                                      October   1, 1975



The Honorable M. L. Brockette                              Opinion   No.   H- 702
Commissioner    of Education
Texas Education Agency                                     Re: Authority   of school districts
201 E. 11th Street                                         to charge fees for certain courses,
Austin, Texas   78701                                      school supplies and extra-curricular
                                                           activities.
       .
Dear Commissioner        Brockette:

      You have asked whether       a.school     district   may’impose      any or all of the
following fees:

                    1.   Tuition   for driver education training.
                    2. Charges      for school supplies and instruction and
                         lab fees in conjunction witlrnorinal       academic,
                         vocational or physical education classroom          in-
                          struction or training.
                    3.   Fees for extra curricular      activities,   such as
                         band uniforms,     athletic lockers and towels,
                         and club membership.

       The Legislature   is directed by article 7, section 1 of the Texas Constitution
to establish  “an efficient system of public free schools.    “The Supreme Court has
held that the Legislature     alone is authorized to interpret and implement this con-
stitutional provision:

                    Since the Legislature      has the mandatory duty
                    to make suitable provision         for the support Andy
                    maintenance     of an efficient system of public free
                    schools,   and has the power to pass any law re-
                    lative thereto,    it necessarily    follows that it has
                    ~a choice in the selection of methods by which the
                    object of the organic law may be effectuated.            The
                    Legislature   alone is.to judge what means are
                    necessary    and appropriate      for a purpose which the
                    Constitution makes legitimate.           The legislative
                    determination     of the methods,      restrictions,   and
                    regi.dations is final, except when so arbitrary as
                    to be violative of the constitutional        rights of the
                    citizen.   Mumme V. Mans,            40 S. W.id 31, 36
                    (Tex. Sup. 1931).



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The Honorable    M.   L.   Brockette   - Page 2 (H-702)




      The Legislature   has not seen fit to authorize any of the charges about
which you inquire in the Education Code or any other statute.          By contrast,
certain other charges are specifically     mentioned in the Education Code.         We
note, for example that section 16. 864 of the Education Code authorizes          a district
to impose tuition for the fourth quarter,      section 21.063 permits a district to
assess a tuition fee for transfer    students,   section 26. 66 provides for tuition and
fees for rehabilitation   students and section 21.03 authorizes      the imposition of
tuition and fees for vocational training.      The Legislature   not having authorized
charges in the area of your inquiries,     and having specifically    permitted charges
in other areas,    would argue for the conclusion that, the Legislature     did not intend
to authorize charges for those activities about which you inquire.         State V. Richards,
301 S. W. 2d 597,60O(Tex.     Sup. 1957); Federal Crude Oil Co. v. Yount-Lee         Oil C 0.8
52 S. W. 2d 56, 60 (Tex. Sup. 1932).

     In a decision rendered by then Commissioner         of Education J. W. Edgar on
April 4, 1966, it was held that the assessment      by a school district of supply,
towel and locker fees~~artd the ,i?nforcem’eht thereof.bythe    ‘withhold$ng:of a’:studeht’s
report card constitute “compulsory      fee assessments     unauthorized by law. ”
Commissioner     Edgar stated in his decision that

                     [ i] n the absence of specific authority
                     expressly    granted, constitutional      or
                     otherwise,     empowering, a school district
                     to assess    or impose and collect the defined
                     ‘supply fee, ’ made intentionally       compulsory
                   ~.by the simple expedient of withholding report
                     cards and/or transcript        until paid, it would
                     be and is my, best judgment and opinion that
                     the imposition and collection        of same is
                     without legal support and contravenes          the
                     spirit and intendment of the school laws con-
                     sidered in para materia . . . . Article VII,
                     Section I, Constitution of Texas,         has vested
                     itithe Legislature      the responsibility    to make
                     suitable provision     ,for the support and main-
                     tenance of an efficient system of public free
                     schools.     As I see it, this Constitutional      man-
                     date militates    against the school district assess-
                     ing such unauthorized fee, thereby to protect a
                     child or his family,      indigent or otherwise,      from
                     the experience     of harassment      or humiliation that
                     can evolve from such impositions           and forced
                     collection thereof.




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  The Honorable     M.    L.   Brockette   - Page     3 (H-702)



  The courts have held that the construction   placed upon,a~statute by the agency
  charged with its administration,   while not binding, is entitled to substantial
  weight.  Calvert v. Kadane, 427 S. W. 2d 605, 608 (Te~x. Sup: 1968); Armco
  Steel Corp.’ v. Texas Employment      Comm’n. J 386 S. W~i 2d’894,  896Civ.
  App; --Austin’1965   writ ref’d, n. r. e. ).

        On the basis of the 1966 decision rendered by the Commissioner       of
  Education and the Supreme Court’s language in Mumme U. ,Marrs,          s,      and
  in the absehce of any specific legislative sanction, it :is our, opinion that a school
  distkict does not have the authority to impose any of the charges about which you
  inquire.

           For purposes of this opinion, it is not necessary           to determine what kind of
    fees,   if any, the Legislature     might authorize under article 7, section 1 of the
   .-Texas Constitution:      We n.ote;~h owever,    that there is a significant difference    of
.‘: opinion’aniotig the appellate courts of ‘othe’r’%tates as. to,what is requiied’by          a
     constitutional   provision   establishing a system of “free public“schools.         ” See
     Vandevender     v.’ CaBsell,’ 208 S. E. 2d 436 (W. Va. 1974); Board’of Education.
    Sinclair,    222 N. W. 2d 143 (Wis. 1974); Granger V. Cascade County School
    District    No. 1, 499~P. 2d 780 (Mont..,l972);      Hamer v. board of Education of
     School District No. ,-109;‘~ 265 N. E. 2’d-616 ‘(Ill,.‘.l971);‘Bond   v. Board of Public
     Schools of Ann Arbor School District, ‘178 N. W. 2d’484.(Mich.             1970); Paulson v.
    ySchdolDistrictNo.31,
     Minidoka Count                                    463 P. 2d~935 (Idaho 1970); Chandler v.
    South Bend Community School G p               312 N: E. 2d 915(Ind.App.        1974); Hamer v.
     Board of Educatibn of School Di%z;         No. 109, 292 N. E. 2d 569 (Ill. Appm

                                            SUMMARY

                                In the absence of specific legislative     sanction,
                          a ,.school district does not have the.‘authority to
                          impose tuition for driver education training; charges
                         .for school supplies and instruction’and        lab fees in
                          conjunction with normal academic,          vocational or
                          physical education classroom       instruction or training;
                          or fees for extra-curricular      activities I such as band
                          uniforms,     athletic locker’s and towels,    and club mem-
                          bership.

                                             /Yerv      truly vouis,~




                                               Attorney     General     of Texas




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*ROVED:




 Opinion Committee


 jad:




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