The opinion
*x-rORxEzY OEN&RAl. August 28, 1970
Hon. Bevington Reed Opinion No. M- 672
Commissioner
Coordinating Board, Texas College Re: Questions regarding laying
and University System out of service areas by the
Sam Houston Building Coordinating Board and an-
Austin, Texas nexatlon of territory to a
junior college district
under the provisions of
Acts 1969, 61st Le lsla-
ture, Chapter 788 $Chapter
Dear Mr. Reed: 2815h-lb, V.C.S. )
Your letter requesting an opinion from this office
concerning the abbve captioned matter presents this factual state-
ment:
“On January 15, 1968, the Coordinating Board
adopted a plan for development of the junior
colleges In Texas. That plan, as published in
Coordinating Board Policy Paper #2, The Develop-
ment of Community Junior Colleges in Texas, says
in part:
“‘Having determined minimum student enroll-
ment criteria, and recognizing that Texas has not
only centers of heavy population concentration
but also large areas with sparse population, the
Coordinating Board recommends that for community
junior college purposes, the State be divided Into
fifty-three geographic regions having certain
student population characteristics.'
" A geographic region does not represent a
tax district; nor does it define an area in which
students must attend a college located thereinfi,to
the exclusion of movement across "lines drawn.
“The region does represent that area from
which most of the community junior college students
should and will come; and represents as well an
area wherein at least one community junior college district
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,
Hon. Bevington Reed, page 2 (M-672)
is feasible during the forthcoming two decades.
It is important to understand that the boundaries
of each of the fifty-three proposed regions are
flexible and will be subject to change at such
time as change seems reasonable and practicable."
Based upon these facts, you ask the following questions:
"May this action of the Coordinating Board
be construed as laying out service areas for
assisting junior colleges as specified in Chapter
788 of the General and Special Laws passed by the
6lst Legislature, Regular Session, 19691
"If the action of the Coordinating Board is
not so construed, can a junior college district be
expanded under Chapter 788 of the General and Special
Laws as cited?"
A question has been raised at the outset as to whether
the Board intended its plan to be construed as laying out service
areas for assisting junior colleges. It is our conclusion that
such a question cannot be considered. The Legislature, as will
be herein later discussed, made its own interpretation of the
Board's action and enacted into law Article 2815h-lb, Vernon's
Civil Statutes, expressly recognizing the authority of the Board
to lay out service areas for assisting junior colleges. Such
legislative Interpretations or constructions in a later act of
an existing law are persuasive and entitled to great weight as
showing legislative intent in the passage of the act under con-
sideration. 53 Tex.Jur.2d 265-266, Statutes, Sec. 178. l?urther-
more, for the purpose of ascertaining intent, it is the general
rule of law that a statute may not be Impeached by paroleevidence
or oral testimony of individual legislators, officers, or members
of the legislative body. 50 Am.Jur.2d 120, Statutes, Sec. 130. Thus,
for example the testimony of a legislator as to the intent of an
enactment passed by the Legislature of which he was a member is
incompetent. Barlow v. Jones, 37 Ariz. ,396, 294 Pac. 1106 (1930).
It is our opinion that in any event the intention of the Board Is
expressed in the wording of the instrument.
As the Texas Supreme Court stated in Webster, et al. v.
Texas &I Pacific Motor Transport Co., et al., 146 Tex. 131, 166
S.W.2d 73 (1942):
II
. . . it was the intention of the Legislature
that the Railroad Commission. . e should be composed
of three members, and that the Commission, acting as
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Ron. Bevington Reed, page 3 (M-672)
such, and not the individual Commissioners,
should have the authority to grant or refuse
applications. . . .
"It is a well established rule in this State
. . . that where the Legislature has committed a
matter to a board . . . or other administrative
agency, such board . . . must act thereon as a bod
at a stated meeting . . .' (Emphasis adde
+
Article 2919e-2, Vernon's Civil Statutes, creating the
Coordinating Board, Texas College and University System, became
effective September 1, 196.5. Section 1 states in part that the
purpose of the act is to establish in the field of higher education
in Texas an agency to provide leadership and coordinat,on for the
Texas higher education system to the end that the State may achieve
excellence for a college education of its youth through efficient
and effective utillsation and concentration of all available re-
sources and the elimination of costly duplications In program
offerings, faculties and physical plants.
