                  December 9, 1952

Hon. J. W. Edgar          Opinion No. V-1544
Commissioner of Education
Texas Education Agency    Be: Authority of the Commis-
Austin, Texas                 sioner of Education to
                              conduct appellate review
                              in disputes involving
Dear Sir:                     junior college districts.
           In your request for an opinion from this office
you ask:
          "Does the Commissioner of Education
     have jurisdiction to hear appeals from
     decisions of the governing boards of
     junior colleges?"
          Section 4 of Article 28l5h, V.C.S., the junior
college district law, provides in part as follows:
          11
           . . 0 The said board of education of
     such junior college.distri&t, under the pro-
     visions 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 imposea 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."
           Section 5 of Article 2815h, V.C.S., reads as
follows:
          "The Board of Trustees'of Junior Col-
     lege Districts shall be governed in the
     ,establishment,management and control of
     the Junior College by the General Law govern-
     ing the ,establishment,management and control
     of Independent School District; in so far as
     the General Law is applicable.
                                                            ‘._



Hon. J. W. Edgar, page 2 (V-1544)


          Section 1 of Article 2654-5, V.C.S., one of
the Cilmer-Aikin laws which created the Texas Central
Education Agency, provides in part as follows:
          ?fhere is hereby established the posi-
     tion of State Commissioner of Education. All
     powers and duties heretofore vested in the
     State Superintendent of Public 'Instruction
     shall be discharged by the Commissioner, pro-
     vided said powers and duties are not in con-
     flict with the provisions of this Act. O . *'
           Article 2656, V.C.S., provides in part:
         ?l%e State Superintendent shall be
    charged with the administration of the school
    laws and a general superintendency of the
    business relating to the public schools of
    the State, and he shall have printed for
    general ~distributionsuch number of copies of
    school laws as the State Board of Education
    may determine. He shall hear and determine
    all appeals from the rulings and decisions
    of subordinate school officers, and all such
    officers and teachers shall conform to his
    decisions. Appeal shall always be from his
    rulings to the State Board."
           Section 1 of Article 2654-7, V.C.S., reads as
follows~
         "Parties having any matter of dispute
    among~them arising under provisions of the
    school laws of Texas, or any person or
    parties aggrieved by the actions or deci-
    sions of any Board of Trustees or Board of
    Education, may appeal in writing to the Com-
    missioner of Education who, after due notice
    to the parties interested, shall examine in
    a hearing and render a judgment without cost
    to the parties involved. However, nothing
    contained in this Section shall deprive any
    party of a legal remedy."
           Section 2 of Article 2654-1, V.C.S., provides:
         "The Central Education Agency shall
    exercise, under the Acts of the Legisla-
    ture, general control of the system of public
Hon. J. W. Edgar, page 3 (V-1544)


       education at the State level.
       with persons under twentv-one (21
                                       "7 vears  of
                                           activity
       age, which is carried on-within.the"State by
       other State or Federal Agencies, exce t hi h-
       er education in approved colleges,-5iih%+
       its educational asuects be subject to the
       rules -and regulations of the C&tral Educa-
       tion Agency. (Emphasis added.),
            Prior to.the enactment of Article 2654-7,
  Article 2656 had been construed as making an appeal to
  the school authorit1es.a condition precedent to a
  right of any party complaining of the decision of a
  oublic school board to bring the matter in controversv
  berore the courts. Trustees  of Chilicothe ,Independent
  School Dist.,v. Dudney 142 S W 1007 (Tex.Civ.App.
  1911); Warren v0 Sange: Indeplndent School Dist,, 116
  Tex. 183 288 S.W. 1 9 (1926)*'Huntington Independent
  School Dist, v. Scro~ains. 9 i.'W,2d171 (Tex.Civ.ADv.
       . However,.I meen
   92tsl                       impliedly held that the
  governing bodies of institutions of higher learning were
  not within the term "subordinate school officers',' in
  Article 2656 and an appeal from their decisions could
  be taken directly to the courts. Foley v. Benedict, 122
  Tex. 193, 55 S.W.2d 805 (1932). In Williams v. White,
  223 S.W.2d 278, 281 (Tex.Civ.App. 1949 error ref.)
  the court held that junior colleges art institution:
  of higher learning and are not part of the public free
  school system, saying:
            "Appellant suggests that the provision
       relating to the formation of districts em-
       bracing 'parts of two or more counties' was
       adopted in 1909 to meet the decision of the
       Supreme Court in Parks v. West, 102 Tex. 11,
       111 S.W. 726; Id., Tex.Civ.App., 113 S.W.
       529, wherein it was held that the Legisla-
       ture, under the Constitution as it then ex-
       isted, could not create a district embracing
       territory lying in more than one county. We
       think this is correct, but the Constitution
       seems to make a distinction between the public
       free schools (the first seven sections of
       Article 7 of the Constitution) and other types
       of educational institutions such as colleges
       and universities which are above the hdgh ~._
       school level of difficulty and generally
       referred to as institutions of higher learning.
       This distinction seems to have been recognized
Hon. J. W. Edgar, page 4 (V-1544)


    by the legislative and executive branches of
    our government as pointed out and discussed
    by Chief Justice Cureton in the case of
    Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31.
    We regard the case cited as authority for the
    proposition that the asserted limitation of
    Article, 7 8 3, of the Constitution is not
    applicable to junior colleges."
It would follow from this holding that appellate juris-
diction of the State Superintendent of Public Instruc-
tion under Article 2656 did not extend to rulings of
junior college governing boards.
          There has not been a judicial determination of
whether Article 2654-7 has changed the former rule under
Article 2656 so as to give an aggrieved party a chocie
of appealing to the Commissioner of Education or of ap-
pealing directly to a court. Be that as it may, we are
of the opinion that neither Article 2654-T nor any other
statutory provision has increased the Commissioner's
jurisdiction to include review of decisions of governing
bodies of junior colleges. In our opinion, the appellate
jurisdiction conferred in Article 2654-7 is substantially
the same as that theretofore vested in the State Superin-
tendent under Article 2656 and is limited to disputes
and controversies in matters over which he has general
administrative control. While the Commissioner of Educa-
tion and the Central Education Agency, of which he is
a part, perform certain specific duties with respect to
publicly supported junior colleges, they have no general
jurisdiction or supervision over activities of junior
colleges as they have over the activities of the public
free schools. This lack of general jurisdiction over
institutions of higher learning is recognized in Section
2 of Article 2654-1, which expressly excepts their
activities from the Central Education Agency's general
control of education activities affecting persons under
21 years old. Therefore, it is our opinion that the
Commissioner ofEducation does not have jurisdiction to
hear appeals from the decisions of the governing boards
of junior colleges,
Hon. J. W. Edgar,   Page 5 (V-1544)


                       SUMMARY
          The Commissioner of Educqtion has no
     jurisdiction to hear appeals from the deal-
     sions of the governing boards of junior
     colleges.
                                 Yours very truly,

APPROVED:                          PRICB DANIEL
                                 Attorney General
J. C. Davis, Jr.
County Affairs Division
Mary Kate Wall
Reviewing Assistant              m&e+
                                        Assistant
Charles D. Mathews
First Assistant
BA:am
