                                 ATTORNEY GENERAL OF TEXAS
                                              GREG       ABBOTT


                                               February 6,2006



The Honorable Jim Pitts                                  Opinion No. GA-0395
Chair, Committee on Appropriations
Texas House of Representatives                           Re: Whether section 61.222 of the Education
Post Office Box 2910                                     Code authorizes the Texas Higher Education
Austin, Texas 78768-29 10                                Coordinating Board to approve for participation in
                                                         the tuition equalization grant program a private or
Raymund A. Paredes, Ph.D.                                independent college or university that does not
Commissioner of Higher Education                         have the same accreditation as public institutions
Texas Higher Education Coordinating          Board       of higher education (RQ-0374-GA)
Post Office Box 12788
Austin, Texas 7871 l-2788

Dear Representative     Pitts and Commissioner       Paredes:

         You both ask about the proper interpretation of section 6 1.222 of the Education Code, which
governs the Texas Higher Education Coordinating Board’s (“Coordinating Board” or “Board”)
authority to approve private and independent colleges and universities to participate in the tuition
equalization grant program (the “TEG program” or “program”). See TEX. EDUC. CODE ANN.
5 61.222 (Vernon Supp. 2004-05). Representative Pitts asks whether section 61.222 authorizes the
Coordinating Board to approve for participation in the TEG program a private or independent college
or university that does not have the same accreditation as public institutions of higher education.’
The Coordinating Board asks more specifically whether Dallas Christian College is eligible to
participate in the program.2

       The TEG program is governed by chapter 61, subchapter F of the Education Code. See id.
$4 61.221-.230 (V ernon 1996 & Supp. 2004-05). Section 61.221 establishes the program:

                         In order to provide the maximum possible utilization of
                 existing educational resources and facilities within this state, both



          ‘See Letter from Honorable Jim Pitts, Chair, Committee on Appropriations, Texas House of Representatives,
to Honorable Greg Abbott, Attorney General of Texas, at 1 (Aug. 9, 2005) (on file with Opinion Committee, also
available at http:llwww.oag.state.tx.us) [hereinafter Pitts Request Letter].

          ‘See Letter from Raymund A. Paredes, Ph.D., Commissioner of Higher Education, Texas Higher Education
Coordinating Board, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Aug. 12,2005) (on tile with Opinion
Committee, also available at http://www.oag.state.tx.us) [hereinafter Coordinating Board Request Letter].
The Honorable Jim Pitts - Page 2                         (GA-0395)
Raymund A. Paredes, Ph.D.



                 public and private, the coordinating board is authorized to provide
                 tuition equalization grants to Texas residents enrolled in any
                 approved private Texas college or university, based on student
                 financial need, but not to exceed a grant amount of more than that
                 specified in the appropriation by the legislature.

Id. 5 61.221 (Vernon Supp. 2004-05). Under the TEG program, a student at a private college or
university who makes a showing of financial need is eligible to receive a grant to equalize the
difference between tuition at the private institution and the tuition at public colleges and universities.
See id. 6 61.227.

       Only a Texas resident enrolled at an approved private college or university may receive a
grant. See id. Q 61.221. Section 61.222 governs the Coordinating Board’s approval authority:

                           The coordinating board shall approve only those private or
                 independent colleges or universities that are private or independent
                 institutions of higher education as defined by Section 61.003 or are
                 located within this state and meet the same program standards and
                 accreditation as public institutions of higher education as determined
                 by the board.

Id. 5 61.222.

         We understand from your letters that public institutions of higher education in Texas are
accredited by the Commission on Colleges of the Southern Association of Colleges and Schools3 and
that certain specialized programs at public institutions of higher education, like a law, medical, or
nursing school, are accredited by other accrediting agencies, like the American Bar Association, the
Liaison Committee on Medical Education, or the National League of Nursing.4 Dallas Christian
College, the subject of the Coordinating Board’s query, is not accredited by the Commission on
Colleges of the Southern Association of Colleges and Schools but is accredited by the Association
for Biblical Higher Education, an accrediting agency designated as recognized by the Coordinating
Board under the statutory provisions that authorize the Board to regulate private postsecondary
educational institutions.’



        3Pitts Request Letter, supra note 1, at 1; Coordinating   Board Request Letter, supra note 2, at 3.

        4Pitts Request Letter, supra note 1, at 2 n. 1; Coordinating   Board Request Letter, supra note 2, at 3-4.

