Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERALOFTEXAS
GREG ABBOTT
April $2005
Mr. Raymund A. Paredes Opinion No. GA-03 14
Commissioner of Higher Education
Texas Higher Education Coordinating Board Re: Whether a junior college district’s statutorily
Post Office Box 12788 defined service area is extended when the district
Austin, Texas 78711 provides services outside that area (RQ-0280-GA)
On behalf of the Brazosport College District (the “Brazosport CD”) and the Alvin
Community College District (the “Alvin CCD”), you ask, in essence, whether a junior college
district’s statutorily defined service area is extended when the district provides services outside that
area.’
Your query arises from a dispute between the Brazosport CD and the Alvin CCD (the
“districts”) over the reach of the Alvin CCD’s service area. See Request Letter, supra note 1, at 1.
Under the Education Code, a junior college district’s service areamay extend beyond the boundaries
of its taxing district, the area in which it levies taxes. See TEX. EDUC. CODE ANN. 8 130.161(2)
(Vernon 2002). Subchapter .I of chapter 130 of the Education Code establishes the boundaries of
each Texas junior college district’s service area. See id. $5 130.162-,211 (Vernon 2002 & Supp.
2004-05). The extent of a junior college district’s service area is legally significant because, for
example, certain district authoritywith respect to real property transactions is limited to the district’s
service area,* a district may annex territory in its service area,3 and a district may reduce tuition for
certain students who reside in its service area outside its taxing district4 Sections 130.163 and
130.170 of the Education Code establish the two districts’ service areas.’
‘LetterfromCommissionerRaymundA. Paredes, CommissionerofHigherEducation,TexasHigherEducation
Coordinating Board, to Honorable Greg Abbott, Texas Attorney General (Oct. 18, 2004) (on file with opinion
Committee, also available af http://www.oag.state.br.us) [hereinafter Request Letter].
‘See, e.g., TEX. EDUC. CODE ANN. $5 130.0021, .086(c) (Vernon 2002)
‘See id. 5 130.063(a)
‘See id. 5 130.0032(c).
‘see id. $5 130.163 (“The service area of the Alvin Community College District includes the territory within:
(1) the Alvin, Danbuv, and Pearland independent school districts; and (2) the part of the Angleton Independent School
(continued...)
Mr. Raymund A. Parades - Page 2 (GA-0314)
Chapter 130 ofthe Education Code does not directly address whether junior college districts
may provide services outside their service areas. Section 130.006 provides limited authority for a
junior college district to enter into a contract with an independent school district located in a county
contiguous to, but not a part of, the college district to provide college courses in the school district’s
facilities. See id. $ 130.006 (Vernon 2002). Prior to its amendment in 1999, section 130.086(a)
authorized a junior college district to operate branch campuses “without regard to the geographical
bounds ofthe junior college district.” See Act of May 31, 1975,64th Leg., R.S., ch. 689, 5 1, 1975
Tex. Gen. Laws 2109, amended by Act of May 26,1999,76th Leg., R.S., ch. 1424,§ I,1999 Tex.
Gen. Laws 4863. Section 130.086(a) now generally limits branch campuses, centers, and extension
facilities to ajunior college district’s service area, see TEX. EDUC. CODE ANN. 9 130.086(a) (Vernon
2002), but then-existing programs were not affected by the 1999 change, see id. 4 130.086(g); Tex.
Att’y Gen. Gp. No. JC-0332 (2001) at 3 (discussing Education Code section 130.086). However,
section 130.086 “does not affect the authority” of the Higher Education Coordinating Board (the
“Coordinating Board”) “regarding the continued operation of a branch campus, center, or extension
facility.” TEX. EDUC. CODE ANN. 5 130.086(h) (Vernon 2002).
Section 61.05 l(j) of the Education Code grants the Coordinating Board general authority to
approve off-campus and distance-learning courses offered by institutions of higher education,
including junior college districts. See id. 5 61.051(j) (Vernon 1996). It specifically states that the
Coordinating Board “may not prohibit a public junior college district from offering a course for
credit outside the boundaries ofthe junior college district when such course has met the requirements
for approval as adopted by the board.” Id. With respect to courses offered within the boundaries of
anotherjunior college district, however, section 130.086(d) more speciticallyprovides that a public
junior college may offer a course within the service area of another junior college district only if it
is “established that the second public junior college is unable to offer the course” and the
Coordinating Board grants approval. See id. 5 130.086(d) (Vernon 2002). While subsections (a) and
(c) of section 130.086 do not apply to a branch campus, center, or extension facility established
before September 1, 1999, its other subsections apply to all such programs or other courses. See id.
5 130.086(g).
You inform us that the Alvin CCD has provided college-level courses at two Texas
Department of Criminal Justice (“TDCJ”) prison units for several decades. See Request Letter,
supra note 1, at 1. The Alvin CCD has provided the courses pursuant to contracts with TDCJ and
its Windham School District.6 The units are located within the Brazosport CD service area as
‘(...continued)
District annexed by the community college district before September 1, 1995.“), 130.170 (“The service area of the
Brazosport College District includes the territory within: (1) the Brazosport, Columbia-Brazoria, Sweeny, and Damon
independent school districts; and (2) the Angleton Independent School District, except the part annexed by the Alvin
Community College District before September 1, 1995.“).
‘&e BrieffromDavid M. Feldman, Attorney for Alvin Community College District, to Honorable Greg Abbott,
Texas Attorney General at 1-2 (Sept. 24, 2004) (attachments) (on tile with Opinion Committee) [hereinafter
Supplemental AlvinCCD Brief]. The Education Code establishes the Windham School District as an entity distinct from
TDCJ. See TEX. EDUC. CODE ANN. 5 19.002 (Vernon 1996) (“The school dishict established by the Texas Board of
(continued...)
Mr. Raymund A. Parades - Page 3 (GA-03 14)
described in section 130.170 and not within the Alvin CCD service area as described in section
130.163. Seeid.; TEX.EDUC.CODEANN. $5 130.163, .170(Vemon2002).’ Becausetheprisonunit
courses are offered by the Alvin CCD within the Brazosport CD service area, the courses are subject
to Coordinating Board approval and regulation pursuant to subsection (d) of section 130.086, even
though the Alvin CCD has been providing services at the two prison units since before September
1,1999. See TEX. EDUC. CODE ANN. 5 130.086(d), (g)-(h); see also id. § 61 .OS1(j) (Vernon 1996).
The Alvin CCD claims that because it provides services at the prison units, the units are
within its service area. See Request Letter, supra note 1, at 1. The Brazosport CD does not object
to the Alvin CCD providing services at the prison units, but asserts that the fact that the Alvin CCD
provides services at the units does not bring the units within the Alvin CCD’s service area.’ The
Coordinating Board’s general counsel rendered an advisory opinion concluding that the Alvin CCD’s
service area does not include the prison units.” The Alvin CCD disagreed with this conclusion,”
and you submitted this request on the districts’ behalf. See id. There are no judicial or attorney
general opinions that resolve the issue.
The districts’ dispute centers on section 130.161 of the Education Code, which defines the
terms “services” and “service area” for subchapter J:
Corrections in 1969 shallbe known as the Windham School District, an entity that is separate and distinct from the Texas
Department of Criminal Justice. Tbe district may establish and operate schools at the various facilities of the Texas
Department of Criminal Justice.“). Tbe Windham School District is not a school district under the Education Code
unless specificallyprovided. See id. § 19.004(a) (“The district shallbe govemedasprovidedbythis chapterandpolicies
established by the board. Unless otherwise specifically provided, a provision of this code applying to school districts
does not apply to the district.“).
‘The AlvinCCD acknowledges that theprisonunitsaregeographicallylocatedwithintheBrazosportCD service
area described by section 130.170(2) of the Education Code, see supi-a note 5, but contends that the units are not
“legally” located within the Brazosport CD service area because the Windham School District is not part ofthe Angleton
Independent School District. See Supplemental Alvin CCD Brief, supra note 6, at 2. However, the Windham School
Disbict is not generally a school district under the Education Code, see supro note 6, and the Windham School District
programs at the prison units do not remove the units from the territory described in section 130.170(2).
‘See also Brief from David M. Feldman, Attorney for Alvin Community College District, to Honorable Greg
Abbott, Texas Attorney General at 2-4 (July 2 1,2004) (on file with Opinion Committee) [hereinafter Alvin CCD BriefJ.
‘See Brief from Lisa A. Brown, Attorney for Brazosport College District, to Honorable Greg Abbott, Texas
Attorney General at 1 (Sept. 2,2004) (on file with Opinion Committee) [hereinafter Brazosport CD Brief]; see also
Letter fromLisa A. Brown, Attorney for Brazosport College District, to Honorable Greg Abbott, Texas Attorney General
(Oct. 25,2004) (on tile with Opinion Committee).
%e Letter from Teri E. Flack, Interim Commissioner of Higher Education, to John Pickelman, Chancellor,
North Harris Montgomery County Community College District (June 9,2004) (attached to Brazosport CD Brief).
“See Letter from Carolyn Hanaban, Feldman & Rogers, to Jan Greenberg, General Counsel, Texas Higher
Education Coordinating Board (July 21,2004) (attached to Alvin CCD Brief).
Mr. Raymund A. Parades - Page 4 (GA-03 14)
In this subchapter:
(1) “Services” means the courses and programs described by
Sections 130.0011 and 130.003(e).
(2) ‘3 ervice area” means:
(A) the territory within the boundaries of the taxing
district of a junior college district; and
(B) the territory outside the boundaries of the taxing
district of a junior college district in which the junior college district
provides services.
TEX.EDUC.CODEANN. 5 130.161 (Vemon2002). Sections 130.162 through 130.211,theremaining
subchapter J provisions, define a specific service area for each Texas junior college district. See id.
$5 130.162-,211 (Vernon 2002 & Supp. 2004-05).
Section 130,161(2)(B) clearly establishes that ajunior college district’s service area includes
territory outside the boundaries ofits taxing district. However, the Alvin CCD contends that section
130,161(2)(B) operates to include within a district’s service area any location outside the taxing
district where the district provides services, including locations outside the district’s statutorily
defined service area. See Alvin CCD Brief, supra note 8, at 4.
The AlvinCCD construes section 130,161(2)(B) m isolation whereas the Code Construction
Act and case law require us to view it in the context of subchapter J as a whole. See TEX. GOV’T
CODE ANN. $311.01 l(a) (Vernon 2005) (“Words and phrases shall be read in context[.]“); Helena
Chem. Co. v. Wilkins, 47 S.W.3d 486,493 (Tex. 2001) (“[WI e must always consider the statute as
a whole rather than its isolated provisions. We should not give one provision a meaning out of
harmony or inconsistent with other provisions, although it might be susceptible to such a
construction standing alone.“). It is plain from subchapter J’s face that the statute’s purpose is to
definitively delineate service areas for Texas’ many junior college districts. See TEX. EDUC. CODE
ANN. $5 130.162-,211 (Vernon 2002 & Supp. 2004-05). This purpose is also clear from the
legislative history. The legislature enacted subchapter J in 1995 as Senate Bill 397. Both bill
analyses for Senate Bill 397 indicate the legislature’s intent to establish fixed service areas to avoid
duplication of services:
Community colleges now serve both their official taxing district as
well as areas outside the taxing district which have been assigned to
community colleges by the Texas Higher Education Coordinating
Board. Creation of delineated community college service areas may
help avoid duplication of services. As proposed, C.S.S.B. 397
requires each community college district to have a recognized service
area. [C.S.S.B 3971 [s]ets forth the service area of each district.
Mr. Raymund A. Parades - Page 5 (GA-0314)
SENATE COMM. ON EDUCATION,BILL ANALYSIS, Tex. Comm. Subst. S.B. 397, 74th Leg., R.S.
(1995); see also HOUSE COMM. ON HIGHEREDUCATION,BILL ANALYSIS, Tex. S.B. 397,74th Leg.,
R.S. (1995). Construing the term “service area” in section 130.161(2) to permit a junior college
district to unilaterally extend its statutorily defined service areamerelybyproviding services outside
that territory would defeat the legislature’s painstaking effort in sections 130.162 through 130.211
to precisely delineate a fixed service area for each Texas junior college district. See TEX. GOV’T
CODE ANN. 9 3 11.023(l), (3) (5) (Vernon 2005) (in construing a statute, a court may consider the
object sought to be attained, legislative history, and the consequences of a particular construction).
Furthermore, section 130.16 l(1) provides a very specific definition for the term “services”
in subchapter J, which the Alvin CCD does not address but must also guide our construction of
section 130.161(2)(B). See id. § 311.01 l(b) (“Words and phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.“).
Specifically, section 130.161(l) defines services as “the courses and programs described by
[slections 130.0011 and 130.003(e).” TEX. EDUC. CODE ANN. § 130.161(l) (Vernon 2002).
Section 130.0011 establishes junior colleges’ mission as follows:
Texas public junior colleges shall be two-year institutions
primarily serving their local taxing districts and service areas in Texas
and offering vocational, technical, and academic courses for
certification or associate degrees. Continuing education, remedial
and compensatory education consistent with open-admission policies,
and programs of counseling and guidance shall be provided. Each
institution shall insist on excellence in all academic areas -
instruction, research, and public service. Faculty research, using the
facilities provided for and consistent with the primary function of
each institution, is encouraged. Funding for research should be from
private sources, competitively acquired sources, local taxes, and other
local revenue.
Id. $ 130.0011. Similarly, section 130.003(e) establishes that
[t]he purpose of each public community college shall be to provide:
(1) technical programs up to two years in length leading to
associate degrees or certificates;
(2) vocational programs leading directly to employment in
semi-skilled and skilled occupations;
(3) freshman and sophomore courses in arts and sciences;
(4) continuing adult education programs for occupational or
cultural upgrading;
Mr. Raymund A. Parades - Page 6 (GA-0314)
(5) compensatory education programs designed to fulfill the
commitment of an admissions policy allowing the enrollment of
disadvantaged students;
(6) a continuing program ofcounseling and guidance designed
to assist students in achieving their individual educational goals;
(7) work force development programs designed to meet local
and statewide needs:
(8) adult literacy and other basic skills programs for adults;
and
(9) such other purposes as may be prescribed by the Texas
Higher Education Coordinating Board or local governing boards in
the best interest of post-secondary education in Texas.
Id. 5 130.003(e).
Sections 130.0011 and 130.003(e) establish the basic courses and programs a junior college
district must offer. See id. $5 130.0011, .003(e). And section 130.0011 expressly states that ajunior
college district’s primary mission is to serve its taxing districts and service area, clearly referring to
a limited, fixed territory. See id. 5 130.0011 (“Texas public junior colleges shall be two-year
institutions primarily serving their local taxing districts and service areas in Texas. .“). Thus, we
conclude that sections 130.0011 and 130.003(e) describe basic, core services to be delivered within
a predetined, fixed territory, not any and all services a junior college district may be authorized to
provide.
Given the section 130.161(l) definition of “services,” which specifically limits the term to
courses andprogmmsprovidedunder sections 130.0011 and 130.003(e), thephrase“territotyoutside
the boundaries of the taxing district of a junior college district in which the junior college district
provides services” in section 130,161(2)(B) does not operate to include territory in a junior college
district’s service area simply because the junior college district provides services there. Rather it
refers to core junior college district services mandated by sections 130.0011 and 130.003(e) that the
district provides within its legislatively fixed service area. According to its plain terms, section
130.161(2)(B) does not operate to include within a junior college district’s service area every
location where the junior college district provides services.
Accordingly, we conclude that a junior college district’s statutorily defined service area is
not extended when it provides services outside that area. With respect to the dispute at hand, the fact
that the Alvin CCD provides services in prison units outside its section 130.163 service area does
not extend its service area to include those locations.
Mr. Raymund A. Parades - Page 7 (GA-0314)
SUMMARY
A junior college district’s statutorily defined service area is
not extended when it provides services outside that area. The fact
that the Alvin Community College District provides services in prison
units outside its Education Code section 130.163 service area does
not extend its service area to include those locations.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for,Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee