# The Attorney General of Texas

December 31, 1982 MARK WHITE Attorney General

Supreme Court Building P. 0. Box 12546 Austin. TX. 76711. 2546 5121475-2501 Telex 9101674.1367 Telecopier 5121475.0266

1607 Main St., Suite 1400 Dallas. TX. 75201-4709 2141742-6944

4624 Alberta Ave., Suite 160 El Paso, TX. 79905.2793 9151533.3464

1220 Dallas Ave., Suite 202 Houston, TX. 77002-6966 7131650-0666

606 Broadway, Suite 312 Lubbock. TX. 79401.3479 606/747-5236

4309 N. Tenth, Suite B McAllen. TX. 76501-1685 5121662.4547

200 Main Plaza. Suite 400 San Antonio, TX. 76205.2797 512/225-4191

An Equal Opportunity! Affirmative Action Employer Mr. E.D. Walker Office of the Chancellor Universityof Texas System 601 Colorado Street Austin, Texas 78701 OpinionNo.MW-576

Re: Whether tuition income generatedby certain branches of theUniversityof Texasmay be retained locally
DearMr. Walker:

You ask the followingquestion:

=Y the tuition income generated at' The University of Texas Health Science Center at Dallas, The University of Texas Medical Branch at Galveston,The University of Texas Health Science Center at San Antonio be retained locally and accounted for annually as provided in the general appropriationsact?
Several provisions of the Education Code are relevant to your question. Section 51.002(a)provides inpart:

The governingboard of each institution listed in Section 51.001 of this codemay retain control of the following sums of money collected at the institution, subject to Section 51.008 of this code.

. .. . (9) all other fees and local institutional income of a strictly local nature arising out of and by virtue of the educational activities, research, or demonstrations carried on by the institution....
The University of Texas and its branches are subject to this provision. See Educ. Code 651.001.

- Section 51.008(b) provides in part:

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Mr. E. D. Walker - Page 2 (!JW-576)

(b) The governing board of every state institution of higher education shall deposit in the state treasury all cash receipts accruing to any college or university under its control that may be derived from all sources except auxiliary enterprises,noninstructionalservices,agencyand restricted funds, endowment funds, student loan funds, and Constitutional College Building Amendment funds.

.. .. (e) This section prevails over Sections 51.001-51.007 of this code to the extent of any conflict.
Section 51.008(b) applies to "all cash receipts" with certain exceptions. Tuition isnot one of thoseexceptions. According to the express statement found in subsection (e), section 51.008(b)prevails over contrarylanguagefound in section51.002. Thus, section 51.008, taken in isolation,would require institutions of the University of Texas System to deposit tuition in the state treasury.
Section 54.004 of the Education Code. however, provides as follows:
All tuition,local funds,and fees collectedby

an institution of higher education shall be retained and expended by the institution and accounted for annually as provided in the general appropriationsact. "Institutionofhigher education"is defined in a comprehensiveway in section 61.003 of the Education Code. It includes any medical or dental unit. See Educ. Code §61.003(7). Section 54.004 thus appears to authorize medical and dental units to retain tuition and account for it as provided in the General Appropriations Act. The General Appropriations Act provides that the general academic teaching institutionsmust deposit in the state treasury certain cash receipts including tuition. Acts 1981, 67th Leg., ch. 875, art. 111, §lOb. "General academic institutions"as defined in the appropriationsact, do not include the medical and dental branches. *, art. III, 14. Thus, if section 54.004 controls this question, the tuition is to be accounted for as provided in article III, section 10h; that is, tuition of the medical and dental branches would not need to be deposited in the state treasury but would be placed in local depositories.

_

Cf. V.T.C.S. art. 4393c, 92. If, on the other hand, article 51.008 controls the question, such tuitionwould have to be deposited in the treasury.

