                 THE      ~SITORXEY    GESERAL
                              OF TEXAS
                          Ausrrxx.    TSEXA~           78711




                                     May    9,    1973


The I$onorable Oscar Mausy                         Opinion     No.   H-   37
Chairman,   Education Committee
Room G-21, State Capitol                           Rc:     Whether there exista
Austin,  Texas 78711                                       a conflict between
                                                           Article   54.203 and 55.17,
                                                           Texas Education Code,
                                                           aa to feer that MY       be
Dear   Senator   Mauzy:                                    charged veterans.

     As Chairman of the Senate Education Committee,     you have cited
to us Articles  54.203  and 55.17 of the Education Code, Vernon’s   Texas
Civil Statutes,  asking us to advise whether there is a conflict between
the two and, if so, which of them in controlling.

    Section 54.203    is part of Chapter         54 entitled “Tuition and Fees”,
and more specifically     of sub-chapter         D entitled “Exemptions   from
Tuition”.   It reads,   in part:

             “(a) The governing board of each institution of
         higher education shall exempt the following perrons
         from the payment of all duer, fees and charges,         in-
         cluding fees for correspondence      courses but excluding
         property deposit fees,   student service fees, and any
         fees or charges for lodging,    board, or clothing,     pro-
         vided the person seeking the exemptions       were citizens
         of Texas at the time they entered the services      indicated
          and have resided in Texas for at least the period of
         twelve months before the date of registration:       [and there
          are then listed several  categories   of veterans]   . . . .‘I

     Other provisions of Chapter       54 of the Education           Code provide   for
tuition and various fees.

      Section 54.203 is a codification   of Article 2654b-1.  Vernon’s   Texas
 Civil Statutes, which originally    was enacted in 1933 (Acts 1933, 43rd Leg.,
 Ch. 6, p. 10) and remained     substantially   unchanged until codified in 1971
 as part of the Education Code.


                                           p.    149
The Honorable   Oscar   Mauzy,   page 2    (H-37)




   Section 55.17   of the EducationCode, on the other hand, is in
Chapter 55 entitled “Financing Permanent   Improvements”    and in
sub-chapter   B entitled “Revenue Bonds and Facilities”.  It provides,
in applicable  part:

             ” . . . (c) Fees for the use by or availability       to the
        students of all or any property,     buildings,    structures,
        activities,   services, operations,    or other facilities,    may
        be pledged to the payment of the bonds,         and shall be fixed
        and collected from all or any designated         part of the
        students enrolled in the institution or institutions,       or any
        branch or branches thereof,      in the amounts and in the
        manner as determined and provided by the board in the
        resolution   authorizing the issuance   of the bonds; and
        said fees may be collected in the full amounts required
        or permitted herein, without regard to actual use, avail?
        ability,  or existence of any facility,   commencing      at any
        time designated by the board.      Said fees may be fixed
        and collected for the use or availability     of the institution
        or institutions,   or any branch or branches thereof.         Such
        specific and/or general fees may be fixed and collected,
        and pledged to the payment of any issue or series of bonds
        issued by the board, in the full amounts required or per-
        mitted herein,    in addition to, and regardless     of the exist-
        ence of, any other specific or general fees at the institution
        or institutions,   or any branch or branches thereof; pro-
        vided that each board may restrict      its power to pledge
         such additional specific or general fees in any manner
        that may be provided in any resolution      authorizing the
         issuance of bonds, and provided that no such additional
         specific fees shall be pledged if prohibited by any reso-
         lution which authorized the issuance      of any then out-
         standing bonds. ”

     Section 55.17 in turn is based largely on Article 2909C-3,  Vernon’s
Texas Civil Statutes,   which was first enacted in 1969 (Acts 1969, 6lst
Leg..    Ch. 763, p. 2264) and amended in 1971 (Acts 1971, 62nd Leg.,
Ch. 30, p. 54).

    The caption to the 1969 Act describes  it as a bill, generally,  to
authorize  revenue bonds and fees to retire them.     Neither the Act nor
its caption mentions anything about exceptions   from those liable for the
fees.
                                      p.   150
_^   ’



         The Honorable    Oscar   Mausy,   page   3     (H-37)




             Attorney General Opinion M-306 (1968) construed an exemption from
         payment of student fees allowed by Article  2654b-1, V. T. C. S. , (now
         5 54.203) against a general enactment (Art. 2654a, now 0 54.503),     and said:

                      “The fee exemption granted in Section 1 of
                 Article 2654B-1,     quoted supra, is #toted in clear
                 and unequivocal    language,    and has continued un-
                 changed since the original      enactment of the ltatute
                 in 1933.  Where the Legislature       has expressed   it-
                 self so clearly,    and has carefully   delineated those
                 persons who are to qualify for the exemptions
                 granted,   it is artificial logic to conclude that the
                 plain, unqualified words do not mean what they
                 say . . . . I’

             In our opinion, the two sections    do not conflict.    Section 55.17 deals
         with bonds and their retirement     with funds raised by fees.      It does not
         specify,  in any detail, those who will pay the fees.      Section 54. 203 has
         nothing to do with the use of fees.    It deals specifically   with the question
         of who will, or more precisely,       will    not,   have to pay those   fees.   The
         two are easily reconciled.

              Were there a conflict,     it would be our opinion that the exemptions
         created by $ 54.203 would prevail despite any contrary language in
         5 55.17.   Our conclusion    is based upon the fact that S 54.203       is directly ’
         addressed   to the question of those who will be exempted from the pay-
         ment of student fees, whereas        § 55.17 is addressed     to the financing
         of improvements     and only incidentally,      if at all, to the question of who
         will pay fees; that $ 55.17 can be read as applying only to fees paid
         by non-exempt     persons;   that in the enactment of 5 55.17 and its prede-
         cessors,   there was no indication of any intention to repeal or overrule
         $ 54.203 or to abolish exemptions        which had existed under that statute;
         and that the Legislature,      in adopting the Education Code, had before
         it for its consideration   Attorney General Opinion M-306 (1968).            Code
         Construction    Act, Article    5429b-2,    V. T. C. S.

              It is our conclusion, therefore,   that the provisions of § 55.17 of
          the Education Code authorizing    the governing boards of institutions
          of higher education to set fees for the use of buildings and to pledge
          those fees to the payment of its bonds is subject to the provisions    of




                                                  p.   151
 The Honorable Oscar Mausy,       page 4    (H-37)




 $ 54.203 exempting certain classes of perronr from the payment of all
 fees  and charges.  You have not asked and WC do not answer questions
 concerning the validity of exemptions where prior to the creation of the
 exemption& fees had Bern pledged dir security for the bonds.

                             SUMMARY

                Those specified in 5 54.203.  Texas Education
            Code, as being exempt from the payment of fees and
            charges,  are exempt from the payment of fees and
            charges created pursuant to 5 55.17 having to do. with. *
            the pledging of student fees to secure the payment
            of improvement bonds.

                                      Very truly yours,




                                       Attorney General of Texas

 APPR       V&D:

                                                                        .




JIIksi&~~y




  DAVID M. KENDALL,         Chairman
  Opinion    Committee




                                         p. 152
