Honorable H. C. Heldenfels          OpiniOn NO. C-525
President of the Board
The Texas A & M University System   Re: Coeducational status of
College Station, Texas                  Texas A & M University.
Dear Mr. Heldenfels:
         Your request for an opinion of this office concerns
the policy of the Board of~'Directorsof the Texas A & M Uni-
versity System in allowing wives and daughters of staff mem-
ber8,and students and widows and daughters of deceased staff
members to enter the undergraduate day school. You seek
interpretation in the light of the Federal Civil Rights Act
of 1964 and in the light of the equal rights (equal protec-
tion) provisions of the State and Federal Constitutions.
         Title IV of the Civil Rights Act of 1964 pertains
to desegregation of public education. Section 410 provides:
             "Nothing in this title shall prohibit
         classification and assignment for reasons
         other than race, color, religion, OP na-
         tional origini"
         Although the privilege of admlsslon to a publicly
supported Institution is a clvll right, in view of the ex-
press provisions above quoted, you are advised that the Civil
Right8 Act of 1964 does not require Texas A & M University to
admit female students.
         In order to ascertain your con8titutlonal position
we must first determine the status of the rule adopted by
the Board of Directors. In Foley v. Benedict, 122 Tex. 193,
55 S.W.26 805 (1932), speaking of the power8 of the Board of
Regent8 of the University of Texas, the Supreme Court of
Texas stated:
               II   Since the board 'of regents ex-
         ercises'delegated powers, its rule8 are of
         the 8ame force a8 would be a like enactment
         of the Legl8lature, and its official inter-
         pretation placed upon the rule so enacted
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Honorable H. C. Heldenfels, page 2 (C-525)


         becomes a part of the rule. West Texas Com-
         press & Warehouse Co. v. R. Co. (Tex.Com.
         App.) 15 S.W.(2d) 558,560.”
         This case goes on to provide:
                    The Legislature of this state not
         having Provided who shall be admitted to the
         University, and having delegated the power to
         make rules and regulations necessary to the
         government of the University, to the board of
         regents, they are invested with the power of
         determining what classes of persons shall be
         admitted to the University, provided that the
         rules and regulation8 in that regard must be
         reasonable and,not arbitrary. . . So the courts
         are usually dialnclined to interfere with regu-
         lations adopted by school boards and they will
         not consider whether the regulations are wise
         or expedient, but merely whether they are a
         reasonable exercise of power and discretion
         of the board. . . .'I(Emphasis added.)
          Next we must determine the class to whom the rules ap-
PlY.   Foley v. Benedict, ibid, states:
             "A student who is admitted to the Uni-
         versity receives the privilege of attending
         that institution subject to the reasonable
         rules and regulations promulgated b th
         board of regent8 existing at the tige 0:
         his entrance into the school. The educa-
         tional facilities of state-supported instl-
         tutlons of higher learning are at the dis-
         posal of the average student engaged in a
         particular field of study, and a standard
         of excellence which the average student in
         a particular field of etudy is able to
         satisfy is not an unreasonable regulation. .
         . .' (Emphasis added.)
         Hence we see that the right to attend a school attaches
to the student and any classification established must be based
upon the qualification of the student and not some person to
whom the student may be related by affinity or consanguinity.
         The authority of the Board of Director8 to exclude
female student8 from TeXa8 A & M University is governed by

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Honorable H. C. Heldenfels, Page 3 (C-525)


