THE .L%THBRNEW GENERAL
UD)FmXAS
April 29, 1969,
Honorable J. W. Edgar Opinion No. m-386
Commissionerof Education
201 Eaet 11th Street Re: Validity of State Board
Austin, Texas 78711 of Education regulation
requiring that State ln-
etltutlonsof higher learn-
ing reimburse the Central
Education Agency for
actual travel and per
diem expenses of members
Dear Dr. Edgar: of evaluation teams.
In your recent letter to this office you have re-
quested our opinion as to the validity of a remlation pro-
mulgated by the State Board of Education which requires that
an instltutlonof higher learning, which applies for approval
of Its program of teadher education, must reimburse the Central
Education Agency for the travel and the per diem expenses of
the evaluating committee which visits the institutionfor the
purpose of reviewing and reporting upon the teacher education
program offered by such Institution.
The regulation In question is embodied In Policy
Section 10.4, which reads, In part, as follows:
“10.4. PROCEIXJRES
FOR APPLYINO TEACHER
EMCATION STANDARDS
“All programs of teacher education In
Texas must be approved by the State Board
of Education.
“1. Procedure for securing approval:
“a. An Institutiondesiring approval shall
file an applicationwith the Texas Education
Agency, listing the teacher education programs
for which approval Is desired.
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Dr. J. W. Edgar, page 2(M-386
“b. The applying Institutionswill receive
from the Agency ten sets of schedules pertaining
to the programs for which approval is desired.
"C. An evaluating committee, appointed by
the State Commissionerof Education, will review
the schedules and visit the Institutionfor the
purpose of reviewing and reporting the teacher
education program. The size and compositionof
the committee will be in keeping with the nature
and scope of the program being evaluated.
"d. The commissionerof Education, with
the adelce of the State Board of Examiners for
Teacher Education, will use all the Information
submitted about an institutionas the basis for
making his recommendationto the State Board of
Education. If the recommendationIs unfavorable,
the applying Institutionmay file a formal pro-
test with the,State Board of Education.
“2. The expenses of the evaluating com-
mittee, except for expenses incurred by rep-
resentativesof the Texas Education Agency,
shall be borne by the applying Institution.
II
. . .II
You state in your letter of request that, under the
authority of this regulation, the Central Education Agency has
entered into Inter-agencycontracts with each Institutionseek-
ing approval for its teacher education program and, pursuant to
such contracts, obtained reimbursementfor the travel and per
diem expenses of the evaluating teams which visited the lnstl-
tutions for the purpose of evaluating and reporting upon their
teacher education program.
The authority of the State Board of Education with
regard to rules and regulations pertaining to the certiflca-
tlon of teachers and approval of teacher education programs
offered by Institutionsof higher education is embodied in
Section 2 of Article 2891b, Vernon's Civil Statutes. This
Section reada as follows:
"Sec. 2. The State Board of Eduaation,
with the advice and assistance of the State
Commissionerof Education, is hereby authorized
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Dr. J. W. Edgar, page 3 (M-386
to ebtabllsh such rules and regulationsas are
not Inconsistentwith the provisions of this
teacher certificationlaw and which may be
necessary to administer the responsibilities
vested under the terms of this Act concerning
the Issuance of certificatesand the standards
and procedures for the approval of colleges
and unlversltleaoffering programs of teacher
education.
“In order to secure profeaelonaladvice
in advising or making his recommendationsto
the State Board of Education, the Commlssloner
of Education shall consider recommendationsof
the State Board of Examiners for Teacher Educa-
tion In all matters covered by this Act.”
It should be noted that the authority given to the
State Board of Education to promulgaterules and regulations
under Section 2 of Article 2891b Is specificallylimited to
‘8uch rules and regulations as are not lnconslatentwith the
provisions of this teacher certificationlaw and which may be
necessary to administer the responelbllltlesvested under the
temns of this Act .‘I This is In keeping with the well recognized
prlnolples of law applicable to administrativeagencies. 1 Tex.
Jur.2d 656-657,AdmlnlstratlveLaw, 1111. We hold that the
regulatton designated as Policy Section 10.4, Subdivision 2,
conflicts with the Intention of the Legislatureas expreesed
in Section 3 of Article 2891b and the currenti.and prior ap-
propriationsto the Central Education Agency.
The relevant portions of Section 3 of Article 2891b
read as follows:
I, . .No applicant shall receive a teacher
certificate of any class or kind, except as
otherwise hereinafter provided, without first
depositing with the State Commissionerof
Education the application fee prescribed to
be paid under the provisions of this Act for
the particular type or alass of certificate
requested.
“All application fees oollected under the
provlalons of the teacher certlflcatlonlaws
shall be used to cover the expenses of lnspec-
tlon and lden.tlflcatlonof approved college or
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. .
or. J. W. Edgar, page 4 (M-386
university teacher education prograys and of
recording and leulng certlfloates.
The plain language of this Se&Ion speclflcally
dedicates a portion OS the fees, which accompany applications
for certification,for the purpose of defraying the expenses
of Inspection and ldentlflcatlonof teacher education pro-
grams at,collegesand unlvereitles. The current Qemeral
AppropriationAct, and prior approprlatlbnato the Central
Education Agency, contain a specific appropriationfor
“travel of official committees appointed by the Commissioner
of ‘Education.” This would certainly Include the evaluating
committee a pointed under Regulation 10.4. Section 2 of
Article 265il-7, Vernon’s Civil Statutes, further provides
that the expenses of official Commissionersappointed to
advise the Commissionerof Education ‘shall be Included
within the regular operating budget of the State Department.
of,Education flentral Education Agenc#’
It Is Incumbent upon the State Board of Education
to appro~vecolleges and universities offering programs of
teacher education, and the provisions of Section 2 of Article
2891b speclSlcallyauthorize the Board, by rule and regulation,
to establish the standards and procedures for such approval.
While we recognize that the power of the Board In this regard
is embodied In rather broad language, we are persuaded that
the specific language of Section 3 of the same Article, together
with t&t of Section 2 of Article 2654-7, and the consistent
action of the Legislature in appropriatingSunds to cover the
travel expense of the evaluating committees,necessarily pre-
cludes any Implied authority on the part of the Board to require
that a college or university, being considered for approval,
bear the burden of the travel and per diem expense of the
evaluating committee.
Therefore, you are hereby advised that It is our
opinion that Subparagraph2 OS the rule or regulation designated
by the Board of Education as Policy Section 10.4 exceeds the
authority of the Board and is therefore invalid.
We are also of the opinion that the Interagency
CooperationAct, Article 4413(32) of Vernon’s Civil Statutes,
does not empower one agency to exact of another relmburaement
for services which It Is otherwise obllgated to perform for
that agency and the Legislaturehas appropriatedfunds tc be
used for that purpose,
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. . -
Dr. J. W. Edgar, page 5 (~-386
SUMMARY
The rule or regulation of the State Board
of Education which requires that a college or
university seeking approval of Its teacher ed-
ucation program reimburse the Central Educa-
tion Agency for the travel and per diem expenses
of the members of the evaluating committee which
inspects such college or university exceeds the
authority conferred upon the Board by Article
289113,V.C.S., and is not authorized by Article
4413(32), V.C.S.
General of Texas
Prepared by W. 0. Shultz
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Sam Kelley
Bob Davis
Wardlow Lane
Ralph Rash
W. V. OEPPERT
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant
-1910-
Untitled Texas Attorney General Opinion
Combined Opinion