                       January 3, 1989




Honorable Carl A. Parker         Opinion No.   JM-1002
Chairman
Senate Education Committee       Re: Authority of the Texas
Texas State Senate               Higher Education Coordinat-
P. 0. BOX 12068                  ing Board over proprietary
Austin, Texas 78711              schools which confer only
                                 non-academic  degrees,   and
                                 related questions (RQ-1536)

Dear Senator Parker:

     You ask:

           1. Does the TEA have exclusive    jurisdic-
        tion over proprietary schools which confer
        only non-academic degrees,   such as AAA, AAS
        and Associate of Occupational Studies ('AOS')
        degrees?

           2. Does the authority of the Coordinating
        Board extend beyond the scope of its author-
        ity under Chapter 61 of the Texas Education
        Code to proprietary schools which confer only
        non-academic degrees,  such as AAA, AAS and
        AOS degrees?  If so, what   is the statutory
        basis for extending the jurisdiction of the
        Coordinating  Board beyond   institutions  of
        higher education?

           3. If the TEA does have exclusive   juris-
        diction over proprietary schools, can the TEA
        abdicate its duty to supervise and regulate
        proprietary schools, which has been specifi-
        cally entrusted to it by the legislature,  by
        delegating such responsibility to the Coordi-
        nating Board, an entity that has no express
        statutory authority   for that responsibility
        and that is statutorily limited in its au-
        thority solely to those matters which the
        legislature has expressly entrusted to it?




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Honorable Carl A. Parker - Page 2      (JM-1002)




     Your request indicates that by "TEA" you mean the Texas
Education Agency,. or Central Education   Agency, as it is
referred to by statute, and by Coordinating Board you mean
the Texas Higher Education Coordinating Board. The AAA and
AAS degrees referred  to are the Associate of Applied Arts
and Associate of Applied Science degrees offered by certain
private educational institutions in this state.

     We understand   that your request was prompted   by a
proposed agreement between TEA and the Coordinating   Board
that such degree programs would be subject to the require-
ments of chapter   61, subchapter G, of the Education Code,
section 61.304 of which provides that:

          [a] person may not grant or award a degree on
          behalf of a private institution    of higher
          education unless the institution    has been
          issued a certificate of authority to grant
          the degree by the [Coordinating Board]     in
          accordance  with the    provisions  of   this
          subchapter.

     Subchapter G of chapter 61 of the Education Code was
enacted in 1975. Acts 1975, 64th Leg., ch. 587, at 1867.
It appears that from the time of that enactment in 1975
until 1981, the Coordinating Board issued certificates     of
authority  pursuant   to subchapter  G for such associate
degrees.  In 1981, the Coordinating Board amended its admin-
istrative rules to provide that such **non-academic'N associ-
ate degree programs would no longer be under the jurisdic-
tion of the Coordinating Board, leaving proprietary   schools
offering such degrees under the. jurisdiction of the TEA
under the Proprietary   School Act, Education Code, chapter
32.l




     1.    Section 61.311, provides:

             (a) The board shall promulgate  standards,
          rules, and regulations governing the issuance
          of certificates of authority.

             (b) The board may delegate to the commis-
          sioner such authority    and   responsibility
          conferred on the board by this subchapter   as
          the board deems appropriate for the effective
          administration of this subchapter.




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Honorable Carl A. Parker - Page 3 (JM-1002)




       The number of schools offering such associate degrees
has apparently grown from three in 1981 to more than 25 in
1988. It is now proposed   that the Coordinating Board take
back jurisdiction over AAA and AAS programs.

     Chapter 32 of the Education Code, the Texas Proprietary
School Act, provides that the TEA "shall exercise   jurisdic-
tion and control"    of proprietary    schools.   Educ. Code
5 32.21. "Proprietary school '1 is defined in section  32.11,
subdivision (1) as:

           'Proprietary School,'    referred to    as
        'school,' means    any business    enterprise
        operated for a profit, or on a nonprofit
        basis, which maintains a place of business
        within  the State of Texas, or       solicits
        business within the State of Texas, and which
        is not specifically exempted by the provi-
        sions of this Chapter and;

           (A) which offers or maintains a course   or
        courses of instruction or study: or

           (B) at which place of business     such a
        course or courses of instruction or study is
        available through classroom instruction or by
        correspondence,  or both, to a person      or
        persons for the purpose  of training or pre-
        paring the person for a field of endeavor  in
        a business, trade, technical, or industrial
        occupation, or for avocational    or personal
        improvement, except as hereinafter excluded.

     Subchapter G of chapter   61, section 61.304 of which
provides that degrees may not be awarded by a "private
institution of higher education" unless the institution  has
obtained a certificate  of authority  from the coordinating
board, defines "private institution of higher education"  as
follows, at section 61.302 subdivision (2):

           'Private institution of higher  education'
        or 'institution' means an educational  insti-
        tution which:

           (A) is not an     institution  of   higher
        education as defined by Section 61.003(7)  of
        this code:

           (B) is incorporated under the laws of this
        state, maintains a place of business in this




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Honorable Carl A. Parker - Page 4      (JM-1002).




        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 oerson. bv      electronic
        media, or bv corresnondence      leadina to a
        decree or nrovidina    credits alleaed to be
        anolicable to a dearee.    (Emphasis added.)

"Degree" is defined in   subdivision    (l), section 61.302,   as
follows:
           (1) 'Degree' means any title or designa-
       tion, mark, abbreviation,      appellation,  or
       series of letters or words, including asso-
       ciate, bachelor's,   master's,   doctor's,  and
       their equivalents, which signifies,    purports
       .to, or is generally  taken to signify satis-
       factory completion of the requirements of all
       or part of a program of study leading to an
       associate, bachelor's, masterIs, or doctor's
       degree or its equivalent.    (Emphasis added.)

     Your questions distinguish between t'academic'*and Won-
academic" degrees, suggesting that subchapter G, chapter    61
provisions are directed at only academic degrees.    The dis-
tinction between academic   and non-academic   degrees is not
made in the Education Code or elsewhere in applicable    Texas
statutes.   In 1981, the Coordinating Board amended its ad-
ministrative rules to make such a distinction at the time it
relinquished its authority over applied, or non-academic,
associate degrees. The definition of "degree," now in 19
T.A.C., section 5.211, was at that time narrowed to encom-
pass only degrees issued to signify completion of an "aca-
demic degree-level program."   6 Tex. Req. 1600 (1981). What
is now subsection    (c) of 19 T.A.C., section     5.213, was
amended at that time to provide that the board would not
accept applications for certificates of authority pertaining
to a program "not generally in use and accepted as an aca-
demic degree program."   u.   'These amendments were effective
August 7, 1981. 6 Tex. Req. 2644 (1981).

     Presumably the rules limiting Coordinating Board au-
thority under chapter   61 to "academic degrees" will be
amended if and when the Coordinating    Board reasserts   its
jurisdiction over non-academic associate degrees such as the
AAA and AAS degrees. We find nothing in chapters 32 or 61
of the Education Code or other provisions of Texas law which
would prevent the board from subjecting proprietary    school




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Honorable Carl A. Parker - Page 5   (JM-1002)




non-academic  associate  degrees to the requirements        of
chapter 61, once the appropriate rule changes are made.

     We note that you do not ask about and we do not address
the validity of the 1981 rule changes made by the board2  or
the validity of any particular rule the Coordinating   Board
might adopt to reassert  its jurisdiction over the proprie-
tary school associate degree programs in question.

     Just as Texas statutes make no distinction       between
academic and non-academic  degrees, no distinction is made
between associates degrees which are llapplied,ltsuch as the
AAA and AAS degrees, or not "applied." The definition      of
degree in chapter 61 encompasses any "degree" having in its
designation the word "associate."

     The legislature evidenced its concern that the use of
such a designation   be regulated by the Coordinating   Board
"to prevent  deception   of the public   resulting  from the
conferring and use of fraudulent or substandard college   and
university degrees."   Educ. Code 5 61.301. We do not think
that the fact that a school is a proprietary school, which
may not be a college or university    in the ordinary  sense,
supports the conclusion that it is not the sort of institu-
tion at which chapter 61 is directed, if the school      fits
within the definition   of a "private  institution of higher
education," chapter 61, on its face, makes     it subject to
board control vis a vis its awarding of degrees.

