DAN MORALES

.ATTORSEY GENERAL 

# QMfice

of tly f&tornep dBeneral &date of ZLexae
May 2,1994

Honorable Bii Ratliff Chair Education Committee Texas State Senate P.O. Box 12068 Austin, Texas 78711 Opinion No. DM-290

Re: Whether the Code of Ethics and Standard Practices for Texas Educators continues to exist following the abolition of the Teachers’ Professional Practices Commission, and related questions (RQ-645)

Dear senator RatliE

You ask several questions about the effect of the recent legislative abolition of the Teachers’ Professional Practices Commission (the “commission”). Subchapter D (sections 13.201 through 13.218) of chapter 13 of the Education Code governs teachers professional practices. The commission was created pursuant to section 13.203 of that subchapter. Section 13.202(2) provided that the term “commission,” as it is used in subchapter D, “means the Teachers’ Professional Practices Commission established by this subchapter.” Sections 13.202(2) and 13.203 were repeated by the Seventy-third Legislature, which passed H.B. 2585, a bii which abolished a number of advisory committees to the Texas Education Agency, providing in pertinent part:

The Teachers’ Professional Practices Commission of Texas is abolished, and Sections 13.202(2) and 13.203, Education Code, are repeated.
H.B. 2585, Acts 1993,73d Leg., ch. 771,s 19(29) at 3025.
Fii, you ask whether the Code of Ethics and Standard Practices for Texas Educators (the “ethics code” or “code”) adopted by the commission continues to exist following the abolition of the commission. If it does, you ask “what are the means by which to amend the Code of Ethics and Standard Practices, if any?” You note that section 13.210, which has not been abolished, requires the commission to “develop and adopt a

‘code of ethics and standard practices’ which shag regulate and govern the conduct of members of the profession.” Id 3 13.210(a). Subsection (d) ofthat section authorizes the commission “to revise or adopt amendments to the code of ethics and standard practices.” Zd 5 13.210(d).’

‘scdion13.21qa)ofthcEducationcodcrequirtsthcco mmissiontoholdpublichcarimgs before developing

aad adophg lhc ethicscode 8ection 13.210(c)mpim the Texas EducationAgencyto submitthepmfesstonslsta&rdstkvela9oibytbecc mmtssion to “all activecutigcsted pmf&oasl pasonnclina~~todmrmiacapprovalocdiaapprwal~eachindividualstandard.” The LxlmmtssioaisrequiredtogivethcRsultsofthe tefcmdm ‘cooaiduationbdorc finallyadoping lhc

p. 1543Honorable Bill BatlifT - Page 2 (DM-290)

We believe that the ethics code continues to exist despite the abolition of the wmmission. The legislature did not repeat subchapter D in its entirety, nor did it repeal any of the provisions in subchapter D that refer to the ethics code. tie, e.g., id. $5 13.202(3), ,210, ,211, .213. It is clear that the legislature was purposehdly selective in repealing only sections 13.202(2) and 13.203, and that it did not intend to repeal the ethics code.

We also believe that a mechanism exists to amend the ethics code. The ethics code has been adopted as an administrative rule by the Texas Education Agency. See 19 T.A.C. ch. 177. Given the legislature’s abolition of the commission and retention of the provisions regardii the ethics code, we believe that the Texas Education Agency has the implied authority to amend the code. See Educ. Code 5s 11.02, 11.24(a) (“the State Board of Education shall take actions necessary to implement legislative policy for the public school system of the state”). Therefore, we conclude that the Texas Education Agency has the authority to amend the ethics code just as it would any other administrative rule. See id.; see also Gov’t Code ch. 2001 (Administrative Procedure Act); 19 T.A.C. ch. 173 (rules governing the Texas Education Agency’s rules and Nh%ld&l~ process).2
Next, you ask who now has the authority to hear wmplaints filed under subchapter D. Section 13.213 of the Education Code provides that the wmmission “shag be authorized to receive written wmplaints from any certified teacher of alleged violation by any member of the profession of any rule or provision of the code of ethics and standard practices, and may hear the matter.

.” After hearing a complaint, the wmmission is rewired to “file its recommendations with the commissioner of education and shag also 6le with him a transcript of any evidence presented before it.” Educ. Code $13.213(d). Section 13.214 of the Education Code authorizes the commissioner to take action based
on the recommendation of the commission. He is not required, however, to adopt the tindings and recommendations of the wmmission, and may adopt rules of procedure for the conduct of hearings before him pursuant to subchapter D. See id. 5 13.214(c).’ In addition, section 13.211 authorizes the wmmissioner to warn or reprimand, or suspend or revoke the teaching certificate of a teacher who violates the ethics code. Given that the commission has been abolished and that its recommendations were not binding on the wmmissioner in the first place, we believe that under sections 13.211 and 13.214 the
(footlao contimlcd) staodah.” Edoc.Code0 13.210(c). wo pmfcssionalstandards disapprovul

intheroferondmo

voteshall headopt&.” Id. 5 13.210(e).

‘WeQaotcoasidcrhuetheanenttowhicbifany,theTucasEducationAgmcywouldk mqoimd toadhere totheprocedmwsetforthinsection13.210inamcnding orrcwising

theethicscod%
%e annmitiowr andammission’spmcedorcs forhearingcomplaints

u&r subchapter

D am saforthin~~157.65andchaptcr181ofvolumc19oftheTarasAdministrati~codc. Hearingsand *.toti= amdmiona gcncmliy arc govan hy chapter 157 of volume 19 of the Texas Admmmlhcodc.

p. 1544Honorable Big RatlilT - Page 3 (DM-290)

authority to hear complaints regardmg violations of the ethics code is now vested with the commissioner. Any complaints that were pending before the commission at the time of its abolition are now pending before the wmmissioner.4 Finally, you ask “ifthe Commissioner does decide to reinstate the [commission] in the futunz, will it retain the same statutory authority it had prior to the repeal of [section] 13.202(2), and [section] 13.203, and wig it havejurisdiction to hear those claims that were brought to the [commission] prior to the effective date of H.B. 25851” Section 11.958(b) of newly enacted subchapter H of chapter 11 of the Education Code provides that the wmmissioner may re-establish any advisory committee provided that it is re-established in accordance with subchapter H.s Section 11.954 requires the commissioner to adopt rules that state the purpose of an advisory committee and “describe the task of the wmmittec and the manner in which the committee will report to the commissioner.” Section 11.954 suggests that the legislature intended to give the commissioner gee rein to establish the purpose and authority of any m-established advisory wmmittee. Therefore, we believe that if the commission were m-established, its authority and jurisdiction would depend upon the rules adopted by the commissioner pursuant to section 11.954.

4WeQnotw~dabercwb*hertheTucaFEducationAg~wouldkrcquircdmadoptncw mgulatioas

toimplemeot

” a,athori~.See 19T.AC. 5 157.65,andch. 181;see a/so 19T.A.C.ch. 157; Gov’tCodech. 2001 (Admmskative FVoahue Act); 19 T.A.C. ch. 173 (ridesgowning the Texas Educatioll

Age&s rolesandNlclnakingprocess). hbchspm Elconlain. provisionsgowning thecomposition ofadvkorycanmissions, as well asthcirselcctionofpmsidingof6cers,rcimbursementdthcirmembcrr’~ andthecommiaaiolls’ cvahmtionanddma&n. Educ.Code$8 11.951,,952,,953,.955,and,957.

p. 1545Honorable Big Ratliff - Page 4 (DM-290)

SUMMARY

The Code of Ethics and Standard Practices for Texas Educators continues to exist following the abolition of the Teachers’ Professional Practices Commission by the Seventy-third Legislature. See Acts 1993, 73d Leg., ch. 771, 4 19(29) at 3025. The code of ethics may be revised or amended by the Texas Education Agency pursuant to its rulemaking procedures. The authority to hear complaints regarding violations of the ethics code is now vested with the wnunissioner of education. Any wmplaints that were pending before the commission at the time of its abolition are now pending before the commissioner. If the commission were reestablished, its authority and jurisdiction would depend upon the rules adopted by the wmmissioner pursuant to newly enacted section 11.954 of the Education Code.

DAN MORALES Attorney General of Texas

JORGE VEGA Fii Assistant Attorney General

DREW DURHAM Deputy Attorney General for Criminal Justice

WILL PRYOR special Counsel

RBNBA HICKS State Solicitor

SARAHJ. SHIRLEY Chair, Opiion Committee Prepared by Mary R Crouta Assistant Attorney General

p. 1546