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DAN MORALES
 ATTORNEY
      GENERAL                                  November 5, 1996

     Dr. William H. Cunningham                              Opinion No. DM 421
     Chancellor
     The University of Texas System                         Re: Whether the board of regents of an
     601 Colorado Street                                    institution of higher education may waive
     O’Hemy Hall                                            all or part of tuition and fees for a particular
     Austin, Texas 78701                                    student or a particular group of students
                                                            and related questions (RQ-737, RQ-769)
     The Honorable Judith Zatlirini
     Chair, Health and
      Human Services Committee
     Texas State Senate
     P.O. Box 12068
     Austin, Texas 78711

     Dear Dr. Cunningham and Senator Zaflirini:

              Both of you ask questions regarding the authority of the governing board of an
     institution of higher education to waive certain tuition and fees for a particular student or
     group of students. All of the questions asked require a re-examination of Attorney Gen-
     eral Opinion H-1028, as well as an examination of the tuition and fee provisions in
     Education Code chapters 54 and 55. Accordingly, we answer your questions together.

             Dr. Cunningham is generally concerned about the authority of the board of regents
     of The University of Texas System. In addition to asking about the board’s general
     authority to waive tuition and fees, Dr. Cunningham asks whether, as a part of the com-
     pensation and benefits package it offers its employees, the board may adopt a policy
     waiving all or part of certain fees for its employees who enroll at the component institu-
     tion’ at which they are employed. If so, he asks whether the board also may waive all or
     part of certain fees for spouses and dependent children of its employees, Finally,
     Dr. Cunningham asks whether, if we determine that the board generally may not waive
     fees for its employees, the board may waive fees upon a determination that the knowledge


               9’h.e Univenity of Texas System is composed of several institutions and entities, listed in section
     65.02 of the Education code: The University of Texas at Arlington, The University of Texas at Austin,
     The University of Texas at Dallas, The University of Texas at El Paso, The University of Texas of the
     Permian Basin, The University of Texas at San Antonio, The University of Texas Southwestern Medical
     Center at Dallas, The University of Texas Medical Branch at Galveston, The University of Texas Health
     Science Center at Houston, The University of Texas Health Science Center at San Antonio, and The Uni-
     versity of Texas M.D. Anderson Cancer Center. Throughout this opinion, we will refer to the institutions
     and entities that compriseThe University of Texas System as “the component institutions.”
Dr. Wiiiam H. Cunningham - Page 2                     (DM-421)
The Honorable Judith Zatfnini




or skills available through certain courses offered by the component institution that em-
ploys the faculty or staff member will enhance the individual faculty or staff member’s
ability to perform his or her duties.

        Senator ZaSirini asks specifically about group hospital and medical services fees.
She inquires whether a governing board may waive medical services fees for active duty
military personnel who attend an institution of higher education. Senator ZafErini explains
that, because the military provides medical coverage for these individuals, they will not use
the medical services a university may provide.

         We believe it will be helpfil to begin by briefly summarizing the Education Code
provisions about which you ask. Dr. Cunningham’s questions involve provisions through-
out chapters 54 and 55. Chapter 54 of the Education Code, titled “Tuition and Fees,”
contains the majority of the fee provisions about which Dr. Cunningham asks. Chapter 55
generally authorizes the board of an institution of higher education to acquire or construct
permanent improvements,2 and to use the revenues from fees section 55.16 authorizes to
pay off bonds the institution sold to finance the permanent improvements.s In general,
chapters 54 and 55 provide for two types of tuition and other fees, which we will term
“mandatory” and “discretionary.” First, the Education Code provides that the board
“shall” collect certain fees; we will call these “mandatory” fees4 Second, the Education
Code provides that the board “may” levy certain fees; we will call these “discretionary
fees.5 A discretionary fee may be either voluntary or compulsory. Various sections of
chapter 54 define a “voluntary fee” as “a fee that is charged only to those students who
use the student service for which the fee is established.“6 By contrast, a “compulsory fee”
is “a fee that is charged to all students enrolled at the institution.“7

       Senator Zaflirini’s questions concern specific sections of Education Code chapter
54. Section 54.503 authorizes the governing board of an institution of higher education
except The University of Texas at Austin or the University of Houston System to collect
from students registered at the institution a student services fee that may include fees for

        2&z F&x. Code p 55.11.

         %ee id. § 55.17(a).

         4See id. 55 54.008(a) (tuition for graduate pmgrams), .051(b) (tuition), .501(a) (laboratory fees),
.502(a) (general property deposits).

