                                     @ffice    of tfp PXttornep             Qhteral
                                                  State     of QLexarl
DAN MORALES
 4TTORNW
       CMERAL                                      September 2,1997


   Mr. Kenneth H. Ashworth                                    Opinion No. DM-450
   Commissioner
   Texas Higher Education Coordinating Board                  Re: Whether a community college district may
   P.O. Box 12788                                             charge and collect from its students a mandatory
   Austin, Texas 78711                                        technology fee, and related questions (RQ-929)

   Dear Mr. Ashworth:

            As you know, an institution of higher education may collect t?om students attending the
   institution only those fees or charges pennitted by law.’ On behalf of the Dallas County Community
   College District (the “district”), you ask several questions regarding the district’s authority to charge
   and collect from its students a “mandatoty technology fee.” You tell us that the proceeds from the
   fee would be used to purchase computer hardware, software, and support services “for the direct use
   and benefit of students.” Your first question is whether state law pennits the district to collect such
   a fee.

           You suggest that the district’s technology fee is permitted by sections 54.503 and 54.504 of
   the Education Code. While other provisions of the Education Code authorize fees for institutions
   of higher education generallyr and for particulsr instituti~ns,~ we will limit our discussion to the two
   provisions about which you ask.

           Section 54.503 of the Education Code allows the governing board of an institution of higher
   education to charge and collect “student services fees” from students registered at the institution to




            ‘Educ. code !j 54.003.

            %See,e.g., Fhc. Code $0 54.SOl(authorizing laboratory fees); SOS (authorizing vehicle registration and
   parking fees); SIS (authorizing student union fees).

            ‘See, e.g., id. 5 54.5061 (authorizing the University of Houston System to charge and collect student services
   fees); see generally Educ. Code ch. 54, subch. E. We know of no fee statute applicable only to the Dallas County
   Community College District.

            ‘For the purposes of Education code chapter S4, relating to hdtion and fees, “institution of bigher education”
   ius the meaning assigned to it by section 61.003 of the Education Code, including a public junior college to the extent
   possible. Educ. Code $ S4.001. Section 61.003 of the Education Code defines “instihuion of higher education” to
   include “any . public junior college.” Id. $ 61.003(8). A community college is the same thing as a public junior
   college. See id. $ 130.005.
Mr. Kenneth H. Ashworth - Page 2                        (DM-450)




cover the cost of student services.5 All money collected as student services fees must be reserved
and accounted for in an account or accounts kept separate from the educational and general funds
of the institution.6 The money may be used only for the support of student services.’ The institution
must establish a separate budget for the services financed by the fees, and a copy of the budget must
be tiled annually with the coordinating board, the governor, the legislative budget board, and the
state 1ibrary.r

        Section 54.503 defines “student services” as:

               activities which sre separate and apart from the regularly scheduled academic
               functions of the institution and directly involve or benefit students, including
               textbook rentals, recreational activities, health and hospital services, medical
               services, intramural and intercollegiate athletics, artists and lecture series,
               cultural entertainment series, debating and oratorical activities, student
               publications, student government, the student fee advisory committee, student
               transportation services other than services under Sections 54.504, 54.511,
               54.512, and 54.5 13 of this code,9 and any other student activities and services
               specifically authorized aud approved by the goveming board of the institution
               of higher education. The term does not include services for which a fee is
               charged under another section of this code.“’

Thus section 54.503 permits an institution of higher education to charge a student services fee
approved by the institution’s goveming board if the services funded by the fee “are separate and
apart from the regularly scheduled academic functions of the institution” and “directly involve or
benefit studenta.” Ifthese statutory conditions are satisfied, the district’s mandatory technology fee
is a permissible student services fee under section 54.503.

       Whetha a particular service falls within section 54.503’s definition of “student services” is
normally a determination to be made in the first instance by the institution’s goveming board, subject




        Vd. 6 S4.503@).

       %f. 5 54.503(d). Funds to be accountedfor as educationaland general fimds are.described in Education Code
s&ion s 1.009(c).

