The Honorable Bevington Reed        Opinion No. H-771
Commissioner
Coordinating Board                  Re: Authority of out-of-
Texas College and University        state educational institu-
     System                         tions to conduct courses
P. 0. Box 12788, Capitol Station    leading to degrees without
Austin, Texas 78711                 the permission of the
                                    Coordinating Board.
Dear Commissioner Reed:
     You have requested our opinion regarding whether out-
of-state institutions of higher education may conduct courses
at United States military bases located in the State of
Texas without the express permission of the Coordinating
Board. Section 61.402 of the Education Code, enacted in
1975, provides:
          Public institutions of higher education
          established outside the boundaries of the
          State of Texas must have the approval of
          the coordinating board before offering a
          course or a grouping of courses within
          the State of Texas.
A similar provision requires Coordinating Board approval for
private out-of-state institutions. Education Code 9 61.301
et seq.
     The Legislature has recognized the right of the United
States to the possession of certain lands within the geograph-
ical boundaries of the State of Texas. V.T.C.S. art. 5242.




                          p. 3256
The Honorable Bevington Reed - page 2 (H-771)


The Governor is authorized to cede to the United States
exclusive jurisdiction over such lands, provided that cession
is made upon the express condition that the State shall
retain concurrent jurisdiction with regard to the execution
of civil and criminal process. V.T.C.S. art. 5247. Since
you have not limited your inquiry to specific military
bases, we will first assume that the federal government has
obtained exclusive jurisdiction over the geographical area
in which the courses are conducted, subject to the proviso
of article 5247.

     In Pacific Coast Dairy, Inc. v. Department of Agriculture
 of California, 318 U.S. 285 294 (1943) the United States
Supreme Court held that a California milk'control statute
enacted after the federal government had acquired juris-
diction of a military enclave was without force within the
enclave. In James Stewart & Co. v. Sadrakula, 309 U.S. 94
(1940), the Court reached a similar result:
          Since only the law in effect at the time
          of the transfer of jurisdiction continues
          in force, future statutes of the state
          are not a part of the body of laws in
          the ceded area. 309 U.S. at 100.

See also Murray v.
                -- Joe Gerrick & Co., 291 U.S. 315 (1934).
     Texas courts have recognized,this federal prerogative.
                                       of El Paso v. Central
                                      Civ.App.-Austin 1952)I
                                        the court quoted a
                                      ihich found that "the
                                      e jurisdiction for
school purposes over a military reservation owned by the
United States government and . . . our various statutes
regulating school affairs generally have been superseded in
such territory by such provisions as the Congress of the
United States may make. . . ." 247 S.W.2d at 605. In Adams
v. Calvert, 396 S.W.2d 948, 951-52 (Tex. Sup. 19651, the
sxas Supreme Court declared that, where~the State had ceded
exclusive jurisdiction over certain lands to the United
States, reserving only the jurisdiction to execute judicial
process thereon, the State was without authority to tax




                         p. 3257
The Honorable Bevington Reed - page 3 (H-771)


privately owned coin-operated machines located on those
lands. And in Attorney General Opinion O-4764 (1942), this
office held that, as to persons practicing dentistry under
the order and direction of the commanding officer of an
alien detention camp maintained by the federal government,
State regulations regarding the practice of dentistry are
not applicable even though the United States has not acquired
exclusive jurisdiction over the federal enclave.
     The substantial weight of authority thus indicates that
the Coordinating Board does not have jurisdiction to regulate
the activities of out-of-state educational institutions
operating upon lands over which the United States has pre-
viously o,btainedexclusive jurisdiction.~ As a result, it is
our opinion that, in such areas, out-of-state'institutions
of higher education may conduct courses at United States
military bases without the.express permission of the Coordin-
ating Board. Even though such courses are offered to dependents
of military personnel or to civilians not related to military
personnel, we believe that, so long as the United States
exercises exclusive jurisdictionsover a particular geograph-
ical area, the State is without authority to regulate the
educational acti~vitiesconducted within that area.
     As to military bases over which the United States has
not obtained exclusive jurisdiction, the-answer to your
question depends upon the terms of the deed by which the
land was ceded to the federal government. As the Texas
Supreme Court observed in Adams v. Calvert, supra:
          By the federal law the Governor could
          preserve~a11 jurisdiction over the lands
          consistentwith the federal uses, but no
          more. and bv Article 5247 the Governor
          was required to reserve on1 jurisdiction
          to execute state judiciaI?process anywhere
          on the lands. There is no sound reason
          for saying that the authority conferred
          on the Governor by Art. 5241 to cede
          exclusive jurisdiction does not include
          authority to cede a lesser jurisdiction.




                          p. 3258
The Honorable Bevington Reed - page 4 (H-771)


         We hold, therefore, that in the area
         between the maximum permitted by federal
         law and the minimum required by Article
         5241, the extent of jurisdiction reserved
         to the State over lands acquired by the
         United States with the consent given in
         Article 5242 is, in the absence of other
         limitations, a matter for negotiation by
         the Governor and is settled and concluded
         by his deed of cession. . . . 396
         S.W.Zd at 950.
See Attorney General Opinion H-110 (1973).
-
     In order, however, for any limitation contained in the
cession agreement to apply~to a subsequently enacted statute,
the agreement would have to specify that the cession was
made subject to "any statute hereinafter adopted by the
Legislature" or to some similar condition. Absent such a
broad reservation of State jurisdiction in the cession
agreement, no statute enacted thereafter could be deemed to
be included therein. Thus, we conclude that the Coordinating
Board may not regulate the activities of out-of-state educa-
tional institutions operating on military bases over which
the United States has not obtained exclusive jurisdiction
unless the deed of cession to the federal'government specified
that the cession was made subject to any subsequent act of
the Legislature.
                      SUMMARY
          In areas where the~United States has
          obtained exclusive jurisdiction, out-of-
          state institutions of higher education
          may conduct courses at federal military
          bases without the express permission of
          the Coordinating Board. On military
          bases over which the United States has




                        p. 3259
The Honorable Bevington Reed - page 5 (H-771)


            not acquired exclusive jurisdiction, the
            Coordinating Board is nevertheless
            without authority to regulate the activities
            of such educational institutions unless
            the deed of cession to the federal
            government specified that the cession
            was made subject to any subsequent act
            of the Legislature.
                                Very truly yours,



                                        General of Texas
APPROVED:




C. ROBERT HEATH, Chairman
Opinion Committee

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