Can Texas A&M use Available University Fund money to support its Galveston branch campus?

Plain-English summary

Phil Adams, chairman of the Texas A&M University System Board of Regents, asked the Attorney General about the Available University Fund, or AUF. The AUF is a constitutional fund that pays out money to the Texas A&M and University of Texas systems for two purposes: capital projects and the "support and maintenance" of certain institutions. The support-and-maintenance share that goes to A&M is set by article VII, section 18(f) of the Texas Constitution. Adams explained that Texas A&M University at Galveston had been integrated into the University as a branch campus, and asked whether the support-and-maintenance AUF money given to Texas A&M University could be spent on programs at the Galveston branch, or at any other A&M branch campus that might later be established in Texas.

The AG read the constitutional text closely. Section 18(f) directs the support-and-maintenance funds to "Texas A&M University" without naming any campus. Elsewhere in section 18, when the Constitution wants to single out the main campus, it says so: section 18(h) refers to "Texas A&M University in College Station." The contrast suggested to the AG that the unqualified reference in 18(f) means the money is appropriated to the University as an institution, not locked to the College Station campus. He also looked at section 18(a), which lists the system's component institutions and names "Texas A&M University" and "Texas A&M University at Galveston" separately for capital-funding purposes, but noted that the same provision recognizes institutions can change over time and have more than one campus.

Putting it together, the AG concluded that section 18(f) authorizes support-and-maintenance appropriations to the University as an institution, and no other part of section 18 ties that money to a particular location. So the answer turned on a single question: is the Galveston campus actually a part of Texas A&M University? If it is, the Constitution does not stop the University from using AUF support-and-maintenance funds for its Galveston programs.

The AG did not decide that ownership question himself. He noted that the Education Code establishes TAMU Galveston as a special-purpose institution under the A&M System Board of Regents, with degrees issued under the name of Texas A&M University, and that the Legislature authorized the Board to designate Galveston as a branch of the University, which Adams said the Board had done. But whether Galveston is now legally part of the University is a mixed question of fact and law, which the AG said an opinion cannot resolve. That determination is for the Board of Regents to make when it makes its support-and-maintenance appropriations. On the last question, the AG concluded that because the Constitution does not limit the funds to any campus, a future branch campus established in Texas as a part of the University could likewise be supported with AUF funds.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The A&M System Board of Regents and Chairman Adams (as the opinion described it): The opinion described the AUF support-and-maintenance funds as appropriated to Texas A&M University as an institution, with no constitutional limit to a particular campus. It placed the determination of whether TAMU Galveston is part of the University, and the discretion over support-and-maintenance appropriations, with the Board of Regents itself, "from year to year."

University administrators (as the opinion described it): The opinion described article VII, section 18 as not precluding the University from using AUF support-and-maintenance funds for a branch campus, provided the branch is a part of the University.

State legislators and higher-education policymakers (as the opinion described it): The opinion described section 18(f) as deliberately unqualified by campus, contrasting it with section 18(h)'s "College Station" reference, and described a "branch campus" as one established by the Legislature or approved by the Texas Higher Education Coordinating Board.

Anyone asking whether Galveston is legally part of A&M (as the opinion described it): The opinion declined to resolve that, treating it as a mixed question of fact and law outside the opinion process and reserved to the Board of Regents.

Common questions

What is the Available University Fund (AUF)?
The AG described it as a constitutional fund that distributes money to the Texas A&M and University of Texas systems for two purposes: capital projects and the support and maintenance of certain institutions, under article VII, section 18 of the Texas Constitution.

Is the AUF support money tied to the main College Station campus?
No. The AG concluded that section 18(f) appropriates support-and-maintenance funds to Texas A&M University as an institution, without naming a campus, and that no other part of section 18 limits the money to a particular location.

Can A&M use AUF funds at the Galveston branch?
The AG concluded the Constitution does not preclude it, as long as the Galveston campus is a part of Texas A&M University. Whether it legally is a part of the University is a separate question the AG left to the Board of Regents.

Why didn't the AG just decide whether Galveston is part of A&M?
He explained that whether the Legislature has integrated TAMU Galveston into the University is a mixed question of fact and law, which an attorney general opinion cannot investigate and resolve. That call belongs to the Board of Regents when it makes appropriations.

Could a future A&M branch campus also get AUF support funds?
The AG concluded yes, if it is established in Texas as a part of the University, because the Constitution does not limit support-and-maintenance funding to any particular campus or location.

Background and statutory framework

Article VII, section 18 of the Texas Constitution provides for allocations out of the Available University Fund for the Texas A&M and University of Texas systems, for capital projects and for support and maintenance (Tex. Const. art. VII, § 18(a), (f)). Support-and-maintenance funding appears only in subsection 18(f), which directs the A&M System Board of Regents to appropriate those funds "for the support and maintenance of The Texas A&M University System administration, Texas A&M University, and Prairie View A&M University" (id. § 18(f)).

The AG applied the rule that courts construing the Constitution "rely heavily on the literal text" and read words as generally understood (In re Allcat Claims Serv., L.P., 356 S.W.3d 455 (Tex. 2011)), and that a court will not add a limitation the plain language does not warrant (Cramer v. Sheppard, 167 S.W.2d 147 (Tex. 1943)). Reading section 18 as a whole (In re Nestle USA, Inc., 387 S.W.3d 610 (Tex. 2012)), the AG noted that only section 18(h) attaches a geographic qualifier ("Texas A&M University in College Station"), while 18(f) refers to "Texas A&M University" without qualification, and that section 18(a) lists component institutions, including Galveston, separately for capital-funding purposes while recognizing that institutions can have more than one campus.

On Galveston's status, section 87.201(a) of the Education Code establishes TAMU Galveston as "a special purpose institution of higher education ... under the management and control of the board of regents of The Texas A&M University System, with degrees offered under the name and authority of Texas A&M University at College Station," and authorizes the Board to designate Galveston "as a branch of Texas A&M University" (Tex. Educ. Code Ann. § 87.201(a) (West 2002)). The AG declined to resolve whether Galveston is now part of the University, citing the rule that the office cannot determine mixed questions of fact and law (Tex. Att'y Gen. Op. No. GA-0648 (2008)), and pointed to section 18(f)'s grant of discretion to the Board of Regents in making "just and equitable appropriations." A "branch campus," not defined in the Education Code, is defined by the Texas Higher Education Coordinating Board as a major, secondary location offering multiple programs, established by the Legislature or approved by the Coordinating Board (19 Tex. Admin. Code § 5.73(2) (2014)).

Citations

Constitutional, statutory, and rule provisions:

• Tex. Const. art. VII, § 18 (Available University Fund allocations)
• Tex. Const. art. VII, § 18(a) (capital-project bonds; component institutions)
• Tex. Const. art. VII, § 18(f) (support-and-maintenance appropriations)
• Tex. Const. art. VII, § 18(h) ("Texas A&M University in College Station")
• Tex. Educ. Code Ann. § 87.201(a) (West 2002) (TAMU Galveston; branch designation)
• 19 Tex. Admin. Code § 5.73(2) (2014) (definition of "branch campus")

Cases:

• In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 466 (Tex. 2011)
• Cramer v. Sheppard, 167 S.W.2d 147, 154 (Tex. 1943)
• In re Nestle USA, Inc., 387 S.W.3d 610, 619 (Tex. 2012)

Prior Attorney General opinion referenced:

• Tex. Att'y Gen. Op. No. GA-0648 (2008)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1091
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1091.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 8, 2014

Mr. Phil Adams Opinion No. GA-1091
Chairman, Board of Regents
The Texas A&M University System Re: Authority of Texas A&M University to
Post Office Box 15812 use available university funds for the support
College Station, Texas 77841 and maintenance of the programs of a branch
campus at Galveston or at other branch
campuses as may be established in the state
(RQ-1204-GA)

Dear Mr. Adams:

Article VII, section 18 of the Texas Constitution provides for allocations out of the Available University Fund ("AUF") for institutions and agencies in the Texas A&M University System ("TAMU System") and the University of Texas System. TEX. CONST. art. VII, § 18. The allocation of funds from the AUF is authorized for two purposes: funding related to capital projects and funding for "support and maintenance." Id. § 18(a), (b), (f). Subsection 18(f) expressly requires appropriation of AUF support-and-maintenance funds to Texas A&M University ("University"). Id. § 18(f). As discussed below, you state that Texas A&M University at Galveston ("TAMU Galveston") has been integrated into the University as a branch campus.[1] You ask whether AUF support-and-maintenance funds provided to the University may be used for programs of a branch campus at Galveston or at any other University branch campus that may be established in the State of Texas.[2] Request Letter at 2-5. Your question primarily concerns how article VII, section 18 should be construed.

Courts construing the Texas Constitution "rely heavily on the literal text" and "interpret [its] words as they are generally understood." In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 466 (Tex. 2011). We therefore examine the text of section 18 to determine the eligibility of TAMU Galveston and other TAMU System institutions for support-and-maintenance AUF funding. Support-and-maintenance funding is mentioned only in article VII, subsection 18(f). Subsection 18(f) allocates a portion of the annual AUF distribution to the TAMU System Board of Regents, which in turn must appropriate these funds "for the support and maintenance of The Texas A&M University System administration, Texas A&M University, and Prairie View A&M University." TEX. CONST. art. VII, § 18(f) (emphasis added). The reference to "Texas A&M University" without qualification suggests that the appropriation is for the University as an institution, without regard to a particular location or campus. See Cramer v. Sheppard, 167 S.W.2d 147, 154 (Tex. 1943) (orig. proceeding) (refusing to add a limitation or exception to a constitutional provision not warranted by the plain language).

Subsection 18(f) must be construed in the context of section 18 as a whole, however, because constitutional provisions are not construed in isolation. See In re Nestle USA, Inc., 387 S.W.3d 610, 619 (Tex. 2012) (orig. proceeding). Thus, we consider whether any other reference in section 18 limits appropriations to "Texas A&M University" under subsection 18(f) to a particular location or campus. Only one reference to the University in section 18 includes a geographic qualification or limitation. See TEX. CONST. art. VII, § 18(h). Subsection (h) authorizes the Legislature to provide for the approval of new construction facilities at eligible institutions and agencies except "The University of Texas at Austin, Texas A&M University in College Station, and Prairie View A&M University." Id. (emphasis added). That subsection (h) refers to "Texas A&M University in College Station" while subsection 18(f) refers to "Texas A&M University" without qualification could indicate that subsection 18(f) is not intended to restrict the use of support-and-maintenance funds appropriated to the University to a particular location or campus. Id. § 18(f), (h).

Another provision, article VII, subsection 18(a), authorizes the Board of Regents of the TAMU System to issue bonds and notes for land acquisition and other capital projects "at or for" the TAMU System administration and "component institutions of the system." Id. § 18(a). The provision lists ten entities as component institutions, four of which are universities: "(1) Texas A&M University, including its medical college which the legislature may authorize as a separate medical institution; (2) Prairie View A&M University, including its nursing school in Houston; (3) Tarleton State University; [and] (4) Texas A&M University at Galveston." Id. (emphasis added). By listing them separately, subsection 18(a) treats the University and TAMU Galveston as distinct component institutions for capital-funding purposes. But subsection 18(a) also recognizes that component institutions may change over time and may have more than one campus. See id. (providing that the University includes a medical college which the Legislature may authorize and that Prairie View A&M University includes a nursing school in Houston).

The plain language of article VII, subsection 18(f) provides for the appropriation of AUF funds for the support and maintenance of the University without qualification. Id. § 18(f). No other provision in subsection 18 limits the use of support-and-maintenance funds to a specific location or campus. Thus, because subsection 18(f) authorizes appropriations to the University as an institution, the answer to your first question depends on whether TAMU Galveston is a part of the University.

You assert that the Legislature has gradually merged or integrated TAMU Galveston into the University and, as a result, TAMU Galveston is now a part of the University eligible to receive AUF support-and-maintenance funding under article VII, section 18(f). Request Letter at 5, 9. Section 87.201 of the Education Code establishes TAMU Galveston as "a special purpose institution of higher education ... under the management and control of the board of regents of The Texas A&M University System, with degrees offered under the name and authority of Texas A&M University at College Station." TEX. EDUC. CODE ANN. § 87.201(a) (West 2002). The Legislature has granted the TAMU System Board of Regents the authority "to designate Texas A&M University at Galveston as a branch of Texas A&M University," and you inform us that the Board of Regents has exercised that authority. Id.; Request Letter at 5.[3]

While the facts you recite support your position that TAMU Galveston is now a part of the University, we cannot definitively resolve the issue in an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0648 (2008) at 7 (stating that this office cannot investigate and determine mixed questions of fact and law). Rather, that determination must be made in the first instance by the TAMU System Board of Regents when it makes support-and-maintenance appropriations to the University. See TEX. CONST. art. VII, § 18(f) (stating that, "in making just and equitable appropriations to Texas A&M University and Prairie View A&M University, [the Board of Regents] shall exercise its discretion with due regard to such criteria as the board may deem appropriate from year to year"). If TAMU Galveston is now a part of the University, then article VII, section 18 does not preclude the University from using AUF support-and-maintenance funds for its programs at TAMU Galveston.

Finally, you ask whether any other branch campus of the University, if established in the State of Texas, would be eligible to receive support-and-maintenance AUF funds. Request Letter at 8-9. As discussed above, the Texas Constitution does not limit AUF support-and-maintenance funding to any particular campus or location of the University. Thus, if a branch campus is established in the State of Texas as a part of the University, then the University may use AUF support-and-maintenance funds for the branch campus.

SUMMARY

Article VII, subsection 18(f) of the Texas Constitution authorizes appropriation of available university funds for the support and maintenance of Texas A&M University as an institution, without regard to location or campus. Article VII, section 18 does not preclude Texas A&M University from using support-and-maintenance funds for a branch campus established in the State of Texas.

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Ray Bonilla, Gen. Counsel, Tex. A&M Univ. Sys., to Honorable Greg Abbott, Tex. Att'y Gen. at 5 (June 3, 2014), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] As you ask only about a prospective branch campus if it is established in the State of Texas, we do not consider the University's authority to use support-and-maintenance funds elsewhere.

[3] While the Education Code does not define "branch campus," the Texas Higher Education Coordinating Board defines the term as "[a] major, secondary location of an institution offering multiple programs, usually with its own administrative structure and usually headed by a Dean. A branch campus must be established by the Legislature or approved by the Coordinating Board." 19 TEX. ADMIN. CODE § 5.73(2) (2014) (Tex. Higher Educ. Coordinating Bd., Definitions).