             THE     ATTOIZSEY         GENERAI.
                          OF   TEXAS


                          March 29, 1990



Mr. Kenneth S. Ashworth        Opinion No. JM-1153
Executive Director
Texas Higher Education         Re: Constitutionality of legis-
  Coordinating Board           lation creating Central Texas
P. 0. Box 12788                University (RQ-1861)
Austin, Texas 78711
Dear Mr. Ashworth:
     You ask about the constitutionality of a bill that
would, if certain conditions are met, create a four-year
institution of higher education in Killeen to be known as
Central Texas University.   Acts 1989, 71st Leg., ch. 1255,
at 5058 (new Educ. Code ch. 113) gmended bv Acts 1989, 71st
Leg., 1st C.S., ch. 37, at 104.      You suggest that the
creation of Central Texas University under that statute
would violate article VII, section 17, of the          Texas
Constitution because the     legislation was not     adopted
pursuant to a two-thirds vote of each house of           the
legislature.1 We conclude that your argument is based on a
misreading of article VII, section 17.
     In November 1984 the voters approved a constitutional
amendment that dealt mainly      with funding for     higher
education. H.J.R. 19, Acts 1983, 68th Leg., at 6701.     The
amendment added article VII, section 17,2 which created the
Higher Education Assistance Fund, a funding mechanism for


     1. House Bill 2853, which became chapter 113 of the
Education Code, was passed by the House of Representatives
on May 1, 1989, by a voice vote and by the Senate on May 23,
1989, by a vote of 23 yeas and 8 nays. H. J. of Tex., 71st
Leg., Reg. Sess. 1241 (1989); S. J. of Tex., 71st Leg., Reg.
Sess. 1866 (1989).
     2.  The previous article VII, section 17, was repealed
on Nov. 2, 1982, as proposed by H.J.R. 1, § 3, Acts 1982,
67th Leg., 2d C.S., at 52.
Mr. H. M. Daugherty, Jr. - Page 2   (JM-1153)




institutions of higher education that are not included in
the University of Texale;;ioexas     A&M Systems.   It also
revised article VII,                   to restructure   the
Permanent University Fund.    See            Public Notice,
Proposed Constitutional Amendments, November 6, 1984.
     you suggest that the     creation of Central    Texas
University in accordance with chapter 113 of the Education
Code would violate subsection (c) of article VII, section
17. Article VII, section 17, provides in part:
          (a) In the fiscal year beginning September
       1, 1985, and each fiscal year thereafter,
       there is hereby appropriated out of the first
       money coming into the state treasury not
       otherwise appropriated by the constitution




           (b)   The    funds  appropriated    under
        Subsection (a) of this section Shall be fey
                                  eliaible aaencies
                         of hiaher education (even
       though their naies may be changed):
           [List of 26 state universities]
           (c)  ,pursuant to a two-thirds vote of the
               iw of each house of the leaislature,
       institutions of hiaher education mav        be
       created at a later date bv aeneral law. and,
       Yhen created, such. an
                            .   institution shall be
       entitled to warticiwate      in the    fundinq
       provided bv this section if it is not created
       as a wart of The Universitv of Texas SY stem
       or The Texas A&M Universitv Svstem.         An
       &nstitution that is entitled to warticiwate
        n dedicated fundina wrovided bv Article VII,
       Section 18. f this constitution m v not be
       sntltled too wart iciwate    in thea fundinq
       provided bv this section.
          (d) In the year 1985 and every 10 years
       thereafter, the legislature or an agency
       designated by the legislature no later than
       August 31 of such year shall allocate by
       equitable formula the annual appropriations
       made under Subsection (a) of this section to
Mr. H. M. Daugherty, Jr. - Page 3   (JM-1153)




        the governing boards of &&g,.ible aaencies and
                                        .    (Emphasis
        added.)
You read subsection (c) as disallowing the creation of any
state university except by a two-thirds vote of each house
of the legislature. We think, however, that the context and
history of article VII, section 17, indicate that subsection
(c) is not an absolute limitation on the power of the
legislature to create institutions of higher education, but
rather is an eligibility standard for participation in the
fund established by article VII, section 17. See aenerallv
Attorney General Opinion V-31 (1947) (holding that under
article III, section 48, of the constitution the legislature
has power to provide for institutions of higher education
not mandated by article VII).
     The general subject matter of article VII, section 17,
is the Higher Education Assistance Fund.       See aenerally
Attorney General Opinion JM-999 (1988).       Subsection (a)
creates the fund: subsection      (b) lists the      existing
institutions eligible to participate in the fund; and
subsection (d) deals with the allocation of the fund among
eligible institutions. In that context, it makes sense to
read subsection (c) as setting an eligibility standard for
participation in the fund by newly created institutions of
higher education. &S Bradv V.     rooks , 89 S.W. 1052 (Tex.
1905) (constitution should be construed as understood by
average voter).
     Also, any voter     who actually     read House   Joint
Resolution 19 would have read the provisions governing the
Higher Education Assistance Fund in conjunction with the
proposed revision of article VII, section  18. The proposed
revision of article VII, section 18, contained the following
language as subsection (c):

          Pursuant to a two-thirds vote of the
       membership of each house of the legislature,
       institutions of higher edudation may       be
       created at a later date as part of The
       University of Texas System or The Texas A&M
       University System by general law, and, when
       created, such    an institution    shall   be
       entitled to participate     in the    funding
       provided by this section [the       Permanent
       University Fund] for the system in which it
       is created. An institution that is entitled




                              P. 6089
Mr. H. M. Daugherty, Jr. - Page 4   (JM-1153)




       to participate in dedicated funding provt;;:
       by Article    VII,   Section 17,    of
       constitution         not   be   entitled  to
       participate in %    funding provided by this
       ssction.
Subsection (c) of article VII, section 18, is less ambiguous
than subsection (c) of article VII, section 17: the former
clearly sets an eligibility standard for access to the
Permanent University Fund.   The fact that the subsections
regarding eligibility for the respective funds appear in
corresponding positions in sections 17 and 18 of article VII
indicates that the provisions      were intended to     have
equivalent effect.   More important, we think that voters
reading the entire text of House Joint Resolution 19 would
likely have interpreted the two subsections (c) as having
equivalent effect.
     The legislative history of article VII, section 17,
supports the view that subsection (c) sets a standard for
eligibility to participate in the fund. The two houses of
the legislature, being unable to agree on various points in
the amendment to be offered to the electorate, appointed a
conference committee to resolve their differences.       The
conference committee,    which   ultimately   produced. the
amendment, issued a report analyzing the house version, the
senate version, and its own version of the          proposed
amendment. In the report, the conference committee combined
subsection (c) with subsection (b) under the         heading
"Eligible Institutions."   The entry under that heading is
nThe 26 agencies and institutions listed [in subg;ztiz: (b)]
and any created at a later date with 2/3                 the
legislature." Conference Comm. Rep., H.J.R. 19, 68th Leg.
(1983).
     The Texas Legislative Council, which publishes reports
on proposed    constitutional amendments,    described   the
amendment as dedicating general revenue funds to be used for
certain purposes by the agencies and institutions listed in
subsection (b).   Tex. Leg. Council Info. Rep. No. 84-l:
Analyses of Proposed Constitutional Amendment Appearing on
the November 6, 1984, Ballot (Aug. i984). The report went
on to state:
           The legislature may add to the list of
        institutions by a two-thirds vote of the
        membership, except that institutions within
        The University of Texas System or The Texas
        A&M System may not be added.




                             D.   6090
Mr. H. M. Daugherty, Jr. - Page 5    (JM-1153)




     Neither the description     on the    ballot nor    the
explanatory statement prepared by the secretary of state in
regard to House Joint Resolution 19 contained any reference
to the provision in question.    sns: H.J.R. 19, 5 4, Acts
1983, 68th Leg., at 6712 (ballot description);        Public
Notice, Proposed Constitutional Amendments,     November  6,
1984. The omission of any such reference supports the view
that subsection (c) was not a significant new restriction on
the authority of the legislature, but rather a restriction
on eligibility for the newly created fund.
     Considering the    text    and the    context   of  the
constitutional amendment     in   question, and    also  the
explanatory information available to voters, we do not think
that voters would have interpreted House Joint Resolution 19
as restricting the legislature from creating an institution
of higher education that would not have access to the funds
created by article VII of the constitution.
                       SUMMARY
            Article VII, section 17, of the Texas
       Constitution does not prohibit the creation
       of Central Texas University in accordance
       with new chapter 113 of the,Education Code,
       as enacted by the 71st Legislature in the
       Regular and First Called Sessions.




                                   JIM     MATTOX         -
                                   Attorney General of Texas
MARY KELLER
First Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General




                              p. 6091
