Judges: JOHN CORNYN, Attorney General of Texas
Filed Date: 4/12/2000
Status: Precedential
Modified Date: 7/6/2016
Office of the Attorney General — State of Texas John Cornyn Mr. James Nelson Commissioner of Education Texas Education Agency 1701 North Congress Avenue Austin, Texas 78701-1494
Re: Whether a school district may charge tuition for students attending a prekindergarten program, and related question (RQ-0107-JC)
Dear Commissioner Nelson:
Your predecessor in office asked two questions regarding a school district's authority to charge tuition in certain circumstances. He asked first whether an independent school district may charge tuition for students under the age of five who attend a prekindergarten program if the students are not "eligible for state-paid pre-kindergarten programs" under section
We conclude that a school district may not charge tuition for either a prekindergarten student or a kindergarten student who is not between the ages of five and twenty-two. Your predecessor's first inquiry assumes that a prekindergarten student who is not "eligible" under section
Section
(a) Any school district may offer prekindergarten classes, but a district shall offer prekindergarten classes if the district identifies 15 or more eligible children who are at least four years of age. A school district may offer prekindergarten classes if the district identifies 15 or more eligible children who are at least three years of age.
(b) A child is eligible for enrollment in a prekindergarten class if the child is at least three years of age and is:
(1) unable to speak and comprehend the English language;
(2) educationally disadvantaged; or
(3) homeless, as defined by
42 U.S.C. § 11302 , regardless of the residence of the child, of either parent of the child, or of the child's guardian or other person having lawful control of the child.
Tex. Educ. Code Ann. §
A school district must admit to free kindergarten in the district a child residing in the district who is at least five years old on September 1 of the school year. See id. § 29.151 (Vernon 1996). Section
Your predecessor's first question asks whether a school district may charge tuition for prekindergarten students who are "ineligible" for purposes of section
As a public entity, a school district may charge a fee or tuition only if it is specifically authorized to do so, either by statute or under the constitution. See Tex. Att'y Gen. Op. No.
We conclude that a school district may not charge tuition for prekindergarten students, solely on account of the students' status as prekindergarten students, because no statute expressly authorizes a school district to do so. Likewise, because no statute expressly authorizes a school district to charge tuition for kindergarten students who are not between the ages of five and twenty-two, we conclude that a school district may not charge tuition for these students solely on account of their ages.
Nonetheless, if a particular prekindergarten or kindergarten student falls into a category of students for which a school district is authorized to charge tuition, the school district may do so. Several statutes expressly authorize a school district to charge tuition for certain specific categories of students, and a student's status as a prekindergarten student or as an under- or overage kindergarten student does not exempt him or her from that authority. Thus, for instance, a school district must charge tuition under section
Our conclusion comports with your agency's understanding of the law. In 1966 the Commissioner of Education held that fees could not be assessed "[i]n the absence of specific authority expressly granted, constitutional or otherwise." See Tex. Att'y Gen. Op. No. H-702 (1975) at 2. And your predecessor states that the Texas Education Agency assumes that fees may be charged only if they have been expressly authorized by statute. See
Request Letter, supra, at 1. The construction placed upon a statute by the agency charged with its administration, while not binding, is entitled to substantial weight. See Dodd v. Meno,
Yours very truly,
JOHN CORNYN Attorney General of Texas
ANDY TAYLOR First Assistant Attorney General
CLARK KENT ERVIN Deputy Attorney General — General Counsel
ELIZABETH ROBINSON Chair, Opinion Committee
Kymberly K. Oltrogge Assistant Attorney General — Opinion Committee