Opinion

Untitled Texas Attorney General Opinion

Court
Texas Attorney General Reports
Filed
Jul 2, 1976
Status
Published
On the bench
John Hill
Cited by
0 cases

The opinion

November 3, 1976

The Honorable M. L. Brockette Opinion No. H- 891

Commissioner

Texas Education Agency Re: Role of Texas Educa-

201 East 11th Street tion Agency under the

Austin, Texas 78701 Comprehensive Employment

and Training Act, and

related questions.

Dear Commissioner Brockette:

You have asked several questions concerning the relation-

ship between Texas law and Title I of the Comprehensive

Employment and Training Act (CETA), 29 U.S.C. 55 801-822

(19731, with respect to the receipt of funds and the admin-

istration of programs at the local level. An understanding

of the problem requires a brief explanation of the system

set out in CETA for the disbursement of funds and planning

and implementation of manpower programs. Under CETA, funds

are to be distributed to organizational units known as

"prime sponsors," which design and implement "comprehensive

manpower plans" for allocation of funds within their juris-

dictional areas. The chief entities which can serve as

prime sponsors are the States themselves and units of "general

local government" meeting minimum population levels. 29

U.S.C. § 812(a) (1973). Each eligible prime sponsor is to

submit to the Secretary of Labor a comprehensive manpower

plan, under which it will endeavor to provide services which

may include, inter alia, education, institutional skill

training, and manpower training. 29 U.S.C. § 811(3), (10)

(1973). Upon approval of a prime sponsor's plan, the

Secretary of Labor is to grant funds directly to the prime

sponsor for implementing the plan.

P. 3750

The Honorable M. L. Brockette - page 2 (H-891)

Conflicts result when the CETA system for providing

manpower services through prime sponsors is superimposed on

the existing Texas educational system. Texas law vests

local control of educational functions in the boards of

trustees of local public school districts, Education Code

§S 22.01, 23.01, 24.03, and provides for vocational and adult

education to be provided by public school districts, public

junior colleges, and state colleges and universities. Educa-

tion Code 5s 11.18(c), 31.31(b), 31.40. Lacking the requisite

general governmental powers, such as police and taxation

powers, these entities are not considered units of "general

local government" and cannot serve as prime sponsors. See

H.R. Rep. No. 93-659, 93rd Cong., 1st Sess. 2935, 2941 (1973).

On the other hand, cities and counties do possess general

governmental powers and can qualify as prime sponsors under

CETA -- thereby becoming able to provide educational services

which would not otherwise be theirs to provide under Texas

law.

We turn first to your question of whether cities and

counties are given the authority under Texas statutes to

serve as prime sponsors, and provide the types of services

contemplated in CETA. Our ability to answer this question

is limited somewhat by the'importance of the local city

charter in establishing the existence or absence of such

authority for a municipality, and by the inevitable ambiguity

of an opinion written without a detailed examination of the

activities to be carried out under each individual compre-

hensive manpower plan. Each local prime sponsor will

necessarily have some responsibility to determine such

matters for itself. We can, however, provide some general

guidelines.

A home rule city may exercise all powers set out in the

city charter so long as the powers are not denied by the

Constitution or general statutes. Burch v. City of San

Antonio, 518 S.W.2'd 540, 543 (Tex. Sup. 1975). We have

found no constitutional or statutory provision which would

prohibit a home rule city from providing any of the services

permissible under CETA. Cities incorporated under general

or special laws must look to their charters for authority.

P. 3751

*. .

The Honorable M. L. Brockette - page 3 (H-891)

Counties are given more limited powers under Texas law,

with the requirement of express authorization in the Consti-

tution and statutes for any function to be performed by the

county and its commissioners. Laramey, The Legal Authority

of Texas Counties to Contract --

for the Dellvery of

Services to its (sz) Residents, 37 Tex. B.J. 9?? (1974).

With thls-iiaation in mind, this office has held that, by

virtue of article 2351, V.T.C.S., a county commissioners

court could contract with the Department of Labor under

federal statutes for services quite similar in some respects

to the projects permissible under a CETA comprehensive

manpower plan so long as the contract limited the program

to "paupers, the indigent, the needy, and the poor." Attorney

General Opinion M-605 (1970). We believe that a county may

serve as a prime sponsor under CETA and implement a compre-

hensive manpower plan which similarly limits its availability

to the poor persons within the county.

We further note, however, the availability under CETA

of a consortium form of prime sponsorship with two or more

units of general local government participating, so long as

one of the governments would qualify as a prime sponsor if

acting alone, 29 U.S.C. 5 812(a) (3) (19731, and also a

multijurisdictional form of prime sponsorship pursuant to an

agreement between the State and a unit of general local

government having the requisite population. 29 C.F.R. 5

95.3(b) (1) (1975). These two forms of organization could

provide more flexibility of operation, with the county

participating only in services which aid the poor and needy

within county limits, and other programs implemented by the

other participants in the consortium or multijurisdictional

agreement. Cf. Attorney General Opinion M-689 (1970).