          ‘See Coordinating Board Request Letter, supra note 2, at 2-3; see also TEX. EDUC. CODEANN. ch. 6 1, subch.
G (Vernon 1996 & Supp. 2004-05) (authorizing the Coordinating Board to regulate private postsecondary institutions);
id. $4 6 1.302(S) (Vernon Supp. 2004-05) (defining “recognized accrediting agency” as “an association or organization
so designated by rule of the board for the purposes of this subchapter”), 6 1.303 (exempting from Coordinating Board
regulation “an institution which is fully accredited by a recognized accrediting agency”); 19 TEX. ADMIN. CODE 5
7.4(a)(l) (2005) (listing recognized accrediting agencies). We gather from the Coordinating Board’s letter that the
Association for Biblical Higher Education does not accredit Texas public institutions of higher education.
The Honorable Jim Pitts - Page 3                       (GA-0395)
Raymund A. Paredes, Ph.D.



         In construing section 61.222 of the Education Code, we must give effect to the legislature’s
intent. See TEX. GOV’T CODE ANN. $6 3 11.02 1, .023 (Vernon 2005); Albertson s, Inc. v. Sinclair,
984 S.W.2d 958,960 (Tex. 1999); Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436,438 (Tex.
1997). To do so, we must construe it according to its plain language. See In re Canales, 52 S.W.3d
698, 702 (Tex. 2001); RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605,607-08 (Tex.
1985). We must also construe section 6 1.222 in context, considering the statute as a whole and in
light of other statutes that govern the Coordinating Board. See TEX. GOV’T CODE ANN. 6 3 11 .Ol l(a)
(Vernon 2005) (words and phrases to be read in context); Helena Chem. Co. v. Wilkins, 47 S.W.3d
486,493 (Tex. 2001) (“[WI e must always consider the statute as a whole rather than its isolated
provisions. We should not give one provision a meaning out of harmony or inconsistent with other
provisions, although it might be susceptible to such a construction standing alone.“) (citations
omitted).

        According to its plain language, section 61.222 requires the Coordinating Board to approve
only those institutions that satisfy either of two alternate sets of criteria. First, it must approve “those
private or independent colleges or universities that are private or independent institutions of higher
education as defined by Section 61.003.” TEX. EDUC. CODEANN. 0 61.222 (Vernon Supp. 2004-05).
Section 61.003( 15) provides as follows:

                 (15) “Private or independent institution of higher education” includes
                 only a private or independent college or university that is:

                         (A) organized under the Texas Non-Profit Corporation           Act
                 (Article 1396-l .Ol et seq., Vernon’s Texas Civil Statutes);

                        (B) exempt from taxation under Article VIII, Section 2, ofthe
                 Texas Constitution and Section 501(c)(3) of the Internal Revenue
                 Code of 1986 (26 U.S.C. Section 501); and

                         (C) accredited by the Commission on Colleges of the
                 Southern Association of Colleges and Schools or the Liaison
                 Committee on Medical Education.

Id. 9 61.003(15) (emphasis added). As the Coordinating Board notes, because the college it asks
about is not accredited by either entity listed in section 61.003(15)(C), the Coordinating Board may
not approve the college for participation,in the program based on this first set of criteria.6

        Under the second set of criteria, the Coordinating Board shall approve “those private or
independent colleges or universities that. . . are located within this state and meet the sameprogram
standards and accreditation as public institutions of higher education as determined by the board.”
Id. 8 6 1.222 (emphasis added). Unlike the first set of criteria, the second set of criteria does not
require that the college be organized as a nonprofit or exempt from taxation. Rather, to be eligible


        6See Coordinating   Board Request Letter, supra note 2, at 2.
The Honorable Jim Pitts - Page 4                        (GA-0395)
Raymund A. Paredes, Ph.D.



for approval under the second set of criteria, the college or university must be located in Texas
and meet the same program standards and accreditation as public institutions of higher education.
See id.

        Your letters indicate that you disagree about the meaning of the term “same.” In essence,
Representative Pitts construes “same” to mean “identical.“7 On the other hand, the Coordinating
Board suggests that “same” may mean “comparable,” “similar,” or “equivalent.“’ As it is not
defined by statute and is not a term of art, we must construe the term “same” according to its
common meaning. See TEX. GOV’T CODE ANN. 6 3 11 .Ol 1 (Vernon 2005). Dictionary definitions
include the terms “identical” and “equivalent” as synonyms of “same,” see WEBSTER’S NINTH NEW
COLLEGIATE DICTIONARY 1040 (1990), and we have not located any Texas case law defining the
term. According to a federal case regarding regulatory standards, “although the word ‘same’ is
susceptible of conveying several meanings -possibly even equivalency - ‘same’ and ‘identical’ are
synonyms and are treated as such in common usage.” Miss. Poultry Ass ‘n v. Madigan, 3 1 F.3d 293,
300 (5th Cir. 1994) (en bane) (citing WEBSTER’STHIRDNEWINTERNATIONALDICTIONARY           1122-23,
2007 (1981)).

