-   .




                              NEY       GENERAL

                                 EXAS




                               Aprfl 70 1950

        Eon. W. R. Banks                0pinlon No. 109.
        Aoting Chairmen
        Board of Directors              Re: The euthority of Texes
        Texas State University              Stete University for
          for Negroes                       Iiegroesto refund cer-
        Preirie View, Texes                 tein tuition peyments
                                            under the submitted
                                            facts, end related
        Deer Sir:                           questions.
                  In connectionwith your requaat for an opinion
        we have restated the facta submitted es followa:
                  One certain student, whose address Zs
             Johnaboro,Loulsiane, end edmlttedly 8 resi-
             dent of the Stete of Louisiena, enrolLed et
             The Texas State University for Negroes for
             the regular sessions of 1948-1949, and 19k9-
             1950, peylng for eech semester of eeoh long
             sassl.on,e tuition  of $25.00, the amount
             charged oitleens or resident student6 of Tex-
                  In January, 1950, it we8 dlsaovered thet
             l$'wes a oitizen end resident of Louislena.
             Whereupon, the authoritiesof said University
             demended that he pey, not only $150.00 for the
             current semester, but retroactively,for the
             duretlon of his ettendence et the institution.
             This student peld this indebtednesswith con-
             tributions end loens from his friends. These
             ?riends have asked the Boerd of Directors of
             the institutionto mfund to the student the
             money advenced him for this purpose.
                   Furthermore,Ft hes recently been dis-
              covered thet the institutionhas several other
              non-residentstudents who, through resident
              status error, heve not paid the non-resident
              tuition of $150.00 per semester. On October
              14, 1947, the Board of Directors of the Uni-
              versity fixed the non-restdentstudent tui-
              tion fee et $150.00 per semester.
                    The following questions ere eaked:
Ron. W. R. Banks, page 2   (V-1039)


          1. Does the Boerd of Directors have
     the authority to weive unpaid tuitfon fees
     on Its non-resfdentstudents, end collect
     only non-residentfees from its non-resident
     students from the time it discovers the ep-
     ror in the resident stetus of such students?

          2. Does such Board, in the cese present-
     ed, heve euthority to refund back-due tuition
     fees collected as non-residentfees?
           The Texes Stete University for Megroes is e
college creeted by the Legisleture under the euthority
of Section 48, Article III of the Constitution of Texas,
end is supported by ublic funds appropriatedb the
Legislature. S.B. lg0, Acts 50th Leg., R.S. 1& 7, oh.
29, p.36 (Art.2643b,V.C.S.); H.B. 319, Acts 51st Leg.,
R.S. 1949, oh. 584    .1133; S.B. 253, Acts 51st Leg., R.
5. 1949, ah.478, p:%E7; A.G. Opinion V-31. The division
of the University known es The Prairie View Agrioultural
and Mechanioal College of Texas is under the control end
supervision of the Board of Directors of The Agrioultur-
el end Meahenical College of Texas. Sec.2   of S.B. 140,
aupra.
          Tuition rates to be collected from students
enrolling in State supported institutionsof collegiate
renk ere provided for in Article 2654~~ Vernon's Civil
Statutes. A.G. OpinionNo.+-5891, Article 2654c, es
last amended by House Bill 507, 50th Leg,, R.S. 1947,
ch.218, p.389, effective at the tfme when the Texas
State Unlversfty for Negroes was created, protides:
          "Seeo 1. The governing boards of the
     several institutionsof collegiate rank sup-
     DoPted in whole or in vart bv vubllc funds
     appropriatedfrom the $tate Treasury shall
     cause to be collected from students E-
     terPng in th%XZ Fd schools after September
     1, 1933, tuition at the followfng ratas:
          "1* From each resident student, who
     registers for twelve (12) or more semester
     hours of work.per semester of four and one-
     helf (44) months, Twenty-fiveDollars ($25.-
     00) per semester; e e D
          "2o Prom each non resident student who
     regfsters for twelve (12) or more semester
I




    Hon. W. R. Banks, Page 3   (V-1039)


        hours of work per semester of four end one-
        half (li*)months, a regfstratfonfee of not
        less then Seventy-fiveDollars ($75) nor
        more than one Hundred and Fifty Dollers ($150)
        per semester as fixed end determined for each
        fiscel year by eech governing board; e . 0
             "(a) A nonresidentstudent is here de-
        fined to be a student of less than 0 . ."s21)
        gears of age, living away from his family, end
        whose femily resides fn another State, or whose
        family has not resided in Texas for the e . o
        (12) months Immediatelypreseding the date of
        registration;or a student of o . S (21) years
        of age or over who resides out of the State or
        who has not been a resident of the State . . .
        (12) months subsequentto his twenty-first
        birthday or for the . o 0 (12) months immed-
        iately preceding the date of registration.
             11
              . . D
               "(e) The governing boards of the sev-
         eral State-supportedinstitutionsere hereby
         euthorized to assess end collect from eech
         non-residentstudent falling to comply with
         the rules and regulatfons of the governing
         boerds concerning nonresIdentfees a penalty
         not to exceed Five Dollars ($5) per semester.
              "4. From each residen% s%uden% regis-
         tering for a summer sessfon, such an amount
         as shell be fixed by the gow~rnfng board of
         such fnstftution  bud fn no event less than
         Twenty Dollars ($20) for a twelve week term
         nor more than Thirty-fiveDollars ($35) for
         e twelve week term. From each nonresident
         student registeringfor a summer session such
         proportionateamoun% es is provided in pare-
         graph 2 of Section E as the length of the
         summer session bears to the length of the
         semester or term, provided, however, that in
         no event shall the summe'rsession fee levied
         on a nonresidentstuden% be less then the
         fee charged to a resident student; 0 o .,
              "SetD 2 ., All tuition, local.funds or
         fees collected by such ins%i%u%lonsshall be
         retained and expended by such institutions
                                                 .   .




Hon. W. R. Banks, page 4   (V-1039)


     end eccounted for ennuelly ea provided in
     the General AppropriationBill . . en
          The governing boerds of our Stete institutions
of higher learning ere provided for by statute. The mem-
bers of these boerds ten exercise no authority unless the
seme is expressly conferred or erises by necessary impli-
cation from the powers thet are conferred. Givens v.
Woodward, 207 S.W.2d 234 (Tex.Civ.Ap 1947 error dism.
W.O.j., 146 Tex, 396, 208 S.W.2d 3637; Wed   v. Univer-
               169 S.W.2d 993 (Tex.Civ.App.lW2, error
                Benedict, 122 Tex. 193, 55 S.W.2a 805
         7 R.C.L. 139 Universities  and Colleges Sec.8.
In the'metter of tuition rates to be charged students
(residentand nonresident)enrolling in such institutions,
the powers of the boards are prescribed in Article 2654~.
Exemptions from the payment of tuition by certein veter-
     resident citizens of Texas ere provided in Article
zg4b-1, but such exceptions r&d no considerationhere-
in.
          With respect to resident students, Article
2654~ requires that the governing board "shall cause to
be collected" from each such student who registers for
twelve or more semester hours er semester of four and
one-half months, twenty five ( 25) dollars per semester.
          As to nonresidentstudents, the statute re-
quires that the governing board "shall cause to be col-
lected" from each such student registeringfor twelve
or more semester hours per semester of four and one-half
months "a registrationfee of no% less than 0 D . ($75)
nor more than o 0 Q ($150) per semester es fixed and de-
termined" by the governing board. Rerein the board does
heve the,discretlonaryauthority  within the limits spec-
ified to determine what its nonresidenttuition fee shall
be. We are edvlsed that the tuition rate of the insti-
tution in question has been fixed at One Hundred and Fif-
ty Dollars per semester for each nonresidentstudent re-
gistering for twelve or more hours per semester of four
and one-half months.
          These tuition rates having been fixed by ana
in accordancewith law, it follows that it becomes the
statutory duty of the governing board to cause them to
be collected, to demand the Twenty-fiveDollar fee from
each resident student OP the One Hundred and Fifty Dol-
ler fee frcnneach nonresidentstudent et the time he is
enrolled or at such time when his correct stetus es re-
sident or nonresidentstudent is correctly determined
Hon. W. R. Banks, pege 5   (V-1039)


or diaoovered. Under Article  26540, the governing board
he8 no euthority,expressed or implied, to waive in whole
or in pert eny uncollectedpeymentsof tuition by its re-
sident or nonresidentstudents. Foley v. Benedict supra;
     Girerdeeu School Dist. No. 63 v. Frye 2m?.2d
    (Mo.App.1949);A. G. Opinions Nos. 0-d94, 0-5267. In-
deed, the Boerd is further euthorieed to assess end collect
a penalty of five dollars per semester from eaoh nonresi-
dent student feiling to comply with its rules fixing non-
resident fees. Art.2654c, Sec.1, par.2(e). This penelty
provision of the law is designed, we think to impose re-
sponsibilityon the enrolling student, in cases of doubt,
to heve determined from all the fects in his commend what
hds true status as a resident or nonresident student mey
  .
          With reference to your second question It fol-
lows from what has been seid in answer to your first
question thet the answer is in the negative. The college
cennot refund such belated tuition payments lewfully col-
lected. The status of the student as a nonresidentis
undisputed. Being e nonr&sidentstudent, the law re-
quits him to pay tuitation et nonresidentrates end the
Boerd to collect the same. Therefore, the money collect-
ed as tuition was lawfully aollected end deposited es
local funds of the institution, H.B. 546; Acts 51st Leg.,
R.S. 1949, ch.145, p.267 (Ar&.2643eaV.G.3.); Art.2654d,
V.C.S.  Local funds of such institutions,lewfully ool-
lected, oan be used or expended only for the urpose for
which they ere appropriated, R.B. 319, Sec.1Pa) end Gen-
era1 Provisions, subsec. (4 9 supra; A.G. Opinions Nos.
                           4
o-1662, o-1694,.o-7012, v-5 o


          It is the statutory duty of the governing
     boards of stete institutionsof higher leern-
     ing to ceuse to be collected from eaeh student
     as of the time of enrollmentthe tuition fees
     specified in Article 2654c, V.G.S.9 for eech
     semester of four end one-half months, which
     for resident studen%s is $25-00, and for non-
     resident students is such amount as may be fix-
     ed by the boerd, but not less than $75.00 nor
     more then $150.00. Such boerds heve no euth-
     ority, express OP implied, to waive in whole or
     in pert any uncollectedtuition required to be
Ron. W. R. Banks, page 6   (V-1039)


     paid by resident or non-restdentstudents, nor
     mey such boards refund tuition fees paid or
     colleoted in the amounts required.
                                  Yours very truly,
                                        PRICE DANIEL
APPROVED:                             Attorney Generel
J. C. Davis, Jr.
County Affairs Division              -&z&;rtL ?T&L.L.d
                                  BY
'CharlesD. Methews                Chester E. Ollison
 Executive Assistant                       Assistant
CEO:bh:mw
