OFFICE OF THE ATTORNEY GENERAL
. STATE 0~ TEXAS

JOHN CORNYN

Mr. William M. Franz Executive Director State Board for Educator Certification 1001Trinity Austin, Texas 78701-2603 Dear Mr. Franz: October 22,2002
Opinion No. JC-0566 Re: Procedure for certification of foreign educators by State Board for Educator Certification (RQ-0541-JC)

You have asked this office whether the State Board forEducator Certification (the “SBEC”) may require a “Letter of Good Standing” from foreign educators applying for Texas certification.’ We conclude that while the requirement of such a letter is within the authority of the SBEC, in instances where for good reason it cannot be produced and where insistence upon its production would work an undue hardship on an applicant, the SBEC may and should accept alternative forms of evidence. The SBEC has the authority to “regulate and oversee all aspects of the certification, continuing education, and standards ofconduct ofpublic school educators.” TEX. EDUC. CODEANN. 521.03(a) (Vemon 1996). “No person may be employed as ateacher unless the person has obtained an educator certificate.” Tex. Att’y Gen. Op. No. JC-0241 (2000) at 4 (citations omitted). “With respect to educator certificates, the SBEC must establish the training requirements and minimum academic requirements for aperson who wishes to obtain acertificate.” Id. Educators who hold certificates issued by aforeign country, and who have taken either the Texas certification examination or examinations as rigorous as that for Texas certification, are eligible for teacher certification in Texas pursuant to section 21.052 ofthe Education Code, which reads as follows:

(a) The board may issue acertificate to an educator who (1) holds: (A) a degree issued by an institution accredited by a regional accrediting agency orgroup that isrecognized by anationally recognized accreditation board; or

‘SeeLetter from William M.Franz, Executive Director, StateBoard forEducator Certification, toHonorable John Cornyn, Texas Attorney General (May 1,2002) (on file with Opinion Committee) [hereinafter Request Letter].Mr. William M. Franz - Page 2 (JC-0566)

(B) a degree issued by an institution located in a foreign country, ifthe degree is equivalent to a degree described by Paragraph (A); (2) holds an appropriate certificate or other credential issued by another state or country; and (3) performs satisfactorily on

or (A) the examination prescribed under section 21.048;

(B) if the educator holds a certificate or other credential issued by another state or country, an examination similar to and at least as rigorous as that described by Paragraph (A) administered to the educator under the authority ofthat state. (b) For purposes of Subsection (a)(2), aperson is considered to hold a certificate or other credential if the credential is not valid solely because it has expired. TEX.EDUC.CODEANN. 821.052 (Vernon Supp. 2002). The rules promulgated by the SBEC forissuing acertificate to aforeign-trained educator who applies for one require that the applicant provide, among other things:

(3) evidence in a form approved by the executive director that the educator certificate or credential
...is currently in good standing and has not been revoked, suspended, or sanctioned for misconduct and is not pending disciplinary or adverse action;

19 TEx. ADMIN. CODE5 245.10(a)(3) (2002). It appears that, in practice, the SBEC requires this evidence in the form of a “Letter of Good Standing” issued by the ministry of education or the authorized licensing agency in the educator’s home country. The SBEC rule, however, does not require such aletter, but rather requires “evidence
. . .that the educator certificate or credential

...is currently in good standing and has not been revoked, suspended, or sanctioned for misconduct and is not pending disciplinary or adverse action.” Id. As we understand the situation which led to your request, a Cuban-certified educator now residing in Texas has applied to the SBEC for certification, and the SBEC in March of this year sent the applicant a letter requesting that he supply a “Letter of Professional Standing from the Ministry of Education” to fulfill the requirements of 19 Texas Administrative Code sectionMr. William M. Franz - Page 3 (JC-0566)

245.10( a)(3).2 The applicant, in aletter to the SBEC, responded to this request for information that he, like other Cuban political exiles, “cannot obtain papers from our country, asitdoes not have any diplomatic relations with USA.“3 In its March 27 reply, the SBEC responded that “[tlhe Letter of Professional Standing isrequired ofall out-of-country certified applicants, regardless ofthe country of origin or the conditions ofthe individual’s immigration to the United States. We are not able to waive this item.“4 A representative of the applicant has argued that no such requirement is to be found in the Education Code, and the applicant has argued that, in effect, his status as a Cuban immigrant exempts him from this state requirement as amatter of federal law.5 You have accordingly asked us whether the SBEC may require a“Letter ofGood Standing,” and whether persons granted asylum or refugee status are exempt from SBEC’s statutory or regulatory requirements in applying for certification. We conclude that the regulation in question, 19Texas Administrative Code section 245.10(a)(3), is within the SBEC’s regulatory authority, but that neither it nor the Education Code require foreign educators toprovide a“Letter ofGood Standing.” We also conclude that immigrants are not exempted from generally applicable state licensing regulations solely on the basis of that status. “A state agency created by the legislature has only those powers that are explicitly or implicitly delegated to it.” Tex. Att’y Gen. Op. No. JC-0241 (2000) at 3, citing City ofSherman v. Pub. Util. Comm it, 643 S.W.2d 681,686 (Tex. 1983). Inparticular, “agencyrule[s] may not impose additional burdens, conditions, orrestrictions in excess oforinconsistent with
...relevant statutory provisions.” S.WIBell Tel. Co. v. Pub. Uitl. Comm ?I, 888 S.W.2d 921, 926 (Tex. App.-Austin 1994, writ denied). However, section 21.052 of the Education Code provides sufficient authority for the requirement contained in 19 Texas Administrative Code section 245.10. Given that a condition of section 21.052(a)(2) is that an applicant “hold[] an appropriate certificate,” see TEX. EDUC. CODEANN. 921.052(a)(2) (Vemon Supp. 2002), the SBEC has implicit authority to determine that this condition has been met. Furthermore, asyou note, section 21.052(b) provides that, “[flor purposes of Subsection (a)(2), aperson is considered to hold a certificate or other credential ifthe credential is not valid solely because it has expired.” Id. 421.052(b). You argue that this provision suggests that there may be other reasons why the SBEC could regard a foreign certificate as invalid, and that consequently the SBEC may require an applicant to

*SeeLetter from State Board for Educator Certification, to Benito A. Castillo (Mar. 6, 2002) (attached to Request Letter). 3SeeLetter from Benito A. Castillo, to State Board for Educator Certification (Mar. 11,2002) (attached to Request Letter). 4SeeLetter from State Board for Educator Certification, to Benito A. Castillo (Mar. 27, 2002) (attached to Request Letter).

‘SeeLetter fromRosa deArmas,to StateBoard ofEducator Certification (Apr. 9,2002) (attached toRequest Letter); Letter from Benito A.Castillo, supra note 3.Mr. William M. Franz - Page 4 (JC-0566)

demonstrate that such is not the case. Insofar as 19Texas Administrative Code section 245.10 is intended to aid in making such adetermination, it is within the SBEC’s authority. However, aswe have noted, the regulation does not specify that an applicant must submit a “Letter of Good Standing” issued by the ministry of education or the authorized licensing agency in the educator’s home country. And we believe such aregulatory requirement would impose burdens and conditions in excess of the SBEC’s statutory authority. See S.K Bell Tel. Co., 888 S.W.2d at 926. There are cases such as the instant one in which the production of a“Letter ofGood Standing” is impossible, and a refusal by the SBEC to consider any other form of documentation in such instances would cause a particular class of applicants such as, e.g., Cuban immigrants, undue hardship. In such instances, the Education Code and section 245.1 O(a)(3)ofthe Administrative Code require the SBEC to permit other material evidence that is “in aform approved by the executive director,” see 19TEX. ADMIN. CODE 8 245.10(a)(3) (2002), to make the necessary showing that the “credential
. . . is currently in good standing and has not been revoked, suspended, or sanctioned for misconduct and is not pending disciplinary or other adverse action.” Id. We note that the SBEC already requires the applicant to provide an evaluation ofhis orher credits “prepared by acredential evaluation service recognized by the executive director of SBEC.” Id. 8245.10(a)(2). Further, under section 22.082 of the Education Code, the SBEC is obliged to “obtain from any law enforcement or criminal justice agency”-a category that, in our view, would include the Immigration and Naturalization Service-“all criminal history record information that relates to an applicant for or holder of a certificate issued under Subchapter B, chapter 21.” TEX. EDUC.CODEANN.022.082 (Vernon 1996). What other information the SBEC may deem sufficient for the purpose of section 245.1 O(a)(3) is amatter within its discretion, so long asthat discretion is not exercised arbitrarily and capriciously. See, e.g., Occidental Permian, Ltd. v.R.R. Comm ‘n,47 S.W.3d 801, 806 (Tex. App.-Austin 2001, no writ). In response to an argument offered by the applicant, you ask whether the immigration status of foreign applicants exempts them from generally applicable statutory or regulatory requirements. So far as we can determine, it does not. Article 1, section 8 of the Constitution of the United States gives the Congress the power
“[t]o establish auniform Rule ofNaturalization.” U.S. CONST.,art. I, sec. 8, cl. 4. The regulation ofimmigration and naturalization assuch isanexclusively federal concern. “‘[O]ver no conceivable subject isthe legislative power of Congress more complete than itis over’ the admission of aliens.” FiaZZov.Bell, 430 U.S. 787,792 (U.S. 1977). Further, under the Supremacy Clause, the Constitution and laws of the United States are “the supreme Law ofthe Land
. . .any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. CONST.,art. VI, cl. 2. Accordingly, a state could not place burdens orrestrictions on immigrants inconsistent with federal law. However, no such restrictions are evident in subjecting such persons to a common regulatory or licensing scheme.Presumably of course the Congress of the United States could, consistent with its plenary power over matters concerning imrnigration, exempt foreign nationals from some state regulatory scheme. But we are aware ofno such exemption. In this regard, the applicant refers in his letter ofMr. William M. Franz - Page 5 (JC-0566)

March 11,2002, to the Cuban Refugee Adjustment Act. See 8U.S.C. 5 1255 (2000).6 While the Act in question does provide, as the applicant notes, certain relief for Cuban nationals in terms of the adjustment of their immigration status, nothing in it exempts such persons from generally applicable state laws. Your third question iswhether SBEC may “ascertain and condition educator certification on the citizenship or alien status of an applicant originally certified by a foreign jurisdiction.“7 Assuming your concern here is whether you must assure yourself that the applicant isin the United States legally, you must make such adetermination. Federal law provides that illegal aliens are “not eligible for any State or local public benefit,” which term includes professional licenses. 8U.S.C. 9 1621(a)(3), (c)U)(A) ww. see also Tex. Att’y Gen. Qp. No. JC-0051 (1999). “Qualified alien[s]” who may be eligible for public benefits, for purposes of 8U.S.C. 5 1641 include Cuban or Haitian entrants to the United States. See 8 U.S.C. 9 1641(b)(7) (2000). You may and should require the applicant toprovide documentation from the Immigration andNaturalization Service that he or she resides legally in the United States.

%ee Letter from Benito Castillo, supra note 3.

‘SeeRequest Letter, supra note 1,at 1.Mr. William M. Franz - Page 6 (JC-0566)

SUMMARY The State Board for Educator Certification may require a foreign-certified educator who qualifies for certification pursuant to section 21.052(a) ofthe Education Code toproduce a“Letter ofGood Standing” from the foreign jurisdiction in which the educator is certified. However, if for good cause the applicant cannot produce such a letter, the board should accept alternative documentation. Immigration status does not exempt a foreign national from the strictures of auniform state licensing scheme. Very truly yours,

JOtiN CORNYN Attorney General of Texas
HOWARD G. BALDWIN, JR. First Assistant Attorney General NANCY FULLER Deputy Attorney General - General Counsel SUSAN DENMON GUSKY Chair, Opinion Committee James E. Tourtelott Assistant Attorney General, Opinion Committee