Untitled Texas Attorney General Opinion ( 1975 )

The Honorable Bevington Reed Opinion No. H- 580
Commissioner, Coordinating Board
Texas College and University System Re: Authority of the
P. 0. Box 12788. Capitol Station Coordinating Board
Austin, Texas 78711 and the State Board of
Vocational Education
to revoke approval of
out-of-district voca-
tional course offerings
Dear Commissioner Reed: of a public junior college.
You have requested our opinion concerning the authority of the Coor-
dinating Board and the State Board of Vocational Education to refuse to
renew approval of out-of-district vocational courses or programs of a
public junior college.
Section 130.086(d) of the Education Code provides:
Before any course may be offered by a junior college
within the district of an operating public junior college
it must be established that the public junior college is
not capable of or is unable to offer the course. After the
need is established and the course is not locally available,
then the junior college may offer the course when approval
is granted by the appropriate state educational agency.
The appropriate state agency in this instance is actually two agencies.
Pursuant to the Coordinating Board’s general control of public junior
colleges as provided in section 130.001 of the Education Code, that body
undertakes an annual examination of the out-of-district programs offered by
junior colleges. See also Education Code, sec. 61.051. In addition, the State
Board of Vocational Education has responsibility for the approval of technical-
vocational programs and courses. Education Code, sets. 31. 33, 31.39, 31. 71(d).
Consequently, the two boards confer over the approval of out-of-district tech-
nical-vocational programs. “ReguI,ations for Out-of-District Course Offerings
by Community Junior Colleges, ” Coordinating Board, April 21. 1972.
p. 2584
The Honorable Bevington Reed, page 2 (H-580)
Section 130.086 provides no indication concerning the authority of either
of these boards to refuse to renew or to revoke approval of an out-of-district
offering. In Attorney General Opinion H-299 (1974) we held the two boards to
lack the power to revoke approval of out-of-district offerings by Texas State
Technical Institute, noting the use of the term “prior and continuing approval”
in another section. Education Code, sec. 135.03(b). It is now our under-
standing that in some instances the administrative practice has been to make
such out-of-district approvals on a yearly basis, as in essence is required
for the distribution of federal funds. Sec. 3.21, Texas State Plan’for Voca-
tional Education; see 20 U.S. C. 1243; 35 Fed. Reg. NO. 91, sec. 102.31(a),
May 9, 1970. In this distribution, the State Board for Vocational Education
is required to consider various factors which may change from year to year.
20 U.S. C. 1135(a)(5); 20 II. S. C. 1263(a)(6)(C)(D); 35 Fed. Reg. No. 91,
sets. 102. 34(d). 102. 59, May 9. 1970. The Board has included these con-
siderations in its State Plan, section 3.26, and is empowered to do so by
sections 31.33(3) and 31.39 of the Education Code.
The administrative construction of section 130.086(d) is to be upheld
unless clearly erroneous. Koy v. Schneider, 221 S. W. 880 (Tex. Sup. 1920);
Thompson v. Calvert, 301 S. W. 2d 496 (Tex. Civ. App. --Austin 1957, no writ).
Since section 130.086(d) is ambiguous in its silence and since the board’s
construction is reasonable, that construction is to be adopted. It is therefore
our opinion that the Coordinating Board and the State Board for Vocational
Education may give yearly approvals of out-of-district offerings under
section 130.086(d), and may refuse to renew such approval. Attorney General
Opinion H-299 (1974) is overruled insofar as it conflicts with this opinion.
SUMMARY
Pursuant to section 130.086(d) of the Education Code,
the Coordinating Board and the State Board for Vocational
Education may give yearly approval to out-of-district
offerings of junior colleges, and may later refuse to renew
such approval.
Very truly yours,
Attorney General of Texas
p. 2585
The Honorable Bevington Reed, page 3 (H-580)
APPROVED:
:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH. Chairman
Opinion Committee
p. 2586