the principles of law announced In Heaton v. Bristol, 317 S.
W.2d 86 (Tex.Clv.App. 1958, error ref.) cert.den., app.dism.,
79 S.Ct. 802, 359 U.S. 230, reh.den. 70 S.Ct. 1123, 359 U.S.
999, and Allred v. Heaton, 336 S.W.2d 251 (Tex.Civ.App.,
error ref., n.r.e.) cert.dism., app.den. 81 S.Ct. 293, 364
U.S. 517, reh.den. 81 S.Ct. 459, 364 U.S. 944. It is clear
that the Board of Directors of the Texas A & M University has
the right, at any time, to cause the student body at the Uni-
versity to be either all male or fully coeducational.
         The present policy of the Board of exclusion of stu-
dent applicants for the sole reason that said applicants are
not wives or daughters ofaff    members or students, OP widows
or daughters of deceased staff members, is, in our opinion,
discriminatory and an unreasonable class distinction. There
may be other facts and reason8 for the limited class dlstinc-
tion that have not been called to our attention.
         In undertaking to determine whether or not the Board
of Directors ha8 the authority to establish a limited classi-
fication of females who shall be eligible to axtend Texas
A & M University, It would be necessary to have a fact deter-
mination on which to base the underlying rules for such classl-
flcatlon. This is a function which can only be performed in a
court of law. The Attorney General'8 office does not have
available to it any method of fact determination. (See at-
tached copy of Opinion Request Procedure for State Officers,
Agencies, Boards and Departments.) We can, therefore, only
furnish you with the guiding principles of law upon the ba8iS
of which you may make the initial fact finding.
         The policy of admitting female student8 on a competi-
tive ba8iS to the graduate school or to courses not offered in
any other state-supported Institution (such as veterinary med-
icine) in no way affects the principles enunciated in this
opinion.
         In view of the recent decision of the Supreme Court
of Texas In Texas State Board of Examiners in Optometry v.
                        b5), an applicant for admlsslon to
  e Texas
i?iP  388 A & M University
          s*w*2d 4oy (lY   who Is denied admission by virtue
of an order of the Board of Directors ha8 the burden of show-
ing that the administrative order does not have reasonable
support In substantial evidence.
         Article 1, Section 3 of the Texas Constitution pro-
vides:
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Honorable H. C. Heldenfels, Page 4 (C-525)


             "All free men, when they form a social
         compact, have equal rights, and no man, or
         set of men, is entitled to exclusive sepa-
         rate public emoluments, or privileges, but
         in consideration of public services.”
         Article 1, Section 19, says:
            "No citizen of this State shall be de-
        prived of life, liberty, property, privilege8
        or immunities, or in any manner disfranchised,
        except by the due course of the law of the
        land;" -
         Speaking of the Issues of constitutional validity of
a statute in the light of these two provisions, the Supreme
Court of this State ha8 8aid:
             "We recognize that the test is whether
        there 18 any basis for the cla8slfication
        which could have seemed reasonable to the
        Leglelature. . .Before we may strlke,lt down
        it must appear that there Is no reasonable
        relationship between the classes created and
        the Dulpoaes to be accomDlished or the evils
        to be prevented." San Antonio Retail Qrocers
        v. Lafferty, 156 Tex. fzi14917 5'16 ?FJ? s W
        ?.?d
           613, 1515-816(1957): '      -   '      ' '
         The constitutional purpose of Texas A & M University
is set forth in the first sentence of Article 7, Section 13 of
the Texas Constitution:
            "The Agricultural and Mechanical College
        of Texas, established by an Act of the Legls-
        lature passed April 17th, 1871, located in
        the county of Brazos, is hereby made, and
        constituted a Branch of the University of
        Texas, for instruction In Agriculture, the
        Mechanic Arts, and the Natural Sciences con-
        nected therewith. . . .'I
The Legislature has defined this constitutional object by the
enactment of Article 2608, Vernon's Civil Statutes, which read8
as fOllOW8:
             “The leading object of this College shall
         be without excluding other scientific and

