                     ATTORNEY            GENERAL
                         OF     %?EXAS




                      Wy .2X,   1968



Honorable J. K. Willlame                 Opinion   NQ. M- 237
Conaqfasioner,CoordinatingBoard
Texas College 6rUn&versitySystem         Re:    Whether the Coordinating
San Houston Building                            Board of the Texas Col-
Austin, Texas 78701                             lege and University Sys-
                                                temmay allocate funds
                                                to the junior:colleges
                                                named in,the Appropriatiou
                                                Act .(SenateBill NO. 15,
                                                page 1571, omthe basis
                                                of the larger total of
                                                semester hours taught in
                                                approved courses~,Lnclud-
                                                ing those in excess of
                                                18 to any student and
                                                also those in excess of
                                                64 total houre earned
Dear ktr.Williamst                              by any student.

          In your request for an opinion       on the captioned question,
you state the following:

          'Paragraph2 of the appropriationst0
     the Texas public junior colleqee (page 157
     of Senate Bill NQ. 15 as enacted by the
     Regular Session Qf the 60th heqislatUxer
     1967) prwides a8 follows:

          “‘Paragraph 2.  It Is epecificallypro-
     vided that, out Of the BmOUnt apprQpr$ated
     hereinabws to Bee County Juntor College, tQ
     Central Texas College, to Galveston Comunity
     College, to College of Mainland, and to Tarrant


                         - 1153-
DQu. J.   K.   Williams, page 2 (M-227)



    County Junior College, the amount actually to
    be paid in each case shall not exceed:

          “‘Four FlundredSeventy-fiveDollars ($475)
    times each of the fir&     four'huzidred  fifty (450)
    full-time equivalent students enrolled on the
    twelfth class day of the fall semester of 1967,
    as determinedby the State Auditor, plus FQW
    Hundred Fifty Dollars    ($450) timea:each   full-
    time equivalent student in excess of the first.
    four'hwaraa   fifty   (4501, similarly determinaeI.O

          *In accordancewith the abwe provisions
    of this Act the State Auditor was asked to
    prwiae us with the enrollment @as determinea
    by the State Auditor' and accordinglyhas fur-
    nished us with such full-time student equivalent
    enrollment. However, his audited enrollment
    data show not only the total semester hours
    taught in apprwed courses for State appropriation
    purposes, but breaks out that portion of theee
    total semester hQurS which are in excess of 18
    for any individualstudent and in excess of 64
    for any student who has or thereafterwill have
    in excess of 64 total hours earned. He then
    suggests that we not funa the institutions
    for these hours 'in excess of 18 and in excess
    ,of   64.’

         "We request your opinion as to whether the
    CoordinatingBoara may allocate funds to the
    colleges epeclfied in paragraph 2 as shown above
    on tlaebasis of the,larqertotal of semester
    hours taught in approved cour8es (including
    those semester hours which are in excess of
    18 to any student and the number of hours taught
    to any student who has or thereafterwill have
    in excess of 64 total hoursearned). Cur CM-
    tern is whether the~law does not intena that
    we fund the junior college for all semester
    credit hours produced in approved courses,
    regardless of the number of hour6 taken by

                           - 1154-
Won, J. K. Williams, page 3 N-237)



     any student as such.
          ". . .Y

          The State Auaitor has aavieea you as follows:

          "As to your question concerning,thebasis
     for disbursing funds to these Colleges, let me
     say that we are sympathetic to the needs of these
     Schools as expressed by yau. However, without
     considering the legal aspects of another approach,
     it would seem that funds should be disbursed to
     them on the Sam5 basis that appropriationswere
     made to the other public junior colleges,for the
     fiscal year ending August 31st, 1968. As you
     know, historically these appropriations(includ-
     ing those to colleges newly created in recent
     years) have been based on the full-time student
     equivalentswhich excludea semester hours taught
     in excess of 18 to any student and excluded the
     number of hours taught to any student who has or
     thereafterwill have in excess of 64 tOt%l,.hour5
     earned."

          We have been furniehed the audit report of enrollment
records of public junior COllegeS of Texas for the fall semester
1967, prepared by the State Auaitor, which contains the figures
and shws the method of calculation used by the State Auditor
in determining the enrollment records.

