The Attorney General of Texas
September 4, 1980
MARK WHITE
Attorney General
Honorable Oscar H. Mauzy Opinion NO. MN-2 32
Chairman
Senate Education Committee Re: Allocation of funds t&m
Texas Senate, State Capitol student services fees to student
Austin, Texas 78711 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