The opinion
155.
TEE ATTORNEY GENERAL
~FTEXAS
+JBIW. TEXAS
PRICE DANIEL PAGAN DIClLsON
*--camNmmAx. ~UIAmoIwr-
July 10, 1948
Hon. Gibb Gilchrist, President
Texas A. & M. College
College Station, Texas
Opinion No. v-632
Re: Appointment of Chancellor
of A. & h. System.
Dear President.Gilchrist:
You have informed us that the Board of Direc-
tors of the Agricultural and Mechanical College of Texas
(referred to herein as A. & M.) desires to change the
administrative procedure in carrying out its policies in
'the various colleges and agencies entrusted to it by tpe
Legislature. These institutions include Texas A. & M.
,John Tarleton Agricu tural College2, North Texas Junior'
~Agricultural College3 (referred to as N. T. A. C.), Prairie
,lArt~.2610: TThe government of the Agricultural and Me-
chanicaf College shall,be vested in a Board of Direc-
tors D . 0n
2Art, 2616: "The government and direction . .'. of the
John Tarleton Agricultural College . . . shall be vested
in the Board of Directors of.the Agricultural and Me-
chanical Coll'egeof Texas."
3
N. T. A. C. is now operating exclusively under the A. &
M. Board of Directors. Art: 2620 provides,that N. T. A.
C. shall‘be under the Board of Directors~of A. & M.,
which is designated as "the supervisory board." The
statute also contemplates a local board of five citi-
zens appointed by the Governor, subject to the approval
of the supervisory board. The local board "shall per-
form all the duties required in the management of said
College in like manner as governing board of the same
character." Art. 2622 further provides that "the local
board, in connection with the supervisory board, shall
appoint a president and professors of said college and
1.:
56 Hon. Gibb Gilchrist, Page 2 (V-632)
View A, & M,4, several experimental stations and exten-
sion services, the Texas Forest Service, the Firemen's
Training School, and the Rodent Control Service5.
The Board proioses to appoint an executive of-
ficer to be known as a Chancellor." Under the Chancel-
lor will be the presidents of.the colleges and directors
of the other agencies. Several reasons for such change
are cited in a report of a joint legislative committee
of the House and Senate of the 50t Legislature; which
report is cited in the note below.% On behalf of the
3 (cont'd)
such officers as they may think proper and necessary
to put the same into successful operation, and make
such rules and regulations . . . as they may deem ad-
visable." The local board has not been appointed or
acted for several years for reasons not relevant here.
Apparently, having two governing boards for one insti-
,, tution was not without its difficulties and conflicts.
For purposes of this opinion, it will be assumed that
the government and direction of N. T. A. C. is under
its supervisory board, the Board of Directors of A. &
M. This opinion is here qualified to the extent that
further,consideration will begnecessary~in the event a
lo~cal,
board at N. T. A. C. is appointed and qualifies
f&service.
4
Art..2638,: Prairie View "shall be under the control
and supervision of the Board of Directors of the Agri-
cultural and Mechanical College . . ."
5
Arts, 2613, 2613b, 26158, and 8309b,
6 "
The majority Report reads: ". . . T@'aadministration
and conduct of the College 'activitiesis exclusively
under the jurisdiction and supervision of the Board of
Directors.
"Doubtless there might well be considered the matter
of revision of ,the administration of the system with a
view to the streamlining thereof. Some economies~in
operations might thereby be effected. This, of course,
under the law, is within the discretion of the Board
of Directors. It may be that the far-flung and ever-
increasing activities,of.the A. &M. College have be-
come so vast, and its services so'varied, that no one
individual can direct its operations with full famil-
Hon. Gibb Gilchrist, Page 3 (V-632) 157
Board, you request an opinion as to the Board's author-
ity for such action, and the validity of two rules or
regulations putting such policy into action.
