Case Information
*1 Honorable M. E. Baker
President of Corpus Christ1 Junior College Corpus Christi, Texas
Attention: Dean E. L. Harvln
Dear Sir: Opinion Ro. O-5891
Re: -Are ex-servicemen en- titled to free tuition-ih' the pub110 junior colleges that receive benefits from the Public Juni.or College Appropriation Act?
Your letter of January 21 reads in part as follows:
-"The Texas Association of Public Junior Colleges requested that I ask You for a rul'ing on the questibn of whether or not ex-servicemen can blaim free tuition in-the public junipr colleges thatreceive benefits from the Public Junlbr College Appropriation Act, which was passed by the last two sessions of the Legislature." .~ ,.~
In order to arrive-~atthe correctanswer' to your inquiry; lt‘wlll be'hebessary to review~the-history of the various LegPslative enactments, applicable to'3.n; rank and-exemptionfrom payment stitutioti$.ol cbllegihte- of tuition,. sofas to ascertain the Legislative intent. Article,2654a, V. A; C. S. (Ch. 237, Acts of -
1927,' 40th Leg..) relates to matriculation fees and charges to be exacted by the State'educational lnstl- tutions '(of higher learning) as therein set forth and designated.
Article~2654b, V. A. C. 3. (2nd C.'S., Ch. 52., 41st Leg.) provides for the exemption of veterans of the Spanish-American war from the payment of any fees or charges In State instltutlons; schools or colleges of Texas to then same extent as veterans of the (First-) World War are exempt from such fees or charges under *2 Honorable M. E. Baker, p. 2
State laws.
"The "State laws" referred to therein were the provisions of H. B'. 182, Ch. 147; Acts of 1923, 38th Leg.; which exempted 'certain veterans 0.f World-~War'l fron the pajrment of all dues, fees and charges'whatsoever, with certain exceptions, fixed or collected by the public educational institutions of this State.
Set‘. 1 of Article 2654b-1.(1st C. S., p;~lO; - Ch.~6, 43rd Leg.).provides for the exemptionof veterans of the Spanish-American ~and./or'World.War from'the ~paYmet& of~all'dues, fees and 'charges~whatsbever,'by the insti--“ tutions'of Collegiate rank; supported in whole or in part my-fiublic' funds 'ap.@ropriated- from the State-Treasury.- ~-- Seti. ~2~therebf makes the~saine~exemptions~appIic~abIe to theOhighestranking graduate of accredited high schools of this State.
Article 2654~ (Ch. 196, p. 396, 43rd Leg.) provides for- compulsory tuition as therein set forth. Same is to be collected from~ students registering in the several institutions of collegiate rank supnorted in - whole or-in part bye public funds appropriated-from the
The provisions of said Chapter 196 ~~~$~~~$%ed Art. 265413 (H. B. 182'). Attorney Gen- eral's~ letter opinion 'co'&?. H. Y. Benedict, Bresldent; University of Texas, dated August 22, 1933 and Attorney General's opinion No. o-4200.
It'is evident that in passing Chapter 196
aforesaid the Legislature' intended'to and did substitute the compulsory tuition fees, as therein stipulated and required, for the matriculation. fees allowed in Art. 2634a (supra). It is also evident that it did not in- tend to repeal any of the other provisions of said Art. 2654a.
It'will'be noted that the above mentioned Art. 2654b-1 was enacted at the 1st C. 3. of the 43rd Legis- lature and being-a later expression of the Legislature than the above mentioned Art. 2654c, its provisions as to the exemptions from' payment of a11 dues, fees and charges whatsoever, operate as an exception to the pro- visions of Art. 2654~ which provides for compulsory tuition.
Honorable M. E. Baker, p. 3
So it will have to be tionceded.that when the rovislons of said Ch. 196 of the 43rd Legislature Art. 26540) and the provisions of Ch:6, 1st C; 3. of P said 43rd Legislature (Art. 2654b-3).became effective, that-the governing boards of the several institutions of collegiate rank,'supported.in whole br in part by publio funds appropriated from the State Treasury, were required to collect from all students the. tuition as provided' in said Article 2654c, with the exception that such gbvern- ing boards should not collect such tuition from the students exempted by Sections '1and 2 of Article 2654b-1. As the Public Junior Colleges were not then supported~ in whole or'in part by p.ublic funds appropriated from the State Treasury and the Board of Trustees of,a'Junior College District (except those that were'state supported) bad the authority to "fix and collect fees for matricu- lation, laboratories, libraries, ymnasium and tuitions", as providei: in Sec.'13 Article 2 l%, V. A.'C. 3. (Ch. 290, Abts of 41st Leg.j it is evident that neither said Article 2654b-1 nor 2654~ applied to such Junior Colleges.
However, since the enactment of the above re- ferred to Legislation the Junior College Appropriation Act was enacted by the 48th Legislature, Ch. 157, (A~rt. V. A. C. 3. ) and Ch; of the 48th Leg. 28155-2 (Art. 2&54b-1) was also,enacted.
If this' new Legislation did not change'the existing. law pertaining~to such Junior. Colleges then our answer to your question would-of~necessitjr be that ex~servicemtn~ cannot claim free tuition"ln~the~'p~blic~' JuniorColleges; '-hit- is. bur~opinion, ,however; thatthe two Actsin question'make' it'mandatory'that ~the Junior? Colleges, who receive benefits from-the Junior College Appropriation Act, receive the ex-servibemen without payment of tuition as provided for in Sections 1 and 3 of Article 2654b-1.
We will first discuss the Junior College Act which was enacted by the 4 th Legislature, Ch. 157, (Art. 2815J-2;V.'A. C'. 2. ? * The following provisions of said Act are pertinent to your inquiry: *4 Honorable M. E. Baker, p. 4
"Sec. '1. There' shall be appropriated biennially from monies in the State-Treasury not otherwise appropriated an amount suffi-S cient to,suppltment local funds, in the proper~ support, maintenance,' operation;and improve- ment of~the P-ublic Junior Colleges of Texas, Which~meet the standards as herein provided; and said sum shall be-allocated on a basis and in a manner hereinafter provided. 'Sec. 2. To be eligible for and to
receive a proportionate share-of this- appropri- ation;‘a public Junior' College must 'be 'ac-- &edited-as‘ a-fir~t;class'J'unidr 'Cbllege-bg'.. . the3tate Department of Education and the State -Department of‘Education is hereby authorized to set up rnlis and provisibns~ by'which publib Junior Colleges may be inspected and accredited. * + * It shall be mandatory that each Institution participating In the funds herein provided shall collect' from each pupil enrolled, q atrihulation and other session fees notless than the amount provided for by.law and by other State supported instltitions of higher learning; as' provided In Articles 2654a, 2654b and 2654~~ the Revised Civil Statutes of Texas * * * *I.
It is apparent from examination of then quoted portions of Chapter 157, (supra) that the Legislature did not intend by said enactment to prescribe either a fixed or a maximum scale of entrance"fees for Junlor College Districts which qualify for State funds under said Act-; The evident ph$pose of the Legislature was-to prescribe the minimum fees which the Board of Trusteesmight fix. if the district is to qualify for State funds; specifi- oallg~ Chapter 157 requires that such district charge not less than-the fees prescribed by law for State-sup-. ported colleges and univerbitles "as provided in Articles 2654a, 2654b, 2654c, Revised Civil Statutes of Texas."
Examination of the offSMa Revised Statutes of Texas will dlsclose that there are no such numbered statutes contained therein. Our investigation further discloses no enactment officially so numbered and desig- nated. It is evlden,t, therefore, that the reference was
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Honorable M. E. Baker, p.
in error; but under settled canons of statutory con- struction, we perceive the rule to'be that a statute should not be denied effect because-of errors' of ex- pression; so long as the Legislative intent can be ascertained.
59’ CoPpus Jurls., pp. ,601, et seq.; ibid., pp. 918, et seq.
In attem'pting to astiertain-the Legislative Intent in the present instance trs are of the opinion that the reference actually intended was to the widely used unofficial compilation. of'Texas Statutes by the Vernon Law Book Company. See Hughes vs. Kelly Bras-., ~- 129 3. W: 784; Hollibaugh vs. Hahn,'79 Fac.,I044; People vs.. Van Bever, 93 N. E. 725. .The Vernon compilation does contain material with these'numerltial deslgnatlbns which relate to the subject matter of fees and charges in State-supported Institutions of higher learning as set. forth-above-. However a portion of the material which-is embodied as “265-b”- in Vernon's compilatlon~ was repealed in 1933 by the enactment of ArticK2654c, V. A. C. 3;~ (supra), and Article~"2654b" iras repealed in toto by said Article 2654~; as above set forth: In- asmuchas Article 2654b was repealed and was wholly‘ a statbte of exemption as to-certain students from the payment oftnitibn in State-supported- schools, the evidently-intended to-refer to Article Legislature 2654b-1 which contained the same exemptions-as said repealed Article 265413, as well'as other exemptions. Its would follow that inasinutih as the Legislature; in -~ enacting~this Junior' CoIlege A~prbpriation~Act referred to this exkmjptlori -statute,~ intended for such~ e'xembtions-- to-apply to a11 the:Junior CoIleges 'which quaIified~~undeh the' Act. Hbtiver;.even'though it should be held-that-the numerlcal'references'~are‘~so'amblguous asto render their identification impossible , wt+ can StilI'arrive'atthe- Legislative'intention with reasonable certainty by the languages used in said Act. Eliminating the numerical references the intention of the Legislature nevertheless is ascertainable, for the reason that its direction is that Junior College districts which desire to qualify under Chapter 157, supra, must "collect from. each pupil enrolled, matriculation and other session fees not less than the amounts provided for by law and by other State- supported institutions of higher learning. State vs. Ransom, MO. 78, distinguished and kooroved Gunter vs. :. ..,
Honorable M. E. Baker, p.
;;ys Land and Mortgage Company,' 82 Tex. 497, 117 3. W. _ If the' above Junior College a&was the last expresslon~ of the Legislature in reference,to the subject Involved herein, the correct atisw@r to'youi? inquiry would be very' doubtful. But the same~Legislature, subsequent to the enactment-of said~Act, passed an Act which it called an amendment to said Article 2654b-1, by adding thereto an additional se&ion to be known as Section 3. Section 3 merely made the exemptions provided for in Section.1 as to veterans of the Spanish-Amerloan and/or World War No. 1: and provisions of Section 2 as to‘~ex- emptions'~provided for high ranking students' 0.i' the' accredited high schools, to also apply to veterans of World War Iio. 2. Said Bill‘is S.-B. No: 81,~ Ch. 337, -~ Acts of the 48th Legislature and embodied thereinis the following significant provision: "Other than as amended herein,'Article 2654b-1 is hereby reenacted and shall at all times continue In-full forbe and effect subject, only to the addition of the above section to be known a3 Section 3." It is our opinion that the above quoted ,. provision oft said Act in effeot amounted to-the incor- poration in said Act of the whole' of Article 2654b-1 to the same extent as if same, had been made a part of the Atit by incorporating said'Arfihlb therein haec verba. We do not' believe that the referentie to* said Article 2654b;l as made in said Act violates-the Constitutional provisioh that no law shall be revised or amended by mere-reference to it& title;. ‘The-‘rule as stated,by Sutherland In his work on Statutory Construction, 3rd Ed., Vol. 2, Sec. 5207, p. 547, reads as follows: ,~ .
"A statute may refer to another statute and incorporate part of it by reference.
(Citin In. re Heath, 144 U. 3. 92, 36 L. 8' f;. Ct. 615 (1892); State v. Ed. 35 ., 12 Su Burchfleld, 21 Ala. 8, 117 So. 483 (1928) Gadd v. McGuire, 69 Cal. App. 347, 231 Pac. ; Gillum v. Johnson, 7 Cal. 744, 754 (1924 62 P. (2d I 1037 (1936); DuPont v. Mills, 39 Del. 42, 196 Atl. 168 (1937); Zurich General Accident and Liability Ins. Co. v. Industrial Commission, Ill. 576, 163 N. E. 466 (1928); Department of Banking v.
Honorable M. E. Raker, p.
Foe; Neb. 422, 286 N. W. 264 (1939); State v. Hancock, 54 N. J. L:393, 24 Atl. 726 (189); Dallas County Levee Improvement DFst. No. 6 v. Curtis, 287 5. W. 301 (Tex. CFv. App. 1~6) .~ The Constitutional pro- vision that non la-w shall be revised or amended.by mere reference to its title is sbmetFmes used tb attack these statiztes.' Reference statutes are not considered. amtnd- atorg, however, but complete in themselves, so that the ConstitutZonal objection is met." .- See also an opinion by Judge Gaines as reported Fn Quillan vs. R. &~T. C. Rg. Company, 34 9. W. 738;'Leake'vs. City of Dallas, 197 S. W. 473; Dallas County Levy DFst. vs. Looneg, 207 S. W. 310.
The provision in this later Act, which states that "The governing boards of the several institutions of collegiate rank, supPorted In whole or in part by public funds ap@opriatedfrbm the-State Treasury, are hereby authorized and directed to except' and exembt'" ex- servicemeh from tuiti-on, will control over and operate as ah exception to the provlsion in the prior Junior College.Appropriation Act which reads as follows: "It shall. be mandatory that eabh institution partl.cipatFng In the'funds'herein provided shall collect from each pupil enrolled, matriculation and other session fees not less than the amounts provided for by law * * * *". The rule‘as to repeal by conflicting acts of the same Legislative session is stated by Sutherland in his 3rd Ed., Vol. 1, Sec. 2020, work on Statutory Construction, p. 484 as follows:
"In the absence of an irreconcilable con- fl%ct between two acts of the same session, each will be construed to operate- within the limits of its own terms in a manner not to con- flict wFth the ~otber act. However, when two acts. of the' same session cannot be harmonized ~br reconciled, that statute'which is the latest enactment will operate to repeal a prior statute of the same session to the extent of any con- flict in their terms." (Emphasis ours).
Honorable M. E. Baker, p. 8
As the'latest expression of the Legislative. will'prevails; the statute last passed will prevail over‘ passed prior to it, irrespective of‘whether the a statute prior statute takes effect before orafter the later statute. -People vs. Erambr, 328 Ill. 512, 160 N. E. 60
; Rewbauer vs:State,~200 Ind. 118, 161 N. E. 826 ; State vs. Schaumbur 149 La. 470 89 So. 536 ; State vs. Marcus, 3$Ii. M. 378; 281 Pac. 454 Winslow vs:Fleischner, 112 Ore. 23, 228 Pac.
101, 34 A. L. R. 826 (1924); Buttorff VS. York, 268 Pa. 143, 110 Atl. (1?20),.~ .- ._ : -_
St is therefore our opinion that the ex-servlce- men cab claim .free tuition in-the public Junior Colleges. that rixeive benefits from the Public Junior College Ap- propriatlon Act. ,..
'Trusting that this fully answers your inquiry, we are
Yours very truly ATTORREYGERERAL OFTEXAS Gee. W:Barcus BY AssFstant w. Y. Geppert BY Assistant WVG:bb/mjs APPROVED MAY 30, :
/s/ Grover Sellers
ATTORREYGEIVERAL OF TEXAS