Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MAlTOX Angust 7. 1986
Attorney General
Supreme Court Building Mr. William N. Kirlsy Opinion No. JM-529
P. 0. BOX 12548 Commissioner of Eduxition
Austin. TX. 78711.254S
512l4752501
Texas Education Agexy Be: Applicability of the Texas
Telex 9101874~1387 1701 N. Congress Avenue Proprietary School Act to certain
Telecopier 512l4750268 Austin, Texas 787DL enterprises
Dear Mr. Kirby:
714 Jackson. Suite 700
Dallas. TX. 7520245OS
21417428944 You have asked,several questions about the interpretation of the
Texas Proprietary School Act. Educ. Code §§32.01-32.81. We will
answer only the specific questions asked. We note that some
4824 Alberta Ave., Suite
160 provisions of the z.ctmay raise constitutional questions of vagueness
El Paso, TX. 799052793
9151533-3484
or improper delegation. We do not address those questions.
Under the ProlbrietarySchool Act your agency is responsible for
WGl Texas. Suite 700 issuing certificatxs of approval to proprietary schools. Several of
p90n. TX. 77002.3111 your questions have to do with the definition of “proprietary school.”
I .#223-5888
In particular you are concerned about the status of~organizations that
teach courses for avocational purposes.
6W Broadway, Suile 312
Lubbock, TX. 79401.3479 The act defines “proprietary school” as follows:
SoSn47.5238
‘Proprietary School,’ referred to as ‘school,’
4309 N. Tenth. Suite 8 means ar.y business enterprise operated for a
McAllen. TX. 78501-1685 profit, c’ron a nonprofit basis, which maintains a
51216824547 place of business within the State of Texas, or
solicits business within the State of Texas, and
200 MaIn Plaza, suite 400 which is not specifically exempted by the pro-
San Antonio. TX. 782052797 visions of this Chapter and;
51212254191
(A) which offers or maintains a course or
courses of:instruction or study; or
An Equal Opportunity/
Affirmative Action Employer
(B) ill:which place of business such a course
or course:3 of instruction or study is available
through classroom instruction or by correspon-
dence, or both, to a person or persons for the
purpose s,iI
training or preparing the person for a
field of endeavor in a business, trade, technical,
or industrial occupation, or for avocational or
p. 2434
Mr. William N. Kirby - Page 2 (at-529)
personal improv~nent, except as hereinafter
excluded. (Emphmis added).
Educ. Code 532.11(l). Thm. the definition of "proprietary school"
expressly includes an organization that teaches courses for the
purpose of "avocational 01' personal improvement." However, the act
specifically exempts from the definition of "proprietary school"
a school or training program which offers
instruction of pllrelyavocational or recreational
subjects as detemined by the administrator. . . .
Educ. Code 932.12(a)(3)..
Although there are slight differences in wording, the exemption
in section 32.12(a)(3) appears to negate the specific inclusion ia the
definition of "proprietary school" of courses taught for purposes of
"avocational or personal improvement." Statutes apparently in
conflict should be given the most reasonable construction that can be
placed on them consistent with the intent of the legislature. State
v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App. - Rouston 1963) aff'd,
376 S.W.2d 341 (Tex. 1964)
A connnittee report to the Sixty-second Legislature and a law ?
review artic~le both show that the concerns that gave rise to the
Proprietary School Act were focused on regulation of vocational
education in Texas. The Rqort of the Senate Committee on Vocational-
Technical Education to the 62nd Leg., January 1971; Conment, The
Proprietary Vocational School: The Need for Regulation in Texas,-
Tex. L. Rev. 69 (1970). -Also, the act exempts schools that teach
subjects that are "purely" avocational or recreational. Subjects are
not inherently avocational or recreational. Rather, a subject such as
cooking may be vocational or avocational depending on a particular
person's relationship to the subject. We assume that the legislature
intended to exempt schools that teach subjects that are avocational or
recreational for most people and that do not claim to be offering
vocational training. Therefore, we conclude that the most reasonable
reading of section 32.11(l) together with section 32.12(a)(3) is that
a school that teaches courses primarily for vocational training is a
proprietary school, even if the purpose of some of its courses is
merely "avocational or personal improvement." On the other hand, if a
school teaches subject laltter that is primarily considered to be
recreational or avocational and if it does not hold itself out to be
offering vocational training, then it is exempted from the provisions
of the Proprietary SchcNol Act under section 32.12(a)(3). The
legislature left it to the discretion of the commissioner of education
to determine which subjects are primarily avocational or recreational.
Educ. Code 132.12(a)(3).
p. 2435
Mr. William N. Kirby - Page 3 (JM-529)
The preceding discussion of the status of "avocational" courses
guides us in our responses to two of your questions. The first of
those questions is:
How does the term 'purely avocational' differ from
the term 'recreational?
We do not think that the act requires you to distinguish between
courses that are avocaticnal and courses that are recreational.
Rather, as we explained above, we think that the entire phrase "purely
avocational or recreational." should be read to exempt from the
provisions of the Proprietary School Act organizations that do not
claim to be offering vocatj.onaltraining and that teach subjects that
are generally considered to ‘be for non-vocational purposes.
Your second question is:
How would courses which you deem to be purely
avocational difflat from a standard business or
professional course?
The legislature left it to the discretion of the commissioner of
education to determine wha.t types of courses would be exempt under
section 32.12(a)(3). Since many subjects can be taught for either
vocational or avocational puxposes, we think that the act permits the
commissioner to examine thszclaims or advertising of an organization
to determine whether a particular subject is offered for vocational or
avocational purposes.
