ATTORNEY GENERALOFTEXAS GREG ABBOTT

April $2005

Mr. Raymund A. Paredes Opinion No. GA-03 14 Commissioner ofHigher Education Texas Higher Education Coordinating Board Re: Whether ajunior college district’s statutorily Post Office Box 12788 defined service area is extended when the district Austin, Texas 78711 provides services outside that area (RQ-0280-GA)

On behalf of the Brazosport College District (the “Brazosport CD”) and the Alvin Community College District (the “Alvin CCD”), you ask, in essence, whether ajunior college district’s statutorily defined service area isextended when the district provides services outside that area.’ Your query arises from a dispute between the Brazosport CD and the Alvin CCD (the “districts”) over the reach ofthe Alvin CCD’s service area. See Request Letter, supra note 1,at 1. Under the Education Code, ajunior college district’s service areamay extend beyond the boundaries of its taxing district, the area in which it levies taxes. See TEX. EDUC. CODE ANN. 8 130.161(2) (Vernon 2002). Subchapter .Iof chapter 130 of the Education Code establishes the boundaries of each Texas junior college district’s service area. See 

### id. $5 130.162-,211 (Vernon 2002 & Supp. 2004-05). The extent of ajunior college district’s service area is legally significant because, for example, certain district authoritywith respect toreal property transactions islimited tothe district’s service area,* adistrict may annex territory in its service area,3and adistrict may reduce tuition for certain students who reside in its service area outside its taxing district4 Sections 130.163 and 130.170 of the Education Code establish the two districts’ service areas.’

‘LetterfromCommissionerRaymundA. Paredes, CommissionerofHigherEducation,TexasHigherEducation Coordinating Board, to Honorable Greg Abbott, Texas Attorney General (Oct. 18, 2004) (on file with opinion Committee, also available afhttp://www.oag.state.br.us) [hereinafter Request Letter].

‘See, e.g., TEX.EDUC.CODEANN. $5 130.0021, .086(c) (Vernon 2002)

‘See id. 5 130.063(a)

‘See id. 5 130.0032(c).

‘see id. $5 130.163 (“The service area ofthe Alvin Community College District includes the territory within: (1) the Alvin, Danbuv, and Pearland independent school districts; and (2) the part ofthe Angleton Independent School (continued...)Mr. Raymund A. Parades - Page 2 (GA-0314)

Chapter 130ofthe Education Code does not directly address whether junior college districts may provide services outside their service areas. Section 130.006 provides limited authority for a junior college district to enter into acontract with anindependent school district located in acounty contiguous to, but not apart of, the college district to provide college courses in the school district’s facilities. See 

### id. $ 130.006 (Vernon 2002). Prior to its amendment in 1999, section 130.086(a) authorized ajunior college district to operate branch campuses “without regard to the geographical bounds ofthe junior college district.” See Act ofMay 31, 1975,64th Leg., R.S., ch. 689, 5 1, 1975 Tex. Gen. Laws 2109, 

### amended byAct of May 26,1999,76th Leg., R.S., ch. 1424,§ I,1999 Tex. Gen. Laws 4863. Section 130.086(a) now generally limits branch campuses, centers, and extension facilities to ajunior college district’s service area, see TEX. EDUC. CODE ANN. 9 130.086(a) (Vernon 2002), but then-existing programs were not affected by the 1999 change, see 

### id.4 130.086(g); Tex. Att’y Gen. Gp. No. JC-0332 (2001) at 3 (discussing Education Code section 130.086). However, section 130.086 “does not affect the authority” of the Higher Education Coordinating Board (the “Coordinating Board”) “regarding the continued operation ofabranch campus, center, orextension facility.” TEX. EDUC. CODE ANN. 5 130.086(h) (Vernon 2002). Section 61.05 l(j) ofthe Education Code grants the Coordinating Board general authority to approve off-campus and distance-learning courses offered by institutions of higher education, including junior college districts. See 

### id. 561.051(j) (Vernon 1996). It specifically states that the Coordinating Board “may not prohibit a public junior college district from offering a course for credit outside the boundaries ofthe junior college district when such course has met the requirements for approval as adopted by the board.” 

