## THE AITCDRNEY GENERAL

OF TEXAS

August 22, 

## 1968

Honorable J. W. Edgar OpinionNo. M-272 Commissioner of Education Texas EducationAgency Re: Whether the Rio Grande InAustin, Texas dependentRehabilitation District has authority to waive all fees and tuition rates under the provisions of Article 2675k,Vernon's Civil Statutes, in order to be eligible for financial assistanceunder PublicLaw 81-815, Title I, of Public Law 81-874, and also Title I of the Elementaryand Dear Dr. Edgar: SecondaryEducation Act.

In your request for an opinionyou state the following:

"TheRio Grande IndependentRehabilitation District (createdand operatingunder Article 2675k,V.C.S.) has made application to the U.S. Department of Health, Education, and Welfare (HEW) for federal fundsunder Title I, Elementary and SecondaryEducation Acts, 1965 and may obtain considerable financial assistance also under P.L. 81-815, Title I of P.L. 81-874. Approval of the grants thereunderby H.E.W., however, is stymied and is being delayed by reason of the provision currently In Section 7(l)(2) of Article 2675k which specificallyauthorizes the rehabilitation schooldistrict to fix fees and tuition on parents of pupils residing In that district.

"Therecent special session of the Legislature in 

## 1968

was confined to thematter for which it was called. Therefore, contemplatedattempts then to have Section 7(i)(2) amended to cure the problem were thwarted. There being only one such district createdunder Article 2675k, it is anticipated that passage of suchproposed amendment

- 1315 -Hon. J. W. Edgar, page 2 (M-272)

in the early part of the-regular session,January 1969, will be securedunprotested.

'OnJuly 11, 1968 the Board of Trustees of the rehabilitationdistrict ad0pted.a resolution,
a copy of which we forwardherewith, stating in effect that it never intendednor does It intend in the future to charge such tuition and that efforts in January will be exerted to have the law amended to cure the impediment involved, to satisfy the conditions set out by H.E.W. for making the district eligible for the desired federal assistance. With letter of transmittal dated July 13, the resolutionwas forwarded to H.E.W. We enclose also herewith the response receivedby the district on July 25, 1968 which Is self-explanatory.

“TheBoard of Trustees of the Rio Grande IndependentRehabilitationDistrict, through its counsel,has askedme to obtain an opinion from the Office of Attorney General on the following question:

“‘Underthe facts submitted,does the~re-~ habilitatlon schooldistrict (Rio Grande,I.R.D.) legallyhave authority to provide the assurance that such fees and tuitionwill 'notbe charged during the useful life of any equipment or facilities or of the duration of any program which may be acquired or financedwf;thsuch funds from the federal government?'

In the July 25, 1968 letter,H.E.W. requested that the Rehabilitation District obtain an opinion from the Attorney General'sdepartment on the above quoted question.

Section 7(i)(2) of Article 2675k,Vernon's Civil Statutes,provides that the board of directors of a Rehabilitation District is empowered and required to "Fix such fees and tuition rates as are deemed necessary to supplementother sources of funds formaintaining and operating the District in carrying out its functions,with authorityhowever, to reduce fees and tuition, or waive these altogether, in caseswhere the parents or guardians of trainees are able to pay a portion only or none of such tuition
or fees, in the judgment of the Board of Dfrectors, or in the judgment of an agency createdby ,theBoard of Directors to determine suchmatters.

. . .'

-1316-Hon. J. W. Edgar, page 3 (M-272)

Generally the powers of anadministrative agency are derived entirely from legfslativeenactment. The agency has only suchpowers as are expressly conferred on it by statute altogetherwith those necessarily implied from powers and duties expressly given or Imposed. Although a statute conferringadminis; trative authoritywill generallybe liberally construed, the agency must not go beyond the~clear intent of the Legislature. Stauffer.

v. City of San Antonio, 344 S.W.2d 158 (Tex.Sup.1961); 1 Tex.Jur. d b52, AdministrativeLaw, etc., g 6.

The waiver of tuition and fees by the Board of Directors of the School District would not bind the successorBoard of Directors unless the statute authorfzes suchwaiver. We find nothing in the statute conferring such a power,which is discretionaryby nature and must be exercised anew from year to year with changing conditions. It is generally held that a schoolboard cannot bind the board or itsmembers to take anv SDeCified action on ans auestion which may come before It in the future, Miller v. Alsbaugh, 2 S.W.2d 208 (Mo.App. 1928);Murphy v. City of Cambridge, 342 Mass. 339, 173 N.E.2d 616 (1961);Lath v. DeFigio, 19 Fay. L.J. 12, 9 D&C2d 326.
Furthermore, in enacting Section 7(i)(2) of Article 2675k, it is clear that the Legislaturedid not intend for the Board of Directors of a Rehabilitation District to waive such tuition and fees from parents or relatives of traineeswho are financiallyable to pay the same. Unless the statute authorizes the Board to waive those charges for tuition and fees, the Board is without power to waive them. We are, therefore, compelled to
answer your question in the negative.

SUMMARY

Under the provisions of Sec. 7(i)(2) of Art. 2675k, Vernon's Civil Statutes, the Board of Directors of the Rio Grande IndependentRehabilitation District is empowered and required to fix such fees and tuition rates as are necessary to supplement other sources of funds formaintaining and operating the District In carrying out its functions and said Board is not authorized to waive such fees and tuition from parents or relatives of trainees who are financiallyable to pay such tuition or fees or to waive such charges in the future so that such action would be binding on successorBoards of Directors.

-1317-Hon. J. W. Edgar, page 4 (M-272)

truly yours,

dW& C. MARTIN ney General of Texas
Preparedby Jack Sparks AssistantAttorney General

APPROVED: OPINION COMMI!TTEE

Hawthorne Phillips, Chairman Kerns'Taylor-Co-Chairman Richard Chot6 CharlesRose Dyer Moore, Jr. Alan Minter

A. J. CARUBBI,JR. ExecutiveAssistant

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