,
                     T~~EATTORNEYGENERAL
                             OF TEXAS

     aOEN L EXLL
    Ax-Iv- 0-u
                                        January 4, 1974


         The Honorable J. W. Edgar                        Opinion No. H-    197
         Commissioner of Education
         Texas Education Agency                           Re:   Authority of State Commis-
         201 East Eleventh Street                               sioner of Education and/or
         Austin, Texas 78701                                    State Board of Education to
                                                                require that an institution
                                                                of higher education seeking
                                                                approval of teacher educa-
                                                                tion programs present a
                                                                performance-based
                                                                application for approval and
                                                                related question.

          Dear Dr.   Edgar:

               On behalf of the State Board of Education you have requested an opinion
          from this office concerning the Board’s authority over teacher education.

                Specifically,   you have asked:

                        “(1) Is it within the authority of the State Commissioner
                        of Education and/or State Board of Education to include
                        in the provisions for approval of teacher education
                        programs the stipulation that the higher education
                        institution seeking approval must present a perfor-
                        mance-based application for approval7

                        “(2) If the answer to No. 1 is in the negative, is it
                        within the authority of the State Commissioner of’
                        Education and/or the State Board of Education to
                        include in the provisions for approval of teacher
                        education programs two or more alternative plans,




                                            p. 922
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                                                                               .
 The Honorable J. W. Edgar,   page 2   (H-197)




              only one of which would be performance-bared
              wherefrom the higher education institution may
              elect to use the alternative of itr choice as a basis
              for presenting an application for approval. ”

        In June, 1972 the State Board of Education and the Central Bducation
 Agency approved certain new *tamlards for teachcr~education program8 to
 replace other8 promulgated in 1955, and it contemplates the approval of
 additional rtandards. Such standard* purport to be “performance based. ”
 Your letter defines “performance     based education!’ as:’

              “A process whereby the proviaionr of a planned
              institutional teacher preparation program [are]
              based on (a) the identification of objectives, (b)
              strategies for implementing thore objectives, and
              (c) aaaesament technique6 to a6certatn effectiveness
              of the stated objective.. ‘I

       In an Agency memorandum of November 10. 1972, addressed to
 “Superintendents, College/University Residents,   Deans of i&cation,
Graduate Deans, Eiecutive Directors of Education. ServiceCenters,
 Presidents ofBrofessionalOrganieationsl’it is discussed as follows:

               “Competency-Based      Teacher Education ia a
               systemic process that encomparaes clearly
               defined job roles for professionala within the
               school setting, a delineation of competenciea
               required of the professional tn.&e job role, and a
               planned- program of preparation which allowr the
               development of there competenciea.      The plan of
               instruction includes a clearly defined purpose,
               and a mechanism to ascertain the degree of
               effectivenees of theme activities or courses
               determined to be needed by or required of a
               prospective teacher.    It is a procere to preclude
               duplication of efforta, loso of time, and undefined




                                 p. 923
The Honorable J. W. Edgar, page 3          (H-197)



               activity.  It does, on the other hand. insure
               that once a competency has been idenflilcd as
               a desired outcome, adequate opportunities
               to demonstrate an ability to. perform.that
               competency are given and that if a n.eed exists.
               recyclical application for performance ability
               is provided. ”

       Broad powers in the field of teacher certification have been given
the State Board of Education and the Central Education Agency, but they
are not exclusive except in respect to special service and special education
teachers.   The qualifications of the latter were specifically made subject
to State Board of Education regulation by Article 2922-13 5 5 1(3)(d), 1(4)(c),
and l(S)(a) V. T. C. S. , now Section 16.15(d) of the Education Code.

       The basic authority of the Board of Education in the field.of teacher
education is found in Title 2, Section 11.26(a) of the Texas Education Code,
V. T. C. S., which reads:

                II. . . . With the‘advice and assistance of the state
                commissioner       of education, the State Board of
                 Education shall.. . . (8) prescribe rules and
                 regulations for certification of teachers and for
                 granting certificates for teaching in the public
                 schools of this state in accordance with Chapter
                -13 of this code*,. . . . ‘I (Emphasis Ad&d)    -

       This   section of the Code is derived from former Article 2675b-8,
V. T. C. S.   which was first contained in an Act specifying that it did not
lessen the    powers of governing bodies of State Teacher8 Colleges, (Acts
1929, 41st    Leg., 2nd, C. S., Ch. 10, p. 12). State Teachers Colleges
(previously    “normal schools”) became State Senior Collegea in 1965 (Acts
1965. 59th    Leg., ch. 322, p. 673).

     Section 13. 032 in Chapter 13 (Title 2) of the Code concerns the rule
making power of the Board:

                “(a) The State Board of Education, with the advice
                and assistance of the state commissioner of education.
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                                     p. 924
                                                                                          .


                                                                                              .


    The Honorable J. W. Edgar.     page 4      (H-197)



                  is authorized to establish such rule6 and regulations
                  as are not inconsistent with the provisions of this
                  chapter and which may be necessary to administer
                  the responsibilities vested under the terms of this
                  chapter concerning the issuance of certificates
                  and the standards -and procedures for the approval
                  of colleges and universities offering programs of
                  teacher education.

                  l’(b) In order to secure professional advice for his
                  recommendations to the State Board of Education, the
                  state commissioner of education shall consider
                  recommendations of the board of examiners for
                  teacher education in all matters covered by this
                  chapter. ”

            Teaching certificate6 are the subject of Sections of Chapter 13 of the
    Code. derived from former Article 2891-b. V. T. C. S. These sections
    clearly show the authority of the-Boardto approve institutional teacher
    education program6 resulting in certification.     See Sections 13.036.
    13:037,   and 13.039.   But these provisions do not declare that the Board
    of Education is empowered to -disapprove the programs of State Senior
    College System institution, or that certificates may not be awarded to
    graduates of the teacher education programs of StateSenior College6
    (formerly State Teacher6’ Colleges) in the absence of Board of Education
    approval.    Article 2891b. the source statute, did not expressly repeal
    Article 2888. V. T. C. S., which recognizes the right of State Teacher
    College graduates, to teaching certificates and Section 13.033 of the
    Education Code recognizes that certification laws. other than those in
    Chapter 13, are also applicable.     It provides that persons claiming ~eligibility
    for a certificate are to present to the COmmiSSiOnerS “6uch Proof as this
    and other certification laws require. ‘* Since Article 2888, V. T. C. S. has
    not been expressly repealed, the presumption is that in enacting the new
    law the legislature intended the old ptatute to remain in operation.    Attorney
    General Opinion H-75 (1973). 53 Fex. Jr. 2d. Statutes § 102.

          The Central Educaion Agency has general control of the public
    education system at the state level and rule-making and regulatory authority




                                      p. 925
i
        .

    ,
.


            The Honorable J. W. Edgar,      page 5   (H-197)




            over "any activity [in its educational aspects], with persons under 21 year.6
            d age which is carried on in the state or federal agencies, except higher
            education in approved colleges. ” Section ll. 02 and see Section 11.52(g) for
            the general powers of the Commissioner.

                   Teacher6 salaries may be based on training inihstitutions recogrked
            (not “approved!‘) by the Commissioner.  Section 16. 301(b). Texas Education
            Code (formerly Article 2922-14 8 1).

                    Before Title 3 was added to the Education Code, Article6 2644. 2646,
            and 2647, V. T. C. S. rtmained     in force.  Article 2644. was the opening
            statute  in a chapter devoted to State Colleges and Universities.  and provided:

                            “Except as herein provided, all laws establishing
                            State teacher6 coll6geS or normal institutes for
                            the training of white teacher6 and providing for
                            their government, control and maintenance are
                            continued in force, and all such colleges which
                            are or may be established by law shall be under
                            the general control and management of the Board
                            of Regent6 of the State Teachers’ Colleges [now
                            Board of Regents, State Senior College System]. ”

                  Article   2646,   read:

                            “Diplomas and teachers certificates of each of
                            ‘the State Teacherb’ Colleges [now State Senior
                            Colleges] shall authorize the holders to teach
                            in the public bchools. “(‘emphasis added)

                  Article 2647. subdivision 5. allowed the Board of Regents to control
            the grade6 of certificates issued by those institutions, the conditions of
            issue for certificates and diploma6 , and the authority by which they were
            to be signed.

                  In 1971, when Title 3 of the Education Code was adopted, these statutes
            were carried into the Code a6 Sections 95.21. 95.24,  and 95’. 25 (Acts 1971.
            62nd. Leg., ch. 1024, p. 3072 at 3219).




                                               p; 926
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                                                                                       .


