                                 Office   of tfy 9Wmep             @enend
                                           &tate     of Z!Lexas
DAN MORALES
 ATTORNEY
      GENERAL                                August 10,199s


   The Honorable Tee1 Bivins                          Opinion No. DM-48 1
   Chair, Senate Education Committee
   Texas State Senate                                 Re: Whether Education Code section 51.306,
   P.O. Box 12068                                     which requires basic skills test for students at
   Austin, Texas 78711                                public universities, may be applied to students at
                                                      proprietary schools (RQ-978)

   Dear Senator Bivins:

            You ask about the authority of the Texas Higher Education Coordinating Board (the
   “coordinating board” or “board”) to extend the application of section 5 1.306 of the Education Code
   to proprietary school students. Section 5 1.306, as amended by the Seventy-fifth Legislature in 1997,
   requires “[elach undergraduate student who enters a public institution of higher education [to] be
   tested for reading, writing, and mathematics skills prior to enrolling in any coursework.“’ The test
   to be used by each institution is the Texas Academic Skills Program Test, or “TASP test,” or an
   alternative test prescribed by the board.’ A student whose performance on the TASP test is below
   the board-prescribed standard for the tested skill must participate in developmental courses offered
   by the institution in which the student is enrolled and on the same campus at which the student
   would otherwise attend classes.’ A student may not enroll in an upper division course until the
   student has performed satisfactorily on the test for each skill or earned a grade of “B” or better in a
   tie&man-level     course in each skill.4

            Section 5 1.306 provides a number of exceptions to its application. For instance, the testing
   requirements do not apply to a high school student who performs at or above a certain level on the
   high school exit-level assessment exam: or to an entering or transferring student who has achieved
   a certain score on the Scholastic Assessment Test or the American College Test.6 Nor do the testing



           ‘Educ. Code 6 5 1.306(b).

           ‘Id. 5 51.306(c).

           ‘Id. 5 51.306(e),

           ‘Id. 5 51.306(g)

           ‘Id. 5 51.306(1).

           61d. 5 51.306(m)
The Honorable Tee1 Bivins             - Page 2           (DM-481)




requirements apply to a deaf student,’ or to a blind student unless the test is administered by a
method appropriate to that student8 Section 51.306 also prescribes such things as procedures for
development and administration of the test, state funding to institutions for developmental courses,
board payment of test costs for financially needy students, and institution reporting of test results.9

         You ask: “Has the Texas Higher Education Coordinating Board been granted the power to
extend the scope of Section 51.306, Education Code, or any part thereof, to students seeking degrees
at proprietary schools?’ We understand you to use the term “proprietary school” as it is defined in
section 132.001 of the Education Code:

                   (1) “Proprietary school” means any business enterprise operated for a
              profit, or on a nonprofit basis, that maintains a place of business within this
              state, or solicits business within this state, and that is not specifically
              exempted by this chapter and:

                       (A) that offers or maintains           a course or courses of instruction        or
                   study; or

                        (B) at which place of business such a course or courses of
                   instruction or study is available through classroom instruction or by
                   correspondence,    or both, to a person for the purpose of training or
                   preparing the person for a field of endeavor in a business, trade, technical,
                   or industrial occupation, or for avocational or personal improvement.‘0

         The testing requirements of section 51.306 apply,                 with certain exceptions, to “[elach
undergraduate student who enters a public institution of higher            education.“” Clearly, any power on
the part of the coordinating board to impose the TASP test                 requirements on proprietary school
students does not come from section 5 1.306. Section 5 1.306               by its terms applies only to students
attending public institutions of higher education. ” Proprietary           schools are not public institutions of




         ‘Id. 5 51,306(r)(3)

         8Id. 5 51.306(n).

         9Zd. !j 51.306(c), (b), o’), (k).

         “Id. 5 132.001(l).

         “Id. 5 51.306(b).

           “For purposes of section 51.306, “institution of higher education” has the meaning assigned to it by section
61.003 of the Education Code. Section 61.003 defmes “institution of higher education” as “any public technical
institute, public junior college, public senior college or university, medical or dental unit, or other agency of higher
education as defmed in this section.” Id. 5 61.003(S).



                                                         p.   2726
The Honorable          Tee1 Bivins       - Page 3             (DM-481)




higher education. I3 Thus section 51.306 does not authorize the coordinating board to require
students enrolled in proprietary schools to pass the TASP test as a condition of obtaining degrees.

         We next examine the coordinating boards view that its power to require degree candidatesI
at proprietary schools to pass the TASP test comes from section 132.063 of the Education Code,
which provides: “A proprietary school may offer a degree approved by the Texas Higher Education
Coordinating Board.” Relying on section 132.063, the board adopted rules establishing the basic
standards for degree programs at proprietary schools. I5 The stated purpose of the rules is to “ensure
the integrity of applied associate degrees offered by proprietary institutions.“r6 Proprietary schools
offering applied associate degrees and the degree programs themselves are required to “meet
minimum institutional and educational program quality standards.“‘7 The standards established by
the board include, among other things, faculty and administrator qualifications, minimum curriculum
elements, and length of program requirements.‘s

          Significant to your question is the board rule adopted under the authority of section 132.063
that provides: “Each person who enrolls in an applied associate degree program at a proprietary
institution on or after September 1,1997 must pass all sections of the certification form of the Texas
Academic Skills Program (TASP) examination at the level established by the Coordinating Board
before the degree may be awarded.“19 The purpose of this rule, according to the board, is to ensure
that “degree programs at proprietary schools meet the same quality standards as programs offered
at public technical and community colleges.“zo

        We know of no court or attorney general opinion that has examined the scope of the authority
granted to the coordinating board in section 132.063 to “approve[r a degree offered by a proprietary



          “See id. (defming “institution of higher education”); id. 5 132.001 (defming “proprietary school”); see ako
id. 5 132.002 (providing that educational institutions supported by funds from state 01 local taxation are not proprietary
schools).

             ‘VThe coordinating board does not assert that it may require non-degree candidates to t&e the TASP test. A
“degree”     is defined in the Fducation Code as “any title or designation, mark abbreviation, appellation, or series of letters
OI words,      including associate, bachelor’s, master’s, doctor’s, and their equivalents, which signifies, purports to, or is
generally     taken to signify satisfactory completion of the requirements of all OI part of a program of study leading to an
associate,     bachelor’s, master’s, or doctor’s degree OI its equivalent.”  Id. 5 61.302(2).

             “17 T.A.C. ch. 12.

             161d.5 12.21.




             ‘=Id. $5 12.43, .44, .46, .47, .48.

             ‘91d. $ 12.52

             “21 Tex. Reg. 4939 (June 4, 1996) (explainiig         proposed rule 19 T.A.C. § 12.52).



                                                              p.      2727
The Honorable      Tee1 Bivins     - Page 4             (DM-481)




school. Where an agency’s rulemaking authority is unclear or in doubt, courts and this office
generally defer to the agency’s reasonable interpretation of its statutory authority, provided the
interpretation is not clearly erroneous. ” As stated above, the testing requirement is intended by the
board to ensure that degree-earners at proprietary schools meet substantially the same qualifications
as students earning similar degrees at public institutions of higher education who are required by
section 51.306 to take and pass the TASP test. We believe that a court would find that the
coordinating board’s authority under section 132.063 to approve a degree at a proprietary school
reasonably includes the authority to establish requirements for an approved degree and to include
within the requirements the prerequisite that students pass the TASP test as a condition of obtaining
a degree.

         Furthermore, courts give great weight to an agency’s long-standing interpretation of a statute
of doubtful meaning, and are inclined to accept an agency’s interpretation where the legislature re-
enacts or amends a statute without substantive change. ” The coordinating board first adopted
detailed rules regarding proprietary school degree programs in 1991 under the authority of chapter
32, the predecessor to current chapter 132.23 The legislature amended the statute in 1995, but did
nothing to curtail the scope of the board’s power. 24 In such a case, a court is likely to find that the
legislature has acquiesced in the agency’s interpretation of its statutory authority.

         Finally, we note that unlike section 5 1.306, the board rule for TASP testing at proprietary
schools does not provide for any exceptions to its application, such as for deaf or blind students. Nor
does the rule contain any of the prescriptions for developmental courses, state funding, reporting,
aid to needy students, and similar provisions contained in section 51.306. The rule provides only
that a proprietary school student must pass all sections of the TASP examination at the level
established by the board before an associate degree may be awarded. Because the board’s testing
rule was not and could not be adopted under the authority of section 5 1.306, the rule need not adhere
to the requirements of that section. It is within the board’s power to establish exceptions or
requirements as part of the rule, subject of course to judicial review.25




          “See, e.g., Le v. Farmers Ta. Counfy Uut. Ins. Co., 936 S.W.2d 317, 324 (Tex. App.--Houston  [lst Dist.]
1996, writ denied); Terns Health Facilities Comm’n v. El Paso Med. Surgical Assoc., 573 S.W.Zd 291,295 (Tex. Civ.
App.--Tyler 1978, tit ref d n.r.e.); Attorney General Opinions DM-443 (1997) at 2, DM-216 (1993) at 2.

        “See Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172, 180 (Tex. 1967); Bullock v. Marathon Oil Co.,
798 S.W.Zd 353,357 (Tex. App.--Austin  1990, no writ).

         %Vee 16 Tex. Reg. 3524 (June 14, 1991); 16 Tex. Reg. 1334 (Mar. 1,199l).

         %See Act of May 27, 1995,74tb    Leg., R.S., ch. 260,s   2,1995   Tex. Gen. Laws 2207,2457

           %e board might wish to consider the requirements   of the Americans   with Disabilities Act, 42 USC.   $12 101,
et seq., in adopting exceptions to the rule.




                                                        p.    2728
The Honorable   Tee1 Bivins   - Page 5        (DM-481)




                                         SUMMARY

               Section 5 1.306 of the Education Code, which requires each undergraduate
           student who enters a public institution of higher education to take and pass
           the Texas Academic Skills Program Test, or “TASP test,” does not authorize
           the Texas Higher Education Coordinating Board to require students enrolled
           in a proprietary school to pass the TASP test as a condition of obtaining a
           degree. However, we believe that a court would find that the coordinating
           board’s power under section 132.063 of the Education Code to approve a
           degree at a proprietary school reasonably includes the authority to require
           proprietary school students to pass the TASP test as a condition of obtaining
           a degree.




                                             DAN     MORALES
                                             Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Barbara Griffin
Assistant Attorney General




                                              p. 2729
