Which private colleges qualify for the Texas B-On-Time student loan program?

Plain-English summary

Raymund Paredes, the Texas Commissioner of Higher Education, asked the Attorney General which colleges could take part in the Texas B-On-Time Loan Program, a state program that gave eligible students no-interest loans to earn a bachelor's degree at public and private Texas institutions. The dispute came down to the word "eligible."

For the B-On-Time program, the Education Code says an "eligible institution" includes a private or independent institution of higher education that offers baccalaureate degrees, but it defines that phrase narrowly. It covers only a private college or university accredited by one of three bodies: the Commission on Colleges of the Southern Association of Colleges and Schools (SACS), the Liaison Committee on Medical Education, or the American Bar Association. A private college that lacks one of those three accreditations is not eligible.

The question came up because Paul Quinn College, which did not have one of those three accreditations, pointed to a different statute, section 61.222, and argued it let the Higher Education Coordinating Board approve the college for the B-On-Time program. But section 61.222 belongs to a different program, the Tuition Equalization Grants Program. In 2013, the Legislature had added a temporary-approval path in section 61.222(b) and (c) for a private institution that previously qualified but lost the accreditation public institutions hold, if it meets several conditions (it is accredited by a board-recognized accreditor, is actively working toward the same accreditation as public institutions, participates in a federal financial-aid program, and is a federally defined "part B institution"). Paul Quinn used that path to participate in the Tuition Equalization Grants Program.

The AG explained that this temporary-approval path applies only to the tuition-equalization grant program, not to the B-On-Time loan program. The 2013 act's own preamble said it concerned only temporary approval for the tuition equalization grant program. The AG reasoned that if the Legislature had wanted to broaden eligibility for the B-On-Time program, it could have amended the B-On-Time subchapter or the definition in section 61.003, and it did not. Applying the rule that a term used in one part of a statute and left out of another should not be implied where excluded, the AG concluded section 61.222 does not expand the institutions eligible for the B-On-Time Loan Program. So the three-accreditor requirement still controlled.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis, and state financial-aid programs are periodically restructured or discontinued. Treat this page as historical context, not current legal advice. Verify current law and program status before relying on any specific rule mentioned here.

What the opinion meant for those who asked

The Higher Education Coordinating Board (as the opinion described it): The opinion described the Board as limited, for the B-On-Time program, to treating as eligible only private institutions accredited by SACS, the Liaison Committee on Medical Education, or the American Bar Association. It described section 61.222's temporary-approval mechanism as confined to the Tuition Equalization Grants Program.

Private colleges seeking B-On-Time eligibility (as the opinion described it): The opinion described a private or independent institution as ineligible for the B-On-Time program unless it held one of the three listed accreditations, and said the tuition-equalization temporary-approval path did not carry over.

Students relying on B-On-Time loans (as the opinion described it): The opinion described eligibility for a B-On-Time loan as requiring enrollment in a baccalaureate program at an eligible institution, with the institution's accreditation status determining eligibility.

Paul Quinn College specifically (as the opinion described it): The opinion described the college as eligible for the Tuition Equalization Grants Program through section 61.222's temporary-approval path, but explained that the same path did not make it eligible for the B-On-Time Loan Program.

Common questions

Which private colleges can participate in the Texas B-On-Time Loan Program?
The AG said only private or independent colleges accredited by the Commission on Colleges of the Southern Association of Colleges and Schools, the Liaison Committee on Medical Education, or the American Bar Association. A private college without one of those accreditations is not eligible.

Does the section 61.222 temporary-approval rule help with B-On-Time loans?
No. The AG explained that section 61.222's temporary-approval path applies only to the Tuition Equalization Grants Program, a separate program, and does not expand eligibility for the B-On-Time Loan Program.

Why does the same college qualify for one program but not the other?
The AG pointed to the statutes' text. The Legislature added a temporary-approval option for the tuition-equalization grants but did not add a parallel option for the B-On-Time loans. The opinion applied the principle that a term used in one section and omitted from another should not be implied where it was left out.

What is the Texas B-On-Time Loan Program?
The opinion described it as a program the Legislature created to give no-interest loans to eligible students so they could earn bachelor's degrees at public and private or independent Texas institutions of higher education.

Who decided this and at whose request?
The opinion was issued by the Attorney General at the request of the Commissioner of Higher Education, who asked which institutions were eligible after Paul Quinn College argued it qualified.

