Texas State Board of Rnbalming
Austin, Texas



Dear Sirr                            Attentionr Mr. Chas. B. Cook, Seore-
                                                tary.

                                     Opinion No. O-2695
                                     Re: Authority of the Texas State
                                          Board of %balming to require
                                          $20.00 examination fee of ap-
                                          plicants for licenae a8 funeral
                                          director.

        This will acknowledge receipt of your letter of August 30, 1940,
requesting the opinion of this department upon the above stated question.
Your letter reads as followsr

        "Artiale 4682A of the Criminal Statutes of Texas, an hot, inareas-
ing the powers and duties of the State Board of &&alming eo as to pre-
scribe and maintain a standard of proficiency as to the qualifications of
those engaged, and who may engage, in the praotioe of tieral direoting
in aonneotion with the care and disposition of dead human bodies, by
providing that the State Board shall adopt rules, regulations, and by-
laws for the examination and licensing of funeral direatom.

         "Section 2 of this Act reads in part; 'Any person or persons en-
gaged in, the practioe of funeral directing in connection with the care
and disposition of dead human bodies within this State shall make a writ-
ten application to the State Boerd of Embalming for a liodnse, accompany-
ing the same with a liaense fee of Five ($5.00) Dollars.'

        "When an applicant passes the examination and is issued a liaense,
this $5 fee places the license in form  until the 31st day of May follow-
ing, at which time the licensee pays a renewal fee for the next year.

        "The Board, after due aonsideration, is oonvinoed that there
 should be an examination fee of $20, making a total of $26 to be paid by
 the applicant at the time application is filed, whiah would cover the
expanse of examination and the first year's fee.

        "Would it take an Act of the Legislature to put this into ef-
fect, or does the Board have the power to adopt a rule requiring an ap-
pliaant to accompany the applioation with a fee of 1251"
Texas State Board of Embalming, page 2        O-2695



        We have carefully examined the provisions of Chapter 12 of Title
71 of the Revised Civil Statutes of Texas, Artielea 4676a, et seq.,
Vernon's Annotated Civil Statutes, and note that the Legislature provided
 an initial license fee of #lo.00 for embalmers in Article 4678 and in
Artiole 4582a provided for an initial license fee of $5.00 for funeral
directors. The amount of the fees to be paid for license as embalmer or
funeral directors has been fixed by the Legislature and no discretion re-
mains in the Board to enlarge or lessen these fees under its power to enact
reasonable rules and regulations. If the power to enact reasonable rules
and regulations did embrace the authority to provide, fix, or change fees,
a serious question of unconstitutional delegation of legislative authority
would result. See 17 R. C. L. 536.

        It follows and you are respectfully advised that in the absenoe
 of legislative authorization the Texas State Board of Embalming is with-
out poww or authority to exact an examination fee of $20.00 from appli-
cants for license as funeral director,

                                              Very truly yours

                                         ATTORNEY GENERAL OF TEXAS


                                         By    s/ James D. Smullen

                                                       James D. Smullen
                                                              Assistant




APPROVED SEP. 9, 1940
  s/Gerald Cu Mann
ATTORNEY GENERAL OF TEXAS


APPROVED Opinion Committee By BWB Chairman
