Did the Texas Legislature need a two-thirds vote in each house to legally create Central Texas University (now part of Texas A&M University-Central Texas) in 1989, or was a regular majority vote enough?

Texas AG Opinion JM-1153: Article VII's Two-Thirds Vote Clause Governs Funding, Not University Creation

Plain-English summary

The Texas Higher Education Coordinating Board's executive director asked whether the 1989 legislation creating Central Texas University (a four-year institution planned for Killeen), passed by a voice vote in the House and a 23-8 vote in the Senate, was constitutional. The concern was that article VII, section 17(c) of the Texas Constitution says institutions of higher education may be created "at a later date by general law" only "pursuant to a two-thirds vote of the membership of each house of the legislature," and the Central Texas University bill had not cleared that higher bar.

The Attorney General concluded the bill was constitutional because the two-thirds vote requirement in section 17(c) does not limit the legislature's general power to create universities at all. It only sets the condition an institution must meet to participate in a specific funding program, the Higher Education Assistance Fund, created by the rest of section 17. The opinion read section 17 as a whole: subsection (a) creates the fund, subsection (b) lists the institutions already eligible to share in it, and subsection (d) explains how the fund gets allocated among eligible institutions. In that context, subsection (c) reads naturally as adding a further eligibility rule, letting new institutions join the list of fund recipients if the legislature creates them by a two-thirds vote, rather than as a freestanding cap on how any new public university may be established. The opinion supported this reading with the constitutional amendment's own history: the companion provision governing the Permanent University Fund, article VII, section 18, used nearly identical two-thirds language in a clearly parallel, funding-only context, and neither the ballot language nor the Legislative Council's public explanation of the 1984 amendment described it as restricting the legislature's authority to create schools. Because Central Texas University was not created as part of the University of Texas or Texas A&M systems and was not shown to be seeking funds tied to that two-thirds threshold, the ordinary legislative votes it received were constitutionally sufficient to create the institution.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG 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.

Common questions

Did the Texas Legislature need a two-thirds vote to create Central Texas University in 1989?
No. The opinion concluded that article VII, section 17(c)'s two-thirds vote language sets an eligibility standard for a specific funding program, the Higher Education Assistance Fund, not a general requirement for creating public universities, so the ordinary votes the bill received were sufficient.

What is the two-thirds vote clause in article VII, section 17 actually for, if not to control how universities are created?
It determines whether a newly created institution of higher education, one not part of the University of Texas System or the Texas A&M University System, gets access to the Higher Education Assistance Fund created by that same constitutional section.

How did the Attorney General support reading the clause as a funding rule rather than a creation requirement?
By reading section 17 in full context (fund creation, eligible-institution list, and allocation formula all sit around subsection (c)), by comparing it to the nearly identical, clearly funding-only two-thirds clause in the companion Permanent University Fund provision in section 18, and by noting that neither the 1984 ballot description nor the Legislative Council's public explanation described the clause as limiting the legislature's power to create schools.

Background and statutory framework

In November 1984, Texas voters approved a constitutional amendment, proposed by House Joint Resolution 19, that added the current article VII, section 17, creating the Higher Education Assistance Fund, a $100 million annual appropriation for institutions of higher education outside the University of Texas and Texas A&M systems, and separately revised article VII, section 18, restructuring the older Permanent University Fund. Subsection (a) of section 17 creates the fund; subsection (b) lists 26 named agencies and institutions eligible to share in it; subsection (c) provides that, "pursuant to a two-thirds vote of the membership of each house of the legislature, institutions of higher education may be created at a later date by general law," with such new institutions "entitled to participate in the funding provided by this section" if not created as part of the University of Texas or Texas A&M systems; and subsection (d) sets out a decennial allocation formula among eligible institutions.

The opinion applied the interpretive principle from Brady v. Brooks that a constitutional provision should be construed as the average voter would have understood it, and looked to the amendment's legislative and public history: the conference committee report on House Joint Resolution 19 grouped subsection (c) together with subsection (b) under the heading "Eligible Institutions," describing new institutions created by a two-thirds vote as additions to that list, and the Texas Legislative Council's public information report on the 1984 ballot measure described the amendment only in funding terms, without flagging any new limit on the legislature's general power to create schools. The opinion also drew a structural parallel to article VII, section 18(c), the companion Permanent University Fund provision adopted in the same amendment, which uses nearly identical two-thirds language in a context that unambiguously governs fund eligibility rather than university creation, reinforcing the reading that section 17(c) does the same for the Higher Education Assistance Fund. Attorney General Opinions V-31 (1947) and JM-999 (1988) were cited for related propositions about the legislature's power to create institutions of higher education and the general subject matter of section 17.

