Judges: GREG ABBOTT, Attorney General of Texas
Filed Date: 9/27/2004
Status: Precedential
Modified Date: 7/6/2016
Mr. Wayne Thorburn Commissioner Texas Appraiser Licensing and Certification Board Post Office Box 12188 Austin, Texas 78711-2188
Re: Whether the Texas Appraiser Licensing and Certification Board may adopt a rule establishing minimum education requirements for appraiser trainees (RQ-0207-GA)
Dear Commissioner Thorburn:
You ask whether the Texas Appraiser Licensing and Certification Board (the "board" or "TALCB") may adopt a rule establishing minimum education requirements for appraiser trainees.1
The Texas Appraiser Licensing and Certification Act, chapter 1103 of the Occupations Code (the "Act"), was enacted in 1991 to conform state law to the requirements of Title XI of the federal Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA").2 See Tex. Occ. Code Ann. §§ 1103.001-.002 (Vernon 2004).3 Subchapters B and C of the Act establish that TALCB "is an independent subdivision of the Texas Real Estate Commission," and is responsible for the administration of the Act. See id. §§ 1103.051-.059 (establishing TALCB), 1103.101 (TALCB "may delegate to the commissioner the responsibility for administering" the Act). Subchapter D provides TALCB with the power to adopt rules relating to appraiser licensing and certification. See id. §§ 1103.151-.154. Subchapter E establishes certificate and license requirements. See id. §§ 1103.201-.213. Subchapter H permits the board to authorize "a certified appraiser . . . to sponsor an appraiser trainee," id. § 1103.351, and governs eligibility requirements for approval as an appraiser trainee, see id. § 1103.353.4
You assert that sections 1103.151 and 1103.152 authorize TALCB to adopt education requirements for appraiser trainees. See Request Letter, supra note 1, at 2. Section 1103.151 provides that TALCB may adopt:
rules for certifying or licensing an appraiser in this state that are in accordance with this chapter and consistent with, but not more stringent than, applicable federal law;
rules relating to the education and experience required for certifying or licensing an appraiser that are consistent with, but not more stringent than, the guidelines recognized by the Appraisal Subcommittee[.]
Tex. Occ. Code Ann. §
establish certificate and license categories that are consistent with the categories recognized by the Appraiser Qualifications Board, the Appraisal Standards Board, and the Appraisal Subcommittee; and
prescribe qualifications for each category that are not more stringent than the qualifications established for that category by the Appraiser Qualifications Board, the Appraisal Standards Board, and the Appraisal Subcommittee.
Id. § 1103.152(b). Title XI of FIRREA establishes the Appraisal Subcommittee, which forms the core of "a complex oversight structure for real estate appraisals and appraisers that involves private, state, and federal entities." See U.S. General Accounting Office, Regulatory Programs, Opportunities to Enhance Oversight of the Real Estate Appraisal Industry, at 1 (Mar. 24, 2004) [hereinafter GAO Report].5 The Appraisal Subcommittee is responsible for monitoring and reviewing the "practices, procedures, activities, and organizational structure of the Appraisal Foundation."
TALCB's proposed rule would require a prospective trainee to "provide evidence of the successful completion of 75 classroom hours in courses approved by the board, including 15 classroom hours in a class devoted to the Uniform Standards of Professional Appraisal Practice," Request Letter, supra note 1, at 2 (emphasis omitted), and would be in conformity with current recommendations of the AQB. See id.; see also Appraisal Qualifications Board, The Appraisal Foundation; The Real Property Appraiser Qualification Criteria and Interpretations of the Criteria, at 2. You ask whether TALCB may adopt this education requirement.
"As a general rule, an administrative agency is a creation of the legislature and, as such, has only those powers expressly conferred and those necessary to accomplish its duties." State v.Pub. Util. Comm'n,
The proposed rule exceeds TALCB's statutory authority. Sections 1103.151 and 1103.152(b) authorize TALCB to prescribe qualifications for certificate and license categories. See Tex. Occ. Code Ann. §§ 1103.151-.152(b) (Vernon 2004). It is clear under the Act, however, that a trainee does not hold a license or certificate. See, e.g., id. §§ 1103.003(7)-(8) (defining "state-certified real estate appraiser' or "certified appraiser" to mean "a person who is certified under this chapter," and "state-licensed appraiser" or "licensed appraiser" to mean "a person who is licensed under this chapter"); 1103.156(1), (5) (distinguishing certificate and licensing fees from appraiser trainee application fee); 1103.201(a)-(b) (a certificate or license is required in order to use its coordinating title).6 In addition, subchapter E of the Act, which is devoted exclusively to certificate and license requirements, provides that applicants must fulfill experience, classroom, and exam requirements. Seeid. §§ 1103.201-.213. Provisions applicable to appraiser trainees are found exclusively in subchapter H. See id. §§ 1103.351-.355. The eligibility requirements for appraiser trainees set forth in section 1103.353 do not impose an education requirement:
To be eligible for approval as an appraiser trainee, an applicant must:
be at least 18 years of age;
be a citizen of the United States or a lawfully admitted alien;
have been a resident of this state for the 60 days preceding the date the application is filed; and
satisfy the board as to the applicant's honesty, trustworthiness, and integrity.
Id. § 1103.353. Nor is there a provision in subchapter H that authorizes the board to establish additional education requirements.7
TALCB suggests that a rule imposing additional education requirements for appraiser trainees is justified because AQB guidelines recommend that appraiser trainees obtain "75 classroom hours of courses in subjects related to real estate appraisals" prior to applying for approval as an appraiser trainee. See
Appraisal Qualifications Board, The Appraisal Foundation; The Real Property Appraiser Qualification Criteria and Interpretations of the Criteria, at 2; Request Letter, supra note 1, at 2; see also Tex. Occ. Code Ann. §§
In sum, chapter 1103 of the Occupations Code does not authorize TALCB to adopt a rule establishing education requirements for appraiser trainees, and federal law does not require it.
The Texas Appraiser Licensing and Certification Board may not adopt a rule establishing minimum education requirements for appraiser trainees.
Very truly yours,
GREG ABBOTT Attorney General of Texas
BARRY MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee
Mary R. Crouter Assistant Attorney General, Opinion Committee