Hon. George W.McNiel

State Auditor SamHouston Building Austin, Texas 78711 Dear Mr. McNiel: Opinion No. M-1134 Re: Computation of semester credit hours at public junior colleges for state aid purposes andrelated questions. Your request for anopinion from this office regarding the captioned matter asks the following:

"1. Dothe provisions of Paragraph 3(c), Section 16, Article IVof Senate Bill No. 11, Acts 62nd Legislature, R.S., 1971 (as amended by Senate Bill No. 7, 1st C.S., 6ZndLegislature, 1971)l requiring collection of tuition in full on or before the twelfth class day as specified meanthat all semester credit hours for which the student is enrolled should be deducted from the number of semester credit ho:ars reported for State aid purposes if tuition is not collected in full! or should only the number of semester credit hours for which tuition has not been collected be deducted in instances where there is a partial collection of tuition? 2 Are wecorrect in assuming that the provizions of Paragraph 3(c) Section 16, Article IVof Senate Bill NoI 11, Acts 62nd Legislature, R.S., 1971 (as amendedby Senat Bill No. 7, 1st C.S. 62nd Legislature, 1971)2 donot apply to vocational-technical contact hours reported for funding through the Texas Central Education Agency under provisions

' This is the current General Appropriation Act. Para. 3(c) is at p, 3692, IV-20, of the official bound vol. of the Session Laws. 2See footnote 1 -5521-..- --.-- ._-- ,,., --,.~,-..,- . ~._~._-._

Hon. George W.McNiel, page 2 (M-1134)

of Section 1, Article IV, Senate Bill No. 11, Acts 62nd Legislature, R.S., 1971 (as amended by Senate Bill No. 7, 1st C.S., 62nd Legislature, 1971)?3

“3. In instances where ,agoverning board establishes tuition in amounts which are greater than the rates specified in Section 54.051, Texas Education Code, but the institution fails to collect such amount in full as set by the governing board but does collect at least as muchas the amount required under Section 54.051, Texas Education Code, should anyportion of such semester credit hours be disallowed for State aid purposes?” As afinal inquiry you have stated that in relation to the above, you “have observed anumber of clerical errors in computing the amount of tuition due” andinquire whether the college forfeits that which it has not collected in full, as required? on or before the twelfth class day of the fall semester of each fiscal year.

,In connection with your audit responsibilities, weanswer your questions as follows:

For purposes of state-aid appropriations, all semester credit hours in academic courses m which astudent is enrolled shall be deducted from the number of semester credit hours so reported by apublic junior college unless the entire tuition (as set bythe governing board of the institution) is collected in full by the institution on or before the twelfth class day of the fall semester of the fiscal year, tuition fees received for vocationaltechnical courses not to be included in the report for such funding. Your letter indicates that your office has interpreted the provisions of Paragraph 3(c) to meanthat if astudent’s tuition wasn’t paid in full bythe twelfth day as specified, the entire number of semester credit hours for which the student was enrolled were to be deducted from the number of semester credit hours reported

3At p. 3673, IV-l, et seq., of the official Session Laws. -5522-i

. .

Hon. George W.McNiel, ,page 3 (M-1134,)

for state aid purposes even though someportion of the tuition hadbeen paid. Wehold this interpretation is correct.

Theconstruction given Paragraph 3(c) by the State,Auditor is entitled to great weight. This canon of construction is stated as follows :

“The courts will ordinarily adopt anduphold aconstruction placed on astatute by anexecutive officer or department charged with its administration, if the statute is ambiguous or uncertain, and if the construction so given it is reasonable. In other words,,the’ judiciary will adhere to the executive or departmental construction of anambiguous statute unless it is clearly erroneous or unsound, or unless it will result in serious hardship ‘or injustice,

. though the court might otherwise have been,Inclined to place adifferent construction on the act:” 53Tex.Jur.2d 259-60, Statutes, Sec. 177. See also, Armco Steel Corp. v. Texas Employment Commission, 386 S.W.2d 894,(Tex.Civ,App.l965, error ref. ,n.r.e.); United States v. 525 Company 242F.2d 759‘(5th Cir. 1965) andAttorney General’s Opinions Nos. M-1029 (1971) andM-1050 (1972).

‘Thelanguage of Paragraph 3(c) (with certain exceptions therein s,pecified) is quite explicit in requiring the public junior college to collect in full onor before.the twelfth class day of the fall semester 

### the amounts its governing board has set ‘for tuition; There are noprovisions giving you authority to credit the school for those hours taken by the student for which the institution has partially collected tuition, anddeducting those hours for which tuition has not been,collected on or before the twelfth class day of the fall semester.

Yours is areasonable interpretation of the statute to accomplish the purposes for which it is intended; and, in view of its plain language, as,heretofore mentioned, your construction and interpretation is sound andshould be followed.

Accordingly, if the institution has not collected that tuition (as set by its governing board) ,infull on or before the twelfth calss day of the fall semester for which astudent is enrolled, then all semester credit hours for whic,h that student is enrolled shalI-6e deducted from the report for state aid purposes. This answers both your first andthird questions. -5523-Hon. George W.McNiel, page 4 (M-1134)

Your second question asks whether the provisions of Paragra,ph 3(c), Section 1, Article IVof Senate Bill No. 11, Acts 62nd Leg., R.S. 1971, apply to vocational-technical contact hours reported for funding through the Texas Central Education Agency. Your letter states that your interpretation has been that it does not. Weconcur for the samereasons based on the authorities wehave cited.

Article IV, Section 15Item 21of the General Appropriation Act of 19714 provides that those approved vocational-technical courses must be financed by funds appropriated therefor and administered bythe Central Education Agency. Theprovisions of Paragraph 3(c) are intended to give the Legislature amethod by which it can inform itself of certain’matters with reference to appropriations for the needs of the public ,junior colleges as to its financial burdens based upon student enrollment for academic semester credit hours. Thevocational-technical courses offered in terms of contact hours generated are funded elsewhere in the General Appropriations Act andare based upon anentirely different method of reporting.

Therefore, the provisions of Paragraph 3(c) donot apply to vocational-technical courses that are funded through the Texas Central Education Agency.

Your final inquiry concerns failure to comply with the statute by reason of “clerical errors.” This directory statute does not declare anautomatic forfeiture or loss of sumsby the college where its. failure to collect in full is due to mere unintentional clerical errors. Forfeitures andpenalties are favored neither in lawnor in equity and are to be strictly construed! and a “construction of statutes so as to impose forfeitures for violation of civic andpublic obligations is not favored” and “statutes will be interpreted so as to prevent, rather than to cause, a forfeiture. ” 25Tex.Jur.Zd 511, Forfeitures, Sec. 11, P, 502, Sec. 3. Wenote that the general rule, is “

. . . that administrative authorities have power to correct clerical errors in their determinations, andto

. . , modify themon the grounds of fraud or imposition, mistake,

. . . inadvertence. , .‘I 42Am.Jur. 537, Public, Administrative Law, Set,. 174. Thelegislative intent concerning clerical errc

4At p. 3676, IV-4.

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Hon. George W.McNiel;~page 5; (M~1134) ~,

in the handling of public funds is madeclear in Article’V, Section 55of the current General Appropriations Act. (Chap. 1047, General and Special Laws, 62nd Leg., R.S. 1971, at page 3815, V-54). It is there provided for correction by transfer to the correct fund whenclerical errors result in anymoneys being deposited into incorrect funds in or with the State Treasury or in atrust or suspense fund. Inview of all of, the.foregoing considerations, it is our opinion that the State Auditor may, in the case such errors transfer of of-such clericai errors, allow the colleges to correct

andpermit the proper amount to be collected, anda funds to the proper fund to be effected.

SUMMARY 1. Where there has been only apartial collection of tuition by apublic junior col,lege on or before the twelfth c1as.s da,yof the fall semester, all semester credit hours for which the student is enrolled shall be deducted from the State Auditor’s report for state aid purposes. 2. Theprovisions of Article IV, Section 16, Paragraph 3(c) of the current General Appropriations Act (Acts 1971, 62nd Leg.) donot apply to vocationaltechnical courses reported for funding through the Texas Central Education Agency. 3. In instances where apublic junior college collects as tuition anamount at least as muchas required by Sec. 54.051, Texas Education Code, but fails to collect in full onor before the twelfth class day of the fall semester the amount of tuition as set by its governing board, al,1 semester credit hours for which the student enrolled shall be deducted from the State Auditor’s report for state aid purposes; unless such failure was caused by clerical error, mistake or inadvertence. truly yours,

L!2?2%= yGeneral of Texas Prepared by Bill Campbell Assistant Attorney General -5525-.

Hon. George W.McNiel, page 6 (M-1134)

APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman W.E. Allen, Co-Chairman James,McCoy Scott Garrison Sig Aronson James Quick SAMUEL

D. MCDANIEL Staff Legal Assistant ALFREDWALKER Executive Assistant NOLAWHITE First Assistant

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