### THE A-RNDSY 

## GENERAL OF TEXAS

CW*WlrORD c. MARTIN AUSTIN. TEXAS 787ll f----------1--7

J&E 19, 1972
Honorable Philip G. Hoffman Opinion No. M-1162 Office ofthe President University ofHouston Re: Is the University ofHouston Houston, Texas 77004 prevented by Texas law from collecting voluntary contributions from students for the Texas Public Interest Research Group on either a charge or gratuitous Dear Doctor Hoffman: basis? Your request for an opinion from this office reads as follows:

“Is the University ofHouston prevented by Texas law from collecting voluntary contributions from students for the Texas Public Interest Research Group oneither a charge or gratuitous basis?” The applicable provisions ofthe Texas Education Code pertaining to the collection offees from students are set out as follows: Section 54.003. “No institution ofhigher education may collect from students attending the institution anv tuition. fee, or charge of any kyindexcept as permitted bi law, and no student may be refused admission to adischarged from any institution for the nonpayment ofany tuition, fee, or charge except as permitted by law. ” (V.A C.S. Art. 2654a, Sec. 1)(Emphasis added. )

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Section 54.004. “All tuition, local funds, and fees collected by an institution ofhigher education shall be retained and expended by the institution and accounted for annually as provided in the general appropriations act. ” (V.A.C. S. Art. 2654c, Sec. l(n), 2(part).) (Emphasis added. ) Section 54.005. “The provisions ofthis subchapter requiring the governing board ofeach institution ofhigher education to collect tuition fees do not deprive the board ofthe right to collect special fees authorized by law. ” (V.A.C.S. Art. 2654c, Sec. l(m) (part);) (Emphasis added. ) Section 54.503.

“(a) For the purposes ofthis section, ‘student services’ means textbook rentals, recreational activities, health and hospital services, automobile parking privileges, intramural and intercollegiate athletics, artists and lecture series, cultural entertainment series, debating and oratorical activities, student publications, student government, and any other student activities and services specifically authorized and approved by the appropriate governing board.

“(b) The governing board ofan institution ofhigher education may charge and collect from students registered at the institution fees to cover the cost of student services which the board deems necessary or desirable in carrying out the educational functions ofthe institution. The fee or fees may be either sry or compulsory as determined by the governing board. The total of all com$lsory student service fcesollected from a student for any one semester or summer session shall not exceed $30.

. . ,” (Emphasis added. )

-5666”Honorable Philip G. Hoffman, page 3 (M-1162)

From the data and information furnished this office it is shown that the Texas Public Interest Research Group (TexPIRG) will be operated as follows: “TexPIRG is a nonprofit, tax-exempt, studentbased corporation to be funded by Texas college students through a collection ofan optional fee of $2.00 per semester. its Board ofDirectors comprised solely of students will be elected by the students participating in the TexPIRG financing. Any enrolled, fee-paying student can seek election to the TejtPIRG Board ofDirectors, and there will be at least one representative for each school participating; for the larger schools there will be one representative for each 5,000 students participating. “The professional staff ofTexPIRG will consist of lawyers and professionals from such fields as engineering, biological and physical sciences, social sciences, urban and regional planning, and public administration. The staff will be selected by the State Board ofDirectors and will be employed on a fulltime basis. The general areas ofTexPIRG concern will include consumer protection resource planning, occupational safety, protection ofnatural areas and environmental quality, racial and sexual discrimination, landlord-tenant relations, delivery ofhealth care, and similar matters ofurgent or longrange concern of the people ofTexas. TexPIRG will have no formal connection, financial or otherwise, with any national organization or any public interest group located outside Texas. Action taken by TexPIRG will consist ofa coordinated effort ofanalysis and research, public education, active representation before legislative bodies and before administrative and regulatory agencies, and litigation where such actions are warranted to achieve the goals ofthis group. “One ofTexPlRG’s primary goals is to involve students in all aspects ofTexPIRG’s work in order not only to utilize their energies, ambitions and

