last two full years if the depart-
     ment so specifies).   Blanks to present to examiners
     for certification of results should be secured
     from the secretary in the Dean's office.
      (6) Notice of expected graduation in June, given




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Hon. Frank C. Erwin, Page 6 (M-466)


    by filing ~a diploma name card in the Dean's office
    when an applicant registers in the session
    in which he, expects to get his degree.
    (7) Passing of written major and minor examina-
    tions conducted by the supervising committee at
    dates,,set by the committee.
    (8) 'Submission of two unbound copies of the disser-
    tation to the supervising committee by April 1.
    Two bound copies of the dissertation approved by
    the committee to be filed in the office of the
    Dean not later than May 1.

          "(Each candidate must submit to the office
     of the Dean with the dissertation two months before
     the degree is to be conferred enough copies of
     a brief abstract of his dissertation to allow
     two copies'to be filed in the Dean's office and
     one to be sent to each member of the supervisory
     committee.  He must also submit two separate
     copies of the biographical sketch.)

          "(9) Formal request for the final oral
     examination, signed by the chairman, filed in
     the office of the Dean for his approval.

           "(10) Written report, signed by. the super-
     vising committee with respect to the dissertation
     and the final written and oral examinations, filed
     in the Dean's office for final approval by the
     Dean."

          Article 2585 does not expressly authorize the Board
of Regents to take away a degree once conferred, and we are
unable to find any board rule or regulation expressly conferring
such authority upon the university.

          Therefore, if such authority exists, it would have
to exist due to implied power conferred by Article 2585, or exist
in some contractual right between the University and the
degree recipient in question.

          The extent of implied power inherent in an adminis-
trative agency is well stated in Corzelius v. Railroad Commission,
182 S.W.Zd 412 (Tex.Civ.App. 1944) no writ, at page 415:
          "The general rule is well settled that
     boards or commissions which are creatures of




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Bon. Frank C. Erwin, Page 7 (M-466)


     the statutes, can exercise ony such authority
     as is conferred upon them by law inclear and
     express language and that authority will not be
     construed as being conferred by implication...
     It is equally well settled, however, that when
     a statute imposes a mandatory duty upon a govern-
     mental agency to carryout the express and specifi-
     cally defined purposes and objectives stated in
     the law, such statute carries with it by necessary
     ~implication the authority to do whatever is
     reasonably necessary to effectuate the legislative
     mandate and purpose."

           It is our opinion that Article 2585 does not impose
a mandatory duty upon the Board of Regents to confer or to
grant any particular degree or diploma to any graduating students,
Therefore, it is further our opinion that the Board of Regents
has no implied authority, pursuant to Article.2585, to annul
a degree once conferred.' The power of an admiriistrative body
cannot be derived by inference or implicat,ion. Board of
Ins. Commissioner's of Texas v. Guardian Life Ins.~Co. of
Texas, 142 Tex. 630, 180 S.W.Zd 906 (1944); 73 C.J.S. 372,
Pubiic Admin. Bodies, etc., Sec. 50.

           Bowever, the University o,f Texas does have contractual
authority as declared by the authorities in the conferring or
withholding of a College,degree., The courts deem this to be
a matter of contract law subject to recognized statutory and
common law.

           "Ordinarily, one matricula,ting at a college
     or'university establishes a contractual relationship
     entitling him on compliance with reasonable regu-
     lations as to scholastic standing,, attendance
     deportment and payment of tuition to pursue
     his selected course of study to completion and
     to receive a degree or certificate awa~rded for
     successful completion of such course:..."    14
     Corpus Juris Secundum, Colleges and Universities,
     Section 8, pp. 1337-1338.

          Texas courts have recognized this general rule; holding
that the rules and regulations set forth in a college catalog
constitute a written contract between the college and the




                         -2319-
Hon. Frank C. Erwin, Page 8 (M-466)


student. Vidor v. Peacock, 145 S.W. 672, (Tex.Civ.App. 1912)
no writ: Texas Military College v. Taylor, 275 S.W. 1089,
(Tex.Civ.App. 1925) no writ; See also, S.M.U. v. Evans, 115
S.W.2d 622, 131 Tex. 333, (1938).,

           We are of the opinion that the prior approval being
an exercise of conferred discretionary power to the Board of
Regents, to the prior committee and to the faculty as provided by
statute,was conclusive in the absence of bad faith, or abuse
of discretion   or a finding of fraud or false representation.
14 Corous J&s    Secundum. Colleaes and Universities. Section 8.
p. 133‘8; Edde v. Columbia Univeisity, 8 Mist 2d 795; 168 N.Y.S:2d
643, 1957 (affirmed 175 N.Y.S.2d 556; Foley v. Benedict 122
Tex. 193 55 S.W.Zd 805, 86 A.L.R. 477 (1932).

            The court in Foley v. Benedict supra stated:

           '!Astudent who is admitted to the
     University receives the privilege of attending that
     institution subject to the reasonable rules and
     regulations promulgated by the board of regents
     and existing at the time of his entrance into
     the school. The educational facilities of state-
     supported institutions of higher learning are at
     the disposal of the average student engaged in a
     particular field of study, and a standard of
     excellence which the average student in a particu-
     lar field of study is able to satisfy is not an
     unreasonable regulation.   It follows that a student
     who is unable to maintain and meet the standard
     of proficiency required is not entitled to continue
     to attend a state-supported institution, provided
     the standard required is not unreasonable and
     arbitrary.   A rule which refuses readmission to a
     student who has failed to meet a standard of pro-
     ficiency which the average student in the parti-
     cular field of study is able to satisfy, is not
     unreasonable, where the facilities of the school
     are inadequate to accommodate all who are eligible
     to apply therefor."

The Court   concluded:

          "The Legislature of this state having
     lodged the power with the board of regents to




                          - 2320-
                                                            ,~.~’
Hon. Frank C. 'Erwin, Page 9-'(M-466:,)                     .


     enact,,rules and'rggulations~as may be necessary       .,,,
     for the stqx!i?ssful management and governmentof       II
     the llniversity,t~they'shall have power to a,dopt
     such rules and to regulate the coUrse of ins:,truc-
     tion, and prescribe, 'by and with the advice,"of the,
     faculty, the books and authorities, used in .the
     sever,+3 ~,departments." That authority rests. w%th    ..;:
     the board .of regents and the faculty ag rovlded ~.i'~    .,
     ~$d~,i~~;t;te;'    .dnd,:$f 'a change ,or mod~ficaticn',. ,,~
                   n the rules and regulations,,.it is a ;
     matter for ,thecensider.ation of the Legislature.
     The'courfs will not interfere therewith in the
     absence of a clear showing that they'have acted
                   or have. abused the authority vested in
                  emphasss 'added).

          The: board of regents in awarding the d,egree o,f Doctor
of Philosophy based on the submission to and the approval bye a
faculty oommittes'of 'a dissertation exercised the,authority
vested in theboard. of regents and the faculty as provided
by statute. 'Foley v. Benedict supra. Accordingly, the
recipient of the degree has received an award in the nature of
a property'right tihjch in our opinion is protected~ by due
process.  The Legi,slature has not seen fit to prescribe an
administrative,,,,procedure
                          whereby degrees awarded students may
be cancelled: or rescinded ,by the administrative board,  In
the absence of such authority, it is our opinion that s:uch
degree can only be set aside or annulled by a Cour,tof competent
jurisdiction-rather than by an administrative decision.     However,
this does not preclude the University from taking the legal~'
position that by reason of the alleged fraud Cc will no longer
recognize the ,degree in question and insofar as it is
concerned has cancelled the same. yet the taking of s,uch,
position does not alter the legal rights of.the degre.e,recipient
nor have any binding legal effect as to third parties.

          In view of the foregoing disposition of'this,matter,
we shall defer answering the. second and third questions 'and
leave these for decision in a court of competent jurisdiction
in the event litigation is to be pursued.




                          -2321-
Hon. Frank C. Erwin, Page 10 (M-466)


                         SUMMARY
                         -----MT
          The Board of Regents of the University
     of Texas system does not have statutory authority
     to annul a degree previously conferred in
     the exercise of authority granted the board
     of regents and the faculty by the Legislature
     of the State of Texas. Such degree can only
     be set aside or annulled by a court of aompetant
     jurisdiction.   This opinion, however, is not
     to be interpreted to the effect that the Univer-
     sity is precluded from taking the legal position
     that the degree was fraudulently obtained and
     is cancelled insofar as the .University is con-
     cerned. 'The taking of ,such a'position, in itsetf "
     does not alter the legal ri,ghts of the recipient
     to the ,degree nor have any binding legal effect
     as to third parties.




                                       y General of Texas

Prepared by John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Sarah E. Phillips
James McCoy
Rick Fisher
Wardlow Lane

MEbE F. GRIFFIN
Staff Legal Assistant

HAWTHORNE PHILLIPS
Executive Assistant

NOLA WHITE
First Assistant




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