Citations

Constitutional and statutory provisions:

• TEX. CONST. art. VII, §§ 17, 17(a), 17(b), 17(c), 17(d), 18
• TEX. CONST. art. III, § 48
• TEX. EDUC. CODE ch. 113 (Acts 1989, 71st Leg., ch. 1255, at 5058, amended by Acts 1989, 71st Leg., 1st C.S., ch. 37, at 104)

Cases:

• Brady v. Brooks, 89 S.W. 1052 (Tex. 1905)

Prior Attorney General opinions cited: V-31 (1947); JM-999 (1988).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1153
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1153.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

March 29, 1990

Mr. Kenneth S. Ashworth
Executive Director
Texas Higher Education Coordinating Board
P. O. Box 12788
Austin, Texas 78711

Opinion No. JM-1153

Re: Constitutionality of legislation creating Central Texas University (RQ-1861)

Dear Mr. Ashworth:

You ask about the constitutionality of a bill that would, if certain conditions are met, create a four-year institution of higher education in Killeen to be known as Central Texas University. Acts 1989, 71st Leg., ch. 1255, at 5058 (new Educ. Code ch. 113) amended by Acts 1989, 71st Leg., 1st C.S., ch. 37, at 104. You suggest that the creation of Central Texas University under that statute would violate article VII, section 17, of the Texas Constitution because the legislation was not adopted pursuant to a two-thirds vote of each house of the legislature.[1] We conclude that your argument is based on a misreading of article VII, section 17.

In November 1984 the voters approved a constitutional amendment that dealt mainly with funding for higher education. H.J.R. 19, Acts 1983, 68th Leg., at 6701. The amendment added article VII, section 17,[2] which created the Higher Education Assistance Fund, a funding mechanism for institutions of higher education that are not included in the University of Texas or Texas A&M Systems. It also revised article VII, section 18, to restructure the Permanent University Fund. See generally Public Notice, Proposed Constitutional Amendments, November 6, 1984.

You suggest that the creation of Central Texas University in accordance with chapter 113 of the Education Code would violate subsection (c) of article VII, section 17. Article VII, section 17, provides in part:

(a) In the fiscal year beginning September 1, 1985, and each fiscal year thereafter, there is hereby appropriated out of the first money coming into the state treasury not otherwise appropriated by the constitution $100 million to be used by eligible agencies and institutions of higher education . . . .

(b) The funds appropriated under Subsection (a) of this section shall be for the use of the following eligible agencies and institutions of higher education (even though their names may be changed):

[List of 26 state universities]

(c) Pursuant to a two-thirds vote of the membership of each house of the legislature, institutions of higher education may be created at a later date by general law, and, when created, such an institution shall be entitled to participate in the funding provided by this section if it is not created as a part of The University of Texas System or The Texas A&M University System. An institution that is entitled to participate in dedicated funding provided by Article VII, Section 18, of this constitution may not be entitled to participate in the funding provided by this section.

(d) In the year 1985 and every 10 years thereafter, the legislature or an agency designated by the legislature no later than August 31 of such year shall allocate by equitable formula the annual appropriations made under Subsection (a) of this section to the governing boards of eligible agencies and institutions of higher education. (Emphasis added.)

You read subsection (c) as disallowing the creation of any state university except by a two-thirds vote of each house of the legislature. We think, however, that the context and history of article VII, section 17, indicate that subsection (c) is not an absolute limitation on the power of the legislature to create institutions of higher education, but rather is an eligibility standard for participation in the fund established by article VII, section 17. See generally Attorney General Opinion V-31 (1947) (holding that under article III, section 48, of the constitution the legislature has power to provide for institutions of higher education not mandated by article VII).

