Can a Texas veteran use the Hazlewood Act tuition exemption without first using up their Post-9/11 GI Bill benefits?

Plain-English summary

Texas runs a tuition break for veterans called the Hazlewood Act exemption. Under Education Code section 54.341, a veteran who meets the residency requirements does not pay tuition, dues, fees, and most required charges at the state's public universities and colleges. The exemption has a limit: it does not apply to a veteran who, at the time of registration, is entitled to federal education benefits that may be used only for tuition and fees, if the value of those benefits received equals or exceeds the value of the exemption.

The question in this opinion grew out of how that limit interacts with two different federal GI Bill programs. Under the Montgomery GI Bill (called Chapter 30), the federal government pays a monthly allowance directly to the veteran to help cover subsistence, tuition, fees, books, and other costs. Under the Post-9/11 GI Bill (called Chapter 33), the money goes straight to the university. Federal law does not let a veteran draw both at once, so a veteran has to pick one. The Texas Veterans Commission asked the Texas Higher Education Coordinating Board to adopt a rule keyed to which federal program the veteran elects to pursue. The Commissioner of Higher Education then asked the Attorney General whether the Board had the legal authority to adopt a rule that would let a veteran claim the Hazlewood exemption without first having to exhaust the Chapter 33 benefits the veteran was otherwise entitled to.

The opinion said a court would likely conclude that the Board has that authority. The Board is an administrative agency, so it has only the powers the Legislature gave it expressly or by necessary implication, and it may adopt only rules consistent with its statutory authority. But the Legislature expressly authorized the Board to adopt rules to provide for the efficient and uniform application of section 54.341. Looking at the text of subsection 54.341(e), the opinion noted that the statute repeatedly speaks of benefits "received," not benefits a veteran is merely eligible for. A rule that conditions the exemption on the federal benefits a veteran actually receives, rather than on the benefits the veteran could in theory claim, does not contradict that plain language and is not unreasonable. So a court would likely find such a rule within the Board's authority.

The opinion was careful to answer only the narrow question asked. It did not decide whether other possible rules would be valid, did not address competing readings of subsection 54.341(e), and left it to the Board, subject to judicial review, to fully construe the statute and decide in the first instance whether to adopt the rule the Commission proposed.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Texas Higher Education Coordinating Board (as the opinion described it): The opinion read the Board's rulemaking grant in subsection 54.341(i) broadly enough to support a rule keyed to federal benefits "received." It left the ultimate construction of the statute, and the decision whether to adopt the proposed rule, to the Board in the first instance, subject to judicial review.

Veterans applying for the Hazlewood exemption (as the opinion described it): The opinion treated subsection 54.341(e) as turning on the federal benefits a veteran actually receives. It did not require a veteran to first use up Chapter 33 Post-9/11 GI Bill benefits before claiming the state exemption, and it concluded the statute's text would permit a rule reflecting that.

The Texas Veterans Commission (as the opinion described it): The opinion addressed only whether the Board could adopt the rule the Commission asked for. It did not weigh the policy merits of the rule or direct that it be adopted.

Common questions

Did the Attorney General say a veteran must spend down their Post-9/11 GI Bill before using the Hazlewood exemption?
No. The opinion read section 54.341(e) as keyed to benefits "received," not benefits a veteran is merely entitled to, and it concluded the statute's text would allow a rule letting a veteran claim the exemption without first exhausting Chapter 33 benefits.

What was the actual legal question?
Whether the Texas Higher Education Coordinating Board, as an administrative agency, had the authority to adopt the proposed rule. The opinion concluded a court would likely say yes, because the rule was consistent with the plain text of section 54.341.

Why does the difference between Chapter 30 and Chapter 33 matter?
Under the Montgomery GI Bill (Chapter 30), allowance payments go to the veteran; under the Post-9/11 GI Bill (Chapter 33), money goes directly to the university. A veteran cannot draw both at once, so the question was how the state exemption's limit applies to whichever federal benefit the veteran picks.

Did the opinion settle exactly how the Board must write its rule?
No. It answered the narrow question about authority and left the full construction of subsection 54.341(e), and the decision whether to adopt the rule, to the Board in the first instance, subject to judicial review.

Background and statutory framework

The Hazlewood Act tuition exemption appears in Education Code section 54.341. Subsection (a) exempts qualifying veterans from tuition, dues, fees, and other required charges (excluding general deposit fees, student services fees, and charges for lodging, board, or clothing) at state institutions of higher education. Subsection (e) carves out a limit tied to federal education benefits that may be used only for tuition and fees, and it frames that limit in terms of the value of benefits "received." Subsection (i) authorizes the Board to adopt rules to provide for the efficient and uniform application of the section.

On the federal side, the Montgomery GI Bill Act of 1984 (Chapter 30) and the Post-9/11 Veterans Educational Assistance Act of 2008 (Chapter 33) set up two distinct benefit structures, and federal law, including 38 U.S.C.A. sections 3033(a)(1) and 3322 and 38 C.F.R. section 21.9690, bars a veteran from receiving both at the same time.

For the agency-authority analysis, the opinion relied on Texas Natural Resource Conservation Commission v. Lakeshore Utility Co. and Pruett v. Harris County Bail Bond Board (an agency has only the powers granted or necessarily implied, and may adopt only rules consistent with its statutory authority), and on Railroad Commission v. Texas Citizens for a Safe Future & Clean Water and First American Title Insurance Co. v. Combs (courts defer to an agency's reasonable construction of a statute it enforces so long as the construction does not contradict the plain language). The opinion also cited its own earlier opinion GA-0899 (2011) for leaving operational questions to the agency in the first instance.

Citations

Cases:

• Tex. Nat. Res. Conservation Comm'n v. Lakeshore Util. Co., 164 S.W.3d 368, 377-78 (Tex. 2005)
• Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008)
• R.R. Comm'n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 625 (Tex. 2011)
• First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 632 (Tex. 2008)

Statutes:

• Tex. Educ. Code Ann. § 54.341(a), (e), (i) (West Supp. 2012)
• 38 U.S.C.A. § 3014(a) (West 2002)
• 38 U.S.C.A. § 3313(h) (West Supp. 2012)
• 38 U.S.C.A. §§ 3033(a)(1), 3322 (West 2002)
• 38 C.F.R. § 21.9690 (2011)

Federal legislation referenced:

• Montgomery GI Bill Act of 1984, Pub. L. No. 98-525, 98 Stat. 2553 (1984)
• Post-9/11 Veterans Educational Assistance Act of 2008, Pub. L. No. 110-252, 122 Stat. 2357 (2008)

Prior Attorney General opinion referenced:

• Tex. Att'y Gen. Op. No. GA-0899 (2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0969
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0969.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

September 24, 2012

Raymund A. Paredes, Ph.D. Opinion No. GA-0969
Commissioner of Higher Education
Texas Higher Education Coordinating Board Re: Authority of the Texas Higher Education
Post Office Box 12788 Coordinating Board to promulgate a rule that
Austin, Texas 78711-2788 would permit a veteran who is entitled to two kinds
of federal education benefits to be eligible to apply
for benefits under section 54.341, Education Code,
based upon the federal program to which the
veteran opts to apply rather than on the federal
program which he or she is entitled to use
(RQ-1053-GA)

Dear Commissioner Paredes:

You inquire about the authority of the Texas Higher Education Coordinating Board to promulgate a rule that would permit a veteran who is entitled to two kinds of federal education benefits[1] to be eligible to apply for benefits under section 54.341, Education Code, based upon the federal program to which the veteran opts to apply rather than on the federal program which he or she is entitled to use.[2] Under the federal Montgomery GI Bill program known as Chapter 30, qualifying veterans are eligible to receive monthly allowance payments "to help meet, in part, the expenses of ... subsistence, tuition, fees, supplies, books, equipment, and other educational costs" associated with full-time enrollment at any institution of higher education. 38 U.S.C.A. § 3014(a) (West 2002). In the Post-9/11 GI Bill benefits program known as Chapter 33, educational benefits are remitted directly to the university by the federal government, unlike the allowance payments under Chapter 30, which are paid directly to recipients. See id. § 3313(h) (West Supp. 2012). Federal law precludes veterans from receiving both Chapter 30 and Chapter 33 benefits at the same time. See id. §§ 3033(a)(1), 3322 (West 2002); 38 C.F.R. § 21.9690 (2011) (Nonduplication of Educational Assistance).

Because a veteran may not receive Chapter 30 and Chapter 33 benefits at the same time, the Texas Veterans Commission ("Commission") has asked the Texas Higher Education Coordinating Board (the "Board") to adopt a rule based on which benefits the veteran elects to pursue. See 38 U.S.C.A. §§ 3033(a)(1), 3322 (West 2002); 38 C.F.R. § 21.9690 (2011) (Nonduplication of Educational Assistance). You ask "whether the Hazlewood Act Exemption permits [the Texas Higher Education Coordinating Board] to promulgate rules which would allow a veteran applying for the Exemption who is otherwise entitled to [federal] Chapter 33 benefits to not first exhaust his or her Chapter 33 benefits." Request Letter at 4. You indicate that the Board is concerned that such a rule would conflict with the Board's authority under the Education Code. See id. at 1, 4.

Under the state Hazlewood Act Tuition Exemption ("Exemption"), veterans of the United States military who meet statutory residency requirements are exempt from "tuition, dues, fees, and other required charges, including fees for correspondence courses but excluding general deposit fees, student services fees, and any fees or charges for lodging, board, or clothing" at state universities and institutions of higher education. TEX. EDUC. CODE ANN. § 54.341(a) (West Supp. 2012). The Legislature, however, limited the Exemption by providing that it "does not apply to a person who at the time of registration is entitled to receive educational benefits under federal legislation that may be used only for the payment of tuition and fees if the value of those benefits received ... is equal to or exceeds the value of the exemption ...." Id. § 54.341(e).

The legal issue you present is whether the Board, an administrative agency, has the authority to adopt a rule. An administrative agency has only those powers expressly granted to it by statute and those necessarily implied from its statutory authority or duties. See Tex. Nat. Res. Conservation Comm'n v. Lakeshore Util. Co., 164 S.W.3d 368, 377-78 (Tex. 2005). Accordingly, an "agency may adopt only such rules as are authorized by and consistent with its statutory authority." Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008) (citation omitted). A court will generally defer to an agency's interpretation of the statute it is charged with enforcing, "'so long as the construction is reasonable and does not contradict the plain language of the statute.'" R.R. Comm'n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 625 (Tex. 2011) (quoting First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 632 (Tex. 2008)). Here, the Legislature expressly authorized the Board to promulgate rules "to provide for the efficient and uniform application of [section 54.341]." TEX. EDUC. CODE ANN. § 54.341(i) (West Supp. 2012). Thus, we examine the relevant language of section 54.341.

Subsection 54.341(e) provides that

[t]he exemption from tuition, fees, and other charges provided for by this section does not apply to a person who at the time of registration is entitled to receive educational benefits under federal legislation that may be used only for the payment of tuition and fees if the value of those benefits received in a semester or other term is equal to or exceeds the value of the exemption for the same semester or other term. If the value of federal benefits that may be used only for the payment of tuition and fees and are received in a semester or other term does not equal or exceed the value of the exemption for the same semester or other term, the person is entitled to receive both those federal benefits and the exemption in the same semester or other term. The combined amount of the federal benefit that may be used only for the payment of tuition and fees plus the amount of the exemption received in a semester or other term may not exceed the cost of tuition and fees for that semester or other term.

Id. § 54.341(e). By its plain language, subsection 54.341(e) consistently refers to "benefits received." See id. The first sentence's restriction applies "if the value of those benefits received in a semester or other term is equal to or exceeds the value ...." Id. (emphasis added). The second sentence applies only "[i]f the value of federal benefits that may be used only for the payment of tuition and fees and are received in a semester or other term does not equal or exceed the value ...." Id. (emphasis added). And the final sentence also speaks in terms of the "exemption received," not the amount for which the veteran is eligible. See id. Given this clear language, a rule conditioning the application of the Exemption on the basis of benefits received rather than on the benefits to which the veteran is entitled is not contrary to the plain language of subsection 54.341(e). Nor can we say that such a proposed rule is unreasonable under the language of subsection 54.341(e). Accordingly, a court would likely conclude that such a proposed rule is within the scope of the Board's authority.

Because you ask a specific question about one aspect of a particular proposed rule, we do not generally address the discretion of the Board to implement alternatives to this proposed rule. Nor do we address the validity of different interpretations or constructions of subsection 54.341(e). Further, because the Texas Legislature has charged the Board with applying the Hazlewood Act, we recognize that it is the Board's responsibility in the first instance, subject to judicial review, to fully construe subsection 54.341(e) and to determine whether to adopt a rule such as that proposed by the Commission. See Tex. Att'y Gen. Op. No. GA-0899 (2011) at 2-3 ("Rather, we leave it to the [State Cemetery] Committee to determine, in the first instance and subject to judicial review, the exact scope of its operational authority, and whether that authority necessarily includes the power to regulate bicycles."). We conclude only that the plain text of subsection 54.341(e) does not preclude a rule that allows a veteran applying for the Hazlewood Act Tuition Exemption who is eligible for federal Chapter 33 benefits to not first exhaust his or her Chapter 33 benefits.

SUMMARY

Under section 54.341 of the Education Code, a court would likely conclude that the Texas Higher Education Coordinating Board has authority to adopt a rule which would allow a veteran applying for the state Hazlewood Act Tuition Exemption who is otherwise entitled to federal Chapter 33 benefits to not first exhaust his or her Chapter 33 benefits.

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] See Montgomery GI Bill Act of 1984, Pub. L. No. 98-525, 98 Stat. 2553 (1984) (codified as amended at 38 U.S.C.A. §§ 3001-36 (West 2002 & Supp. 2012) and 10 U.S.C.A. §§ 708, 2006, 2138, 16136 (West 2010 & Supp. 2012)) ("Chapter 30"); Post-9/11 Veterans Educational Assistance Act of 2008, Pub. L. No. 110-252, 122 Stat. 2357 (2008) (codified as amended at 38 U.S.C.A. §§ 3301-24 (West 2002 & Supp. 2012) and 10 U.S.C.A. § 16132a (West Supp. 2012)) ("Chapter 33").

[2] See Letter from Raymund A. Paredes, Ph.D., Comm'r, Tex. Higher Educ. Coordinating Bd., to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Apr. 13, 2012), http://texasattorneygeneral.gov/opin ("Request Letter").