                                                                              565




             OFFICE    OF THE   ATTORNEY      GENERAL     OF TEXAS
                                    AUSTIN                                ,
GROVER SELLERS
ATTOINSY GSNCRAL

 Honorable !I!. M. Trimble                               /+cv        &A
 Firrrt Assistant
 State Supt. of Pub& Instruction
  Auatirr,      Texq

  Ihsr   Sir;                                Qphli0n   NO, O-7346
                                             Ret   Uhether tax-supported
                                                   junior collegea may



  in pert,       aa followsr



         San Antonio Junior Colle
         resident students a hi
         is”oha;rged the reslden
         lem ‘Is baaio In view o




                           l

                           an or other”‘adminlstretive  of-
                           n his re6onrmendatlon, to select
                             ther employees oP, the oolJege,
                             mpensation end manner of pay-
                             nistretive  heed, faculty and
                       The Board shall alsO have the pov-
         or to fix and oollect fees for matriculation,
         laboratories,   library,    &ymnssiumand tuition.”
Honotible   T.   Il. Tplmblo, page 2


         It Ls soen that this provision 86ts no llmltatlon,   mln-
lmum or naxlmum, on the amount of tuition to be paid.    If there
Is any such express limitation, then :t must be found elsewhere
than in this aat,      I,

         The 49th Lsglslatwe   enttoted a funfor oollege approprls-
          &ate 1945, 49th Lsgislatum,    Ch. 234, 8, B. 67, p. 319,
               Vomon*s Annotated Civil Btstutes).     Seotlon 2 of
this Act provfdes, In part, as follovs:
          “sea, 2.        . It shall bo mandatory that each
     Institution   &icipatfng     In the SumIs herein provld-
     ed shall eolleot from laah DUDU enrolled. raatrlcula-
     tfon and other sesslon fees-nit    less than-the amounts
     provided by law and by other St6te-8upDorted instituu6lons
     of hi&or 1eaminR . , .” (Emphaslr added),
         This provlsiom~ls a llmltatlon as to mlnlmumfees which
may be charged by a junior college ii it is to qualify for partl-
oipatlon in Stats funds; houever, no maximumscale of sntrance
fees is provlded or prescribed.
           It ID notevqrthy thnt thq Aot rerers to the charging
of fees “not less than provided by law and by other State-supported
institutions   of higher learning.”     This provision is obviously
a referenos to Artloles 2654a, 2654b-1, and 26540, Vsrnon*r An-
notated Civil Statutes, regulating the tultlon rates o? State
educational Lnstitutlonr    05 aollsglate   rank. A junior oollege
to be eligible   under the appropriation act, therefore,    must
charge tuition fees not less than those prescribed by these ar-
tlales; however, it is nmimlted         b7 the a9t aa to the rasrlmum
amount whloh map be charged.
          It is sign:Ploant that Seation 2 of Art., 26540, vhloh
covera non-resident    students, provides c higher tuition fee for
such students.    Although  8 non-resident student Is defined under
Art. 26540 as one under 21 years of age vhose family resides in
another State or has resided vlthin this State for less than 12
monthr prior to registratl~      date , or a student of 21 or over
who resides out of the State or who has resided vithln this State
for less than 12 months prior to registration      date.  In other
words, a non-resldeot    student under Art. 26540 is one who resldss
                                                                        567


;ionorable T, M. Trimble,   page 3


ou~slde this State, vhoreas a non-resident student of a tax-supported
junior college la one vho resides outside the, confiner, of the junior
college district.   !Kherefore, the tVQ are not the samei yet, the
prlnaiple Is tiportant and It Is signlflcant   that the Legislature
provided a hi&or See fpr non-resident student?.
          Another factor to be considered    Is 34c, 5 of Art, 2815h,
vhlch provides as Sollovsr
           “sec. 5. The Board of Trustees of Junior Col-
     lege Dlstrlots  shall be governed in the establishment,
     management and control of the Junior College by the
     General Lav governing the establlohment, management e.nd
     oontrol of Independent School Districts  insofar as the
     Genersll Lav is appllcabl4.”
            An examination oS independent school district    lava re-
reals no statute applicable     to the question under consideration,
Articlea 2678~ 2696, 29048, and 2922L(l) dealing vlth transf’ers,
free tuition for scholastics     6 to 21, etc., obviouely do not ap-
PlP.   Yet,  an analogy  may be  drawn,
           In Sloocmb v. CameronIndependent School Mstrict,       116
Tex, 288, 288 3. W. 1064, the court bad before it for oonsldera-
tion Art. 2760, R. S., 1911 (nov Art. 2696).      Certain students
were duly trasrerred   from other districts    in the oouuty to the
Cameron dlstriot.   The trustees of the Cameron district    entered
an order requiring their students to pay certain tultion ahargaa
less transfer moncp received.   The father of these students re-
fused to pay the tultfon and instituted a..naction to restrain the
school board from attumptlng to oollect     the Mounts alleged to
be due. The Supreme Cowt statedr
           “It is our v,lov that the Leglslsture,      in enaot-
     ing this aztlole,       did not intend to require any lnde-
     pendsnt district      ‘In t&is state to educste 8 scholastic
     free OS charl;e any longer than the funds transferred
     with such scholastic       vould pay suah pupll~s proportion-
     ate part of the expense of opeFatlng the schools of
     such district.       In other vorda, as long as the state
     agportlorrment will operate the schools of the lnde-
     pendent dir trlot,      the transfer pupfl, vhose state ap-
     yy:;;ment        Is also transferred,  is not required to pap
                 But,    vhen tbe schools of the independent dis-
     trLct &at continue their term vlth money raised by
     local taxes levied upon the property within such
Honorable T. M. Trlmble, page 4


     district,   then the transfer pupil, a non-resident     of
     such district,   must pay a reaaonahle tuition.’
          And ln the ~880 of Love v. City of Dallas,       120 Tsx. 351,
40 8. W, (2d) 20, it was stated by the court:
            “For more than fifty years statutes have been
     in eff80t perml.ttlng transfers Srom on8 sohool dis-
     trlot to another, and some consideration must be gtwn
     to the oonstructlon of th* Constitution vhich the anaot-
     ment of these statute8 lmpliear       Since the ConstitutZon
     does not permit the taxation OS the people OS a school
     district   for the suppcrt J!’ that dlstrlot,    exoept upon
     a vote of the people of the district,      it Is not debat-
     able that the Legislature cannot compel one bistriot       to
     use its Funds and pFOpCti’ti88 for the education of scho-
     ~a~lcsE~;~8mzAher        district,  without just oompsnsa-
                         In vlev of the long operation oi’ the
     tram&      statu)tes, ve bellevb that where a school dia-
     trlct has facllitles     and teachers in 8xcess of those
     necessary for Its ovn scholastlos,      the state has the
     power to require it to accept transf’ers frcen another
     district,   but only upon the payment Of reasonable com-
     pensation therefor. l*e*
See also Ruck v. Publio Free Schools of the City of Austin, 290
S. W, 1.1183 Xuse v. McKimep Indapendsnt Sohool District,  35 S.W.
(2d) 780~ Opfnions go, O-2177 snd I?o, o-6333.
            It IS seen, therefore,   that a payment of masonable cots-
pensatlon to a school district     is necessary upon the trensfer of
a non-resideat soholastio to that district,      3ection 7 of Art.
2g15h authorices a junior college distrlot     to issue bonds for the
construction,   etc., of school buildQ@s and to levy a tax to pay
the same, and to levy taxes fop the support and maintenance or
the junior oollege.    The llmlt8tion   on the amount of taxes is
twenty (20) cents “on the One Hundred Dollars of property valua-
tion within said Dibtrict.    . .*
           It vould certalniy be reasonable for non-resident scholas-
tics to psy a higher tuition charge than resident scholastics,  for
othervise a buden vould be imposed upon the taxpayers of the dls-
trict.   Love V* city of Dallas, supra.
Honorable T. #.. Trirnble, 3wge 5


          You are,   ther8for0,   advised   that the Iollovlslg   1s the
op5.nion .of this dopcrrtmentr
           1. A junior c911egs organized under Article 2815h
is authorimd to fix reasonable tuition fees for its studonte,
and ffx the fee for non-realdent students at a highor rate than
thaf fixed lCor Feoldent pupils,
          2. In no event my the rates in dlstrlots    reoeLvlng
state aid (8, 8. 67, supra) be leso than *tiAe amounts provided
by lam md bJ other Stat+8upported   l.nstltutions of higher learn-
ing,’

           3. As to vhat would constitute a masonable tuition fee
both for resldeataand non-residents   is a matter for the sound dls-
cr8tFon of the boerd oi hurters    of the junior oollege district.
Several element8 enter into suoh detenuinatlon,    Love v. City of
Dallas, SUpI%.
          4.  It is OUP opinion that a reasonable   tuition rate to
be charged a non-resident 8tUdent by a junior oollege recelvlng
stste aLd would be one vhbh is cuffiolent   to oorspefisate the ool-
lege to? the education   OS suchmn-resident,      less   state aid recelv-
ed for such student.
           We are enclosing for your 8xaminatlon coples of Opinions
Ko. O-5891 and No, o-6957 vhich deal vith students who are OX-
servicemen.

                                            very truly   yours
                                            ATTORIVEY
                                                   0BKHRA.L
                                                         OF TEXA3




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