### Id. With respect to courses offered within the boundaries of anotherjunior college district, however, section 130.086(d) more speciticallyprovides that apublic junior college may offer acourse within the service area of another junior college district only ifit is “established that the second public junior college is unable to offer the course” and the Coordinating Board grants approval. See 

### id.5 130.086(d) (Vernon 2002). While subsections (a)and (c) of section 130.086 do not apply to a branch campus, center, or extension facility established before September 1, 1999, its other subsections apply to all such programs or other courses. See 

### id. 5 130.086(g). You inform us that the Alvin CCD has provided college-level courses at two Texas Department of Criminal Justice (“TDCJ”) prison units for several decades. See Request Letter, 

### supra note 1,at 1. The Alvin CCD has provided the courses pursuant to contracts with TDCJ and its Windham School District.6 The units are located within the Brazosport CD service area as

‘(...continued) District annexed by the community college district before September 1, 1995.“), 130.170 (“The service area of the Brazosport College District includes the territory within: (1) the Brazosport, Columbia-Brazoria, Sweeny, and Damon independent school districts; and (2) the Angleton Independent School District, except the part annexed by the Alvin Community College District before September 1, 1995.“).

‘&e BrieffromDavid M. Feldman, Attorney forAlvin Community College District, toHonorable Greg Abbott, Texas Attorney General at 1-2 (Sept. 24, 2004) (attachments) (on tile with Opinion Committee) [hereinafter Supplemental AlvinCCD Brief]. The Education Code establishes the Windham School District as an entity distinct from TDCJ. See TEX.EDUC.CODEANN. 5 19.002 (Vernon 1996) (“The school dishict established by the Texas Board of (continued...)Mr. Raymund A. Parades - Page 3 (GA-03 14)

described in section 130.170 and not within the Alvin CCD service area as described in section 130.163. 

### Seeid.; TEX.EDUC.CODEANN. $5 130.163, .170(Vemon2002).’ Becausetheprisonunit courses are offered by the Alvin CCD within the Brazosport CD service area, the courses are subject to Coordinating Board approval and regulation pursuant to subsection (d) of section 130.086, even though the Alvin CCD has been providing services atthe two prison units since before September 1,1999. See TEX.EDUC.CODEANN. 5 130.086(d), (g)-(h); see also 

### id. §61.OS1(j) (Vernon 1996). The Alvin CCD claims that because itprovides services at the prison units, the units are within its service area. See Request Letter, supra note 1,at 1. The Brazosport CD does not object tothe Alvin CCD providing services atthe prison units, but asserts that the fact that the Alvin CCD provides services at the units does not bring the units within the Alvin CCD’s service area.’ The Coordinating Board’s general counsel rendered anadvisory opinion concluding thatthe Alvin CCD’s service area does not include the prison units.” The Alvin CCD disagreed with this conclusion,” and you submitted this request on the districts’ behalf. See 

### id. There are nojudicial or attorney general opinions that resolve the issue. The districts’ dispute centers on section 130.161 ofthe Education Code, which defines the terms “services” and “service area” for subchapter J:

Corrections in 1969 shallbe known asthe Windham School District, an entity that is separate and distinct from the Texas Department of Criminal Justice. Tbe district may establish and operate schools at the various facilities of the Texas Department of Criminal Justice.“). Tbe Windham School District is not a school district under the Education Code unless specificallyprovided. See 

### id.§ 19.004(a) (“The district shallbe govemedasprovidedbythis chapterandpolicies established by the board. Unless otherwise specifically provided, aprovision of this code applying to school districts does not apply to the district.“).

‘The AlvinCCD acknowledges that theprisonunitsaregeographicallylocatedwithintheBrazosportCD service area described by section 130.170(2) of the Education Code, see supi-a note 5, but contends that the units are not “legally” located within the Brazosport CD service area because the Windham School District isnot part ofthe Angleton Independent School District. See Supplemental Alvin CCD Brief, supra note 6, at 2. However, the Windham School Disbict is not generally aschool district under the Education Code, see supro note 6, and the Windham School District programs at the prison units do not remove the units from the territory described in section 130.170(2).

