The Attorney General of Texas
October 19, 1982
MARK WHITE
Attorney General
Honorable George W. McNiel, C.P.A. Opinion No. MW-518
Supreme Court Building
State Auditor
P. 0. Box 12546
Austin. TX. 76711. 2546
Sam Houston Office Building Re: Whether student services
5121475-2501 Austin, Texas 78711 listed in section 54.503 of
Telex 9101674.1367 the Texas Education Code may
Telecooier 512,475.0266 be funded with appropriated
funds
1607 Main St., Suite 1400
Dallas, TX. 75201.4709 Dear Mr. McNiel:
2141742.6944
You request our opinion concerning the funding of student
services. Section 54.503 of the Texas Education Code defines student
4624 Alberta Ave., Suite 160
El Paso, TX. 799052793
services as follows:
9151533.3464
(a) For the purposes of this section,
'student services' means activities which are
1220 Dallas Ave., Suite 202
Houston, TX. 77002.6966
separate and apart from the regularly scheduled
7131650-0666
academic functions of the institution and directly
involve or benefit students, including textbook
rentals, recreational activities, health and
606 Broadway, Suite 312 hospital services, medical services, automobile
Lubbock, TX. 79401.3479
parking privileges, intramural and intercollegiate
6061747-5236
athletics, artists and lecture series, cultural
entertainment series, debating and oratorical
4309 N. Tenth. Suite B activities, student publications, student
McAllen, TX. 76501-1665 government, and any other student activities and
5121662.4547
services specifically authorized and approved by
the governing board of the institution of higher
200 Main Plaza, Suite 400 education. The term does not include services for
San Antonio. TX. 76205.2797 which a fee is charged under another section of
5121225-4191 this code.
An Equal Opportunity/ Section 54.503(b) authorizes the governing board of an institution of
Affirmative Action Employer higher education to collect from students fees to cover the cost of
student services. You wish to know whether, and to what extent,
legislative appropriations for educational and general purposes may be
used to support student services activities.
We find no general law which bars the expenditure of appropriated
funds on student services as defined by section 54.503(a) of the
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Honorable George W. McNiel - Page 2 (MW-518)
Education Code. However, the following appropriations act provision
is relevant to your question:
'Elements of Institutional Cost.' The costs
included in the various items appearing in the
appropriations for the several academic
institutions shall be considered to be all costs,
including salaries, for those functions or
activities in 'Definitions of the Elements of
Institutional Costs,' Supplement A, of the
detailed instruction for preparing and submitting
requests by the general academic teaching
institutions for legislative appropriations for
the biennium ending August 31, 1983, published
jointly by the Legislative and Executive Budget
Offices unless otherwise provided by the terms of
this Act. Bond premiums, Workmen's Compensation
Insurance Fund operations, Unemployment
Compensation Benefits, insurance premiums where
authorized by law, and major repair and
rehabilitation of buildings and facilities, in
addition to those specifically listed in line
items, may be purchased from appropriated funds.
Acts 1981, 67th Leg., ch. 875, art. III, $4b, at 3717. The
"Definitions of the Elements of Institutional Costs" referred to in
this provision states in considerable detail what constitutes
"elements of institutional costs." It also states as follows:
Excluded from these elements and definitions are
student services for which the Legislature has
authorized fees under Section 54.503, Vernon's
Texas Education Code, and all auxiliary enterprise
operations and costs related thereto.
Executive and Legislative Budget Offices, Instructions for Preparing
and Submitting Appropriations Requests for Fiscal Years 1982 and 1983,
Agencies of Higher Education: General Academic Teaching Institutions,
at 4. In our opinion, article III, section 4b of the current
appropriations act bars the expenditure of appropriated funds on
student services as defined by section 54.503, Education Code, unless
otherwise provided by the terms of the General Appropriations Act.
You also ask whether constitutional ad valorem tax funds may be
used to construct facilities which in part provide student services.
Article VII, section 17 of the constitution establishes an ad valorem
tax fund for the construction of college buildings. The constitution
expressly provides that "none of the proceeds of this tax shall be
used for auxiliary enterprises."
p. 1077
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Honorable George W. McNiel - Page 3 (MW-518)
As noted in Attorney General Opinion H-1248 (1978), the language
forbidding the use of article VII, section 17 proceeds for auxiliary
enterprises was added to the constitution in 1965. See Senate Joint
Resolution No. 24, Acts 1965, 59th Leg., at 2197. The same
legislative session which proposed the constitutional amendment
included the following provision in the Higher Education Coordinating
Act of 1965:
'Educational and general buildings and
facilities' means buildings and facilities
essential to or commonly associated with teaching,
research, or the preservation of knowledge.
Excluded are auxiliary enterprise buildings and
facilities, including but not limited to
dormitories, cafeterias, student union buildings,
stadiums. and alumni centers.
Acts 1965, 59th Leg., ch. 12, 51, at 29 (codified at Educ. Code
§61.003(13)). This contemporaneous usage of the term "auxiliary
enterprises" indicates the meaning of that language as it appears in
article VII, section 17 of the constitution. See Code Construction
Act, V.T.C.S. art. 5429b-2, §2.01; Michael v. Michael, 79 S.W. 74
(Tex. Civ. App. 1904, no writ) (language should be given meaning with
which it was used by legislature).
We note that section 61.003(13) distinguishes between buildings
for auxiliary enterprise and buildings "essential to or commonly
associated with teaching, research, or the preservation of knowledge."
We believe this distinction further indicates that funds raised
pursuant to article VII, section 17 may only be spent for buildings
essential to or commonly associated with teaching, research, or the
preservation of knowledge. In certain clear-cut cases this office has
been able to inform you whether or not certain projects may be
constructed with constitutional ad valorem tax funds. However, in
other cases, factual considerations are relevant to the question of
whether a building is "essential to or commonly associated with
teaching, research, or the preservation of knowledge." (Emphasis
added). Since factual questions cannot be investigated and resolved
by means of an Attorney General Opinion, we cannot state a general
rule that would answer your question as to whether article VII,
section 17 forbids the use of state ad valorem tax funds for each of
the student services itemized in article 54.503(a) of the Texas
Education Code.
SUMMARY
A rider to the current appropriations act
prevents the expenditure of legislative
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Honorable George W. McNiel - Page 4 @W-518)
appropriations for the student services defined in
section 54.503 of the Texas Education Code.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
p. 1879