South Texas College Law v. Texas Higher Educ

• Decision Date: 30 November 2000
• Citation: 40 S.W.3d 130
• Parties: (Tex.App.-Austin 2000) South Texas College of Law and Texas A&M University, Appellants v. Texas Higher Education Coordinating Board, Appellee NO. 03-99-00453-CV
• Court: Texas Court of Appeals

Page 130

40 S.W.3d 130 (Tex.App.-Austin 2000)

South Texas College of Law and Texas A&M University, Appellants v. Texas Higher Education Coordinating Board, Appellee

NO. 03-99-00453-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

November 30, 2000.

Rehearing Overruled Feb. 28 and April 19, 2001.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT NO. 98-03828-A, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

[Copyrighted Material Omitted] Before Chief Justice Aboussie, Justices B.A. Smith and Yeakel.

Marilyn Aboussie, Chief Justice.

Appellants South Texas College of Law ("South Texas") and Texas A&M University ("A&M") appeal from a summary judgment declaring their Affiliation Agreement void and enjoining them from acting, or purporting to act, under the Agreement. We will affirm the trial court's judgment.

BACKGROUND

On January 23, 1998, appellants entered into an "Agreement for Exclusive Affiliation between South Texas College of Law and Texas A&M University" ("Affiliation Agreement" or "Agreement"). The Agreement's preamble states that A&M is a public institution of higher education "offering courses of study and degrees in a broad range of undergraduate academic pursuits, but with no specialized curriculum for the teaching of law and granting of degrees in that field." South Texas is a free-standing, private institution offering only law degrees. According to the Agreement, A&M "believes that an exclusive affiliation with [South Texas] would further [A&M's] goals and missions by broadening its coverage of the academic disciplines and by providing a means for interdisciplinary study programs." Finally, the Agreement notes that the Education Code "provides that the Texas Higher Education Coordinating Board shall consider, enlist and encourage cooperation and cooperative undertakings between public and private institutions of higher education" and recites A&M and South Texas's belief that the affiliation will promote the best interests of each institution and "will promote the best interests of higher education in the State of Texas through the strategic utilization of public sector assets, talents and goals."

The substantive portion of the Agreement provides:

( 1) South Texas has limited use of the A&M name and logo, subject to certain restrictions.

( 2) The Affiliation will not (a) change the private independent status of South Texas, (b) merge South Texas into A&M, (c) entitle South Texas to public funds or property to which it was otherwise not entitled, or (d) restrict the authority of South Texas's board of directors.

( 3) Both parties will cooperate in obtaining all necessary approvals.

( 4) A&M will control six of the nineteen seats on South Texas's board of directors and two of the six seats on the board's executive committee and have power to appoint a member of South Texas's admissions committee. A&M will also be entitled to receive prior written notice and an opportunity to comment on nomination and election of South Texas's board of directors.

( 5) South Texas through its board, president, dean, and faculty will remain responsible for all management, operating, financial, academic, admissions, and faculty decisions. But A&M's provost will be given written notice and an opportunity to comment on full-time faculty appointments.

( 6) A&M's provost will be entitled to make comments and express concerns to South Texas's dean and president regarding all tenure candidates who are hired after the effective date of the Agreement before the dean and president can make recommendations to the board.

( 7) A&M and South Texas will each appoint an equal number of persons to an operating committee that will meet at least twice a year "to discuss matters of mutual interest to such affiliated institutions including without limitation joint degrees, combined degrees, certification programs and foreign programs."

( 8) A&M and South Texas will each appoint an equal number of persons to an affiliation committee that will meet as needed to "discuss all areas of prospective sharing between the affiliated institutions, including without limitation: technology, libraries, development and joint and combined degree plans."

( 9) Following an initial twenty-year term, either party may end the affiliation three years after giving written notice.

(10) South Texas will provide A&M with access to audited financial statements.

(11) A&M promises to use its best efforts to convince the A&M former students' association to allow South Texas's former and future graduates to become members.

