Case Information
*1 Hon. George W. McNiel Opinion No. M-1134 State Auditor Re: Computation of semester credit
Sam Houston Building 78711 hours at public col- Austin, Texas
leges for state aid purposes Dear Mr. McNiel: and related questions.
Your request for an opinion from this office regarding the captioned matter asks the following:
"1. Do the provisions of Paragraph 3(c), Section 16, Article IV of Senate Bill No. 11, Acts 62nd Legislature, R.S., 1971 (as amended by Senate Bill No. 7, 1st C.S., 6Znd Legisla- ture, 1971)l requiring collection of tuition class day as specified mean that all semester credit hours for which the student should be deducted from the number of semester ho:ars reported for State aid purposes if is not collected in full! or should only the number of semester for which tuition has not been collected be in instances where there is a partial collection of tuition?
2 Are we correct in assuming that the provizions of Paragraph 3(c) Section 16, Article IV of Senate Bill NoI 11, Acts 62nd Legislature, R.S., 1971 (as amended by Senat 1971) 2 Bill No. 7, 1st C.S. 62nd Legislature, do not apply to vocational-technical contact the Texas Central Education Agency under provisions ' This is the current General Appropriation Act. Para. 3(c) is
at p, 3692, IV-20, of the official bound vol. of the Session Laws.
2 See footnote 1
. .- - -.-- ._-- ,,., --,.~,-..,- . ~. _~ . _-._ of Section 1, Article IV, Senate Bill No. 11, Acts 62nd Legislature, R.S., 1971 (as amended by Senate Bill No. 7, 1st C.S., 62nd Legisla- ture, 1971)?3
“3. In instances where ,a governing board establishes tuition in amounts which are greater than the rates specified in Section 54.051, Texas Education Code, but the institution fails such amount in full as set by the governing board but does collect at least as much as the amount required under Section 54.051, Texas Education Code, should any portion such semester credit hours be disallowed State aid purposes?”
As a final inquiry you have stated in relation to the above, you “have observed a number of clerical in computing the amount of tuition due” and inquire whether the college forfeits that which it has not collected in full, as required? on or before the twelfth class day of the fall semester of each fiscal year.
,In connection with your audit responsibilities, we answer your questions as follows:
For purposes of state-aid appropriations, all semester credit hours in academic courses m which a student shall be de- ducted from the number of semester credit hours so reported by a public unless the entire tuition (as set by the governing board of the institution) is collected by the institution
class day of the fall semester of the fiscal tuition fees received for vocational- year, technical courses not to be included in the report for such funding.
Your letter indicates that your office has interpreted the provisions of Paragraph 3(c) to mean that if a student’s wasn’t paid in full by the twelfth day as specified, the entire number of semester for which the student was enrolled were to be deducted from the number of semester
3 At p. 3673, IV-l, et seq., of the official Session Laws.
i . .
Hon. George W. McNiel, ,page 3 (M-1134,)
for state aid purposes even though some portion of the tuition had been paid. We hold this interpretation is correct.
The construction given Paragraph 3(c) by the State,Auditor This canon of construction is stated is entitled to great weight. as follows :
“The courts will ordinarily adopt and uphold a construction placed on a statute by an executive officer or department charged with its administra- tion, if the statute is ambiguous or uncertain, and if the construction so given it is reasonable. In other words , ,the’judiciary will adhere to the executive or departmental construction of an am- biguous statute unless it is clearly erroneous or unsound, or unless it will result in serious hardship ‘or injustice, . though the court might otherwise have been, Inclined to place a different construction on the act:” 53 Tex.Jur.2d 259-60, Statutes, Sec. 177.
See also, Armco Steel Corp. v. Texas Employment Commission, 386 S.W.2d 894 ,(Tex.Civ,App.l965, error ref. ,n.r.e.); United States v. 525 Company 242 F.2d 759 ‘(5th Cir. 1965) and Attorney General’s Opinions Nos. M-1029 (1971) and M-1050 (1972).
