                              ATTORNEY GENERAL OF TEXAS
                                          GREG        ABBOTT




                                             August 26, 2008



Raymund A. Paredes, Ph.D.                              Opinion No. GA-0655
Commissioner of Higher Education
Texas Higher Education Coordinating Board              Re: Whether the Higher Education Coordinating
Post Office Box 12788                                  Board's standard method of calculating high
Austin, Texas 78711                                    school grade point averages must be followed by
                                                       independent school districts (RQ-0716-GA)

Dear Commissioner Paredes:

         Texas Education Code section 51.807 requires the Texas Higher Education Coordinating
Board (the "THECB") to adopt rules establishing a "standard method for computing a student's high
school grade point average" and requires that such method be applied to compute the "grade point
average of a student applying as a first-time freshman for admission to a general academic teaching
institution beginning with admissions for the 2009 fall semester." TEX. EDUC. CODE ANN.
§ 51.807(a), (c) (Vernon Supp. 2008). Section 28.0252(a) of the Texas Education Code similarly
allows the Commissioner of Education (the "Commissioner") to develop a standard method of
computing a student's high school grade point average; however, to the extent that the
Commissioner's method conflicts with the THECB' s method, the THECB' s method shall be used
for purposes ofdetermining admission under subchapter U, chapter 51 ofthe Texas Education Code.
See ide § 28.0252. As paraphrased, you ask: (1) whether school districts must use the standard
method adopted by the THECB to calculate grade point averages if the Commissioner has not
developed a standard method for doing so; (2) whether the THECB is required, or if not required
then permitted, to provide for a transition period to implement the standard method; (3) whether a
method that did not allow for a transition period would be unconstitutional; and (4) whether
subsections 28.0252(b) and (b-1) can be interpreted to mean that the THECB's method applies only
to students who enter grade nine in the 2007-2008 school year or thereafter. l

I.      Background

       To place sections 28.0252 and 51.807 in context, we first review the statutory schemes in
which they are found. In 1997, the Legislature enacted subchapter U, chapter 51 of the Education


        ILetter from Raymond A. Paredes, Ph.D., Commissioner of Higher Education, Texas Higher Education
Coordinating Board, to Honorable Greg Abbott, Attorney General of Texas, at 1-2 (May 9, 2008) (on file with the
Opinion Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].
Raymund A. Paredes, Ph.D. - Page 2                     (GA-0655)




Code, creating a uniform admission policy for all general academic teaching institutions. 2 See Act
of May 28, 1997, 75th Leg., R.S., ch. 155, § 1, 1997 Tex. Gen. Laws 304, 304-06 (codified at TEX.
EDUC. CODE ANN. §§ 51.801-.809 (Vernon 2006 & Supp. 2008)). In relevant part, the Legislature
enacted what is commonly referred to as the "top ten percent rule," requiring each general academic
teaching institution to admit an ~pplicantfor admission to the institution as an undergraduate student
if, among other requirements, the applicant graduated with a grade point average in the top ten
percent ofthe student's high school graduating class. See TEX. EDUC. CODE ANN. § 51.803 (Vernon
Supp. 2008). The Legislature also required the governing board of each general academic teaching
institution to determine whether to adopt an admissions policy that would require admission for a
student who graduated with a grade point average in the top twenty-five percent of the applicant's
high school graduating class. See ide § 51.804.

       After the original enactment of subchapter U, chapter 51, the Legislature became aware that
school districts vary widely in the methods they use to calculate grade point averages and in the
weight they give to specific classes. See HOUSE COMM. ON HIGHER EDUC., BILL ANALYSIS, Tex.
H.B. 3851, 80th Leg., R.S. (2007). "The grade point scales used in Texas high schools can vary
from 3.0 to 12.0-there is no standardization." Id. For instance, some school districts give more
weight to honors and advanced-placement classes, while others do not. Debate on Tex. H.B. 3851
on the Floor of the House, 80th Leg., R.S. (May 8, 2007) (Statement of Rep. Morrison) (tape
available from House Video/Audio Servs.).

