Can Texas require students at private for-profit (proprietary) schools to pass the TASP basic-skills test to earn a degree?

TX AG Opinion DM-0481: Can Texas make proprietary-school students pass the TASP test?

Plain-English summary

Education Code section 51.306, as amended in 1997, required each undergraduate entering a public institution of higher education to be tested for reading, writing, and mathematics skills before enrolling in coursework, generally using the Texas Academic Skills Program (TASP) test. A student who scored below the board's standard had to take developmental courses, and a student could not move into upper-division courses until passing the test or earning a B or better in a related freshman course. The section carried a list of exceptions (for example, students with qualifying high-school exit-exam, SAT, or ACT scores, and deaf or blind students under certain conditions) and detailed provisions on developing the test, state funding for developmental courses, paying test costs for needy students, and reporting results.

Senator Teel Bivins, chair of the Senate Education Committee, asked whether the Texas Higher Education Coordinating Board could extend section 51.306, or any part of it, to students seeking degrees at proprietary schools, meaning private business-enterprise schools (for-profit or nonprofit) defined in Education Code section 132.001. The Attorney General concluded the board's power to impose the TASP requirement on proprietary-school students does not come from section 51.306. That section, by its terms, applies only to students at public institutions of higher education, and a proprietary school is not a public institution. So section 51.306 itself does not authorize the board to require proprietary-school students to pass TASP.

The Attorney General then looked at the board's actual source of authority, Education Code section 132.063, which says "[a] proprietary school may offer a degree approved by the Texas Higher Education Coordinating Board." Relying on that statute, the board had adopted rules (19 Texas Administrative Code chapter 12) setting quality standards for proprietary-school applied associate degrees, including a rule that a student enrolling in such a program on or after September 1, 1997 must pass all sections of the TASP examination at the board's level before the degree may be awarded. Where an agency's rulemaking authority is unclear, courts and the Attorney General generally defer to the agency's reasonable, not clearly erroneous, interpretation of its authority. The opinion concluded a court would likely find that the board's power to approve a proprietary-school degree reasonably includes the power to set requirements for that degree, including passing TASP, especially since the goal was to make proprietary-school degrees meet the same quality standards as comparable public-college degrees. The opinion added that courts give weight to an agency's long-standing interpretation and to legislative re-enactment without change: the board first adopted detailed proprietary-school degree rules in 1991, and the Legislature amended the statute in 1995 without curtailing that power, suggesting acquiescence. Finally, because the rule rests on section 132.063 and not section 51.306, it need not carry section 51.306's exceptions or its developmental-course, funding, and reporting provisions; the board may set its own exceptions and requirements, subject to judicial review, and the opinion suggested the board consider the Americans with Disabilities Act when crafting exceptions.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The TASP test has since been replaced by later Texas higher-education assessment programs, and the Education Code provisions and Coordinating Board rules cited here have been amended. Confirm the current statutes, current rules, and the current assessment program before relying on any specific rule.

Who this opinion affected (as of 1998)

Students at proprietary (private for-profit and nonprofit) schools: The opinion meant they could be required to pass the TASP test as a condition of earning an approved associate degree, even though section 51.306 did not reach them directly.

The Texas Higher Education Coordinating Board: The opinion confirmed its TASP-testing rule for proprietary-school degrees was a reasonable exercise of its degree-approval power under section 132.063, not a stretch of section 51.306.

Proprietary schools offering degrees: The opinion told them the board could attach degree requirements like TASP to its approval, and that the board's rule did not have to match section 51.306's exceptions or support provisions.

Common questions

Did section 51.306 (the public-university TASP law) apply to proprietary schools?
No. The opinion concluded section 51.306 by its terms applies only to undergraduates at public institutions of higher education, and proprietary schools are not public institutions, so that section did not authorize requiring their students to pass TASP.

So how could the board require proprietary-school students to take TASP?
Through a different statute. The opinion concluded the board's power under section 132.063 to approve a proprietary-school degree reasonably includes the authority to set degree requirements, and a court would likely uphold a rule requiring TASP as one of those requirements.

Did the board's rule have to include the same exceptions as section 51.306?
No. Because the rule was adopted under section 132.063, not section 51.306, the opinion said it did not have to carry section 51.306's exceptions (such as for deaf or blind students) or its provisions on developmental courses, funding, and reporting. The board could set its own, subject to court review.

Why would a court defer to the board here?
The opinion explained that where an agency's rulemaking authority is in doubt, courts defer to a reasonable, not clearly erroneous, agency interpretation, and they give weight to a long-standing interpretation, here dating to 1991, that the Legislature did not disturb when it amended the statute in 1995.

Background and statutory framework

Education Code section 51.306 required each entering undergraduate at a public institution of higher education to be tested for reading, writing, and mathematics skills before enrolling in coursework, using the TASP test or a board-prescribed alternative (§ 51.306(b), (c)). A below-standard score required developmental courses on the student's campus (§ 51.306(e)), and a student could not enroll in upper-division courses until passing each skill or earning a B or better in a related freshman-level course (§ 51.306(g)). The section exempted students with qualifying high-school exit-exam, SAT, or ACT scores (§ 51.306(l), (m)) and deaf or blind students in certain circumstances (§ 51.306(n), (r)(3)), and it addressed test development, state funding for developmental courses, payment of test costs for needy students, and reporting. For section 51.306, "institution of higher education" has the meaning in section 61.003(8): a public technical institute, public junior college, public senior college or university, medical or dental unit, or other agency of higher education.

"Proprietary school" is defined in section 132.001 as a business enterprise, operated for profit or nonprofit, that offers courses of instruction or study to train or prepare a person for a field of endeavor or for avocational or personal improvement, and that is not otherwise exempt. Educational institutions supported by state or local tax funds are not proprietary schools (§ 132.002). The Attorney General concluded that any board power to impose TASP on proprietary-school students could not come from section 51.306, which reaches only public-institution students.

The board's actual authority was Education Code section 132.063: "A proprietary school may offer a degree approved by the Texas Higher Education Coordinating Board." Under that statute the board adopted rules (19 Texas Administrative Code chapter 12) setting minimum institutional and program quality standards for applied associate degrees, including faculty and administrator qualifications, curriculum elements, and program length, and a rule requiring each student enrolling on or after September 1, 1997 to pass all sections of the TASP examination at the board's level before the degree could be awarded. Applying the deference courts give to an agency's reasonable interpretation of unclear rulemaking authority (citing Le v. Farmers Tex. County Mut. Ins. Co., 936 S.W.2d 317 (Tex. App.-Houston [1st Dist.] 1996, writ denied); Texas Health Facilities Comm'n v. El Paso Med. Surgical Assoc., 573 S.W.2d 291 (Tex. Civ. App.-Tyler 1978, writ ref'd n.r.e.); Attorney General Opinions DM-443 (1997) and DM-216 (1993)), and the weight given to long-standing interpretations and to legislative re-enactment without change (citing Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Bullock v. Marathon Oil Co., 798 S.W.2d 353 (Tex. App.-Austin 1990, no writ)), the Attorney General concluded a court would likely uphold the board's authority to require TASP as a condition of an approved degree. Because the rule rested on section 132.063, it did not have to mirror section 51.306's exceptions or support provisions, and the opinion suggested the board consider the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., in adopting exceptions.

Citations

Statutes and rules:

• Tex. Educ. Code §§ 51.306, 61.003(8), 61.302(2), 132.001, 132.002, 132.063
• 19 Tex. Admin. Code ch. 12 (§§ 12.21, 12.43, 12.44, 12.46, 12.47, 12.48, 12.52)
• Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

Cases:

• Le v. Farmers Tex. County Mut. Ins. Co., 936 S.W.2d 317 (Tex. App.-Houston [1st Dist.] 1996, writ denied)
• Texas Health Facilities Comm'n v. El Paso Med. Surgical Assoc., 573 S.W.2d 291 (Tex. Civ. App.-Tyler 1978, writ ref'd n.r.e.)
• Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967)
• Bullock v. Marathon Oil Co., 798 S.W.2d 353 (Tex. App.-Austin 1990, no writ)

Prior Attorney General opinions:

• Attorney General Opinion DM-443 (1997)
• Attorney General Opinion DM-216 (1993)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0481
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0481.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General, State of Texas

DAN MORALES, ATTORNEY GENERAL

August 10, 1998

The Honorable Teel Bivins
Chair, Senate Education Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. DM-481

Re: Whether Education Code section 51.306, which requires basic skills test for students at public universities, may be applied to students at proprietary schools (RQ-978)

Dear Senator Bivins:

You ask about the authority of the Texas Higher Education Coordinating Board (the "coordinating board" or "board") to extend the application of section 51.306 of the Education Code to proprietary school students. Section 51.306, as amended by the Seventy-fifth Legislature in 1997, requires "[e]ach undergraduate student who enters a public institution of higher education [to] be tested for reading, writing, and mathematics skills prior to enrolling in any coursework." [Footnote: Educ. Code § 51.306(b).] The test to be used by each institution is the Texas Academic Skills Program Test, or "TASP test," or an alternative test prescribed by the board. [Footnote: Id. § 51.306(c).] A student whose performance on the TASP test is below the board-prescribed standard for the tested skill must participate in developmental courses offered by the institution in which the student is enrolled and on the same campus at which the student would otherwise attend classes. [Footnote: Id. § 51.306(e).] A student may not enroll in an upper division course until the student has performed satisfactorily on the test for each skill or earned a grade of "B" or better in a freshman-level course in each skill. [Footnote: Id. § 51.306(g).]

Section 51.306 provides a number of exceptions to its application. For instance, the testing requirements do not apply to a high school student who performs at or above a certain level on the high school exit-level assessment exam, [Footnote: Id. § 51.306(l).] or to an entering or transferring student who has achieved a certain score on the Scholastic Assessment Test or the American College Test. [Footnote: Id. § 51.306(m).] Nor do the testing requirements apply to a deaf student, [Footnote: Id. § 51.306(r)(3).] or to a blind student unless the test is administered by a method appropriate to that student. [Footnote: Id. § 51.306(n).] Section 51.306 also prescribes such things as procedures for development and administration of the test, state funding to institutions for developmental courses, board payment of test costs for financially needy students, and institution reporting of test results. [Footnote: Id. § 51.306(c), (h), (j), (k).]

You ask: "Has the Texas Higher Education Coordinating Board been granted the power to extend the scope of Section 51.306, Education Code, or any part thereof, to students seeking degrees at proprietary schools?" We understand you to use the term "proprietary school" as it is defined in section 132.001 of the Education Code:

(1) "Proprietary school" means any business enterprise operated for a profit, or on a nonprofit basis, that maintains a place of business within this state, or solicits business within this state, and that is not specifically exempted by this chapter and:

(A) that offers or maintains a course or courses of instruction or study; or

(B) at which place of business such a course or courses of instruction or study is available through classroom instruction or by correspondence, or both, to a person for the purpose of training or preparing the person for a field of endeavor in a business, trade, technical, or industrial occupation, or for avocational or personal improvement. [Footnote: Id. § 132.001(1).]

The testing requirements of section 51.306 apply, with certain exceptions, to "[e]ach undergraduate student who enters a public institution of higher education." [Footnote: Id. § 51.306(b).] Clearly, any power on the part of the coordinating board to impose the TASP test requirements on proprietary school students does not come from section 51.306. Section 51.306 by its terms applies only to students attending public institutions of higher education. [Footnote: For purposes of section 51.306, "institution of higher education" has the meaning assigned to it by section 61.003 of the Education Code. Section 61.003 defines "institution of higher education" as "any public technical institute, public junior college, public senior college or university, medical or dental unit, or other agency of higher education as defined in this section." Id. § 61.003(8).] Proprietary schools are not public institutions of higher education. [Footnote: See id. (defining "institution of higher education"); id. § 132.001 (defining "proprietary school"); see also id. § 132.002 (providing that educational institutions supported by funds from state or local taxation are not proprietary schools).] Thus section 51.306 does not authorize the coordinating board to require students enrolled in proprietary schools to pass the TASP test as a condition of obtaining degrees.

We next examine the coordinating board's view that its power to require degree candidates [Footnote: The coordinating board does not assert that it may require non-degree candidates to take the TASP test. A "degree" is defined in the Education Code as "any title or designation, mark, abbreviation, appellation, or series of letters or words, including associate, bachelor's, master's, doctor's, and their equivalents, which signifies, purports to, or is generally taken to signify satisfactory completion of the requirements of all or part of a program of study leading to an associate, bachelor's, master's, or doctor's degree or its equivalent." Id. § 61.302(2).] at proprietary schools to pass the TASP test comes from section 132.063 of the Education Code, which provides: "A proprietary school may offer a degree approved by the Texas Higher Education Coordinating Board." Relying on section 132.063, the board adopted rules establishing the basic standards for degree programs at proprietary schools. [Footnote: 19 T.A.C. ch. 12.] The stated purpose of the rules is to "ensure the integrity of applied associate degrees offered by proprietary institutions." [Footnote: Id. § 12.21.] Proprietary schools offering applied associate degrees and the degree programs themselves are required to "meet minimum institutional and educational program quality standards." The standards established by the board include, among other things, faculty and administrator qualifications, minimum curriculum elements, and length of program requirements. [Footnote: Id. §§ 12.43, .44, .46, .47, .48.]

Significant to your question is the board rule adopted under the authority of section 132.063 that provides: "Each person who enrolls in an applied associate degree program at a proprietary institution on or after September 1, 1997 must pass all sections of the certification form of the Texas Academic Skills Program (TASP) examination at the level established by the Coordinating Board before the degree may be awarded." [Footnote: Id. § 12.52.] The purpose of this rule, according to the board, is to ensure that "degree programs at proprietary schools meet the same quality standards as programs offered at public technical and community colleges." [Footnote: 21 Tex. Reg. 4939 (June 4, 1996) (explaining proposed rule 19 T.A.C. § 12.52).]

We know of no court or attorney general opinion that has examined the scope of the authority granted to the coordinating board in section 132.063 to "approve[]" a degree offered by a proprietary school. Where an agency's rulemaking authority is unclear or in doubt, courts and this office generally defer to the agency's reasonable interpretation of its statutory authority, provided the interpretation is not clearly erroneous. [Footnote: See, e.g., Le v. Farmers Tex. County Mut. Ins. Co., 936 S.W.2d 317, 324 (Tex. App.--Houston [1st Dist.] 1996, writ denied); Texas Health Facilities Comm'n v. El Paso Med. Surgical Assoc., 573 S.W.2d 291, 295 (Tex. Civ. App.--Tyler 1978, writ ref'd n.r.e.); Attorney General Opinions DM-443 (1997) at 2, DM-216 (1993) at 2.] As stated above, the testing requirement is intended by the board to ensure that degree-earners at proprietary schools meet substantially the same qualifications as students earning similar degrees at public institutions of higher education who are required by section 51.306 to take and pass the TASP test. We believe that a court would find that the coordinating board's authority under section 132.063 to approve a degree at a proprietary school reasonably includes the authority to establish requirements for an approved degree and to include within the requirements the prerequisite that students pass the TASP test as a condition of obtaining a degree.

Furthermore, courts give great weight to an agency's long-standing interpretation of a statute of doubtful meaning, and are inclined to accept an agency's interpretation where the legislature re-enacts or amends a statute without substantive change. [Footnote: See Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172, 180 (Tex. 1967); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App.--Austin 1990, no writ).] The coordinating board first adopted detailed rules regarding proprietary school degree programs in 1991 under the authority of chapter 32, the predecessor to current chapter 132. [Footnote: See 16 Tex. Reg. 3524 (June 14, 1991); 16 Tex. Reg. 1334 (Mar. 1, 1991).] The legislature amended the statute in 1995, but did nothing to curtail the scope of the board's power. [Footnote: See Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 2, 1995 Tex. Gen. Laws 2207, 2457.] In such a case, a court is likely to find that the legislature has acquiesced in the agency's interpretation of its statutory authority.

Finally, we note that unlike section 51.306, the board rule for TASP testing at proprietary schools does not provide for any exceptions to its application, such as for deaf or blind students. Nor does the rule contain any of the prescriptions for developmental courses, state funding, reporting, aid to needy students, and similar provisions contained in section 51.306. The rule provides only that a proprietary school student must pass all sections of the TASP examination at the level established by the board before an associate degree may be awarded. Because the board's testing rule was not and could not be adopted under the authority of section 51.306, the rule need not adhere to the requirements of that section. It is within the board's power to establish exceptions or requirements as part of the rule, subject of course to judicial review. [Footnote: The board might wish to consider the requirements of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., in adopting exceptions to the rule.]

SUMMARY

Section 51.306 of the Education Code, which requires each undergraduate student who enters a public institution of higher education to take and pass the Texas Academic Skills Program Test, or "TASP test," does not authorize the Texas Higher Education Coordinating Board to require students enrolled in a proprietary school to pass the TASP test as a condition of obtaining a degree. However, we believe that a court would find that the coordinating board's power under section 132.063 of the Education Code to approve a degree at a proprietary school reasonably includes the authority to require proprietary school students to pass the TASP test as a condition of obtaining a degree.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Barbara Griffin
Assistant Attorney General