Untitled Texas Attorney General Opinion ( 1975 )

October 1, 1975
The Honorable M. L. Brockette Opinion No. H- 702
Commissioner of Education
Texas Education Agency Re: Authority of school districts
201 E. 11th Street to charge fees for certain courses,
Austin, Texas 78701 school supplies and extra-curricular
activities.
.
Dear Commissioner Brockette:
You have asked whether a.school district may’impose any or all of the
following fees:
1. Tuition for driver education training.
2. Charges for school supplies and instruction and
lab fees in conjunction witlrnorinal academic,
vocational or physical education classroom in-
struction or training.
3. Fees for extra curricular activities, such as
band uniforms, athletic lockers and towels,
and club membership.
The Legislature is directed by article 7, section 1 of the Texas Constitution
to establish “an efficient system of public free schools. “The Supreme Court has
held that the Legislature alone is authorized to interpret and implement this con-
stitutional provision:
Since the Legislature has the mandatory duty
to make suitable provision for the support Andy
maintenance of an efficient system of public free
schools, and has the power to pass any law re-
lative thereto, it necessarily follows that it has
~a choice in the selection of methods by which the
object of the organic law may be effectuated. The
Legislature alone is.to judge what means are
necessary and appropriate for a purpose which the
Constitution makes legitimate. The legislative
determination of the methods, restrictions, and
regi.dations is final, except when so arbitrary as
to be violative of the constitutional rights of the
citizen. Mumme V. Mans, 40 S. W.id 31, 36
(Tex. Sup. 1931).
p. 3037
The Honorable M. L. Brockette - Page 2 (H-702)
The Legislature has not seen fit to authorize any of the charges about
which you inquire in the Education Code or any other statute. By contrast,
certain other charges are specifically mentioned in the Education Code. We
note, for example that section 16. 864 of the Education Code authorizes a district
to impose tuition for the fourth quarter, section 21.063 permits a district to
assess a tuition fee for transfer students, section 26. 66 provides for tuition and
fees for rehabilitation students and section 21.03 authorizes the imposition of
tuition and fees for vocational training. The Legislature not having authorized
charges in the area of your inquiries, and having specifically permitted charges
in other areas, would argue for the conclusion that, the Legislature did not intend
to authorize charges for those activities about which you inquire. State V. Richards,
301 S. W. 2d 597,60O(Tex. Sup. 1957); Federal Crude Oil Co. v. Yount-Lee Oil C 0.8
52 S.W.2d 56, 60 (Tex. Sup. 1932).
In a decision rendered by then Commissioner of Education J. W. Edgar on
April 4, 1966, it was held that the assessment by a school district of supply,
towel and locker fees~~artd the ,i?nforcem’eht thereof.bythe ‘withhold$ng:of a’:studeht’s
report card constitute “compulsory fee assessments unauthorized by law. ”
Commissioner Edgar stated in his decision that
[ i] n the absence of specific authority
expressly granted, constitutional or
otherwise, empowering, a school district
to assess or impose and collect the defined
‘supply fee, ’ made intentionally compulsory
~.by the simple expedient of withholding report
cards and/or transcript until paid, it would
be and is my, best judgment and opinion that
the imposition and collection of same is
without legal support and contravenes the
spirit and intendment of the school laws con-
sidered in para materia . . . . Article VII,
Section I, Constitution of Texas, has vested
itithe Legislature the responsibility to make
suitable provision ,for the support and main-
tenance of an efficient system of public free
schools. As I see it, this Constitutional man-
date militates against the school district assess-
ing such unauthorized fee, thereby to protect a
child or his family, indigent or otherwise, from
the experience of harassment or humiliation that
can evolve from such impositions and forced
collection thereof.
p. 3038
The Honorable M. L. Brockette - Page 3 (H-702)
The courts have held that the construction placed upon,a~statute by the agency
charged with its administration, while not binding, is entitled to substantial
weight. Calvert v. Kadane, 427 S.W.2d 605, 608 (Te~x. Sup: 1968); Armco
Steel Corp.’ v. Texas Employment Comm’n. J 386 S. W~i 2d’894, 896Civ.
App; --Austin’1965 writ ref’d, n. r. e. ).
On the basis of the 1966 decision rendered by the Commissioner of
Education and the Supreme Court’s language in Mumme U. ,Marrs, s, and
in the absehce of any specific legislative sanction, it :is our, opinion that a school
distkict does not have the authority to impose any of the charges about which you
inquire.
For purposes of this opinion, it is not necessary to determine what kind of
fees, if any, the Legislature might authorize under article 7, section 1 of the
.-Texas Constitution: We n.ote;~h owever, that there is a significant difference of
.‘: opinion’aniotig the appellate courts of ‘othe’r’%tates as. to,what is requiied’by a
constitutional provision establishing a system of “free public“schools. ” See
Vandevender v.’ CaBsell,’ 208 S.E.2d 436 (W. Va. 1974); Board’of Education.
Sinclair, 222 N.W.2d 143 (Wis. 1974); Granger V. Cascade County School
District No. 1, 499~P. 2d 780 (Mont..,l972); Hamer v. board of Education of
School District No. ,-109;‘~ 265 N.E. 2’d-616 ‘(Ill,.‘.l971);‘Bond v. Board of Public
Schools of Ann Arbor School District, ‘178 N. W. 2d’484.(Mich. 1970); Paulson v.
ySchdolDistrictNo.31,
Minidoka Count 463 P. 2d~935 (Idaho 1970); Chandler v.
South Bend Community School G p 312 N: E. 2d 915(Ind.App. 1974); Hamer v.
Board of Educatibn of School Di%z; No. 109, 292 N.E.2d 569 (Ill. Appm
SUMMARY
In the absence of specific legislative sanction,
a ,.school district does not have the.‘authority to
impose tuition for driver education training; charges
.for school supplies and instruction’and lab fees in
conjunction with normal academic, vocational or
physical education classroom instruction or training;
or fees for extra-curricular activities I such as band
uniforms, athletic locker’s and towels, and club mem-
bership.
/Yerv truly vouis,~
Attorney General of Texas
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The Honorable M. L. Brockette - Page 4 (H-702)
*ROVED:
Opinion Committee
jad:
p. 3040