                             QMficeof tly f&tornep dBeneral
                                        &date of ZLexae
DAN MORALES
 .ATTORSEY
       GENERAL                              May 2,1994

     Honorable Bii Ratliff                      Opinion No. DM-290
     Chair
     Education Committee                        Re: Whether the Code of Ethics and Standard
     Texas State Senate                         Practices for Texas Educators continues to exist
     P.O. Box 12068                             following the abolition of the Teachers’
     Austin, Texas 78711                        Professional Practices Commission, and related
                                                questions (RQ-645)

     Dear senator RatliE

             You ask several questions about the effect of the recent legislative abolition of the
     Teachers’ Professional Practices Commission (the “commission”). Subchapter D (sections
     13.201 through 13.218) of chapter 13 of the Education Code governs teachers
     professional practices. The commission was created pursuant to section 13.203 of that
     subchapter. Section 13.202(2) provided that the term “commission,” as it is used in
     subchapter D, “means the Teachers’ Professional Practices Commission established by this
     subchapter.”    Sections 13.202(2) and 13.203 were repeated by the Seventy-third
     Legislature, which passed H.B. 2585, a bii which abolished a number of advisory
     committees to the Texas Education Agency, providing in pertinent part:

                     The Teachers’ Professional Practices Commission of Texas is
                abolished, and Sections 13.202(2) and 13.203, Education Code, are
                repeated.

     H.B. 2585, Acts 1993,73d Leg., ch. 771,s 19(29) at 3025.

             Fii, you ask whether the Code of Ethics and Standard Practices for Texas
     Educators (the “ethics code” or “code”) adopted by the commission continues to exist
     following the abolition of the commission. If it does, you ask “what are the means by
     which to amend the Code of Ethics and Standard Practices, if any?” You note that section
     13.210, which has not been abolished, requires the commission to “develop and adopt a
     ‘code of ethics and standard practices’ which shag regulate and govern the conduct of
     members of the profession.” Id 3 13.210(a). Subsection (d) ofthat section authorizes the
     commission “to revise or adopt amendments to the code of ethics and standard practices.”
     Zd 5 13.210(d).’


             ‘scdion13.21qa)ofthcEducationcodcrequirtsthcco   mmissionto hold public hcarimgsbefore
      developingaad adophg lhc ethics code 8ection 13.210(c) mpim the Texas Education Agency to
      submitthepmfesstonslsta&rdstkvela9oibytbecc     mmtssionto “all active cutigcsted pmf&oasl
      pasonnclina~~todmrmiacapprovalocdiaapprwal~eachindividualstandard.”                    The
      LxlmmtssioaisrequiredtogivethcRsultsofthe tefcmdm ‘cooaiduation bdorc finally adoping lhc


                                               p.   1543
Honorable Bill BatlifT - Page 2            (DM-290)




        We believe that the ethics code continues to exist despite the abolition of the
wmmission. The legislature did not repeat subchapter D in its entirety, nor did it repeal
any of the provisions in subchapter D that refer to the ethics code. tie, e.g., id.
$5 13.202(3), ,210, ,211, .213. It is clear that the legislature was purposehdly selective in
repealing only sections 13.202(2) and 13.203, and that it did not intend to repeal the ethics
code.

        We also believe that a mechanism exists to amend the ethics code. The ethics code
has been adopted as an administrative rule by the Texas Education Agency. See 19
T.A.C. ch. 177. Given the legislature’s abolition of the commission and retention of the
provisions regardii the ethics code, we believe that the Texas Education Agency has the
implied authority to amend the code. See Educ. Code 5s 11.02, 11.24(a) (“the State
Board of Education shall take actions necessary to implement legislative policy for the
public school system of the state”). Therefore, we conclude that the Texas Education
Agency has the authority to amend the ethics code just as it would any other
administrative rule. See id.; see also Gov’t Code ch. 2001 (Administrative Procedure
Act); 19 T.A.C. ch. 173 (rules governing the Texas Education Agency’s rules and
Nh%ld&l~ process).2

        Next, you ask who now has the authority to hear wmplaints filed under subchapter
D. Section 13.213 of the Education Code provides that the wmmission “shag be
authorized to receive written wmplaints from any certified teacher of alleged violation by
any member of the profession of any rule or provision of the code of ethics and standard
practices, and may hear the matter.      .” After hearing a complaint, the wmmission is
rewired to “file its recommendations with the commissioner of education and shag also
6le with him a transcript of any evidence presented before it.” Educ. Code $13.213(d).
Section 13.214 of the Education Code authorizes the commissioner to take action based
on the recommendation of the commission. He is not required, however, to adopt the
tindings and recommendations of the wmmission, and may adopt rules of procedure for
the conduct of hearings before him pursuant to subchapter D. See id. 5 13.214(c).’ In
addition, section 13.211 authorizes the wmmissioner to warn or reprimand, or suspend or
revoke the teaching certificate of a teacher who violates the ethics code. Given that the
commission has been abolished and that its recommendations were not binding on the
wmmissioner in the first place, we believe that under sections 13.211 and 13.214 the

(footlao contimlcd)
staodah.” Edoc. Code 0 13.210(c). wo pmfcssionalstandardsdisapprovulin the roferondmovote shall
he adopt&.” Id. 5 13.210(e).

      ‘WeQaotcoasidcrhuetheanenttowhicbifany,theTucasEducationAgmcywouldk
mqoimdto adhereto the procedmwset forthin section 13.210 in amcndingor rcwisingthe ethics cod%

        %e annmitiowr and ammission’s pmcedorcsfor hearingcomplaintsu&r subchapterD am
saforthin~~157.65andchaptcr181ofvolumc19oftheTarasAdministrati~codc.         Hearingsand
*.toti=          amdmiona gcncmliy arc govan    hy chapter 157 of volume 19 of the Texas
Admmmlhcodc.


                                          p.   1544
Honorable Big RatlilT - Page 3            (DM-290)




authority to hear complaints regardmg violations of the ethics code is now vested with the
commissioner. Any complaints that were pending before the commission at the time of its
abolition are now pending before the wmmissioner.4

        Finally, you ask “if the Commissioner does decide to reinstate the [commission] in
the futunz, will it retain the same statutory authority it had prior to the repeal of [section]
13.202(2), and [section] 13.203, and wig it have jurisdiction to hear those claims that were
brought to the [commission] prior to the effective date of H.B. 25851” Section 11.958(b)
of newly enacted subchapter H of chapter 11 of the Education Code provides that the
wmmissioner may re-establish any advisory committee provided that it is re-established in
accordance with subchapter H.s Section 11.954 requires the commissioner to adopt rules
that state the purpose of an advisory committee and “describe the task of the wmmittec
and the manner in which the committee will report to the commissioner.” Section 11.954
suggests that the legislature intended to give the commissioner gee rein to establish the
purpose and authority of any m-established advisory wmmittee. Therefore, we believe
that if the commission were m-established, its authority and jurisdiction would depend
upon the rules adopted by the commissioner pursuant to section 11.954.




       4WeQnotw~dabercwb*hertheTucaFEducationAg~wouldkrcquircdmadoptncw
mgulatioasto implemeot” a,athori~. See 19 T.AC. 5 157.65, and ch. 181;see a/so 19 T.A.C. ch. 157;
Gov’t Code ch. 2001 (Admmskative FVoahue Act); 19 T.A.C. ch. 173 (rides gowning the Texas
EducatiollAge&s roles and Nlclnaking process).

        hbchspm El conlain. provisionsgowning the compositionof advkory canmissions, as well
asthcirselcctionofpmsidingof6cers,rcimbursementdthcirmembcrr’~         and the commiaaiolls’
cvahmtionanddma&n. Educ. Code $8 11.951, ,952, ,953, .955, and ,957.



                                          p.   1545
Honorable Big Ratliff - Page 4         (DM-290)




                                 SUMMARY

               The Code of Ethics and Standard Practices for Texas Educators
          continues to exist following the abolition of the Teachers’
          Professional Practices Commission by the Seventy-third Legislature.
          See Acts 1993, 73d Leg., ch. 771, 4 19(29) at 3025. The code of
          ethics may be revised or amended by the Texas Education Agency
          pursuant to its rulemaking procedures.        The authority to hear
          complaints regarding violations of the ethics code is now vested with
          the wnunissioner of education. Any wmplaints that were pending
          before the commission at the time of its abolition are now pending
          before the commissioner. If the commission were reestablished, its
          authority and jurisdiction would depend upon the rules adopted by
          the wmmissioner pursuant to newly enacted section 11.954 of the
          Education Code.




                                                   DAN MORALES
                                                   Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

DREW DURHAM
Deputy Attorney General for Criminal Justice

WILL PRYOR
special Counsel

RBNBA HICKS
State Solicitor

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by Mary R Crouta
Assistant Attorney General




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