                               The Attorney        General of Texas

JIM MAlTOX                                      Angust 7. 1986
Attorney General



Supreme Court Building        Mr. William N. Kirlsy               Opinion No.   JM-529
P. 0. BOX 12548               Commissioner of Eduxition
Austin. TX. 78711.254S
512l4752501
                              Texas Education Agexy               Be: Applicability of the Texas
Telex 9101874~1387            1701 N. Congress Avenue             Proprietary School Act to certain
Telecopier 512l4750268        Austin, Texas   787DL               enterprises

                              Dear Mr. Kirby:
714 Jackson. Suite 700
Dallas. TX. 7520245OS
21417428944                        You have asked,several questions about the interpretation of the
                              Texas Proprietary School Act. Educ. Code §§32.01-32.81. We will
                              answer only the specific questions asked.        We note that some
4824 Alberta Ave., Suite
                       160    provisions of the z.ctmay raise constitutional questions of vagueness
El Paso, TX. 799052793
9151533-3484
                              or improper delegation. We do not address those questions.

                                   Under the ProlbrietarySchool Act your agency is responsible for
WGl Texas. Suite 700          issuing certificatxs of approval to proprietary schools. Several of
p90n.     TX. 77002.3111      your questions have to do with the definition of “proprietary school.”
I .#223-5888
                              In particular you are concerned about the status of~organizations that
                              teach courses for avocational purposes.
6W Broadway, Suile 312
Lubbock, TX. 79401.3479            The act defines “proprietary school” as follows:
SoSn47.5238
                                        ‘Proprietary School,’ referred to as ‘school,’
4309 N. Tenth. Suite 8                  means ar.y business enterprise operated for a
McAllen. TX. 78501-1685                 profit, c’ron a nonprofit basis, which maintains a
51216824547                             place of business within the State of Texas, or
                                        solicits business within the State of Texas, and
200 MaIn Plaza, suite 400               which is not specifically exempted by the pro-
San Antonio. TX. 782052797              visions of this Chapter and;
51212254191
                                           (A) which offers or maintains      a course or
                                        courses of:instruction or study; or
An Equal Opportunity/
Affirmative Action Employer
                                           (B) ill:which place of business such a course
                                        or course:3 of instruction or study is available
                                        through classroom instruction or by correspon-
                                        dence, or both, to a person or persons for the
                                        purpose s,iI
                                                   training or preparing the person for a
                                        field of endeavor in a business, trade, technical,
                                        or industrial occupation, or for avocational or




                                                      p. 2434
Mr. William N. Kirby - Page 2    (at-529)




          personal  improv~nent, except     as   hereinafter
          excluded. (Emphmis added).

Educ. Code 532.11(l). Thm. the definition of "proprietary school"
expressly includes an organization that teaches courses for the
purpose of "avocational 01' personal improvement." However, the act
specifically exempts from the definition of "proprietary school"

          a school or      training program which offers
          instruction of pllrelyavocational or recreational
          subjects as detemined by the administrator. . . .

Educ. Code 932.12(a)(3)..

     Although there are slight differences in wording, the exemption
in section 32.12(a)(3) appears to negate the specific inclusion ia the
definition of "proprietary school" of courses taught for purposes of
"avocational or personal improvement."       Statutes apparently in
conflict should be given the most reasonable construction that can be
placed on them consistent with the intent of the legislature. State
v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App. - Rouston 1963) aff'd,
376 S.W.2d 341 (Tex. 1964)

     A connnittee report to the Sixty-second Legislature and a law       ?
review artic~le both show that the concerns that gave rise to the
Proprietary School Act were focused on regulation of vocational
education in Texas. The Rqort of the Senate Committee on Vocational-
Technical Education to the 62nd Leg., January 1971; Conment, The
Proprietary Vocational School: The Need for Regulation in Texas,-
Tex. L. Rev. 69 (1970). -Also, the act exempts schools that teach
subjects that are "purely" avocational or recreational. Subjects are
not inherently avocational or recreational. Rather, a subject such as
cooking may be vocational or avocational depending on a particular
person's relationship to the subject. We assume that the legislature
intended to exempt schools that teach subjects that are avocational or
recreational for most people and that do not claim to be offering
vocational training. Therefore, we conclude that the most reasonable
reading of section 32.11(l) together with section 32.12(a)(3) is that
a school that teaches courses primarily for vocational training is a
proprietary school, even if the purpose of some of its courses is
merely "avocational or personal improvement." On the other hand, if a
school teaches subject laltter that is primarily considered to be
recreational or avocational and if it does not hold itself out to be
offering vocational training, then it is exempted from the provisions
of the Proprietary SchcNol Act under section 32.12(a)(3).          The
legislature left it to the discretion of the commissioner of education
to determine which subjects are primarily avocational or recreational.
Educ. Code 132.12(a)(3).




                                p. 2435
Mr. William N. Kirby - Page 3        (JM-529)




     The preceding discussion of the status of "avocational" courses
guides us in our responses to two of your questions. The first of
those questions is:

          How does the term 'purely avocational' differ from
          the term 'recreational?

     We do not think that the act requires you to distinguish between
courses that are avocaticnal and courses that are recreational.
Rather, as we explained above, we think that the entire phrase "purely
avocational or recreational." should be read to exempt from the
provisions of the Proprietary School Act organizations that do not
claim to be offering vocatj.onaltraining and that teach subjects that
are generally considered to ‘be for non-vocational purposes.

     Your second question is:

          How would courses which you deem to be purely
          avocational difflat from a standard business or
          professional course?

     The legislature left it to the discretion of the commissioner of
education to determine wha.t types of courses would be exempt under
section 32.12(a)(3). Since many subjects can be taught for either
vocational or avocational puxposes, we think that the act permits the
commissioner to examine thszclaims or advertising of an organization
to determine whether a particular subject is offered for vocational or
avocational purposes.