(12) A&M promises to use its best efforts to convince A&M's University Foundation to assist and coordinate with South Texas's development office in fund-raising and similar projects. South Texas agrees that its development office will cooperate.

(13) A&M agrees to coordinate its public relations activities with South Texas.

(14) A&M agrees to give South Texas office space and personnel for a coordinating office on the A&M campus. South Texas agrees to make similar arrangements if A&M requests them.

(15) A&M's president will have the opportunity to evaluate South Texas's president and dean annually and report the results to South Texas's board.

(16) A&M's president will have the chance to make suggestions and express concerns regarding finalists for the positions of South Texas's president and dean.

(17) South Texas agrees to amend its articles of incorporation and bylaws to reflect the affiliation.

(18) A&M agrees to consider requests by South Texas's president, dean, and chairman of the board to place items on the agenda of the A&M system's board of regents.

(19) Both parties agree to "take such action as may be necessary or appropriate from time to time to foster the effective assimilation of [South Texas] graduates, students, administration and faculty into all aspects of [A&M's] culture and affairs."

(20) The parties agree to include each other, and their graduates, students, administration, and faculty on general mailing lists as appropriate.

(21) A&M and South Texas agree to consult and cooperate regarding South Texas's accreditation by the American Bar Association, membership in Association of American Law Schools, and adherence to the Law School Admission Council's Code of Good Admissions Practices.

(22) In order to ease the transition, South Texas promises to use its best efforts to retain its current president and dean for five years from the effective date of the agreement.

(23) All notices and other necessary documents will be provided to designated representatives of each party.

(24) After five years, either party may give written notice to the other that the Affiliation "is materially and adversely affecting such party's ability to carry out any part of its educational mission." The parties will then cooperate for at least twelve months to remedy the situation. If they are unsuccessful, then the complaining party may give its three-year written notice of intent to terminate the affiliation.

(25) A&M and South Texas agree to consider all proposed amendments to the Agreement in good faith.

(26) The written Affiliation Agreement is integrated and represents all terms of agreement as between the parties.

(27) The Agreement may be executed via the signing of dual original counterparts.

(28) The Agreement is binding upon the parties and their successors and assigns but does not provide benefit to any third party.

(29) The Agreement will be construed and enforced under applicable state and federal laws.

After appellee Texas Higher Education Coordinating Board ("Coordinating Board" or "the Board") expressed concern that the Agreement could not be implemented unless and until the Board approved the addition of law to A&M's role and mission, South Texas filed suit against the Board in April 1998 seeking, inter alia, declarations that the Agreement did not exceed A&M's power and that the Board did not have authority to review and approve the Agreement. The Board filed a counterclaim, and A&M intervened as plaintiff. Each party filed a motion for summary judgment regarding the validity of the Agreement. In the motion on its counterclaim, the Board contended that the Agreement violated the Education Code, the Texas Constitution, and the state's public policy.

In its final judgment and order of severance, the district court found "the Affiliation Agreement to be void because it exceeds the authority granted Texas A&M University in the Texas Education Code, and because its essential purpose violates public policy as expressed in the Texas Education Code." The court expressly did not reach the question of whether the Agreement violated the Texas Constitution. The court awarded the Board permanent injunctive relief and prohibited A&M and South Texas from acting or purporting to act pursuant to the Agreement. South Texas and A&M then brought appeal to this Court.

DISCUSSION

Generally, upon review of a summary judgment, a court determines whether the movant has shown that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). Here, both parties agree this case is appropriately decided by summary judgment. When both parties move for summary judgment and the trial court grants one motion and denies the other, the appellate court should determine all questions presented. Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997); Cornyn v. Universe Life Ins. Co., 988 S.W.2d 376, 378 (Tex. App.--Austin 1999, pet. denied).

Public Policy

In its summary judgment motion, the Coordinating Board asserted that the Affiliation Agreement violated the public policy of the State of Texas as expressed in the Education Code. A court can declare a contract void as against public policy and refuse to enforce it. Williams v. Patton, 821 S.W.2d 141, 147-48 & n.11 (Te...