         To the extent the term “same” may convey multiple meanings and therefore be ambiguous,
we note that in 2001 the legislature amended section 61.222 in Senate Bill 149 to add the first set
of criteria and to amend the language in what became the second set of criteria. In doing so, the
legislature changed the modifying phrase “comparable to” to “the same . . . as.” See Act of May 3,
2001,77th Leg., R.S., ch. 144, § 1,200l Tex. Gen. Laws 296,296.’ Clearly, the legislature intended
to change the law, and we must give this change meaning. See City ofHouston v. Clear Creek Basin
Auth., 589 S.W.2d 671,681 (Tex. 1979) (“It is apparent that in amending the statute, the legislature
intended some change in the existing law, and this court will endeavor to effect the change.“); Am.
Sur. Co. of N Y. v. Axtell Co., 36 S.W.2d 715, 719 (Tex. 193 1) (legislature presumed to have
intended some change to existing law when amendment was enacted and effect must be given to


          ‘See Pitts Request Letter, supra note 1, at 2 (“The plain meaning of the statute is that only a [Commission on
Colleges of the Southern Association of Colleges and Schools] accredited institution (or a specialized institution that is
accredited by the same accrediting body as a specialized public institution) may participate in the TEG program under
Section 6 1.222.“).

          8See Coordinating Board Request Letter, supra note 2, at 2-3 (suggesting that section 61.222 may authorize the
Coordinating Board to approve for participation in the TEG program a college that is accredited by an accrediting agency
that the Board has designated as a recognized accrediting agency under Education Code, chapter 61, subchapter G).

         ‘Senate Bill 149 amended section 6 1.222 as follows:

                  The coordinating board shall approve only those private or independent colleges
                  or[;] universities that are private or independent institutions of higher education
                                                                           .  . . .             ...
                  as defined by Section 61.003 or[r
                  as] are located within this state and[m]      meet the sa’me program standards and
                  accreditation     as [w              ] public institutions of higher education as
                  determined by the board.

Act of May 3, 2001, 77th Leg., R.S., ch. 144, 5 1, 2001 Tex. Gen. Laws 296, 296.
The Honorable Jim Pitts - Page 5                          (GA-0395)
Raymund A. Paredes, Ph.D.



amendment); accord Tex. Att’y Gen. Op. No. GA-0208 (2004) at 7; see also Gateley v. Humphrey,
254 S.W.2d 98, 101 (Tex. 1952) (holding that the fact that significant words are omitted from the
reenactment or amendment of a statute “imports a conclusive presumption that the legislature
intended to exclude the object theretofore accomplished by the abandoned words”); TEX. GOV’T
CODE ANN. 5 3 11.023(l), (3), (5) (Vernon 2005) (in construing a statute a court may consider the
statute’s objectives, its legislative history, and the consequences of a particular construction). This
amendment indicates that the legislature intended the phrase “the same . . . as” to mean “identical
to” as opposed to “comparable to” or “equivalent to” or “similar to.” Moreover, the substitution of
“same” for “comparable” also indicates that the legislature intended to restrict rather than expand
the Coordinating Board’ s authority to approve institutions.

        Finally, this construction is consistent with chapter 61 as a whole. See TEX. GOV’T CODE
ANN. $311 .Ol l(a) (Vernon 2005) (words and phrases to be read in context); Helena Chem. Co.,
47 S. W.3d at 493 (“We should not give one provision a meaning out of harmony or inconsistent with
other provisions, although it might be susceptible to such a construction standing alone.“). Since
chapter 61 was first enacted in 197 1,” section 6 1.003, which defines chapter 61 terms, has included
the term “recognized accrediting agency.” TEX. EDUC. CODE ANN. 9 61.003(13) (Vernon Supp.
2004-05).” That term means “the Southern Association of Colleges and Schools and any other
association or organization so designated by the board.” Id. (emphasis added). If the legislature
had intended section 6 1.222 to authorize the Coordinating Board to approve for participation in the
TEG program colleges and universities accredited by an entity designated by the Board, it would
have used the term “recognized accrediting agency,” as it has done in statutes governing other
programs.12

