## KEN PAXTON ATTORNEY GENERAL OF TEXAS 

### May 11, 2015

Raymund A. 

### Paredes, Ph.D. Commissioner ofHigher Education Texas HigherEducation Coordinating Board Post Office Box 12788 Austin, Texas 78711

Dear Commissioner Paredes: OpinionNo. KP-0018 Re: Institutions eligible to participate in the Texas B-On-Time Loan Program under Chapter 56, Subchapter Q of the Education Code (RQ-1230-GA)

You ask for an opinionregarding which institutions are eligible to participate in the Texas B-On-Time Loan Program. 1 

### Through chapter 56, subchapter Q of the Education Code, the Legislature created the Texas B-On-Time Loan Program, the purpose ofwhich is "to provide nointerest loans to eligible students to enable those students to earn baccalaureate degrees at public and private or independent institutions ofhigher education in this state." TEX. Eouc. CODE ANN. § 56.452(b) (West Supp. 2014); 

### see id.§§ 56.451-.465 (West2012 & 

### Supp. 2014). To be eligible for a Texas B-On-Time Loan, a person must "be enrolled

... in a baccalaureate degree program at an 

### eligible institution." Id. § 56.455(3) (West Supp. 2014) (emphasis added). "Eligible institution" is defined for purposes ofsubchapter Q to include, among others not relevant here, "a private or independent institution ofhigher education that offers baccalaureate degree programs." 

### Id. § 56.451(2)(C). "Private or independent institutionofhigher education" is further definedto include "only aprivate orindependentcollege oruniversity thatis

... accredited by: (i) the Commission on Colleges ofthe Southern Association ofColleges and Schools; (ii) the Liaison Committee on Medical Education; or (iii) the American Bar Association." 

### Id. §§ 56.451(3) (adopting the definition in subsection 61.003(15)(C) of the Education Code); 61.003(15)(C). Thus, a "private or independent institution ofhigher education" is not an eligible institution for purposes ofthe Texas B-On-Time Loan Program unless it is accredited by one of the three accrediting agencies listed in subsection 61.003(15)(C) ofthe Education Code. You explain that although Paul Quinn College is not accredited by one of the three accrediting agencies listed in subsection 6l.003(15)(C), 

### it has argued that section 61.222 ofthe Education Code "authorizes the Texas Higher Education Coordinating Boardto allow the college to participate in the Texas B-On-Time Loan Program." Request Letter at 2. Section 61.222 is

1Letter from Raymund A

. Paredes, Comm'r of Higher Educ., Tex. Higher Educ. Coordinating Bd., to Honorable GregAbbott, Tex. Att'yGen

. at I (Nov. 3, 2014), https://www.texasattomeygeneral.gov /opinion/requestsfor-opinion-rqs ("Request Letter")

.Raymund A. Paredes, Ph.D.

- Page 2 (KP-0018)

located in Chapter 61, subchapter F ofthe Education Code, which authorizes and governs the TuitionEqualization Grants Program. See TEX. EDUC. CODEANN. §§ 61.221-.230 (West 2012 & Supp. 2014). Similar to the Texas B-On-Time Loan Program, students may receive a tuition equalizationgrant only ifthey are enrolled in a statutorily-authorizedinstitution. See id. § 61.221 (West 2012) (explaining that a student mustbe "enrolledin any approvedprivate Texas college or university"). Prior to the Eighty-third Legislative Session, only those institutions that were "private or independent institutions ofhigher education as defined by Section 61.003" could be approved institutions forpurposes ofthe TuitionEqualizationGrantsProgram. See id. § 61.222(a) (West Supp. 2014). In2013, however, the Legislature added subsections 61.222(b) and (c), which state: (b) The coordinating board may temporarily approve a private or independent institution ofhigher education as defined by Section 61.003 that previously qualified under Subsection (a) butno longer holds the same accreditation as public institutions of higher education. To qualify underthis subsection, an institution mustbe: (1) accredited by an accreditor recognized by the board; (2) actively working toward the same accreditation as public institutions ofhigher education; (3) participating in the federal financial aid program under 20 U.S.C. Section 1070a; and (4) a "partB institution"as definedby20U.S.C. Section 1061(2) and listed in 34 C.F.R. Section 608.2. (c) The coordinating board may grant temporary approval for a period oftwo years and mayrenewthe approval once. Id.§ 61.222(b)-(c); see also Act ofMay 20, 2013, 83d Leg., R.S., ch. 1341, § 1, 2013 Tex. Gen. Laws 3555, 3555. You explain that Paul Quinn College is eligible to participate in the Tuition Equalization Grants Programbecause ofthe amendments to section 61.222. Request Letter at 2. However, the amendmentsto section61.222relate onlyto "thetemporary approval ofaninstitutionto participate in the tuition equalization grant program." Act ofMay 20, 2013, 83d Leg., R.S., ch. 1341, 2013 Tex. Gen. Laws 3555, 3555 (preamble); see also TEX. Gov'T CODE ANN. § 311.023(7) (West 2013) (providing that courts may consider the preamble when construing a statute). Had the Legislature intendedto similarlybroadenthe definitionof"eligibleinstitution" for purposes ofthe Texas B-On-Time Loan Program, it could have amended chapter 56, subchapter 

### Q of the Education Code or the definition of "private or independent institution ofhigher education" in section 61.003 ofthe Education Code to do so. When the Legislature employs a phrase in one section ofa statute and excludes it in another, the "term should not be implied where excluded." Laidlaw Waste Sys., Inc. v. Cityof Wilmer, 904 S.W.2d656, 659 (Tex. 1995). Thus, section61.222Raymund A. Paredes, Ph.D.

- Page 3 (KP-0018)

does not operate to expand the institutions eligible to participate in the Texas B-On-Time Loan Program.

### Raymund A. Paredes, Ph.D.

- Page 4 (KP-0018)



### SUMMARY Sections 56.451 and 61.003 ofthe Education Code require that a private or independent institution of higher education be accredited by the Commission on Colleges of the Southern Association of Colleges and Schools, the Liaison Committee on Medical Education, or the American Bar Association in order to be considered an eligible institution for purposes ofthe Texas B-OnTime Loan Program.

CHARLES E. ROY First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee Very truly yours,

# ~'?~ KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee