DAN MORALES 

ATTORNEY GENERAL 

Office of tfy 9Wmep @enend 

&tate of Z!Lexas 

August 10,199s 

The Honorable Tee1 Bivins 

Chair, Senate Education Committee 

Texas State Senate 

P.O. Box 12068 

Austin, Texas 78711 

Opinion No. DM-48 1 

Re: Whether Education Code section 51.306, 

which requires basic skills test for students at 

public universities, may be applied to students at 

proprietary schools (RQ-978) 

Dear Senator Bivins: 

You ask about the authority of the Texas Higher Education Coordinating Board (the 

“coordinating board” or “board”) to extend the application of section 5 1.306 of the Education Code 

to proprietary school students. Section 5 1.306, as amended by the Seventy-fifth Legislature in 1997, 

requires “[elach undergraduate student who enters a public institution of higher education [to] be 

tested for reading, writing, and mathematics skills prior to enrolling in any coursework.“’ The test 

to be used by each institution is the Texas Academic Skills Program Test, or “TASP test,” or an 

alternative test prescribed by the board.’ A student whose performance on the TASP test is below 

the board-prescribed standard for the tested skill must participate in developmental courses offered 

by the institution in which the student is enrolled and on the same campus at which the student 

would otherwise attend classes.’ A student may not enroll in an upper division course until the 

student has performed satisfactorily on the test for each skill or earned a grade of “B” or better in a 

tie&man-level course in each skill.4 

Section 5 1.306 provides a number of exceptions to its application. For instance, the testing 

requirements do not apply to a high school student who performs at or above a certain level on the 

high school exit-level assessment exam: or to an entering or transferring student who has achieved 

a certain score on the Scholastic Assessment Test or the American College Test.6 Nor do the testing 

‘Educ. Code 6 5 1.306(b). 

‘Id. 5 51.306(c). 

‘Id. 5 51.306(e), 

‘Id. 5 51.306(g) 

‘Id. 5 51.306(1). 

61d. 5 51.306(m) 
The Honorable Tee1 Bivins - Page 2 (DM-481) 

requirements apply to a deaf student,’ or to a blind student unless the test is administered by a 

method appropriate to that student8 Section 51.306 also prescribes such things as procedures for 

development and administration of the test, state funding to institutions for developmental courses, 

board payment of test costs for financially needy students, and institution reporting of test results.9 

You ask: “Has the Texas Higher Education Coordinating Board been granted the power to 

extend the scope of Section 51.306, Education Code, or any part thereof, to students seeking degrees 

at proprietary schools?’ We understand you to use the term “proprietary school” as it is defined in 

section 132.001 of the Education Code: 

(1) “Proprietary school” means any business enterprise operated for a 

profit, or on a nonprofit basis, that maintains a place of business within this 

state, or solicits business within this state, and that is not specifically 

exempted by this chapter and: 

(A) that offers or maintains a course or courses of instruction or 

study; or 

(B) at which place of business such a course or courses of 

instruction or study is available through classroom instruction or by 

correspondence, or both, to a person for the purpose of training or 

preparing the person for a field of endeavor in a business, trade, technical, 

or industrial occupation, or for avocational or personal improvement.‘0 

The testing requirements of section 51.306 apply, with certain exceptions, to “[elach 

undergraduate student who enters a public institution of higher education.“” Clearly, any power on 

the part of the coordinating board to impose the TASP test requirements on proprietary school 

students does not come from section 5 1.306. Section 5 1.306 by its terms applies only to students 

attending public institutions of higher education. ” Proprietary schools are not public institutions of 

‘Id. 5 51,306(r)(3) 

8Id. 5 51.306(n). 

9Zd. !j 51.306(c), (b), o’), (k). 

“Id. 5 132.001(l). 

“Id. 5 51.306(b). 

“For purposes of section 51.306, “institution of higher education” has the meaning assigned to it by section 

61.003 of the Education Code. Section 61.003 defmes “institution of higher education” as “any public technical 

institute, public junior college, public senior college or university, medical or dental unit, or other agency of higher 

education as defmed in this section.” Id. 5 61.003(S). 

p. 2726 
The Honorable Tee1 Bivins - Page 3 (DM-481) 

higher education. I3 Thus section 51.306 does not authorize the coordinating board to require 

students enrolled in proprietary schools to pass the TASP test as a condition of obtaining degrees. 

We next examine the coordinating boards view that its power to require degree candidatesI 

at proprietary schools to pass the TASP test comes from section 132.063 of the Education Code, 

which provides: “A proprietary school may offer a degree approved by the Texas Higher Education 

Coordinating Board.” Relying on section 132.063, the board adopted rules establishing the basic 

standards for degree programs at proprietary schools. I5 The stated purpose of the rules is to “ensure 

the integrity of applied associate degrees offered by proprietary institutions.“r6 Proprietary schools 

offering applied associate degrees and the degree programs themselves are required to “meet 

minimum institutional and educational program quality standards.“‘7 The standards established by 

the board include, among other things, faculty and administrator qualifications, minimum curriculum 

elements, and length of program requirements.‘s 

Significant to your question is the board rule adopted under the authority of section 132.063 

that provides: “Each person who enrolls in an applied associate degree program at a proprietary 

institution on or after September 1,1997 must pass all sections of the certification form of the Texas 

Academic Skills Program (TASP) examination at the level established by the Coordinating Board 

before the degree may be awarded.“19 The purpose of this rule, according to the board, is to ensure 

that “degree programs at proprietary schools meet the same quality standards as programs offered 

at public technical and community colleges.“zo 

We know of no court or attorney general opinion that has examined the scope of the authority 

granted to the coordinating board in section 132.063 to “approve[r a degree offered by a proprietary 

“See id. (defming “institution of higher education”); id. 5 132.001 (defming “proprietary school”); see ako 

id. 5 132.002 (providing that educational institutions supported by funds from state 01 local taxation are not proprietary 

schools). 

