                   E        ORNEY      @;ENEKRI,
                          OPTEXAS




Dr. E. N. Jones, President           Opinion No. WW- 334
Texas Technological College
Lubbock, Texas                       Re::Whether Texas Technologi-
                                         cal College may present
                                         commercial television pro-
                                         grams should the Federal
                                         Communications Commis-
                                         sion grant a television
                                         channel for use by the
Dear Dr. Jones:                          College.
         We quote from your request for an opinion as follows:
              "In your opinion No, WW-5 under date of
         Januarv 22, 1957, you ruled that:
              "Yhe Board of Directors of Texas Tech-
               nological College has the authority to
               engage in educational television broad-
               casting on a non-commercial basis pro-
               vided that said Board, in the exercise
               of sound discretion, determines that
               such activity is reasonably necessary
               for the accomplishment of the statutory
               purposes of the college and within the
               legitimate objects of its creation.'
                  "Also, the opinion contained the following:
              "'Since the question is not raised by
              your inquiry, this opinion shall not be
              construed as dealing with the authority
              of the college to engage in any type of
              television broadcasting on a commercial
              basis, in whole or in part s , .I
               "It has now developed that there is need for
          an opinion from you on the question of whether or
          not Texas Technological College is empowered under
          its charter to present commercl.altelevision pro-
          grams should the Federal Communications Comrnis-
          sion grant a television channel for use by the
          College,
Dr. E. N. Jones, Page 2.   (m-334)


             "From the tenor of your opinion No. WW-5
         and the cases cited therein, it would appear
         that the primary purpose of a television chan-
         nel for the College must necessarily be educa-
         tional in nature. If a television channel
         should be maintained by Texas Technological
         College and primarily devoted to educational
         purposes, would this prevent incidental com-
                      amming over facilities of the
         ~~~~~~~$?-"@-

          Attorney Qeneral's Opinion WW-5 (1957) recognized
the authority of Texas Technological College to engage in
educational television broadcasting on a non-commercial basis
provided the Board of Directors of the College, in the exer-
cise of sound discretion, determines that such activity is
reasonably necessary for the accomplishment of the statutory
purposes of the College and within the legitimate objects of
itscreation.   It was also pointed out in the foregoing opin-
ion that a college or university will ordinarily be accorded
the right to perform acts incidental to its main purpose, al-
though it will be denied the right to perform acts not reason-
ably incidental. The Legislature has seen fit to vest consid-
erable discretion in the governing boards of the various state
institutions of higher learning in determining what activities
come within the statutory purposes of such institutions. The
Board's determination is final except where it is made to appear
that its action constitutes a clear abuse of discretion.
          An Attorney General's letter opinion, dated January
27, 1948, addressed to Honorable Frank C. Smith, President of
the Board of Directors of Texas College of Arts and Industries,
upheld the right of that institution to permit the installation
and operation of a broadcasting studio on the College campus.
In marking the limits of such authority, the opinion said:
               "Thus, your Board is not authorized to
          permit the construction on the campus of a
          broadcasting studio to be used primarily for
          commercial purposes, with only incidental
          benefits to the college. The determination
          of whether the proposed installation in ques-
          tion meets the statutory requirements hereln-
          before set out is a matter within the sound
          discretion of your board."
          Clearly, no agency of the state, which includes
Texas Technological College, has authority to engage in a
purely commercial undertaking for revenue raising purposes
unless authority therefor exists in the Constitution or statutes
i. _,   _




Dr. E. N. Jones, page 3   (WW-334)



of the state. This does not mean, however, that an authorized
undertaking must be absolutely devoid of any commercial aspects,
or that an authorized activity is rendered unauthorized because
it incidentally yields revenue from its normal operations. The
undertaking becomes objectionable only when the production of
revenue becomes more than an incidental part of such undertaking.
Southwestern Broadcast Co. v. Oil Center Broadcast Co., (Civ.App.)
21o-s.w.
          The acceptance of commercially sponsored programs
enables the student to acquaint himself with this vital aspect
of the Television Industrv, From a legal standpoint, it would
appear no more objectionable than for the College newspaper
to solicit and accept advertising for its pages. The activity,
in each instance, finds legal justification in the purposes to
be served. When the activity bears no relationship to such
authorized purposes, it becomes unauthorized.
          You are accordingly advised that it is our opinion
that should the Federal Communications Commission grant a
television channel for use by Texas Technological College,
that said channel may accept, under state laws, commercially
sponsored programs provided that the Board of Directors of
the College, in the exercise of sound discretion, determine
that such programs have a reasonable relationship to the
authorized purposes of said station and to the statutory pur-
poses of the college.




                          SUMMARY


               Should the Federal Communications
               Commission grant a television chan-
               nel for use by Texas Technological
               College, said channel may accept
               under state laws, commercially
               sponsored programs, provided the
               Board of Directors of the College,
               in the exercise of sound discre-
               tion, determines that such programs
Dr. E. N. Jones, page 4   (WW-3%)



               have a reasonable relationship to the
               authorized purposes of said station,
               and to the statutory purposes of the
               college.
                                Yours    very   truly,
                                WILL WILSON
                                Attorney General of Texas
                                        :-
                                    Lo.
                                By ~ < <
                                        Leonard Passmore
LP:zt                                   Assistant


APPROVED:
OPINION COMMITTEE
Ceo, P. Blackburn, Chairman
J. C. Davis, Jr.
John H. Minton, Jr.
John Reeves
REVIEWED FOR THE ATTORNEY GENERAL

By:   James N. Ludlum