        In an effort to standardize the method for calculating grade point averages across the state,
in 2005 the Legislature authorized, but did not require, the Commissioner to develop a standard
method of computing a student's high school grade point average. See Act of May 27, 2005',
79th Leg~, R.S., ch. 293, § 1,2005 Tex. Gen. Laws 883, 883 (codified at TEX. EDUC. CODE ANN.
§ 28.0252 (Vernon Supp. 2008)). Under section 28.0252, if the Commissioner adopts a standard
method, school districts are required to. use the Commissioner's method to comput~ grade point
averages of students entering grade nine during or after the 2007-2008 school year. Id. Based on
a review of the rules promulgated by the Texas Education Agency, it appears that, to date, the
Commissioner has neither proposed nor adopted a standard method that school districts are required
to use in calculating grade point averages.




          2"'General academic teaching institution' means The University of Texas at Austin; The University of Texas
at El Paso; The University of Texas of the Permian Basin; The University of Texas at Dallas; The University of Texas
at San Antonio; Texas A&M University, Main University; The University of Texas at Arlington; Tarleton State
University; Prairie View A&M University; Texas Maritime Academy; Texas Tech University; University ofNorth Texas;
Lamar University; Lamar State College-Orange; Lamar State College-Port Arthur; Texas A&M University-Kingsville;
Texas A&M University-Corpus Christi; Texas Woman's University; Texas Southern University; Midwestern State
University; University of Houston; University of Texas-Pan American; The University of Texas at Brownsville; Texas
A&M University-Commerce; Sam Houston State University; Texas State University-San Marcos; West Texas A&M
University; Stephen F. Austin State University; SuI Ross State University; Angelo State University; The University of
Texas at Tyler; and any other college, university, or institution so classified as provided in this chapter or created and
so classified, expressly or impliedly, by law." TEX. EDUC. CODE ANN. § 61.003(3) (Vernon Supp. 2008).
Raymund A. Paredes, Ph.D. - Page 3                    (GA-0655)



         Subsequently, in 2007, the Legislature required that the THECB establish by rule a standard
method for computing a student's high school grade point average to be used in relation to a student
applying for admission to a general academic teaching institution. See Act of May 27, 2007, 80th
Leg., R.S., ch. 1369, § 2, 2007 Tex. Gen. Laws 4667, 4667-68 (codified as an amendment to
Education Code section 51.807).3 In doing so, the Legislature maintained the Commissioner's
authority to develop a standard method for general purposes that, ifadopted, must be used by school
districts. See ide § 1, at 4667 (codified as an amendment to Education Code section 28.0252(b).
Section 28.0252, however, was amended to provide that if the Commissioner's standard method
conflicts with the THECB' s standard method for admissions, the student's grade point average must
be computed in accordance with the method established by the THECB to determine the student's
eligibility for admission under subchapter U, chapter 51. Id. ("[T]o the extent of a conflict between
[the Commissioner's] method and the method adopted under Section 51.807, the student's grade
point average computed in accordance with the method established under Section 51.807 shall
be used in determining the student's eligibility for;university admission under Subchapter U,
Chapter 51.").

        Based on statements in your letter, it appears that the THECB is currently developing a
standard method for admissions but has not formally proposed or adopted a method at this time. See
Request Letter, supra note 1, at 6. The scope of this opinion is therefore limited to a discussion of
the statute authorizing the THECB's rulemaking authority. We do not address any additional
questions or complexities that may be raised by a specific rule once adopted or implemented.

II.     Analysis

        A.     Whether school districts are required to use the THECB's standard method for
               admissions

        You first ask whether a standard method adopted by the THECB pursuant to section 51.807
applies to school districts if the Commissioner has not adopted a standard method under section
28.0252. See Request Letter, supra note 1, at 1.4 We presume that by using the word "apply" you
mean to ask whether school districts are required to use the THECB standard method to compute
grade point averages for purposes of admission under subchapter U, chapter 51.

        Section 51.807 states, in relevant P':lrt, that "[t]o ensure a uniform standard for admissions
under this subchapter, the Texas Higher Education Coordinating Board shall adopt rules establishing



         3Under the Act, the THECB was required to "adopt rules as required by Section 51.807, Education Code, as
amended by this Act, as soon as practicable after the effective date of[the] Act." Act ofMay 27,2007, 80th Leg., R.S.,
ch. 1369, §5, 2007 Tex. Gen. Laws 4667, 4668 (emphasis added).

