# , 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 201 East Eleventh Street Austin, Texas 78701 Re: Authority of State Commissioner of Education and/or State Board of Education to require that an institution ofhigher education seeking approval of teacher educationprograms present a performance-based application for approval and related question. Dear Dr. Edgar: On behalf ofthe State Board of Education youhave requested an opinion from this office concerning the Board’s authority over teacher education. Specifically, you have asked:

“(1) Is itwithin the authority of the State Commissioner of Education and/or State Board of Education to include intheprovisions for approval of teacher education programs the stipulation that the higher education institution seeking approval must present aperformance-based application **for** approval7

“(2) Ifthe answer to No. 1is in the negative, is it withinthe authority of the State Commissioner of’ Education 

### and/orthe State Board of Educationto include in the provisions for approval ofteacher education programs two or more alternative plans,

p. 922

# l i: .

The Honorable J. W. 

### Edgar, page 2 (H-197)

only one ofwhich would be performance-bared wherefrom the higher education institution may elect to use the alternative of itr choice as abasis for presenting an application for approval. ” InJune, 1972 theState Board of Education 

### andthe 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 tobe “performance based. ” **Your** letter defines “performance based education!’ as:’

“A process whereby the proviaionr of aplanned 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 ofthe stated objective.. ‘I Inan 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 definedjob roles for professionala within the school setting, a delineation of competenciea required ofthe professional tn.&e job role, anda planned-program of preparation which allowr the development of there competenciea. The plan of instruction includes a clearly defined purpose, andamechanism to ascertain the degree of effectivenees of themeactivities or 

### courses determined tobe needed by or **required** of **a** prospective teacher. It is a procere to preclude duplication of efforta, loso of time, andundefined

p. 923The 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 anability to.perform.that competency are given and that if a n.eedexists. recyclical application for performance ability is provided. ” Broad powers in the field ofteacher certification have been given the State Board of Education andthe Central Education Agency, butthey are not exclusive except in respect to special service and special education teachers. The qualifications ofthe latter were specifically made subject to State Board of Education regulation by Article 2922-13 55 1(3)(d), 1(4)(c), and l(S)(a) V. T. C. S. , now Section 16.15(d) ofthe Education Code. The basic authority of theBoard 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 ofteachers and for granting certificates for teaching inthe public schools ofthis state in accordance with Chapter 13of 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 anAct 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 ofthe state commissioner of education. : .: ‘

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p. 924.

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

is authorized to establish such rule6 and regulations as are not inconsistent withthe provisions of this chapter andwhich may be necessary 

### to administer the responsibilities vested under the terms of this chapter concerning the issuance of certificates and the standards -andprocedures for the approval of colleges anduniversities offering programs of teacher education. l’(b) In order to secure professional advice for his recommendations to theState Board of Education, the state commissioner of education shall consider recommendations of theboard of examiners for teacher education in all matters covered by this chapter. ” Teaching certificate6 are the subject of Sections of Chapter 13ofthe Code. derived from former Article 2891-b. V. T. C. S. These sections clearly show the authority ofthe-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) inthe 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 thanthose in Chapter 13, are also applicable. Itprovides 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 ptatuteto remain in operation. Attorney General Opinion H-75 (1973). 53Fex. Jr. 2d. Statutes § 102. The Central Educaion Agency has general control of the public education system at the state level andrule-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 21year.6 d age which is carried on inthe state 

### or federal agencies, except higher education in approved colleges. ” Section ll. 02and see Section 11.52(g) for the general powers ofthe Commissioner. Teacher6 salaries may be based ontraining inihstitutions recogrked (not “approved!‘) by the Commissioner. Section 16. 301(b). Texas Education Code (formerly Article 2922-14 81). Before Title 3was 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. andprovided:

“Except as herein provided, all laws establishing State teacher6 coll6geS or normal institutes for the training ofwhite teacher6 andproviding for their government, control andmaintenance 

### 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

‘theState 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 , andthe authority by which they were tobe signed. In 1971, when Title 3of 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 ofpublic higher education, andamong 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 andfunctions ofthe Central Education Agency are not affected by such provisions. The enactment of Article 2919e-2, V. T. C. S., shifted~to the Coordinating Board responsibility for determining what departments of instruction State Senior Colleges might maintain andwhat

