    OPPlCE OF THE ATTORNEY GENERAL. ST*TE OF TEXAS

    JOHN    CORNYN




                                              April 12,200O



Mr. James Nelson                                     Opinion No. JC-0207
Commissioner of Education
Texas Education Agency                               Re: Whether a school district may charge tuition
1701 North Congress Avenue                           for students attending a prekindergarten program,
Austin, Texas 78701-1494                             and related question (RQ-0107-JC)


Dear   Commissioner    Nelson:

        Your predecessor in office asked two questions regarding a school district’s authority to
charge tuition in certain circumstances. He asked first whether an independent school district may
charge tuition for students under the age of five who attend a prekindergarten program if the students
are not “eligible for state-paid pre-kindergarten programs” under section 29.153 of the Education
Code. Letter from Mike Moses, Commissioner of Education, to Honorable John Comyn, Attorney
General (Aug. 25, 1999) (on tile with Opinion Committee) [hereinafter “Request Letter”]. Your
predecessor also asked whether an independent school district may charge tuition for students
enrolled in a kindergarten program who are not yet five years of age or who are twenty-two years
of age or older. Id.

         We conclude that a school district may not charge tuition for either aprekindergarten student
or a kindergarten student who is not between the ages of five and twenty-two. Your predecessor’s
first inquiry assumes that a prekindergarten student who is not “eligible” under section 29.153(b)
of the Education Code is not entitled to the benefits of the available school fund and foundation
school program. Because we can address a school district’s authority to charge tuition without
weighing the validity of this assumption, we do not consider it here. Compare Request Letter,
supra, at 1 (“All other children are.    excluded from participation in the state-funded programs.“),
and Texas Education Agency, Frequently Asked Questions and Answers Prekindergarten (last
modified Jan. 13, 2000) ~http://www.tea.state.tx.us/curriculum/e                             (stating that
“ineligible children are not entitled to the benefits of the Foundation School Program”), with Tex.
Att’y Gen. Op. No. DM-196 (1993) at 2,4 (concluding that “[clhildren enrolled in prekindergarten
classes are entitled to the benefits of the available school fund,” as well as “the benefits of the
Foundation School Program”).

         Section 29.153 of the Education Code authorizes,         and in some cases requires,    a school
district to establish a prekindergarten program:

                           (a) Any school district may offer prekindergarten classes, but
                 a district shall offer prekindergarten classes if the district identities 15
                 or more eligible children who are at least four years of age. A school
Mr. James Nelson    - Page 2                       UC-0207)




                district may offer prekindergarten classes if the district identities   15
                or more eligible children who are at least three years of age.

                         (b) A child is eligible for enrollment in a prekindergarten
                class if the child is at least three years of age and is:

                            (1) unable to speak and comprehend     the English language;

                            (2) educationally   disadvantaged;   OI

                             (3) homeless, as defined by 42 U.S.C. Section 11302,
                regardless of the residence of the child, of either parent of the child,
                or of the child’s guardian or other person having lawful control of the
                child.

TEX. EDUC. CODE ANN. 5 29.153(a), (b) (V emon Supp. 2000) (emphasis added); see id. $5.001(4)
(defining “[elducationally disadvantaged” as “eligible to participate in the national free or reduced-
price lunch program established under 42 U.S.C. [§I 1751 et seq.“).

         A school district must admit to free kindergarten in the district a child residing in the district
who is at least five years old on September 1 of the school year. See id. 4 29.15 1 (Vernon 1996).
Section 25.001(b) of the Education Code requires a school district to admit, “free of tuition,” into
its public schools “a person who is” at least five but not yet twenty-one years of age on the first day
of September of the school year in which admission is sought. See id. 5 25.001(b) (Vernon Supp.
2000). A school district may admit a child younger than five years of age if the district has adopted
a policy for doing so, see id. 5 42.003(d) (V emon 1996), but it is not clear whether students younger
than five years of age must be admitted to a prekindergarten program or may be admitted to a
kindergarten program. We assume for the purpose of this opinion that a school district may admit
a child younger than five to a kindergarten program if the district has adopted a policy for doing so.

        Your predecessor’s first question asks whether a school district may charge tuition for
prekindergarten students who are “ineligible” for purposes of section 29.153 of the Education Code.
See Request Letter, supra, at 1. The second question likewise asks whether a school district may
charge tuition for kindergarten students who are not between the ages of five and twenty-two years
of age. See id. Both questions presented for our consideration ask, in effect, whether a district may
charge tuition in the absence of any statute expressly authorizing a district to do so.

         As a public entity, a school district may charge a fee or      tuition only if it is specifically
authorized to do so, either by statute or under the constitution. See   Tex. Att’y Gen. Op. No. DM-22
(1991) at 1; nccord Moore v. Sheppard, 192 S.W.2d at 559,561            (Tex. 1946). A statute must be
“strictly construed against allowing a fee by implication.” Moore,       192 S.W.2d at 561; accordTex.
Att’y Gen. Op. No. MW-104 (1979) at 1.
Mr. James Nelson    - Page 3                      (X-0207)




         We conclude that a school district may not charge tuition for prekindergarten students, solely
on account of the students’ status as prekindergarten        students, because no statute expressly
authorizes a school district to do so. Likewise, because no statute expressly authorizes a school
district to charge tuition for kindergarten students who are not between the ages of five and twenty-
two, we conclude that a school district may not charge tuition for these students solely on account
of their ages.

         Nonetheless, if a particular prekindergarten or kindergarten student falls into a category of
students for which a school district is authorized to charge tuition, the school district may do so.
Several statutes expressly authorize a school district to charge tuition for certain specific categories
of students, and a student’s status as a prekindergarten          student or as an under- or overage
kindergarten student does not exempt him or her from that authority. Thus, for instance, a school
district must charge tuition under section 25.003 of the Education Code for a prekindergarten or
kindergarten student “who resides at a residential facility and whose maintenance expenses are paid
in whole or in part by another state or the United States.” TEX. EDUC. CODE ANN. $ 25.003(a)
(Vernon Supp. 2000); see also id. $ 25.004 (Vernon 1996) (authorizing school district to charge
tuition for “a student who is not domiciled in this state and resides in military housing that is exempt
from taxation by the district”); id. 5 25.038 (permitting district to charge tuition fee for transfer
students in certain circumstances); id. 5 25.039 (Vernon Supp. 2000) (requiring school district that
does not offer kindergarten to pay district with which it has contract to educate kindergartners
resident in that district). In addition, a school district may charge prekindergarten and kindergarten
students any of the fees enumerated in section 11.158 of the Education Code. See id. 5 11.158(a).
But see id. 5 11.158(b) (listing items for which school district may not charge).


          Our conclusion comports with your agency’s understanding        of the law. In 1966 the
Commissioner     of Education held that fees could not be assessed “[i]n the absence of specific
authority expressly granted, constitutional or otherwise.” See Tex. Att'yGen. Op. No. H-702 (1975)
at 2. And your predecessor states that the Texas Education Agency assumes that fees may be
charged only if they have been expressly authorized by statute. See Request Letter, supra, at 1. The
construction placed upon a statute by the agency charged with its administration, while not binding,
is entitled to substantial weight. See Dodd Y. Meno, 870 S.W.2d 4, 7 (Tex. 1994).
Mr. James Nelson   - Page 4                    (X-0207)




                                     SUMMARY

                       Unless it has express statutory authority to do so, a school
              district may not charge tuition for any student attending a
              prekindergarten program or for a student who is not between the ages
              of five and twenty-two years old.




                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

 ELIZABETH ROBINSON
 Chair, Opinion Committee

 Kymberly K. Oltrogge
 Assistant Attorney General - Opinion Committee