         %ee, e.g., id. 0s 54.006(a) (matriculation fee), .007@) (incidental fees for students paying tuition
by installment or delinquent in payments), Ml (penalty from nonresident students who fail to comply
with rules and regulations regarding nonresident fees). ,066 (tuition rates for resident doctoral students
who have more semester credit hours of doctoral work than allowed).

         61d. 5 54.503(a)(3); see also id. 55 54.5061(a)(3), .513(a)(3).

         ‘Id. 5 54.503(a)(2); see also id. @ 54.5061(a)(2), .513(a)(2).




                                                     p.   2347
Dr. William H. Cunningham - Page 3                 (DM-421)
The Honorable Judith Zatlirini




health and hospital services and medical services. * Sections 54.507 through 54.50891,
including section 54.5089, which the senator cites, authorize particular universities or uni-
versity systems to collect medical services fees: Texas A&M University System, Texas
Tech University, University of North Texas, Texas Woman’s University, Texas State Uni-
versity System components, and The University of Texas System components.

        This office construed Education Code section 54.503 in Attorney General Opinion
H-1028, and we believe the answer to all of your questions depends in part upon that
opinion’s continued validity. Attorney General Opinion H-1028 considers whether the
Texas A&M University System may waive compulsory fees collected pursuant to section
54.503(b) of the Education Code for students who receive instruction off-campus. A rep-
resentative of the Texas A&M University System had informed this office that students
who receive instruction off-campus “do not have physical access to use facilities by reason
of being off-campus for instruction.“y

          Section 54.503(b) of the Education Code, which Attorney General Opinion
H-1028 considered, is a discretionary fee provision that authorizes the governing board of
an institution of higher education to “charge and collect from students registered at the
institution fees to cover the cost of student services.” Attorney General Opinion H-1028
stated that the governing board of an institution of higher education has broad authority to
adopt rules and regulations for the operation of section 54.503(b) of the Education
Code.r” Furthermore, according to the opinion, a court will not interfere with the board’s
rules and regulations unless a challenger clearly shows that the governing board has acted
arbitrarily or abused its authority. lr Thus, this office concluded that, so long as the
amount of the fee or fees does not exceed the maximum set in section 54.503 and so long
as the governing board levies the fee in proportion to the number of semester credit hours
for which a student registers, the governing board may waive or modify the student serv-
ices fee in an appropriate circumstance, such as where “a student ‘does not have physical
access to use facilities by reason of being off-campus for instnrction.“‘rs

         In 1987, subsequent to the issuance of Attorney General Opinion H-1028, the leg-
islature amended section 54.503 by expressly defining compulsory to denote a fee imposed
upon all students and voluntary to denote a fee imposed only upon those students who use




       *Id. 5   54.503(a)(l),(b).

       yAttomey      GeneralOpinionH-1028 (1977) at 2.

        loId. at 3 (quoting   LetterAdvisory No. 6 (1973) at 2).

        “Id. (quoting   LetterAdvisory No. 6).

        121d.at 3.



                                                      p.   2348
Dr. William H. Cunningham - Page 4                 (DM-42 1)
The Honorable Judith ZatTuini




the service.” If Attorney General Opinion H-1028 remains valid, the governing board of
an institution of higher education may waive a compulsory fee for those students who do
not use the service for which the fee is charged. Now, however, a fee that an institution
charges only students who use the service is, by definition, a voluntary, as opposed to a
compulsory, fee. In light of the statutory amendment to section 54.503, the conclusion
Attorney General Opinion H-1028 reaches no longer makes sense, and we hereby con-
clude that Attorney General Opinion H-1028 has been superseded by the 1987 statutory
amendments. Thus, if a governing board wishes to impose a discretionary fee upon only
those students who will use the service, it may adopt a voluntary fee. Once a governing
board has adopted a discretionary, compulsory fee, however, it may not waive the fee for
students who do not use the service. On the other hand, we find nothing in section 54.503
that precludes a governing board from changing a compulsory fee to a voluntary fee. In-
deed, section 54.503 specifically provides that a fee “may be either voluntary or
compulsory as determined by the governing board.“14

        We next consider the broader issue of whether a governing board may waive a
mandatory or discretionary tuition or fee in any instance in which the waiver is not ex-
pressly authorized by statute. We do not believe that it may. The legislature has laid out a
complex scheme of tuition and fees in Education Code chapters 54 and 55 and has in-
cluded in the scheme various reasons for which a governing board may reduce or waive
tuition or fees. We believe the legislature’s system pre-empts any discretion the governing
board of an institution of higher education may have had to waive tuition and fees. IJ

         Throughout chapters 54 and 55 of the Education Code, the legislature has set forth
in detail who may be exempt from, or eligible for reduced, tuition and fees. Chapter 54
explicitly restricts a board’s power to charge tuition and other fees of individuals who fall
within particular categories described in various sections ofthe code. Assorted sections of
subchapter B, for example, provide limited circumstances in which specified nonresidents
may register in an institution of higher education as a Texas resident and pay the tuition
and fees associated with Texas residency.16


         13See Act of May 31, 1987, 7001 Leg., R.S., ch. 901, 8 6, 1987 Tex. Gen. Laws 3047, 3049; see
also supro text accompanyingnotes4-5. Whenthis officeissuedAttorneyGeneralOpinionH-1028, Edu-
cation Code section 54.503 authorized the governing board of an institution of higher education to
determine whether the student services fee would be compulsory or voluntary, although the stamte did not
define the terms. See Anomey General Opinion H-1028 (1977) at 1 (quoting Educ. Code 8 54.503(b)).
Anorney General Opinion H-1028 does not discuss the distinction between those terms, however. But see
Anomey General Opinion M-537 (1969) at 2.

         14Educ. Cede 5 54.503(b).

         *%ee Anomey General Opinion H-1028 (1977) at 3 (quoting Letter Advisory No. 6 (1973) at 2).

          %ee Educ. Code @j 54.058(c), (f) (spouses and children of military personnel), ,059 (pmfessor
of higher education, as well as professor’s spouse and children), .063 (teaching assistant or research assis-
tant, as well as spouse and children), .064(a) (scholarship students).




                                                    p.   2349
Dr. William H. Cunningham - Page 5                 (DM-421)
The Honorable Judith Zatlirini




         In addition, subchapter D of chapter 54 explicitly exempts distinct groups of stu-
dents from the payment of tuition for part or all of the time the students are enrobed at an
institution of higher education. For instance, Education Code section 54.201 authorizes
the governing board of an institution of higher education to exempt the highest ranking
graduate of each of the state’s accredited high schools. Section 54.203 requires the board
to exempt a veteran, among others, from “the payment of all dues, fees, and
charges       [except] property deposit fees, student services fees, and any fees or charges
for lodging, board, or clothing,” provided the veteran meets certain requirements. Finally,
section 54.207 authorizes a board to exempt from the payment of “tuition fees”” two
hundred native-born students from other nations of the American hemisphere and thirty-
five native-born students from a Latin American country designated by the United States
Department of State.18

         Further, some of the sections in chapters 54 and 55 expressly authorize the govem-
ing board of an institution of higher education to waive the discretionary fees that section
provides. Three of the fee provisions about which Dr. CumGngham asks authorize a board
to waive fees the section permits the board to collectrg Significantly, however, each of
these sections specifies that a board may waive the fees authorized by that section only if
the imposition of the fee would cause an undue financial hardship upon the student.20
Moreover, each section limits the number of waivers a board may grant to a percentage of
the total enrollment at the institution of higher education.

         Viewing chapters 54 and 55 of the Education Code as a whole, we believe the
legislature has enacted a complete scheme for the levying of tuition and other fees. The
legislature has provided for certain individuals a specific right to resident tuition, although
the individual otherwise would not qualify for the lower resident rates. Additionally, the
legislature has listed nine categories of individuals that a board of an institution of higher
education must or may exempt from certain tuition and other fees. The legislature ex-
pressly has provided in relation to three discretionary fees that a board may waive the fees,
and the legislature expressly has limited the circumstances in which the board may waive
such fees.

         17Section 54,205(a)(4) of the Education code defines “tuition fees” for purposes of that section to
include “all dues, fees, and enrollment charges whatsoever for which exemptions may be lawfully made,
including fees for correspondence courses, general property deposit fees, and student serviczs fees.” The
term does not include, however, fees or charges for lodging, heard, or clothing. Educ. code
8 54.205(a)(4).

         F%e also Educ. Code 98 54.204 (children of disabled tire fighters and peace officers), .205
(blind or deaf students), ,208 (fire fighters enrolled in fire science courses), .209 (children of prbnem of
war or persensmissingin action), ,210 (senior citizens),,211 (studentsin fosteror other residentialcare),
.212 (certain AFDC students).

         ‘gSeeEduc. Code 55 54.503(e), .513(h), .16.

         2oSee id. $8 54.503(e), .513(h), 55.16.




                                                     p.   2350
Dr. William H. Cunningham - Page 6               (DM-421)
The Honorable Judith Zafkini




         We therefore conclude that the governing board of an institution of higher educa-
tion may waive a mandatory fee, that is, one that the statute requires the board to charge
and collect, only when the board is explicitly authorized to do so.21 Likewise, a governing
board may waive a discretionary fee, compulsory or voluntary, only in accordance with
explicit statutory authority. 22 The governing board may not waive the collection of a dis-
cretionary, compulsory fee for a student because the student does not have physical access
to campus facilities or will not use the services the fee is designed to subsidie.~     As to
discretionary, voluntary fees, any student is free to decline to pay the fee if he or she will
not use the service offered. The governing board may not, however, waive a voluntary fee
for a student who will use the service (unless a statute authorizes the board to do so).24

        In summary, a governing board may not waive any tuition or fee, whether the fee
is mandatory or discretionary, unless expressly authorized by statute. With respect to
waiver, then, the mandatory-discretionary distinction is irrelevant. The distinction be-
tween discretionary, compulsory fees and discretionary, voluntary fees is relevant only
insofar as a governing board may not charge a voluntary fee to a student who will not use
the service and insofar as we find nothing precluding a governing board authorized by
statute to impose either a compulsory fee or voluntary fee from changing a compulsory fee
to a voluntary fee.

        We now must determine how to interpret statutes in chapters 54 and 55 that
authorize a discretionary fee, but do not indicate whether the fee must be compulsory,
voluntary, or whether the governing board may determine whether the fee will be compul-
sory or voluntary. The legislature has authorized the governing boards of institutions of
higher education to determine whether some of the discretionary fees will be voluntary or
compulsory.2J Additionally, at least one statute, which authorizes Texas A&M University
to charge a group hospital and medical services fee, stipulates that the discretionary fee

        21See, e.g., Educ. Code 55 54.008, ,051, ,501, .502(a)

        22We find only three express waivers in those sections of chapters 54 and 55 of the Education
Code pertaining to The Universityof Texas System or its component institutions: Education Code sec-
tions 54.503(e), .513(h), and 55.16. Each of these provisions permits the governing board of an
institution of higher education to waive the fee authorizedby that section only if impositionof the fee
would cause undue tinancial hardship to the student. Moreover, each of these provisions limits the num-
ber of students for whom the board may waive the fee to a specitied percentage of the total enrollment.
See E&c. Code $8 54.503(e) (ten percent), 54.51301) (same), 55.16 (five percent).

       23Again, we find nothing that precludes a governing board from changing a compulsory fee to a
volmmuy fee.

        24We are unaware of any provision in Education Code chapters 54 and 55 that pennits a govem-
ing board to waive a voluntary fee in any circumsmnes, but the legislature is free, of course, to enact a
waiver provision in the future.

         2sS.se Fduc. Code 55 54.503(b) (student services fee), .5061(c) (student services foes in Univer-
sity of Houston System), .513(c) (student service fees at University of Texas at Austin).




                                                p.   2351
Dr. William H. Cunningham - Page 7                (DM-42 1)
The Honorable Judith ZatIirini




will be compulsory.26 The legislature has not stipulated whether the remaining discretion-
ary fees are to be compulsory, voluntary, or within the governing board’s power to decide.
Nevertheless, we believe the legislature enacted these statutes to permit a university to
raise substantial sums of money for large projects or for the maintenance of existing facili-
ties. In addition, the language of most of the provisions indicates a legislative intent that,
if a governing board imposes a discretionary fee, it must charge every registered student.
Most of the statutes, for example, direct the governing board that chooses to impose a
particular fee, to charge “each student,“27 or on a “per student” basis.28 In our opinion,
therefore, where the legislature has not stipulated that a discretionary fee must be compul-
sory, voluntary, or the governing board’s choice, the fee must be compulsory.

        With this discussion of the tuition and fee scheme the legislature has devised, we
turn to your specific questions. In his first question, Dr. Cunningham asks generally
whether the governing board of The University of Texas System may waive all or part of
tuition or fees for a particular student or a particular group of students. As we have ex-
plained, a governing board may waive a fee, whether mandatory or discretionary, only if
the legislature expressly has allowed a waiver. 2g The university may not, of course, im-
pose a voluntary fee upon a student who will not use the service.