TWO rules making such change are:
"Chapter II, Section 1
General Organization
"a. For the purposes of administra-
tion, the Agricultural and Mechanical Cal-
lege of Texas and all Colleges, Services,
and Agencies under the jurisdiction of the
Board ,ofDirectors of the Agricultural and
Mechanical College of Texas shall constitute
the Texas Agricultural and Mechanical Col-
lege System, c,onsistingof the following: The
Agricultural and Mechanical College of Texas;
The North Texas Agricultural College; The
John Tarleton Agricultural College; The
Prairie View Agricultural and Mechanical
College of Texas; The Texas Agricultural
6 (cont'dl
iarity of its several services, requisite for the most
effective functioning thereof.
"The Committee suggests, therefore, that the Board of
Directors could properly give consideration to the pos-
sibility of creating the Office of Chancellor of the
College System. ,He would, under such a program, then
assume the overall direction of the entire system, in-
cluding, as it does, the graduate and undergraduate
schools of the Main College, the North Texas Agricul-
tural College, John Tarleton Agricultural College,
Prairie 'View A. & M., the Extension Service; Experiment
Stations, Field Laboratories, Rodent Control Service,
Texas Forest Service, and the Firemen's Training School.
The President of the Main College of Arts and Sciences,
thus relieved of the many,outside duties now required
of him, would be free to devote his full time to the di-
rection of the educational training, its student rela-
tions and related activities normally expected of a col-
lege president in the accepted sense of the term. These
recommendations are made to the Board of Directors which
has the sole authority to adopt or reject them." (Sen-
ate Journal, 50th Legislature, 1947, page 1519.1
158 Hon. ~ifibb
Gilchrist, Page 4 (V-632)
Experiment Station; The Texas Agricul-
tural Extension Service; The Texas Engi-
neering Experiment Station; The Texas
Engineering Extension Service; The Texas
Forest Service; The Firemen's Training
School; The Rodent Control Service; Other
Agencies and Services as may be author-
ized.
"b. The executive head of the Texas
Agri.cultural and Mechanical College Sys-
ternshall be a Chancellor. -.Heis author-
ized and directed to administer the Col-
leges, Agencies, and Services of the Sys-
tem throug$hy executive officer in charge
of each. executive in charge of each
College shall be designated as President.
The executive in charge of each Agency and
Service shall be designated as Director.
"Chapter III, Section 1
Appointments
"a e The Chancellor of the Texas Ag-
ricultural and Mechanical College System
shall be appointed by the Board of Direc-
tors and shall hold office without term
subject to the pleasure of the Board. The
Vice-Chancellors, the Comptroller, and the
Business.%nager of the System; the Presi-
dents of the Colleges and Deans; Directors
and Vice-Directors of Agencies and Serv-
ices; and any other general officials pro-
vided by law or authorized by the Board of
Directors shall be appointed by the Board
pursuant to nomination by the Chancellor.
"b. All other officials, teachers,
and employees shall be appointed by the
respective President or Director with the
advice and approval of the Chancellor sub-
ject to confirmation of the Board of Di-
rectors. Teachers and employees shall be
subject to dismissal for cause at any time
by the President or Director subject to
review by the Chancellor with the right
of appeal to the Board of Directors.
Hon. Gibb Gilchrist, Page 5 (V-632) 259
The Legislature having invested the direction
of these'institutions and activities in the Board of
Directors of A. &M., the Board
. may not delegate such
authority. But it may appoint agents, and may enforce
its policies through them.
Article 2613 empowers the Board to em loy,
for A. & M., such officers as it thinks proper.7 Such
power is expressed or implied in the Board's direction
of the other agencies. The Board is therefore empow-
ered to employ an executive officer, to carry out its
policies, and to call that officer a "Chancellor" if it
so desires. Having determined and set the policies as
to the government and management of the various institu-
tions, the Board may direct the Chancellor "to adminis-
ter the Colleges, Agencies, and Services" through an ex-
ecutive officer.in charge of each (to be known as a
President or Director). The Board, therefore has the
authorit to issue the first regulation (Ch. f1, Sec. 1,
a and b.'I
a It is a valid order.
