                       The Attorney              General of Texas
                                         September     4,   1980
MARK WHITE
Attorney General

                   Honorable Oscar H. Mauzy                  Opinion NO. MN-2 32
                   Chairman
                   Senate Education Committee                Re: Allocation     of funds t&m
                   Texas Senate, State Capitol               student services fees to student
                   Austin, Texas 78711                       directed   nonprofit    corporations
                                                             engaged in public interest research
                                                             activities

                   Dear Senator Mauzy:

                         You have requested our opinion regardirlg the allocation of funds from
                   student services fees to student directed nonprofit corporations engaged in
                   public interest research activities.

                         Prior to its amendment by the 66th Legislature, Acts 1979, 66th
                   Legislature, chapter ‘756, at 1872, section 54.503(b) of the Education Code
                   provided, in pertinent part:

                                  The governing board of an institution of higher
                              education    may charge and collect from students
                              registered 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
                              voluntary    cr compulsory as determined        by the
                              governing board.

                   (Emphasis added). In 1979 the Legislature deleted the underlined portion of
                   the statute.   You ask whether this deletion affects the constitutionality of
                   section 54.503(b), as applied to public interest research activities.

                         In  Letter Advisory No. 6 (1973), this office       concluded   that   the
                   governing board of an institution of higher education:

                                  might validly     dstermine,    in the reasonable
                              exercise of their delegated legislative discretion, that
                              public interest research activities constitute student
                              services ‘necessary or desirable in carrying out the
                              educational functions of the institution’, and collect
                              voluntary student fees to cover the cost thereof.
Honorable Oscar H. Mauzy - Page Two          (MW-232)



The opinion said that the determination required by the statute, that the board &em
the activity “necessary or desirable in carrying out the education functions of the
institution,” was essentially a version of the public purpose test. As was indicated in
the opinion:

               [el xpenditures for a true public purpose do not violate
           Article 3, S51 of the Constitution [prohibiting grants of public
           money to corporations or individuals], even when a private
           agency is used to achieve the purpcee.

        In our opinion, the deletion of the referenced language from section 54.503(b) of
the Education Code does not affect its constitutionality.      Even though the governing
board may no lcnger be required to make the determination           formerly directed by
statute, the board, in order to authorize the expenditure, must nevertheless find that it
will serve a valid public purpose. Although Letter Advisory No. 6 was limited to
activities funded by voluntary, rather than compulsory fees, the statute makes no such
distinction, end in cur view, article HI, section 51 of the state constitution &es not
require such a distinction.     So lcng as the board properly makes a determination that
the expenditure will serve a valid public purpcee, we believe it may allocate funds
from student services fees to student directed nonprofit corporations engaged in public
interest research activities.

                                    SUMMARY

               So long as the governing board of an institution of higher
           education makes a &termination          that the expenditure will
           serve a valid public purpose, it may allocate funds from student
           services fees to student directed nonprofit corporations engaged
           in public interest research activities.
                                                                       A




                                              Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jon Bible
Susan Garrison
Rick Gilpin
Peter Nolan




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