JIM MAlTOX Attorney General
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An EqualOpportunity/ Affirmative Action Employer 

# The Attorney General of Texas

Angust 7. 1986

Mr. William N. Kirlsy Commissioner of Eduxition Texas EducationAgexy 1701N. CongressAvenue Austin, Texas 787DL
Dear Mr. Kirby: Opinion No. JM-529
Be: Applicability of the Texas Proprietary SchoolAct to certain enterprises

You have asked,several questions about the interpretationof the Texas Proprietary School Act. Educ. Code §§32.01-32.81. We will answer only the specific questions asked. We note that some provisions of the z.ct may raise constitutional questions of vagueness or improperdelegation. We do not address those questions. Under the ProlbrietarySchool Act your agency is responsible for issuing certificatxs of approval to proprietary schools. Several of your questionshave to do with the definition of “proprietaryschool.” In particular you are concerned about the status of~organizationsthat teach courses for avocationalpurposes. The act defines “proprietary school”as follows: ‘Proprietary School,’ referred to as ‘school,’ means ar.ybusiness enterprise operated for a profit, c’r

on a nonprofitbasis, 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 provisions of this Chapter and; (A) which offers or maintains a course or courses of:instructionor study;or (B) ill:

which place of business such a course or course:3of instruction or study is available through classroom instruction or by correspondence, or both, to a person or persons for the purpose s,iI

training or preparing the person for a field of endeavor in a business, trade, technical, or industrial occupation, or for avocational or

p. 2434Mr. William N. Kirby - Page 2 (at-529)

personal improv~nent, except as hereinafter excluded. (Emphmis added). Educ. Code 532.11(l). Thm. the definition of "proprietary school" expressly includes an organization that teaches courses for the purpose of "avocational 01'personal improvement." However, the act specificallyexempts from the definitionof "proprietaryschool"

a school or training program which offers instruction of pllrelyavocational or recreational subjects as detemined by theadministrator.
. . . Educ. Code 932.12(a)(3).. Although there are slight differences in wording, the exemption in section 32.12(a)(3)appears to negate the specific inclusion ia the definition of "proprietary school" of courses taught for purposes of "avocational or personal improvement." Statutes apparently in conflict should be given themost reasonableconstruction that can be placed on them consistentwith the intent of the legislature. State v. Jackson, 370 S.W.2d 797, 800 (Tex.Civ.App. - Rouston 1963)aff'd, 376 S.W.2d 341 (Tex. 1964)
A connnitteereport to the Sixty-second Legislature and a law ? review artic~leboth show that the concerns that gave rise to the Proprietary School Act were focused on regulation of vocational education in Texas. The Rqort of the SenateCommittee onVocationalTechnical Education to the 62nd Leg., January 1971; Conment, The Proprietary Vocational School: Tex. L. Rev. 69 (1970). -Also,The Need for Regulation in Texas,- the act exempts schools that teach subjects that are "purely" avocationalor recreational. Subjects are not inherently avocationalor recreational. Rather, a subject such as cooking may be vocational or avocational depending on a particular person's relationship to the subject. We assume that the legislature intended to exempt schools that teach subjectsthatare avocationalor recreational for most people and that do not claim to be offering vocational training. Therefore,we conclude that themost reasonable reading of section 32.11(l) togetherwith section 32.12(a)(3) is that a school that teaches courses primarily for vocational training is a proprietary school, even if the purpose of some of its courses is merely "avocationalor personal improvement." On the other hand, if a school teaches subject laltterthat is primarily considered to be recreational or avocational and if it does not hold itself out to be offeringvocational training, then it is exempted from the provisions of the Proprietary SchcNolAct under section 32.12(a)(3). The legislatureleft it to the discretionof the commissionerof education to determinewhich subjectsare primarilyavocationalor recreational. Educ. Code 132.12(a)(3).

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The preceding discussion of the status of "avocational" courses guides us in our responses to two of your questions. The first of those questions is:

How does the term 'purelyavocational'differ from the term 'recreational?
We do not think that the act requiresyou todistinguishbetween courses that are avocaticnal and courses that are recreational. Rather, aswe explained above,we think that the entirephrase "purely avocational or recreational."should be read to exempt from the provisions of the Proprietary School Act organizations that do not claim to be offeringvocatj.onaltraining and that teach subjects that are generallyconsidered to ‘be for non-vocationalpurposes. Your second question is:
How would courses which you deem to be purely avocational difflatfrom a standard business or professionalcourse? The legislature left it to the discretion of the commissioner of education to determine wha.ttypes of courses would be exempt under section 32.12(a)(3). Since many subjects can be taught for either vocational or avocationalpuxposes, we think that the act permits the commissioner to examine thszclaims or advertisingof an organization to determinewhether a particular subject is offered forvocational or avocationalpurposes. Your third question is:
Does the Texas Proprietary School Act apply to private enterprises (regardless of whether they are profit or nonprofit) which offer courses of instruction in the use of products they market when the products in question have applications which are not exclusively recreational or purely avocational?
You explain that you are particularly concerned about courses taught by businesses that sell computers. You note in your letter that there is no exemption in the act for businesses that instruct buyers in theuse of produc:t:s. We do think, however, that itwould be within the discretion of the commissioner to conclude that certain types of assistance in he:.pingcustomers learn how to use a product are not "courses of instruction or study" for purposes of the Proprietary SchoolAct and thereforenot within theact.

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Also, even if a computer company does offer “courses of instruction or study,” it 4s thenature of the coursesoffered and not the nature of the product that determines whether courses are exempt under section 32.12(a)(3). Some courses offered by such businesses deal with uses for a computer that are primarily for personal use, rather than business use, Other courses are probably taught for primarily business or vocational purposes. It is within the discretion of the commissj.onerto determine which courses fall into which category.
Your fourth question 1.6:
Pursuant to sect:;on32.12 (courses sponsoredby an employer) at whic!npoint must the employer absorb any tuitioncost:;for this exception to apply? If the employerreinburses the student for all tuition charges upon suc.cessfulcompletion of the course (as an incentive!to the student to complete the same) does the exc,eption apply? Section 32.12(a)(4) exempts from the provisions of the Proprietary SchoolAct

a course or courses of instruction or study sponsored by an employer for the training and preparationof 11:s own employees, and forwhich no tuition fee is clzzged to the student.
. . . You ask whether the employer must absorb any tuition costs in order for this exemption to app1.y. The exemption requires that no fee be charged to the student and that the course be “sponsored by” the employer. A “sponsor”has been defined as “a person or an organization that pays for or pl~~~:r and carries out a project or activity.” Webster’s Ninth New CollegiateDictionary (1984). Conceivably, then, an employer could “sponsor”a course by organizing it even if itwere paid forby a thirdparty. Whether a particular course is “sponsored by” an employer is a question of fact that depends on the circumstancesof a particu:iar case. You also ask whether ,eheexemption for courses sponsored by an employer is applicable if t’hestudents initiallypay a tuition charge and are subsequently reinbursed by the employer. We do not think that the requirement of section 32.12(a)(4) that no feebe charged to students necessarily forecloses such an arrangement. Your question indicates, however, that :youcontemplate a situation in which a student would not be reimbursed if he did not successfullycomplete the course. We do not think that the section 32.12(a)(4) exemption would apply under thosecpccumstances.

,

p. 2437Mr. William N. Kirby - Page 5~ (JM-529)

Your fifth question is,:
Must each center (or store) where training is offeredbe consida!red a separate school?
A "proprietary school" is a "business enterprise
. . . which maintains a place of business
. . . or solicitsbusiness [inTexas]." Educ. Code 132.11(l). The word "enterprise" suggests an activity, project, or undertaking. %I!William Buchanan Foundationv. Shepperd. --- 283 S.W.2d 325 (Tex.Civ. QI. - Texarkana 1955,nowrit). Nothing in the term "business enterpr:Lse"limits the meaning to one place. We think that the phrase "main~tains a place of business
. . .or solicits business" in section 32.11(l)merely sets a minimum on what activity an enterprisemust be engagrd in to comewithin theProprietary School Act. It does not mean &at each separate place of business is a separate enterprise. A single proprietary school may maintain more than one place of business. Of course, each separate place of business maintained by a proprietary school must comply with the requirements of the Proprietary School Act. See Educ. Code 132.33. .What constitutesa "businessenterprise"will depend on the facts of a particular case. See ht.torney General Opinion H-313 (1974) (discussionof term "busines:; entity").
Your sixth question is:
Must sales clerka:in computer stores who take customer orders for one or more courses be considered repre::entativesas defined in section 32.11(4), thus rcqliring them to obtain representativepermits? All representatives employed by a proprietary school must register with the commissioner of education. Educ. Code 432.37. Section 32.11(4)defines "representative"as

a person employedby the school as definedherein, whether the school is located within or without the State of Texas, to act as an agent, solicitor, broker, or independent contractor to directly procure students or enrollees for the school by solicitationwithin or without this State at any place. That definition contemplatesactive recruitingof students.Therefore, the fact that someone acce])tsan application or enrollmentform for a course is not by itselfencugh tomake thatperson a "representative."

p. 2438Mr. William N. Kirby - Pago 6 (JM-529)

SUMMARY Schools that teach courses in subjects that are generally considered to be for recreational or avocational purpmes and that do not claim to be offering vocatimal training are exempt from the provisions of the Proprietary School Act. Educ. Code 5532.11-32.31. It is within the discretion of the commissioner of education to determine whether certain Itypesof assistance offered to help customers learn to use a product are "courses of instruction or study" for purposes of the Proprietary SchoolAct.

JIM MATTOX Attorney General of Texas JACKHIGHTOWER First AssistantAttorney General
WARY KELLER ExecutiveAssistantAttormy General RICK GILPIN Chairman,Opinion Comeittec~ Preparedby SarahWoelk AssistantAttorneyGeneral

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