         4The Texas Association ofSchool Administrators ("TASA") has argued that "[i]fthe commissioner ofeducation
does not adopt a method, a conflict does not exist and thus school districts are not required to use the method adopted
under Section 51.807 for university admissions." Letter from David Thompson, Counsel for TASA, to Nancy Fuller,
Chair, Opinion Committee, Office of Attorney General, at 3 (July 18, 2008) (on file with the Opinion Committee).
Raymund A. Paredes, Ph.D. - Page 4                     (GA-0655)




a standard method for computing a student's high school grade point average." TEX. EDUC. CODE
ANN. § 51.807(a) (Vernon Supp. 2008).5 The statute also mandates that the standard method
established by the THECB "applies to computing the grade point average of a student applying as
a first-time freshman for admission to a general academic teaching institution beginning with
admissions for the 2009 fall semester." Id. § 51.807(c).

       On its face, section 51.807 does not expressly state that school districts are required to use
the THECB standard method to calculate grade point averages. See ide § 51.807. The statute
requires that the THECB adopt a standard method for calculating a grade point average, and that
method must be used to calculate the grade point average for purposes of admission under
subchapter U, chapter 51. See ide However, within section 51.807, the Legislature did not expressly
state whether school districts must use the THECB' s standard method to compute a student's grade
point average for purposes of admission under subchapter U, chapter 51. See ide

        Given the silence in the statute as to who is charged with computing the grade point average
according to the THECB's standard method, we analyze section 51.807 in light of its express
obje~tive, the legislative intent, and the context in which the statute was passed to determine whether
section 51.807 implicitly requires school districts to calculate a student's grade point average under
the, THECB' s standard method for purposes of admission under subchapter U, chapter 51.

         When interpreting a statutory provision, our primary rule is to give effect to the legislative
intent. City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006); Crown Life Ins. Co. v.
Casteel, 22 S.W.3d 378, 383 (Tex. 2000). In the statute itself, the Legislature expressly states that
the objective ofthe statute is "to ensure a uniform standard for admissions." TEX. EDUC. CODE ANN.
§ 51.807(a) (Vernon Supp. 2008). To achieve that objective, the Legislature mandated that the
THECB's standard method be applied to students applying for college admission for the 2009 fall
semester. Id. § 51.807(c). Although the Legislature did not expressly state in section 51.807 that
school districts are required to use the THECB~s standard method for admissions, the uniformity
intended by the Legislature will not be achieved if school districts may continue using their diverse,
individual methods to determine students' grade point averages for purposes of admission under
subchapter U, chapter 51 rather than a standard method. Due to the nature ofthe uniform admission
policies in sections 51.803 and 51.804, the school districts are the only entities with all of the
information necessary to determine class rank because they are the only entities that possess grades
for all their students. To determine which students fall within the top ten or twenty-five percent, the
school districts will have to rank the senior class by grade point averages computed according to the
THECB's standard method for admissions.



          5To avoid confusion, we point out that the Legislature adopted two separate acts that included sections amending
section 51.807 of the Education Code. The fIrst section 51.807 addresses the THECB' s general rulemaking authority
relating to the operation of admissions programs, and it is not addressed herein. See TEX. EDUC. CODE ANN. § 51.807
(Vernon Supp. 2008) (as added by Act of May 27,2007, 80th Leg., R.S., ch. 941, § 4, 2007 Tex. Gen. Laws 3256,
3258). For purposes of this opinion, only the se,c,ond section 51.807, addressing the THECB' s authority to create rules
establishing a standard method for calculating grade point averages, is applicable. See id. (as added by Act of May 27,
2007, 80th Leg., R.S., ch. 1369, § 2,2007 Tex. Gen. Laws 4667, 4667-68).
Raymund A. Paredes, Ph.D. - Page 5             (GA-0655)



       The legislative history also supports the conclusion that school districts must use the standard
method adopted by the THECB for purposes ofadmission under subchapter U, chapter 51. See TEX.
GOV'T CODE ANN. § 311.023 (Vernon 2005) (stating that in construing a statute, legislative history
may be considered). Representative Morrison, the author ofHouse Bill 3851 which enacted section
51.807, explained that the intent ofthe bill was to create uniformity and standardization for purposes
of admissions and financial aid eligibility:

               [W]henever a student is applying for admissions and financial aid
               eligibility, [the bill] would allow the coordinating board to come up
               with a methodology for standardizing high school GPAs for all
               institutions of higher learning so that whenever a student is applying
               they're on a more level playing field, because each school district
               does it differently.

