                                 The Attorney                   General of Texas
                                                            May 25      1982

MARK WHITE
Attorney General


                               Lauro Cavazos,  Ph.D.                                    Opinion    No. MN-476
Supreme   Court Building       President
P. 0. Box 12546
                               Texas Tech University                                    Re:      Tuition      for    nursing
Austin. TX. 76711. 2546
5121475.2501
                               Health Sciences  Center                                  students       at     Texas      Tech
Telex 9101674.1367             P. 0. Box 4349                                           University       Health     Sciences
Telecopier   5121475.0266      Lubbock,  Texas    79409                                 Center

                               Dear Dr.     Cavazos:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709
2141742-6944                         Your question     concerns  the tuition      to he paid by nursing     students
                               at Texas Tech University       Health Sciences       Center.   The center was named
                               the Texas Tech University         Schooi     of Medicine     until   1979,  see Acts
4624 Alberta Ave.. Suite 160
                               1979, Sixty-sixth     Legislature    chapter     319, at 724, and has beensince
El Paso, TX. 79905-2793
9151533-3484
                               its   inception    "not    a department,       school   or branch     of Texas Tech
                               University,"    but a separate    institution      -- though under the direction,
                               management and control       of the Texas Tech University          Board of Regents.
1220 Dallas Ave.. Suite 202    Educ. Code P110.01;       see Henry v. Texas Tech University,           466 F. Supp.
Houston, TX. 77002-6966
                               141 (N.D. Tex. 1979);Attorney         General Opinion M-1007 (1971).          Section
7 131650-0666
                               110.06 of the Education Code states:

806 Broadway. Suite 312                          The board may, when in the best                   interests       of
L”bbmk. TX. 79401-347s                       medical     education      at the Health Sciences             Center,
6061747-5238
                                             execute     and carry out affiliation             or coordinating
                                             agreements with any other entity               or institution         in
4309 N. Tenth. Suite 6                       the Lubbock area, Amarillo            area, El Paso area, and
McAllen, TX. 76501-1665                      the    Odessa-Midland          area    to     provide      clinical,
5121662.4547                                 postgraduate,        including     internship       and residency,
                                             or other      levels     of medical       educational       work for
 200 Main Plaza. Suite 400                   the Health        Sciences      Center.       Additionally,          the
 San Antonio. TX. 76205.2797                 board may execute            and carry       out affiliation          or
 5121225-4191                                coordinating       agreements      with any other          entity     or
                                             institution       necessary      to conduct      and operate         the
 An Equal Opportunityi
                                             Health       Sciences         Center       as     a     first-class
 Affirmative Action Employer                 institution.        The board may utilize           the facilities
                                             and staffs      of other state biomedical            units.

                               You have     asked us about a proposed  contract between the center                      and the
                               university      regarding the general  course work of professional                       nursing
                               students.




                                                                      p.   1674
Dr. bauro   Csvazos    - Page     2   W’-476)




       The unique      curriculum      design   for the School    of Nursing    at the
center    requires     simultaneous      course work at both the center        and the
university.      You explain       that students     at the center must pursue both
general     and professional       class work during each year of the four-year
program rather        than (as in a typical          nursing  program)  complete    two
years    of lower division         general    course   work prior   to beginning    two
years    of upper division         work at a school       of nursing.   However,    the
arrangement      brings     into    play   two provisions    of the Education      Code
specifying     tuition    charges.

      Section    54.051(k)     of the Education     Code provides     that    tuition
“for   students    registered    in a school  of nursing   as a nursing        student
is $50 per semester....”          But section  54.062 thereof    states     that when
a student     registers      at more than one public     institution       of higher
education    at the same time:

                 (1)     The student    shall    pay the full  tuition
             charge    to the first     institution    at which he is
             registered;      and in any event       he shall  pay an
             amount at      least   equal    to the minimum tuition
             specified    in this code.

                 (2)       If the minimum tuition           specified       in this
             code    for       the   first     institution        at which        the
             student     is registered        is equal to or greater             than
             the minimum tuition           specified     in this code for the
             second       institution        at     which    the      student       is
             registered        concurrently,       the student      shall     not be
             required        to pay      the specified        minimum tuition
             charge     to the second          institution      in addition         to
             the tuition         charge paid to the first            institution,
             but shall        pay only the hourly          rates,     as provided
             in this code,         to the second institution.

                  (3)       If the minimum tuition             specified      in this
             code     for      the     first     institution        at which        the
             student       is registered         is less than the specified
             minimum tuition             charge at the second institution
             (that     is,    if the second institution               has a higher
             minimum tuition              charge   specified       in this      code),
             then     the      student       shall    first     register       at   the
             institution          having     the lower minimum tuition              and
             shall      pay      to    the    second     institution       only     the
             amount equal           to the difference          between his total
             tuition       charge      at the second institution              and his
             total     tuition       charge at the first         institution,       but
              in no case           shall    the student       pay to the second
              institution         less than the hourly rates as provided
              in this code....




                                             p.   1675
Dr. Lauro     Cavaaos     - Page 3      (MN-476)




Although     $50 per semester      is the maximum tuition           for nursing    students
registered     at the center,     section     54.051(k)     of the Education      Code, $50
per    semester     is  the   minimum tuition            for    such    students     at    the
university.       Id.  554.051(b).         Assuming a normal course            load     of   15
hours,     the maximum tuition         for    a nursing       student    under   the joint
program would be $60 per semester,              rather than $50. if section            54.062
is applied.      See Educ. Code 054.051(b)            (tuition    for resident      students
is $4 per credithour).

