Can a Texas school district charge tuition for prekindergarten or under-age kindergarten students?

Plain-English summary

The Texas Education Agency asked the Attorney General two related questions about tuition. First, may a school district charge tuition for children under five who attend a prekindergarten program but are not "eligible" for the state-paid pre-K program under section 29.153 of the Education Code? Second, may a district charge tuition for kindergarten students who are not yet five or who are twenty-two or older?

The opinion answered no to both, with an important qualification. It started from a settled rule: a public entity like a school district may charge a fee or tuition only when a statute or the constitution specifically authorizes it, and any such authority is strictly construed against allowing a fee by implication. No statute expressly lets a district charge tuition based simply on a student's status as a prekindergarten student, or based simply on a kindergarten student's being outside the five-to-twenty-two age range. So a district may not charge tuition on those grounds alone. The opinion sidestepped the agency's underlying assumption that "ineligible" pre-K children are not entitled to state funding, noting it could answer the tuition question without resolving that point, and flagging that an earlier opinion had concluded prekindergarten children are entitled to the available school fund and Foundation School Program.

The opinion then added the flip side. If a particular pre-K or kindergarten child independently falls into a category for which the law does authorize tuition, the district may charge. It listed examples: a student who resides in a residential facility whose maintenance is paid by another state or the United States (mandatory tuition), a student not domiciled in Texas who lives in tax-exempt military housing, transfer students in certain situations, and contract arrangements between districts. Districts may also charge the specific fees listed in section 11.158. The status as a young or overage student does not exempt a child from those separate tuition rules.

Currency note

This opinion was issued in 2000. 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 Commissioner of Education and TEA (what the opinion held): The opinion confirmed the agency's own understanding that fees may be charged only when expressly authorized by statute. It held a district may not charge tuition for pre-K students or for out-of-range kindergarten students based on that status alone, while leaving the agency's funding-eligibility assumption unresolved.

School districts (what the opinion held for them): The opinion held that district tuition power must rest on express statutory authority, strictly construed. A district could not impose tuition simply because a child was in pre-K or was an under-five or overage kindergartner, but it could and sometimes must charge tuition where a separate statute applies, and could charge the section 11.158 fees.

Parents of pre-K and young kindergarten children (what the opinion held for them): The opinion held that a district could not bill them tuition merely because their child was in prekindergarten or fell outside the standard kindergarten age range, though tuition could still apply if the child fit a specific statutory category such as residing in a government-funded residential facility.

Common questions

Can a Texas district charge tuition for a prekindergarten student?
Not based on pre-K status alone. The opinion held no statute expressly authorizes tuition simply because a child is a prekindergarten student, so a district may not charge on that basis.

What about a kindergartner who is under five or over twenty-two?
Same answer. The opinion held a district may not charge tuition solely because a kindergarten student is outside the five-to-twenty-two age range, since no statute expressly allows it.

Why does a school need express authority to charge tuition?
The opinion explained that a public entity may charge a fee only if a statute or the constitution specifically authorizes it, and such authority is strictly construed against allowing a fee by implication.

Are there situations where tuition is still allowed?
Yes. The opinion held that if a student separately fits a category the law authorizes tuition for, such as residing in a residential facility funded by another government, non-domiciled students in tax-exempt military housing, certain transfers, or inter-district contracts, the district may charge, and it may also collect the fees listed in section 11.158.

Background and statutory framework

A public school district may charge tuition only with specific statutory or constitutional authority, strictly construed against allowing a fee by implication (Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946)). Section 29.153 authorizes and sometimes requires prekindergarten classes and defines eligibility by age and factors such as limited English, being educationally disadvantaged, or homelessness (Tex. Educ. Code Ann. § 29.153(a), (b) (Vernon Supp. 2000); § 5.001(4) (defining "educationally disadvantaged"); 42 U.S.C. §§ 11302, 1751). Districts must admit children at least five years old free of tuition and must admit, free of tuition, persons at least five but not yet twenty-one on September 1 (Tex. Educ. Code Ann. §§ 29.151 (Vernon 1996), 25.001(b) (Vernon Supp. 2000)), and may admit younger children by policy (id. § 42.003(d) (Vernon 1996)). Express tuition authority appears in specific provisions: residential-facility students funded by another government (id. § 25.003(a) (Vernon Supp. 2000)), non-domiciled students in tax-exempt military housing (id. § 25.004 (Vernon 1996)), certain transfer students (id. § 25.038), and contracts where a district does not offer kindergarten (id. § 25.039 (Vernon Supp. 2000)). Districts may also charge the fees listed in id. § 11.158(a), but not those barred by id. § 11.158(b). An administering agency's construction of a statute is entitled to substantial weight though not binding (Dodd v. Meno, 870 S.W.2d 4 (Tex. 1994)).

Citations

Statutory provisions:

• Tex. Educ. Code Ann. §§ 29.153(a), (b), 5.001(4), 29.151, 25.001(b), 42.003(d) (Vernon 1996 & Supp. 2000)
• Tex. Educ. Code Ann. §§ 25.003(a), 25.004, 25.038, 25.039, 11.158(a), 11.158(b)
• 42 U.S.C. §§ 11302, 1751

Cases:

• Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946)
• Dodd v. Meno, 870 S.W.2d 4 (Tex. 1994)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0207
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0207.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

April 12, 2000

Mr. James Nelson
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494

Opinion No. JC-0207

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 29.153 of the Education Code. Letter from Mike Moses, Commissioner of Education, to Honorable John Cornyn, Attorney General (Aug. 25, 1999) (on file with Opinion Committee) [hereinafter "Request Letter"]. Your predecessor also asked whether an independent school district may charge tuition for students enrolled in a kindergarten program who are not yet five years of age or who are twenty-two years of age or older. Id.

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 29.153(b) of the Education Code is not entitled to the benefits of the available school fund and foundation school program. Because we can address a school district's authority to charge tuition without weighing the validity of this assumption, we do not consider it here. Compare Request Letter, supra, at 1 ("All other children are . . . excluded from participation in the state-funded programs."), and Texas Education Agency, Frequently Asked Questions and Answers Prekindergarten (last modified Jan. 13, 2000) http://www.tea.state.tx.us/curriculum/... (stating that "ineligible children are not entitled to the benefits of the Foundation School Program"), with Tex. Att'y Gen. Op. No. DM-196 (1993) at 2, 4 (concluding that "[c]hildren enrolled in prekindergarten classes are entitled to the benefits of the available school fund," as well as "the benefits of the Foundation School Program").

Section 29.153 of the Education Code authorizes, and in some cases requires, a school district to establish a prekindergarten program:

(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. Section 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. § 29.153(a), (b) (Vernon Supp. 2000) (emphasis added); see id. § 5.001(4) (defining "[e]ducationally disadvantaged" as "eligible to participate in the national free or reduced-price lunch program established under 42 U.S.C. [§] 1751 et seq.").

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 25.001(b) of the Education Code requires a school district to admit, "free of tuition," into its public schools "a person who is" at least five but not yet twenty-one years of age on the first day of September of the school year in which admission is sought. See id. § 25.001(b) (Vernon Supp. 2000). A school district may admit a child younger than five years of age if the district has adopted a policy for doing so, see id. § 42.003(d) (Vernon 1996), but it is not clear whether students younger than five years of age must be admitted to a prekindergarten program or may be admitted to a kindergarten program. We assume for the purpose of this opinion that a school district may admit a child younger than five to a kindergarten program if the district has adopted a policy for doing so.

Your predecessor's first question asks whether a school district may charge tuition for prekindergarten students who are "ineligible" for purposes of section 29.153 of the Education Code. See Request Letter, supra, at 1. The second question likewise asks whether a school district may charge tuition for kindergarten students who are not between the ages of five and twenty-two years of age. See id. Both questions presented for our consideration ask, in effect, whether a district may charge tuition in the absence of any statute expressly authorizing a district to do so.

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. DM-22 (1991) at 1; accord Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946). A statute must be "strictly construed against allowing a fee by implication." Moore, 192 S.W.2d at 561; accord Tex. Att'y Gen. Op. No. MW-104 (1979) at 1.

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 25.003 of the Education Code for a prekindergarten or kindergarten student "who resides at a residential facility and whose maintenance expenses are paid in whole or in part by another state or the United States." TEX. EDUC. CODE ANN. § 25.003(a) (Vernon Supp. 2000); see also id. § 25.004 (Vernon 1996) (authorizing school district to charge tuition for "a student who is not domiciled in this state and resides in military housing that is exempt from taxation by the district"); id. § 25.038 (permitting district to charge tuition fee for transfer students in certain circumstances); id. § 25.039 (Vernon Supp. 2000) (requiring school district that does not offer kindergarten to pay district with which it has contract to educate kindergartners resident in that district). In addition, a school district may charge prekindergarten and kindergarten students any of the fees enumerated in section 11.158 of the Education Code. See id. § 11.158(a). But see id. § 11.158(b) (listing items for which school district may not charge).

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, 870 S.W.2d 4, 7 (Tex. 1994).

SUMMARY

Unless it has express statutory authority to do so, a school district may not charge tuition for any student attending a prekindergarten program or for a student who is not between the ages of five and twenty-two years old.

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