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resources, but also to educate the students in the practical application oftheir knowledge. Students will be expected to act in several capacities: informing the professional staff ofboth the student and community concerns on specific issues; testifying before legislative and administrative hearings; drafting ofmodel legislation; and preparing legal memoranda and basic legal research on selected topics. ” From reading the above it appears that your University would only be an agency or pipeline to collect from students, on either a compulsory or voluntary basis, money with which to finance TexPIRG. Your Board would have no control or authority over TexPIRG as the facts show that the Directors ofTexPIRG are elected from each participating school. In effect your University would be collecting money to operate aprivate nonprofit corporation; therefore any fee collected under the provisions of Section 54.503 on a voluntary basis to fund TexPIRG would be outside the scope ofcarrying out the educational functions ofyour University, the scope ofwhich is limited by the statute. Inaddition to the matters di,scussed in the foregoing paragraph, it does not appear from the facts submitted that the proposed fee to be collected from students at various institutions ofhigher education and used to fund TexPIRG, would or could be classified as a fee that would be used for agovernmental purpose, and the collection of such fee by your University would be prohibited by Section 51 ofArticle IIIofthe Constitution ofthe State ofTexas, which provides, in its relevant part:

“The Legislature shall have nopower to make any grant or authorize the making ofany grant of public moneys to any individual, association of individuals, muncipal or other corporations whatsoever; . . .” Inr-hecase ofTexas Pharmaceutical Ass’n. v. Dooley, 90 S.W.2d 328 (Tex. Civ. App. 1936, nowrit) the Court held that a statute which authorized the State Board ofPharmacy to collect fees from pharmacists and turn aporti,on ofthe fees over to the State Pharmaceutical Association,

-5668-Honorable Philip G.,Hoffman, page:5 ‘(M-1162)

a private corporation, was unconstitutional because the fees were public money, whether deposited in the treasury or not, and therefore agrant ofpublic money for other than governmental purposes was in violation ofSection 51 ofArticle IIIofthe Texas Constitution. The court states at page 330: 11

. . . the appropriation ofthe major, portion of same to aprivate corporation in nowise charged with the enforcement of,thy act,would be clearly void. Appellant is not in any wise @own to be subject to any control ofthe,State Board ofPharmacy, whose

. members were public officers ofthe state, required to take the constitutional oath ofoffice, empowered to administer oaths, whose records required to be kept are made prima facie evidence in any judicial proceeding in this state, and designated in the act as the agency ofthe state for the enforcement of the laws pertaining to the practice ofpharmacy. In s? far as,the fees appropriated to it are reasonably necessary to enforce such regulation under the police power, the aci is valid and sustainable. Butin so far as the act undertakes to appropriate such feels to appellant, a private corporation, and nqt a state agency, it is void even ifconsidered as apolice regulation and not as a tax measure. “Onthe other hand, ifthese fees provided for in section 14above quoted and appropriated to appellant be considered as not reasonably necessary for the Board ofPharmacy to discharge its duties under the law and to enforce the same, but as levied for purposes ofrevenue, then clear1 we think they become public

+ funds or pub ICmoneys, whether deposited in the state treasury or not, and the attempted grant thereof to appellant private corporation is in clear violation of section 5c’art. 3ofthe Cons-‘

----’ --- ‘,-~-~~‘~ sis ;cIIuc1on.

. . . (cmpna; added. )

-5669-Honorable Philip G. Hoffman, page 6 (M-1162)

You are therefore advised that in our opinion the University of

~‘.Houstonis.~no.t.a,uthorized to collect fees from students to fund the operations ofTexPIRG. SUMMARY

Under the facts submitted the University of Houston is prevented by both Section 54.503, Texas Education Code, and Section 51 ofArticle IIIofthe Texas Constitution from collecting a voluntary fee from students to fund the Texas Public Interest Research Group.

neral ofTexas Prepared byJohn H. Banks Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman John Reeves John Traylor Ralph Rash L,inward Shivers SAMUEL D. MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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