JIM MAlTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12548 

Austin. TX. 78711.254S 

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An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

Angust 7. 1986 

Mr. William N. Kirlsy 

Commissioner of Eduxition 

Texas Education Agexy 

1701 N. Congress Avenue 

Austin, Texas 787DL 

Dear Mr. Kirby: 

Opinion No. JM-529 

Be: Applicability of the Texas 

Proprietary School Act to certain 

enterprises 

You have asked, several questions about the interpretation of 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 improper delegation. We do not address those questions. 

Under the Prolbrietary School Act your agency is responsible for 

issuing certificatxs of approval to proprietary schools. Several of 

your questions have to do with the definition of “proprietary school.” 

In particular you are concerned about the status of~organizations that 

teach courses for avocational purposes. 

The act defines “proprietary school” as follows: 

‘Proprietary School,’ referred to as ‘school,’ 

means ar.y business enterprise operated for a 

profit, c’r 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 provisions of this Chapter and; 

(A) which offers or maintains a course or 

courses of: instruction or study; or 

(B) ill: which place of business such a course 

or course:3 of 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. 2434 
Mr. 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 

specifically exempts from the definition of "proprietary school" 

a school or training program which offers 

instruction of pllrely avocational or recreational 

subjects as detemined by the administrator. . . . 

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 the most reasonable construction that can be 

placed on them consistent with 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 connnittee report to the Sixty-second Legislature and a law ? 

review artic~le both 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 Senate Committee on VocationalTechnical 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" avocational or recreational. Subjects are 

not inherently avocational or 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 subjects that are avocational or 

recreational for most people and that do not claim to be offering 

vocational training. Therefore, we conclude that the most reasonable 

reading of section 32.11(l) together with 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 "avocational or personal improvement." On the other hand, if a 

school teaches subject laltter that is primarily considered to be 

recreational or avocational and if it does not hold itself out to be 

offering vocational training, then it is exempted from the provisions 

of the Proprietary SchcNol Act under section 32.12(a)(3). The 

legislature left it to the discretion of the commissioner of education 

to determine which subjects are primarily avocational or recreational. 

Educ. Code 132.12(a)(3). 

p. 2435 
Mr. William N. Kirby - Page 3 (JM-529) 

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 'purely avocational' differ from 

the term 'recreational? 

We do not think that the act requires you to distinguish between 

courses that are avocaticnal and courses that are recreational. 

Rather, as we explained above, we think that the entire phrase "purely 

avocational or recreational." should be read to exempt from the 

provisions of the Proprietary School Act organizations that do not 

claim to be offering vocatj.onal training and that teach subjects that 

are generally considered to ‘be for non-vocational purposes. 

Your second question is: 

How would courses which you deem to be purely 

avocational difflat from a standard business or 

professional course? 

The legislature left it to the discretion of the commissioner of 

education to determine wha.t types of courses would be exempt under 

section 32.12(a)(3). Since many subjects can be taught for either 

vocational or avocational puxposes, we think that the act permits the 

commissioner to examine thsz claims or advertising of an organization 

to determine whether a particular subject is offered for vocational or 

avocational purposes. 

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 the use of produc:t:s. We do think, however, that it would be 

within the discretion of the commissioner to conclude that certain 

types of assistance in he:.ping customers learn how to use a product 

are not "courses of instruction or study" for purposes of the 

Proprietary School Act and therefore not within the act. 

p. 2436 
’ 

Mr. William N. Kirby - Page 4 (x4-529) 

Also, even if a computer company does offer “courses of 

instruction or study,” it 4s the nature of the courses offered 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.oner to determine which courses fall into 

which category. 

Your fourth question 1.6: 

Pursuant to sect:;on 32.12 (courses sponsored by an 

employer) at whic!n point must the employer absorb 

any tuition cost:; for this exception to apply? If 

the employer reinburses the student for all tuition 

charges upon suc.cessful completion 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 School Act 

a course or courses of instruction or study 

sponsored by an employer for the training and 

preparation of 11:s own employees, and for which 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 Collegiate Dictionary (1984). Conceivably, then, 

an employer could “sponsor” a course by organizing it even if it were 

paid for by a third party. Whether a particular course is “sponsored 

by” an employer is a question of fact that depends on the 

circumstances of a particu:iar case. 

You also ask whether ,ehe exemption for courses sponsored by an 

employer is applicable if t’he students initially pay 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 fee be charged to 

students necessarily forecloses such an arrangement. Your question 

indicates, however, that :you contemplate a situation in which a 

student would not be reimbursed if he did not successfully complete 

the course. We do not think that the section 32.12(a)(4) exemption 

would apply under those cpccumstances. 

, 

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

Your fifth question is,: 

Must each center (or store) where training is 

offered be consida!red a separate school? 

A "proprietary school" is a "business enterprise . . . which 

maintains a place of business . . . or solicits business [in Texas]." 

Educ. Code 132.11(l). The word "enterprise" suggests an activity, 

project, or undertaking. --- %I! William Buchanan Foundation v. Shepperd. 

283 S.W.2d 325 (Tex. Civ. QI. - Texarkana 1955, no writ). 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 enterprise must be engagrd in to come within the Proprietary 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 constitutes a "business enterprise" will depend on the facts of a 

particular case. See ht.torney General Opinion H-313 (1974) 

(discussion of 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::entatives as defined in section 

32.11(4), thus rcqliring them to obtain representative permits? 

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 employed by the school as defined herein, 

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 

solicitation within or without this State at any 

place. 

That definition contemplates active recruiting of students. Therefore, 

the fact that someone acce])ts an application or enrollment form for a 

course is not by itself encugh to make that person a "representative." 

p. 2438 
Mr. 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 Itypes of assistance offered to 

help customers learn to use a product are "courses 

of instruction or study" for purposes of the 

Proprietary School Act. 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

WARY KELLER 

Executive Assistant Attormy General 

RICK GILPIN 

Chairman, Opinion Comeittec~ 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 2439