January 3, 1989 

Honorable Carl A. Parker 

Chairman 

Senate Education Committee 

Texas State Senate 

P. 0. BOX 12068 

Austin, Texas 78711 

Opinion No. JM-1002 

Re: Authority of the Texas 

Higher Education Coordinating Board over proprietary 

schools which confer only 

non-academic degrees, and 

related questions (RQ-1536) 

Dear Senator Parker: 

You ask: 

1. Does the TEA have exclusive jurisdiction over proprietary schools which confer 

only non-academic degrees, such as AAA, AAS 

and Associate of Occupational Studies ('AOS') 

degrees? 

2. Does the authority of the Coordinating 

Board extend beyond the scope of its authority under Chapter 61 of the Texas Education 

Code to proprietary schools which confer only 

non-academic degrees, such as AAA, AAS and 

AOS degrees? If so, what is the statutory 

basis for extending the jurisdiction of the 

Coordinating Board beyond institutions of 

higher education? 

3. If the TEA does have exclusive jurisdiction over proprietary schools, can the TEA 

abdicate its duty to supervise and regulate 

proprietary schools, which has been specifically entrusted to it by the legislature, by 

delegating such responsibility to the Coordinating Board, an entity that has no express 

statutory authority for that responsibility 

and that is statutorily limited in its authority solely to those matters which the 

legislature has expressly entrusted to it? 

p. 5144 
Honorable Carl A. Parker - Page 2 (JM-1002) 

Your request indicates that by "TEA" you mean the Texas 

Education Agency,. or Central Education Agency, as it is 

referred to by statute, and by Coordinating Board you mean 

the Texas Higher Education Coordinating Board. The AAA and 

AAS degrees referred to are the Associate of Applied Arts 

and Associate of Applied Science degrees offered by certain 

private educational institutions in this state. 

We understand that your request was prompted by a 

proposed agreement between TEA and the Coordinating Board 

that such degree programs would be subject to the requirements of chapter 61, subchapter G, of the Education Code, 

section 61.304 of which provides that: 

[a] person may not grant or award a degree on 

behalf of a private institution of higher 

education unless the institution has been 

issued a certificate of authority to grant 

the degree by the [Coordinating Board] in 

accordance with the provisions of this 

subchapter. 

Subchapter G of chapter 61 of the Education Code was 

enacted in 1975. Acts 1975, 64th Leg., ch. 587, at 1867. 

It appears that from the time of that enactment in 1975 

until 1981, the Coordinating Board issued certificates of 

authority pursuant to subchapter G for such associate 

degrees. In 1981, the Coordinating Board amended its administrative rules to provide that such **non-academic'N associate degree programs would no longer be under the jurisdiction of the Coordinating Board, leaving proprietary schools 

offering such degrees under the. jurisdiction of the TEA 

under the Proprietary School Act, Education Code, chapter 

32.l 

1. Section 61.311, provides: 

(a) The board shall promulgate standards, 

rules, and regulations governing the issuance 

of certificates of authority. 

(b) The board may delegate to the commissioner such authority and responsibility 

conferred on the board by this subchapter as 

the board deems appropriate for the effective 

administration of this subchapter. 

P. 5145 
Honorable Carl A. Parker - Page 3 (JM-1002) 

The number of schools offering such associate degrees 

has apparently grown from three in 1981 to more than 25 in 

1988. It is now proposed that the Coordinating Board take 

back jurisdiction over AAA and AAS programs. 

Chapter 32 of the Education Code, the Texas Proprietary 

School Act, provides that the TEA "shall exercise jurisdiction and control" of proprietary schools. Educ. Code 

5 32.21. "Proprietary school '1 is defined in section 32.11, 

subdivision (1) as: 

'Proprietary School,' referred to as 

'school,' means any business enterprise 

operated for a profit, or on a nonprofit 

basis, which maintains a place of business 

within the State of Texas, or solicits 

business within the State of Texas, and which 

is not specifically exempted by the provisions of this Chapter and; 

(A) which 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 or 

persons 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, except as hereinafter excluded. 

Subchapter G of chapter 61, section 61.304 of which 

provides that degrees may not be awarded by a "private 

institution of higher education" unless the institution has 

obtained a certificate of authority from the coordinating 

board, defines "private institution of higher education" as 

follows, at section 61.302 subdivision (2): 

'Private institution of higher education' 

or 'institution' means an educational institution which: 

(A) is not an institution of higher 

education as defined by Section 61.003(7) of 

this code: 

(B) is incorporated under the laws of this 

state, maintains a place of business in this 

p. 5146 
Honorable Carl A. Parker - Page 4 (JM-1002). 

state, has a representative present in this 

state, or solicits business in this state: 

and 

(c) furnishes or offers to furnish courses 

of instruction in oerson. bv electronic 

media, or bv corresnondence leadina to a 

decree or nrovidina credits alleaed to be 

anolicable to a dearee. (Emphasis added.) 

"Degree" is defined in subdivision (l), section 61.302, as 

follows: 

(1) 'Degree' means any title or designation, mark, abbreviation, appellation, or 

series of letters or 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 

or part of a program of study leading to an 

associate, bachelor's, masterIs, or doctor's 

degree or its equivalent. (Emphasis added.) 

Your questions distinguish between t'academic'* and Wonacademic" degrees, suggesting that subchapter G, chapter 61 

provisions are directed at only academic degrees. The distinction between academic and non-academic degrees is not 

made in the Education Code or elsewhere in applicable Texas 

statutes. In 1981, the Coordinating Board amended its administrative rules to make such a distinction at the time it 

relinquished its authority over applied, or non-academic, 

associate degrees. The definition of "degree," now in 19 

T.A.C., section 5.211, was at that time narrowed to encompass only degrees issued to signify completion of an "academic degree-level program." 6 Tex. Req. 1600 (1981). What 

is now subsection (c) of 19 T.A.C., section 5.213, was 

amended at that time to provide that the board would not 

accept applications for certificates of authority pertaining 

to a program "not generally in use and accepted as an academic degree program." u. 'These amendments were effective 

August 7, 1981. 6 Tex. Req. 2644 (1981). 

Presumably the rules limiting Coordinating Board authority under chapter 61 to "academic degrees" will be 

amended if and when the Coordinating Board reasserts its 

jurisdiction over non-academic associate degrees such as the 

AAA and AAS degrees. We find nothing in chapters 32 or 61 

of the Education Code or other provisions of Texas law which 

would prevent the board from subjecting proprietary school 

p. 5147 
Honorable Carl A. Parker - Page 5 (JM-1002) 

non-academic associate degrees to the requirements of 

chapter 61, once the appropriate rule changes are made. 

We note that you do not ask about and we do not address 

the validity of the 1981 rule changes made by the board2 or 

the validity of any particular rule the Coordinating Board 

might adopt to reassert its jurisdiction over the proprietary school associate degree programs in question. 

Just as Texas statutes make no distinction between 

academic and non-academic degrees, no distinction is made 

between associates degrees which are llapplied,lt such as the 

AAA and AAS degrees, or not "applied." The definition of 

degree in chapter 61 encompasses any "degree" having in its 

designation the word "associate." 

The legislature evidenced its concern that the use of 

such a designation be regulated by the Coordinating Board 

"to prevent deception of the public resulting from the 

conferring and use of fraudulent or substandard college and 

university degrees." Educ. Code 5 61.301. We do not think 

that the fact that a school is a proprietary school, which 

may not be a college or university in the ordinary sense, 

supports the conclusion that it is not the sort of institution at which chapter 61 is directed, if the school fits 

within the definition of a "private institution of higher 

education," chapter 61, on its face, makes it subject to 

board control vis a vis its awarding of degrees. 

Your request and a brief submitted in connection with 

your request by a law firm representing the Texas Association of Private Schools argue that section 61.070 of the 

Education Code indicates that the Coordinating Board was 

granted no statutory jurisdiction over proprietary schools 

awarding applied associate degrees. Section 61.070 provides: 

None of the duties or functions assigned 

by statute to the central education agency, 

2. But see subsection (b) of section 61.311 

authorizing the board to delegate subchapter G 

responsibilities to the Commissioner of Education, who is 

executive officer of the TEA pursuant to sections 11.51 et 

sec(. of the Education Code. The text of section 61.311 is 

reprinted in footnote 1 of this opinion. 

P. 5148 
Honorable Carl A. Parker - Page'6 (JM-1002) 

except those relating to public junior 

colleges, are affected by this chapter. 

However, we find no statute, either in the Proprietary 

School Act or elsewhere, which assigns the duty or function 

to the TEA of authorizing proprietary schools to grant 

particular degrees. The administrative rules discussed 

above might have been adopted with the intention of relinquishing such duties or functions to the TEA, but those 

rules are not *!statutes" within the meaning of section 

61.070. 

Briefs submitted in connection with your request also 

argue that Attorney General Opinion M-143 (1967) distinguished academic and non-academic degrees or certificates in 

concluding that a state law requiring students to complete 

American history and government courses in order to obtain a 

"baccalaureate" or "lesser degree or academic certificate" 

did not apply to Wocational or technical course certificates given for courses approved by or subject to approval 

of the State Board of Vocational Education." Attorney 

General Opinion M-143 (1967), at 7. However, we do not find 

in that opinion any authority for making such distinctions 

among *8deqrees1' under chapter 61. The definition of "degree" in section 61.302 makes no such distinction. Notably, 

the provisions of chapter 61 were not enacted until eight 

years after the issuance of Attorney General Opinion M-143. 

Accordingly, we conclude in response to your first 

question that the TEA does. not have exclusive jurisdiction 

over proprietary schools which confer only non-academic 

degrees such as AAA, AAS,. and Associate of Occupational 

Studies Degrees. Where a proprietary school, as defined in 

section 32.11 of the Education Code, also fits the definition of a "private institution of higher education" under 

section 61.302, we think that it is subject to the reguirement of chapter 61, that it may not award degrees until it 

has been issued a certificate of authority by the Coordinating Board to grant such degrees, including applied associate 

degrees. 

your second question asks whether the Coordinating 

Board's authority extends beyond the scope of its authority 

under chapter 61 to proprietary schools which offer such 

degrees. We find that the Coordinating Board has such 

authority under ChaDter 61 itself pursuant to the provisions 

of that chapter cited and discussed above. Though such 

schools may fit the definition of "proprietary schoolsl' 

under chapter 32, to the extent that they also fit the 

definition of "private institutions of higher education" 

I 

P. 5149 
Honorable Carl A. Parker - Page 7 (JM-1002) 

under chapter 61, they are subject to the requirement of 

that chapter providing that they may not award degrees 

unless they have been issued a certificate of authority by 

the Coordinating Board. Educ. Code § 61.304. 

Your third question assumes that the TEA has exclusive 

authority over proprietary schools. As we have concluded in 

our responses to your first two questions that the TEA does 

not have exclusive authority over those proprietary schools 

that are also "private institutions of higher education" 

within the meaning of chapter 61, section 61.302, we need 

not answer your third question. 

SUMMARY 

Proprietary schools which offer applied 

associate degrees and which otherwise meet 

the definition of "private institutions of 

higher education" under Education Code section 62.302 are subject to the requirement of 

section 61.304 that they may not award such 

degrees without having obtained a certificate 

of authority from the Texas Higher Education 

Coordinating Board. 

, ve-l/zyh 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAXLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

p. 5150