                             TIME A'HTORSEY   GENERAL
                                     OFTEX.~S

AlTORNRY      CRNERAI.

                                                July 11,


           The Honorable Bevington Reed                           Opinion No.    H- 61
           Commissioner,   Coordinating  Board
           Texas College and University  System                   Re:   Tuition to be charged by
           P. 0. Box 12788, Capitol Station                             Junior College Districts
           Austin, Texas 78711                                          to persons living in and
                                                                        out of the college district.
           Dear    Commissioner        Reed:

              You have requested           the opinion of this office    on the following    questions:

                              “1. Can the Board of Regents of a junior college
                         district legally set two different ‘out-of-district’
                         tuition charges:   one charge to those of its students
                         who reside in another junior college district and
                         another charge to students who do not live in a
                         junior college district (but who are Texas residents)?

                              "2. Can the Board of Regents of a junior college
                         district set a tuition charge for extension classes
                         taught outside the district at a rate different from
                         that charged students in classes   taught inside its
                         district? ”

                Junior College Districts   are governed by Chapter 130 of the Texas
           Education Code, and other provisions.       Section 130.004 (all references
           are to the Texas Education Code unless otherwise stated) classifies        junior
           colleges   as public junior college and junior college divisions of a regional
           college.    Your questions pertain to the junior college district,   and not the
           regional college district.    Accordingly  we  restrict our answers   to the powers
           of the governing board of a junior college district.

                  Chapter     54 governs   Tuition   and Fees.      Section   54. 002 provides:

                              “The provisions   of this chapter apply to all
                         institutions of higher educations, except that as to
                         junior colleges   this chapter applies only to the
                         extent provided by Section 130.003(b)    of this code.”


                                                       p.   260
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The Honorable        Bevington      Reed,   page 2 (H-61)




    Section    130.003(b)     provides      in part:

             “To be eligible for and to receive a proportionate
        share of the [state appropriation   for public junior
        colleges],  a public junior college must:

                .   * .


                         (4) collect,  from each full-time    and
                     part-time   student enrolled,  matriculation
                     and other session fees in the amounts re-
                     quired 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 re-
                     quired by law on Janaury 1, 1971; . . . ‘I
                     (Emphasis    added)

    Prior     to 1969,    Article   2815j-2,        V. T. C. S.,   provided   in part:

             “It shall be mandatory that each institution [public
        junior college]   participating   in the funds herein pro-
        vided shall collect from each full-time      student enrolled,
        matriculation    and other session fees not less than the
        amounts provided 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 load. ” (Emphasis       added)

     In 1969 the Legislature     adopted Titles 1. 2 and 3 of the Texas Education
Code.     Title 3 at that!ime consisted      solely of Chapter 51, Public Junior
Colleges.      Acts 1969, 61st Leg.,     p. 2755, Ch. 889, instituted    the initial
change in language seen i,n the emphasized           portions of the a~bove quoted
provisions.      Sectl,on 2 of the 1969 enactment specifically      repealed Article
2815j-2,    V. T. C. S. It is our opi:ni.on that the change in language evidences
a change in intent by the Legislature,         a,nd that a public junior college may
qualify for participation     in the distribution    of State moneys appropriated
pursuant to 5 130.003 only by cha.rging such matriculation           and other session
fees as are required and provided by law for other state-supported              insti-
tutions of higher education,      i. e., as are provided by Chapter 54. Such a
reading of $ I30. 003(b) is in harmony with the language of § 54.002,            quoted
above.


                                               p.    261
The Honorable   Bevington   Reed,   page    3 (H-61)




     A public junior college which charges a greater tuition of a Texas
resident than that authorized by $ 54.051 is disqualified      just as is one
which charges a lesser tuition.       Since $ 54. 051 does not differentiate
tuition rates on where a Texas resident is residing tiithin the State,,
it is our opinion that any public junior college doing so thereby disqualifies
itself from participation   in distribution  of $130. 003 funds.    This !.s true
regardless   of whether the tuition and fees are for courses at the central
campus or for courses taught at an extension facility established          under
§ 130.086.

     There remains the question of whether the governing board of a junior
college distri~ct which is willing to forfeit its share of $130. 003 funds may
establish such tuition charges.     As provided in 5 54.002,     the statutory
tuition rates of $ 54. 051 do not apply to junior colleges    except to the extent
that conformity   thereto is prerequisite   to eligibility for 5 130. 003 State
funds.   These two provisions    taken together imply that the governing board
of a junior college district otherwise    is empowered to establish tuition fees
at such levels as it sees fit.   Section 130. 002 supports this conclusion.      It
provides as follows:

             “All authority not vested by this chapter
        or by other laws of the state in the coordinating
        board or in the Central Education Agency is re-
        served and remined locally in each of the respec-
        tive public junior college distrtcts  or in the
        governing boards of such junior colleges as pro-
        vided in the laws a,pplicabIe. ”

See also § 61. 060.  An examination  of the statutes govern:ng the Coordinat:ing
Board (Chapter 61) reveals no power to fix public junior college tuition rates,
although the Board is requi.red to recommend      to the Governor   and the Legis-
lative Budget Board tuition policies  for public junior colleges   ($ 61. 059d).   We
can find no provisions  establishing tilition schedules for p&lic junior colleges
in the case where § 51. 051 does not apply, nor any provision     specific:ally
authorizing  some body other than the governing board to fix such fees.

     It is therefore, our opinion that the governing board of a public junior
college may establish such tuition schedules as set forth in your two questi~ons,
but that by dcing so it would disqual.ify such district from partici,pation in the
distribution of 5 130.003 funds.   See Attorney General Opinion M-940 (1971j.




                                     p.    262
The Honorable    Bevington   Reed,   page 4 (H-61)




                             SUMMARY

               Nothing contained in the Texas Education Code would
          limit the right of the public junior colleges to charge
          more tuition to non-residents    of their district than to
          residents,   except that by charging different fees,   the
          colleges would disqualify themselves      from receiving
          State funds under $130.003(b).    Texas Education Code.

                                         Very   truly yours,




                                         Attorney    General   of Texas


APP,R&ED:




Opinion    Committee




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