         We turn to Dr. Cunningham’s second question, in which he asks whether the board
may “adopt a policy” waiving all or parts of certain fees for all members of the faculty and
staff as well as their families, who wish to enroll at the component institution that em-
ploys the faculty or stalf member. Again, a governing board may not waive any fee unless
the board is expressly authorized to do so. Accordingly, we conclude the board may not
waive the collection of fees from a faculty or staff member or a member of a faculty or
staff member’s family if the individual enrolls in a component institution unless the waiver
is statutorily authorized.30

        We believe our answer to Dr. Cunningham’s second question is supported by sec-
tions 54.059 and 54.063 of the Education Code, which provide that a teacher, professor,
teaching assistant, research assistant, or a member of the family of a teacher, professor,
teaching assistant, or research assistant are entitled to register as residents and pay the
lower fees charged to residents of the state, even though the student does not qualii as a


        W-ze id. 5 54.507(a).

        27See,e.g., id. $8 54.5085, .509, ,520, .538.

        2*.%x, e.g., id. $5 54.512, ,522, ,534.

        2ySee id. $5 54.503(e), .513(X), 55.16.

         SoThe board may, of course, exempt from the paymem of certain fees a faculty or staff member or
a member of the family of a faculty or staff member if the student is within one of the exemptions listed in
chapter 54, subchapter B.




                                                  p.    2352
Dr. William H. Cunningham - Page 8                  (DM-421)
The Honorable Judith Zaflirini




resident under section 54.052. If a board of an institution of higher education might waive
the collection of certain fees from these individuals, sections 54.059 and 54.063 would be
meaningless. But we must presume that the legislature intended to enact a meaningful
statute.31

         Dr. Cunningham’s third question asks again whether the board may waive fees for
a faculty or staff member who enrolls for a particular course at the component institution
that employs the faculty or staff member, but he adds the condition that the board feels the
course work will enhance the faculty or statf member’s ability to perform his or her duties.
Regardless of the purpose of the waiver, the board may not waive the collection of fees
from a faculty or staff member unless the waiver is statutorily authorized. Of course, the
legislature may pass legislation to authorize such waivers, and the other waivers about
which Dr. Cunningham asks, if it chooses to do so.

        Senator Zatlirini asks whether the governing board of an institution of higher edu-
cation may waive medical service fees for active-duty military personnel who will not use
the services. In line with our conclusions above, a governing board may not waive a fee
for a student because the student will not use the services. If the fee is voluntary, of
course, students who will not use the service are not charged. Again, the legislature may
pass legislation to authorize the waiver of medical service fees for active-duty military per-
sonnel who will not use the services if it chooses to do so.




          3t.Yee67 TEX. RJR. 3D Statutes 8 133, at 738 (1989). Section 51.908(a) of the Education Code
authorizes the board to “establish faculty compensation policies that, to the greatest extent possible, pro-
vide the fkulty of the institution with an average salary and benefits at least equal to the average of that
provided by similar institutions nationwide having a similar role and mission.” ln our opinion, regardless
of whether similar institutions nationwide waive tuition and certain other fees, as a benefit to their faculty
and staff members, for those faculty and staff members and their family members who attend classes at the
institution, chapters 54 and 55, read as a whole, preclude the board from establishing, as a benefit to its
employees, a policy waiving the collection of fees from the employees or members of their families. See
Gov’t Code 5 311.026(b) (providing that, if general statute irreconcilably conflicts with special statute,
8phil statute prevails as exception to general statute).



                                                     p.   2353
Dr. William H. Cunningham - Page 9        @M-421)
The Honorable Judith Zaflirini




                                   SUMMARY

                Attorney General Opinion H-1028 (1977) has been superseded
          by amendment to Education Code section 54.503. Unless a statute
          explicitly permits the waiver, a governing board may not waive any
          fee created by chapter 54 or 55 of the Education Code. A university
          may not charge a discretionary, voluntary fee of a student who will
          not use the service the fee is designed to subsidize. Where the legis-
          lature has not stipulated that a discretionary fee must be compulsory,
          voluntary, or the governing board’s choice, the fee must be compul-
          sory.

               Unless it is expressly authorized by statute, the board of regents
          of The University of Texas System may not adopt a policy waiving
          the collection of compulsory fees from faculty and staff members
          who enroll in courses at the institution that employs them. Similarly,
          without express statutory authority, the board may not adopt a policy
          waiving the collection of compulsory fees t?om members of the f&i-
          lies of faculty and staff members who enroll in classes at a
          component institution. As to individual faculty or statf members or
          individual members of the families of faculty or staff members, the
          board may waive the collection of fees as expressly authorized by
          statute.

              The governing board of an institution of higher education may
          not waive a medical service fee for active-duty military personnel be-
          cause the students will not use the services.




                                                     DAN MORALES
                                                     Attorney General of Texas

JORGE VEGA
Fist Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General




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