‘VThe coordinating board does not assert that it may require non-degree candidates to t&e the TASP test. A 

“degree” is defined in the Fducation Code as “any title or designation, mark abbreviation, appellation, or series of letters 

OI words, including associate, bachelor’s, master’s, doctor’s, and their equivalents, which signifies, purports to, or is 

generally taken to signify satisfactory completion of the requirements of all OI part of a program of study leading to an 

associate, bachelor’s, master’s, or doctor’s degree OI its equivalent.” Id. 5 61.302(2). 

“17 T.A.C. ch. 12. 

161d. 5 12.21. 

‘=Id. $5 12.43, .44, .46, .47, .48. 

‘91d. $ 12.52 

“21 Tex. Reg. 4939 (June 4, 1996) (explainiig proposed rule 19 T.A.C. § 12.52). 

p. 2727 
The Honorable Tee1 Bivins - Page 4 (DM-481) 

school. Where an agency’s rulemaking authority is unclear or in doubt, courts and this office 

generally defer to the agency’s reasonable interpretation of its statutory authority, provided the 

interpretation is not clearly erroneous. ” As stated above, the testing requirement is intended by the 

board to ensure that degree-earners at proprietary schools meet substantially the same qualifications 

as students earning similar degrees at public institutions of higher education who are required by 

section 51.306 to take and pass the TASP test. We believe that a court would find that the 

coordinating board’s authority under section 132.063 to approve a degree at a proprietary school 

reasonably includes the authority to establish requirements for an approved degree and to include 

within the requirements the prerequisite that students pass the TASP test as a condition of obtaining 

a degree. 

Furthermore, courts give great weight to an agency’s long-standing interpretation of a statute 

of doubtful meaning, and are inclined to accept an agency’s interpretation where the legislature reenacts or amends a statute without substantive change. ” The coordinating board first adopted 

detailed rules regarding proprietary school degree programs in 1991 under the authority of chapter 

32, the predecessor to current chapter 132.23 The legislature amended the statute in 1995, but did 

nothing to curtail the scope of the board’s power. 24 In such a case, a court is likely to find that the 

legislature has acquiesced in the agency’s interpretation of its statutory authority. 

Finally, we note that unlike section 5 1.306, the board rule for TASP testing at proprietary 

schools does not provide for any exceptions to its application, such as for deaf or blind students. Nor 

does the rule contain any of the prescriptions for developmental courses, state funding, reporting, 

aid to needy students, and similar provisions contained in section 51.306. The rule provides only 

that a proprietary school student must pass all sections of the TASP examination at the level 

established by the board before an associate degree may be awarded. Because the board’s testing 

rule was not and could not be adopted under the authority of section 5 1.306, the rule need not adhere 

to the requirements of that section. It is within the board’s power to establish exceptions or 

requirements as part of the rule, subject of course to judicial review.25 

“See, e.g., Le v. Farmers Ta. Counfy Uut. Ins. Co., 936 S.W.2d 317, 324 (Tex. App.--Houston [lst Dist.] 

1996, writ denied); Terns Health Facilities Comm’n v. El Paso Med. Surgical Assoc., 573 S.W.Zd 291,295 (Tex. Civ. 

App.--Tyler 1978, tit ref d n.r.e.); Attorney General Opinions DM-443 (1997) at 2, DM-216 (1993) at 2. 

“See Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172, 180 (Tex. 1967); Bullock v. Marathon Oil Co., 

798 S.W.Zd 353,357 (Tex. App.--Austin 1990, no writ). 

%Vee 16 Tex. Reg. 3524 (June 14, 1991); 16 Tex. Reg. 1334 (Mar. 1,199l). 

%See Act of May 27, 1995,74tb Leg., R.S., ch. 260,s 2,1995 Tex. Gen. Laws 2207,2457 

%e board might wish to consider the requirements of the Americans with Disabilities Act, 42 USC. $12 101, 

et seq., in adopting exceptions to the rule. 

p. 2728 
The Honorable Tee1 Bivins - Page 5 (DM-481) 

SUMMARY 

Section 5 1.306 of the Education Code, which requires each undergraduate 

student who enters a public institution of higher education to take and pass 

the Texas Academic Skills Program Test, or “TASP test,” does not authorize 

the Texas Higher Education Coordinating Board to require students enrolled 

in a proprietary school to pass the TASP test as a condition of obtaining a 

degree. However, we believe that a court would find that the coordinating 

board’s power under section 132.063 of the Education Code to approve a 

degree at a proprietary school reasonably includes the authority to require 

proprietary school students to pass the TASP test as a condition of obtaining 

a degree. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Barbara Griffin 

Assistant Attorney General 

p. 2729