Such Article confers numerous and extensive powers on
the Board (Sections 10, 18, 19 and 23.) For example, the Board
is given authority to define a junior college, develop and publish
criteria to be used for a basis for determining the need for
changing the classification of any public institution of higher
education and for determining the need for new publio colleges,
and classify and prescribe the role and scope for each public
institution and hear applications from the institution for changes
in such classification, etc. The Board is also given responsibility
for adopting policies, enacting regulations and establishing general
rules necessary for carrying out the duties with respect to public
junior colleges placed upon it by the Legislature.
Nearly three years later on January 15, 1968, the Coordinatir
Board adopted and published the plan above mentioned and related map.
Chapter 788, Senate Bill No. 739, pa e 2332, Acts of the
61st Legislature of Texas, Regular Session, 1989 (codified by Vernon
as Article 2815h-lb), became effective about a year and a half later
on September 1, 1969. It permits Inclusion of territory In the
boundaries of a junior college district, for junior college Rurposes,
if such territory Is (1) contiguous to the district and (2) has
been laid out by the Coord$nating Board . . . as a service area for
assisting junior colleges. Such Chapter provides the manner for
determining the question of such boundary change, that is, by petition
and election, It further states that it is cumulative and wholly
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. ,
Hon. Bevington Reed, page 4 (M-672)
sufficient authority for such inclusion of ttrritory. The
emergency requiring its immediate effect is . . . the fact
that additional and adequate authority is required for changing
the boundaries of junior college districts, and the fact that
such changes are urgently needed . . .
We think that Articles 2919e-2 and 2815h-lb, considered
In the light of Policy Paper #2, must be construed together, each
enactment in reference to the other, and effect given to all the
provisions of each act. See 53 Tex.Jur.2d, 280, Statutes, Sec. 186.
Otherwise, the authority of the Coordinating Board to lay out service
areas is questionable?,and the Legislature in enacting the provision
in Article 2815h-lb, hat been laid out by the Coordinating Board
as a service area, has done a useless or futile thing until
;hat'Article is amended or the Legislature specifically grants the
Board such power. This is true, because Article 2919e-2 nowhere
does so, and Article 2815h-lb cannot, because the power is neither
expressed in the caption nor germane to the subject, except as an
annexation requirement. See Constitution of Texas, Art. III,
Sec. 35. Moreover, Policy Paper #2 would be rendered meaningless
and violence would be done to any proceeding had under Article
2815h-lb.
However, Article 2919e-2 expressed its general Intent,
purposes and objectives, and the Coordinating Board thereafter
adopted Policy Paper #2. While "It Is true that laws speak
prospectively ‘unless the contrary is clearly indicated”
(Freeman v. Terrell, 115 Tex. 530, 284 S.W. 946 (1926), a sub-
sequent Legislature enacted Article 2815h-lb and clearly
employed the East tense in referring to ter:ltory which ‘has
been laid out as a service area; and also the rule is
that a statute speaks as of the time at which it-takes effect.”
Moorman v. Terrell, 109 Tex. 173, 202 S.W. 727 (1918). Since
P 11 P #2 and its map had been adopted and published
bzfo% ttgeiegislature enacted Article 2815h-lb, it may be presumed
to have known the construction placed on Article 291qe-2 by the
Coordinating Board in assuming the power to adopt and publish
Policy Paper #2 and its map. As stated in Railroad Commission v.
T & N. 0. R, Co., 42 S.W. 2d 1091 (Tex. Civ. App., 1931, error ref.):
“Another general rule of statutory construction
Is that the interpretation which has been
p&id on a statute by the officers or governmental
department charged with carrying out . . . the terms
of the law will be accorded die consideration by the
courts In construfng the law.
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I .
Hon. Bevington Reed, page 5 (M-672)
See also 53 Tex. Jur.2d, Statutes, pages 276, 277, Sec. 183 and
pages 265, 266, Sec. 178.
Therefore, in our opinion, the action of the Coordin-
sting Board in adopting Policy Paper #2 may be construed as
laying out service areas to assist junior colleges, and junior
college districts may be expanded under Article 2815h-lb.
However, this opinion is not to be construed as restricting
the amendment or rescission of Policy Paper #2 by the Coordlna-
ting Board.
SUMMARY
The plan of the Coordinating Board, State
College and University System, for development
of the junior colleges in Texas may be construed
as laying out service areas for assisting junior
colleges as provided for in Article 2815h-lb, V.C.S.,
and a junior college district is authorized to be
expanded under the provis s of such statute.
9 very tru ,
:a
c‘i52
MARTIN
General of Texas
Prepared by Linward Shivers
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Glenn Brown
Ray McGregor
Rick Fisher
S. J. Aronson
MEADE F. GRlFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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