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Honorable H. C. Heldenfels, Page 5 (C-525)


           classical studies, and Including military
           tactics, to,,teachsuch branches of learning
           as are related to agriculture and the me-
           chanical arts, in such manner as the legis-
           lature may prescribe, in order to promote
           the liberal and practical education of the
           industrial classes in the several pursuit8
           and professions in life.”
         In Linen Service Corporation v. Abllene, 169 S.W.2d
497 (Tex.Civ.App. 1943, error ref.),the court neld void a city or-
dinance imposing a license fee on suppliers of linen service
if the washing was done outside the city limits, saying:
              “A linen service company, even though a
          resident of Abilene, if it has Its laundering,
          washing or cleaning dones outaide said city. :,
          may not, unless it takes out a license, de-
          liver Its laundered, washed or cleaned linens,
          towels, cloths or clothes for use in said city;
          ,therebydiscriminating against It in favor of
          persons, firms or corporations engaged In the
          same business and differing only In the fact
          that they have their linens, towels, cloths,
          or clothes laundered, washed or cleaned in-
          dde said city.
               “Corpus Jurls Secundum under the head of
           tDlscrlmination Based on Residence or Citizen-
           ship’ and not exactly apropos to that subject,
           butnone the less true, say8 that ‘Attempts
           to distinguish between persons engaged in the
           same business merely on the basis of the lo-
           catfon of their business houses: is generally
           held unconstitutional as a denial of the equal
           p~rotectionof the laws; and this rule applies
           even where the discrimination operated,only
           within the limits of a municipality.” 169 S,
           W.&i at 500.
           The same sort of vice has been recognized and struck
down by   the Court of Criminal Appeals.
         In Ex parte Dreibelbis, 133 Tex.Crlm. 83, 109 S.W.2d
476, 497 (193)   the Court of Criminal Appeals, in holding in-
valid~a kicensihg ordinance imposing a license fee on a”tempo-
rary merchant” but exempting those in business in the city for
a year OF more, said:

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Honorable H. C. Heldenfels, page 6 (C-525)


             “That ,the ordinance in question lsdls-
         crlmlnatory Is clearly demonstrated by the
         fact that a person who has been engaged in
         one of the designated businesses In said city
         for a year or more Is exempt from the,payment
         of the tax, while another person who has been
         so engaged for such length of time 1s subject
         to the payment of the tax, and, for his failure
         to do 80, punishable by fine, although both
         parties may be engaged in the same kind of
         business, carrying the aame kind and the same
         amount of merchandise. If this Is not dlscrlm-
         inatlon, then what Is It."
         The question of whether or not a student can acquire
a derivative legal right by reason of parentage or marriage Is
disposed of by the following statement In 12 Tex.Jur. 453,
Constitutional Law, Sec. 103:
             "In prohibiting exclusive separate public
         emolument8 or privileges except in consideration
         of public services the constitution declares the
         principle of equality in political rights and a
         denial of title to individual privileges, honors,
         and distinctions except for public services. The
         provision is directed against superiority of
         personal and political rights, distinctions of
         rank, birth, or station; and all claims of emol-
         uments by any man or Set of men over any other
         citizen. It declaree that honors, emoluments,
         and privileges of a personal and political
         character are alike free and open to all the
         citizens of the state."
         Ordinarily there is a presumption of constitutionality
when an attack   Is made upon a statute, but the right in question
here, i.e.,   the  right to attend a state-supported Institution
of higher education, 18 a civil right (although not covered spe-
cifically by the Civil Right8 Act of 1964),.    The Supreme Court
of the United State8 ha8 said:
             "There is no presumption in favor of the
         con8titutlonallty of any regulation involving
         civil rights." Schneider v. State of New
         Jersey, 308 U.S.m-(rV59).
         Perhaps the best exposition of the lnabil$ty to create
arbitrary class legislation is contained In Ex parte Smythe, 28

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Honorable H. C. Heldenfels, page 7 (C-525)


