January 3, 1989

Honorable CarlA. 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 TEAhave exclusive jurisdiction over proprietary schools which confer only non-academic degrees, such asAAA, AAS andAssociate ofOccupational Studies ('AOS') degrees?

2. Does the authority of the Coordinating Board extend beyond the scope of its authorityunder Chapter 61 of the Texas Education Code toproprietary schools which confer only non-academic degrees, such as AAA, AAS and AOS degrees? If so,what isthe statutory basis forextending the jurisdiction of the Coordinating Board beyond institutions of higher education?

3. Ifthe TEA does have exclusive jurisdiction overproprietary schools, can the TEA abdicate itsduty to supervise and regulate proprietary schools, which has been specifically entrusted to itby the legislature, by delegating such responsibility to the Coordinating Board, anentity that has no express statutory authority forthat responsibility and that is statutorily limited in its authority solely to thosematters which the legislature has expressly entrusted to it?

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Your request indicates that by "TEA"youmean the Texas Education Agency,. or Central Education Agency, as it is referred toby statute, and by Coordinating Board you mean the Texas Higher Education Coordinating Board. The AAA and AAS degrees referred to are the Associate ofApplied Arts andAssociate ofApplied Science degrees offered by certain private educational institutions inthis 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 ofwhich provides that:

[a]person may not grant or award adegree 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 61of the Education Code was enacted in 1975. Acts 1975, 64th Leg., ch. 587, at 1867. Itappears 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 toprovide that such **non-academic'Nassociate 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 theboard by this subchapter as the board deems appropriate for the effective administration of this subchapter.

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The number of schools offering such associate degrees has apparently grown fromthree in 1981 tomore than 25 in 1988. It isnowproposed that the Coordinating Board take back jurisdiction overAAA andAAS programs. Chapter 32of 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'1isdefined 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, andwhich isnot specifically exempted by the provisions of this Chapter and;
(A)which offers ormaintains a course or courses of instruction or study: or
(B)atwhich place of business such a course or courses of instruction or study is available through classroom instruction orby correspondence, or both, to a person or persons forthepurpose of training or preparing theperson for a field of endeavor in
abusiness, trade, technical, or industrial occupation, or for avocational or personal improvement, except ashereinafter excluded.
Subchapter G of chapter 61, section 61.304 of which provides that degrees may not be awarded by a "private institution ofhigher education" unless the institution has obtained a certificate ofauthority fromthe coordinating board, defines "private institution ofhigher education" as follows, at section 61.302 subdivision (2):

'Private institution ofhigher education'
or 'institution' means an educational institution which:
(A)is not an institution of higher education asdefined by Section 61.003(7) of this code:
(B)is incorporated under the laws of this state,maintains aplace ofbusiness in this

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state, has a representative present in this state, or solicits business inthis 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 adearee. (Emphasis added.)

"Degree" isdefined in subdivision (l),section 61.302, as follows:
(1) 'Degree'means any title or designation, mark, abbreviation, appellation, or series of letters orwords, including associate, bachelor's, master's, doctor's, and their equivalents, which signifies, purports .to,or isgenerally taken to signify satisfactory completion of the requirements of all
orpart of aprogram 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 atonly academic degrees. The distinction between academic andnon-academic degrees is not made inthe Education Code or elsewhere inapplicable Texas statutes. In 1981, the Coordinating Board amended its administrative rules tomake such adistinction 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." 6Tex. Req. 1600 (1981). What isnow subsection (c)of 19 T.A.C., section 5.213, was amended at that time to provide that the board would not accept applications forcertificates of authority pertaining to aprogram "notgenerally in use and accepted as an academic degree program." u. 'Theseamendments were effective August 7, 1981. 6Tex. Req. 2644 (1981).
Presumably the rules limiting Coordinating Board authority under chapter 61 to "academic degrees" will be amended if andwhen the Coordinating Board reasserts its jurisdiction over non-academic associate degrees such as the AAA andAAS degrees. We find nothing inchapters 32or 61 of the Education Code or other provisions of Texas lawwhich would prevent theboard from subjecting proprietary school

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non-academic associate degrees to the requirements of chapter 61, once the appropriate rule changes aremade.

We note that you donot ask about andwe do not address thevalidity of the 1981rule changesmade by theboard2 or thevalidity ofany particular rule the Coordinating Board might adopt to reassert its jurisdiction over the proprietary school associate degree programs inquestion.

Just as Texas statutes make no distinction between academic andnon-academic degrees, no distinction is made between associates degrees which are llapplied,lt such as the AAA andAAS degrees, ornot "applied." The definition of degree inchapter 61encompasses any "degree" having in its designation theword "associate."

The legislature evidenced its concern that the use of such adesignation be regulated by the Coordinating Board "toprevent deception of thepublic resulting from the conferring anduse of fraudulent or substandard college and university degrees." Educ. Code 5 61.301. We donot think that the fact that a school isaproprietary school, which may notbe a college oruniversity inthe ordinary sense, supports the conclusion that it isnot the sort of institution atwhich chapter 61 isdirected, if the school fits within the definition ofa "private institution of higher education," chapter 61, on its face,makes it subject to board control vis avis its awarding ofdegrees.

Your request and a brief submitted inconnection 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 1of this opinion.

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except those relating to public junior colleges, are affected by this chapter.

However, we findno statute, either inthe 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 abovemight 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 inconnection 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 lawrequiring students to complete American history and government courses inorder 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 donot find inthat opinion any authority formaking such distinctions among *8deqrees1' under chapter 61. The definition of "degree" in section 61.302makes no such distinction. Notably, theprovisions of chapter 61were not enacted until eight years after the issuance ofAttorney General Opinion M-143.
Accordingly, we conclude inresponse to your first question that the TEA does.nothave exclusive jurisdiction
over proprietary schools which confer only non-academic degrees such asAAA, AAS,. andAssociate of Occupational Studies Degrees. Where aproprietary 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 acertificate of authority by the Coordinating Board togrant 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 61to proprietary schools which offer such degrees. We find that the Coordinating Board has such authority under ChaDter 61 itselfpursuant to the provisions of that chapter cited and discussed above. Though such schools may fit thedefinition of "proprietary schoolsl' under chapter 32, to the extent that they also fit the definition of "private institutions of higher education" I

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under chapter 61, they are subject to the requirement of that chapter providing that theymay not award degrees unless they have been issued acertificate of authority by the Coordinating Board. Educ. Code § 61.304.

Your third question assumes that the TEAhas exclusive authority over proprietary schools. Aswe have concluded in
our responses toyour first two questions that the TEA does not have exclusive authority over those proprietary schools that are also "private institutions of higher education" within themeaning of chapter 61, section 61.302, we need not answer your third question.

SUMMARY Proprietary schools which offer applied associate degrees andwhich 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 fromthe Texas Higher Education Coordinating Board.

,ve-l/zyh

JIM MATTOX Attorney General of Texas

MARY KELLER First Assistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAXLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byWilliam Walker Assistant Attorney General

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