Untitled Texas Attorney General Opinion

THE A MCYGENERAL
TEXAS
August 14, 1951
Hon. J. W. Edgar Opinion No. V-1236
Commissioner of Education
Texas Education Agency Ren Authority of the State
Austin, Texas Board of Education to
fix the fee to be
charged for special
certificates for per-
sons found qualified
for special positions
Bear Sir: in public schools.
You request an opinion on the following ques-
tion:
‘May the State Board of Education include
in Its re ulations governing the issuance of
teaching I?-quallficatiog7 certificates for spe-
clal positions a requirement that a fee of one
dollar ($1.00) be charged for each special cer-
tificate Issued?”
Subdivision (3) of Section 1, Article 2922-13,
v.c.s ., provides in part?
“d. Provided that school districts may
choose from the five types of special service
teacher units listed in Section 2 of Article
II of this Act, sub-section A-3, the number
of each classification that it desires, to the
extent of total ellglbllity for such units and
the allocation of special service teacher units
shall not preclude the assignment. of classroom
teachers to special service duties. The State
Commissioner of Education shall establish quali-
fications of special service teachers and sub-
seouent to the 1949-1950 school year such qual-
ifications shall be subject to regulations made
by the State Board of Education.
“Provided further, that the special serv-
ice teacher unit allotments provided for herein
shall be made in addition to other professional
unit allotments .” (Emphasis added throughout.)
Hon. J. W. Edgar, page 2 (V-1236)
Subdivision (4) of Section 1, Article 2922-13,
V.C.S.) provides in part:
*c . There is hereby created In the
State Department of Education a Division of
Special Education. There shall be appointed
by the State Commissioner of Education a D&
rector for the Division of Special Education.
No person shall be employed to teach any class
for exceptional children as defined in this
Act unless he possesses a valid teachers cer-
tlficate and, in addition thereto, such traln-
lng as the State Commissioner of Educatiormag
require.
“Provided that allotments for exceptional
children teacher units provided for herein shall
be made in addition to other professional unit
allotments .’
Subdivision 5 of Section 1, Article 2922-13,
V.C.S., provides in part:
“a. One (1) supervisor or counsellor
unit for the first forty (40) classroom teach-
er units and one (1) supervisor or counsellor
unit for each additional fifty (50) classroom
teacher units, or major fractional part there-
of. If a district IS eligible for one such
unit, the district may employ for such unit
either a supervisor or a counsellor, but not
both. If a district is eligible for two or
more such units, the district may employ su-
pervisors only, counsellors only, or a combl-
nation of the two to the extent of total
eligibllity.~ The State Commissioner of Edu-
Section 4 of Article 2654-5, V.C.S., provides:
‘It shall be the duty of the State Corn--
missioner of Education to issue teaching cer-
tificates to public school teachers and ad-
ministrators and to voucher the expenses of
the central educational agencies according to
-
Ron. J. W. Edgar, page 3 (V-1236)
the rules and regulations prescribed by the
stt Oard o ecialons of
the” &ate Commissioner of EduEation shall be
subject to review by the State Board of Edu-
cation.’
You state in your request that, pursuant to
the above provisions, “the Stats Board of Education
has established rules and regulations which define the
requirements for administrator’s certificates, csrtif-
icates for special service teachers, counselors, su-
pervisors, teachers of exceptional children and voca-
tional teachers in the four vocational service areas.”
In McCalla v. City of Rockdale, 112 Tex. 209
246 S.W. 654, 655 (1922), it is stated:
“The courts of this state have adopted
the rule construing strictly those statutes
prescribing fees for public officers and
against permitting such fees by implication.
Ho officer is permitted to collect fees or
commissions unless the same are provided for
and the amount thereof declared by law. This
is true, notwithstanding such officer may be
required by law to perform specific services
for which no compensation is provided. The
obligation to perform such services is imposed
as an incident to the office, and the officer
is deemed to have engaged to perform them with-
out compensation by his acceptance thereof.
McLennan County v. Boggess, 104 Tex. 311, 315,
316, 137 S .W. 346; State v. Moore, 57 Tex. 307,
320, 321; Bellman v. Campbell, 57 Tex. 54.”
It is likewise stated in Rueces County v. Cur-
rington, 139 Tex. 297, 162 S.W.26 687, 688 (1942):
“It may be stated at the outset that
the Court of Civil Appeals correctly holds
that a fee paid a public officer for the
performance of a duty enjoined by statute is
a fee collected in an official capacity. It
is eoually true that unless a fee is provi=d
by law for an official service required to be
performed and the amount thereof fixed by law,
1
none can aw u
Hon. J. W. Edgar, page 4 (V-1236)
In view of the above well-established princi-
ple of law, the State Board of Education cannot charge
a fee for the issuance of teaching qualification certif-
icates for special positions unless it has express au-
thority prescribing the fee for the services rendered.
Article 2879, V.C.S., authorizes the collection of a fee
from an applicant for examination for a teacher's cer-
tificate and the collection of a fee for the issuance
of such certificate. Article 2888, V.C.S., presaribes
a fee for the issuance of "teachers' certificates based
on college credentials from junior $olleges, teachers'
colleges, colleges or universities. Article 288ga,
V.C.S., prescribes a fee to be charged for the issuance
of "Texas Teacher's Certificate on credentials from
another state.' We are unable to find any provision
prescribing a fee to be charged'for the issuance of the
teaching certificates mentioned in your request. You
are therefore advised that the State Board of Education
cannot prescribe a fee of $1.00 to be charged for the
issuance of teaching certificates for special positions.
SUMMARY
The State Board of Education is not
authorized to charge a fee for the issuance
of teaching certificates for special posi-
tions pursuant to the regulatorypowers of
the State Board of Education. McCalla v.
, 112 Tex. 209, 246 S W
a County v. Currinntonj
139 Tex. 297z S.W.2d 687 (1942).
APPROVED: Yours very truly,
Bruce Allen PRICE DAEIEL
County Affairs Division Attorney General
Everett Hutchinson
Executive Assistant
Charles D. Mathews John Reeves
First Assistant Assistant
JR:mw:gs