                                            September   14, 1973


The Honorable   George McNiel                                Opinion   No.   H-103
State Auditor
Sam Houston State Office Building                            Re:       Rate of tuition to be
Austin,  Texas. 78711                                                  charged non-resident
                                                                       students under 5 5
                                                                       54.051~(h)and 130.003
                                                                       (b) (4) of the Texas
Dear   Mr.   McNiel:                                                   Education   Code

        You have asked us to resolve      an apparent  conflict between the
provisions   of $130.003(b)(4)    and $ 54.051(h) of the Texas Education    Code
as they apply to the tuition to be charged by public junior co:lleges to
students who are citizens      of a country other than the United States of
America.

        Section 54.05:1(h) is part of Chapter     54 of the Code, generally
providing    for tuition and fees chargeable     by institutions   of higher education.
Although,     by definitions  found in $61.003 of the Code, a public junior college
is an institution    of higher education,   5 54.002 provides     that Chapter 54
applies to junior colleges      “only to the extent provided     by Section 130.003(b)
of this Code,”

        Section 130.003(a)     provides    for the biennial appropriation         of State
funds in an amount “sufficient         to supplement       local funds for the proper
support,    maintenance,      operation,    and improvement          of those public junior
colleges    of Texas that meet the standards           prescribed      by this Chapter.    . . .‘I
Subsection     (b) of the section provides      eligibility     requirements    for those
funds . It provides      in part:

                       “(b) To be eligible  for and to receive  a pro-
               portionate    share of the appropriation,   a public junior
               college    must:

                       !I
                            .   .   .   .




                                                    p. 470
                                                                                           -




The   Honorable   George    McNiel,    page   2 (H-103)




                     “(4) Collect,   from each full-time        and part-
              time student enrolled,      matriculation     and other
              session fees in the amounts required          and provided
              by law for other state-supported        institutions   of
              higher education,     except that the amount charged
              non-residents     need not be greater     than the amount
              so required     by law on January 1, 1971; . . . .‘I
              (emphasis     added)

         The Texas Education     Code purports   to be a codification   of the existing
law without substantive      changes.   Section 2, Acts 1971, 62nd Leg.,       p. 3072,
ch. 1024; $55, Acts 1971, 62nd Leg.,         p. 1449, ch. 405; and see Article
5429b-1, Vernon’s      Texas Civil Statutes,authorizing    the statutory    revision
program     on a “topical   or code basis” and providing:     “In carrying    out the
revision    program,    the sense,   meaning or effect of any legislative     act
shall not be altered.     ”

        Prior  to the adoption    of the Education  Code, the provisions          of $130.003
(b) (4) were found in Article     2815j-2, V. T. C. S., which provided,          in part:

                       “It shal,l be mandatory      that each institution
              participating     in the funds herein provided        shall collect
              from each full-time        student enrolled,     matriculation
              and other session fees not less than the amounts pro-
              vided for by law and by other State-supported              institutions
              of higher learning      for full-time     students and shall collect
              proportionate      amounts for students taking less than a
              full-time    student load. ” (emphasis         added)

         The snoutit of tuition provided    for by law for students who are citizens
of any country other than the United States of America             in other State-supported
institutions    of higher learning    is $14.00 per semester      credit hour but not less
than a total of $200 [§ 54. 051(h) Texas Education         Code].    Aliens   are not the
students defined as “non-residents”          for whom tuition is provided       by 5 54.051(c)
at $40 per semester       credit hour by $ 54.051(j) which applies to non-resident
students in a public junior col.lege and calls for tuition as provided            in sub-
section    (b) of $130.003.     Since  you have  not inquired   about   non-resident    students
we need not determine        what the tuition should be.




                                         p. 471
The Honorable     George   McNiel,     page   3 (H-103)




       It is our opinion that there is no conflict between the sections
130.003(b) (4) and 54.051(h) and that, construing   them together,   public
junior co:lleges are required   to charge students who are citizens    of a
country other than the United States tuition at a rate of at least $14
per semester     credit hour and not less than $200 total per semester.
See Attorney    General  Opinion M-1024 (1971).

        Of course,  if any public junior college    desires not to participate
in the State funding,    then 5 130.003(b) (4) does not apply and there is no
statutory   maximum     or minimum    tuition which may be charged aliens.

        One exception   must be noted to the foregoing         and that has to do
with an alien who is living in this country under a visa permitting              per-
manent residence      or who has filed with the proper federal          immigration
authorities  a declaration    of intention    to become a citizen.       Such a student,
a “resident   alien, ” who also resides       in a junior college    district located
immediately    adjacent   to the Texas boundary lines shall be charged            resi-
dent tuition by that junior college      district   ($ 54.057,   Texas Education
Code).

                                     SUMMARY

                     Except as to resident     aliens defined by 5 54.057
              of the Texas Education      Code, junior college    districts
              wishing to participate    in State funding are required       to
              charge   students who are citizens      of any country other
              than the United States of America,        a minimum     of $14
              per semester     credit hour and a total of not less than
              $200 per semester,       They may charge more.

                                         Very    truly    yours,




                                         JOHS L. HILL
                                         Attorney General          of Texas




                                         p. 472
          The Honorable   George   McNiel,    page   4(H:103)




          APPROVED:




(ijifi$




          DAVID M. KENDALL,        Chair&an
          Opinion Committee




                                              p. 473