       In sum, the phrase “same . . . as” in section 61.222 means “identical to” and section 6 1.222
does not broadly authorize the Coordinating Board to approve colleges and universities accredited



         “SeeActofMay22,         1971,62dLeg.,R.%,ch.       1024,art.   1, $ 1, 1971 Tex.Gen.Laws3072,3131-33

          “The term “recognized accrediting agency” is also used in subchapter G of chapter 6 1. In subchapter G, the
term has its own definition that applies only for purposes of that subchapter. See TEX. EDUC.CODEANN.$ 61.302(S)
(Vernon Supp. 2004-05) (“‘Recognized accrediting agency’ means an association or organization so designated by rule
of the board for the purposes of this subchapter.“). The Coordinating Board has designated accrediting agencies under
this authority in rule 7.4. See 19 TEX. ADMIN. CODE$ 7.4(a)( 1) (2005). A recognized accrediting agency designated
by the Coordinating Board under subchapter G is not necessarily a recognized accrediting agency under section
61.003(13). However, in some cases board rules implementing other programs reference the subchapter G rules to
designate recognized accrediting agencies. See, e.g., id. $4 21.205 l(S), .2083(9).

           “See, e.g., TEX. EDUC. CODE ANN. $3 51.602(5) (Vernon 1996) (“‘Institution of higher education’ means a
public institution of higher education as defined by Subdivision (8) of Section 6 1.003 of the Education Code or a private
college or university that issues degrees in this state and is accredited by a recognized accrediting agency as defined by
Section 61.003 of this code.“) (Engineering        and Science Recruitment Fund), 56.161(4) (“‘Institution’ means an
institution of higher education, as defined by Section 6 1.003 ofthis code, or a private college or university that is located
in this state and is accredited by a recognized accrediting agency, as defined by Section 6 1.003 of this code.“) (Minority
Doctoral Incentive Program), 6 1.80 l(2) (“‘Public or private institution ofhigher education’ means an institution ofhigher
education or a private college or university accredited by a recognized accrediting agency.“) (Texas Partnership and
Scholarship Program).
The Honorable Jim Pitts - Page 6                        (GA-0395)
Raymund A. Paredes, Ph.D.



by accrediting agencies that do not accredit public institutions of higher education, Thus, based on
the facts about accreditation stated in your letters, we agree with Representative Pitt’s conclusion
that under section 6 1.222 “only [Commission on Colleges of the Southern Association of Colleges
and Schools] accredited institutions (or a specialized institution that is accredited by the same
accrediting body as a specialized public institution) may participate” in the TEG program.13 In
answer to his specific question, section 6 1.222 does not authorize the Coordinating Board to approve
for participation in the TEG program a private or independent college or university that does not
have the same accreditation as public institutions of higher education. In answer to the Coordinating
Board’s question, a college that is accredited by an entity that does not accredit public institutions
of higher education does not meet the same accreditation as public institutions of higher education
and the Coordinating Board is not authorized to approve the college to participate in the TEG
program.14




          13Pitts Request Letter, supra note 1, at 3, as clurzjkd by Letter from Honorable Jim Pitts, Chair, Committee on
Appropriations, Texas House of Representatives, to Honorable Greg Abbott, Attorney General of Texas (Sept. 9,2005)
(on file with Opinion Committee).

           14The Coordinating Board is concerned that excluding from the TEG program a college accredited by an
accrediting agency that the Board has designated as a recognized accrediting agency under subchapter G of chapter 61
of the Education Code could be considered unreasonable.      See Coordinating Board Request Letter, supra note 2, at 4;
see also notes 5 & 11 supra. However, the TEG program is established and governed under subchapter F of chapter 6 1.
The legislature has not used the term “recognized accrediting agency” in subchapter F. Moreover, in section 6 1.222 the
legislature has expressly required that a college have the same accreditation as public institutions of higher education
to participate in the program.
The Honorable Jim Pitts - Page 7             (GA-0395)
Raymund A. Paredes, Ph.D.



                                       SUMMARY

                        Section 6 1.222 of the Education Code does not authorize the
               Higher Education Coordinating Board to approve for participation in
               the tuition equalization grant program a private or independent
               college or university that does not have the same accreditation as
               public institutions of higher education. A college that is accredited
               by an entity that does not accredit public institutions of higher
               education does not meet the same accreditation as public institutions
               of higher education and the Coordinating Board is not authorized to
               approve such a college to participate in the program.




BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