      In order to avoid that result,             it has been suggested       to the Texas
Tech University      Board of Regents        that student nurses at the center           be
charged    the $50 maximum tuition         under section        54.051(k),  and that the
students    not register      at the university        for their regular     course work,
but that the university          contractually       agree with the center       to supply
each of the center's          students    with instruction         in the basic    general
courses    needed to complete          the student's        degree   plan.    The center,
under the proposed       agreement,     would keep all the tuition         paid, but the
university     would be entitled        to use for all statistical          purposes    the
number of semester          credit    hours    of instruction        it provided.      This
would supposedly       enable     the university       to claim them in reporting         to
the Coordinating        Board,      Texas    College      and University     System,    for
purposes     of Legislative       Appropriation       Formula Generation.       See Educ.
Code 661.059;     19 T.A.C.      513.3 (1981).

       You specifically         ask:

                 (1)    What statute controls  the tuition                   rate to
              be charged a Texas Tech University   Health                   Sciences
              Center School of Nursing student;   and,

                  (7-j    May Texas Tech University       receive    credit
              hours      for   formula     generation       purposes      as
              consideration     for the teaching      services    rendered
              under the proposed     contract?

       Section      54.051(k)       of     the Education          Code,     specifying       the   $50
meximum tuition         for nursing         students,      was enacted       in 1971.       See Acts
1971,     62nd Leg.,        ch.    1024,      at 3352.         The provision         dealing      with
concurrent      enrollments,        section     54.062,     was added later,         in 1977.      See
Acts 1977, 65th Leg.,             ch. 7, at 21.            The legislature         was presumaw
aware at the later              date     that     the center        and the university            were
statutorily       designated       as separate         institutions       of higher      education.
In our opinion,         there is no basis             for supposing        that section       54.062,
which     applies     when "a student              registers       at more than one public
institution      of higher education            at the same time," was not intended                  to
apply    to nursing        students       receiving       instruction       at both Texas Tech
University       Health     Sciences        Center      and Texas Tech University.                 Cf.
Educ. Code E54.505            (student       service     fees on concurrent            enrollmen=
Educ. Code 5103.01          (Midwestern        State University         joint    program).




                                                    p.   1676
Dr.   Lauro   Cavaros   - Page 4       (NW-476)




       The power accorded        the Texas Tech University             Board of Regents on
behalf    of     the center     by section       110.06     of    the Education      Code to
“execute     and carry out affiliation          or coordinating         agreements with any
other    entity     or institution       in the Lubbock          area” does not include
authority     to override     statutory     law or frustrate         the legislative    will.
When the legislature           acts   with     respect     to a particular         matter,    a
subordinate       administrative     agency may not so act with respect                to the
matter as to nullify          the legislature’s        action      even though the matter
be within       the agency’s     general     regulatory      field.       State v. Jackson,
376 S.W.2d 341 (Tex. 1964);             Martinez    v. Texas Employment Commission,
570 S.W.2d 28 (Tex. Civ. App. - Corpus Christ1                        1978, no writ).       The
Board of Regents of Texas Tech University                 is such a state agency.          -See
Lowe v. Texas Tech University.             540 S.W.2d 297 (Tex. 1976).

        The    purpose     of    the   suggested       contract         between     the    two
institutions      would be to circumvent        the operation        of section    54.062 of
the Education      Code, a course of action         inconsistent        with the authority
and duty of the board of regents               end the institutions            for which it
acts.      In our oninion.        such an agreement           would be an ineffectual
nullity.      _See State v..Ragland       Clir&-Hospital,           159 S.W.2d 105 (Tex.
1942);    Attorney    General Opinion MW-38 (1979).               Accordingly,     we advise
that section       54.062 controls      the maximum tuition            rate to be charged
students     of nursing simultaneously        pursuing      courses     at both Texas Tech
University      Health Sciences      Center and Texas Tech University.                  We are
also of the opinion         that no provision      of the proposed          agreement could
entitle     the university     to credits    for formula generation            purposes.     Of
course,     the fact    that such a void        contract      purported      to entitle     the
university      thereto    would not in itself          prevent       the university      from
earning     such credits     if it were otherwise        eligible      to claim them.

                                        SUMMARY

                  Section    54.062   of the Education         Code governs
              the maximum tuition        rate   for students     of nursing
              simultaneously      pursuing    courses    of study at both
              Texas Tech University         Health    Sciences   Center and
              Texas     Tech   University.        A proposed       agreement
              between     the two institutions          circumventing     the
              statute    would be a nullity.

                                                  *w



                                                                   WHITE
                                                       Attorney   General of Texas

 JOHN W. FAINTER, JR.
 First Assistant Attorney          General




                                          p.   1677
.. ’                                     W-476)
       Dr.   Lauro Cavazos   - Page 5




       RICHARD E. GRAY III
       Executive Assistant    Attorney   General

       Prepared    by Bruce Youngblood
       Assistant    Attorney General

       APPROVED:
       OPINION COMMITTEE

       Susan L. Garrison,     Chairman
       Jon Bible
       Rick Gilpin
       Patricia   Hinojosa
       Jim Moellinger
       Bruce Youngblood




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