The general subject matter of article VII, section 17, is the Higher Education Assistance Fund. See generally Attorney General Opinion JM-999 (1988). Subsection (a) creates the fund; subsection (b) lists the existing institutions eligible to participate in the fund; and subsection (d) deals with the allocation of the fund among eligible institutions. In that context, it makes sense to read subsection (c) as setting an eligibility standard for participation in the fund by newly created institutions of higher education. See Brady v. Brooks, 89 S.W. 1052 (Tex. 1905) (constitution should be construed as understood by average voter).

Also, any voter who actually read House Joint Resolution 19 would have read the provisions governing the Higher Education Assistance Fund in conjunction with the proposed revision of article VII, section 18. The proposed revision of article VII, section 18, contained the following language as subsection (c):

Pursuant to a two-thirds vote of the membership of each house of the legislature, institutions of higher education may be created at a later date as part of The University of Texas System or The Texas A&M University System by general law, and, when created, such an institution shall be entitled to participate in the funding provided by this section [the Permanent University Fund] for the system in which it is created. An institution that is entitled to participate in dedicated funding provided by Article VII, Section 17, of this constitution may not be entitled to participate in the funding provided by this section.

Subsection (c) of article VII, section 18, is less ambiguous than subsection (c) of article VII, section 17: the former clearly sets an eligibility standard for access to the Permanent University Fund. The fact that the subsections regarding eligibility for the respective funds appear in corresponding positions in sections 17 and 18 of article VII indicates that the provisions were intended to have equivalent effect. More important, we think that voters reading the entire text of House Joint Resolution 19 would likely have interpreted the two subsections (c) as having equivalent effect.

The legislative history of article VII, section 17, supports the view that subsection (c) sets a standard for eligibility to participate in the fund. The two houses of the legislature, being unable to agree on various points in the amendment to be offered to the electorate, appointed a conference committee to resolve their differences. The conference committee, which ultimately produced the amendment, issued a report analyzing the house version, the senate version, and its own version of the proposed amendment. In the report, the conference committee combined subsection (c) with subsection (b) under the heading "Eligible Institutions." The entry under that heading is "The 26 agencies and institutions listed [in subsection (b)] and any created at a later date with 2/3 vote of the legislature." Conference Comm. Rep., H.J.R. 19, 68th Leg. (1983).

The Texas Legislative Council, which publishes reports on proposed constitutional amendments, described the amendment as dedicating general revenue funds to be used for certain purposes by the agencies and institutions listed in subsection (b). Tex. Leg. Council Info. Rep. No. 84-1: Analyses of Proposed Constitutional Amendment Appearing on the November 6, 1984, Ballot (Aug. 1984). The report went on to state:

The legislature may add to the list of institutions by a two-thirds vote of the membership, except that institutions within The University of Texas System or The Texas A&M System may not be added.

Neither the description on the ballot nor the explanatory statement prepared by the secretary of state in regard to House Joint Resolution 19 contained any reference to the provision in question. See H.J.R. 19, § 4, Acts 1983, 68th Leg., at 6712 (ballot description); Public Notice, Proposed Constitutional Amendments, November 6, 1984. The omission of any such reference supports the view that subsection (c) was not a significant new restriction on the authority of the legislature, but rather a restriction on eligibility for the newly created fund.

Considering the text and the context of the constitutional amendment in question, and also the explanatory information available to voters, we do not think that voters would have interpreted House Joint Resolution 19 as restricting the legislature from creating an institution of higher education that would not have access to the funds created by article VII of the constitution.

SUMMARY

Article VII, section 17, of the Texas Constitution does not prohibit the creation of Central Texas University in accordance with new chapter 113 of the Education Code, as enacted by the 71st Legislature in the Regular and First Called Sessions.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

[1] House Bill 2853, which became chapter 113 of the Education Code, was passed by the House of Representatives on May 1, 1989, by a voice vote and by the Senate on May 23, 1989, by a vote of 23 yeas and 8 nays. H. J. of Tex., 71st Leg., Reg. Sess. 1241 (1989); S. J. of Tex., 71st Leg., Reg. Sess. 1866 (1989).

[2] The previous article VII, section 17, was repealed on Nov. 2, 1982, as proposed by H.J.R. 1, § 3, Acts 1982, 67th Leg., 2d C.S., at 52.