DAN MORALES Al-rORNEY GENERAL 

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of tiy JTMmep @heral %tate of Okxae April 26.1993

Honorable JamesE. “Pete”Lsney SW= Opiion No. DM-219 Texas House of RepP.O. Box 2910 Austin, Texss 787682910 Re: Authority of the Board of Licensure for Nursing Home Administrstors to charge and “collect a SlO.00 fee for each

. . &umstretor-psrdcipsnt in ell educstion tames approved by the -1 for wntinuing educationunits” (RQ-492) DearMr. speaker: You ask the folhnvingquestions:

Under current governing statutes, does the Board of Liwnsure for Nursing Home Administmtors (TBLNHA) have euthority to cokct a SlO fee for eech sdministrstor-paticipsnt in sll education coursesapprovedbytheTBLNHAforcontir&g education units (CBUs)when:

-amenthefeeisinadditiontothefeechargedbyTBLNHA to the course provider for spprovsl of the course for CEUs; -whenthecourseptwidaistheentitytobeessessedend responsii~efor payment of the fee, snd -when TBLNHA will deny credit to the sdministrstorps$ipsnt for the course completed if the SlO fee is not
Uttdatheci rwmstanws you descrii, TBLNHA imposes the SlO fee on the ‘wurse provida,” which then passes along the charge to the “participant.” Section 10 of the board’ s ensbhng statute, article 44424 V.T.C.S., describes & fees which the board is euthorized to sssess, includingsn initiallicensingfee of not more then S150.00, sn exsminstion fee of not more thsn S150.00, a biennisl licensing fee

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of not more than Sl50.00, and a penalty of SSO.00 for renewal of a license which has been expired for more than 30 days. In addition, subsection 6(7) directs the board to

conduct or cause to be conducted, one or more courses of instruction andtrainhgsuiBcienttomeetthere+irementsofthisAct,make provisions for the wnduct of au& wursesandtheirdbuityto residentsof this State, and establishand cdlccr reasomble fees to be @twited inta the genemljmd for inandion or tining courses conducfed~theboardin~ &ennined by the baa& to be ~~cirnttowvrr~ho~~es,~unleapitfindsthattl&rr areasu&kntnumbexof wurseswnductedbyotherswithinthis StatetomeettheneedsoftheState. Inlieutherwftheboardmay approve wurses wnducted within and without the State as sutlicient tomeettheeducationandtrsiningrequkments of this Act. V.T.C.S. art. 4442d 5 6(7) (emphasis added). As the italicized language d-es, the board is anpowered to “collectreasonablefees” for wntiwing education co- but On& for those “instruction wurseswnductedbytheboard.” whenthewursesare

“conductedby om” the statutory languagewnks no authority on the boardto impose fees of any kind w-. Youindicate~theboardbdimsthat~~~tosPseYltheproporedSlO Ckrgeforwnthingeducationwurseswnductedbyoutside sourwderiveshm section 8 of article 4442d. Section 8 is a general rule-makingprovision. It empowers the board”tomakenrlesud~o~aotiaconsistentwithlawru~benecessaryor proper for the performanceofitsduties.” Aiongliwofopinionshmthisoffiwhaaheld, howmr,thatastatelicarsiag~mrywtprescn’ beMyfwwhichisnotspocifically authorized by statute. In Attorney Owed OpinionH-669 (1975). for example,this office declaredthattheBoardofl)entrrl~anrsnotanpoweredtoimposcf#sondental ~~inthelbsmceofspecificItannoryauthorizatontodoso. Likewise,in Attorney General Opiion H-443 (1974). the attorney genesal stated that the Structural Pest Control Board was not pemhted to assess an additional charge for administeringits licensing exdnatio~~ Fii, in Attorney General Opiion H-897 (1976), this office assated that the Depmmnt of Labor and Standards was without authority to conduct

“shop surveys’ of boila manthhuera and charge a fw for doing so. See aho Attomey General Opinion V-1426 (1952). Each of these. prior opinions relies on the court’ s decision in Nueces Counry v. Currington, 162 S.W.2d 687 (Tar. 1942). which de&red that unless a fw is provided by law for an official tice required to be

performed snd the amount thereof tied by law, none can lawtidly be charged therrfor. Id. at 688; see alsa AkG& v. City ofRock&ale, 246 S.W. 654 (Tex. 1922).

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In the situationyou pose, a number of permissiblefees are specifiedby statute, but there is no statutory authorization for the board to impose a $10.00 charge in connection with wntinuing education courses which are conducted, not by the board itself, but by outside sources. It is our opinion, therefore, that the Board of Licensure for Nursing Home Administratorsmay not assess and wllect the fees in question. SUMMARY The Board of Liccnsurefor NursingHome Administratorsis not authorixedto impose and wllect a SlO.00 fee from administrators or participants in courses conducted by outside sources and approved by the board as wntinuii educationunits.

DAN MORALES Attorney Gwerd of Texas WILL PRYOR First Assistant Attorney Germal MARYKELLER Deputy Attorney GcneralforLitigation RENEAHICKS state solicitor MADELEINEB. JOHNSON Chair, Opiion Committee Pmpared by Rick Gilpin Assistant Attomeyoend

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