THE 

# A MCYGENERAL TEXAS

August 14, 1951

Hon. J. W.Edgar Opinion No. V-1236 Commissioner of Education Texas Education Agency RenAuthority of the State Austin, Texas Board of Education to fix the fee to be charged for special certificates for persons found qualified for special positions Bear Sir: in public schools.

Yourequest an opinion on the following question:

‘Maythe State Board of Education include in Its re ulations governing the issuance of teaching quallficatiog7 certificates for spe-

I?- clal positions arequirement that a fee of one dollar ($1.00) be charged for each special certificate Issued?” Subdivision (3) of Section 1, Article 2922-13, v.c.s ., provides in part?

“d. Provided that school districts may choose from the five types of special service teacher units listed in Section 2of Article II of this Act, sub-section A-3, the number of each classification that it desires, to the extent of total ellglbllity for such units and the allocation of special service teacher units shall not preclude the assignment. of classroom teachers to special service duties. TheState Commissioner of Education shall establish qualifications of special service teachers andsubseouent to the 1949-1950 school year such qualifications shall be subject to regulations made by the State Board of Education.

“Provided further, that the special service teacher unit allotments provided for herein shall be madein addition to other professional unit allotments

.” (Emphasis added throughout.)Hon. J. W.Edgar, page 2 (V-1236)

V.C.S.) Subdivision (4) of Section 1, Article 2922-13,

provides in part: *c

. There is hereby created In the State Department of Education aDivision of Special Education. There shall be appointed by the State Commissioner of Education aD& rector for the Division of Special Education. Noperson shall be employed to teach any class for exceptional children as defined in this Act unless he possesses avalid teachers certlficate and, in addition thereto, such tralnlng as the State Commissioner of Educatiormag require.

“Provided that allotments for exceptional children teacher units provided for herein shall be madein addition to other professional unit allotments

.’ Subdivision 5of Section 1, Article 2922-13, V.C.S., provides in part:

“a. One (1) supervisor or counsellor unit for the first forty (40) classroom teacher units andone (1) supervisor or counsellor unit for each additional fifty (50) classroom teacher units, or major fractional part thereof. If a district IS eligible for one such unit, the district mayemploy for such unit either a supervisor or a counsellor, but not both. If adistrict is eligible for two or more such units, the district mayemploy supervisors only, counsellors only, or a comblnation of the twoto the extent of total eligibllity.~ TheState Commissioner of EduSection 4of Article 2654-5, V.C.S., provides:

‘It shall be the duty of the State Corn-- missioner of Education to issue teaching certificates to public school teachers andadministrators andto voucher the expenses of the central educational agencies according to-
Ron. J. W.Edgar, page 3 (V-1236)

the rules andregulations prescribed bythe s tt Oardo ecialons of the”&ate Commissioner of EduEation shall be subject to review by the State Board of Education.’ Youstate in your request that, pursuant to the above provisions, “the Stats Board of Education has established rules andregulations which define the requirements for administrator’s certificates, csrtificates for special service teachers, counselors, supervisors, teachers of exceptional children andvocational teachers in the four vocational service areas.”

In McCalla v. City of Rockdale, 112Tex. 209 246S.W. 654, 655 (1922), it is stated:

“The courts of this state have adopted the rule construing strictly those statutes prescribing fees for public officers and against permitting such fees by implication. Hoofficer is permitted to collect fees or commissions unless the sameare provided for andthe amountthereof declared by law. This is true, notwithstanding such officer maybe required by lawto perform specific services for which no compensation is provided. The obligation to perform such services is imposed as an incident to the office, andthe officer is deemedto have engaged to perform themwithout compensation byhis acceptance thereof. McLennanCounty v. Boggess, 104Tex. 311, 315, 316, 137S.W. 346; State v. Moore, 57Tex. 320, 321; Bellman v. Campbell, 57Tex. 54.”307,

It is likewise stated in Rueces County v. Currington, 139Tex. 297, 162S.W.26 687, 688 (1942):

“It maybe stated at the outset that the Court of Civil Appeals correctly holds that afee paid a public officer for the performance of aduty enjoined by statute is a fee collected in an official capacity. It is eoually true that unless a fee is provi=d by lawfor an official service required to be performed andthe amountthereof fixed by law, 1 none can awuHon. J. W.Edgar, page 4 (V-1236)

In view of the above well-established principle of law, the State Board of Education cannot charge afee for the issuance of teaching qualification certificates for special positions unless it has express authority prescribing the fee for the services rendered. Article 2879, V.C.S., authorizes the collection of a fee from anapplicant for examination for a teacher's certificate andthe collection of a fee for the issuance of such certificate. Article 2888, V.C.S., presaribes afee for the issuance of "teachers' certificates based on college credentials from junior $olleges, teachers' colleges, colleges oruniversities. Article 288ga, V.C.S., prescribes afee to be charged for the issuance of "Texas Teacher's Certificate on credentials from another state.' Weare unable to find any provision prescribing a fee to be charged'for the issuance of the teaching certificates mentioned in your request. You are therefore advised that the State Board of Education cannot prescribe a fee of $1.00 to be charged for the issuance of teaching certificates for special positions. SUMMARY The State Board of Education is not authorized to charge a fee for the issuance of teaching certificates for special positions pursuant to the regulatorypowers of the State Board of Education. McCalla v.

, 112Tex. 209, 246SW a County v. Currinntonj 139Tex. 297z S.W.2d 687 (1942). APPROVED: Yours very truly, Bruce Allen PRICEDAEIEL CountyAffairs Division Attorney General Everett Hutchinson Executive Assistant Charles D. Mathews First Assistant JR:mw:gs John Reeves Assistant