Untitled Texas Attorney General Opinion
GA-0902
| Tex. Att'y Gen. | Jul 2, 2011Background
- Texas Higher Education Coordinating Board seeks authority to adopt complaint procedures for postsecondary institutions.
- Board would refer some complaints to consumer protection division or a university system board; others to the institution or its accrediting body, with Board retaining ultimate responsibility.
- Section 61.031 requires a complaint file, copies of policies, and possible actions beyond investigation.
- DOE regulations require the Board to 'appropriately act on' complaints, but do not specify exact actions.
- REB Ministries addressed Board regulation of religious institutions' secular programs, not religious programs; court noted limits on regulating religious education.
- Board may comply with REB Ministries and DOE guidance by not applying complaint procedures to religious programs of study.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to establish procedures under §61.031 | Board has statutory authority to handle, investigate, resolve, and close complaints under §61.031. | DOE requirements are compatible with §61.031's broad grant of authority. | Board may promulgate complaint procedures under §61.031. |
| Ability to 'appropriately act on' complaints per DOE | Broad §61.031 authority includes acting on complaints as DOE requires. | DOE requires action but does not specify form; statute supports implied acts. | Board authority to 'appropriately act on' complaints exists under §61.031. |
| REB Ministries conflict with DOE guidance on religious programs | DOE guidance may compel handling of religious programs under complaint procedures. | REB Ministries limits Board's reach to religious programs, not secular programs. | Board may handle complaints about religious institutions' secular programs; not required to regulate religious programs. |
Key Cases Cited
- Pub. Util. Comm'n v. GTE-Sw., Inc., 901 S.W.2d 401 (Tex. 1995) (agency powers are limited to those granted by law and implied therefrom)
- REB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627 (Tex. 2007) (Board prohibited from certain regulation of religious institutions' religious programs)
- HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627 (Tex. 2007) (addressed Establishment Clause implications for board authority over religious education)