        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

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