The second regulation deals with the appoint-
ment of officers and employees of the Colleges and agen-
cies (referred to as "the SystemR). The power of ap-
pointment isgiven by the Legislature to the Board of
Directors of A. &M. College. It cannot be delegated.'
But the Board may accept nominations from the Chancel-
lor and act thereon.
Provision is made for the appointment of other
minor officials and employees by the Chancellor or the
President or Director of the agency involved, "subject
to confirmation of the Board of Directors." It was held
in Opinion No. 0-6037, by the Honorable Fagan Dickson,
addressed to the President of the Board of Directors of
A. &M. College that:
"The appointment of these persons (of-
ficers and professors) involves the exercise
7Art. 2613: "The Board of Directors is charged with
the duties and empowered to do and erform the acts
hereinafter set forth as follows: P1) The board shall,
when necessary, appoint the president and professors
of the college and such other officers as. from time
to time, thev may think proper to keep the college in
successful operation, and may from time to time abol-
ish any office that is in their judgment unnecessary.”
Hon. Gibb Gilchrist, Page 6 (V-632)
of discretion; and since the statute im-
poses the duty to make such appointments
on the Board of Directors, the law prohib-
its a delegation of the power . . .
"It is our further opinion that the
words 'subject to confirmation of the
Board of Directors' . . . would correct
the suggested rule."
Following that opinion, we hold that the ap-
pointment of persons'"subject to confirmation by the
Board of Directors" is not an unconstitutional delega-
tion of power and is a valid provision.
The final regulation of the Board is that
nteachers and employees shall be sub'ect to dismissal
for cause 0 . D by the President or &rector, subject
to review by the Chancellor with the right of appeal
to the Board of Directors."
The power and duty of the Board to remove or
dismiss such persons is vested in the Board by necessary
implication from the statutes. Here again there is a
question of delegation of power. The Board, having the
power and duty to employ has the power to dismiss or re-
move, and it may not delegate that power. The matter of
employment, however, is generally a matter of contract
between the institution or agency and the person employed.
The length of the employment is or may be set by agree-
ment,~and the matter of dismissal may likewise be sub-
ject to contractual provisions. However, the regulation
in question vests removal powers in other persons than
the Board of Directors. The same principle was involved
in 0 inion No. O-,5252,addressed to the Board of Regents
of Tifi
e University of Texas, a copy of which is here en-
closed. It was there held that while the Board's rule
was that professors would not be dismissed without a
hearing before's faculty committee, the recommendation
of such committee could be advisory only. The decision
as to dismissal must be made by the Board.
It is therefore recommended, as in 0 inion NO,
O-6037, that the dismissal of teachers and empPoyees for
cause be made "subject to confirmation of the Board of
Directors" in addition to being sub~jectto review by~the
Chancellor.
This opinion is not to be construed as comment-
ing in any manner on the %enure" problem of any Professor
Hon. Gibb Gilchrist, Page 7 (V-632) 162
or employee. The regulations here make such persons re-
movable "for cause." The statutes place the power to
employ and discharge in the Board. The matter of pro-
viding hearings and other self-imposed limitations on
discharge is a matter of internal policy of the institu-
tions and is not within the scope of this opinion.
SuMitiY
The Board of Directors of A. & M.
College may appoint an agent, to be known
as a "Chancellor", to carry out its poli-
cies in the government of the colleges and
other agencies committed to its management
by the Legislature. Such Chancellor may
carry out the Board's policies through
presidents and directors of the various
colleges and agencies. The appointment
and removal of the presidents, directors,
professors, and other officers bf the Texas
A. & K. College System shall be made sub-
ject to confirmation by the Board of Direc-
tors.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
By@2- Joe R. Greenhill
Executive Assistant
JRG:erc
APPROVED: