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-2 32 

Re: Allocation of funds t&m 

student services fees to student 

directed nonprofit corporations 

engaged in public interest research 

activities 

Dear Senator Mauzy: 

You have requested our opinion regardirlg the allocation of funds 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, in pertinent 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 in carrying 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 1979 the Legislature deleted the underlined portion of 

the statute. You ask whether this deletion affects the constitutionality of 

section 54.503(b), as applied to public interest research activities. 

In Letter Advisory No. 6 (1973), this office concluded that the 

governing board of an institution of higher education: 

might validly dstermine, in the reasonable 

exercise of their 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 a version of the public purpose test. As was indicated in 

the opinion: 

[el xpenditures for a true public purpose do not violate 

Article 3, S51 of the Constitution [prohibiting grants of public 

money to corporations or individuals], even when a private 

agency is used to achieve the purpcee. 

In our opinion, the deletion of the 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, in order 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 by voluntary, rather than compulsory fees, the statute makes no such 

distinction, end in cur view, article HI, section 51 of the state constitution &es not 

require such a distinction. So lcng as the board properly makes a determination that 

the expenditure will serve a valid public purpcee, we believe it may allocate funds 

from student services fees to student directed nonprofit corporations engaged in public 

interest research activities. 

SUMMARY 

So long as the governing board of an institution of higher 

education makes a &termination that the expenditure will 

serve a valid public purpose, it may allocate funds from student 

services fees to student directed nonprofit corporations engaged 

in public interest research activities. 

A 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

Jon Bible 

Susan Garrison 

Rick Gilpin 

Peter Nolan 

P. 737