Case Information
*1 The Attorney General of Texas October 19, 1982 MARK WHITE
Attorney General Opinion No. MW-518
Honorable George W. McNiel, C.P.A. Supreme P. 0. Box 12546 Austin. 5121475-2501 Telex Telecooier 9101674.1367 TX. 76711. Court Building 512,475.0266 [2546] Austin, Texas 78711 State Auditor Sam Houston Office Building be funded with appropriated Re: Whether student services the Texas Education Code may listed in section 54.503 of funds 1607 Main St., Suite Dallas, 2141742.6944 TX. 75201.4709 [1400] Dear Mr. McNiel:
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 services as follows: El Paso, TX. 799052793 9151533.3464 (a) For the purposes of this section,
'student services' means activities which are 1220 Dallas Ave., Suite 202 separate and apart from the regularly scheduled Houston, TX. 77002.6966 academic functions of the institution and directly 7131650-0666 involve or benefit students, including textbook
rentals, recreational activities, health and hospital services, medical services, automobile 606 Broadway, Suite 312 Lubbock, TX. 79401.3479 parking privileges, intramural and intercollegiate 6061747-5236 athletics, artists and lecture series, cultural
entertainment series, debating and oratorical activities, student publications, student 4309 N. Tenth. Suite B government, and any other student activities and McAllen, TX. 76501-1665 5121662.4547 services specifically authorized and approved by
the governing board of the institution of higher education. The term does not include services for 200 Main Plaza, Suite 400 which a fee is charged under another section of San Antonio. TX. 76205.2797 5121225-4191 this code. Section 54.503(b) authorizes the governing board of an institution of
An Equal Opportunity/ higher education to collect from students fees to cover the cost of Affirmative Action Employer 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 p. 1876
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 several academic appropriations for 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."
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 expenditure of legislative *4 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