THE A-RNDSY GENERAL
OF TEXAS
AUSTIN. TEXAS 787ll
CW*WlrORD c. MARTIN f----------1--7
J&E 19, 1972
Honorable Philip G. Hoffman Opinion No. M-1162
Office of the President
University of Houston Re: Is the University of Houston
Houston, Texas 77004 prevented by Texas law from
collecting voluntary contributions
from students for the Texas
Public Interest Research Group
on either a charge or gratuitous
Dear Doctor Hoffman: basis?
Your request for an opinion from this office reads as follows:
“Is the University of Houston prevented by
Texas law from collecting voluntary contributions
from students for the Texas Public Interest Research
Group on either a charge or gratuitous basis?”
The applicable provisions of the Texas Education Code pertaining
to the collection of fees from students are set out as follows:
Section 54.003.
“No institution of higher education may collect
from students attending the institution anv tuition.
fee, or charge of any kyind except as permitted bi
law, and no student may be refused admission to
adischarged from any institution for the nonpayment
of any tuition, fee, or charge except as permitted by
law. ” (V. A C. S. Art. 2654a, Sec. 1) (Emphasis
added. )
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Honorable Philip G. Hoffman, page 2 (M-l 162)
Section 54.004.
“All tuition, local funds, and fees collected by
an institution of higher education shall be retained
and expended by the institution and accounted for
annually as provided in the general appropriations
act. ” (V. A.C. S. Art. 2654c, Sec. l(n), 2 (part).)
(Emphasis added. )
Section 54.005.
“The provisions of this subchapter requiring the
governing board of each institution of higher educa-
tion to collect tuition fees do not deprive the board
of the right to collect special fees authorized by law. ”
(V. A. C. S. Art. 2654c, Sec. l(m) (part);) (Emphasis
added. )
Section 54.503.
“(a) For the purposes of this section, ‘student
services’ means textbook rentals, recreational
activities, health and hospital services, automobile
parking privileges, intramural and intercollegiate
athletics, artists and lecture series, cultural enter-
tainment series, debating and oratorical activities,
student publications, student government, and any
other student activities and services specifically
authorized and approved by the appropriate governing
board.
“(b) The governing board of an institution of higher
education may charge and collect from students reg-
istered 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
sry or compulsory as determined by the governing
board. The total of all com$lsory student service
fcesollected from a student for any one semester or
summer session shall not exceed $30. . . , ” (Emphasis
added. )
-5666”
(M-1162)
Honorable Philip G. Hoffman, page 3
From the data and information furnished this office it is shown
that the Texas Public Interest Research Group (TexPIRG) will be operated
as follows:
“TexPIRG is a nonprofit, tax-exempt, student-
based corporation to be funded by Texas college
students through a collection of an optional fee of
$2.00 per semester. its Board of Directors com-
prised solely of students will be elected by the
students participating in the TexPIRG financing. Any
enrolled, fee-paying student can seek election to the
TejtPIRG Board of Directors, and there will be at
least one representative for each school participating;
for the larger schools there will be one representative
for each 5, 000 students participating.
“The professional staff of TexPIRG will consist of
lawyers and professionals from such fields as engi-
neering, biological and physical sciences, social
sciences, urban and regional planning, and public
administration. The staff will be selected by the
State Board of Directors and will be employed on a
fulltime basis. The general areas of TexPIRG concern
will include consumer protection resource planning,
occupational safety, protection of natural areas and
environmental quality, racial and sexual discrimination,
landlord-tenant relations, delivery of health care, and
similar matters of urgent or longrange concern of
the people of Texas. TexPIRG will have no formal
connection, financial or otherwise, with any national
organization or any public interest group located outside
Texas. Action taken by TexPIRG will consist of a
coordinated effort of analysis and research, public
education, active representation before legislative
bodies and before administrative and regulatory
agencies, and litigation where such actions are
warranted to achieve the goals of this group.