‘See also Brief from David M. Feldman, Attorney for Alvin Community College District, to Honorable Greg Abbott, Texas Attorney General at2-4 (July 21,2004) (on file with Opinion Committee) [hereinafter Alvin CCD BriefJ.

‘See Brief from Lisa A. Brown, Attorney for Brazosport College District, to Honorable Greg Abbott, Texas Attorney General at 1 (Sept. 2,2004) (on file with Opinion Committee) [hereinafter Brazosport CD Brief]; see also Letter fromLisa A. Brown, Attorney forBrazosport College District, toHonorable Greg Abbott, Texas Attorney General (Oct. 25,2004) (on tile with Opinion Committee).

%e Letter from Teri E. Flack, Interim Commissioner of Higher Education, to John Pickelman, Chancellor, North Harris Montgomery County Community College District (June 9,2004) (attached to Brazosport CD Brief).

“See Letter from Carolyn Hanaban, Feldman & Rogers, to Jan Greenberg, General Counsel, Texas Higher Education Coordinating Board (July 21,2004) (attached to Alvin CCD Brief).Mr. Raymund A. Parades - Page 4 (GA-03 14)

In this subchapter: (1) “Services” means the courses and programs described by Sections 130.0011 and 130.003(e). 

### (2) ‘3ervice area” means: (A) the territory within the boundaries of the taxing district of ajunior college district; and

(B) the territory outside the boundaries of the taxing district of ajunior college district inwhich thejunior college district provides services. TEX.EDUC.CODEANN. 5 130.161 (Vemon2002). Sections 130.162 through 130.211,theremaining subchapter Jprovisions, define aspecific service area for each Texas junior college district. See 

### id. $5 130.162-,211 (Vernon 2002 & Supp. 2004-05). Section 130,161(2)(B) clearly establishes that ajunior college district’s service area includes territory outside the boundaries ofits taxing district. However, the Alvin CCD contends that section 130,161(2)(B) operates to include within a district’s service area any 

### location outside the taxing district where the district provides services, including locations outside the district’s statutorily defined service area. See Alvin CCD Brief, supra note 8, at 4. The AlvinCCD construes section 130,161(2)(B) misolation whereas the Code Construction Act and case law require us to view it in the context of subchapter J as awhole. See TEX.GOV’T CODEANN. $311.01 l(a) (Vernon 2005) (“Words and phrases shall be read in context[.]“); 

### Helena Chem. Co.v. Wilkins,47S.W.3d 486,493 (Tex. 2001) (“[WIemust always consider the statute as a whole rather than its isolated provisions. We should not give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone.“). It is plain from subchapter J’s face that the statute’s purpose is to definitively delineate service areas for Texas’ many junior college districts. See TEX.EDUC.CODE ANN. $5 130.162-,211 (Vernon 2002 & Supp. 2004-05). This purpose is also clear from the legislative history. The legislature enacted subchapter J in 1995 as Senate Bill 397. Both bill analyses for Senate Bill 397 indicate the legislature’s intent to establish fixed service areas to avoid duplication of services:

Community colleges now serve both their official taxing district as well as areas outside the taxing district which have been assigned to community colleges by the Texas Higher Education Coordinating Board. Creation ofdelineated community college service areas may help avoid duplication of services. As proposed, C.S.S.B. 397 requires each community college district tohave arecognized service area. [C.S.S.B 3971 [s]ets forth the service area of each district.Mr. Raymund A. Parades - Page 5 (GA-0314)

SENATECOMM. ONEDUCATION,BILLANALYSIS,Tex. Comm. Subst. S.B. 397, 74th Leg., R.S. (1995); see alsoHOUSECOMM.ONHIGHER EDUCATION,

BILLANALYSIS,Tex. S.B. 397,74th Leg., R.S. (1995). Construing the term “service area” in section 130.161(2) to permit ajunior college district tounilaterally extend its statutorily defined service areamerelybyproviding services outside that territory would defeat the legislature’s painstaking effort in sections 130.162 through 130.211 to precisely delineate a fixed service area for each Texas junior college district. See TEX.GOV’T CODEANN. 9311.023(l), (3) (5) (Vernon 2005) (in construing a statute, acourt may consider the object sought to be attained, legislative history, and the consequences of aparticular construction). Furthermore, section 130.16 l(1) provides avery specific definition for the term “services” in subchapter J, which the Alvin CCD does not address but must also guide our construction of section 130.161(2)(B). See 