Background and statutory framework

The Legislature created the Texas B-On-Time Loan Program in chapter 56, subchapter Q of the Education Code to provide no-interest loans to eligible students for baccalaureate degrees at public and private or independent Texas institutions (Tex. Educ. Code Ann. § 56.452(b); §§ 56.451-.465). A student must be enrolled in a baccalaureate program at an "eligible institution" (Tex. Educ. Code Ann. § 56.455(3)). For private schools, "eligible institution" reaches a private or independent institution of higher education offering baccalaureate degrees, and that phrase is defined to include only a private college or university accredited by the Commission on Colleges of the Southern Association of Colleges and Schools, the Liaison Committee on Medical Education, or the American Bar Association (Tex. Educ. Code Ann. § 56.451(2)(C); § 56.451(3); § 61.003(15)(C)).

Paul Quinn College, lacking one of those three accreditations, relied on section 61.222 of the Education Code. That section sits in the subchapter governing the Tuition Equalization Grants Program (Tex. Educ. Code Ann. §§ 61.221-.230; § 61.221). Before the 83rd Legislative Session, only private or independent institutions as defined by section 61.003 could be approved for that grant program; in 2013, the Legislature added subsections 61.222(b) and (c), letting the coordinating board temporarily approve a previously qualifying institution that no longer holds the accreditation public institutions hold, if it is accredited by a board-recognized accreditor, is working toward the same accreditation as public institutions, participates in the federal financial-aid program under 20 U.S.C. § 1070a, and is a "part B institution" under 20 U.S.C. § 1061(2) and 34 C.F.R. § 608.2 (Tex. Educ. Code Ann. § 61.222(a), (b)-(c)).

The AG noted that the 2013 act's preamble described it as concerning only temporary approval for the tuition equalization grant program, and that a court may consider a preamble in construing a statute (Tex. Gov't Code Ann. § 311.023(7)). Because the Legislature did not amend the B-On-Time subchapter or the section 61.003 definition, and a term used in one statutory section but omitted from another should not be implied where excluded, the AG concluded section 61.222 does not expand the institutions eligible for the B-On-Time Loan Program (Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995)).

Citations

Statutory provisions:

• Tex. Educ. Code Ann. § 56.452(b); §§ 56.451-.465 (Texas B-On-Time Loan Program)
• Tex. Educ. Code Ann. § 56.455(3) (eligibility; enrollment at an eligible institution)
• Tex. Educ. Code Ann. § 56.451(2)(C); § 56.451(3); § 61.003(15)(C) ("eligible institution"; accreditation requirement)
• Tex. Educ. Code Ann. §§ 61.221-.230; § 61.221; § 61.222(a), (b)-(c) (Tuition Equalization Grants Program; temporary approval)
• Tex. Gov't Code Ann. § 311.023(7) (consideration of a statute's preamble)
• 20 U.S.C. § 1070a; 20 U.S.C. § 1061(2); 34 C.F.R. § 608.2 (federal financial aid; "part B institution")
• Act of May 20, 2013, 83d Leg., R.S., ch. 1341, § 1, 2013 Tex. Gen. Laws 3555 (2013 amendment adding section 61.222(b)-(c))

Cases:

• Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0018
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0018.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 11, 2015

Raymund A. Paredes, Ph.D. Opinion No. KP-0018
Commissioner of Higher Education
Texas Higher Education Coordinating Board Re: Institutions eligible to participate in the
Post Office Box 12788 Texas B-On-Time Loan Program under
Austin, Texas 78711 Chapter 56, Subchapter Q of the Education
Code (RQ-1230-GA)

Dear Commissioner Paredes:

You ask for an opinion regarding which institutions are eligible to participate in the Texas B-On-Time Loan Program. [1] Through chapter 56, subchapter Q of the Education Code, the Legislature created the Texas B-On-Time Loan Program, the purpose of which is "to provide no interest loans to eligible students to enable those students to earn baccalaureate degrees at public and private or independent institutions of higher education in this state." TEX. EDUC. CODE ANN. § 56.452(b) (West Supp. 2014); see id. §§ 56.451-.465 (West 2012 & Supp. 2014). To be eligible for a Texas B-On-Time Loan, a person must "be enrolled ... in a baccalaureate degree program at an eligible institution." Id. § 56.455(3) (West Supp. 2014) (emphasis added).

"Eligible institution" is defined for purposes of subchapter Q to include, among others not relevant here, "a private or independent institution of higher education that offers baccalaureate degree programs." Id. § 56.451(2)(C). "Private or independent institution of higher education" is further defined to include "only a private or independent college or university that is ... accredited by: (i) the Commission on Colleges of the Southern Association of Colleges and Schools; (ii) the Liaison Committee on Medical Education; or (iii) the American Bar Association." Id. §§ 56.451(3) (adopting the definition in subsection 61.003(15)(C) of the Education Code); 61.003(15)(C). Thus, a "private or independent institution of higher education" is not an eligible institution for purposes of the Texas B-On-Time Loan Program unless it is accredited by one of the three accrediting agencies listed in subsection 61.003(15)(C) of the Education Code.

You explain that although Paul Quinn College is not accredited by one of the three accrediting agencies listed in subsection 61.003(15)(C), it has argued that section 61.222 of the Education Code "authorizes the Texas Higher Education Coordinating Board to allow the college to participate in the Texas B-On-Time Loan Program." Request Letter at 2. Section 61.222 is located in Chapter 61, subchapter F of the Education Code, which authorizes and governs the Tuition Equalization Grants Program. See TEX. EDUC. CODE ANN. §§ 61.221-.230 (West 2012 & Supp. 2014). Similar to the Texas B-On-Time Loan Program, students may receive a tuition equalization grant only if they are enrolled in a statutorily-authorized institution. See id. § 61.221 (West 2012) (explaining that a student must be "enrolled in any approved private Texas college or university"). Prior to the Eighty-third Legislative Session, only those institutions that were "private or independent institutions of higher education as defined by Section 61.003" could be approved institutions for purposes of the Tuition Equalization Grants Program. See id. § 61.222(a) (West Supp. 2014). In 2013, however, the Legislature added subsections 61.222(b) and (c), which state:

(b) The coordinating board may temporarily approve a private or independent institution of higher education as defined by Section 61.003 that previously qualified under Subsection (a) but no longer holds the same accreditation as public institutions of higher education. To qualify under this subsection, an institution must be:

(1) accredited by an accreditor recognized by the board;

(2) actively working toward the same accreditation as public institutions of higher education;

(3) participating in the federal financial aid program under 20 U.S.C. Section 1070a; and

(4) a "part B institution" as defined by 20 U.S.C. Section 1061(2) and listed in 34 C.F.R. Section 608.2.

(c) The coordinating board may grant temporary approval for a period of two years and may renew the approval once.

Id. § 61.222(b)-(c); see also Act of May 20, 2013, 83d Leg., R.S., ch. 1341, § 1, 2013 Tex. Gen. Laws 3555, 3555.

You explain that Paul Quinn College is eligible to participate in the Tuition Equalization Grants Program because of the amendments to section 61.222. Request Letter at 2. However, the amendments to section 61.222 relate only to "the temporary approval of an institution to participate in the tuition equalization grant program." Act of May 20, 2013, 83d Leg., R.S., ch. 1341, 2013 Tex. Gen. Laws 3555, 3555 (preamble); see also TEX. GOV'T CODE ANN. § 311.023(7) (West 2013) (providing that courts may consider the preamble when construing a statute). Had the Legislature intended to similarly broaden the definition of "eligible institution" for purposes of the Texas B-On-Time Loan Program, it could have amended chapter 56, subchapter Q of the Education Code or the definition of "private or independent institution of higher education" in section 61.003 of the Education Code to do so. When the Legislature employs a phrase in one section of a statute and excludes it in another, the "term should not be implied where excluded." Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995). Thus, section 61.222 does not operate to expand the institutions eligible to participate in the Texas B-On-Time Loan Program.

SUMMARY

Sections 56.451 and 61.003 of the Education Code require that a private or independent institution of higher education be accredited by the Commission on Colleges of the Southern Association of Colleges and Schools, the Liaison Committee on Medical Education, or the American Bar Association in order to be considered an eligible institution for purposes of the Texas B-On-Time Loan Program.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Assistant Attorney General, Opinion Committee

[1] Letter from Raymund A. Paredes, Comm'r of Higher Educ., Tex. Higher Educ. Coordinating Bd., to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Nov. 3, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").