Debate on Tex. H.B. 3851 on the Floor of the House, 80th Leg., R.S. (May 8, 2007) (statement of
Rep. Morrison) (tape available from House Video/Audio Servs.). Additionally, the fiscal note on
House Bill 3851 assumes that school districts are required to utilize the THECB' s standard method,
stating:

                Given the complexity and variety of methods of calculating high
                school grade point average, it is assumed that school districts would
                likely incur some cost in conforming to an adopted methodology.
                Anticipated costs would include modification oflocal procedures and
                software.

Fiscal Note, Tex. H.B. 3851, 80th Leg., R.S. (2007) (enrolled version) (emphasis added).

        By enacting section 51.807, the Legislature.intended that all students applying for admission
to a general academic teaching institution have their grade point averages and corresponding class
ranks computed in a uniform way for purposes of admission to those institutions. The Legislature's
objective can be attained only if school districts calculate grade point averages for purposes of
admission by using a standard method. Ifthe Commissioner adopts a method and the THECB agrees
to use the same method for admissions, that method can be used to calculate grade point averages
for purposes of admission and all other purposes. If the Commissioner chooses not to adopt a
standard method or implements a method that conflicts with the THECB' s method, school districts
will be required to use the THECB's method for admissions in order to achieve the Legislature's
intent.

        When the Legislature enacted section 51.807, it also enacted an amendment to section
28.0252(b) that supports this construction. See Act of May 27, 2007, 80th Leg., R.S., ch. 1369,
§§ 1-2, 2007 Tex. Gen. Laws 4667, 4667-68. In interpreting a statutory provision, "we must always
consider the statute as a whole rather than its isolated provisions." Helena Chern. Co. v. Wilkins,
47 S.W.3d 486,493 (Tex. 2001). "We should not give one provision a meaning out of harmony or
inconsistent with other provisions, although it might be susceptible to such a construction standing
alone." Id. As discussed above, section 28.0252, originally enacted in 2005, authorizes the
Raymund A. Paredes, Ph.D. - Page 6            (GA-0655)




Commissioner to create a standard method for calculating grade point averages, which, if adopted,
must be used by school districts. See TEX. EDUC. CODE ANN. § 28.0252 (Vernon Supp. 2008). In
2007, in the same bill that enacted section 51.807, the Legislature amended section 28.0252. See Act
of May 27, 2007, 80th Leg., R.S., ch. 1369, § 1 2007 Tex. Gen. Laws 4667, 4667. The amendment
provides that to the extent of a conflict between the Commissioner's standard method and the
THECB's standard method, school districts must use the THECB' s standard method "in determining
[a] student's eligibility for university admission under Subchapter U, Chapter 51." Id. If the
Legislature had not intended for school districts to use the THECB' s method, this amendment would
have been unnecessary. Thus, while preserving the Commissioner's authority, section 28.0252 as
amended evinces the legislative intent that the THECB' s method be used to calculate grade point
averages for purposes of admission under subchapter U, chapter 51.

        You tell us that certain "public education stakeholders" interpret section 28.0252(b) to mean
that "[i]fthe Commissioner does not develop a method under Section 28.0252 ..., 'a conflict does
not exist and thus school districts are not required to use the method adopted under Section 51.807
for university admissions.'" Request Letter, supra note 1, at 6. This interpretation ignores the
express language of section 51.807 and the context in which the statute is found. Even in the
absence of a standard method from the Commissioner under section 28.0252, school districts are
required by virtue of section, 51.807 to use the standard method for admissions established by the
THECB.