     Your third question is:

          Does the Texas Proprietary School Act apply to
          private enterprises (regardless of whether they
          are profit or nonprofit) which offer courses of
          instruction in the use of products they market
          when the products in question have applications
          which are not exclusively recreational or purely
          avocational?

     You explain that you are particularly concerned about courses
taught by businesses that sell computers. You note in your letter
that there is no exemption in the act for businesses that instruct
buyers in the use of produc:t:s.We do think, however, that it would be
within the discretion of the commissioner to conclude that certain
types of assistance in he:.ping customers learn how to use a product
are not "courses of instruction or study" for purposes of the
Proprietary School Act and therefore not within the act.




                                p.    2436
’

    Mr. William N. Kirby - Page 4     (x4-529)




           Also, even if a computer company does offer “courses of
    instruction or study,” it 4s the nature of the courses offered and not
    the nature of the product that determines whether courses are exempt
    under section 32.12(a)(3). Some courses offered by such businesses
    deal with uses for a computer that are primarily for personal use,
    rather    than business use, Other courses are probably taught for
    primarily business or vocational purposes.        It is within the
    discretion of the commissj.onerto determine which courses fall into
    which category.

         Your fourth question 1.6:

              Pursuant to sect:;on32.12 (courses sponsored by an
              employer) at whic!n point must the employer absorb
              any tuition cost:;for this exception to apply? If
              the employer reinburses the student for all tuition
              charges upon suc.cessful completion of the course
              (as an incentive! to the student to complete the
              same) does the exc,eptionapply?

         Section 32.12(a)(4)    exempts   from   the   provisions   of   the
    Proprietary School Act

              a course or courses of instruction or study
              sponsored by an employer for the training and
              preparation of 11:sown employees, and for which no
              tuition fee is clzzged to the student. . . .

    You ask whether the employer must absorb any tuition costs in order
    for this exemption to app1.y. The exemption requires that no fee be
    charged to the student and that the course be “sponsored by” the
    employer. A “sponsor” has been defined as “a person or an organiza-
    tion that pays for or pl~~~:rand carries out a project or activity.”
    Webster’s Ninth New Collegiate Dictionary (1984). Conceivably, then,
    an employer could “sponsor” a course by organizing it even if it were
    paid for by a third party. Whether a particular course is “sponsored
    by” an employer is a question of fact that depends on the
    circumstances of a particu:iarcase.

         You also ask whether ,ehe exemption for courses sponsored by an
    employer is applicable if t’hestudents initially pay a tuition charge
    and are subsequently reinbursed by the employer. We do not think
    that the requirement of section 32.12(a)(4) that no fee be charged to
    students necessarily forecloses such an arrangement. Your question
    indicates, however, that :you contemplate a situation in which a
    student would not be reimbursed if he did not successfully complete
    the course. We do not think that the section 32.12(a)(4) exemption
    would apply under those cpccumstances.

,




                                     p. 2437
Mr. William N. Kirby - Page 5~     (JM-529)




     Your fifth question is,:

          Must each center (or store) where training is
          offered be consida!reda separate school?

      A "proprietary school" is a "business enterprise . . . which
 maintains a place of business . . . or solicits business [in Texas]."
 Educ. Code 132.11(l). The word "enterprise" suggests an activity,
                            %I! William Buchanan Foundation v. Shepperd.
 project, or undertaking. ---
 283 S.W.2d 325 (Tex. Civ. QI. - Texarkana 1955, no writ). Nothing in
 the term "business enterpr:Lse"limits the meaning to one place. We
 think that the phrase "main~tainsa place of business . . . or solicits
 business" in section 32.11(l) merely sets a minimum on what activity
 an enterprise must be engagrd in to come within the Proprietary School
 Act. It does not mean &at each separate place of business is a
 separate enterprise. A single proprietary school may maintain more
 than one place of business. Of course, each separate place of
 business maintained by a proprietary school must comply with the
 requirements of the Proprietary School Act. See Educ. Code 132.33.
.What constitutes a "business enterprise" will depend on the facts of a
 particular case.      See ht.torney General Opinion H-313        (1974)
  (discussion of term "busines:;entity").

      Your sixth question is:

           Must sales clerka: in computer stores who take
           customer orders for one or more courses be
           considered repre::entativesas defined in section
           32.11(4), thus rcqliring them to obtain represen-
           tative permits?

      All representatives employed by a proprietary school must
 register with the commissioner of education. Educ. Code 432.37.
 Section 32.11(4) defines "representative" as

           a person employed by the school as defined herein,
           whether the school is located within or without
           the State of Texas, to act as an agent, solicitor,
           broker, or independent contractor to directly
           procure students or enrollees for the school by
           solicitation within or without this State at any
           place.

 That definition contemplates active recruiting of students. Therefore,
 the fact that someone acce])tsan application or enrollment form for a
 course is not by itself encugh to make that person a "representative."




                                  p. 2438
Mr. William N. Kirby - Pago 6        (JM-529)




                                SUMMARY

             Schools that teach courses in subjects that are
          generally considered to be for recreational or
          avocational purpmes and that do not claim to be
          offering vocatimal training are exempt from the
          provisions of the Proprietary School Act. Educ.
          Code 5532.11-32.31. It is within the discretion
          of the commissioner of education to determine
          whether certain Itypes of assistance offered to
          help customers learn to use a product are "courses
          of instruction or study" for purposes of the
          Proprietary School Act.




                                          JIM     MATTOX
                                          Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

WARY KELLER
Executive Assistant Attormy     General

RICK GILPIN
Chairman, Opinion Comeittec~

Prepared by Sarah Woelk
Assistant Attorney General




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