‘The language of Paragraph 3(c) (with certain exceptions therein s,pecified) is quite explicit in requiring the public on or before.the twelfth class day of the amounts its governing the fall semester board has set ‘for tuition; There are no provisions giving you authority to credit the school those hours taken by the student for which the institution has partially collected tuition, and deducting those hours for which tuition has not been,collected on or before class day of the fall semester.
Yours is a reasonable interpretation of the statute to accomplish the purposes for which it is intended; and, in view of its plain language, as ,heretofore mentioned, your construction and interpretation is sound and should be followed.
Accordingly, if the institution has not collected (as set by its governing board) ,in full the twelfth calss day of the fall for which a student is en- rolled, then all semester for whic,h that student is enrolled shalI-6e from the report for state aid purposes. This answers both your first and third questions.
Your second question asks whether the provisions of
Paragra,ph 3(c), Section 1, Article IV of Senate Bill No. 11, Acts 62nd Leg., R. S. 1971, apply to vocational-technical contact for the Texas Central Education Agency. Your letter states that your interpretation has been it does not. We concur the same reasons based on the authorities we have cited.
Article IV, Section 15 Item 21 of the General Appropria- tion Act of 19714 provides that those approved vocational-technical courses must be financed by funds appropriated therefor and ad- ministered by the Central Education Agency. The provisions Paragraph 3(c) are intended to give the Legislature a method by which it can inform itself of certain’matters with reference to appropriations for the needs of the public ,junior colleges as to its financial burdens based upon student enrollment for academic credit hours. The vocational-technical courses offered in terms of contact hours generated are funded elsewhere in the General Appropriations Act and are based upon an entirely different method of reporting.
Therefore, the provisions of Paragraph 3(c) do not apply to vocational-technical courses that are funded through the Texas Central Education Agency.
Your final inquiry concerns failure to comply with the statute by reason of “clerical errors.” This directory statute does not declare an automatic forfeiture or loss of sums by the college where its. failure is due to mere un- intentional clerical errors. Forfeitures and penalties are favored neither in law nor in equity and are to be strictly construed! and a “construction of statutes so as to impose forfeitures for viola- tion of civic and public obligations is not favored” and “statutes will be interpreted so as to prevent, rather than to cause, a forfeiture. ” 25 Tex.Jur.Zd 511, Forfeitures, Sec. 11, P, 502, Sec. 3. We note that the general rule, is “. . . that administrative authorities have power to correct clerical in their determina- tions, and to . . , modify them on the grounds of fraud or imposition, mistake, . . inadvertence. , .‘I 42 Am.Jur. 537, Public, Adminis- trative Law, Set,. 174. The legislative intent concerning clerical errc 4 At p. 3676, IV-4.
- 5524- *5 Hon. George W. McNiel;~page 5; (M~1134) ~,
in the handling of public funds is made clear in Article’V, Sec- tion 55 of the current General Appropriations Act. (Chap. 1047, General and Special Laws, 62nd Leg., R.S. 1971, at page 3815, V-54). It is there provided for correction by transfer to the correct fund when clerical result in any moneys being deposited into incorrect funds in or with the State Treasury or in a trust or suspense fund. In view of all of, the .foregoing considerations, it is our opinion that the State Auditor may, in the case of-such clericai errors, allow the colleges to correct such errors and permit the proper amount to be collected, and a transfer funds to the proper fund to be effected.
SUMMARY 1. Where there has been only a partial col- lection of tuition by a public junior col,lege on or before the twelfth c1as.s da,y of the fall semes- ter, all semester for which the student shall be deducted from the State Auditor’s report for state aid purposes.
2. The provisions of Article IV, Section 16, Paragraph 3(c) of the current General Appropriations Act (Acts 1971, 62nd Leg.) do not apply to vocational- technical courses reported the Texas Central Education Agency.
3. In instances where a public collects as tuition an amount at least as much as required by Sec. 54.051, Texas Education Code, but fails
class day of the fall the amount of tuition as set by its governing board, al,1 semester hours for which the student enrolled shall be from the State Auditor’s report for state aid purposes; unless such failure was caused by clerical error, mistake or inadvertence.
truly yours, L!2?2%= y General of Texas Prepared by Bill Campbell
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
James ,McCoy
Scott Garrison
Sig Aronson
James Quick
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant