ATTORNEY GENERAL OF TEXAS GREG ABBOTT
September 24,2012 Raymund A. Paredes, Ph.D. Commissioner ofHigher 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 wouldpermit aveteran who is entitledto two kinds offederal education benefits to beeligible to apply for benefitsunder 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 ofhigher 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 of2008, 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")
. 2SeeLetterfrom Raymund A. Paredes, Ph.D., Comm'r,Tex. HigherEduc. CoordinatingBd., to HonorableGreg Abbott, Tex. Att'y Gen. at 1 (Apr. 13,2012), http://texasattorneygeneral.gov/opin ("Request Letter").Raymund A. Paredes, Ph. D.

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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) (Nonduplication 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." RequestLetter at 4. You indicate thatthe 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 statutoryresidency requirements are exemptfrom "tuition, dues, fees, and otherrequiredcharges, includingfees forcorrespondencecoursesbutexcludinggeneral depositfees, student services fees, and anyfees orcharges for lodging, board, orclothing" at stateuniversities 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 atthetimeofregistrationis entitledto receive educationalbenefitsunderfederal legislationthatmay be used only for the payment oftuition and fees ifthe value ofthose benefits received
... is equal to or exceeds the value ofthe exemption
...." Id. § 54.341(e). The legal issue you presentis whetherthe Board, an administrative agency, has the authority to adopt a rule. An administrative agency has only those powers expressly granted to it by statute andthose necessarilyimpliedfrom 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. Citizensfor a Saje Future & Clean Water, 336 S.W.3d 619, 625 (Tex. 2011) (quotingFirstAm. Title Ins. Co. v. Combs, 258 S.W.3d 627, 632 (Tex. 2008)). Here, theLegislature 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 ofregistration is entitledtoreceiveeducational benefits underfederal 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 orRaymund A. Paredes, Ph. D.

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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 orexceed the value ofthe 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 ofthe 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 oftuition 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 "ifthe value ofthose 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 oftuition 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, arule conditioning the application of the Exemption on the basis ofbenefits received rather than on the benefits to which the veteran is entitledis notcontraryto the plain language ofsubsection 54.341(e). Norcan we saythat such aproposedrule is unreasonableunderthelanguageofsubsection54.341(e). Accordingly, a court would likely conclude that such a proposed rule is within the scope of the Board's authority. Becauseyou ask a specific question about one aspect ofaparticularproposedrule, we do not generally address the discretion ofthe 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 itis the Board's responsibility in the first instance, subject tojudicial review, to fully construe subsection 54.341(e) and to determine whetherto adopt a rule such as thatproposedby the Commission. See Tex. Att'yGen. Op. No. GA-0899 (2011) at 2-3 ("Rather, we leaveitto the [State Cemetery] Committee to determine, in the first instance and subject tojudicial 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 ofsubsection 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.

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### SUMMARY Under section 54.341 ofthe Education Code, a court would likely concludethatthe Texas HigherEducation Coordinating Board has authorityto adopt arule whichwould allowa veteran applyingfor the stateHazlewoodActTuitionExemptionwhoisotherwiseentitled 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