     Your request and a brief submitted in connection    with
your request by a law firm representing the Texas Associa-
tion of Private Schools argue that section    61.070 of the
Education Code indicates that the Coordinating     Board was
granted no statutory  jurisdiction over proprietary   schools
awarding applied associate   degrees. Section    61.070 pro-
vides:

           None of the duties or functions assigned
        by statute to the central education agency,




      2. But see     subsection    (b)   of   section    61.311
authorizing    the   board    to    delegate   subchapter     G
responsibilities to the Commissioner of Education, who is
executive officer of the TEA pursuant to sections 11.51 et
sec(. of the Education Code.    The text of section 61.311 is
reprinted in footnote 1 of this opinion.




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                                                                   I




Honorable Carl A. Parker - Page'6    (JM-1002)




        except those relating     to public     junior
        colleges, are affected by this chapter.

     However, we find no statute, either in the Proprietary
School Act or elsewhere, which assigns the duty or function
to the TEA of authorizing proprietary     schools to grant
particular  degrees.   The administrative   rules discussed
above might have been adopted with the intention of relin-
quishing such duties or functions to the TEA, but those
rules are not *!statutes" within the meaning     of section
61.070.

     Briefs submitted in connection    with your request   also
argue that Attorney General Opinion M-143 (1967) distinguis-
hed academic   and non-academic   degrees or certificates     in
concluding that a state law requiring students to complete
American history and government courses in order to obtain a
"baccalaureate" or "lesser degree or academic      certificate"
did not apply to Wocational or technical course certifi-
cates given for courses approved by or subject to approval
of the State Board of Vocational        Education."    Attorney
General Opinion M-143   (1967), at 7. However, we do not find
in that opinion any authority for making such distinctions
among *8deqrees1'under chapter 61. The definition of "de-
gree" in section 61.302 makes no such distinction.     Notably,
the provisions of chapter 61 were not enacted until eight
years after the issuance of Attorney General Opinion M-143.

     Accordingly, we conclude   in response to your    first
question that the TEA does. not have exclusive  jurisdiction
over proprietary  schools which confer only non-academic
degrees such as AAA, AAS,. and Associate    of Occupational
Studies Degrees. Where a proprietary school, as defined    in
section 32.11 of the Education  Code, also fits the defini-
tion of a "private institution of higher education"    under
section 61.302, we think that it is subject to the reguire-
ment of chapter 61, that it may not award degrees until    it
has been issued a certificate of authority by the Coordinat-
ing Board to grant such degrees, including applied associate
degrees.

     your second question    asks whether the Coordinating
Board's authority extends beyond the scope of its authority
under chapter  61 to proprietary schools which offer such
degrees. We find that the Coordinating       Board has such
authority under ChaDter  61 itself pursuant to the provisions
of that chapter cited and discussed above.       Though  such
schools may fit the definition     of "proprietary   schoolsl'
under chapter   32, to  the extent that they also fit the
definition of "private institutions of higher      education"




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Honorable Carl A. Parker - Page 7    (JM-1002)




under chapter 61, they are subject to the requirement   of
that chapter providing   that they may not award degrees
unless they have been issued a certificate of authority by
the Coordinating Board. Educ. Code § 61.304.

     Your third question assumes that the TEA has exclusive
authority over proprietary schools. As we have concluded in
our responses to your first two questions that the TEA does
not have exclusive authority over those proprietary   schools
that are also "private institutions of higher      education"
within the meaning  of chapter 61, section 61.302, we need
not answer your third question.

                       SUMMARY

           Proprietary schools which offer applied
        associate degrees and which otherwise meet
        the definition  of "private institutions   of
        higher education" under Education Code sec-
        tion 62.302 are subject to the requirement of
        section 61.304 that they may not award such
        degrees without having obtained a certificate
        of authority from the Texas Higher Education
        Coordinating Board.

                                    , ve-l/zyh


                                      JIM     MATTOX
                                      Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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