                     THE       A-RNDSY                       GENERAL
                                     OF TEXAS
                                AUSTIN.      TEXAS       787ll
CW*WlrORD   c.   MARTIN                                           f----------1--7


                                       J&E    19,     1972


      Honorable Philip G. Hoffman                Opinion No. M-1162
      Office of the President
      University of Houston                      Re: Is the University of Houston
      Houston, Texas      77004                      prevented by Texas law from
                                                     collecting voluntary contributions
                                                     from students for the Texas
                                                     Public Interest Research Group
                                                     on either a charge or gratuitous
      Dear Doctor Hoffman:                           basis?

            Your request    for an opinion from this office reads as follows:

                     “Is the University of Houston prevented by
                  Texas law from collecting voluntary contributions
                  from students for the Texas Public Interest Research
                  Group on either a charge or gratuitous basis?”

             The applicable provisions of the Texas Education Code pertaining
      to the collection of fees from students are set out as follows:

            Section 54.003.

                      “No institution of higher education may collect
                  from students attending the institution anv tuition.
                  fee, or charge of any kyind except as permitted bi
                  law, and no student may be refused admission to
                  adischarged       from any institution for the nonpayment
                  of any tuition, fee, or charge except as permitted by
                  law. ” (V. A C. S. Art. 2654a, Sec. 1) (Emphasis
                  added. )




                                             -5665-
Honorable   Philip G. Hoffman,   page 2 (M-l 162)


      Section 54.004.

                “All tuition, local funds, and fees collected by
            an institution of higher education shall be retained
            and expended by the institution and accounted for
            annually as provided in the general appropriations
            act. ” (V. A.C. S. Art. 2654c, Sec. l(n), 2 (part).)
            (Emphasis added. )

      Section 54.005.

                “The provisions of this subchapter requiring the
            governing board of each institution of higher educa-
            tion to collect tuition fees do not deprive the board
            of the right to collect special fees authorized by law. ”
            (V. A. C. S. Art. 2654c, Sec. l(m) (part);) (Emphasis
            added. )

      Section 54.503.

                “(a) For the purposes of this section, ‘student
            services’ means textbook rentals, recreational
            activities,  health and hospital services,   automobile
            parking privileges,    intramural and intercollegiate
            athletics,  artists and lecture series, cultural enter-
            tainment series, debating and oratorical     activities,
            student publications,    student government,   and any
            other student activities and services specifically
            authorized and approved by the appropriate governing
            board.

                “(b) The governing board of an institution of higher
            education may charge and collect from students reg-
            istered at the institution fees to cover the cost of
            student services which the board deems necessary or
            desirable in carrying out the educational functions
            of the institution.   The fee or fees may be either
            sry          or compulsory as determined by the governing
            board. The total of all com$lsory       student service
            fcesollected      from a student for any one semester or
            summer session shall not exceed $30. . . , ” (Emphasis
            added. )

                                     -5666”
                                                      (M-1162)
Honorable    Philip G. Hoffman,   page 3


       From the data and information furnished this office it is shown
that the Texas Public Interest Research Group (TexPIRG) will be operated
as follows:

                “TexPIRG is a nonprofit, tax-exempt,      student-
            based corporation to be funded by Texas college
            students through a collection of an optional fee of
            $2.00 per semester.      its Board of Directors com-
            prised solely of students will be elected by the
            students participating   in the TexPIRG financing.     Any
            enrolled, fee-paying student can seek election to the
            TejtPIRG Board of Directors,     and there will be at
            least one representative    for each school participating;
            for the larger schools there will be one representative
            for each 5, 000 students participating.

                 “The professional     staff of TexPIRG will consist of
            lawyers and professionals        from such fields as engi-
            neering, biological and physical sciences,          social
            sciences,    urban and regional planning, and public
            administration.      The staff will be selected by the
            State Board of Directors and will be employed on a
            fulltime basis.     The general areas of TexPIRG concern
            will include consumer protection resource planning,
            occupational safety, protection of natural areas and
            environmental     quality, racial and sexual discrimination,
            landlord-tenant    relations,    delivery of health care, and
            similar matters of urgent or longrange concern of
            the people of Texas.       TexPIRG will have no formal
            connection, financial or otherwise, with any national
            organization or any public interest group located outside
            Texas.     Action taken by TexPIRG will consist of a
            coordinated effort of analysis and research,          public
            education, active representation         before legislative
            bodies and before administrative         and regulatory
            agencies, and litigation where such actions are
            warranted to achieve the goals of this group.

                “One of TexPlRG’s primary goals is to involve
            students in all aspects of TexPIRG’s work in order
            not only to utilize their energies, ambitions and


                                       -5667-
Honorable   Philip G. Hoffman,    page 4             (M-1162)



            resources,    but also to educate the students in the
            practical application of their knowledge.     Students
            will be expected to act in several capacities: informing
            the professional   staff of both the student and community
            concerns on specific issues; testifying before legislative
            and administrative    hearings; drafting of model legislation;
            and preparing legal memoranda and basic legal research
            on selected topics. ”

       From reading the above it appears that your University would only
be an agency or pipeline to collect from students, on either a compulsory
or voluntary basis, money with which to finance TexPIRG. Your Board
would have no control or authority over TexPIRG as the facts show that the
Directors of TexPIRG are elected from each participating      school.  In
effect your University would be collecting money to operate a private non-
profit corporation;   therefore any fee collected under the provisions of
Section 54.503 on a voluntary basis to fund TexPIRG would be outside
the scope of carrying out the educational functions of your University,
the scope of which is limited by the statute.

       In addition to the matters di,scussed in the foregoing paragraph,
it does not appear from the facts submitted that the proposed fee to
be collected from students at various institutions of higher education
and used to fund TexPIRG, would or could be classified as a fee that
would be used for a governmental     purpose, and the collection of such fee
by your University would be prohibited by Section 51 of Article III of the
Constitution of the State of Texas, which provides,     in its relevant part:

                “The Legislature shall have no power to make
            any grant or authorize the making of any grant of
            public moneys to any individual, association of
            individuals,   muncipal or other corporations what-
            soever;    . . .”

       In r-he case of Texas Pharmaceutical   Ass’n. v. Dooley, 90 S. W. 2d
328 (Tex. Civ. App. 1936 , no writ) the Court held that a statute which
authorized the State Board of Pharmacy to collect fees from pharmacists
and turn a porti,on of the fees over to the State Pharmaceutical  Association,




                                       -5668-
Honorable   Philip G., Hoffman,   page:5             ‘(M-1162)


a private corporation,   was unconstitutional because the fees were public
money, whether deposited in the treasury or not, and therefore a grant
of public money for other than governmental purposes was in violation
of Section 51 of Article III of the Texas Constitution. The court states
at page 330:
                11
                 . . . the appropriation    of the major, portion of
            same to a private corporation in nowise charged with
            the enforcement of, thy act, would be clearly void.
            Appellant is not in any wise @own to be subject to
            any control of the, State Board of Pharmacy, whose
                                         .
            members were public officers of the state, required
            to take the constitutional   oath of office, empowered
            to administer oaths, whose records required to be
            kept are made prima facie evidence in any judicial
            proceeding in this state, and designated in the act
            as the agency of the state for the enforcement of
            the laws pertaining to the practice of pharmacy.         In
            s? far as, the fees appropriated     to it are reasonably
            necessary to enforce such regulation under the police
            power, the aci is valid and sustainable.        But in so
            far as the act undertakes to appropriate such feels to
            appellant, a private corporation,       and nqt a state
            agency, it is void even if considered as a police
            regulation and not as a tax measure.

                “On the other hand, if these fees provided for in
            section 14 above quoted and appropriated to appellant
            be considered as not reasonably necessary for the
            Board of Pharmacy to discharge its duties under the
            law and to enforce the same, but as levied for purposes
            of revenue, then clear1 we think they become public
            funds or pub +IC moneys, whether deposited in the state
            treasury or not, and the attempted grant thereof to
            appellant private corporation is in clear violation of
            section 5c’art.   3 of the Cons-‘
                                           ;cIIuc1on.        ‘,-~- ~~‘~sis
                                             ----’ --- . . . (cmpna;
            added. )




                                      - 5669-
 Honorable   Philip G. Hoffman,   page 6           (M-1162)



        You are therefore advised that in our opinion the University of
~‘.Houston is.~no.t.a,uthorized to collect fees from students to fund the
operations     of TexPIRG.

                                  SUMMARY

                 Under the facts submitted the University of
             Houston is prevented by both Section 54.503,
             Texas Education Code, and Section 51 of Article
             III of the Texas Constitution from collecting a
             voluntary fee from students to fund the Texas
             Public Interest Research Group.




                                                   neral of Texas

 Prepared    by John H. Banks
 Assistant   Attorney General

 APPROVED:
 OPINION COMMITTEE

 Kerns Taylor, Chairman
 W. E. Allen, Co-Chairman

 John Reeves
 John Traylor
 Ralph Rash
 L,inward Shivers

 SAMUEL D. MCDANIEL
 Staff Legal Assistant

 ALFRED WALKER
 Executive Assistant

 NOLA WHITE
 First Assistant
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