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In order to resolve the conflict between section 51.008 and 54.004, it is necessary to examine legislative history. The predecessor of section 54.004 was enacted in 1933 as section 2 of article 2654~. V.T.C.S. Acts 1933, 43d Leg. ch. 196, at 596. The predecessors of sections 51.001 through 51.007 were also enacted in 1933as article 2654d,V.T.C.S. Acts 1933,43d Leg., ch. 221,at 746. The emergencyclauseof thebill providedas follows:

The fact that under the present laws all the above institutionsarewithholding certainsums of money under a practicewhich has been established by them for a considerableperiod of time,and the fact that said institutions are scattered in various portions of the State and itwould work a great hardship on said schools to place their moneys in the local funds in the State Treasury and the further fact that existing laws do not provide for security of deposits placed in local depositories, and the further fact that existing laws do not provide for any adequate system of accountingbywhich theLegislatureand thepeople of the Statemay be apprised [sic]of the amounts on hand and being expended by said institutions, creates an emergency and an imperative public necessity requiring the suspension of the Constitutional Rule for the reading of bills on three severaldays in eachHouse, and saidRule is hereby suspended, and this Act is made to take effect from and after passage, and it is so enacted. Thus, the intent of both 1933 enactments was to permit the universities to maintain tuition and other funds outside of the treasury.

A statute enacted in 1951was the predecessor of section 51.008 of the Education Code. Acts 1951, 52d Leg., ch. 474, at 841. The repealerclauseof thisbill read as follows:

Sec. 5. All laws or parts of laws in conflict herewitharehereby repealed to the extent of such conflict, except as herein provided in Section 2 of this Act. Article 2654d of Vernon's Texas Civil Statutes is expressly repealed only insofar as it may conflict with the provisions of this Act. Section 2 of the enactmentpreserved from repeal the StateDepository Law. It appears, however, that the 1951 enactment was intended to

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repeal section 2 of then article 2654c, V.T.C.S., presently codified as section 54.004 of the EducationCode. Although section 2654d,now codified as sections 51.001-51.007, is expressly mentioned, the express mention is designed only to make it clear that a limited repealof article 2654dwas intended.
Section 1 of article 2654c,V.T.C.S.,was amended several times after 1951. See Acts 1953, 53d Leg. ch 351, at 866, Acts 1957, 55th Leg. ch. 435, at 1297,Acts 1961, 59th Leg., ch. 490, at 1003;Acts 1969, 61st Leg., ch. 46, at 134; Acts 1971, 62d Leg., ch. 511, at 1745. None of these amendments changed section 2 of article 2654c, V.T.C.S., nor was this section reprinted as part of the enacting legislation. However, in 1969 an amendment to article 2654c, V.T.C.S.,added subsection (n)to thatprovision:

(n) A Texas institutionof higher educationshall retain and spend all tuition, local funds, and fees collected and accounted for as provided in theGeneralAppropriationsAct.
Acts 1969, 61st Leg., ch. 46, at 134. Section 2 of article 2654~was not repealed. The 1971 codification of Title III of the Education Code codified section l(n) and 2 of article 2654c, V.T.C.S., as section 54.004. See Acts 1971, 62d Leg., ch. 1024, at 3112. We believe the 1969 enactmentof section (n)of article 2654~ renacteda provision similar in substance to present section 54.004 of the Education Code. There has been no more recent amendment to section 51.008 of the Education Code. The 1971 codificationof the Education Code was not intended to effect any substantive changes. Acts 1971, 62d Leg., ch. 1024, article 1, §2. Section 54.004, as the latest enacted provision, prevails over the conflictingportions of section 51.008. See V.T.C.S. 5429b-2, 83.05(a).
The Universityof Texasmust therefore look to section 54.004 of the EducationCode for thedispositionof these funds. The university may retain them and account for them as provided by the general appropriationsact. Since the appropriationsact doesnot require the medical or dental branch or the San Antonio Health Science Center to deposit these funds in the state treasury, these institutions may retain them locally. They are tobe accounted for in accordancewith article III, section 10h of the General Appropriations Act. Acts 1981, 67thLeg., ch. 875, art. III, 510h.
SUMMARY
Section 54.004 of the Education Code, read togetherwith article III, sections 10band 10hof the 1981 General Appropriations Act, authorizes the University of Texas Health Science Center at

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Dallas, the University of Texas Medical Branch at Galveston, the University of Texas Health Science Center at Houston and the University of Texas Health Science Center at San Antonio to retain tuition locally rather than depositing it in the State Treasury to be accounted for as provided in theGeneralAppropriationsAct.

MARK WHITE AttorneyGeneralof Texas
JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral
RICHARD E.GRAY III ExecutiveAssistantAttorneyGeneral Preparedby SusanL. Garrison& PatriciaHinojosa AssistantAttorneysGeneral
APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman Jon Bible CharlesBlack PatriciaHinojosa JimMoellinger

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