THE A MCYGENERAL 

TEXAS 

August 14, 1951 

Hon. J. W. Edgar Opinion No. V-1236 

Commissioner of Education 

Texas Education Agency Ren Authority 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. 

You request an opinion on the following question: 

‘May the State Board of Education include 

in Its re ulations governing the issuance of 

teaching quallficatiog7 certificates for spe- I?- clal positions a requirement 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 2 of 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. The State 

Commissioner of Education shall establish qualifications of special service teachers and subseouent 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 made in 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 a Division of 

Special Education. There shall be appointed 

by the State Commissioner of Education a D& 

rector for the Division of Special Education. 

No person shall be employed to teach any class 

for exceptional children as defined in this 

Act unless he possesses a valid 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 made in addition to other professional unit 

allotments .’ 

Subdivision 5 of 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 and one (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 may employ for such unit 

either a supervisor or a counsellor, but not 

both. If a district is eligible for two or 

more such units, the district may employ supervisors only, counsellors only, or a comblnation of the two to the extent of total 

eligibllity.~ The State Commissioner of EduSection 4 of 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 and administrators and to voucher the expenses of 

the central educational agencies according to 
- 

Ron. J. W. Edgar, page 3 (V-1236) 

the rules and regulations prescribed by the 

s tt Oard o ecialons of 

the” &ate Commissioner of EduEation shall be 

subject to review by the State Board of Education.’ 

You state in your request that, pursuant to 

the above provisions, “the Stats Board of Education 

has established rules and regulations which define the 

requirements for administrator’s certificates, csrtificates for special service teachers, counselors, supervisors, teachers of exceptional children and vocational teachers in the four vocational service areas.” 

In McCalla v. City of Rockdale, 112 Tex. 209 

246 S.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. 

Ho officer is permitted to collect fees or 

commissions unless the same are provided for 

and the amount thereof declared by law. This 

is true, notwithstanding such officer may be 

required by law to perform specific services 

for which no compensation is provided. The 

obligation to perform such services is imposed 

as an incident to the office, and the officer 

is deemed to have engaged to perform them without compensation by his acceptance thereof. 

McLennan County v. Boggess, 104 Tex. 311, 315, 

316, 137 S .W. 346; State v. Moore, 57 Tex. 

320, 321; Bellman v. Campbell, 57 Tex. 54.” 

307, 

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

“It may be stated at the outset that 

the Court of Civil Appeals correctly holds 

that a fee paid a public officer for the 

performance of a duty enjoined by statute is 

a fee collected in an official capacity. It 

is eoually true that unless a fee is provi=d 

by law for an official service required to be 

performed and the amount thereof fixed by law, 

1 none can aw u 
Hon. J. W. Edgar, page 4 (V-1236) 

In view of the above well-established principle of law, the State Board of Education cannot charge 

a fee 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 an applicant for examination for a teacher's certificate and the collection of a fee for the issuance 

of such certificate. Article 2888, V.C.S., presaribes 

a fee for the issuance of "teachers' certificates based 

on college credentials from junior $olleges, teachers' 

colleges, colleges or universities. Article 288ga, 

V.C.S., prescribes a fee to be charged for the issuance 

of "Texas Teacher's Certificate on credentials from 

another state.' We are 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. 

, 112 Tex. 209, 246 S W 

a County v. Currinntonj 

139 Tex. 297z S.W.2d 687 (1942). 

APPROVED: Yours very truly, 

Bruce Allen PRICE DAEIEL 

County Affairs Division Attorney General 

Everett Hutchinson 

Executive Assistant 

Charles D. Mathews 

First Assistant 

JR:mw:gs 

John Reeves 

Assistant