# The Attorney General of Texas September 4, 1980
MARK WHITE Attorney General Honorable Oscar H.Mauzy Chairman Senate Education Committee Texas Senate, State Capitol Austin, Texas 78711 Opinion NO. MN-232
Re: Allocation of funds t&m student services fees to student directed nonprofit corporations engaged inpublic interest research activities
Dear Senator Mauzy:
Youhave requested our opinion regardirlg the allocation offunds from student services fees to student directed nonprofit corporations engaged in public interest research activities. Prior to its amendment by the 66th Legislature, Acts 1979, 66th Legislature, chapter ‘756,at 1872,section 54.503(b) of the Education Code provided, inpertinent part:

The governing board of an institution of higher education may charge and collect from students registered at the institution fees to cover the cost of student services which the board deems necessary or desirable incarrying out the educational functions of the institution. The fee or fees may be either voluntary cr compulsory as determined by the governing board. (Emphasis added). In 1979the Legislature deleted the underlined portion of the statute. You ask whether this deletion affects the constitutionality of section 54.503(b), asapplied topublic interest research activities.
In Letter Advisory No. 6 (1973), this office concluded that the governing board ofaninstitution ofhigher education:

might validly dstermine, in the reasonable exercise oftheir delegated legislative discretion, that public interest research activities constitute student services ‘necessary or desirable in carrying out the educational functions of the institution’, and collect voluntary student fees to cover the cost thereof.Honorable Oscar H.Mauzy - Page Two (MW-232)

The opinion said that the determination required by the statute, that the board &em the activity “necessary or desirable in carrying out the education functions of the institution,” was essentially aversion of the public purpose test. As wasindicated in the opinion: [elxpenditures for a true public purpose do not violate

Article 3, S51of the Constitution [prohibiting grants ofpublic money to corporations or individuals], even when a private agency isusedto achieve the purpcee. Inour opinion, the deletion ofthe referenced language from section 54.503(b) of the Education Code does not affect its constitutionality. Even though the governing board may no lcnger be required to make the determination formerly directed by statute, the board, inorder to authorize the expenditure, must nevertheless find that it will serve a valid public purpose. Although Letter Advisory No. 6 was limited to activities funded byvoluntary, rather than compulsory fees, the statute makes nosuch distinction, end in cur view, article HI,section 51of the state constitution &es not require such a distinction. Solcng asthe board properly makes adetermination that the expenditure will serve a valid public purpcee, we believe it may allocate funds from student services fees tostudent directed nonprofit corporations engaged inpublic interest research activities. SUMMARY

So long as the governing board of an institution of higher education makes a &termination that the expenditure will serve avalid public purpose, it may allocate fundsfrom student services fees to student directed nonprofit corporations engaged inpublic interest research activities. A

Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General
APPROVED: OPINION COMMITTEE C.Robert Heath, Chairman Jon Bible Susan Garrison Rick Gilpin Peter Nolan

P. 737