                               The Attorney           General of Texas

JIM MATTOX                                       December 23, 1985
Attorney General


Supreme Court Building         Mr. W. N. Kirby                         Opinion No. JM-@g
P. 0. Box 12548                Commissioner of   Education
A”S1i”, TX. 78711-2548         Texas Education   Agency                Re:   Whether regulations adopted
512/475-2501                   201 E. Eleventh   Street                by the State Board of Education
Telex 9101874-I 367
Telecopier 5121475-0266
                               Austin, Texas     78701                 implementing teaching competency
                                                                       examinations   CornPlY with   the
                                                                       requirements of section 13.047(g)
714 Jackson, Suite 700                                                 of the Education Code
Dallas, TX. 75202.4506
214l742-8944
                               Dear Mr. Kirby:

4824 Alberta Ave., Suite 180        Pou have requested our opiuiou in regard to certain proposed
E, Paso. TX. 79905.2793        procedures for .mlidatLng alternative examinations for teacher
9151533-3484                   certification under section 13.047(g) of the Education Code. Chapter
                               13 of the Education Code provides for the certification of teachers
1001 Texas, Suite 700          within the state.    Section 13.032 authorizes the State Board of
Houston, TX. 77002-3111        Education to prescribe a comprehensive examination as a condition to
713/223-5886                   full certification of a teacher and au administrator. See Educ. Code
                               913.032(s). Sectlon 13.047 directs the Board to requirzatisfactory
                               uerformauce on an examination orescribed bv the board as a condition
SOSBroadway, Suite 312
Lubbock, TX. 79401-3479
                               for continued certification of' teachers and administrators who have
906/747-5238                   not taken au exa&ation     purusaut to section 13.032(e). See Educ.
                               Code 113.047(a). The examinations prescribed by section 13.032(e) and
                               sectiou 13.047(b) are the only examinations mm allowed to be utilized
4309 N. Tenth, Suite B
McAllen, TX. 78501-1685
                               for the purpose o:! testing teacher and admLnistrator competency, but
5,2/682-4547                   prior to the promulgation of the section 13.032(e) examination,
                               section 13.047(g) p,rovidedthat certain examinations taken before that
                               time could furnish ,asubstitute.
 200 Main Plaza. Suite 400
 San Antonio, TX. 782012797
                                    Section 13.Odi7(g) provides an exemption from the examination
 512/225-4191
                               prescribed by sect,ion 13.047(b) for any teacher or administrator who
                               has taken a distr:tct examination meeting the requirements of section
 An Equal OppOrtUnitYl         13.047(g) prior tl> the promulgation of the section 13.047(b) test.
 Affirmative Action Employer   Section 13.047 prov,Ldesin part:

                                            (b) The board shall prescribe an examination
                                         designed to test knowledge appropriate to teach
                                         primary grades and an examination designed to test
                                         knowledgk appropriate to teach secondary grades.
                                         The secondary teacher examinations must test the
                                         knowledgs of each examinee in the subject areas
                                         listed 21 Section 21.101 of this code in which the




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Mr. W. N. Kirby - Page 2   (JX-&O~J




          examinee is certtfied to teach and is teaching.
          If a teacher is rat tested in an area of certifi-
          cation, the teacher must take the examination for
          that area within three years after beginning to
          teach that subject. The administrator examina-
          tions must test administrative skills, knowledge
          in subject areas, .andother matters that the board
          considers appropriate. The examinations must also
          test the ability DE the examinee to read and write
          with sufficient sk:Llland understanding to perform
          satisfactorily ac: a professional teacher or ad-
          ministrator.

             . . . .

             (g) The board may exempt from the examination
          required by this section any person who, before
          the examination a$>pted under this section is pre-
          scribed, performed satisfactorily on an examina;
          tion administered by an employing district if the
          board finds the e,xamination to be substantially
          the same or at l&t    as difficult as the examina-
          tion prescribed by the board. (Emphasis added).