Your third question is:
Does the Texas Proprietary School Act apply to
private enterprises (regardless of whether they
are profit or nonprofit) which offer courses of
instruction in the use of products they market
when the products in question have applications
which are not exclusively recreational or purely
avocational?
You explain that you are particularly concerned about courses
taught by businesses that sell computers. You note in your letter
that there is no exemption in the act for businesses that instruct
buyers in the use of produc:t:s.We do think, however, that it would be
within the discretion of the commissioner to conclude that certain
types of assistance in he:.ping customers learn how to use a product
are not "courses of instruction or study" for purposes of the
Proprietary School Act and therefore not within the act.
p. 2436
’
Mr. William N. Kirby - Page 4 (x4-529)
Also, even if a computer company does offer “courses of
instruction or study,” it 4s the nature of the courses offered and not
the nature of the product that determines whether courses are exempt
under section 32.12(a)(3). Some courses offered by such businesses
deal with uses for a computer that are primarily for personal use,
rather than business use, Other courses are probably taught for
primarily business or vocational purposes. It is within the
discretion of the commissj.onerto determine which courses fall into
which category.
Your fourth question 1.6:
Pursuant to sect:;on32.12 (courses sponsored by an
employer) at whic!n point must the employer absorb
any tuition cost:;for this exception to apply? If
the employer reinburses the student for all tuition
charges upon suc.cessful completion of the course
(as an incentive! to the student to complete the
same) does the exc,eptionapply?
Section 32.12(a)(4) exempts from the provisions of the
Proprietary School Act
a course or courses of instruction or study
sponsored by an employer for the training and
preparation of 11:sown employees, and for which no
tuition fee is clzzged to the student. . . .
You ask whether the employer must absorb any tuition costs in order
for this exemption to app1.y. The exemption requires that no fee be
charged to the student and that the course be “sponsored by” the
employer. A “sponsor” has been defined as “a person or an organiza-
tion that pays for or pl``~:rand carries out a project or activity.”
Webster’s Ninth New Collegiate Dictionary (1984). Conceivably, then,
an employer could “sponsor” a course by organizing it even if it were
paid for by a third party. Whether a particular course is “sponsored
by” an employer is a question of fact that depends on the
circumstances of a particu:iarcase.
You also ask whether ,ehe exemption for courses sponsored by an
employer is applicable if t’hestudents initially pay a tuition charge
and are subsequently reinbursed by the employer. We do not think
that the requirement of section 32.12(a)(4) that no fee be charged to
students necessarily forecloses such an arrangement. Your question
indicates, however, that :you contemplate a situation in which a
student would not be reimbursed if he did not successfully complete
the course. We do not think that the section 32.12(a)(4) exemption
would apply under those cpccumstances.
,
p. 2437
Mr. William N. Kirby - Page 5~ (JM-529)
Your fifth question is,:
Must each center (or store) where training is
offered be consida!reda separate school?
A "proprietary school" is a "business enterprise . . . which
maintains a place of business . . . or solicits business [in Texas]."
Educ. Code 132.11(l). The word "enterprise" suggests an activity,
%I! William Buchanan Foundation v. Shepperd.
project, or undertaking. ---
283 S.W.2d 325 (Tex. Civ. QI. - Texarkana 1955, no writ). Nothing in
the term "business enterpr:Lse"limits the meaning to one place. We
think that the phrase "main~tainsa place of business . . . or solicits
business" in section 32.11(l) merely sets a minimum on what activity
an enterprise must be engagrd in to come within the Proprietary School
Act. It does not mean &at each separate place of business is a
separate enterprise. A single proprietary school may maintain more
than one place of business. Of course, each separate place of
business maintained by a proprietary school must comply with the
requirements of the Proprietary School Act. See Educ. Code 132.33.
.What constitutes a "business enterprise" will depend on the facts of a
particular case. See ht.torney General Opinion H-313 (1974)
(discussion of term "busines:;entity").
Your sixth question is:
Must sales clerka: in computer stores who take
customer orders for one or more courses be
considered repre::entativesas defined in section
32.11(4), thus rcqliring them to obtain represen-
tative permits?
All representatives employed by a proprietary school must
register with the commissioner of education. Educ. Code 432.37.
Section 32.11(4) defines "representative" as
a person employed by the school as defined herein,
whether the school is located within or without
the State of Texas, to act as an agent, solicitor,
broker, or independent contractor to directly
procure students or enrollees for the school by
solicitation within or without this State at any
place.
That definition contemplates active recruiting of students. Therefore,
the fact that someone acce])tsan application or enrollment form for a
course is not by itself encugh to make that person a "representative."
p. 2438
Mr. William N. Kirby - Pago 6 (JM-529)
SUMMARY
Schools that teach courses in subjects that are
generally considered to be for recreational or
avocational purpmes and that do not claim to be
offering vocatimal training are exempt from the
provisions of the Proprietary School Act. Educ.
Code 5532.11-32.31. It is within the discretion
of the commissioner of education to determine
whether certain Itypes of assistance offered to
help customers learn to use a product are "courses
of instruction or study" for purposes of the
Proprietary School Act.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
WARY KELLER
Executive Assistant Attormy General
RICK GILPIN
Chairman, Opinion Comeittec~
Prepared by Sarah Woelk
Assistant Attorney General
p. 2439