January 3, 1989
Honorable Carl A. Parker Opinion No. JM-1002
Chairman
Senate Education Committee Re: Authority of the Texas
Texas State Senate Higher Education Coordinat-
P. 0. BOX 12068 ing Board over proprietary
Austin, Texas 78711 schools which confer only
non-academic degrees, and
related questions (RQ-1536)
Dear Senator Parker:
You ask:
1. Does the TEA have exclusive jurisdic-
tion over proprietary schools which confer
only non-academic degrees, such as AAA, AAS
and Associate of Occupational Studies ('AOS')
degrees?
2. Does the authority of the Coordinating
Board extend beyond the scope of its author-
ity under Chapter 61 of the Texas Education
Code to proprietary schools which confer only
non-academic degrees, such as AAA, AAS and
AOS degrees? If so, what is the statutory
basis for extending the jurisdiction of the
Coordinating Board beyond institutions of
higher education?
3. If the TEA does have exclusive juris-
diction over proprietary schools, can the TEA
abdicate its duty to supervise and regulate
proprietary schools, which has been specifi-
cally entrusted to it by the legislature, by
delegating such responsibility to the Coordi-
nating Board, an entity that has no express
statutory authority for that responsibility
and that is statutorily limited in its au-
thority solely to those matters which the
legislature has expressly entrusted to it?
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Honorable Carl A. Parker - Page 2 (JM-1002)
Your request indicates that by "TEA" you mean the Texas
Education Agency,. or Central Education Agency, as it is
referred to by statute, and by Coordinating Board you mean
the Texas Higher Education Coordinating Board. The AAA and
AAS degrees referred to are the Associate of Applied Arts
and Associate of Applied Science degrees offered by certain
private educational institutions in this state.
We understand that your request was prompted by a
proposed agreement between TEA and the Coordinating Board
that such degree programs would be subject to the require-
ments of chapter 61, subchapter G, of the Education Code,
section 61.304 of which provides that:
[a] person may not grant or award a degree on
behalf of a private institution of higher
education unless the institution has been
issued a certificate of authority to grant
the degree by the [Coordinating Board] in
accordance with the provisions of this
subchapter.
Subchapter G of chapter 61 of the Education Code was
enacted in 1975. Acts 1975, 64th Leg., ch. 587, at 1867.
It appears that from the time of that enactment in 1975
until 1981, the Coordinating Board issued certificates of
authority pursuant to subchapter G for such associate
degrees. In 1981, the Coordinating Board amended its admin-
istrative rules to provide that such **non-academic'N associ-
ate degree programs would no longer be under the jurisdic-
tion of the Coordinating Board, leaving proprietary schools
offering such degrees under the. jurisdiction of the TEA
under the Proprietary School Act, Education Code, chapter
32.l
1. Section 61.311, provides:
(a) The board shall promulgate standards,
rules, and regulations governing the issuance
of certificates of authority.
(b) The board may delegate to the commis-
sioner such authority and responsibility
conferred on the board by this subchapter as
the board deems appropriate for the effective
administration of this subchapter.
P. 5145
Honorable Carl A. Parker - Page 3 (JM-1002)
The number of schools offering such associate degrees
has apparently grown from three in 1981 to more than 25 in
1988. It is now proposed that the Coordinating Board take
back jurisdiction over AAA and AAS programs.
Chapter 32 of the Education Code, the Texas Proprietary
School Act, provides that the TEA "shall exercise jurisdic-
tion and control" of proprietary schools. Educ. Code
5 32.21. "Proprietary school '1 is defined in section 32.11,
subdivision (1) as:
'Proprietary School,' referred to as
'school,' means any business enterprise
operated for a profit, or on a nonprofit
basis, which maintains a place of business
within the State of Texas, or solicits
business within the State of Texas, and which
is not specifically exempted by the provi-
sions of this Chapter and;
(A) which offers or maintains a course or
courses of instruction or study: or
(B) at which place of business such a
course or courses of instruction or study is
available through classroom instruction or by
correspondence, or both, to a person or
persons for the purpose of training or pre-
paring the person for a field of endeavor in
a business, trade, technical, or industrial
occupation, or for avocational or personal
improvement, except as hereinafter excluded.
Subchapter G of chapter 61, section 61.304 of which
provides that degrees may not be awarded by a "private
institution of higher education" unless the institution has
obtained a certificate of authority from the coordinating
board, defines "private institution of higher education" as
follows, at section 61.302 subdivision (2):
'Private institution of higher education'
or 'institution' means an educational insti-
tution which:
(A) is not an institution of higher
education as defined by Section 61.003(7) of
this code:
(B) is incorporated under the laws of this
state, maintains a place of business in this
p. 5146
Honorable Carl A. Parker - Page 4 (JM-1002).
state, has a representative present in this
state, or solicits business in this state:
and
(c) furnishes or offers to furnish courses
of instruction in oerson. bv electronic
media, or bv corresnondence leadina to a
decree or nrovidina credits alleaed to be
anolicable to a dearee. (Emphasis added.)
"Degree" is defined in subdivision (l), section 61.302, as
follows:
(1) 'Degree' means any title or designa-
tion, mark, abbreviation, appellation, or
series of letters or words, including asso-
ciate, bachelor's, master's, doctor's, and
their equivalents, which signifies, purports
.to, or is generally taken to signify satis-
factory completion of the requirements of all
or part of a program of study leading to an
associate, bachelor's, masterIs, or doctor's
degree or its equivalent. (Emphasis added.)
Your questions distinguish between t'academic'*and Won-
academic" degrees, suggesting that subchapter G, chapter 61
provisions are directed at only academic degrees. The dis-
tinction between academic and non-academic degrees is not
made in the Education Code or elsewhere in applicable Texas
statutes. In 1981, the Coordinating Board amended its ad-
ministrative rules to make such a distinction at the time it
relinquished its authority over applied, or non-academic,
associate degrees. The definition of "degree," now in 19
T.A.C., section 5.211, was at that time narrowed to encom-
pass only degrees issued to signify completion of an "aca-
demic degree-level program." 6 Tex. Req. 1600 (1981). What
is now subsection (c) of 19 T.A.C., section 5.213, was
amended at that time to provide that the board would not
accept applications for certificates of authority pertaining
to a program "not generally in use and accepted as an aca-
demic degree program." u. 'These amendments were effective
August 7, 1981. 6 Tex. Req. 2644 (1981).
Presumably the rules limiting Coordinating Board au-
thority under chapter 61 to "academic degrees" will be
amended if and when the Coordinating Board reasserts its
jurisdiction over non-academic associate degrees such as the
AAA and AAS degrees. We find nothing in chapters 32 or 61
of the Education Code or other provisions of Texas law which
would prevent the board from subjecting proprietary school
p. 5147
Honorable Carl A. Parker - Page 5 (JM-1002)
non-academic associate degrees to the requirements of
chapter 61, once the appropriate rule changes are made.
We note that you do not ask about and we do not address
the validity of the 1981 rule changes made by the board2 or
the validity of any particular rule the Coordinating Board
might adopt to reassert its jurisdiction over the proprie-
tary school associate degree programs in question.
Just as Texas statutes make no distinction between
academic and non-academic degrees, no distinction is made
between associates degrees which are llapplied,ltsuch as the
AAA and AAS degrees, or not "applied." The definition of
degree in chapter 61 encompasses any "degree" having in its
designation the word "associate."
The legislature evidenced its concern that the use of
such a designation be regulated by the Coordinating Board
"to prevent deception of the public resulting from the
conferring and use of fraudulent or substandard college and
university degrees." Educ. Code 5 61.301. We do not think
that the fact that a school is a proprietary school, which
may not be a college or university in the ordinary sense,
supports the conclusion that it is not the sort of institu-
tion at which chapter 61 is directed, if the school fits
within the definition of a "private institution of higher
education," chapter 61, on its face, makes it subject to
board control vis a vis its awarding of degrees.
Your request and a brief submitted in connection with
your request by a law firm representing the Texas Associa-
tion of Private Schools argue that section 61.070 of the
Education Code indicates that the Coordinating Board was
granted no statutory jurisdiction over proprietary schools
awarding applied associate degrees. Section 61.070 pro-
vides:
None of the duties or functions assigned
by statute to the central education agency,
2. But see subsection (b) of section 61.311
authorizing the board to delegate subchapter G
responsibilities to the Commissioner of Education, who is
executive officer of the TEA pursuant to sections 11.51 et
sec(. of the Education Code. The text of section 61.311 is
reprinted in footnote 1 of this opinion.
P. 5148
I
Honorable Carl A. Parker - Page'6 (JM-1002)
except those relating to public junior
colleges, are affected by this chapter.
However, we find no statute, either in the Proprietary
School Act or elsewhere, which assigns the duty or function
to the TEA of authorizing proprietary schools to grant
particular degrees. The administrative rules discussed
above might have been adopted with the intention of relin-
quishing such duties or functions to the TEA, but those
rules are not *!statutes" within the meaning of section
61.070.
Briefs submitted in connection with your request also
argue that Attorney General Opinion M-143 (1967) distinguis-
hed academic and non-academic degrees or certificates in
concluding that a state law requiring students to complete
American history and government courses in order to obtain a
"baccalaureate" or "lesser degree or academic certificate"
did not apply to Wocational or technical course certifi-
cates given for courses approved by or subject to approval
of the State Board of Vocational Education." Attorney
General Opinion M-143 (1967), at 7. However, we do not find
in that opinion any authority for making such distinctions
among *8deqrees1'under chapter 61. The definition of "de-
gree" in section 61.302 makes no such distinction. Notably,
the provisions of chapter 61 were not enacted until eight
years after the issuance of Attorney General Opinion M-143.
Accordingly, we conclude in response to your first
question that the TEA does. not have exclusive jurisdiction
over proprietary schools which confer only non-academic
degrees such as AAA, AAS,. and Associate of Occupational
Studies Degrees. Where a proprietary school, as defined in
section 32.11 of the Education Code, also fits the defini-
tion of a "private institution of higher education" under
section 61.302, we think that it is subject to the reguire-
ment of chapter 61, that it may not award degrees until it
has been issued a certificate of authority by the Coordinat-
ing Board to grant such degrees, including applied associate
degrees.
your second question asks whether the Coordinating
Board's authority extends beyond the scope of its authority
under chapter 61 to proprietary schools which offer such
degrees. We find that the Coordinating Board has such
authority under ChaDter 61 itself pursuant to the provisions
of that chapter cited and discussed above. Though such
schools may fit the definition of "proprietary schoolsl'
under chapter 32, to the extent that they also fit the
definition of "private institutions of higher education"
P. 5149
Honorable Carl A. Parker - Page 7 (JM-1002)
under chapter 61, they are subject to the requirement of
that chapter providing that they may not award degrees
unless they have been issued a certificate of authority by
the Coordinating Board. Educ. Code § 61.304.
Your third question assumes that the TEA has exclusive
authority over proprietary schools. As we have concluded in
our responses to your first two questions that the TEA does
not have exclusive authority over those proprietary schools
that are also "private institutions of higher education"
within the meaning of chapter 61, section 61.302, we need
not answer your third question.
SUMMARY
Proprietary schools which offer applied
associate degrees and which otherwise meet
the definition of "private institutions of
higher education" under Education Code sec-
tion 62.302 are subject to the requirement of
section 61.304 that they may not award such
degrees without having obtained a certificate
of authority from the Texas Higher Education
Coordinating Board.
, ve-l/zyh
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 5150