         Important to note is that the Legislature intended that the THECB' s method be used for
purposes of admission under subchapter U, chapter 51, leaving open the possibility that school
districts may, as authorized bylaw, continue to use other methods to calculate grade point averages
for other purposes. See TEX. EDUC. CODE ANN. § 51. 807 (Vernon Supp. 2008). Ifthe Commissioner
adopts a standard method, the school districts are required to use that method except to the extent
that it conflicts with the THECB' s standard method for calculating grade point averages for purposes
of admission under subchapter U, chapter 51. See id. §§ 28.0252(b), 51.807. However, in the
absence ofa standard method from the Commissioner, nothing in the statute prevents school districts
from continuing to use their individual methods for calculating grade point averages for all other
purposes, such as high school graduation rank. The THECB' s method is required only for purposes
of admission under subchapter U, chapter 51.

        B.   Whether a transition period is required or permitted for implementation of the
             THECB's standard method

        You next ask whether the THECB is required, or if not required, then permitted to provide
a transition period for implementation of its standard method "so as not to adversely affect students
currently in high school who did not have notice of the method or a reasonable opportunity to plan
their high school academic choices based on the method?" Request Letter, supra note 1, at 1. This
same concern was raised in a House Committee on Higher Education meeting by one of the
Committee's members:

               My thought is just to make sure that ... the students know how the
               computations are going to be made. And let me tell you why I make
Raymund A. Paredes, Ph.D. - Page 7             (GA-0655)



               this comment. My nephew, who is graduating in May, was
               valedictorian for three and half years and last week was told he was
               not.... He told me what happened was, senior year, he asked his
               counselor, "what do I take? ..." [And his high school counselor] told
               him, "take criminal justice." Some other kids took anatomy. [The
               school] computed criminal justice at three points and anatomy at four
               points.

Hearings on Tex. HB. 3851 Before the House Comm. on Higher Educ., 80th Leg., R.S. (Apr. 16,
2007) (statement of Rep. Alonzo) (emphasis added) (tape available from House Video/Audio
Servs.). The Committee member's statements suggest that he interpreted the standard method to be
used on a prospective basis only, and no comments were made to the contrary. You similarly note
that many students throughout Texas high schools have been making course curriculum decisions
in an effort to maximize their potential grade point average and that the standard method, if applied
retroactively, "will affect thousands of students who currently are in their junior year ofhigh school
and who will be entering their senior year of school by the time the method is in effect." Request
Letter, supra note 1, at 7.

        The statute itself is silent as to whether the THECB' s standard method is to· be applied
retroactively or whether any transition period is allowed so that students have notice of what the
THECB's standard method is before it applies to them. See TEX. EDUC. CODE ANN. § 51.807
(Vernon Supp. 2008). The only direction the Legislature provided is that the method adopted must
be used beginning with admissions for the 2009 fall semester:

               The standard method established under Subsection (a) for computing
               a student's high school grade point average applies to computing the
               grade point average of a student applying as a first-time freshman for
               admission to a general academic teaching institution beginning with
               admissions for the 2009 fall semester. This subsection expires
               January 1, 2010.

Id. § 51.807(c).

        If this subsection requires the THECB' s standard method to be used to calculate the grade
point average for years preceding the creation ofthe THECB' s standard method, the method would
be implemented retroactively. The Code Construction Act provides that a "statute is presumed
to be prospective in its operation unless expressly made retrospective." TEX. GOV'T CODE ANN.
§ 311.022 (Vernon 2005); See Nat 'I Carloading Corp. v. Phoenix-El Paso Express, 176 S.W.2d 564,
568 (Tex. 1943). The same general principles apply for agency rules. See R.R. Comm 'n v. Lone Star
Gas Co., 656 S.W.2d421, 425 (Tex. 1983);AII Saints HealthSys. v. Tex. Worker's Compo Comm 'n,
125 S.W.3d 96, 104 (Tex. App.-Austin 2003, pet. denied) ("Agency rules and rates are set for the
future, and not for the past."). In the absence of any special indication or reason, a statute will not
be applied retroactively, even when there is no constitutional impediment against it. Coastal Indus.
Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916, 918 (Tex. 1978); see also State v.
Raymund A. Paredes, Ph.D. - Page 8             (GA-0655)



Humble Oil & Refining Co., 169 S.W.2d 707,708-09 (Tex. 1943) ("[S]tatutes will not be applied
retrospectively unless it appears by fair implication from the language used that it was the intention
of the Legislature to make it applicable to both past and future transactions.").