S.W.2d 161 (Tex.Crlm. 1930), where question was raised as to
the right of the City of Marshall to make it unlawful for a
person-engaged in the bUSine88 of lending and collecting money,
from transacting any part of that business on the streets of
that city. The Court pointed out that the grocer could col-
lect his bill on the city street8 while the banker mlght make
no mention of a past due note.
         In view of the foregoing, there is a serious legal
quastion as to whether or not, on a trial in court, we could
successfully defend an attack upon the present classification
established by the Board of Directors for admission of female
students as being a reasonable classification. We would like
to point,out, however, that even if this cla88lflcatlon were
SUCCessfUlIy attacked in court the Board of Directors would
still have full authority to make Texas A & M University either
all,male or completely coeducstlonal withoutany prejudice to
such a,uthorityhaving arisen from the present system of limited
cla8slflcation.
                          SUMMARY
         1;   The Civil Rights Act of 1964 Is not appli-
              cable to rules and regulations of Texas A
              & M University Insofar a8 discrimination
              by sex is concerned.
         24   The Board of Directors of Texas A & M Unl-
              versity ha8 the unquestioned right to Issue
              rules and regulations making the University
              either all male students or all coeducatlon-
              al.’

         3.   The present policy of the Board of exclusion
              of student applicant8 for the sole reason
              that said applicant8 are not wm    or daugh-
              ters of staff members or students, or widows
              or daughters of deceased staff membera, is,
              In our opinion, discriminatory and an un-
              reasonable class distinction.
                            Yours very truly,
                            WAGGONER CARR
                            Attorney General of Texas




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Honorable H. C, Heldenfels, page 8 (C-525)




                                Assistant Attorney   General


APPROVED:
OPINION COMI!lTEE
W. V. Geppert, Chairman
Sam Kelley
James Strook
Vlnce Taylqr
Jerry B-rock
APPROVED FORTHE ATTORN?ZYGENERAL
B9: T, B. Wright




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                            .


Honorable         H.   C.       Heldenfels,         page      9    (C-525)           Austin,    Texas
                                                                                     January     28, 1963

                                 OPINION      REQUEST             PROCEDURE

To District       and County          Attorneys     and County          Auditors   of Texas:

        This memorandum      details   the opinion    request    procedure    of the Attor-
ney General’s    Office,  and it is distributed    to facilitate    a mutual   understand-
ing between   the Attorney    General    and those officers      entitled  to secure    his
opinions.

         1. County Auditors           opinion   requests    should be submitted         to the County
or   District     Attorney     in accordance      With the provisions      of Article      334 of Ver-
non’s Civil Statutes.           If the County or District        Attorney   fails    or refuses     to
answer       the Auditor’s      request,    or if the County Auditor,       County Judge or any
officer     affected     by the opinion disagrees        with the County or District           Attor-
ney’s    opinion,      or believes     that it is in conflict    with former      opinions    of the
Attorney       General’s     Office,    then this department       will accept     an opinion     re-
quest direct        from the County Auditor.

          2. County and District             Attorneys     and Criminal        District    Attorneys
should request          opinions    in accordance        with Article       4399 of Vernon’s          Civil
Statutes.       The request       should give a complete            statement      of facts    rather      than
a hypothetical         question,    and the County or District             Attorney     should not sub-
mit the request          if the same      is involved     in either     civil or criminal        litigation.
Further,      the officer      requesting       the opinion    should file a complete            brief with
his request,        giving the conclusions           of the briefer      and the reasons         which
support     his views.         If the County or District          Attorney      briefs    the questions
very carefully         at the local level,        he will resolve       a multitude      of problems
without     calling     on this office      for aid and assistance.           However,       if his opin-
ion does not settle          the question,       then his brief will be of invaluable              assist-
ance to the Attorney            General      and the members          of his staff.

         3. Regardless           of whether     the opinion     request    is submitted     by the
County Attorney,           District    Attorney,    Criminal      District    Attorney    or County
Auditor,     it must clearly         appear    that the requester        has an official    interest   in
the subject       matter     involved    and that the official       or officials     are not just ask-
ing the question         for their    own information         and enlightenment.         Questions   in-
volving    cities    OP independent         school  districts     and the like should not be sub-
mitted    unless     they concern        a subject   covered       by the jurisdiction     and duties
of the office      of the official      submitting    the question.

         This practice        will enable         our office       to render     quicker  and better    ser-
vice   on legitimate        requests    for       opinions,       and your     full and complete     coopera-
tion   will be greatly       appreciated.




                                                                                   General     of Texas
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