Educ. Code 413.047(b), (g). Thus, the section 13.047(g) exemption
only affected the limited number of teachers and administrators who
had taken district examina::tons prior to the board's adoption of an
examination for continued certification. We understand that the
proposed rules submitted ar % to provide a procedure within the Central
Education Agency whereby the board might determine who has been
exempted from the examination requirements of section 13.047(b).

     The general test stated by the courts concerning an agency's
statutory authority to prouulgate rules is whether the rules involved
are in harmony with the gensaralobjectives of the applicable act. See
Gerst v. Oak Cliff Savings! b Loan Association, 432 S.W.2d 702, 706
(Tex. 1968). Further, tht; rules may not add additional burdens,
restrictions or conditionr: in excess of those authorized by the
statute. See Bexar County 131111Bond Board v. Deckard, 604 S.W.2d 214,
216 (Tex.Civ.    App. - S;;;,Antonio 1980, no writ).      Finally, in
adopting rules, an agency mist not act arbitrarily or capriciously and
must have a legitimate reasllnfor enactment of the rules. See Bullock
v. Hewlett-Packard Company, 628 S.W.2d 754, 757 (Tex. 1982)T

     The board has the aut:hority to promulgate rules to evaluate
alternate district examinat:Lons under section 13.047(g). The only
restrictions placed upon the:board are that the alternate examinations
must have been "substantially the same" or "at least as difficult" as
an examination prescribed IIJ'the board under section 13.047(b). -See
Educ. Code $13.047(b), (g).



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    Mr. W. N. Kirby - Page 3' (n&408)




         Section 13.047(b) aut%rizes the board to prescribe examinations
    designed to test knowledge appropriate to teach primary grades; one to
    test knowledge appropriate to teach secondary grades: and examinations
    to test administrative ski,lls. See Educ. Code 913.047(b). Pou have
    characterized these examinU:ions~the     'ITexasExamination of Current
    Teachers and Administrators" (TECAT). Each teacher or administrator
    is to take the appropriate examination in his area of professional
    certification. Id. The provision also specifies what should have
    been tested in eachexamination. -Id.

         We express no opinion on the validity of these standards. See
    Allstate Insurance Companez. State Board of Insurance, 401 S.W.2d 131
    (Tex. Civ. App. - Austin 1966,sen.r.e.);                   also 2 Tex.
    Jur. 3d Administrative FLEW 916. Moreover, the standards proposed
    entail exnert factual d;terminations which this office is not
    authorized to decide. See United States v. State of South Carolina,
    445 F. Supp. 1094 (D.Sx' 1977). aff'd mem., 434 U.S. 1026 (1978)
    (test validation requires expert knowlec       See also Note, Minimum
    Competency Testing of Teac'%rs for Certification: Due Process, Equal
    Protection and Title VII 1; lications 70 Cornell L.Rev. 494 (1985).
                               --
    However, we advise that the:board s discretion should not be exercised
    in an arbitrary or capricixls manner. See Bullock v. Hewlett-Packard
    Company, 628 S.W.Zd 754, 757 (Tex. 1982).The board must also comply
    with section 5 of the Texas Administrative Procedure and Texas
    Register Act. -See V.T.C.S. art. 6252-13a, 05.

                                 SUMMARY

                Section 13.047(g) of the Texas Education Code
             authorizes the S:ate Board of Education to pro-
             mulgate   proceduzes    for   validating   alternate
             examinations that have been taken prior to the
             promulgation of tf!stspursuant to section 13.047(b).
             The discretion of the board should not be exercised
             in an arbitrary or capricious manner and not
             inconsistent with section 5 of article 6252-13a,
             V.T.C.S.




                                             JIM     MATTOX
                                             Attorney General of Texas

    JACK HIGHTOWER
    First Assistant Attorney Ga,neral

    MARY KFLLER
    Executive Assistant Attorneg General




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Mr. W. N. Kirby - Page 4     (JK-408)




ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion CommIttee

Prepared by Tony Guillory
Assistant Attorney General




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