### 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 1and2 ofthe 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 uponpresentation to theState Commissioner of Education of proof of a diploma from such an institution andpresentation of such other proof 

### regarding moral andpersonal qualifications as was required by law. The presentation of such proof cast uponthe State Commissioner of Education aministerial dutyto issue the certificate, whether or not the teacher education program of the State Senior College System institution was one pro forma “approved” by theState Board of Education. En

### our opinion, theadoption in 1969 of Titles 1and 2 of the Education Code did not change the law in that regard. In our view, the duty ofthe Central Education Agency to award a teaching certificate to a graduate ofa 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. 927The Honorable J. W. Edgar, page 7 (H-197)

or by the omission of Article 2888from the Education Code, 

### or by the enactment of Title 3of 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 ofteachera and for granting certificates for teaching in the public 6ChOOl6 of this state in accordance with Chapter 13of the Code, not Chapter 95. That limitation was in effect before Title 3was 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 proscription 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 thatSystem continue tobe statutorily entitled to teaching certificates, even absent pro forma approval of such programs by the State Boardsof Education. The 1971Act specified that no substantive change was intended by its enactment. (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 inTexas, provided the college or university inwhich 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 whohave completed “performance based” teacher training program6 Also see 5ll. 31. Texas Education Code. The “performance based” concept, as we understand your explanation of it. concerns not 60 much a method ofteachiag as it doe6 a method of measuring the usefulness (to a teacher) ofwhat is taught the teacher-intraining. Itmerely requires that everything in a proposed teacher training program be useful in the development ofteachers. It doe6 not prohibit prespective teachers from taking courses outside the “program”, nor does

p. 928.

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

.

it affect courses not offered in satisfaction of ‘program” requirements. The Legislature may delegate to 

### anadmini6trative agency the power to make rules which have the effect oflaw whentheLegislature itself cannot practically and efficiently perform thefunction, but the Legislature must declare the policy and fix the standards bywhich 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 theState Board of Education to accomplish this, in part, by establishing rule6 andregulations, concerning, among other things, I’

. . . the standards andprocedures for the approval of colleges anduniversities offering programs ofteacher education”, which (1) are notinconsistent with applicable EducationCode provisions,and (2) may be necessary with respect thereto. These twolimitation6 on the Board’s authority to set standards must’:be given an effective and meaningful, interpretation ifthe legislative delegation ofpower tothe Board is to be constitutionally valid. Railroad Commission v. Shell Oil Co. 161S. W. 2d 1022 (Tex., 1942); Gerst v. Jefferson County Savings &Loan, 390 S.W. 2d 318(Tex. Civ. APP.9Austin, 1968 error ref’d n.r. e. ). The Legislature has specified thatthe rule6 and regulations ofthe Board of Education must be consistent withtheprovisions of Chapter 13and necessary with respect thereto. See Attorney General Gpinion M-386 (1969). We donotbelieve a rigid, requirement thatall 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 thatout-of-state institutions and institutions composing the State Senior College System need not do so. Nor, in thelight 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. Jnour opinion, underpresent Texas law it is not within the authority of the State Board of Educationor the Commissioner to

p. 929The 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= ofthe Commissioner, could legally promulgate rules and regulations whereby institutions seeking such approval could choose between alternative plans for program approval (one or more ofwhich 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) andActs 1921, ch. 129. p. 242 (Art. 2888); Acts 1929, 2nd C. S., ch. 10, p. 12 (Art. 2675b -7, -8); Acts 1949, ch. 39 51, 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 1and 2, Texas Education Code): Act6 1971, ch. 1024, p. 3072 (Title 3, Texas Education Code). You have notasked thatwe pass uponparticular standard6 andyour questions are not directed to the legality of the 1972 standards. We need not refer to them further than to say that some ofthem 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 notwithinthe 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, butthe Board, - with the advice ofthe Commissioner, may promulgate rules and regulations whereby institutions seeking such approval could choose between alternative plans for program approval (one or more ofwhich might be “performance-based”) and submit applications accordingly.



# u Attorney General of Texas

p. 930.

. . The Honorable J. W. 

### Edgu, page 10 

### (H-191)

DAVID M. KENDALL, Chairman Opinion Committee

p. 931 . II

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