        ‘Id.




        %&ion 54.504of the EducationCode provides for the collectionof “incidentalfees,”which are discussed later
in &is opinion. Sections 54.S11, S4512, and 54.S13 provide for stud&t services few at Southwest Texas State
University, The University of Texas at Arlington, and The University of Texas at Austin, respectively. (Footnote
added.)

        ‘%duc. Code 5 S4.S03(a)(l) (footnote added).


                                                   p.    2522
Mr. Kenneth H. Ashworth - Page 3                        (DM-450)




ultimately to judicial review. ‘I You tell us that the district’s technology fee is used to fund services
“for the direct use and benefit of students,” but you do not tell us whether the services are “separate
and apart from the regularly scheduled academic timctions” of the district’s colleges. These factual
determinations, in any event, are best made not by this offke but by the district’s board of trustees.

        We note that a student services fee imposed under section 54.503 may be either compulsory
(charged to all students enrolled at the institution) or voluntary (charged only to those students who
make use of the service for which the fee is established). ‘* Your letter states that the district’s
technology fee is “mandatory.” Additionally, a brief submitted to this office on behalf of certain
students of the district states that the fee is imposed on ah students enrolled for college credits. This
information leads us to believe that the technology fee, if it is a student services fee, falls within the
section 54.503’s definition of a compulsory fee. Special statutory provisions apply to the imposition
of compulsory fees. ‘r We advise the district to examine those provisions in connection with the
imposition of any compulsory student services fee.

        Next, you suggest on behalf of the district that the technology fee is authorized by section
54.504 of the Education Code. Section 54.504 allows the governing board of an institution of higher
education to fix “incidental fees” which may be collected from current and prospective students.14
The rate of an incidental fee must reasonably reflect the actual cost to the institution of the materials
or services for which the fee is collected. ” The institution’s governing board may, but is not
required to, consult with a student fee advisory committee in fixing the rate of an incidental fee.r6

         Section 54.504 defines the term “incidental fees” only by example:

                    In this section, “incidental fees” includes, without limitation, such fees as
                late registration fees, library fines, microfilming fees, thesis or doctoral


         “See F&y v. Benedict, 55 S.W.2d 805,808 (Tex. 1932) (holding that discretionary decisions by governing
board may be set aside on grounds they are arbitrary or unreasonable.); Letter Adviscq Opinion No. SO(1973)
(concluding that whether service is of direct interest or benefit to shldents requires determination of facts that cannot
bc made in opinion process).

         ‘*Educ.Code $5 54.503(a)(3) (defining “voluntary fez”); .SO3(a)(2)(deftig          “compulsory fee”); .503(b)
(authorizing institutions to cdkct compulsory and voluntary student services fees).

         “See id. $5 54503(b) (setting cap of $150 persemester or summer session for total of all compulsory student
services fees collected from student at institution other than The University of Texas at Austin); (e) (permitting
governing board to waive compulsory fee for student because of undue facial hardship); (f~(requiring fee increase
of more ti 10 percent from previous academic year to be approved by majority vote of student election or student
govcmment); .5031 (establishing student fee advisory committee to advise institution on compulsory fees).

         “Id. $54.504(a).

         ‘Vd.

         ‘Vd.    If a student fee advisory committee does not exist at the institutions,the governing board may establish



                                                        p.   2523
Mr. Kenneth H. Ashworth - Page 4                        (DM-450)




              manuscript reproduction or filing fees, bad check charges, application
              processing fees, and laboratory breakage charges, but does not include a fee
              for which a goveming board makes a charge under the authority of any other
              provision of law.”

        As is the case for student services fees, whether a particular fee falls within the scope of the
incidental fees statute is a determination to be made by the institution’s governing board in the first
instance, subject to review by a court. Among the factors a court would consider in determining the
scope of section 54.504 are the circumstances under which the statute was enacted, the object sought
to be obtained by it, and the statute’s legislative history. I8 The definition of incidental fees was the
subject of considerable discussion in the course of the debate on Senate Bill 216, section 54.504’s
enacting legislation, in the Sixty-ninth Texas Legislature. Here, we examine the bill’s legislative
history in order to provide you and the district with some guidance in determining what constitutes
an incidental fee.

