                                          The Attorney          General of Texas
                                                            December 22, 1982
MARK WHITE
Attorney General


                                        Mr. Aubrey L. Bullard                   Opinion No. MW-546
Supreme      Court Building
                                        Executive Director
P. 0. aox 12548
Austin.    TX. 76711. 2546
                                        Veterans Affairs Commission             Re:   Veteran's entitlement   to
512,475.2501                            P. 0. Box 12277, Capitol Station        tuition exemption under Hinson-
Telex    9101674.1367                   Austin, Texas   78711                   Hazelwood Fee Exemption Statute,
Telecopier     5121475-0266                                                     section 54.203 of the Education
                                                                                Code
1607 Main St., Suite 1400
Dallas. TX. 75201-4709                  Dear Mr. Bullard:
2141742-6944
                                             You have asked several questions regarding sections 54.203 and
                                        54.209 of the Texas Education Code which exempt certain individuals
4624 Alberta       Ave.. Suite    160
El Paso, TX.       79905-2793
                                        from tuition payments at state institutions of higher education.
9151533-3464
                                             Your first question is whether a state institution of higher
                                        education can require an individual exempted by section 54.203 or
1220 Dallas Ave., Suite          202
                                        section 54.209 to pay tuition.
Houston,     TX. 77002-6966
7131650.0666
                                             "Institution of higher education" is defined in section 61.003(7)
                                        of the Education Code as follows:
6CS Broadway.        Suite 312
Lubbock.     TX.    79401-3479
                                                 'Institution of higher education' means any public
6061747-5236
                                                 junior   college,   public   senior   college   or
                                                 university, medical or dental unit, or other
4309 N. Tenth. Suite B                           agency of higher education as defined in this
McAllen,     TX. 76501-1665                      section.
512,662.4547

                                        Therefore, sections 54.203 and 54.209 apply, inter alia, to      junior
200 Main Plaza, Suite 400               colleges.
San Antonio.  TX. 76205.2797
5121225-4191                                 Section 54.203 is a portion of subchapter D, "Exemptions from
                                        Tuition" of the Education Code. It states:
An Equal      Opportunity1
Affirmative     Action    Employer                  (a) The governing board of each institution of
                                                 higher education shall exempt the following
                                                 persons from the payment of all dues. fees, and
                                                 charges,   including   fees   for   correspondence
                                                 courses, but excluding property deposit fees,
                                                 student services fees, and any fees or charges for
                                                 lodging, board, or clothing, provided the persons
                                                 seeking the exemptions were citizens of Texas at
                                                 the time they entered the services indicated and




                                                                   p. 1980
Mr. Aubrey L. Bullard - Page 2   (M&546)




          have resided in Texas for at least the period of
          12 months before the date of registration:

               [(l) through (4) (categories of      persons
             eligible).] (Emphasis added).

Section 54.209 exempts dependent children of certain prisoners of war
or persons missing in action from tuition and fees at each institution
of higher education.

     Several prior opinions issued by this office indicate that
institutions of higher education must exempt eligible individuals from
the payment of tuition and fees. See Attorney General Opinions H-761
(1976) (no minimum requirement for%e    served during WW II to qualify
for tuition exemption); H-485 (1974) (Texas veterans must be exempted
from payment of tuition and fees when enrolling in courses at the
Extension Division of the University of Texas); O-7316 (1946)
(honorably discharged veteran of WW II with less than 90 days service
was eligible for exemption); O-7021 (1946) (enlisted Navy personnel
transferred to inactive duty were entitled to exemption if otherwise
qualified); 0-6077-a (1945) (dental students were exempt from
registration, tuition, laboratory and other fees of the University of
Texas School of Dentistry); O-5891 (1944) (&%-servicemen were entitled
to free tuition in public junior colleges).         It is clear that
institutions of higher education may not require an individual
exempted by section 54.203 or 54,209 to pay tuition, fees or charges
other than those expressly excluded from exemption.

     You next inquire if institutions of higher education may require
additional tuition, fees or charges for courses categorized as
"individualized instruction" courses, and if so, if an individual
eligible for exemption from tuition payments is required to pay the
additional tuition, fee, or charge.

     Section 130.003 of the Education Code establishes standards for
junior colleges in order to share in the appropriation of state funds.
Subsection (b)(4) requires junior colleges to collect tuition
according to the provisions of section 54.051 of the Education Code,
which determines tuition rates. See Attorney General Opinions MN-220
(1980); NW-63, MN-38 (1979); H-103,-61   (1973).

     Section 54.003 provides that no institution of higher education
may collect any tuition, fee, or charge except as permitted by law.
See also Educ. Code 130.003(b)(4). Co"seque"tly, the provisions of
section 54.051, which establishes tuition rates, are dispositive of
the issue. Section 54.051(g) permits an additional fee to be charged
for ncourses in art, architecture, drama, speech, or music, where
individual coaching or      instruction is the usual method of
instruction." The predecessor of this statute and the history of its
amendment were discussed in Attorney General Opinion O-2259 (1940),
which stated, in pertinent part:



                             p. 1981
Mr. Aubrey L. Bullard - Page 3    (MW-546)




            Article 2654~. [V.T.C.S.,] as amended by the
         addition of Section 4a, 46th Leg., S.B. No. 283,
         §I [now section 54.051(g)] provides for charging
         extra tuition from each student registering for
         courses in the Departments of Arts, Drama oi-
         Speech, and Music; it being recited in the
         emergency clause that this amendment resulted from
         a ruling by the Attorney General's Department,
         that extra tuition could not be charged for fine
         arts courses in State-supported i"stit"tio"s.
         Evidently the opinion referred to is No. O-177,
         which ruled that such institutions are not
         authorized to require any charges from students
         other than those authorized by the above mentioned
         statutes.

            We adhere to the conclusions expressed in our
         former opinion. As we construe these statutes, it
         was the purpose of the Legislature to prescribe
         the charges which such institutions are permitted
         to require of students registering in such
         schools, and when such fees are paid, no
         additional charges may be required by the
         enumerated State colleges and universities in the
         absence of an exception permitted by legislative
         enactment.

As the statute now reads, additional fees may be charged for courses
in art, architecture, drama, speech or music when those COUZS~S are
taught by individual instruction. Additional fees may be charged for
these coui-sas and for no others. Attorney General Opinion O-2259
(1940). Persons exempted by sections 54.203 and 54.209 are exempted
from these additional fees, however, by virtue of the legislative
mandate to exempt those persons from "all dues, fees, and charges,"
except, of course, those expressly excluded. Attorney General Opinion
O-4200 (1941).

     Your last question is whether an institution of higher education
may deny the exemptions provided by section 54.203 because the service
person had not acquired entitlement under chapter 32 of title 38,
United states Code, which establishes an optional educational
assistance program for persons entering military service after
December 31, 1976. 38 U.S.C. 51601. It is our opinion that the
establishment of entitlement to veterans' benefits is not necessary
for exemption under section 54.203. The requirements for eligibility
for tuition exemption are set forth in the statute; entitlement to
veterans' benefits under chapter 32 of title 38 is not among the
requirements. Section 54.203(d) states that:

             (d) The exemption from fees provided for in
          Subsection (a) of this section does not apply to a



                                 p. 1982
Mr. Aubrey L. Bullard - Page 4   @%J-546)




          person if at the time of his registration he is
          eligible for educational benefits under federal
          legislation in effect at the time of his
          registration.   A person is covered by the
          exemptions if his right to benefits under federal
          legislation is extinguished at the time of his
          registration.

This subsection was discussed in Attorney General Opinion H-761
(1976). That opinion said:

         The statute does not require that a person have
         aver been eligible for G.I. benefits in order to
         qualify for the tuition exemption. Although it
         specifically declares to be eligible a person
         whose 'right to benefits under federal legislation
         is extinguished at the time of his registration,'
         we do not believe the implication to be that
         persons who ware never eligible for federal
         benefits are not covered by the exemption.
         (Emphasis added). See Attorney General Opinion
         V-688 (1948). Accordingly, it is our opinion that
         a veteran need not have been eligible for nor
         received G.I. benefits from the federal government
         in order to qualify for the tuition exemption of
         section 54.203.

We believe this reasoning also applies to your question.            A"
institution of higher education may not deny the exemptions provided
by section 54.203 because the veteran had not acquired entitlement
under the program established by chapter 32 of title 38, United States
Code.
                             SUMMARY

             I"stit"tio"s of higher education may not
          require an individual exempted by section 54.203
          or 54.209 of the Education Code to pay tuition or
          additional fees for individual instruction. An
          institution of higher education may not deny the
          exemptions provided by section 54.203 because the
          veteran had not acquired entitlement under the
          program established by chapter 32 of title '38,
          United States Code.




                                       MARK      WHITE
                                       Attorney General of Texas




                                 p. 1983
.   .


        Mr. Aubrey L. Bullard - Page 5     (MW-546)




        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        RICHARD E. GRAY III
        Executive Assistant Attorney General

        Prepared by Patricia Hinojoss
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison, Chairman
        Jon Bible
        Rick Gilpin
        Patricia Hinojosa
        Jim Moellinger
        Joe A. Tucker




                                           p. 1984
