OPFKE OF THE ArrORNLY GENERAL. STATE OF TrxAr 

JOHN CORNYN 

June 29,200O 

Ms. Pamela B. Tackett 

Executive Director 

State Board for Educator Certification 

1001 Trinity Street 

Austin. Texas 78701-2603 

Opinion No. JC-0241 

Re: Whether the State Board for Educator 

Certification’s Internet website may serve as a 

portal for distance-learning courses developed and 

offered by other entities, and related questions 

(RQ-0179-JC) 

Dear Ms. Tackett: 

You inquire about the authority of the State Board for Educator Certification (the “SBEC”) 

to use its Internet website as a portal for distance-learning courses developed and offered by other 

entities. You ask several questions: 

1. Through the agency’s Internet website, may SBEC serve as 

a portal for distance-learning courses developed and offered 

by other entities as an alternative to site-based programs for 

certification candidates satisfying educator preparation 

requirements; renewable certificate holders needing 

continuing education credit; and school personnel seeking 

professional or career development training? 

2. If the answer to Question No. 1 is “Yes,” may a third-party, 

information technology (IT) vendor contract with SBEC to 

facilitate the delivery of distance-learning courses through 

SBEC’s website? If so, would the services of such a thirdparty vendor need to be procured through the competitive 

bidding process, even if one of the potential contractors was 

willing not to charge SBEC? 

3. If the answers to Questions No. 1 and 2 are “Yes,” may a 

Board member of SBEC lawfully serve as such and also be 

employed by a third-party IT vendor that contracts with 

SBEC to facilitate the delivery of other entities’ distancelearning courses through SBEC’s website? 
Ms. PamelaB. Tackett - Page 2 UC-0241) 

Letter from Ms. Pamela Tackett, Executive Director, SBEC, to Honorable John Comyn, Texas 

Attorney General, at 1-2 (Jan. 27,200O) (on file with Opinion Committee) [hereinafter “Request 

Letter”]. In connection with the first question, you ask us to consider “any liability issues related 

to SBEC’s hosting of distance-learning opportunities for educators,” including issues under the 

Americans with Disabilities Act, the Texas Commission on Human Rights Act, and the Family 

Educational Rights and Privacy Act. Id. at 4. 

We conclude that the SBEC’s authority does not encompass authority to use its Internet 

website as a portal for distance-learning courses developed and offered by other entities. Given this 

conclusion, we do not answer your remaining questions. 

You explain the proposed portal arrangement: 

SBEC has been asked to serve as a portal for distance-learning 

courses offered by educator preparation programs and continuing 

professional education providers. Related to educator certification, 

these courses would be delivered over the Internet. The persons 

taking the courses would be educator preparation students seeking 

certification and certificate holders satisfying certification renewal 

requirements. Entities delivering the courses would include the 

following: 

. SBEC-accredited educator preparation programs; 

. SBEC-approved providers offering continuing education 

courses to holders of renewable certificates; and 

. providers of professional development training, such as 

school districts that require their staff to participate in 

professional development programs. 

The educator preparation courses would meet Board 

standards, but SBEC would not participate in developing the courses. 

The prospective educators would apply for admission to an educator 

preparation program and register for courses by accessing SBEC’s 

website, but staff at the preparation program would process the 

admission application and course registration materials. The 

preparation program would administer the course[]work. The student 

would enter the virtual classroom at SBEC’s website and travel down 

a cybernated corridor to a server operated by the preparation program 

or by a third-party contractor on behalf of the program and SBEC. 
Ms. Pamela B. Tackett - Page 3 (X-0241) 

The continuing education courses might be developed by 

SBEC in collaboration with other approved entities, but they could 

also be offered independently of SBEC as a provider. Educators 

wanting to obtain continuing education credits would register for 

courses through SBEC’s website, but the registration would be 

processed and the course delivered by the provider. The same would 

be true for career development courses not taken for credit. 

All course providers would process any fees charged for the 

offerings. 

Request Letter, supra, at 3. 

We examine the SBEC’s authority to permit its website to be used as such a portal in light 

ofthe SBEC’s statutory powers. A state agency created by the legislature has only those powers that 

are explicitly or implicitly delegated to it. See City of Sherman v. Public Util. Comm ‘n, 643 S.W.2d 

681, 686 (Tex. 1983); accord Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961); 

Texas Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145,148 (Tex. App.-Austin 1998, no pet.); 

Tex. Att’y Gen. Op. Nos. JC-0064 (1999) at 4; DM-101 (1992) at 6. 

Chapter 21, subchapter B of the Education Code establishes the SBEC to “regulate and 

oversee all aspects of the certification [and] continuing education . of public school educators.” 

TEX. EDUC. CODE ANN. 5 21.031(a) (Vernon 1996). The SBEC has explicit authority to: 

(1) provide for the regulation of educators and the general 

administration of this subchapter. . ; 

(2) specify the classes of educator certificates to be issued . . . ; 

(3) specify the period for which each class of educator certificate is 

valid, 

(4) specify the requirements for the issuance and renewal of an 

educator certificate: 

(5) provide for the issuance of an educator certificate to a person who 

holds a similar certificate issued by another state or foreign country 

. . . . 

(6) provide for special or restricted certification of educators . ; 
Ms. PamelaB. Tackett - Page 4 (X-0241) 

(9) provide for continuing education requirements; and 

(10) provide for certification ofpersons performing appraisals under 

Subchapter H. 

Id. 5 21.041(b) (footnote omitted). 

No person may be employed as a teacher unless the person has obtained an educator 

certificate. See id. $ 2 1.003(a). With respect to educator certificates, the SBEC must establish the 

training requirements and minimum academic requirements for a person who wishes to obtain a 

certificate. See id. $ 21.044; see also id. $5 21.046, .0481 (Vernon 1996 & Supp. 2000) 

(superintendent or principal certification; master reading teacher certification); 19 TEX. ADMIN. CODE 

$5 230.191 - ,199 (1999) (SBEC Program Requirements for Preparation of School Personnel for 

Initial Certificates and Endorsements). The SBEC must establish standards for the approval and 

continuing accountabilityofeducator-preparationprograms. %~TEX.EDUC.CODEANN. 5 21.045(a) 

(Vernon Supp. 2000); 19 TEX. ADMIN. CODE $5 229.1 - .5 (1999) (SBEC Accountability System for 

Educator Preparation); id. $5 230.151 - ,161 (SBEC Professional Educator Preparation and 

Certification). The SBEC also must develop the process by which “centers for professional 

development” may be established through institutions of higher education “for the purpose of 

integrating technology and innovative teaching practices in the preservice and staff development 

training ofpublic school teachers and administrators.” TEX. EDUC. CODE ANN. 9 21.047(a) (Vernon 

1996); see 19 TEX. ADMIN. CODE 5 230.121 (1999) (SBEC Centers for Professional Development 

and Technology). The SBEC must adopt rules “providing for educator certification programs as an 

alternative to traditional educator preparation programs.” TEX. EDUC. CODE ANN. 9 2 1.049 (Vernon 

1996); see also 19 TEX. ADMIN. CODE 4 230.231 (1999) (SBEC Alternative Certification of 

Teachers). 

With respect to continuing-education and career-development programs, the SBEC must 

adopt rules to establish a process “for identifying continuing education courses and programs that 

fulfill educators’ continuing education requirements.” TEX. EDUC. CODE ANN. $21.054(a) (Vernon 

1996); see also 19 TEX. ADMIN. CODE $4 230.199, ,610 - ,611 (1999) (SBEC Endorsements and 

Continuing Education). Certified educators must complete a total of 150 “clock hours” of 

continuing professional education every five years to renew a certificate. See SBEC, FAQs: 

IssuanceoftheStandard Cert~ificateandRenewalRequirements, Including ContinuingProfessional 

Education (visited Apr. 24, 2000) <http://www.sbec.state.tx.us/certren/certren.htm>. 

Superintendents, principals, and assistant principals must complete 200 clock hours of continuing 

professional education every five years. See id. And the SBEC by rule must provide for “a certified 

educator to qualify for additional certification to teach at a grade level or in a subject area not 

covered by the educator’s certificate.” TEX. EDUC. CODE ANN. 5 21.056 (Vernon Supp. 2000); see 

also 19 TEX. ADMIN. CODE 5 230.199 (1999) (SBEC Endorsements). 

In sum, the SBEC’s rule-making authority extends to establishing standards for various 

certification and continuing-education programs and to establishing a system for evaluating 
Ms. Pamela B. Tackett - Page 5 (X-0241) 

certification and continuing-education programs. Additionally, the SBEC has authority to identify 

“continuing education courses and programs that fulfill educators’ continuing education 

requirements.” TEX. EDUC. CODE ANN. $J 21.054(a) (Vernon 1996). 

In our opinion, the SBEC lacks authority to use its Internet website as a portal that may be 

used to directly access certification, continuing-education, or career-development courses offered 

by other entities. The authority to establish standards for and evaluate certification and continuingeducation courses and to identify approved courses does not encompass authority to allow the SBEC 

to use its website to directly facilitate the sale ofvarious courses to consumers. Nor can the SBEC’s 

statutory authority to “regulate” and “oversee” the certification and continuing education of public 

school educators be stretched to suggest that the legislature contemplated that the SBEC would use 

its identity to provide direct access to approved courses. See id. 5 21.03 l(a). The authority to 

regulate is the authority to control or direct by rule, see XIII OXFORD ENGLISH DICTIONARY 524 

(1989); the authority to oversee is the authority “to watch over,” “to inspect,” or “to supervise.” X 

OXFORD ENGLISH DICTIONARY 1115-16 (1989). 

Your remaining questions, regarding the SBEC’s potential liability for illegal conduct on the 

part of those course providers to which the SBEC provides access on its website, are premised upon 

a conclusion that the SBEC may, in fact, use its website as an Internet portal. See Request Letter, 

supra, at 4. You also suggest that the SBEC’s proposed use of its website might be viewed by 

consumers as endorsing those courses to which the SBEC provides direct access, and you ask 

whether such a use might conflict with the SBEC’s statutory authority. Id. Given our conclusion, 

we do not answer these questions. 

Nevertheless, the issues you raise underline important policy reasons for concluding as we 

have. Where, as here, a state agency proposes to participate in Internet commerce by allowing thirdparty course providers to use a state website as a method of direct access between consumers and 

course providers, we believe the agency should have legislative approval. The legislature is the 

appropriate public body to determine whether and the extent to which a state agency created by the 

legislature may use its government website to participate in Internet commerce or to facilitate others’ 

participation in such commerce. 
Ms. PamelaB. Tackett - Page 6 (JC-0241) 

SUMMARY 

The State Board for Educator Certification has no authority to 

use its Internet website as a portal for distance-learning courses that 

other entities have developed and offered. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

ELIZABETH ROBINSON 

Chair, Opinion Committee 

Kymberly K. Oltrogge 

Assistant Attorney General - Opinion Committee