                                          The Attorney          General of Texas
                                                           October 19, 1982
MARK WHITE
Attorney General


                                        Honorable George W. McNiel, C.P.A.      Opinion No. MW-518
Supreme      Court Building
                                        State Auditor
P. 0. Box 12546
Austin.    TX. 76711. 2546
                                        Sam Houston Office Building             Re: Whether student services
5121475-2501                            Austin, Texas   78711                   listed in section 54.503 of
Telex    9101674.1367                                                           the Texas Education Code may
Telecooier     512,475.0266                                                     be funded with appropriated
                                                                                funds
1607 Main St., Suite 1400
Dallas,   TX. 75201.4709                Dear Mr. McNiel:
2141742.6944
                                             You request our opinion concerning the funding of student
                                        services. Section 54.503 of the Texas Education Code defines student
4624 Alberta       Ave., Suite    160
El Paso, TX.       799052793
                                        services as follows:
9151533.3464
                                                      (a)   For the purposes of this section,
                                                 'student services' means activities which are
1220 Dallas Ave., Suite          202
Houston,     TX. 77002.6966
                                                 separate and apart from the regularly scheduled
7131650-0666
                                                 academic functions of the institution and directly
                                                 involve or benefit students, including textbook
                                                 rentals, recreational activities, health and
606 Broadway,        Suite 312                   hospital services, medical services, automobile
Lubbock,     TX.    79401.3479
                                                 parking privileges, intramural and intercollegiate
6061747-5236
                                                 athletics, artists and lecture series, cultural
                                                 entertainment series, debating and oratorical
4309 N. Tenth.     Suite B                       activities,    student    publications,    student
McAllen,     TX. 76501-1665                      government, and any other student activities and
5121662.4547
                                                 services specifically authorized and approved by
                                                 the governing board of the institution of higher
200 Main Plaza, Suite 400                        education. The term does not include services for
San Antonio.  TX. 76205.2797                     which a fee is charged under another section of
5121225-4191                                     this code.

An Equal      Opportunity/              Section 54.503(b) authorizes the governing board of an institution of
Affirmative     Action     Employer     higher education to collect from students fees to cover the cost of
                                        student services. You wish to know whether, and to what extent,
                                        legislative appropriations for educational and general purposes may be
                                        used to support student services activities.

                                             We find no general law which bars the expenditure of appropriated
                                        funds on student services as defined by section 54.503(a) of the




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Honorable George W. McNiel - Page 2   (MW-518)




Education Code. However, the following appropriations act provision
is relevant to your question:

               'Elements of Institutional Cost.' The costs
          included in the various items appearing in the
          appropriations     for    the    several    academic
          institutions shall be considered to be all costs,
          including salaries, for those functions or
          activities in 'Definitions of the Elements of
          Institutional Costs,' Supplement A,         of the
          detailed instruction for preparing and submitting
          requests by     the    general academic     teaching
          institutions for legislative appropriations for
          the biennium ending August 31, 1983, published
          jointly by the Legislative and Executive Budget
          Offices unless otherwise provided by the terms of
          this Act. Bond premiums, Workmen's Compensation
          Insurance     Fund      operations,    Unemployment
          Compensation Benefits, insurance premiums where
          authorized by     law,    and   major   repair and
          rehabilitation of buildings and facilities, in
          addition to those specifically listed in line
          items, may be purchased from appropriated funds.

Acts 1981, 67th Leg., ch. 875, art. III, $4b, at 3717.          The
"Definitions of the Elements of Institutional Costs" referred to in
this provision states in considerable detail what constitutes
"elements of institutional costs." It also states as follows:

          Excluded from these elements and definitions are
          student services for which the Legislature has
          authorized fees under Section 54.503, Vernon's
          Texas Education Code, and all auxiliary enterprise
          operations and costs related thereto.

Executive and Legislative Budget Offices, Instructions for Preparing
and Submitting Appropriations Requests for Fiscal Years 1982 and 1983,
Agencies of Higher Education: General Academic Teaching Institutions,
at 4.    In our opinion, article III, section 4b of the current
appropriations act bars the expenditure of appropriated funds on
student services as defined by section 54.503, Education Code, unless
otherwise provided by the terms of the General Appropriations Act.

     You also ask whether constitutional ad valorem tax funds may be
used to construct facilities which in part provide student services.
Article VII, section 17 of the constitution establishes an ad valorem
tax fund for the construction of college buildings. The constitution
expressly provides that "none of the proceeds of this tax shall be
used for auxiliary enterprises."




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        Honorable George W. McNiel - Page 3   (MW-518)




             As noted in Attorney General Opinion H-1248 (1978), the language
        forbidding the use of article VII, section 17 proceeds for auxiliary
        enterprises was added to the constitution in 1965. See Senate Joint
        Resolution No. 24, Acts 1965, 59th Leg., at 2197.           The same
        legislative session which proposed the constitutional amendment
        included the following provision in the Higher Education Coordinating
        Act of 1965:

                       'Educational and     general buildings and
                  facilities' means     buildings   and   facilities
                  essential to or commonly associated with teaching,
                  research, or the preservation of knowledge.
                  Excluded are auxiliary enterprise buildings and
                  facilities,   including but     not   limited   to
                  dormitories, cafeterias, student union buildings,
                  stadiums. and alumni centers.

        Acts 1965, 59th Leg., ch. 12, 51, at 29 (codified at Educ. Code
        §61.003(13)). This contemporaneous usage of the term "auxiliary
        enterprises" indicates the meaning of that language as it appears in
        article VII, section 17 of the constitution. See Code Construction
        Act, V.T.C.S. art. 5429b-2, §2.01; Michael v. Michael, 79 S.W. 74
        (Tex. Civ. App. 1904, no writ) (language should be given meaning with
        which it was used by legislature).

             We note that section 61.003(13) distinguishes between buildings
        for auxiliary enterprise and buildings "essential to or commonly
        associated with teaching, research, or the preservation of knowledge."
        We believe this distinction further indicates that funds raised
        pursuant to article VII, section 17 may only be spent for buildings
        essential to or commonly associated with teaching, research, or the
        preservation of knowledge. In certain clear-cut cases this office has
        been able to inform you whether or not certain projects may be
        constructed with constitutional ad valorem tax funds. However, in
        other cases, factual considerations are relevant to the question of
        whether a building is "essential to or commonly associated with
        teaching, research, or the preservation of knowledge."       (Emphasis
        added). Since factual questions cannot be investigated and resolved
        by means of an Attorney General Opinion, we cannot state a general
        rule that would answer your question as to whether article VII,
        section 17 forbids the use of state ad valorem tax funds for each of
        the student services itemized in article 54.503(a) of the Texas
        Education Code.

                                    SUMMARY

                    A rider to    the current appropriations act
                 prevents  the     expenditure  of    legislative




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Honorable George W. McNiel - Page 4 @W-518)




         appropriations for the student services defined in
         section 54.503 of the Texas Education Code.




                                       MARK      WHITE
                                       Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger




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