        Prior to the enactment of Senate Bill 216, only certain institutions of higher education were
expressly authorized by statute to impose incidental fees. I9 Senate Bill 216 was introduced as an
incidental fee bill for Texas Tech University. *’ The Senate Education Committee adopted a
substitute bill extending the fee authority to all institutions, some of which, like Texas Tech, had
been imposing incidental fees without authority?’




         “Id. $ 54.504(c).

         ‘*SeeCode Construction Act, Gov’t Cc& $3 11.023,

          ‘%ese institutions included The University of Texas Pan-American, The University of Houston, and The
University of Texas System. See, e.g., Act of May 28,1983,68tb Leg., RS., ch. 993.5 1,1983 Tex. Gee Laws S387-
88 (formerly codified at Education Code $65.44) (authorizing ‘Ihe University of Texas System to collect incidental
fees) (rqe&d by Act of May 16,1985,69th Leg., RS., ch. 292.1985 Tex. GUI.Laws 1345);see also Hearings cmS.B.
216 Before the Senate Fduc. Canm., 69th Leg., R.S. (Feb. 6,198s) (testimony of Senator Montford, sponsor) (tape
availablef&n Senate Staff.%rvicts); Hearingson S.B. 216 Before the House Corna on High- Educ., 69th Leg., RS.
(Apr. 22,198s) (testimony of Mike Saaders,Texas Tech University)(tape availablefkomHouse Audio/Vii Services
Office).

         %ee S.B. 216,69thLeg. (1985) (Introduced version).

          “~eScnateEduc.Comm,BiUAnalysis,C.S.S.B.216,69thLeg.,R.S.(l98S);HearingsonS.B.216Before
the Scmtc Educ. Comm., 69th      Log., RS. (Feb. 6,198s) (testimony of Senator Montford, sponsor) (tape available from
Senate Staff Services); see also House Comm. on Higher Fiduc., Bill Analysis, S.B. 216, 69th Leg.. R.S. (1985)
(“cumntty, instituticm of higher education collect a variety of fees, e.g., returned checks, late registration, processing
fees, etc. not covered by any statute.“). Mike Sanders, on behalf of Texas Tech University, later told the House
Committee on Higha Fducation: “We’vealways had incidentalfee stmctwes, some of us have just not had the statute,
and tie state auditor started taking questionsas to whether or not we could charge these incidental fees, so all this would
do is sanction an existing incidentalfee simcture in tbe institutionsIhat do not have a specific statute.” Hearings on S.B.
216 Before.the House Canm on Higher Educ., 69th Leg., R.S. (Apr. 22,198s) (testimony of Mike Sanders, Texas Tech
University) (tape available from House Audio/Visual Services Office).

                                                        p. 2524
Mr. Kenneth H. Ashworth - Page 5                  (DM-450)




         Some members of the Senate viewed Senate Bill 216 as merely codifying an existing,
accepted practice.” Senator Montford, the bill’s sponsor, explain& “Since our institutions have
historically charged these incidental fees, I think it’s preferable that we should have a solid statutory
basis on which they can be predicated.“23 He was hesitant to be “too picky” with tbe definition of
the fees, prefetring to allow each board of regents to determine the types of fees it needed to charge
in order to cover the costs of incidental services.24

         Other members were reluctant to increase costs to college and university students. Senator
Truan said, “[we’re going to be called upon to increase tuition, and I’m just wondering to what
extent we’re going to increase total cost of the students going to school.‘“’ The lack of a limited
definition of incidental fees was of particular concern to some members. Said Senator Edwards, “I
would want to be cautious also before we allow a carte blanche of universities to increase incidental
fees at their pleasure and then define incidental fees in the way in which they would like. I think
there should be some wnstraint on them . . .r’*6