        By the same principle, a statutory grant oflegislative rulemaking authority generally will not
be understood to encompass the power to promulgate retroactive rules unless that power is conveyed
in express terms. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988); see also R.R.
Comm 'n v. Lone Star. Gas Co., 656 S.W.2d 421, 425 (Tex. 1983); All Saints Health Sys. v. Tex.
Workers' Compo Comm'n, 125 S.W.3d 96,104 (Tex. App.-Austin 2003, pet. denied) ("Agency
rules and rates are set for the future, not for the past."). All doubts as to retroactivity are resolved
against retroactive operation of a statute. Ex Parte Abell, 613 S.W.2d 255, 258 (Tex. 1981).

        Section 51.807 does not suggest an intention by the Legislature to make the statute, or the
rules that it authorizes the THECB to implement, retroactive. See TEX. EDUC. CODE ANN. § 51.807
(Vernon Supp. 2008). The statute does not expressly state that the THECB's standard method be
applied to calculate a student's grade point average for grades earned before the calculation method
is adopted. See id.; see also TEX. GOV'T CODE ANN. § 311.022 (Vernon 2005) (statute is presumed
prospective unless expressly made retrospective). The statute simply provides that the method
adopted by the THECB should be used beginning with admissions for the 2009 fall semester.

         The general language used by the Legislature makes it possible to implement the THECB' s
method on a prospective basis only. Simply because the THECB's method must be used beginning
with admissions for the 2009 fall semester does not mean that it must be implemented retroactively.
In enacting section 51.807, the Legislature gave the THECB broad discretion and rulemaking
authority in operating admissions programs: "[t]he board may adopt other rules relating to the
operation of admissions programs ...." TEX. EDUC. CODE ANN. § 51.807(b) (Vernon Supp. 2008).
Based on this authority, we conclude that the THECB is authorized to implement the standard
method in a manner that is consistent with section 51.807' s objective but that nevertheless complies
with the presumption against retroactive application. Furthermore, given the authority to implement
the statute prospectively and the presumption against retroactivity, we conclude that the THECB is
required to implement its standard method on a prospective basis only and has the latitude to provide
for a transition period.

        Because we conclude that section 51.807 should not be applied retroactively, we need not
address your question regarding whether it would be a violation of the Texas Constitution, article
I, section 16 if the Board adopted a standard method and applied it to students currently in high
school. See Request Letter, supra note 1, at 2. Because we determine that the statute and
accompanying rules were only meant to apply prospectively, we do not reach this issue. See In re
MC.C., 187 S.W.3d 383,385 (Tex. 2006) (refusing to reach the issue of whether a constitutional
right was impai~ed after determining that statute only applied prospectively).
Raymund A. Paredes, Ph.D. - Page 9           (GA-0655)



                                      SUMMARY

                      Section 51.807 ofthe Texas Education Code provides that the
              Texas Higher Education Coordinating Board (the "THECB") shall
              adopt rules establishing a standard method for computing a student's
              high school grade point average, and such method must be used to
              calculate the grade point average of a student applying as a first-time
              freshman for admission to a general academic teaching institution
              beginning with admission for the 2009 fall semester. Section 28.0252
              authorizes the Commissioner of Education to adopt a standard
              method to compute a student's high school grade point average
              and requires school districts to use that method, unless it conflicts
              with the THECB' s method. The standard method established by the
              THECB must be used to calculate a student's grade point average for
              purposes of determining eligibility for university admission under
              subchapter U, chapter 51, regardless of whether the Commissioner
              has developed a standard method as permitted under section
              28.0252(a) of the Texas Education Code.

                      Because section 51.807 does not suggest an intention by
              the Legislature to make the THECB' s standard method apply
              retroactively, and because there is a presumption against retroactive
              application of both statutes and agency rules, the THECB's standard
              method should be applied on a prospective basis only.

                                             Very truly yours,




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee
