                                                        (£)
                                  ATTORNEY GENERAL OF TEXAS
                                                 GREG         ABBOTT




                                                    November 20, 2012



Raymund A. Paredes, Ph.D.                                        Opinion No. GA-0975
Commissioner of Higher Education
Texas Higher Education Coordinating Board                        Re:    Whether the Texas Higher Education
Post Office Box 12788                                            Coordinating Board may grant a certificate of
Austin, Texas 78711                                              authority to a foreign school, including a foreign
                                                                 medical school, pursuant to section 61.306 of the
                                                                 Education Code (RQ-I062-GA)

Dear Commissioner Paredes:

         You ask whether the Texas Higher Education Coordinating Board (the "Board") has the
authority to grant a certificate of authority under section 61.306 of the Education Code to a foreign-
based medical school that wishes to offer courses in Texas. 1 A certificate of authority issued by the
Board generally allows certain private postsecondary educational institutions 2 to grant degrees and
to enroll students for courses which may be applicable toward a degree in Texas. You tell us that
a medical school based in the Caribbean seeks to provide clinical training to certain third- and
fourth-year students through c1erkships at Texas teaching hospitals and that the school "has followed
the procedures required by [the Education Code and Board rule] for application for a certificate of
authority."J Request Letter at 2. You ask whether the Board nevertheless lacks authority to grant
a certificate of authority to this medical school because it is not based in the United States. Id. Your


         ILetter from Raymund A. Paredes, Ph.D., Comm'r, Tex. Higher Educ. Coordinating Bd., to Honorable Greg
Abbott, Tex. Att'y Gen. at 1 (May 21, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").

          2A "private postsecondary educational institution" is "an educational institution which: (A) is not an institution

of higher education as defined by Section 61.003; (B) is incorporated under the laws of this state, maintains a place of
business in this state, has a representative present in this state, or solicits business in this state; and (C) furnishes or offers
to furnish courses of instruction in person, by electronic media, or by correspondence leading to a degree or providing
credits alleged to be applicable to a degree." TEX. EDUC. CODE ANN. § 61.302(2) (West 2006). If the institution is
accredited by a Texas-approved accrediting agency, it is exempt from the requirement of obtaining a certificate of
authority. See id. § 61.303(a). Instead, an accredited institution seeking to grant degrees or offer courses applicable
toward a degree in Texas would apply for a "certificate of authorization" from the Board. See id. § 61.303(c).

          3See generally TEX. EDUC. CODE ANN . § 61.305 (West 2006) (setting forth the elements of an application for
a certificate of authority); 19 TEX. ADMIN. CODE § 7.8 (2012) (Tex. Higher Educ. Coordinating Bd., Institutions Not
Accredited by a Board Recognized Accreditor) (outlining the process to obtain a certificate of authority for an institution
which is not accredited by a recognized accreditor and which does not meet the definition of "institution of higher
education" under section 61 .003 of the Education Code).
Raymund A. Paredes, Ph.D. - Page 2                        (GA-0975)




letter assumes that the school in question otherwise meets the statutory and regulatory criteria for
issuance of a certificate of authority. We express no opinion on whether the specific medical school
in question meets the criteria for a certificate of authority. We address only the general question of
whether a school's foreign location makes the school ineligible for a certificate of authority.

        Chapter 61, subchapter G of the Education Code governs the Board's power to regulate
private postsecondary educational institutions. See generally TEX. EDUC. CODE ANN. §§ 61.301-
.321 (West 2006). By way of background, subchapter G was originally enacted in 1975 to regulate
the increasing use of off-campus instruction, credit by examination, college-without-walls
arrangements, and the accompanying proliferation of "degree mill or diploma mill" operations. 4
Subsequent amendments in 1985 closed a loophole that had previously exempted certain
unaccredited professional schools, including foreign-based schools operating in Texas, from the
regulation of subchapter G. 5 Subchapter G authorizes the Board to issue a certificate of authority
authorizing a private postsecondary educational institution to enroll students for courses in Texas
which may be applicable toward a degree 6 if the Board "finds that the applicant meets the standards
established by the [B]oard for certification.,,7 Id. § 61.306(a).

        Chapter 61 contains no geographic requirements or restrictions that explicitly prevent the
Board from issuing a certificate of authority to a foreign-based institution that otherwise meets the
standards established by the Board for the issuance of such a certificate. See R.R. Comm 'n of Tex.
v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619,628 (Tex. 2011) (noting that we
construe a statute so as to give effect to the Legislature's intent as expressed in its plain language).




         4HOUSE COMM. ON HIGHER EDUC., BILL ANALYSIS, Tex. H.B. 1538, 64th Leg., R.S. (1975).

          SHOUSE COMM. ON HIGHER EDUC., BILL ANALYSIS, Tex. H.B. 934, 69th Leg., R.S. (1985) ("Certain
unaccredited professional schools (e.g. private medical or law schools) currently are not subject to any type of quality
standards because of provisions in the law which exempt from state regulation any schools whose graduates are subject
to state licensure. Concerns have been raised by the attorney general's office and the Coordinating Board over the
operation in EI Paso ofa Caribbean medical school branch facility.").

          6See TEX. EDUC. CODE ANN. § 61.302(1) (West 2006) (defining a "degree" to include "any title or designation,
mark, abbreviation, appellation, or series of letters or words, including ... doctor's ... which signifies, purports to, or
is generally taken to signify satisfactory completion of the requirements of all or part of a program of study leading to
[a] ... doctor's degree or its equivalent"); see also id. § 61.313(a) (providing that, absent a certification of authority
granted under subchapter G, an institution generally "may not ... use the term ... 'school of medicine,' 'medical school,'
[or] 'health science center,'" among others).

          7To apply for a certificate of authority, the Board requires that an institution meet certain eligibility requirements
concerning the current legal operation of the institution. See 19 TEx. ADMIN. CODE § 7.8(1)(A) (2012) (Tex. Higher
Educ. Coordinating Bd., Institutions Not Accredited by a Board Recognized Accreditor) (Certificate of Authority,
Eligibility). In addition, an institution must, among other requirements: (1) have either a letter of exemption or
Certificate of Approval from the Texas Workforce Commission; (2) comply with standards for operations of institutions
set forth by rule; (3) submit all accrediting agency reports, findings, and responses; and (4) be subject to an on-site
evaluation if deemed necessary by the Commissioner of Higher Education. See id. § 7.8(3) (Authorization Process).
Raymund A. Paredes, Ph.D. - Page 3                        (GA-0975)




         We have not found, nor have you directed this office to, any other legal requirement or
restriction that would prevent the Board from considering a foreign institution as a candidate for a
certificate of authority. Because there is no statutory requirement that the institution applying for
a certificate of authority be of domestic origin, a foreign medical school that otherwise satisfies the
statutory and regulatory criteria could be considered by the Board as a candidate for a certificate of
authority.

        Notably, however, nothing in chapter 61 explicitly prevents the Board from denying an
original certificate of authority on the basis of the applicant's foreign location or for any other reason
the Board deems appropriate. The plain language of subsection 61.306(a) makes it clear that the
Board's power to bestow original certificates of authority is discretionary. TEX. EDUC. CODE ANN.
§ 61.306(a) (West 2006) ("The board may issue a certificate of authority ... if it finds that the
applicant meets the standards established by the board for certification. ,,)8 (emphasis added). Thus,
even if a private postsecondary educational institution'meets all the standards established by the
Board for original certification, the Board retains the discretion to grant or deny the certificate as it
deems appropriate. 9 In sum, nothing in the statute indicates that foreign schools are excluded from
consideration. By the same token, nothing indicates the Board must include them, either. It is up
to the Board to determine, in the first instance, whether the granting of a certificate of authority to
a particular school is consistent with the Board's standards.

        Some briefing submitted to this office has suggested that the Board delay action until the
Legislature can consider the policy implications of a decision to allow or disallow the issuance of
certificates of authority to foreign schools. We find no statute limiting the exercise of the Board's
discretionary authority to any particular time period. Thus, nothing prevents the Board from delaying
consideration of a pending application for an original certificate of authority at its discretion.

        In sum, we conclude that chapter 61 of the Education Code gives the Board discretion to
grant or deny a certificate of authority to a foreign medical school that otherwise satisfies the
statutory and regulatory criteria for issuance of a certificate.




          8But see TEX. EDUC. CODE ANN. § 61.308(c) (West 2006) (providing that on an application for renewal ofa
certificate of authority, "[t]he Board shall renew the certificate if it finds that the institution has maintained all requisite
standards and has complied with all rules and regulations promulgated by the board") (emphasis added).

          9See also id. § 61.310 (providing that an institution is entitled to written notice of the reasons for a denial and
may request a hearing); 19 TEX, ADMIN. CODE § 7.8(3)(M}-(N) (2012) (Tex. Higher Educ. Coordinating Bd., Institutions
Not Accredited by a Board Recognized Accreditor) (providing that if the Board approves the application then the
certificate of authority is immediately prepared, but if the Board does not approve the application then the Commissioner
of Education immediately notifies the institution of the denial and the reasons for the denial).
Raymund A. Paredes, Ph.D. - Page 4          (GA-0975)



                                      SUMMARY

                      Chapter 61 of the Education Code gives the Board discretion
              to grant or deny a certificate of authority to a foreign medical school
              that otherwise satisfies the statutory and regulatory criteria for
              issuance of a certificate.

                                             Very truly yours,




                                                             alofTexas


DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee
