    OPFKE   OF THE ArrORNLY    GENERAL.   STATE OF TrxAr

    JOHN      CORNYN




                                                      June 29,200O



Ms. Pamela B. Tackett                                       Opinion No. JC-0241
Executive Director
State Board for Educator Certification                      Re:     Whether the State Board for Educator
1001 Trinity Street                                         Certification’s Internet website may serve as a
Austin. Texas 78701-2603                                    portal for distance-learning courses developed and
                                                            offered by other entities, and related questions
                                                            (RQ-0179-JC)


Dear Ms. Tackett:

         You inquire about the authority of the State Board for Educator Certification (the “SBEC”)
to use its Internet website as a portal for distance-learning courses developed and offered by other
entities. You ask several questions:

                  1.          Through the agency’s Internet website, may SBEC serve as
                              a portal for distance-learning courses developed and offered
                              by other entities as an alternative to site-based programs for
                              certification   candidates    satisfying educator preparation
                              requirements;     renewable      certificate  holders  needing
                              continuing education credit; and school personnel seeking
                              professional or career development training?

                  2.          If the answer to Question No. 1 is “Yes,” may a third-party,
                              information technology (IT) vendor contract with SBEC to
                              facilitate the delivery of distance-learning courses through
                              SBEC’s website? If so, would the services of such a third-
                              party vendor need to be procured through the competitive
                              bidding process, even if one of the potential contractors was
                              willing not to charge SBEC?

                  3.          If the answers to Questions No. 1 and 2 are “Yes,” may a
                              Board member of SBEC lawfully serve as such and also be
                              employed by a third-party IT vendor that contracts with
                              SBEC to facilitate the delivery of other entities’ distance-
                              learning courses through SBEC’s website?
Ms. PamelaB.   Tackett    - Page 2                UC-0241)




Letter from Ms. Pamela Tackett, Executive Director, SBEC, to Honorable John Comyn, Texas
Attorney General, at 1-2 (Jan. 27,200O) (on file with Opinion Committee) [hereinafter “Request
Letter”]. In connection with the first question, you ask us to consider “any liability issues related
to SBEC’s hosting of distance-learning opportunities for educators,” including issues under the
Americans with Disabilities Act, the Texas Commission on Human Rights Act, and the Family
Educational Rights and Privacy Act. Id. at 4.

        We conclude that the SBEC’s authority does not encompass authority to use its Internet
website as a portal for distance-learning courses developed and offered by other entities. Given this
conclusion, we do not answer your remaining questions.

        You explain the proposed portal arrangement:

                         SBEC has been asked to serve as a portal for distance-learning
               courses offered by educator preparation programs and continuing
               professional education providers. Related to educator certification,
               these courses would be delivered over the Internet. The persons
               taking the courses would be educator preparation students seeking
               certification and certificate holders satisfying certification renewal
               requirements.    Entities delivering the courses would include the
               following:

                .        SBEC-accredited   educator preparation programs;

                .        SBEC-approved     providers offering continuing     education
                         courses to holders of renewable certificates; and

                .        providers of professional development training, such as
                         school districts that require their staff to participate in
                         professional development programs.

                         The educator preparation      courses would meet Board
                standards, but SBEC would not participate in developing the courses.
                The prospective educators would apply for admission to an educator
                preparation program and register for courses by accessing SBEC’s
                website, but staff at the preparation program would process the
                admission application and course registration materials.           The
                preparation program would administer the course[]work. The student
                would enter the virtual classroom at SBEC’s website and travel down
                a cybernated corridor to a server operated by the preparation program
                or by a third-party contractor on behalf of the program and SBEC.
Ms. Pamela B. Tackett    - Page 3                   (X-0241)




                       The continuing education courses might be developed by
               SBEC in collaboration with other approved entities, but they could
               also be offered independently of SBEC as a provider. Educators
               wanting to obtain continuing education credits would register for
               courses through SBEC’s website, but the registration would be
               processed and the course delivered by the provider. The same would
               be true for career development courses not taken for credit.

                        All course providers would process any fees charged for the
               offerings.

Request Letter, supra, at 3.

        We examine the SBEC’s authority to permit its website to be used as such a portal in light
ofthe SBEC’s statutory powers. A state agency created by the legislature has only those powers that
are explicitly or implicitly delegated to it. See City of Sherman v. Public Util. Comm ‘n, 643 S.W.2d
681, 686 (Tex. 1983); accord Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961);
Texas Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145,148 (Tex. App.-Austin 1998, no pet.);
Tex. Att’y Gen. Op. Nos. JC-0064 (1999) at 4; DM-101 (1992) at 6.

        Chapter 21, subchapter B of the Education Code establishes the SBEC to “regulate and
oversee all aspects of the certification [and] continuing education . of public school educators.”
TEX. EDUC. CODE ANN. 5 21.031(a) (Vernon 1996). The SBEC has explicit authority to:


               (1) provide for the regulation         of educators     and   the    general
               administration of this subchapter.     . ;

               (2) specify the classes of educator certificates to be issued . . . ;

               (3) specify the period for which each class of educator certificate is
               valid,

                (4) specify the requirements     for the issuance     and renewal     of an
                educator certificate:

                (5) provide for the issuance of an educator certificate to a person who
                holds a similar certificate issued by another state or foreign country
                ....

                (6) provide for special or restricted certification   of educators .     ;
Ms. PamelaB.    Tackett   - Page 4               (X-0241)




               (9) provide for continuing   education requirements;    and

               (10) provide for certification ofpersons   performing   appraisals under
               Subchapter H.

Id. 5 21.041(b) (footnote omitted).

          No person may be employed as a teacher unless the person has obtained an educator
certificate. See id. $ 2 1.003(a). With respect to educator certificates, the SBEC must establish the
training requirements and minimum academic requirements for a person who wishes to obtain a
certificate.    See id. $ 21.044; see also id. $5 21.046, .0481 (Vernon 1996 & Supp. 2000)
(superintendent or principal certification; master reading teacher certification); 19 TEX. ADMIN.CODE
$5 230.191 - ,199 (1999) (SBEC Program Requirements for Preparation of School Personnel for
Initial Certificates and Endorsements).     The SBEC must establish standards for the approval and
continuing accountabilityofeducator-preparationprograms.        %~TEX.EDUC.CODEANN. 5 21.045(a)
(Vernon Supp. 2000); 19 TEX. ADMIN. CODE $5 229.1 - .5 (1999) (SBEC Accountability System for
Educator Preparation); id. $5 230.151 - ,161 (SBEC Professional Educator Preparation and
Certification).     The SBEC also must develop the process by which “centers for professional
development” may be established through institutions of higher education “for the purpose of
integrating technology and innovative teaching practices in the preservice and staff development
training ofpublic school teachers and administrators.” TEX. EDUC. CODEANN. 9 21.047(a) (Vernon
 1996); see 19 TEX. ADMIN. CODE 5 230.121 (1999) (SBEC Centers for Professional Development
and Technology). The SBEC must adopt rules “providing for educator certification programs as an
alternative to traditional educator preparation programs.” TEX. EDUC. CODE ANN. 9 2 1.049 (Vernon
 1996); see also 19 TEX. ADMIN. CODE 4 230.231 (1999) (SBEC Alternative Certification of
Teachers).

         With respect to continuing-education     and career-development      programs, the SBEC must
adopt rules to establish a process “for identifying continuing education courses and programs that
fulfill educators’ continuing education requirements.” TEX. EDUC. CODEANN. $21.054(a) (Vernon
1996); see also 19 TEX. ADMIN. CODE $4 230.199, ,610 - ,611 (1999) (SBEC Endorsements and
Continuing Education).       Certified educators must complete a total of 150 “clock hours” of
continuing professional education every five years to renew a certificate.             See SBEC, FAQs:
IssuanceoftheStandard       Cert~ificateandRenewalRequirements,     Including ContinuingProfessional
Education       (visited   Apr.    24, 2000)     <http://www.sbec.state.tx.us/certren/certren.htm>.
Superintendents, principals, and assistant principals must complete 200 clock hours of continuing
professional education every five years. See id. And the SBEC by rule must provide for “a certified
educator to qualify for additional certification to teach at a grade level or in a subject area not
covered by the educator’s certificate.” TEX. EDUC. CODE ANN. 5 21.056 (Vernon Supp. 2000); see
also 19 TEX. ADMIN. CODE 5 230.199 (1999) (SBEC Endorsements).

          In sum, the SBEC’s rule-making authority extends to establishing standards for various
certification and continuing-education  programs and to establishing a system for evaluating
Ms. Pamela B. Tackett    - Page 5                 (X-0241)




certification and continuing-education programs. Additionally, the SBEC has authority to identify
“continuing    education courses and programs that fulfill educators’ continuing       education
requirements.” TEX. EDUC. CODE ANN. $J21.054(a) (Vernon 1996).

         In our opinion, the SBEC lacks authority to use its Internet website as a portal that may be
used to directly access certification, continuing-education,     or career-development courses offered
by other entities. The authority to establish standards for and evaluate certification and continuing-
education courses and to identify approved courses does not encompass authority to allow the SBEC
to use its website to directly facilitate the sale ofvarious courses to consumers. Nor can the SBEC’s
statutory authority to “regulate” and “oversee” the certification and continuing education of public
school educators be stretched to suggest that the legislature contemplated that the SBEC would use
its identity to provide direct access to approved courses. See id. 5 21.03 l(a). The authority to
regulate is the authority to control or direct by rule, see XIII OXFORD ENGLISH DICTIONARY524
(1989); the authority to oversee is the authority “to watch over,” “to inspect,” or “to supervise.” X
OXFORD ENGLISHDICTIONARY1115-16 (1989).

         Your remaining questions, regarding the SBEC’s potential liability for illegal conduct on the
part of those course providers to which the SBEC provides access on its website, are premised upon
a conclusion that the SBEC may, in fact, use its website as an Internet portal. See Request Letter,
supra, at 4. You also suggest that the SBEC’s proposed use of its website might be viewed by
consumers as endorsing those courses to which the SBEC provides direct access, and you ask
whether such a use might conflict with the SBEC’s statutory authority. Id. Given our conclusion,
we do not answer these questions.

         Nevertheless, the issues you raise underline important policy reasons for concluding as we
have. Where, as here, a state agency proposes to participate in Internet commerce by allowing third-
party course providers to use a state website as a method of direct access between consumers and
course providers, we believe the agency should have legislative approval. The legislature is the
appropriate public body to determine whether and the extent to which a state agency created by the
legislature may use its government website to participate in Internet commerce or to facilitate others’
participation in such commerce.
Ms. PamelaB.   Tackett   - Page 6                (JC-0241)




                                       SUMMARY

                        The State Board for Educator Certification has no authority to
               use its Internet website as a portal for distance-learning courses that
               other entities have developed and offered.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
