# The Attorney General of Texas

October 19, 1982
MARK WHITE Attorney General

Supreme Court Building P. 0. Box 12546 Austin. TX. 76711. 2546 5121475-2501 Telex 9101674.1367 Telecooier 512,475.0266

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An Equal Opportunity/ Affirmative Action Employer HonorableGeorgeW. McNiel, C.P.A. StateAuditor SamHouston Office Building Austin, Texas 78711 OpinionNo. MW-518

Re: Whether student services listed in section 54.503 of the Texas Education Code may be funded with appropriated funds

DearMr. McNiel:

You request our opinion concerning the funding of student services. Section 54.503 of the Texas Education Code defines student servicesas follows:

(a) For the purposes of this section, 'student services' means activities which are separate and apart from the regularly scheduled academic functionsof the institutionand directly involve or benefit students, including textbook rentals, recreational activities, health and hospital services, medical services, automobile parkingprivileges, intramuraland 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 governing board of the institution of higher education. The termdoes not include services for which a fee is charged under another section of this code.

Section 54.503(b) authorizes the governingboard of an institution of higher education to collect from students fees to cover the cost of student services. You wish to know whether, and to what extent, legislativeappropriationsfor educationaland generalpurposesmay be used to support student servicesactivities.

We findno general lawwhich bars the expenditureof appropriated funds on student services as defined by section 54.503(a) of the

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Education Code. However, the following appropriations act provision is relevant toyour question:

'Elementsof InstitutionalCost.' The costs included in the various items appearing in the appropriations for the several academic institutions shallbe considered to be all costs, including salaries, for those functions or activities in 'Definitions of the Elements of Institutional Costs,' Supplement A, of the detailed instruction for preparing and submitting requests by the general academic teaching institutions for legislative appropriations for the biennium ending August 31, 1983, published jointly by the Legislative and Executive Budget Officesunless otherwiseprovidedby the terms of this Act. Bond premiums, Workmen's Compensation Insurance Fund operations, Unemployment Compensation Benefits, insurance premiums where authorized by law, and major repair and rehabilitation of buildings and facilities, in addition to those specifically listed in line items,may be purchased from appropriated funds.

Acts 1981, 67th Leg., ch. 875, art. III, $4b, at 3717. The "Definitions of the Elements of Institutional Costs" referred to in this provision states in considerable detail what constitutes "elements of institutionalcosts." It also statesas follows:

Excluded from these elements and definitions are student services for which the Legislature has authorized fees under Section 54.503, Vernon's Texas EducationCode, and all auxiliaryenterprise operationsand costs related thereto.

Executive and Legislative Budget Offices, Instructions for Preparing and SubmittingAppropriationsRequests for FiscalYears 1982and 1983, Agencies of Higher Education: GeneralAcademic Teaching Institutions, at 4. In our opinion, article III, section 4b of the current appropriations act bars the expenditure of appropriated funds on student servicesas defined by section 54.503, Education Code, unless otherwiseprovidedby the terms of the GeneralAppropriationsAct.

You also ask whether constitutionalad valorem tax funds may be used to construct facilitieswhich in part provide student services. Article VII, section 17 of the constitutionestablishesan ad valorem tax fund for the constructionof collegebuildings. The constitution expressly provides that "none of the proceeds of this tax shall be used for auxiliaryenterprises."

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As noted in Attorney General Opinion H-1248 (1978), the language forbidding the use of article VII, section 17 proceeds for auxiliary enterpriseswas added to the constitution in 1965. See Senate Joint Resolution No. 24, Acts 1965, 59th Leg., at 2197. The same legislative session which proposed the constitutional amendment included the followingprovision in the Higher Education Coordinating Act of 1965:

'Educational and general buildings and

facilities' means buildings and facilities essential to or commonlyassociatedwith teaching, research, or the preservation of knowledge. Excluded are auxiliary enterprise buildings and facilities, including but not limited to dormitories, cafeterias, student union buildings, stadiums.and alumni centers.

Acts 1965, 59th Leg., ch. 12, 51, at 29 (codified at Educ. Code §61.003(13)). This contemporaneous usage of the term "auxiliary enterprises" indicates the meaning of that language as it appears in article VII, section 17 of the constitution. See Code Construction Act, V.T.C.S. art. 5429b-2, §2.01; Michael v. Michael, 79 S.W. 74 (Tex.Civ. App. 1904,no writ) (languageshouldbe givenmeaning with which itwas used by legislature).

We note that section 61.003(13) distinguishesbetween buildings for auxiliary enterprise and buildings "essential to or commonly associatedwith teaching,research,or thepreservationof knowledge." We believe this distinction further indicates that funds raised pursuant to article VII, section 17 may only be spent for buildings essential to or commonly associated with teaching, research, or the preservationof knowledge. In certain clear-cutcases this officehas been able to inform you whether or not certain projects may be constructed with constitutional ad valorem tax funds. However, in other cases, factual considerations are relevant to the question of whether a building is "essential to or commonly associated with teaching, research, or the preservation of knowledge." (Emphasis added). Since factual questions cannot be investigatedand resolved by means of an Attorney General Opinion, we cannot state a general rule that would answer your question as to whether article VII, section 17 forbids the use of state ad valorem tax funds for each of the student services itemized in article 54.503(a) of the Texas EducationCode.

SUMMARY

A rider to the current appropriations act prevents the expenditure of legislative

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appropriationsfor the student servicesdefined in section 54.503 of the Texas EducationCode.

MARK WHITE Attorney General of Texas

JOHNW. FAINTER,JR. FirstAssistantAttorney General

RICHARD E. GRAY III ExecutiveAssistantAttorney General
Preparedby SusanL. Garrison AssistantAttorney General

APPROVED: OPINION COMMITTEE

SusanL. Garrison,Chairman Rick Gilpin JimMoellinger

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