IAL 110507.

• Case Date: November 05, 2007
• Court: New Mexico

New Mexico Attorney General Opinions 2007. IAL 110507. November 5, 2007IAL 110507Paula Tackett, DirectorLegislative Council Service 411 State Capitol Santa Fe, NM 87501 Re: Opinion Request--Higher Education Department's Authority to Approve Degree Programs at State UniversitiesDear Ms. Tackett: You have requested an opinion of the Attorney General about the New Mexico higher education department's statutory authority to approve degree programs at state universities. Specifically, you ask whether constitutionally created universities may develop and offer new baccalaureate degree programs without the approval of the higher education department or the secretary of higher education. In this regard, you also ask whether NMSA 1978, Section 21-1-24 (1971) and NMSA 1978, Section 21-1-26(B) (2005) conflict and, if so, which statute prevails. As more fully explained in this opinion letter, and based on our examination of the relevant New Mexico constitutional, statutory and case law authorities, and on the information available to us at this time, we conclude that both statutes remain operative, with each operating within their legislatively defined spheres. Thus, consultation and review by the higher education department would be required for all new baccalaureate, graduate or professional degree programs instituted after July 1, 2005 in order for the universities to be able to offer those programs. In addition to consultation and review, as to new graduate programs, approval by the higher education department, as well as by the state board of finance, would be necessary in order for state funding to the universities, through the general appropriations act, to be available. Section 21-1-24 provides:

None of the funds appropriated in the general appropriations act to the state educational institutions confirmed by Article 12, Section 11 of the state constitution may be used for the support of any program or programs of graduate study beyond the level of the bachelor's degree other than programs that were maintained by each institution previous to September 1, 1954, except by explicit approval of each such program by the board of educational finance and the state board of finance prior to such use of the funds.

The effect of Section 21-1-24 is to "condition" the use of funds appropriated by the general appropriations act to the...