### DAN MORALES

ATTORNEY GENERAL 

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November 5, 1996

Dr. William H. Cunningham Chancellor The University ofTexas System 601 Colorado Street O’Hemy Hall Austin, Texas 78701
The Honorable Judith Zatlirini Chair, Health and Human Services Committee Texas State Senate P.O. Box 12068 Austin, Texas 78711

Dear Dr. Cunningham and Senator Zaflirini: Opinion No. DM 421

Re: Whether the board of regents of an institution of higher education may waive all or part oftuition and fees for a particular student or a particular group of students and related questions (RQ-737, RQ-769)

Both of you ask questions regarding the authority of the governing board of an institution ofhigher education to waive certain tuition and fees for a particular student or group of students. All ofthe questions asked require a re-examination of Attorney General Opinion H-1028, as well as an examination of the tuition and fee provisions in Education Code chapters 54 and 55. Accordingly, we answer your questions together.

Dr. Cunningham isgenerally concerned about the authority of the board ofregents of The University of Texas System. In addition to asking about the board’s general authority to waive tuition and fees, Dr. Cunningham asks whether, as a part of the compensation and benefits package it offers its employees, the board may adopt a policy waiving all or part of certain fees for its employees who enroll at the component institution’ at which they are employed. If so, he asks whether the board also may waive all or part of certain fees for spouses and dependent children of its employees, Finally, Dr. Cunningham asks whether, if we determine that the board generally may not waive fees for its employees, the board may waive fees upon a determination that the knowledge

9’h.eUnivenity ofTexas Systemis composed ofseveralinstitutions andentities, listed in section 65.02 of the Education code: The University of Texas at Arlington, The University of Texas at Austin, The University of Texas at Dallas, The University of Texas at El Paso, The University of Texas of the PermianBasin, The University of Texas at San Antonio, The University ofTexas Southwestern Medical Centerat Dallas, The University of Texas Medical Branch at Galveston, The University of Texas Health Science CenteratHouston, The University of TexasHealth Science Centerat San Antonio, and The UniversityofTexas M.D. Anderson CancerCenter. Throughout this opinion, we will referto the institutions and entities that comprise

TheUniversityofTexas Systemas “thecomponent institutions.”Dr. Wiiiam H. Cunningham - Page 2 (DM-421)

The Honorable Judith Zatfnini

or skills available through certain courses offered by the component institution that employs the faculty or staff member will enhance the individual faculty or staff member’s ability to perform his or her duties.

Senator ZaSirini asks specifically about group hospital and medical services fees. She inquires whether a governing board may waive medical services fees for active duty military personnel who attend an institution ofhigher education. Senator ZafErini explains that, because the military provides medical coverage for these individuals, they will not use the medical services auniversity may provide.

We believe it will be helpfil to begin by briefly summarizing the Education Code provisions about which you ask. Dr. Cunningham’s questions involve provisions throughout chapters 54 and 55. Chapter 54 of the Education Code, titled “Tuition and Fees,” contains the majority of the fee provisions about which Dr. Cunningham asks. Chapter 55 generally authorizes the board of an institution ofhigher education to acquire or construct permanent improvements,2 and to use the revenues from fees section 55.16 authorizes to pay off bonds the institution sold to finance the permanent improvements.s In general, chapters 54 and 55 provide for two types of tuition and other fees, which we will term “mandatory” and “discretionary.” First, the Education Code provides that the board

“shall” collect certain fees; we will call these “mandatory” fees4 Second, the Education Code provides that the board “may” levy certain fees; we will call these “discretionary fees.5 A discretionary fee may be either voluntary or compulsory. Various sections of chapter 54 define a “voluntary fee” as “a fee that is charged only to those students who
use the student service for which the fee is established.“6 By contrast, a “compulsory fee” is“a fee that is charged to all students enrolled at the institution.“7

Senator Zaflirini’s questions concern specific sections of Education Code chapter 54. Section 54.503 authorizes the governing board of an institution of higher education except The University of Texas at Austin or the University of Houston System to collect from students registered at the institution a student services fee that may include fees for

2&z F&x. Code p55.11.

%ee id. §55.17(a).

4Seeid. 55 54.008(a) (tuition forgraduatepmgrams), .051(b) (tuition), .501(a) (laboratoryfees), .502(a) (general propertydeposits).
%ee, e.g., id. 0s 54.006(a) (matriculationfee), .007@) (incidental feesforstudents paying tuition by installment or delinquent in payments), Ml (penalty from nonresident students who fail to comply with rules and regulations regarding nonresident fees). ,066 (tuition ratesfor resident doctoral students who havemoresemestercredithoursofdoctoralworkthanallowed).

61d.5 54.503(a)(3); see also id. 55 54.5061(a)(3), .513(a)(3).

‘ Id. 554.503(a)(2); see also id. @ 54.5061(a)(2), .513(a)(2).

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health and hospital services and medical services.* Sections 54.507 through 54.50891, including section 54.5089, which the senator cites, authorize particular universities or university systems to collect medical services fees: Texas A&M University System, Texas Tech University, University ofNorth Texas, Texas Woman’s University, Texas State University System components, and The University ofTexas System components.
This office construed Education Code section 54.503 in Attorney General Opinion H-1028, and we believe the answer to all of your questions depends in part upon that opinion’s continued validity. Attorney General Opinion H-1028 considers whether the Texas A&M University System may waive compulsory fees collected pursuant to section 54.503(b) ofthe Education Code for students who receive instruction off-campus. A representative of the Texas A&M University System had informed this office that students who receive instruction off-campus “do not have physical access to use facilities by reason ofbeing off-campus for instruction.“y
Section 54.503(b) of the Education Code, which Attorney General Opinion H-1028 considered, is a discretionary fee provision that authorizes the governing board of
an institution of higher education to “charge and collect from students registered at the institution fees to cover the cost of student services.” Attorney General Opinion H-1028 stated that the governing board of an institution ofhigher education has broad authority to adopt rules and regulations for the operation of section 54.503(b) of the Education Code.r” Furthermore, according to the opinion, a court will not interfere with the board’s rules and regulations unless a challenger clearly shows that the governing board has acted arbitrarily or abused its authority. lr Thus, this office concluded that, so long as the amount ofthe fee or fees does not exceed the maximum set in section 54.503 and so long
as the governing board levies the fee in proportion to the number of semester credit hours for which a student registers, the governing board may waive or modify the student services fee in an appropriate circumstance, such as where “a student ‘does not have physical
access to use facilities by reason ofbeing off-campus for instnrction.“‘rs
In 1987, subsequent to the issuance of Attorney General Opinion H-1028, the legislature amended section 54.503 by expressly defining compulsory to denote a fee imposed upon all students and voluntary to denote afee imposed only upon those students who use

*Id.554.503(a)(l),

(b).
yAttomey General

Opinion H-1028 (1977) at2.

loId.at3 (quotingLetterAdvisoryNo. 6 (1973) at2).

“Id. (quotingLetterAdvisoryNo. 6).

121d. at3.

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the service.” IfAttorney General Opinion H-1028 remains valid, the governing board of
an institution of higher education may waive a compulsory fee for those students who do not use the service for which the fee is charged. Now, however, a fee that an institution charges only students who use the service is, by definition, a voluntary, as opposed to a compulsory, fee. In light of the statutory amendment to section 54.503, the conclusion Attorney General Opinion H-1028 reaches no longer makes sense, and we hereby conclude that Attorney General Opinion H-1028 has been superseded by the 1987 statutory amendments. Thus, if a governing board wishes to impose a discretionary fee upon only those students who will use the service, it may adopt a voluntary fee. Once a governing board has adopted a discretionary, compulsory fee, however, it may not waive the fee for students who do not use the service. Onthe other hand, we find nothing in section 54.503 that precludes a governing board from changing a compulsory fee to a voluntary fee. Indeed, section 54.503 specifically provides that a fee “may be either voluntary or compulsory as determined bythe governing board.“14

We next consider the broader issue of whether a governing board may waive a mandatory or discretionary tuition or fee in any instance in which the waiver is not expressly authorized by statute. We do not believe that it may. The legislature has laid out a complex scheme of tuition and fees in Education Code chapters 54 and 55 and has included in the scheme various reasons for which a governing board may reduce or waive tuition or fees. We believe the legislature’s system pre-empts any discretion the governing board of an institution ofhigher education may have had to waive tuition and fees.IJ Throughout chapters 54 and 55 ofthe Education Code, the legislature has set forth in detail who may be exempt from, or eligible for reduced, tuition and fees. Chapter 54 explicitly restricts a board’s power to charge tuition and other fees of individuals who fall within particular categories described invarious sections ofthe code. Assorted sections of subchapter B, for example, provide limited circumstances in which specified nonresidents may register in an institution of higher education as a Texas resident and pay the tuition and fees associated with Texas residency.16

13SeeAct of May 31, 1987, 7001Leg., R.S., ch. 901, 86, 1987 Tex. Gen. Laws 3047, 3049; see alsosuprotextaccompanying notes 4-5. Whenthisofficeissued Attorney General OpinionH-1028, Education Code section 54.503 authorized the governing board of an institution of higher education to determinewhether the studentservicesfeewould be compulsoryorvoluntary, although the stamtedid not define the terms. See Anomey General Opinion H-1028 (1977) at 1 (quoting Educ. Code 854.503(b)). Anorney GeneralOpinion H-1028 does not discuss the distinction between those terms,however. Butsee Anomey GeneralOpinion M-537 (1969) at2.

14Educ.Cede 5 54.503(b).
*%eeAnomey GeneralOpinion H-1028 (1977) at3 (quoting LetterAdvisory No. 6 (1973) at2).

%ee Educ. Code @j54.058(c), (f) (spouses and children of militarypersonnel), ,059 (pmfessor ofhigher education, aswell asprofessor’sspouse and children), .063 (teaching assistant orresearchassistant,aswell as spouseand children), .064(a) (scholarship students).

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In addition, subchapter D of chapter 54 explicitly exempts distinct groups of students from the payment oftuition for part or all ofthe time the students are enrobed at an institution of higher education. For instance, Education Code section 54.201 authorizes the governing board of an institution of higher education to exempt the highest ranking graduate of each ofthe state’s accredited high schools. Section 54.203 requires the board to exempt a veteran, among others, from “the payment of all dues, fees, and charges [except] property deposit fees, student services fees, and any fees or charges for lodging, board, or clothing,” provided the veteran meets certain requirements. Finally, section 54.207 authorizes a board to exempt from the payment of “tuition fees”” two hundred native-born students from other nations of the American hemisphere and thirtyfive native-born students from a Latin American country designated by the United States Department of State.18 Further, some ofthe sections in chapters 54 and 55expressly authorize the goveming board of an institution of higher education to waive the discretionary fees that section provides. Three ofthe fee provisions about which Dr. CumGnghamasks authorize aboard to waive fees the section permits the board to collectrg Significantly, however, each of these sections specifies that a board may waive the fees authorized by that section only if the imposition of the fee would cause an undue financial hardship upon the student.20 Moreover, each section limits the number ofwaivers aboard may grant to apercentage of the total enrollment at the institution ofhigher education. Viewing chapters 54 and 55 of the Education Code as a whole, we believe the legislature has enacted a complete scheme for the levying of tuition and other fees. The legislature has provided for certain individuals a specific right to resident tuition, although the individual otherwise would not qualify for the lower resident rates. Additionally, the legislature has listed nine categories of individuals that a board of an institution of higher education must or may exempt from certain tuition and other fees. The legislature expressly has provided in relation to three discretionary fees that aboard may waive the fees, and the legislature expressly has limited the circumstances in which the board may waive such fees.

17Section54,205(a)(4) oftheEducation code defines “tuition fees”forpurposes ofthat section to include “all dues, fees, and enrollment charges whatsoever for which exemptions maybe lawfully made, including fees forcorrespondence courses, general propertydeposit fees, and student serviczs fees.” The term does not include, however,fees or chargesfor lodging,heard, or clothing. Educ. code 8 54.205(a)(4).

F%e also Educ. Code 9854.204 (children of disabled tire fighters and peace officers), .205 (blind ordeafstudents), ,208 (firefighters enrolled in firescience courses), .209 (children ofprbnem of warorpersens

missing inaction),,210 (seniorcitizens), ,211 (students

infosterorotherresidential care), .212 (certainAFDC students).

‘gSeeEduc. Code 55 54.503(e), .513(h), .16.

2oSeeid. $8 54.503(e), .513(h), 55.16.

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We therefore conclude that the governing board of an institution of higher education may waive a mandatory fee, that is, one that the statute requires the board to charge and collect, only when the board is explicitly authorized to do so.21 Likewise, a governing board may waive a discretionary fee, compulsory or voluntary, only in accordance with explicit statutory authority.22 The governing board may not waive the collection of a discretionary, compulsory fee for a student because the student does not have physical access to campus facilities or will not use the services the fee is designed to subsidie.~ As to discretionary, voluntary fees, any student is free to decline to pay the fee ifhe or she will not use the service offered. The governing board may not, however, waive avoluntary fee for a student who will use the service (unless a statute authorizes the board to do so).24

In summary, a governing board may not waive any tuition or fee, whether the fee is mandatory or discretionary, unless expressly authorized by statute. With respect to waiver, then, the mandatory-discretionary distinction is irrelevant. The distinction between discretionary, compulsory fees and discretionary, voluntary fees is relevant only insofar as a governing board may not charge avoluntary fee to a student who will not use the service and insofar as we find nothing precluding a governing board authorized by statute to impose either a compulsory fee or voluntary fee from changing a compulsory fee to avoluntary fee.

We now must determine how to interpret statutes in chapters 54 and 55 that authorize a discretionary fee, but do not indicate whether the fee must be compulsory, voluntary, or whether the governing board may determine whether the fee will be compulsory or voluntary. The legislature has authorized the governing boards of institutions of higher education to determine whether some ofthe discretionary fees will be voluntary or compulsory.2J Additionally, at least one statute, which authorizes Texas A&M University to charge a group hospital and medical services fee, stipulates that the discretionary fee

21See,e.g., Educ. Code55 54.008, ,051, ,501, .502(a)

22Wefind only three express waivers in those sections of chapters 54 and 55 of the Education CodepertainingtoTheUniversity of Texas System or its component institutions: Education Code sections 54.503(e), .513(h), and 55.16. Each of these provisions permits the governing board of an institutionof higher education towaivethe fee authorized bythat sectiononlyifimpositionof the fee would cause undue tinancial hardshipto the student. Moreover,each ofthese provisions limits the number of students for whom the board may waive the fee to a specitied percentage of the total enrollment. See E&c. Code $8 54.503(e) (tenpercent), 54.51301) (same), 55.16 (fivepercent). 23Again,we find nothing thatprecludesa governing boardfromchanging a compulsory fee to a volmmuy fee.

24Weareunawareofany provision in Education Codechapters54 and 55 thatpennits a goveming boardto waive a voluntary fee in any cir cumsmnes, butthe legislature is free, of course, to enact a waiverprovision inthe future.

2sS.seFduc. Code 55 54.503(b) (student services fee), .5061(c) (student services foes in UniversityofHouston System), .513(c) (studentservicefeesatUniversity ofTexas atAustin).

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will be compulsory.26 The legislature has not stipulated whether the remaining discretionary fees are to be compulsory, voluntary, or within the governing board’s power to decide. Nevertheless, we believe the legislature enacted these statutes to permit a university to raise substantial sums of money for large projects or for the maintenance of existing facilities. In addition, the language of most ofthe provisions indicates a legislative intent that, ifa governing board imposes a discretionary fee, it must charge every registered student. Most of the statutes, for example, direct the governing board that chooses to impose a particular fee, to charge “each student,“27 or on a “per student” basis.28 In our opinion, therefore, where the legislature has not stipulated that a discretionary fee must be compulsory, voluntary, or the governing board’s choice, the fee must be compulsory.
With this discussion of the tuition and fee scheme the legislature has devised, we turn to your specific questions. In his first question, Dr. Cunningham asks generally whether the governing board of The University of Texas System may waive all or part of tuition or fees for a particular student or a particular group of students. As we have explained, a governing board may waive a fee, whether mandatory or discretionary, only if the legislature expressly has allowed a waiver.2g The university may not, of course, impose a voluntary fee upon a student who will not use the service.

We turn to Dr. Cunningham’s second question, inwhich he asks whether the board may “adopt a policy” waiving all or parts of certain fees for all members ofthe faculty and staff as well as their families, who wish to enroll at the component institution that employs the faculty or stalf member. Again, a governing board may not waive any fee unless the board is expressly authorized to do so. Accordingly, we conclude the board may not waive the collection of fees from a faculty or staff member or a member of a faculty or staff member’s family ifthe individual enrolls in a component institution unless the waiver is statutorily authorized.30

We believe our answer to Dr. Cunningham’s second question is supported by sections 54.059 and 54.063 of the Education Code, which provide that a teacher, professor, teaching assistant, research assistant, or a member of the family of a teacher, professor, teaching assistant, or research assistant are entitled to register as residents and pay the lower fees charged to residents ofthe state, even though the student does not qualii as a

W-ze id. 5 54.507(a).
27See,e.g., id. $8 54.5085, .509, ,520, .538.
2*.%x, e.g., id. $5 54.512, ,522, ,534.
2ySeeid. $5 54.503(e), .513(X),55.16.

SoTheboardmay,ofcourse,exemptfromthepaymemofcertainfees a facultyorstaffmemberor amemberofthefamily ofafacultyorstaffmemberifthe studentis within one ofthe exemptions listed in chapter54, subchapterB.

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resident under section 54.052. Ifaboard of an institution ofhigher education might waive the collection of certain fees from these individuals, sections 54.059 and 54.063 would be meaningless. But we must presume that the legislature intended to enact a meaningful statute.31

Dr. Cunningham’s third question asks again whether the board may waive fees for
a faculty or staff member who enrolls for a particular course at the component institution that employs the faculty or staffmember, but he adds the condition that the board feels the
course work will enhance the faculty or statf member’s ability to perform his or her duties. Regardless of the purpose of the waiver, the board may not waive the collection of fees from a faculty or staff member unless the waiver is statutorily authorized. Of course, the legislature may pass legislation to authorize such waivers, and the other waivers about which Dr. Cunningham asks, ifit chooses to do so.
Senator Zatlirini asks whether the governing board of an institution of higher education may waive medical service fees for active-duty military personnel who will not use the services. In line with our conclusions above, a governing board may not waive a fee for a student because the student will not use the services. If the fee is voluntary, of course, students who will not use the service are not charged. Again, the legislature may pass legislation to authorize the waiver ofmedical service fees for active-duty military personnel who will not use the services ifit chooses to do so.

3t.Yee67 TEX. RJR. 3D Statutes 8 133, at 738 (1989). Section 51.908(a) of the Education Code authorizes the boardto “establish faculty compensation policies that, to the greatestextent possible, provide the fkulty of the institution with an averagesalaryandbenefits at least equal to the average of that providedby similarinstitutions nationwide having asimilarrole and mission.” ln ouropinion, regardless ofwhether similarinstitutions nationwide waive tuition and certainother fees, as abenefit totheir faculty andstaffmembers,forthose faculty andstaffmembersandtheirfamilymemberswho attendclasses atthe institution, chapters 54 and 55, readas a whole, preclude the boardfromestablishing, as abenefit to its employees, a policy waiving the collection of fees fromthe employees or membersof their families. See Gov’t Code 5311.026(b) (providing that, if general statute irreconcilably conflicts with special statute, 8phil statuteprevailsasexception to general statute).

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SUMMARY

Attorney General Opinion H-1028 (1977) has been superseded by amendment to Education Code section 54.503. Unless a statute explicitly permits the waiver, a governing board may not waive any fee created by chapter 54 or 55 of the Education Code. A university may not charge a discretionary, voluntary fee of a student who will not use the service the fee is designed to subsidize. Where the legislature has not stipulated that a discretionary fee must be compulsory, voluntary, or the governing board’s choice, the fee must be compulsory.
Unless it is expressly authorized by statute, the board of regents of The University of Texas System may not adopt a policy waiving the collection of compulsory fees from faculty and staff members who enroll in courses at the institution that employs them. Similarly, without express statutory authority, the board may not adopt a policy waiving the collection of compulsory fees t?om members of the f&ilies of faculty and staff members who enroll in classes at a component institution. As to individual faculty or statf members or individual members of the families of faculty or staff members, the board may waive the collection of fees as expressly authorized by statute.
The governing board of an institution of higher education may not waive a medical service fee for active-duty military personnel because the students will not use the services.

DAN MORALES Attorney General of Texas

JORGE VEGA Fist Assistant Attorney General
SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Kymberly K. Oltrogge Assistant Attorney General

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