Honorable J. K. Williams

Chancellor OpinionNo. H-1029
Texas A 6 M University System College Station, Texas 77043 Re: Compulsory fees for off-campus students at state supporteduniversities.
Dear Mr. Williams:
You have requested our opinion regardingthe application of section 54.503(b) of the Education Code to university students who receive instructionoff-campus. That statuteprovides: (b)The governingboard of an institution of higher educationmay charge and collect from students registeredat the institution fees to cover the cost of student serviceswhich the board deems necessary or desirable in carryingout the educational functions of the institution. The fee or fees may be either voluntary or compulsory as determinedby the governing board. The total of all compulsory student services fees collected from a student for any one semesteror summer session shall not exceed $30. All compulsory student services fees chargx and collected under this sectionby the overningboard of an institutionof lgher education, other than a public junior college, shall be assessed In proportion to the number of semester credit hours for which a studentregisters. No fee for parking Services Or facilities may be levied on a studentunless the studentdesires to use the parking facilitiesprovided. (Emphasisadded). Specifically,you ask whether the compulsory student services fee authorized by section 54.503(b) may

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be waived or modified for students "who do not have physical access to use facilitiesby reason of being off-campus for : instruction."
In Attorney General Opinion H-284A (1974),we held that the student services feemust "be charged proportionatelyaccording 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,promulgated rules which impose limitationsupon 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 instructionnot conducted at an official locationmay be treated as 'on-campus'." Rule 251.02.12.001(b). Examples of such instruction include "Isltudent 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 EducationCode,,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 Offerings rather than imposition Of fees. It providesmerely that

(n]ooff-campus courses for creditmay be offered by any public college or university without specificprior approval of the board. The board shall establish regulations for the coordinationof credit and non-credit activities of adult and continuing educationby public colleges and universities.

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Section 54.503(b),by contrast, clearly indicatesthat L the "governingboard 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

[tlhegoverningboard of an institution of higher education, in adopting rules and regulations for its operation, exercises delegated legislativepowers, and in the absence of a clear showing that it has acted arbitrarilyor has abused **the** authority 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'OpinionH-284A (19741,we recognizedthat, within the guidelines of the statute, each governingboardmay prescribe its own **fee.** Provided that the fee does not exceed $30 per studentper **semes** ter, and so long as it "be charged proportionatelyaccording to the number of semestercredit 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 "nothave physical access to use facilitiesby reason of being off-campus for instruction."
**SUMMARY**

Within the guidelines of section 54.503(b) of the Education Code, the governingboard of an institutionof higher educationmay waive or modify the student services **fee** for studentswho do not have physical access to use facilitiesby reason of being offcampus 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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