### id. §311.01 l(b) (“Words and phrases that have acquired atechnical or particular meaning, whether bylegislative definition orotherwise, shall be construed accordingly.“). Specifically, section 130.161(l) defines services as “the courses and programs described by [slections 130.0011 and 130.003(e).” TEX.EDUC.CODEANN. § 130.161(l) (Vernon 2002). Section 130.0011 establishes junior colleges’ mission as follows:

Texas public junior colleges shall be two-year institutions primarily serving their local taxing districts and service areas inTexas and offering vocational, technical, and academic courses for certification or associate degrees. Continuing education, remedial and compensatory education consistent with open-admission policies, and programs of counseling and guidance shall be provided. Each institution shall insist on excellence in all academic areas - instruction, research, and public service. Faculty research, using the facilities provided for and consistent with the primary function of each institution, is encouraged. Funding forresearch should be from private sources, competitively acquired sources, local taxes, and other local revenue. 

### Id. $ 130.0011. Similarly, section 130.003(e) establishes that

[t]he purpose of each public community college shall be to provide: (1) technical programs up to two years in length leading to associate degrees or certificates; (2) vocational programs leading directly to employment in semi-skilled and skilled occupations; (3) freshman and sophomore courses in arts and sciences; (4) continuing adult education programs for occupational or cultural upgrading;Mr. Raymund A. Parades - Page 6 (GA-0314)

(5) compensatory education programs designed to fulfill the commitment of an admissions policy allowing the enrollment of disadvantaged students; (6) acontinuing program ofcounseling andguidance designed to assist students in achieving their individual educational goals; (7) work force development programs designed tomeet local and statewide needs: (8) adult literacy and other basic skills programs for adults; and (9) such other purposes as may be prescribed by the Texas Higher Education Coordinating Board or local governing boards in the best interest ofpost-secondary education in Texas. 

### Id. 5130.003(e). Sections 130.0011 and 130.003(e) establish the basic courses and programs ajunior college district must offer. See 

### id. $5 130.0011, .003(e). And section 130.0011 expressly states that ajunior college district’s primary mission isto serve its taxing districts and service area, clearly referring to a limited, fixed territory. See 

### id. 5 130.0011 (“Texas public junior colleges shall be two-year institutions primarily serving their local taxing districts and service areas in Texas. .“). Thus, we conclude that sections 130.0011 and 130.003(e) describe basic, core services to be delivered within apredetined, fixed territory, not any and all services ajunior college district may be authorized to provide.Given the section 130.161(l) definition of“services,” which specifically limits the term to courses andprogmmsprovidedunder sections 130.0011 and 130.003(e), thephrase“territotyoutside the boundaries of the taxing district of ajunior college district in which thejunior college district provides services” in section 130,161(2)(B) does not operate to include territory in ajunior college district’s service area simply because thejunior college district provides services there. Rather it refers to corejunior college district services mandated by sections 130.0011 and 130.003(e) that the district provides within its legislatively fixed service area. According to its plain terms, section 130.161(2)(B) does not operate to include within ajunior college district’s service area every location where thejunior college district provides services. Accordingly, we conclude that ajunior college district’s statutorily defined service area is not extended when itprovides services outside that area. With respect tothe dispute athand, the fact that the Alvin CCD provides services in prison units outside its section 130.163 service area does not extend its service area to include those locations.Mr. Raymund A. Parades - Page 7 (GA-0314)

SUMMARY Ajunior college district’s statutorily defined service area is not extended when it provides services outside that area. The fact that the Alvin Community College District provides services inprison units outside its Education Code section 130.163 service area does not extend its service area to include those locations.

BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for,Legal Counsel NANCY S. FULLER Chair, Opinion Committee Mary R. Crouter Assistant Attorney General, Opinion Committee