The Honorable J. W. Edgar, page 6       (H-197)



       Article 2919e-2,   V. T. C. S., adopted in 1965, created the Coordinating
Board, Texas College and University System, maile it the highest authority
in the state in matters of public higher education, and among other things,
assigned it the duty to (1) define the various higher education systems,
“provided nothing shall be construed to authorize the Board. . . to alter’.
any university system presently existing by virtue of statute. . . . ‘I,
(2) classify and prescribe the role and scope for each public institution
of higher education, (3) review certificate and degree programs 0ffere.d
by such institutions, and (4) order the initiation, consolidation or elimination
of degree or certifimte programs.       These provisions are now subsections.
(b), (d) and (e) of Section 61. 051. Texas Education Code. Section 61. 070
provides that the duties and functions of the Central Education Agency are
not affected by such provisions.

      The enactment of Article 2919e-2, V. T. C. S., shifted~to the Coordi-
nating Board responsibility for determining what departments of instruction
State Senior Colleges might maintain and what course6 of study might be
pursued there, but it did not alter the statutory effect of a teaching program
diploma from a State Teacherb’ College (Senior College).       See the Revisor’s
Note following $ 61. 051. Education Code, V. T. C. S.

      At the time Title6 1 and 2 of the Education Code were adopted in
1969, graduates of teacher education program6 in institutions governed
by the Board of Regents, State Senior College System, were entitled to
Texas Teacher6 Certificates upon presentation to the State Commissioner
of Education of proof of a diploma from such an institution and presentation
of such other proof regarding   moral and personal qualifications as was
required by law. The presentation of such proof cast upon the State
Commissioner of Education a ministerial duty to issue the certificate,
whether or not the teacher education program of the State Senior College
System institution was one pro forma “approved” by the State Board of
Education. En our opinion, the adoption in 1969 of Titles 1 and 2 of the
Education Code did not change the law in that regard.

       In our view, the duty of the Central Education Agency to award a
teaching certificate to a graduate of a State Teachers’ College was not
affected by the shift of course-defining responsibility to the Coordinating
Board. or by the redesignation of such institutions as “State Senior Colleges”,




                                  p. 927
The Honorable J. W.    Edgar,   page 7    (H-197)




or by the omission of Article 2888 from the Education Code, or by the
enactment of Title 3 of the Education Code. Section II. L6(aN8) of the
Code limits the authority of the State Board of Education to prescribing
rules and regulations for certification of teachera and for granting
certificates for teaching in the public 6ChOOl6of this state in accordance
with Chapter 13 of the Code, not Chapter 95. That limitation was in
effect before Title 3 was adopted.

       Clearly, the State Senior College System has been ltgi6latively
designed to perform the function, inter-&a.     of educating teachers, and
a distortion of that design would alter tbe sybtem contrary to the proscrip-
tion of § 61. 051 (b) of the Education Code. We are of the opinion, therefore,
that graduate6 of the teacher education program6 of ~6’titut~On6~ composing
that System continue to be statutorily entitled to teaching certificates, even
absent pro forma approval of such programs by the State Boards of Education.
The 1971 Act specified that no substantive change was intended by its enact-
ment. (Acts 1971, 62nd Leg. ch. 1024, p. 3072).

        We also note that s 13.042 of the Education Code as amended in 1973
 (Acts 1973, ch. 51. p. 78 at 84) require6 the Commissioner of Education
to issue appropriate Texar teaching certificates to holders of certificates
 from other states who wiih to teach in Texas, provided the college or
 university in which the teacher   completed the requirements for his out-of-
  state certificate is accredited by a recognized accrediting agency (not
 the State Board of Education) as an approved teacher training institution.
  The duty is a ministerial one.

       Thus, 6n two fronts the Legislature has foreclosed the State Board of
 Education from decreeing that Texas teaching certificates be issued only
 to those who have completed “performance based” teacher training program6
 Also see 5 ll. 31. Texas Education Code.

        The “performance based” concept, as we understand your explanation
 of it. concerns not 60 much a method of teachiag as it doe6 a method of
 measuring the usefulness (to a teacher) of what is taught the teacher-in-
 training.   It merely requires that everything in a proposed teacher training
 program be useful in the development of teachers.     It doe6 not prohibit
 p respective teachers from taking courses outside the “program”,     nor does




                                 p. 928
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                                                                                   .
                                                                                       .
The Honorable J. W.   Edgar, page 8    (H-197)




it affect courses not offered in satisfaction of ‘program”   requirements.

      The Legislature may delegate to an admini6trative agency the power
to make rules which have the effect of law when the Legislature itself
cannot practically and efficiently perform the function, but the Legislature
must declare the policy and fix the standards by which the agency is to be
guided. See Attorney General Letter Advisory No. 42 (1973) and cases
there cited.

       Here, the Constitution declares the policy: the establishment,   support
and maintenance of aa efficient school system--a declaration implemented
by the statutes.   The Legislature has directed the State Board of Education
to accomplish this, in part, by establishing rule6 and regulations,   concern-
ing, among other things, I’. . . the standards and procedures for the approval
of colleges and universities offering programs of teacher education”, which
(1) are not inconsistent with applicable Education Code provisions,and (2) may
be necessary with respect thereto. These two limitation6 on the Board’s
authority to set standards must’:be given an effective and meaningful, inter-
pretation if the legislative delegation of power to the Board is to be consti-
tutionally valid. Railroad Commission v. Shell Oil Co. 161 S. W. 2d 1022 (Tex.,
1942); Gerst v. Jefferson County Savings & Loan, 390 S. W. 2d 318 (Tex. Civ.
APP. 9 Austin, 1968 error ref’d n. r. e. ).

      The Legislature has specified that the rule6 and regulations of the
Board of Education must be consistent with the provisions of Chapter 13 and
necessary with respect thereto.   See Attorney General Gpinion M-386 (1969).

       We do not believe a rigid, requirement that all other colleges and
universities must institute 1*p6rformance based” programs to qualify their
graduates for Texas teaching certificates is consistent with the plain (and
recently expressed) legislative intent that out-of-state institutions and
institutions composing the State Senior College System need not do so. Nor,
in the light of the most recent legislative action, can we say that such an
exclusionary rule would be considered necessary.

       Consequently, we anewer your first question negatively and answer your
second one 6ffirmatively.    Jn our opinion , under present Texas law it is not
 within the authority of the State Board of Education or the Commissioner to




                                 p. 929
The Honorable J. W. Edgar,     page 9 (H-197)




stipulate that institutions seeking approval for general teacher education
programs mustpresent performance-based         applications, but the Board,
with the ad=     of the Commissioner,    could legally promulgate rules and
regulations whereby institutions seeking such approval could choose between
alternative plans for program approval (one or more       of which might be
“performance-based”)      and submit application6 accordingly.

       We have reached this conclusion by tracing the development of Texas
statutes regarding teacher certification.    See: Acts 1905. ch. 124, p. 263
(Art. 2646): Acts 1911, 1st C. S. , ch. 5. p. 74 and Acts 1923, ch. 160. p. 341
and Acts 1965, ch. 322. p. 673 (Arte.     2644 and 2647); Acts 1911. p. 189, Sec.
1(114) and Acts 1921, ch. 129. p. 242 (Art. 2888); Acts 1929, 2nd C. S., ch. 10,
p. 12 (Art. 2675b -7, -8); Acts    1949, ch. 39 5 1, p. 65 (Art. 2922-13) Acts 1949.
ch. 299. Art. V, p. 537 (Art. 2654-5); Acts 1949, ch. 334. Art. IV, p. 625
(Art. 2922-14) Acts 1955, ch. 149, p. 508 (Art. 2891bB Acts 1965. ch. 12, p.
27 (Art. 2919e-2): Acts 1969, ch. 889, p. 2735 (Titles 1 and 2, Texas Educa-
tion Code): Act6 1971, ch. 1024, p. 3072 (Title 3, Texas Education Code).

        You have not asked that we pass upon particular standard6 and your
questions are not directed to the legality of the 1972 standards. We need not
 refer to them further than to say that some of them are so vaguely and
 ambiguously stated as to be impossible of objective application, and some
 of the apparent demands bn institutions of higher education may exceed those
 the Legislature itself could require.

                                    SUMMARY

               Under present Texas law. it is not within the authority
       of the State Board of Education or the State Commissioner of
       Education to stipulate that institutions seeking approval for
       teacher education programs mustpresent “performance-based”
       applications, but the Board, -with the advice of the Commissioner,
       may promulgate rules and regulations whereby institutions
       seeking such approval could choose between alternative plans
       for program approval (one or more of which might be “perfor-
       mance-based”) and submit applications accordingly.




                                           u      Attorney General of Texas


                                  p. 930
                                                            .

                                       .   .                    .

                                                                    II




The Honorable J. W. Edgu,   page 10 (H-191)




DAVID M. KENDALL,    Chairman
Opinion Committee




                                                    .! ;;
                                               ..

                             p. 931