Your next question is whether Texas law prohibits

cities and counties, seeking status as local prime sponsors,

from making direct application for, and receiving, federal

funds for the types of programs contemplated by CETA. You

have referred us specifically to section 11.02(c) of the

Education Code, which reads:

P. 3752

. . .

The Honorable M. L. Brockette - page 4 (H-891)

Except for agreements entered into by the

governing board of a state university or

college, the Central Education Agency shall

be the sole agency of the State of Texas

empowered to enter into agreements with

respect to education undertakings, including

provision of school lunches and the construc-

tion of school buildings, with an agency of the

federal government. No county board of educa-

tion or board of trustees of a school district

shall enter into contracts with, or accept

money from, an agency of the federal govern-

ment except under rules and regulations pre-

scribed by the Central Education Agency.

We do not believe that section 11.02(c) .prevents cities

and counties from contracting directly with the federal

government to serve as local prime sponsors of CETA programs.

Section 11.02(a) gives to the Texas Education Agency "general

control of the system of public education," and we believe

that the "education undertakings" referred to in section

11.02(c) must likewise be a part of the “system of public

education" to come within the scope of that section. CETA

is clearly not a part of the system of public education. The

purpose of CETA is:

[T]o provide job training and employment

opportunities for economically disadvantaged,

unemployed, and underemployed persons, and to

assure that training and other services lead

to maximum employment opportunities and enhance

self-sufficiency. . . . 29 U.S.C. 5 801 (1973).

CETA manpower services include a broad range of programs and

activities, including referral services, health care, medical

care, child care, assistance in securing bonds and transitional

public service employment programs. 29 U.S.C. S 811 (1973).

The programs created by CETA would be in the realm of employ-

ment programs, rather than traditional programs of public

education. Not insignificantly, CETA programs are admin-

istered on the federal level by the Department of Labor --

not the Department of Health, Education and Welfare. It

is, therefore, our opinion that CETA programs are not within

the scope of section 11.02(c) of the Education Code, even

though some aspects of CETA services may be described broadly

p. 3753

. . .

The Honorable M. L. Brockette - page 5 (H-891)

as "educational* in nature. To find otherwise would require

that numerous federally funded programs with some educational

aspects, such as family planning services, maternal and

child -health services, child abuse programs and law enforce-

ment assistance programs, could be contracted for only by

the Texas Education Agency. We think it clear that the

Legislature did not intend such a result in enacting section

11.02(c).

Finally, you have asked whether the answers to either

of the foregoing questions differ for funds appropriated

through the Governor under 29 U.S.C. 5s 813(c) and 822 (1973).

Under these two sections, five per cent of CETA's funds are

to be appropriated to State governors for assisting local

prime sponsors in providing vocational education and related

services. The statute and regulations require that programs

to be provided with these funds be pursuant to an agreement

between the local prime sponsor and the State board having

authority over vocational education -- in Texas. the Texas

State Board for Vocational Education. 29 U.S.C: S 822(c)

(1973); 29 C.F.R. 5 95.58 (1975).

Applicable regulations require the local prime sponsor

to submit to the State Board for Vocational Education its

plan for use of the section 813(c) funds appropriated for

use in its area: the only constraint on the authority of the

Board to approve or disapprove the plan is that such plan

must be consistent with the prime sponsor's comprehensive

manpower plan. 29 C.F.R. fi95.58(a) (1975). The very

nature of an "agreement," as this arrangement is denominated

in the statute and regulations, is that it is not consummated

until both parties are satisfied with the terms which result.

Since federal law gives the State Board for Vocational

Education the power to approve or disapprove the plan, and

limits that power only by requiring that the plan be con-

sistent with the prime sponsor's comprehensive manpower

plan, we believe the State Board is free to impose any

reasonable limitations upon the expenditure of section

813(c) funds, whether or not required by State law, so long

as the plan finally approved by the State Board is consistent

with the Act and regulations and the prime sponsor's compre-

hensive manpower plan.

P. 3754

The Honorable M. L. Brockette - page 6 (H-891)

SUMMARY

Texas statutes do not prohibit munici-

palities from serving as local prime

sponsors under the Comprehensive Employ-

ment and Training Act (CETA), so long as

the local city charter authorizes the city

to provide the types of services contemplated

in CETA. Counties may also serve as prime

sponsors pursuant to their statutory duty

to provide for poor persons within the county.

Neither cities nor counties are prohibited

from entering into agreements with the federal

government such as the comprehensive manpower

plans required of prime sponsors. The State

Board for Vocational Education may impose

reasonable limitations in providing vocational

education services to prime sponsors with CETA

funds appropriated to it through the Governor.

Very truly yours,

eneral of Texas

DAVID ,& KENDALL, First Assistant

c&igi$&man

Opinion CommittLe

jwb

P- 3755

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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