                                         The Attorney             General of Texas
                                                             December 31, 1982
MARK WHITE
Attorney General


                                       Mr. E. D. Walker                          Opinion No.MW-576
Supreme      Court Building
P. 0. Box 12546
                                       Office of the Chancellor
Austin.    TX. 76711. 2546             University of Texas System                Re:   Whether tuition income
5121475-2501                           601 Colorado Street                       generated by certain branches
Telex    9101674.1367                  Austin, Texas   78701                     of the University of Texas may
Telecopier     5121475.0266                                                      be retained locally

1607 Main St., Suite 1400
                                       Dear Mr. Walker:
Dallas. TX. 75201-4709
2141742-6944                               You ask the following question:

4624 Alberta       Ave., Suite   160               =Y   the tuition income generated at' The
El Paso, TX.       79905.2793                   University of Texas Health Science Center at
9151533.3464                                    Dallas, The University of Texas Medical Branch at
                                                Galveston, The University of Texas Health Science
                                                Center at San Antonio be retained locally and
1220 Dallas Ave., Suite 202
Houston,      TX. 77002-6966
                                                accounted for annually as provided in the general
7 131650-0666                                   appropriations act?

                                       Several provisions of the Education Code are         relevant   to   your
606 Broadway,        Suite 312         question. Section 51.002(a) provides in part:
Lubbock.     TX.    79401.3479
606/747-5236
                                                   The governing board of each institution listed
                                                in Section 51.001 of this code may retain control
4309 N. Tenth, Suite B                          of the following sums of money collected at the
McAllen.     TX. 76501-1685                     institution, subject to Section 51.008 of this
5121662.4547
                                                code.

200 Main Plaza. Suite 400                          . . . .
San Antonio,  TX. 76205.2797
512/225-4191
                                                   (9) all other fees and local institutional
                                                income of a strictly local nature arising out of
An Equal      Opportunity!                      and by virtue of the educational activities,
Affirmative     Action     Employer             research, or demonstrations carried on by the
                                                institution....

                                       The University of Texas and its branches are subject to this
                                       provision. -See Educ. Code 651.001. Section 51.008(b) provides in
                                       part:




                                                                      p. 2128
                                      -




Mr. E. D. Walker - Page 2    (!JW-576)




             (b) The governing board of every state
          institution of higher education shall deposit in
          the state treasury all cash receipts accruing to
          any college or university under its control that
          may be derived from all sources except auxiliary
          enterprises, noninstructional services, agency and
          restricted funds, endowment funds, student loan
          funds,   and   Constitutional College     Building
          Amendment funds.

             . . . .

             (e) This   section prevails over     Sections
          51.001-51.007 of this code to the extent of any
          conflict.

Section 51.008(b) applies to "all cash receipts" with certain
exceptions. Tuition is not one of those exceptions. According to the
express statement found in subsection (e), section 51.008(b) prevails
over contrary language found in section 51.002. Thus, section 51.008,
taken in isolation, would require institutions of the University of
Texas System to deposit tuition in the state treasury.

     Section 54.004    of   the Education Code. however, provides   as
follows:

             All tuition, local funds, and fees collected by
          an institution of higher education shall be
          retained and expended by the institution and
          accounted for annually as provided in the general
          appropriations act.

"Institution of higher education" is defined in a comprehensive way in
section 61.003 of the Education Code. It includes any medical or
dental unit. See Educ. Code §61.003(7). Section 54.004 thus appears
to authorize medical and dental units to retain tuition and account
for it as provided in the General Appropriations Act. The General
Appropriations Act provides that the general academic teaching
institutions must deposit in the state treasury certain cash receipts
including tuition. Acts 1981, 67th Leg., ch. 875, art. 111, §lOb.
"General academic institutions" as defined in the appropriations act,
do not include the medical and dental branches. *,      art. III, 14.
Thus, if section 54.004 controls this question, the tuition is to be
accounted for as provided in article III, section 10h; that is,
tuition of the medical and dental branches would not need to be
deposited in the state treasury but would be placed in local
depositories. _Cf. V.T.C.S. art. 4393c, 92. If, on the other hand,
article 51.008 controls the question, such tuition would have to be
deposited in the treasury.




                                     p. 2129
Mr. E. D. Walker - Page 3   (MW-576)




     In order to resolve the conflict between section 51.008 and
54.004, it is necessary to examine legislative history.           The
predecessor of section 54.004 was enacted in 1933 as section 2 of
article 2654~. V.T.C.S. Acts 1933, 43d Leg. ch. 196, at 596. The
predecessors of sections 51.001 through 51.007 were also enacted in
1933 as article 2654d, V.T.C.S. Acts 1933, 43d Leg., ch. 221, at 746.
The emergency clause of the bill provided as follows:

            The fact that under the present laws all the
         above institutions are withholding certain sums of
         money under a practice which has been established
         by them for a considerable period of time, and the
         fact that said institutions are scattered in
         various portions of the State and it would work a
         great hardship on said schools to place their
         moneys in the local funds in the State Treasury
         and the further fact that existing laws do not
         provide for security of deposits placed in local
         depositories, and the further fact that existing
         laws do not provide for any adequate system of
         accounting by which the Legislature and the people
         of the State may be apprised [sic] of the amounts
         on hand and being expended by said institutions,
         creates an emergency and an imperative public
         necessity   requiring the    suspension of     the
         Constitutional Rule for the reading of bills on
         three several days in each House, and said Rule is
         hereby suspended, and this Act is made to take
         effect from and after passage, and it is so
         enacted.

Thus, the intent of both 1933 enactments was to permit           the
universities to maintain tuition and other funds outside of      the
treasury.

     A statute enacted in 1951 was the predecessor of section 51.008
of the Education Code. Acts 1951, 52d Leg., ch. 474, at 841. The
repealer clause of this bill read as follows:

            Sec. 5. All laws or parts of laws in conflict
         herewith are hereby repealed to the extent of such
         conflict, except as herein provided in Section 2
         of this Act. Article 2654d of Vernon's Texas
         Civil Statutes is expressly repealed only insofar
         as it may conflict with the provisions of this
         Act.

Section 2 of the enactment preserved from repeal the State Depository
Law. It appears, however, that the 1951 enactment was intended to




                               p. 2130
Mr. E. D. Walker - Page 4   (NW-576)




repeal section 2 of then article 2654c, V.T.C.S., presently codified
as section 54.004 of the Education Code. Although section 2654d, now
codified as sections 51.001-51.007, is expressly mentioned, the
express mention is designed only to make it clear that a limited
repeal of article 2654d was intended.

     Section 1 of article 2654c, V.T.C.S., was amended several times
after 1951. See Acts 1953, 53d Leg. ch 351, at 866, Acts 1957, 55th
Leg. ch. 435, at 1297, Acts 1961, 59th Leg., ch. 490, at 1003; Acts
1969, 61st Leg., ch. 46, at 134; Acts 1971, 62d Leg., ch. 511, at
1745. None of these amendments changed section 2 of article 2654c,
V.T.C.S., nor was this section reprinted as part of the enacting
legislation.   However, in 1969 an amendment to article 2654c,
V.T.C.S., added subsection (n) to that provision:

          (n) A Texas institution of higher education shall
          retain and spend all tuition, local funds, and
          fees collected and accounted for as provided in
          the General Appropriations Act.

Acts 1969, 61st Leg., ch. 46, at 134. Section 2 of article 2654~ was
not repealed. The 1971 codification of Title III of the Education
Code codified section l(n) and 2 of article 2654c, V.T.C.S., as
section 54.004. See Acts 1971, 62d Leg., ch. 1024, at 3112. We
believe the 1969 enactment of section (n) of article 2654~ renacted a
provision similar in substance to present section 54.004 of the
Education Code. There has been no more recent amendment to section
51.008 of the Education Code. The 1971 codification of the Education
Code was not intended to effect any substantive changes. Acts 1971,
62d Leg., ch. 1024, article 1, §2. Section 54.004, as the latest
enacted provision, prevails over the conflicting portions of section
51.008. See V.T.C.S. 5429b-2, 83.05(a).

     The University of Texas must therefore look to section 54.004 of
the Education Code for the disposition of these funds. The university
may retain them and account for them as provided by the general
appropriations act. Since the appropriations act does not require the
medical or dental branch or the San Antonio Health Science Center to
deposit these funds in the state treasury, these institutions may
retain them locally. They are to be accounted for in accordance with
article III, section 10h of the General Appropriations Act. Acts
1981, 67th Leg., ch. 875, art. III, 510h.

                            SUMMARY

            Section 54.004 of the Education Code, read
         together with article III, sections 10b and 10h of
         the 1981 General Appropriations Act, authorizes
         the University of Texas Health Science Center at




                                p. 2131
Mr. E. D. Walker - Page 5     (MW-576)




          Dallas, the University of Texas Medical Branch at
          Galveston, the University of Texas Health Science
          Center at Houston and the University of Texas
          Health Science Center at San Antonio to retain
          tuition locally rather than depositing it in the
          State Treasury to be accounted for as provided in
          the General Appropriations Act.




                                         MARK      WHITE
                                         Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Susan L. Garrison &
Patricia Hinojosa
Assistant Attorneys General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Charles Black
Patricia Hinojosa
Jim Moellinger




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