          The statute,underoonsiderationis a part of the
Appropriation-GeneralAct of the 6Gth~Leqialature- Regular
Session, 1967, ,beinqa portion of Senate :BillNo. ,15,found
under the subtitle "TEXAS PUBLIC JUNIOR COLLPXXS - STAT8 AID,"
page 157 of said Senate Bill 15, and found on pages 225012253
of General and Special Laws of Texas, 60th ~Legislaturs- Regular
Session, 1967.

          In addition to paragraph 2 of said statute which is
above quoted, we deem the followingquoted portions~of the
statute to be significant for purposes of~this opinion,,to-wit:


                       -1155-
Hon. J. K. Williams, page 4 W227)



          "Paragraph4. To be eligible for and     to
     receive an appropriation,a Public JUniQr
     College must be certified as required by .   .    .
     and comply with the following provisions:

          “a.    .   .
                   .Only student semester hours
     of enrollment in courses approved for this PW-
     pose by the CoordinatingBoard shall be counted
     in determiningthe number of full-time student
     equivalents for each public junior college,
     'full-timestudent eauivalents'beins hereby
     defined as fifteen (15) semester hours of such
     enrollment;.

          "b, . . .

          “c .   l   .   .




          "8. . . .

         "e. Report to the CaordinatingBoard,
    Texas College and University System at such
    times and in such manner as said Board may
    prescribe, the number of semester hours taught
    in excess of eighteen (18) to any students, and
    the number of hours taught to any students who
    have or thereafterwill have in excess of sixty-
    four (64) total hours earned in this and any
    other accreditedcollege.* (hmphasisadded.)

          It will be noted that even though paraqrpph 2 pro-
vides that the number of full-time equivalent students shall
be “as determinedby the State Auditor,* the Legislaturenever-
theless specificallydefined "full-timestudent equivalent,",
resulting in the function of the State Auditor being ,ministerial
rather than discretionary.

          We think that a survey of past legislation in regard
to appropriationsfor public junior colleges evidences that
since 1955 the heqislaturehas ceased to require the exclusion
of hours over 18 and in excess of 64 from considerationin
arriving at the number of full-time student equivalents.

                             -1156-
.   .



        Hon. J. K. Williams, page 5 W-237)



                  The 47thr 48th, 49th, 5Oth, aud 51st Legislatures
        (1941-1949)provided for appropriationsof specific ,amounts
        to each of the various junior colleges, but the disbursements
        of such appropriationswere expressly put on a per capita basis
        for each full-time student, with the number of full-time students
        to be determinedby dividing the total number of semester hours
        carried by all students by the number 15, so that each 15 semester
        hours of enrollment is equivalent to one full-time student. It
        is noted that the per capita amounts increasedwith each suc-
        ceeding Legislature.

                  The 52nd and 53rd Legislaturesprovided again for
        per capita disbursement,and again the 15 semester hour,defini-
        tion of full-time student was expressed:however, these two
        Legislaturesdeclared that there shall be excepted from the
        number of hours to be divided by 15 the following: (a) all
        hours wer 18 carried by any one student, and (b) all hours
        carried by any student who has or thereafterwill heve in excess
        of 66 total hours earned.

                  The 54th Legislature, for the first time, provided
        for no per capita disbursement. In other words. appropriations
        were made for each college and there was no provision to the
        effect that the appropriationsWere to be disbursed in accord-
        ance with the number of full-time equivalent students. Further-
        more, no exception of any kind is made for hours in excess of
        18 carried by ~astudent or for total hours in excess of 66 (or
        64) earned by any one student. Here, for the first time, the
        Auditor is required to report these excess hours Over 18 and
        64 to the Legislatureand to the Texas Central Education Agency,
        which at that time had administrativecontrol of junior colleges.
        The Act of the 55th Legislaturewas practicallythe same as the
        54th. except for amounts appropriated.

                  The 56th, 57th and 58th Legislaturesagain provided
        for no per capita disbursement,with the exception that the 58th
        Legislature provided for per capita disbursement for a new junior
        college. Here again no exception is made with regard to hours in
        excess of 18,and 64 as above described;but each junior college is
        required to report the excess hours over 18 and 64 to the Texas
        Central EducationAgency, at such times and in such manner as
        said Asencv m%v direct.

                               -1157-
Hon. J. K. Willi%ms, page 6   (M-237)



          The 59th and 60th Legislaturesstill provided no per
capita formula for disbursement,except with reference to the
new junior colleges (see paragraph 2 of the Act of the 60th
Legislatureabove quoted) and with reference to disbursement
of the contingencyappropriation. Both os these Legislatures
provided for a contingencyappropriation,$1,000,000under the
59th's Act and $l,SOO,OOO under the 6Oth's Act, and such con-
tingencies are to be disbursed on % per capita basis with re-
gard to increased enrollments from one fall semester to the
next. Again no exceptions are made with regard to the excess
semester hours of enrollment Over 18 and 64, respect$vely:but
again reoorts %s to such matters %re required by each school to
the CoordinatingBoard, Texas Colleges and University System,
at such times and in such manner %s seid Board shall require.

          We have therefore concluded that only in the Acts of
the 52nd and 53rd Legislatureshave exceptions to disbursements
been based on exclusion of hours over 18 taught to any one student
and hours over 64 for any student who has or thereafterwill have
in excess of 64 total hours earned. (As a matter of fact, these
Acts specify 66 total hours rather than 64.) Beginning with the
54th Legislature,through the 60th Legislature,these matters
with respect to hours in excess of 3.8and 64, respectively,are
merely required to be reported. Undoubtedly,from information
furnishedby the Auditor's office, these m%tters are required
to be reported so that they can be taken into considerationwith
reference to appropriationsby the next succeeding Legislature.

           Although appropriationsapparentlyhave historically
been made based on the exclusion of hours over 18 and 64, BS
aforesaid, there is no history showing that disbursementshave
been so,llmited,except under the two Acts of the Legislature
in 1951 and 1953, when such exclusionswere expressly made a
part of the law. The basis for appropriationmay be quite dif-
ferent from the basis for disbursement.

          As far as disbursementis concerned, the intention of
the Legislaturemust be ascertained from the statute. The
statute is plain and unambiguous,placing disbursementto the
new junior colleges on a per cepita basis of full-time student
equivalents,and with the term "full-timestudent equivalents"
being expressly defined as meaning 15 semester hours of enroll-
ment, without any exceptions noted.
                       - 1158 -
Hon. J. K. Williams, page 7 (M-237)



Senate Bill No. 15 on the matters herein considered, is
plain and unambiguous,and therefore any departmental or ad-
ministrativeconstruction of it contrary to its plain wording
cannot have force of law by reason of practice. An administra-
tive constructionof a statute can have force of law only when
the statute in question is ambiguous and the administrativecon-
struction has been consistent and unequivocal over % long period
of time, usually after successive Legislatureshave convened.
Humble Oil & Ref. Co. v. Calvert, 414 S.W.2d 172 (Tex.Sup.1967);
Texas Railroad Commission v, T.&N.O. Railroad Co., 42 S.W.2d
1091 (Tex.Civ.App.1931, error ref.).

          We thus conclude that the Coordinating Board may
allocate funds to the colleges specified in paragraph 2 .of.
the Act of the 60th Legislature on the basis of the larger total
of semester hours taught in approved courses, including those
semester hours which %re in excess of 18 to any student and the
number of hours taught to any student who has or thereafter will
have in excess of 64 total hours earned. The allotments can be
made strictly on the basis of full-time student equivalents*
with that term being defined as 15 semester hours of enrollment.

                    SUMMARY

         The CoordinatingBoard of the Texas College
    and University System may allocate funds to ,the
    junior colleges named in paragraph 2 of the Ap-
    propriationsAct (Senate Bill No. 15, page 157)
    on the basis of the larger total of semester hours
    taught in approved courses, including those in ex-
    cess of 18 to any student and also those in excess
    of 64 total hours earned by any student. The num-
    ber of full-time student equivalents, upon which
    the allocations are made, should be determined by
    the State Auditor, but the State Auditor must con-
    sider 15 semester hours of enrollment as being a
    full-time student equivalent,without excluding
    hours in excess of 18 carried by any student and
    without excluding total hours in excess of 64
    earned by any student.



                       - 1159-
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