Case Information
*1 THEAITORNEY GENERAL OF TEXAS Amrrm.- 767ll January 31, 1975 The Honorable C. C. Nolen Opinion No. H- 513 Preridart
North Texar State Univerrity Re: Quertionr ao to validity Dentob, Texan 76203 of state funded food cooperitive,
and related questionr.
Dear Prerident Nolen:
YOU have requerted our opinion concerning a propored food cooperative at .North ‘Texan State Univerrity.
Specifically yaur questions are:
1. Could a private food cooperative composed of students and faculty member8 of NTSU: (a) initially fund this cooperative by means of a grant or loan from the Student Service Fee6 Fund? (b) be housed in a university-owned structure? (c) purchase in bulk with the University Food Service?
2. Could NTSU sponsor an entity which would eel1 grocery items and would the eale of such items be a proper auxiliary enterpriee?
(a) if so, could it be housed in a university owned building and could it purchase in bulk with the University Food Service?
It is our understanding that the Student Government Association of NTSU deaires to establish and manage a food cooperative composed of NTSU students, staff and faculty members and funded through a grant or loan from the Student Service Fees Fund.
Student service fees may be used only for the support of student services (Education Code 5 54. 503(e) ) which are defined as “textbook rentals, recreational activities, . . . and any other student activities and services specifically authorized and approved by the appropriate governing board. ” Education Code 5 54.503(a). The governing board may collect from students “the cost of student services which the board deems necessary or desirable in carrying out the educational functions of the institution. ” Education Code 5 54. 503(b). This section has been construed to allow expenditures for “services directly involving or being of benefit or interest to students. ” Letter Advisory No. 50 (1973): In addition, Letter Advisory No.’ 6 ‘(1973) held the use of a private instrumentality for the implementation of such services to be permissible, stating:
Prima facie, at least, the expenditures would be for a public purpose, establiahed by the determina- tion of the governing body that the service was necessary in carrying out the educa- tional functions of the institution, though the question would ultimately be a judicial one. Expenditures for a true public purpose do not violate Article III, Sec- tion 51 of the Constitution (prohibiting grants of public money to corporations or individuals), even when a private agency is used to achieve the purpose . . . The governing board of an institution of higher education, in adopting rules and regulations for its operation, exercises delegated legislative powers, and in the absence of a clear showing that it has acted arbitrarily or has abused the authority vested in it, the courte will not interfere.
The Honorable Cl. C. Nolen page 3 (H-513) be a service “directly
A food cooperative would, of course, involv- ing or being of benefit to students. ” Letter Advisory No. 6 (1973). The question of whether it would be “necessary or desirable in carrying out the educational functions of the institution” (Education Code 5 54. 503(b) 1 is within the jurirdiction of the governing board to authorize and approve (a). There may exist valid student services. Education Code 5 54.503 educational goals involved in the adminiatration of such a program. Furthermore, schools have traditionally furnished cafeteria service on the theory that proper nutrition is essential to a good learning atmosphere. We believe that reasoning applies as well to unprepared food sold by a coopera- tive as to prepared food served by a cafeteria, and we are therefore unable to decide as a matter of law ‘that it would not be “necessary in carrying out the educational functions of the institution. ” Consequently, it is our opinion that a food cooperative may be funded by a grant or loan from the Student Service Fees Fund.
Once the governing board approves the program and thereby finds it to further a proper public purpose, the cooperative may be housed in a university building,the uee of which is controlled by the, board. The governing board of an institution of higher education exercises great discretion over the use of buildings. Splawn v. Woodward, 287 S. W. 677 (Tex. Civ. App., Austin 1926, no writ). While that case dealt with statutes similar authority is.granted to the concerning the University of Texas, governing board of NTSU.
Section 95.28 of the Education Code, made applicable to NTSU by section 105.41, authorizes the board to “formulate rules for the general control and management of the school . . . . ”
In a case dealing with NTSU, the court stated:
[the] University has~a legitimate interest in efficiently managing the uee of its facilities for the benefit of the entire university com- Duke v. N. T.S. U., 338 F. Supp. munity. 990, 998 (E. D. Tex. 1971). - *4 .
The Honorable C. C. Nolen page 4 Aa the court indicates, rent may be charged for the ure of any fadlity.
However, the governing board of NTSU does not have full control over the use. of educational and general buildinge. Section 61.058(l) of the Education Code empowers the Coordinating Board to “determine fork space utilization formulas in all educational and general buildings and fadlitter at institution8 of higher education. ” Section 61.003.(13) provides:
‘Educational and general buildings and facilitier’ means buildings and facilities essential to or commonly associated with teaching, research, of knowledge. Excluded are or the preservation auxiliary enterprise buildings and facilities, includ- ing but not limited to dormitories, cafeterias, student union buildings, stadiums, and alumni centers.
It is therefore apparent that a cooperative may be houaed in any since the governing board has auxiliary enterprise building or facility, However, the approval of the complete control over ,such facilities. Coordinating Board is necessary in order to house the cooperative in an educational or general building or facility.
The decisioncmcerriing whether the cooperative may purchase in bulk with the University Food Service would rest with the governing board pursuant to its general authority aa provided in section 95.28,. We have found no provision which limits the authority of the board in this matter.
You further ask whether the cooperative may be supported as an auxiliary enterpriae of the university. In addition to the general definition of auxiliary enterprise set out above in section 61.003(13), tbe following definition is contained in College and University Business Administration, Chapter 13, page 128 (Revised Edition, 1968), which is published by the American Council on Education.
An auxiliary enterprise is an entity that exists to furnish a service to students, faculty ore staff and that charges at a rate directly related but not necessarily equal to the cost of the service. it is our
Since a food cooperative would come within either definition, opinion that it would constitute a proper auxiliary enterprise. The above discussion concerning housing and supply for a private cooperative would be applicable to one operated as an auxiliary enterprise.
SUMMARY A food cooperative may be operated as a student service of NTSU if it is properly approved by the governing board as “necessary in carrying out the educational functions of the institution. ” It may also be operated as an auxiliary enterprise.
The cooperative, with the approval of the govern- ing board, may be housed in an auxiliary enterprise facility or any other facility over which the board has complete control. It may be housed in an educational or general building or facility with the approval of the Coordinating Board.
The cooperative, with the approval of the govern- ing board, may purchase in bulk with the Univereity Food Service.
Very truly yours, / / Attorney General of Texas *6 . . . ’
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
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