ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

September 24,2012 

Raymund A. Paredes, Ph.D. 

Commissioner of Higher Education 

Texas Higher Education Coordinating Board 

Post Office Box 12788 

Austin, Texas 78711-2788 

Dear Commissioner Paredes: 

Opinion No. GA-0969 

Re: Authority of the Texas Higher Education 

Coordinating Board to promulgate a rule that 

would permit a veteran who is entitled to two kinds 

of federal education benefits to be eligible to apply 

for benefits under section 54.341, Education Code, 

based upon the federal program to which the 

veteran opts to apply rather than on the federal 

program which he or she is entitled to use 

(RQ-I053-GA) 

You inquire about the authority of the Texas Higher Education Coordinating Board to 

promulgate a rule that would permit a veteran who is entitled to two kinds of federal education 

benefits! to be eligible to apply for benefits under section 54.341, Education Code, based upon the 

federal program to which the veteran opts to apply rather than on the federal program which he or 

she is entitled to use.2 Under the federal Montgomery GI Bill program known as Chapter 30, 

qualifying veterans are eligible to receive monthly allowance payments "to help meet, in part, the 

expenses of ... subsistence, tuition, fees, supplies, books, equipment, and other educational costs" 

associated with full-time enrollment at any institution of higher education. 38 V.S.c.A. § 3014(a) 

(West 2002). In the Post-9fll GI Bill benefits program known as Chapter 33, educational benefits 

are remitted directly to the university by the federal government, unlike the allowance payments 

under Chapter 30, which are paid directly to recipients. See id. § 3313(h) (West Supp. 2012). 

Federal law precludes veterans from receiving both Chapter 30 and Chapter 33 benefits at the same 

ISee Montgomery GI Bill Act of 1984, Pub. L. No. 98-525, 98 Stat. 2553 (1984) (codified as amended at 38 

V .S.c.A. §§ 3001-36 (West 2002 & Supp. 2012) and 10 U.S.C.A. §§ 708, 2006, 2138, 16136 (West 2010 & Supp. 

2012» ("Chapter 30"); Post-9111 Veterans Educational Assistance Act of 2008, Pub. L. No. 110-252, 122 Stat. 2357 

(2008) (codified as amended at 38 U.S.C.A. §§ 3301-24 (West 2002 & Supp. 2012) and 10 U.S.C.A. § 16132a (West 

Supp. 2012» ("Chapter 33"). 

2See Letter from Raymund A. Paredes, Ph.D., Comm'r, Tex. Higher Educ. Coordinating Bd., to Honorable Greg 

Abbott, Tex. Att'y Gen. at 1 (Apr. 13,2012), http://texasattorneygeneral.gov/opin ("Request Letter"). 
Raymund A. Paredes, Ph. D. - Page 2 (GA-0969) 

time. See id. §§ 3033(a)(l), 3322 (West 2002); 38 C.F.R. § 21.9690 (2011) (Nonduplication of 

Educational Assistance). 

Because a veteran may not receive Chapter 30 and Chapter 33 benefits at the same time, the 

Texas Veterans Commission ("Commission") has asked the Texas Higher Education Coordinating 

Board (the "Board") to adopt a rule based on which benefits the veteran elects to pursue. See 38 

U.S.C.A. §§ 3033(a)(l), 3322 (West 2002); 38 C.F.R. § 21.9690 (2011) (Non duplication of 

Educational Assistance). You ask "whether the Hazlewood Act Exemption permits [the Texas 

Higher Education Coordinating Board] to promulgate rules which would allow a veteran applying 

for the Exemption who is otherwise entitled to [federal] Chapter 33 benefits to not first exhaust his 

or her Chapter 33 benefits." Request Letter at 4. You indicate that the Board is concerned that such 

a rule would conflict with the Board's authority under the Education Code. See id. at 1, 4. 

Under the state Hazlewood Act Tuition Exemption ("Exemption"), veterans of the United 

States military who meet statutory residency requirements are exempt from "tuition, dues, fees, and 

other required charges, including fees for correspondence courses but excluding general deposit fees, 

student services fees, and any fees or charges for lodging, board, or clothing" at state universities and 

institutions of higher education. TEX. EDUC. CODE ANN. § 54.341(a) (West Supp. 2012). The 

Legislature, however, limited the Exemption by providing that it "does not apply to a person who 

at the time of registration is entitled to receive educational benefits under federal legislation that may 

be used only for the payment of tuition and fees if the value of those benefits received ... is equal 

to or exceeds the value of the exemption .... " Id. § 54.341(e). 

The legal issue you present is whether the Board, an administrative agency, has the authority 

to adopt a rule. An administrative agency has only those powers expressly granted to it by statute 

and those necessarily implied from its statutory authority or duties. See Tex. Nat. Res. Conservation 

Comm'n v. Lakeshore Util. Co., 164 S.W.3d 368, 377-78 (Tex. 2005). Accordingly, an "agency 

may adopt only such rules as are authorized by and consistent with its statutory authority." Pruett 

v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447,452 (Tex. 2008) (citation omitted). A court will 

generally defer to an agency's interpretation of the statute it is charged with enforcing, "'so long as 

the construction is reasonable and does not contradict the plain language of the statute. ", R.R. 

Comm'n v. Tex. Citizens for a Saje Future & Clean Water, 336 S.W.3d 619, 625 (Tex. 2011) 

(quoting First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 632 (Tex. 2008)). Here, the Legislature 

expressly authorized the Board to promulgate rules "to provide for the efficient and uniform 

application of [section 54.341]." TEX. EDUC. CODE ANN. § 54.341(i) (West Supp. 2012). Thus, we 

examine the relevant language of section 54.341 . 

Subsection 54.341(e) provides that 

[t]he exemption from tuition, fees, and other charges provided for by 

this section does not apply to a person who at the time of registration 

is entitled to receive educational benefits under federal legislation that 

may be used only for the payment of tuition and fees if the value of 

those benefits received in a semester or other term is equal to or 
Raymund A. Paredes, Ph. D. - Page 3 (GA-0969) 

exceeds the value of the exemption for the same semester or other 

term. If the value of federal benefits that may be used only for the 

payment of tuition and fees and are received in a semester or other 

term does not equal or exceed the value of the exemption for the same 

semester or other term, the person is entitled to receive both those 

federal benefits and the exemption in the same semester or other 

term. The combined amount of the federal benefit that may be used 

only for the payment of tuition and fees plus the amount of the 

exemption received in a semester or other term may not exceed the 

cost of tuition and fees for that semester or other term. 

Id. § 54.341(e). By its plain language, subsection 54.341(e) consistently refers to "benefits 

received." See id. The first sentence's restriction applies "if the value of those benefits received 

in a seme~ter or other term is equal to or exceeds the value .... " Id. (emphasis added). The second 

sentence applies only "[i]f the value of federal benefits that may be used only for the payment 

of tuition and fees and are received in a semester or other term does not equal or exceed the value 

.... " !d. (~mphasis added). And the final sentence also speaks in terms of the "exemption 

received," not the amount for which the veteran is eligible. See id. Given this clear language, a rule 

conditioning the application of the Exemption on the basis of benefits received rather than on the 

benefits to which the veteran is entitled is not contrary to the plain language of subsection 54.341 ( e). 

N or can we say that such a proposed rule is unreasonable under the language of subsection 54.341 (e). 

Accordingly, a court would likely conclude that such a proposed rule is within the scope of the 

Board's authority. 

Because you ask a specific question about one aspect of a particular proposed rule, we do not 

generally address the discretion of the Board to implement alternatives to this proposed rule. Nor 

do we address the validity of different interpretations or constructions of subsection 54.341(e). 

Further, because the Texas Legislature has charged the Board with applying the Hazlewood Act, we 

recognize that it is the Board's responsibility in the first instance, subject to judicial review, to fully 

construe subsection 54.341(e) and to determine whether to adopt a rule such as that proposed by the 

Commission. See Tex. Att'y Gen. Op. No. GA-0899 (2011) at 2-3 ("Rather, we leave it to the [State 

Cemetery] Committee to determine, in the first instance and subject to judicial review, the exact 

scope of its operational authority, and whether that authority necessarily includes the power to 

regulate bicycles. "). We conclude only that the plain text of subsection 54.341 (e) does not preclude 

a rule that allows a veteran applying for the Hazlewood Act Tuition Exemption who is eligible for 

federal Chapter 33 benefits to not first exhaust his or her Chapter 33 benefits. 
Raymund A. Paredes, Ph. D. - Page 4 (GA-0969) 

SUMMARY 

Under section 54.341 of the Education Code, a court would 

likely conclude that the Texas Higher Education Coordinating Board 

has authority to adopt a rule which would allow a veteran applying for 

the state Hazlewood Act Tuition Exemption who is otherwise entitled 

to federal Chapter 33 benefits to not first exhaust his or her Chapter 

33 benefits. 

DANIEL T. HODGE 

First Assistant Attorney General 

JAMES D. BLACKLOCK 

Deputy Attorney General for Legal Counsel 

JASON BOATRIGHT 

Chairman, Opinion Committee 

Charlotte M. Harper 

Assistant Attorney General, Opinion Committee