“One of TexPlRG’s primary goals is to involve
students in all aspects of TexPIRG’s work in order
not only to utilize their energies, ambitions and
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Honorable Philip G. Hoffman, page 4 (M-1162)
resources, but also to educate the students in the
practical application of their knowledge. Students
will be expected to act in several capacities: informing
the professional staff of both the student and community
concerns on specific issues; testifying before legislative
and administrative hearings; drafting of model legislation;
and preparing legal memoranda and basic legal research
on selected topics. ”
From reading the above it appears that your University would only
be an agency or pipeline to collect from students, on either a compulsory
or voluntary basis, money with which to finance TexPIRG. Your Board
would have no control or authority over TexPIRG as the facts show that the
Directors of TexPIRG are elected from each participating school. In
effect your University would be collecting money to operate a private non-
profit corporation; therefore any fee collected under the provisions of
Section 54.503 on a voluntary basis to fund TexPIRG would be outside
the scope of carrying out the educational functions of your University,
the scope of which is limited by the statute.
In addition to the matters di,scussed in the foregoing paragraph,
it does not appear from the facts submitted that the proposed fee to
be collected from students at various institutions of higher education
and used to fund TexPIRG, would or could be classified as a fee that
would be used for a governmental purpose, and the collection of such fee
by your University would be prohibited by Section 51 of Article III of the
Constitution of the State of Texas, which provides, in its relevant part:
“The Legislature shall have no power to make
any grant or authorize the making of any grant of
public moneys to any individual, association of
individuals, muncipal or other corporations what-
soever; . . .”
In r-he case of Texas Pharmaceutical Ass’n. v. Dooley, 90 S. W. 2d
328 (Tex. Civ. App. 1936 , no writ) the Court held that a statute which
authorized the State Board of Pharmacy to collect fees from pharmacists
and turn a porti,on of the fees over to the State Pharmaceutical Association,
-5668-
Honorable Philip G., Hoffman, page:5 ‘(M-1162)
a private corporation, was unconstitutional because the fees were public
money, whether deposited in the treasury or not, and therefore a grant
of public money for other than governmental purposes was in violation
of Section 51 of Article III of the Texas Constitution. The court states
at page 330:
11
. . . the appropriation of the major, portion of
same to a private corporation in nowise charged with
the enforcement of, thy act, would be clearly void.
Appellant is not in any wise @own to be subject to
any control of the, State Board of Pharmacy, whose
.
members were public officers of the state, required
to take the constitutional oath of office, empowered
to administer oaths, whose records required to be
kept are made prima facie evidence in any judicial
proceeding in this state, and designated in the act
as the agency of the state for the enforcement of
the laws pertaining to the practice of pharmacy. In
s? far as, the fees appropriated to it are reasonably
necessary to enforce such regulation under the police
power, the aci is valid and sustainable. But in so
far as the act undertakes to appropriate such feels to
appellant, a private corporation, and nqt a state
agency, it is void even if considered as a police
regulation and not as a tax measure.
“On the other hand, if these fees provided for in
section 14 above quoted and appropriated to appellant
be considered as not reasonably necessary for the
Board of Pharmacy to discharge its duties under the
law and to enforce the same, but as levied for purposes
of revenue, then clear1 we think they become public
funds or pub +IC moneys, whether deposited in the state
treasury or not, and the attempted grant thereof to
appellant private corporation is in clear violation of
section 5c’art. 3 of the Cons-‘
;cIIuc1on. ‘,-~- ~~‘~sis
----’ --- . . . (cmpna;
added. )
- 5669-
Honorable Philip G. Hoffman, page 6 (M-1162)
You are therefore advised that in our opinion the University of
~‘.Houston is.~no.t.a,uthorized to collect fees from students to fund the
operations of TexPIRG.
SUMMARY
Under the facts submitted the University of
Houston is prevented by both Section 54.503,
Texas Education Code, and Section 51 of Article
III of the Texas Constitution from collecting a
voluntary fee from students to fund the Texas
Public Interest Research Group.
neral of Texas
Prepared by John H. Banks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Reeves
John Traylor
Ralph Rash
L,inward Shivers
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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