, 

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 

of higher education seeking 

approval of teacher education 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 performance-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 
l i: 

. 

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 
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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 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 
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, 

. 

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 
. 

. 

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 Coordinating 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 6ChOOl6 of 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 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 

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 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 in Texas, provided the college or 

university in which the teacher completed the requirements for his out-ofstate 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-intraining. 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 
. 

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, concerning, 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, interpretation if the legislative delegation of power to the Board is to be constitutionally 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 Education 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 “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 

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II 

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