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 

1607 Main St., Suite 1400 

Dallas, TX. 75201.4709 

2141742.6944 

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El Paso, TX. 799052793 

9151533.3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002.6966 

7131650-0666 

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Lubbock, TX. 79401.3479 

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McAllen, TX. 76501-1665 

5121662.4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 76205.2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Honorable George W. McNiel, C.P.A. 

State Auditor 

Sam Houston Office Building 

Austin, Texas 78711 

Opinion No. MW-518 

Re: Whether student services 

listed in section 54.503 of 

the Texas Education Code may 

be funded with appropriated 

funds 

Dear Mr. McNiel: 

You request our opinion concerning the funding of student 

services. Section 54.503 of the Texas Education Code defines student 

services as follows: 

(a) For the purposes of this section, 

'student services' means activities which are 

separate and apart from the regularly scheduled 

academic functions of the institution and directly 

involve or benefit students, including textbook 

rentals, recreational activities, health and 

hospital services, medical services, automobile 

parking privileges, intramural and 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 term does not include services for 

which a fee is charged under another section of 

this code. 

Section 54.503(b) authorizes the governing board 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, 

legislative appropriations for educational and general purposes may be 

used to support student services activities. 

We find no general law which bars the expenditure of appropriated 

funds on student services as defined by section 54.503(a) of the 

p. 1876 
. - 

Honorable George W. McNiel - Page 2 (MW-518) 

Education Code. However, the following appropriations act provision 

is relevant to your question: 

'Elements of Institutional Cost.' The costs 

included in the various items appearing in the 

appropriations for the several academic 

institutions shall be 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 

Offices unless otherwise provided by 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 institutional costs." It also states as follows: 

Excluded from these elements and definitions are 

student services for which the Legislature has 

authorized fees under Section 54.503, Vernon's 

Texas Education Code, and all auxiliary enterprise 

operations and costs related thereto. 

Executive and Legislative Budget Offices, Instructions for Preparing 

and Submitting Appropriations Requests for Fiscal Years 1982 and 1983, 

Agencies of Higher Education: General Academic Teaching Institutions, 

at 4. In our opinion, article III, section 4b of the current 

appropriations act bars the expenditure of appropriated funds on 

student services as defined by section 54.503, Education Code, unless 

otherwise provided by the terms of the General Appropriations Act. 

You also ask whether constitutional ad valorem tax funds may be 

used to construct facilities which in part provide student services. 

Article VII, section 17 of the constitution establishes an ad valorem 

tax fund for the construction of college buildings. The constitution 

expressly provides that "none of the proceeds of this tax shall be 

used for auxiliary enterprises." 

p. 1077 
. - 

Honorable George W. McNiel - Page 3 (MW-518) 

As noted in Attorney General Opinion H-1248 (1978), the language 

forbidding the use of article VII, section 17 proceeds for auxiliary 

enterprises was 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 following provision in the Higher Education Coordinating 

Act of 1965: 

'Educational and general buildings and 

facilities' means buildings and facilities 

essential to or commonly associated with 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) (language should be given meaning with 

which it was used by legislature). 

We note that section 61.003(13) distinguishes between buildings 

for auxiliary enterprise and buildings "essential to or commonly 

associated with teaching, research, or the preservation of 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 

preservation of knowledge. In certain clear-cut cases this office has 

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 investigated and 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 

Education Code. 

SUMMARY 

A rider to the current appropriations act 

prevents the expenditure of legislative 

p. 1878 
Honorable George W. McNiel - Page 4 @W-518) 

appropriations for the student services defined in 

section 54.503 of the Texas Education Code. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Susan L. Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Rick Gilpin 

Jim Moellinger 

p. 1879