Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MATTOX December 23, 1985
Attorney General
Supreme Court Building Mr. W. N. Kirby Opinion No. JM-@g
P. 0. Box 12548 Commissioner of Education
A”S1i”, TX. 78711-2548 Texas Education Agency Re: Whether regulations adopted
512/475-2501 201 E. Eleventh Street by the State Board of Education
Telex 9101874-I 367
Telecopier 5121475-0266
Austin, Texas 78701 implementing teaching competency
examinations CornPlY with the
requirements of section 13.047(g)
714 Jackson, Suite 700 of the Education Code
Dallas, TX. 75202.4506
214l742-8944
Dear Mr. Kirby:
4824 Alberta Ave., Suite 180 Pou have requested our opiuiou in regard to certain proposed
E, Paso. TX. 79905.2793 procedures for .mlidatLng alternative examinations for teacher
9151533-3484 certification under section 13.047(g) of the Education Code. Chapter
13 of the Education Code provides for the certification of teachers
1001 Texas, Suite 700 within the state. Section 13.032 authorizes the State Board of
Houston, TX. 77002-3111 Education to prescribe a comprehensive examination as a condition to
713/223-5886 full certification of a teacher and au administrator. See Educ. Code
913.032(s). Sectlon 13.047 directs the Board to requirzatisfactory
uerformauce on an examination orescribed bv the board as a condition
SOSBroadway, Suite 312
Lubbock, TX. 79401-3479
for continued certification of' teachers and administrators who have
906/747-5238 not taken au exa&ation purusaut to section 13.032(e). See Educ.
Code 113.047(a). The examinations prescribed by section 13.032(e) and
sectiou 13.047(b) are the only examinations mm allowed to be utilized
4309 N. Tenth, Suite B
McAllen, TX. 78501-1685
for the purpose o:! testing teacher and admLnistrator competency, but
5,2/682-4547 prior to the promulgation of the section 13.032(e) examination,
section 13.047(g) p,rovidedthat certain examinations taken before that
time could furnish ,asubstitute.
200 Main Plaza. Suite 400
San Antonio, TX. 782012797
Section 13.Odi7(g) provides an exemption from the examination
512/225-4191
prescribed by sect,ion 13.047(b) for any teacher or administrator who
has taken a distr:tct examination meeting the requirements of section
An Equal OppOrtUnitYl 13.047(g) prior tl> the promulgation of the section 13.047(b) test.
Affirmative Action Employer Section 13.047 prov,Ldesin part:
(b) The board shall prescribe an examination
designed to test knowledge appropriate to teach
primary grades and an examination designed to test
knowledgk appropriate to teach secondary grades.
The secondary teacher examinations must test the
knowledgs of each examinee in the subject areas
listed 21 Section 21.101 of this code in which the
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i
Mr. W. N. Kirby - Page 2 (JX-&O~J
examinee is certtfied to teach and is teaching.
If a teacher is rat tested in an area of certifi-
cation, the teacher must take the examination for
that area within three years after beginning to
teach that subject. The administrator examina-
tions must test administrative skills, knowledge
in subject areas, .andother matters that the board
considers appropriate. The examinations must also
test the ability DE the examinee to read and write
with sufficient sk:Llland understanding to perform
satisfactorily ac: a professional teacher or ad-
ministrator.
. . . .
(g) The board may exempt from the examination
required by this section any person who, before
the examination a$>pted under this section is pre-
scribed, performed satisfactorily on an examina;
tion administered by an employing district if the
board finds the e,xamination to be substantially
the same or at l&t as difficult as the examina-
tion prescribed by the board. (Emphasis added).
Educ. Code 413.047(b), (g). Thus, the section 13.047(g) exemption
only affected the limited number of teachers and administrators who
had taken district examina::tons prior to the board's adoption of an
examination for continued certification. We understand that the
proposed rules submitted ar % to provide a procedure within the Central
Education Agency whereby the board might determine who has been
exempted from the examination requirements of section 13.047(b).
The general test stated by the courts concerning an agency's
statutory authority to prouulgate rules is whether the rules involved
are in harmony with the gensaralobjectives of the applicable act. See
Gerst v. Oak Cliff Savings! b Loan Association, 432 S.W.2d 702, 706
(Tex. 1968). Further, tht; rules may not add additional burdens,
restrictions or conditionr: in excess of those authorized by the
statute. See Bexar County 131111Bond Board v. Deckard, 604 S.W.2d 214,
216 (Tex.Civ. App. - S;;;,Antonio 1980, no writ). Finally, in
adopting rules, an agency mist not act arbitrarily or capriciously and
must have a legitimate reasllnfor enactment of the rules. See Bullock
v. Hewlett-Packard Company, 628 S.W.2d 754, 757 (Tex. 1982)T
The board has the aut:hority to promulgate rules to evaluate
alternate district examinat:Lons under section 13.047(g). The only
restrictions placed upon the:board are that the alternate examinations
must have been "substantially the same" or "at least as difficult" as
an examination prescribed IIJ'the board under section 13.047(b). -See
Educ. Code $13.047(b), (g).
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Mr. W. N. Kirby - Page 3' (n&408)
Section 13.047(b) aut%rizes the board to prescribe examinations
designed to test knowledge appropriate to teach primary grades; one to
test knowledge appropriate to teach secondary grades: and examinations
to test administrative ski,lls. See Educ. Code 913.047(b). Pou have
characterized these examinU:ions~the 'ITexasExamination of Current
Teachers and Administrators" (TECAT). Each teacher or administrator
is to take the appropriate examination in his area of professional
certification. Id. The provision also specifies what should have
been tested in eachexamination. -Id.
We express no opinion on the validity of these standards. See
Allstate Insurance Companez. State Board of Insurance, 401 S.W.2d 131
(Tex. Civ. App. - Austin 1966,sen.r.e.); also 2 Tex.
Jur. 3d Administrative FLEW 916. Moreover, the standards proposed
entail exnert factual d;terminations which this office is not
authorized to decide. See United States v. State of South Carolina,
445 F. Supp. 1094 (D.Sx' 1977). aff'd mem., 434 U.S. 1026 (1978)
(test validation requires expert knowlec See also Note, Minimum
Competency Testing of Teac'%rs for Certification: Due Process, Equal
Protection and Title VII 1; lications 70 Cornell L.Rev. 494 (1985).
--
However, we advise that the:board s discretion should not be exercised
in an arbitrary or capricixls manner. See Bullock v. Hewlett-Packard
Company, 628 S.W.Zd 754, 757 (Tex. 1982).The board must also comply
with section 5 of the Texas Administrative Procedure and Texas
Register Act. -See V.T.C.S. art. 6252-13a, 05.
SUMMARY
Section 13.047(g) of the Texas Education Code
authorizes the S:ate Board of Education to pro-
mulgate proceduzes for validating alternate
examinations that have been taken prior to the
promulgation of tf!stspursuant to section 13.047(b).
The discretion of the board should not be exercised
in an arbitrary or capricious manner and not
inconsistent with section 5 of article 6252-13a,
V.T.C.S.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney Ga,neral
MARY KFLLER
Executive Assistant Attorneg General
p. 1869
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Mr. W. N. Kirby - Page 4 (JK-408)
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion CommIttee
Prepared by Tony Guillory
Assistant Attorney General
p. 1870