   WI&     WILSON
A-l-rORNEY    GENERAI.
                                   July 30, 1962

        Ron. J. W. Edgar
        State Commissioner of Education
        Texas Education Agency
        Austin, Texas
                          Opinion No. biti-1408
                             Re:   Whether Section 2 of Article 2815k-3
                                   of Vernon's Civil Statutes prohibits
                                   use of a junior college district
                                   appropriation to defray any costs of
                                   students who are in their third and
                                   fourth collegiate years, and related
                                   questions.
        Dear Mr. Edgar:
                  We are in receipt of your request for opinion on the
        above captioned question. Your letter informs us that a junior
        college district in Texas is contemplating calling an election
        pursuant to Article 2815k-3 of Vernon's Civil Statutes to au-
        thorize the governing body of such district to offer and con-
        duct classes in the third and fourth collegiate years and to
        award baccalaureate degrees in those fields not specifically
        prohibited.
                     Article 2815’k-3 states in part as follows:
                   "Section 1. Any junior college district in
              this State, situated entirely or in part within
              the boundaries of any city having a population in
              excess of one hundred sixty thousand (160,000)
              according to the last preceding decennial Federal
              Census and having less than two (2) colleges or
              universities offering baccalaureate degrees within
              the boundaries of any such city, is herebv author-
              &&,   subject to the other provisions of this Act,
              to
              of   fe                        ih      b re ir
              or accented of wtes       for baccalaureate decrees
              ti the fields of liberal arts. buess    tr '
              bather education and wit    during their A%?!%?&&
              &or    Years, and to award such degrees, to the ex-
              tent that the governing body of any such district
              shall deem advisable, provided nothing in this Act
              shall be construed to permit or authorize any jun-
              ior college district in this State which elects to
                                                           ’   .




Hon. J. W. Edgar, page 2   (~~-1408)


     take advantage of this Act to award degrees in
     the fields of engineering law, medicine, agri-
     culture, journalism, arch1tecture, or pharmacy.
           Wet. 2. No funds heretofore or hereafter
     aupronriated by the Legislature of this State for
     pavment to anv such junior college district shall
     be used to defrav nv of the costs of teaching or
     &j nerwise de3fravi.n:the costs of students who are
     in their thitrd and fourth colleriate Years. Fur-
     thermore any college made a senior college under
     the authority of this Act shall be prohibited from
     receiving state aid for junior and senior level
     work for twenty (20) years from the date of the
     passage of this Act.
          "Sec. 3. The power and authority herein
     granted shall not apply or be available to any
     junior college district unless and until the gov-
     erning board of such district is authorized to pro-
     ceed under the terms hereof at an election held for
     such purpose. Such election shall be held in the
     following manner: the governing board of such dis-
     trict shall without the prerequisite of the filing
     of any petition, order an election to be held in
     such junior college district, such election to be
     held not less than twenty (20) days nor more than
     thirty (30) days from the date of said order call-
     ing such election, and such governing board shall
     give public notice of such election by publishing
     notice of such election in a newspaper of general
     circulation in such district at least once a week
     for a period of three (3) consecutive weeks be-
     tween the date of the order calling the election
     and the date of the election. Onlv those legallv
     cualified voters who have duly rendered property
     for taxation in such junior colleeredistrict shall
     be oermitted to vote. Except as modified herein,
     such election shall be conducted and canvassed in
     accordance with the General Laws relative to elec-
     tions in Independent School Districts. If a maior-
     itv of the votes cast at uch election favor the
     exercise of the Dower herzin aranted. and onlv in
     such event. the governing bodv of such Suni
     powers and authority prescribed bv this Act.
         -"The governing board of such junior college
     district may call the election herein provided for
Hon. J. W. Edgar, page 3   (~~-1408)


    at any time after the effective date of this Act,
    but if an election is called and held hereunder
    and the proposition should fail to receive a me.-
    jority of the votes cast, then no additional
    election shall be called on such proposition U'I-
    til at least one year after the date such prior
    election was held.
          "Sec. 4. This Act shall be cumulative of all
     other laws and shall not be construed to limit or
     affect the classes not being offered or which may
     be offered and conducted by junior college dis-
     tricts not subject to the provisions of this Act;
     nor to limit or affect the classes which may be
     offered and conducted in addition to those described
     in Section 1 above by junior college districts which
     are subject to the provisions of this Act, whether
     or not they elect to take advantage of this Act.
          lgSec.5. If anv Section. sentence. clause
     phrase. or word in this Act or aoulication theriof
     to anv uerson or circumstance is held invalid. such
     holding shall not affect the validitv of the remain-
     'nn                                           hereb
     declare it would have oas d s ch emain a D r
     tions dzsoite such invalid%."U(Em~hasisi~ddedO)-
          Your first series of questions is stated as follows:
          "Query 1. Re first sentence (a): Does Section
     2 prohibit use of the junior college district appro-
     priation (see S.B. 1, Acts 57th Leg. 1st C.S. Arti-
     cle IV, pg. 396, pars. l-a and 2-e) 40 defray any
     costs of students who are in their third and fourth
     collegiate years; viz.? to allow proration thereof
     so as to enable a tuition uniform for each of the
     four years.
          "Re second sentence (b): Does the phrase
     'junior and senior level,work' in Section 2 mean
     junior and senior class work or junior college
     and senior college level work; viz., does Section
     2 prohibit State appropriations to a junior college
     district which votes to and does operate third and
     fourth collegiate years."
          Regarding your Query l(a), as we construe Section 2,
the Legislature has prohibited any appropriation by it being
used toward the costs of conducting any classes or any other
expenses relative to those students in their third and fourth
Hon. J. W. Edgar, page 4   (wW-1408)


collegiate years of the senior college, when created. It
follows that if any special or new teachers are employed, or
any laboratories or other facilities are needed relative to
the third and fourth collegiate years, that no state appro-
priation may be used to defray any part of such expenses.
          From your letter we are apprised that presently there
are several junior college districts operating so-called senior
college divisions, but that none of them were created pursuant
to Article 2815k-3. It would seem that the purpose of a junior
college district is to establish and manage a junior college
only; however we note from the provisions of Article 2815”~3
that “any junior college district . . . is hereby authorized,
subject to the other provisions of this Act to offer and con-
duct classes which may be required or accepEed of candidates
for baccalaureate degrees . . . during their junior and senior
years and to award such degrees. . . .‘I Therefore, if the jun-
ior college district, subject to provisions later discussed,
adds work for the junior and senior years and awards degrees,
the result is a l’collegemade a senior college under the author-
ity of this Act.” It follows that in such districts there will
be a junior college division and a senior college division.
          The caption to Article 2815k-3 states in part as fol-
lows :
          “An Act authorizing certain junior college dis-
     tricts to offer classes to candidates for baccalaur-
     eate degrees in certain fields during their junior
     and senior years, and to award degrees in such fields;
     . . .I,
and so when the Legislature in Section 2 speaks of “junior and
senior level work,” we interpret that phrase to mean any work
undertaken or classes offered during the junior and senior years,
i.e., in the senior college division of the district. Section 2
does not prohibit state appropriations to the junior college dis-
trict itself, but does prohibit any state aid to defray costs of
the senior college division, which conducts junior and senior
level work.
          Your second series of question are as follows:
          “Where a junior college district pursuant to
     Article 28l5k-3 elects and acts to come thereunder:
          “Query 2: (a) Does adoption of the powers
     granted therein carry with it or vest in its board
     authority to assess and levy taxes within maximum
Hon. J. W. Edgar, page 5   NW-1408)



     tax limits previously voted by the qualified prop-
     erty tax paying voters, for the construction of
     facilities, bond service and maintenance of the
     college operating also a 'senior division' the
     third and fourth collegiate years; or
          "(b) Must or may a new maintenance tax and
     bond assumption election be held and carry before
     the district, whose educational functions have been
     so enlarged, may legally assess and levy taxes for
     such maintenance, bond servicing purposes, and is-
     suance of new bonds; or
          "Cc) Does authority still exist in the dis-
     trict only to assess and levy taxes for its 'junior
     division'--first and second collegiate years--col-
     lege maintenance and building needs previously
     voted under provisions of Article 2815h-3b."
          An inspection of the statutes reveals that if the jun-
ior college district elects to assume the responsibility of a
senior college wfthin the district the status of the district
is still the same, and it has all the powers previously confer-
red on it. However, we find that the statutes giving the dis-
trict power to levy and collect taxes refer to "Junior college
purposes," and therefore when this phrase is used, no taxes may
be levied for "senior college purposes.3'
          For instance Section 7 of Article 281511allows the
district to issue bonds provide for interest and sinking funds
and to levy taxes "for the support and maintenance of the Jun-
ior College," and for "Junior College purposes." Section 10 of
that statute, Articles 2815h-3a and 281%-3b all contain the
same phraseology; consequently none of these statutes gives the
district any authority to assess and levy taxes for support of
the senior college division.
          When the Legislature enacted Article 2815k-3, they
also enacted Article 2815r-1, which does not in any section re-
quire that money realized from the issuance of bonds and notes
be used exclusively for junior college purposes. We call your
attention to all eleven sections of this Article, but only quote
from Section 1, as follows:
         "The board of regents of any junior college
    district heretofore or hereafter organized under
    the laws of the State of Texas are hereby sever-
    ally authorized and empowered, each for its re-
    spective institution or institutions, to construct
Hon. J. W. Edgar, page 6   NW-1408)


     acauire and eouin on behalf of such institution,
     buildings and other structures and additions to
     existinG buildings and other structures and ac-
     ouire land for said additions. buildings and other
     structures in any manner authorized by law. in-
     cludinn the power of eminent domain exercised in
     the manner orescribed for anv indenendent school
     district if deemed appropriate by said governing
     body. &id constructions. au'uning and acauisi-
     tion mav be accomwlished inewh&e or in Dart with
     proceeds of loans obtained from anv orivate or nub-
     lit source. The said governine boards are alsp
     severallv
        . .    .authorized
                 .         to enter into contracts .with
                                                     .
                 ies and s&   1 districts for the loin<
     construction of said f%litia.&81    (Emphasis
     added)
          We answer your second group of questions accordingly:
Authority is still vested in the junior college district to
assess and levy taxes for junior college purposes only or for
the "junior college division" under Articles 2815h et seq. The
said district has no authority to assess and levy Eaxes for sup-
port and maintenance of its senior college division, but may
obtain loans, enter into contracts, issue its bonds and notes,
pledge its fees or make use of any other proceeding authorized
by Article 2815r-1. If the district contains a city of not less
than two hundred twenty-five thousand (225,000) population, it
may receive donations of cash pursuant to Article 2815i.

          Your questions continue as follows:
          "In short, in connection with taxation   ques-
     tions raised in auery 2, what is the legal effect
     of that sentence in Section 3 reading: Only those
     legally qualified voters who have duly rendered
     property for taxation in such junior college dis-
     trict shall be permitted to vote. Is such sentence
     consonant with or in violation of Article VI, Sec-
     tion 2, Constitution of Texas; and if in violation
     may the problem be resolved in a manner decided in
     King v. Carlton I.S.D., 295 S.W.2d 408 (Tex.Sup.
     1956). See also Section 3 of Article 2784e-1,    as
     amended following King v. Carlton, supra."
          Section 2 of Article VI of the Constitution of Texas
states in part as follows:
          "Every person subject to none of the foregoing
     disqualifications who shall have attained the age
.   ’




        Hon. J. W. Edgar, page 7   (W-1408)



             of twenty-one (21) years and who shall be a citizen
             of the United States and who shall have resided in
             this State one (1) year next preceding an election
             and the last six (6) months within the district or
             county in which such person offers to vote, shall
             be deemed a qualified elector; and provided further,
             that any voter who is subject to pay a poll tax un-
             der the laws of the State of Texas shall have paid
             said tax before offering to vote in any election in
             this State and hold a receipt showing that said poll
             tax was paid before the first day of February next
             preceding such election. . . .I'
                  We also call your attention to section 3a of Article
        VI of the Constitution, reading as follows:
                  "When an election is held by any county, or any
             number of counties, or any political subdivision of
             the State, or any political sub-division of a county,
             or any defined district now or hereafter to be de-
             scribed and defined within the State and which may
             or may not include towns villages or municipal cor-
             porations, or any city, Eown or village, for the
             puroose of issuie                              credit,
             or exoendins m onev or assumlne:anv debt. onlv au *_
             fied electors who own taxable arouertv in the State,
             Four&v. nolitical sub-division, district. citv. town
             g village where such election is held. and who have
             dkv rendered the same for taxation. shall be auaa
             fied to vote and all electors shall vote in the elec-
             tion orecinct of tmresidence.lr
                  An identical situation, which may prevail if Article
        281.%-3 is to be complied with, was presented to the Court in
         inR . Car 0      deuendent School District; 156 Tex. 365, 295
        kw.2: 408 ;;9;65:   In that case an electio; to adout the pro-
        visions of Article 2784e-1 was in question. Article 2784e-1
        required that for the $dootion election only "property taxpay-
        ing qualified voters of such district, whose property has been
        duly rendered for taxation, shall be entitled to vote."
                  In the course of the opinion Chief Justice Hickman
        stated at page 412:
                  "Any qualified elector) as defined by that Ar-
             ticle, is entitled to vote in any election other
             than one for which additional qualifications are
             prescribed by some other provision of the Constitu-
             tion. The Legislature was not authorized to pre-
             scribe any other standard for voters at the adoption
Hon. J. W. Edgar, page 8   ON-14081


    election than that of qualified electors as de-
    fined by Article VI Section 2.          More speci-
    fically stated,the legislature wis'not authorized
    to limit the voters at the adoption election to
    'qualified voters of such district who own prop-
    erty which has been duly rendered for taxation on
    the tax rolls of the county for that purpose.'
    All of the language just quoted following the words
     'qualified voters of such district' is in conflict
    with the provisions of Article VI, Section 2, of
    the Constitution, and should therefore be stricken
    from the &tt;"
          We therefore advise you that the voting qualifications
contained in Section 3 of Article 2815k-3 are in violation of
Section 2 of Article VI of the Constitution.
          Since Section 5 of Article 2815k-3 provides a savings
clause, it follows that "When the invalid provision is stricken,
the Act is made workable, leaving the question of the adoption
of the Act to be determined by an election at which ' ualified
                                                     1 9 Tex.
electors' shall participate. Jordan v. Crudgington, a.
237, 231 S.W.2d 641.”  (Emphasis added) Kina v. Carlton, sunra.
          You are advised that the proposition of whether or not
the residents of the junior college district adopt the provi-
sions of Article 2815k-3 should be submitted only to the quali-
fied voters under Section 2 of Article VI of the Constitution of
Texas. King v. Carlton Independent School District, sunra.

                            SUMMARY
          1. Section 2 of Article 2815k-3 prohibits the
     use of junior college appropriations to defray costs
     of teaching of students in the senior division or any
     other expenses of such division in a junior college
     district. 'IJuniorand senior level work" means any
     work undertaken by students in classes offered in the
     senior college division of the district.
          2. '2neadoption of Article 2815k-3 does not
     carry with it or vest in the governing body authority
     to as:ess and levy taxes for the senior college divi-
     sion. The district's authority to obtain money in
     this regard is limited to Article 2815r-1, et seq.
     The district still has authority to assess and levy
     taxes for its junior college division pursuant to
     Article 2815'h,or accept donations if the provisions
     of Article 28151 apply to it.
.   -




        Bon. J. W. Edgar, page 9   (~~-1.488)


                   3.  Section 3 of Article 2815k-3 is unconstitu-
              tional and in order to validly adopt the remaining
              provisions of such Act, the question of adoption
              should be presented only to those voters qualified
              under Section 2 of Article VI of the Constitution of
              Texas.
                                       Yours very truly,
                                       Will Wilson
                                       r2w7q



                                            Fred D. Ward
        FDW:wb                              Assistant
        APPROVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
        Tom McFarling
        Frank R. Booth
        Joe Osborn
        Bob Shannon
        REVIEWED FOR THE ATTORNEY GENERAL
        BY:   Leonard Passmore
