          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

                           - 1907-
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

                          - 1908-
.   .




    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




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