                            ATTORNEY GENERAL OF TEXAS
                                        GREG       ABBOTT




                                           December 22, 2011



Raymund A. Paredes, Ph.D.                               Opinion No. GA-0902
Commissioner of Higher Education
Texas Higher Education Coordinating Board               Re:     Authority of the Higher Education
Post Office Box 12788                                   Coordinating Board to adopt a complaint
Austin, Texas 78711                                     procedure that complies with the program
                                                        integrity regulations established by the Federal
                                                        Department of Education (RQ-0982-GA)

Dear Commissioner Paredes:

        You ask three questions about the Texas Higher Education Coordinating Board's ("Board")
procedures for handling complaints about postsecondary educational institutions ("Institutions"). 1
Your first question is whether section 61.031 of the Education Code grants the Board authority to
establish those procedures. Request Letter at 1. Under the Board's proposed procedures, some
complaints filed with the Board would be referred to and resolved by the consumer protection
division of this office or the governing board of a statewide university system. Request Letter at 3--4.
Other complaints filed with the Board would be referred to and possibly resolved by the Institution
in question or its accrediting body while the Board retained ultimate responsibility for handling and
resolving the complaints. Id. Thus, the procedures you describe would require the tasks ofhandling,
investigating, and resolving complaints. See id.

         Section 61.031 requires the Board to maintain a file on each complaint. TEX. EDUC. CODE
ANN. § 61.031(a) (West 2006). That section also requires the Board to provide the complainant and
the entity against whom the complaint is filed a copy ofthe Board's "policies and procedures relating
to complaint investigation and resolution." Id. § 61.031(b). Section 61.031 notes that the Board
might "close[] the file" and "investigate the complaint" as well as "tak[ e] action other than to
investigate the complaint." Id. § 61.031 (a)( 6). Thus, section 61.031 acknowledges that the Board
has authority to handle, investigate, and resolve complaints about matters under its jurisdiction.
See id. The statute prescribes very general guidance on how the Board must exercise that authority.
Id. Cf Tex. H.J. Res. 130, 82d Leg., R.S. (2011) (providing that "consumer complaints about the
[private institutions named in H.J. Res. 130] can be made to the Office of the Attorney General,



        ILetter from Raymund A. Paredes, Commissioner of Higher Education, to Honorable Greg Abbott, Attorney
General of Texas at 1 (June 24,2011), https://www.oag.state.tx.us/opin/indexJq.shtml ("Request Letter").
Raymund A. Paredes, Ph.D. - Page 2                 (GA-0902)



consumer protection division, and complaints concerning financial impropriety and ethical
misconduct can be made to the Office of the Attorney General, charitable trust division").
Accordingly, the Board has authority to promulgate the kinds of procedures you describe in your
letter. 2 See Pub. Uti!. Comm'n v. GTE-Sw., Inc., 901 S.W.2d401, 407 (Tex. 1995) (explaining that
state agencies have only those powers granted expressly by law and necessarily implied therefrom);
TEX. EDUC. CODE ANN. § 61.021(a) (West 2006) (stating that the Board is a state agency).

         Your second question is whether section 61.031 authorizes the Board to "'appropriately
act on' complaints, as required by the [U.S. Department of Education] ." Request Letter at 4 (quoting
title 34, section 600.9(a)(1), Code of Federal Regulations). Although the U.S. Department of
Education (the "DOE") requires that the Board "appropriately act on" complaints, its regulations
fail to specify what particular action the Board is required to take. See generally 20 U.S.c.A.
§§ 1001, 1002 (2010); 34 C.F.R. pt. 600 (2011); Letter from Eduardo M. Ochoa, The Assistant
Sec'y., US. Dep't of Education (Mar. 17, 2011), available at http://ifap.ed.gov/dpcletters/
attachments/GEN1105.pdf. Nevertheless, the Texas Legislature granted the Board authority to
investigate, "tak[ e] action other than to investigate," resolve, and close the file on a complaint. TEX.
EDUC. CODE ANN. § 61.031(a) (West 2006). Based on this broad grant of authority to the Board, we
conclude that the Board has authority to "appropriately act on" complaints, as DOE regulations
require. See Pub. Uti!. Comm'n, 901 S.W.2d at 407 (explaining that state agencies have only
those powers granted expressly by law and necessarily implied therefrom); TEX. EDUC. CODE ANN.
§ 61.021(a) (West 2006) (stating that the Board is a state agency). See also TEX. GOV'T CODE ANN.
§ 311.021 (4) (West 2005) (providing that a result feasible of execution is intended in enacting a
statute).

        Your third question is about a recent Texas Supreme Court case, HEB Ministries, Inc. v.
Texas Higher Education Coordinating Board, and the DOE's interpretation of a federal regulation.
Request Letter at 1. HEB Ministries held that sections 61.304 and 61.313(a) of the Education Code
violated the Establishment Clause of the First Amendment to the U.S. Constitution as applied to a
religious Institution's programs of religious instruction. HEB Ministries, Inc. v. Tex. Higher Educ.
Coordinating Bd., 235 S.W.3d 627,649 (Tex. 2007). Section 61.304 prohibits an Institution from
granting a degree unless the Institution and the degree satisfy the Board's requirements. TEX. EDUC.
CODE ANN. § 61.304(a) (West 2006). Section 61.313(a) prohibits an Institution from using a name
like "college" or "seminary" unless it satisfies the Board's requirements. Id. § 61.313( a). The DOE
interprets a federal regulation to require that religious Institutions be subject to states' complaint
procedures. Program Integrity Issues, 75 Fed. Reg. 66,868 (Oct. 29, 2010) (interpreting title 34,
section 600.9(a), Code of Federal Regulations)). You suggest thatHEB Ministries conflicts with the
federal regulation and ask how to resolve the purported conflict. Request Letter at 4-5.




        2you do not ask about, and we do not opine on, the reasonableness of the Board's proposed complaint
procedures. See generally Request Letter. See also Tex. Att'y Gen. Op. No. DM-401 (1996) at 3 (explaining that
reasonableness is a fact issue that the opinion process cannot address).
Raymund A. Paredes, Ph.D. - Page 3                      (GA-0902)



         We begin our answer by noting that the Texas Supreme Court's REB Ministries decision did
not hold that religious Institutions are exempt from the Board's complaint procedures under section
61.031. See generally REB Ministries, Inc., 235 S.W.3d at 649,657. Indeed, the Texas Supreme
Court's holding specifically addressed sections 61.304 and 61.313(a) of the Education Code and
religious Institutions' religious, rather than secular, programs of study. Id. at 657. As the Texas
Supreme Court explained, the Board's authority to regulate "religious institutions offering a secular
education" was not even an issue in the REB Ministries case. Id. at 641 (emphasis added). Indeed,
the religious Institutions who were plaintiffs in the case did not challenge the Board's authority to
regulate secular higher education programs. Id. at 641,656. Accordingly, REB Ministries does not
prohibit the Board from handling a complaint involving a religious Institution's secular program of
study. Furthermore, you have not identified, and we have not found, any DOE guidance or federal
regulation stating that states must handle complaints about religious Institutions' religious programs
of study.3 Therefore, the Board may comply with the Texas Supreme Court's holding in REB
Ministries and the DOE's guidance on federal regulations if the Board does not subject religious
Institutions to complaints relating to their religious programs of study.




          3According to the DOE, a "State would be expected to handle complaints regarding not only laws related to
licensure and approval to operate but also any other State laws including, for example, laws related to fraud or false
advertising." Program Integrity Issues, 75 Fed. Reg. 66,865 (Oct. 29, 2010). In your letter, you suggest that the DOE
interprets DOE rules to mean that a state complaint procedure must also address complaints relating to "quality of
education or other state or accreditation requirements." Request Letter at 2. However, the DOE has stated merely that,
"to the extent a complaint relates to an institution's quality of education or other issue appropriate to consideration by
an institution's accrediting agency, a State may refer a complaint to the institution's accrediting agency for resolution."
Program Integrity Issues, 75 Fed. Reg. 66,866 (Oct. 29, 2010) (emphasis added).
Raymund A. Paredes, Ph.D. - Page 4          (GA-0902)



                                      SUMMARY

                       The Texas Higher Education Coordinating Board has
               authority to promulgate procedures for handling complaints about
               postsecondary educational institutions. The Texas Supreme Court
               has held that the Board is prohibited from regulating, in certain
               respects, religious postsecondary education institutions' religious
               programs of study, but it has not held that the Board is prohibited
               from regulating religious postsecondary education institutions'
               secular programs of study. Accordingly, the Board may handle
               complaints about religious postsecondary institutions' secular
               programs of study.

                                            Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee
