Honorable J. K. Williams            Opinion No. H-1029
Chancellor
Texas A 6 M University System       Re: Compulsory fees for
College Station, Texas 77043        off-campus students at
                                    state supported universities.
Dear Mr. Williams:
     You have requested our opinion regarding the application
of section 54.503(b) of the Education Code to university stu-
dents who receive instruction off-campus. That statute pro-
vides:
            (b) The governing board of an institu-
          tion of higher education may charge and
          collect from students registered at the
          institution fees to cover the cost of
          student services which the board deems
          necessary or desirable in carrying out
          the educational functions of the insti-
          tution. The fee or fees may be either
          voluntary or compulsory as determined by
          the governing board. The total of all
          compulsory student services fees collected
          from a student for any one semester or
          summer session shall not exceed $30. All
          compulsory student services fees chargx
          and collected under this section by the
           overning board of an institution of
           lgher education, other than a public
          junior college, shall be assessed In
          proportion to the number of semester
          credit hours for which a student regis-
          ters. No fee for parking Services  Or
          facilities may be levied on a student un-
          less the student desires to use the park-
          ing facilities provided.

(Emphasis added). Specifically, you ask whether the compul-
sory student services fee authorized by section 54.503(b) may


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             Honorable J. K. Williams - Page 2 (H-1028)


             be waived or modified for students "who do not have physical
             access to use facilities by reason of being off-campus for       :
             instruction."

                  In Attorney General Opinion H-284A (1974), we held that
             the student services fee must "be charged proportionately ac-
             cording to the number of semester credit hours for which a
             student registers." H-284A (1974) at 2. This result was
             enacted into law in an amended version of section 54.503(b).
             Acts 1973, 63rd Leg., ch. 641, at 1759. Subsequently, the
             Coordinating Board, Texas College and University System, prom-
             ulgated rules which impose limitations upon the power of a
             governing board to waive or modify fees. The Board defined
             two types of "off-campus" courses: "extension" and "resident"
             courses. As to off-campus resident courses, the Board has
             directed that

                       public senior institutions . . . require
                       the same tuition, building use fees and
                       student service fees as those charged for
                       the same credit courses on campus.
             Rule 251.02.12.001(d)(Z), Rules, Coordinating Board, Texas
             College & University System. In addition, the Board's rules
             require that "(clertain types of instruction not conducted at
             an official location may be treated as 'on-campus'." Rule
             251.02.12.001(b). Examples of such instruction include "Isltu-
             dent teaching, internships, clinical instruction, practicums,
             and field courses. . . ." Id. It is evident that the Board
             intended that students registered for such "on-campus" courses
             should be subject to the student services fee.
                  In our opinion, however, the Coordinating Board lacks
             the authority to promulgate these rules. The Board has been
             given no general control over public senior institutions in
             this area. See Education Code,,S 61.021. Section 61.051(j)
             of the Educamn   Code, enacted in 1975, does not furnish such
             authority because it addresses the question Of course Offer-
             ings rather than imposition Of fees.  It provides merely that
                       (n]o off-campus courses for credit may be
                       offered by any public college or university
                       without specific prior approval of the
                       board. The board shall establish regula-
                       tions for the coordination of credit and
                       non-credit activities of adult and con-
                       tinuing education by public colleges and
                       universities.


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                 Honorable J. K. Williams - Page 3 (H-1028)


                      Section 54.503(b), by contrast, clearly indicates that L
                 the "governing board of [each] institution" shall set the
                 student services fee. In Letter Advisory No. 6 (1973) at 2,
                 in discussing the scope of the governing board's authority
                 under section 54.503(b), we stated that
                           [tlhe governing board of an institution
                           of higher education, in adopting rules and
                           regulations for its operation, exercises
                           delegated legislative powers, and in the
                           absence of a clear showing that it has
                           acted arbitrarily or has abused the autho-
                           rity vested in it, the courts will not
                           interfere.
                 See Foley v. Benedict, 55 S.W.Zd 805, 810 (Tex. Comm'n App.
                 m2,   opinion adopted). In Attorney General'Opinion H-284A
                 (19741, we recognized that, within the guidelines of the stat-
                 ute, each governing board may prescribe its own fee.  Pro-
                 vided that the fee does not exceed $30 per student per semes-
                 ter, and so long as it "be charged proportionately according
                 to the number of semester credit hours for which a student
                 registers," we believe that the governing board may waive or,
                 modify the student services fee in appropriate circumstances,
                 including those in which a student does "not have physical
                 access to use facilities by reason of being off-campus for
                 instruction."
                                         SUMMARY

                           Within the guidelines of section 54.503(b)
                           of the Education Code, the governing board
                           of an institution of higher education may
                           waive or modify the student services fee
                           for students who do not have physical access
                           to use facilities by reason of being off-
                           campus for instruction. The Coordinating
                           Board is not empowered to promulgate rules
                           governing the imposition of such fees.




                                               JOHN L. HILL
                                               Attorney General of Texas



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APPROVED:




C. ROBERT HEATH, Chairman
Opinion Committee
klw




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