        A subcommittee was convened to consider the issue, and the subcommittee recommended
adoption of the definition that now appears in the statute. The definition’s purpose, according to
Senator Caperton, was to illustrate the kinds of incidental fees contemplated by the bill while leaving
colleges and universities with some leeway in determining the fees they need to impose. “It’s not
limited to [the fees listed], but it is designed to give the individual institutions some clue about which
we speak,” he said.27

       The definition of incidental fees was discussed again on the floor of the Senate in this
exchange between Senator Farabee and Senator Montford:

            Senator Farabee: Senator Montford, I have no quarrel with the idea of fees
            for incidental matters such as a breakage or a bad check. But what worries
            meinthebillis...    when it says “‘without limitation.” Could you explain for



        ‘?See Hearings on S.B. 216 Before the Senate E&c. Comm., 69th Leg., RS. (Feb. 6, 1985) (statement of
Senator Montford) (tape available fhm Senate Staff Services); Hearings on S.B. 216 Before the House Comm. on
Higher Educ., 69th Leg., RS. (Apr. 29,1985) (tape available from House AudioNisual Services Office).

        %ee Hearings on S.B. 216 Before the Senate F&c. Comm., 69th Leg., R.S. (Feb. 6, 1985) (statement of
Senator Montford).(tape available from SenatcStaff Services).

        =‘Id.

        “Hearings on S.B. 216 Before the Senate F&c. Gxnm., 69th Leg., RS. (Feb. 6, 1985) (statement of
Senator Tman) (tape available from Senate Staff Services).

         26senatorEdwads was tcmarkhg on a proposed committee substitute that would have authorized incidental
fees without including any defmition 01 examples of the fees. That substitute was not adopted by the committee.

        “Hearings on S.B. 216 Before the Senate Educ. Comm., 69th Leg.. RS. (Feb. 6, 1985) (statement of
Senator Cap&on) (tape available from Senate Staff Services).


                                                  p.   2525
Mr. Kenneth H. Ashworth - Page 6                    (DM-450)




               the purpose of legislative intent, does this open it up to allow the board of
               regents at any college. , . to set fees without liitation? What limitations are
               there really?

               Senator Montford: Senator, the reason that we could not make an exclusive
               definition was because of the fact that . . . the need for these types of fees
               occur and come about f?om time to time. This definition, if anything, was an
               attempt to specifically name areas that we could address these fees to. So if
               anything it was an attempt to codify the legislative intent of the types of fees
               that we were looking at.

               Senator Farabee: And so what you mean, for the purposes of legislative
               intent of this, is not any kind of general fee, lie perhaps a head tax for people
               who go to school at night or people who go to school in the afternoon, but
               fees directly related to some breakage or service.

               Senator Montford: Yes. That’s correct. I would certainly chime in that that
               was the legislative intent of this bill.”

        In the House of Representatives, members of the Committee on Higher Education also
expressed concern about the scope of permissible incidental fees. Representative Garcia asked
“What does ‘without liiitation’ mean?” According to Representative Uher, “It means that even
though they identify some of these incidental fees, there could be some other ones that the legislation
did not foresee.“” Representative Uher assured the committee that excessive fees would not be a
problem. “Really, when you look at the incidental fees we arc talking about, we are talking about
a very minute, small area . . . .“l’ He described the fees as “mostly insignificant.“3’

        The legislative history of E&cation Code section 54.504 indicates to us that the legislature
intended to give colleges and universities some discretion in determining what fees to collect as
incidental fees under authority of the statute. At the same time, it is evident that the legislature did
not intend to give institutions unliited power to define incidental fees. It appesrs to us that section
54.504 was not intended to be used as a major source of revenue, nor as a source of funds to tinance
permanent college improvements .‘a The types of fees contemplated by section 54.504 are the types


         %batmnS.B.       216 on the Floor of theSenate, 69th kg., R.S.~(Feb.18,198s) (tape available from Senate
Staff Services).

        =Hearin@cmS.B. 216 Before the House Ckmm on Higher Educ., 69th Leg., R.S. (Apr. 29,198s) (statement
of Representative Uher) (tape available from House Audio/Visual Services Offke).



