### THE ATTORNEY GENERAL OF TEXAS

July 5, 1989

Mr. Bryan M. **Perot** Executive Officer OpiniOn No. JM-1067
Polygraph Examiners Board Re: Whether payment of a polyP. 0. BOX 4087 graph licensing fee may be reAustin, Texas 78773-0001 fundedwhen the licensee dies (RQ-1711)

**Dear** Mr. Perot:

You ask whether the Polygraph Examiners Board has authority to refund aportion ofthe annual license fee to the estate of a licensee who died during the term of his license. We conclude that the board has no authority to make such a refund.

The Polygraph Examiners Board is governed by the provisions of article 4413(29cc), V.T.C.S. Section 17 of article 4413(29cc) provides inpart:

(a) Each polygraph examiner's license shall be issued forthe term of oneyear and shall, unless suspended or revoked, be renewed annually.

(b) A person may renew his unexpired license by paying to theboard before the expiration date of the license the required renewal fee.

Section 17Aprovides:

The board by rulemay adopt a systemunder which licenses expire onvarious dates during the year. For the year in which the expiration date is changed, license fees payable on thedate ineffect at the time the rule is adopted shall be prorated on a monthly basis sothat each licensee shall pay only that portion of the license feewhich is allocable to the number of months during which the license isvalid. On renewal of the license on the new expiration date, the total license renewal fee ispayable.

p. 5561Mr. Bryan M. Perot -Page 2 (JM-1067)

This office has issued several opinions that considered whether an entity had authority to prorate an initial licensing feewhen the initial licensing feewould be valid for less than a year. Three opinions concluded that language requiring the annual fee to accompany the ;~$Ui.tion foran initial license indicated that an entity

authority to prorate the initial fee. Attorney General Opinions JM-399 (1985):M-1107 (1972);M-580 (1970). Incontrast, a 1975 opinion concluded that a statute that set anannual fee but did not require the "annual fee" to accompany an initial application permitted proration of the initial fee. Attorney General Opinion B-708 (1975). The statute inquestion in Attorney General Opinion Ii-708~did, however, require that a license be issued "upon receipt of all license fees." Because of that language, Attorney General Opinion JM-399 (1985) called into question the continuing validity ofAttorney General Opinion U-708.

Inany casewe think that theprior opinions make clear that anagencymust have either express or clearly implied authority to prorate license fees. We find no prior opinions that directly address the question ofwhether an agency may refund aportion ofan annual license fee to the estate of a licensee who dies during the term of his license. We conclude, however, based on the opinions discussed above, that an agencymust have either express or clearly implied authority to refund aportion of an annual license fee. Section 17A of article 4413(29cc) allows proration of initial license fees under specified circumstances. NO other provision of article 4413(29cc) permits proration. The provision governing renewal fees simply states that aperson may renewhis license "bypaying to theboard before the expiration date of the license the required renewal fee." V.T.C.S. art. 4413(29cc), 5 17(b). Therefore, because we findnoprovision that permits, either expressly orby implication, arefund inthe circumstances you ask about, we conclude that the Board of Polygraph Examiners has noauthority to refund aportion ofan annual license feeto the estate ofa licensee who dies during the term ofhis license.1

1. We donot consider inthis opinion whether the board has authority to refund the entire renewal feebefore the commencement of theyear covered by the renewal fee.

p. 5562Mr. Bryan M. Perot -Page 3 (JM-1067)

SUMMARY

The Board of Polygraph Examiners has no authority to refund aportion of an annual license fee to the estate ofa licensee who dies during the term ofhis license.

JIM MATTOX Attorney General ofTexas

MARY KELLER First Assistant Attorney General

MU MCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, opinion Committee
Prepared by SarahWoelk Assistant Attorney General

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