        “Id.

        =We note that chapter 55 of the Education Code authorizes instib~tiomof higher education other than public
                                                                                                    (mntinud..)

                                                    p.   2526
Mr. Kenneth H. Ashworth - Page 7                      (DM-450)




listed there: late registration fees, library tines, microfilming fees, thesis or doctoral manuscript
reproduction or filing fees, bad check charges, application processing fees, and laboratory breakage
charges. All of these, we believe, fall within the ordinary meaning of the term “incidental,” Le.,
‘being likely to ensue as a chance or minor consequence.“‘3 They share the characteristic of being
assessed only upon a certain action or inaction on the part of particular students or prospective
students, rather than the characteristic of being collected from all students merely as incident to their
enrollment. They are not like the general “head tax” described by Senator Farabee as being outside
the scope of the statute.‘4

         Judging only from the brief description in your letter, it does not appear to us that the
district’s “mandatory technology fee,” which is applicable to all students enrolled in the district for
credit rather than particular students based on a certain action or inaction, is the type of fee
contemplated by the legislature when it authorized institutions of higher education to collect
incidental fees. However, as we discussed above, it is for the district’s governing board to decide
in the first instance whether the fee is an incidental fee authorized by section 54.504.

        Your next question is whether a fee imposed under section 54.503 or 54.504 would be
subject to the requirements of section 54.503(b) through (t). Subsections (b) through (t) of section
54.503 apply only to student services fees imposed under the authority of section 54.503. Only one
provision in section 54.503 expressly does not apply to community wlleges?5 A student services
fee imposed under section 54.503 is subject to all the applicable requirements of that section.

        Finally, you ask whether a county-wide community college district, with seven separately
accredited colleges throughout the district, may transfer student services fees charged pursuant to
section 54.503 between the colleges regardless of which college collected the fee. We conclude that
it may.

       Public junior college districts are created upon authorization by the Texas Higher Education
Coordinating Board (the “coordinating board”) and compliance with other statutory requirements




junior colleges N issue bonds end ccllcct fees for the purpose of tinancing campus infmsuuctuce. See Educ. Code ch.
 55. Section 130.123 authorizes public junior colleges to do the same. Id. 5 130.123.

         “WEBSTER’NINTH
                  S    NEWCOLLU~IATE
                                   DICTIONARY
                                            609 (9th ed. 1983).

          “See supra discussion at note 28, see also Hearings on S.B. 216 Before the House Gxnm. cu Higher Educ.,
69th Leg., R.S. (Apr. 22, 198s) (statement of Representative Armbrister) (tape svailsble from House AudiaNimal
Services Of&e) (“It should be itnpurtent to note in here that          the defmition of incidental fees arc those that
sometimes that WCse because of in&ion by the part of shldents or prospective students in tiling rather than any type
of a building use 01 something like this. This doesn’t touch those et all. These are things Lie library fmes    .“).

         YSee Educ. Code 5 54.503(b) (“AUcempulscry student services fees charged and collected under this section
by the governing beard of au instiNtion of higher education, other than a public junior college, shall be assessed in
pqxxtion to the number of semester credit hours for which a student registers.“).

                                                     p.   2527
Mr. Kenneth H. Ashworth - Page 8                       (DM-450)




and regulations of the coordinating board. 36 While the coordinating board exercises general control
over the colleges,‘7 each approved college district is governed, administered, and controlled by a
board of tru&xx3* The board of trustees may establish and operate branch campuses, but the
campuses remain within the role and scope of the junior college district as determined by the
wordinating board.” The coordinating board’s rules regarding the establishment ofjunior college
branch campuses provide that in its program aspects, a branch campus is equivalent to an
independent community college, and therefore must maintain minimum course, size, and staffing
requirements. ‘O Branch campuses are not governed by separate boards of trustees, however.
Governing power, including the authority to collect taxes, issue bonds, and receive appropriations
of state funds, remains with the board of trustees of the district.”

        This is true even if the branch campuses are separately accredited. The coordinating board
requires accreditation by an appropriate accrediting entity, usually the Southern Association of
Colleges and Schools, in order for a junior college to be certified to receive appropriations of state
funds.” It is our understanding that each college within a college system may be separately
accredited, or the district may be accredited as a whole. In any event, accreditation does not affect
the organization and governance structure of community college districts set out in the Education
Code.

         Funds collected as student services fees pursuant to Education Code section 54.503 are local
funds which may be retained and controlled by the institution43 subject to the accounting, budgeting,
and reporting requirements of section 54.503. In our view, the authority of a community college
district board of trustees to retain and control local funds includes the authority to distribute the
kmds among campuses in the district as the board deems appropriate. We therefore find no legal
impediment to the reallocation of funds collected corn student services fees among the branch
campuses witbin the district’s college system, provided the funds are used for student services which
“directly involve or benefit students” and are “separate and apart fkom the regularly scheduled



         %?e id. 5 130.001.

         “Id.; see generally id.   ch. 130.

         %ez id. $5 130.015 (providing for control by board of trustees of public junior college established by
independent school district or city); .040 (providing for control by board of trustees of union junior college, county
junior college, or joint-county junior college).

          ‘Vd. 5 130.086(a).

          “19T.A.C. $5.265.

          “See Educ. Code $5 130.121, ,123; General Appropriations Act, Act of May 25, 1995,74tb Leg., ch. 1063,
1995   Tex. Gem Laws S242,5633-43.

          “See 19 T.A.C. $+j9.61 - .77 (setting out the basic standards for public junior colleges).

          “Fduc. code g 5 1.002(a)-@)

                                                       p. 2528
Mr. Kenneth H. Ashworth - Page 9                       (DM-450)




academic functions” of the college.@ The district’s reallocation of fees is, of course, subject to
review by a court for abuse of discretion. A discretionary decision by an institution of higher
education will be set aside if it is arbitrary or unreasonable, or if it violates the law.45

                                               SUMMARY

                 Section 54.503 of the Education Code permits an institution of higher
             education to charge a “student services fee” approved by the institution’s
             goveming board if the services funded by the fee “are separate and apart horn
             the regularly scheduled academic functions of the institution” and “directly
             involve or benefit students.” Whether a particular service falls within section
             54.503’s definition of a student services fee is normally a determination to be
             made in the first instance by the institution’s governing board, subject
             ultimately to judicial review. A student services fee imposed under section
             54.503 is subject to all the applicable requirements of that section.

                  Section 54.504 of the Education Code allows the governing board of an
             institution of higher education to fix “incidental fees” which may be collected
             from current and prospective students. The types of fees contemplated by
             section 54.504 are the types listed in the statute, all of which share the
             characteristic of being assessed only upon a certain action or inaction on the
             part of particular students or prospective students, rather than the
             characteristic of being collected horn all students merely as incident to their
             enrollment. Whether a particular fee falls within the scope of the incidental
             fees statute is a determination to be made by the institution’s goveming board
             in the first instance, subject to review by a court.




         “See id. 5 54.503(a).

         7% F&y v. Benedict, SS S.W.Zd 805,808 (Tex. 1932). It is our understanding that a student admitted to
one college in the district’s college system is automatically admitted to all of the colleges. Presumably, such a shldent
has the privilege of taking classes at and using tbe facilities of all the campuses. We can conceive of a situation,
however, where fee-paying students do not have access as a practical matter to other campuses receiving reallocated
funds from student services fees. A court might fmd in such a case that the reallocation of funds is contrary to the
requirements of section 54.503 or is an abuse of the governing board’s discretion.


                                                       p. 2529
Mr. Kenneth H. Ashworth - Page 10            (DM-450)




           A county-wide community college district, with separately accredited
           colleges throughout the district, may transfer student services fees charged
           pursuant to section 54.503 between the colleges regardless of which college
           collected the fee.




                                             DAN MORALES
                                             Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Barbara Griffin
Assistant Attorney General




                                             p. 2530
