Untitled Texas Attorney General Opinion ( 1993 )

QBfficeof tiy JTMmep @heral
%tate of Okxae
DAN MORALES April 26.1993
Al-rORNEY
GENERAL
Honorable James E. “Pete”Lsney Opiion No. DM-219
SW=
Texas House of Rep- Re: Authority of the Board of Licensure
P.O. Box 2910 for Nursing Home Administrstors to charge
Austin, Texss 787682910 and “collect a SlO.00 fee for each
. .
&umstretor-psrdcipsnt in ell educstion
tames approved by the -1 for
wntinuing education units” (RQ-492)
DearMr. speaker:
You ask the folhnvingquestions:
Under current governing statutes, does the Board of
Liwnsure for Nursing Home Administmtors (TBLNHA) have
euthority to cokct a SlO fee for eech sdministrstor-paticipsnt in sll
education coursesapprovedbytheTBLNHAforcontir&g
education units (CBUs) when:
-amenthefeeisinadditiontothefeechargedbyTBLNHA
to the course provider for spprovsl of the course for
CEUs;
-whenthecourseptwidaistheentitytobeessessedend
responsii~efor payment of the fee, snd
-when TBLNHA will deny credit to the sdministrstor-
ps$ipsnt for the course completed if the SlO fee is not
Uttdatheci rwmstanws you descrii, TBLNHA imposes the SlO fee on the ‘wurse
provida,” which then passes along the charge to the “participant.”
Section 10 of the board’s ensbhng statute, article 44424 V.T.C.S., describes
& fees which the board is euthorized to sssess, including sn initial licensing fee of not
more then S150.00, sn exsminstion fee of not more thsn S150.00, a biennisl licensing fee
p. 1149
Honorable James E. “Pete”Laney - Page 2 (DM-219)
of not more than Sl50.00, and a penalty of SSO.00for renewal of a license which has been
expired for more than 30 days. In addition, subsection 6(7) directs the board to
conduct or cause to be conducted, one or more courses of instruction
andtrainhgsuiBcienttomeetthere+irementsofthisAct,make
provisions for the wnduct of au& wursesandtheirdbuityto
residents of this State, and establish and cdlccr reasomble fees to be
@twited inta the genemljmd for inandion or tining courses
conducfed~theboardin~ &ennined by the baa& to be
~~cirnttowvrr~ho~~es,~unleapitfindsthattl&rr
areasu&kntnumbexof wurseswnductedbyotherswithinthis
StatetomeettheneedsoftheState. Inlieutherwftheboardmay
approve wurses wnducted within and without the State as sutlicient
tomeettheeducationandtrsiningrequkments of this Act.
V.T.C.S. art. 4442d 5 6(7) (emphasis added). As the italicized language d-es,
the board is anpowered to “collect reasonable fees”for wntiwing education co- but
On& for those “instruction wurseswnductedbytheboard.” whenthewursesare
“conducted by om” the statutory language wnks no authority on the boardto impose
fees of any kind w-.
Youindicate~theboardbdimsthat~~~tosPseYltheproporedSlO
Ckrgeforwnthingeducationwurseswnductedbyoutside sourwderiveshm
section 8 of article 4442d. Section 8 is a general rule-making provision. It empowers the
board”tomakenrlesud~o~aotiaconsistentwithlawru~benecessaryor
proper for the performance ofitsduties.” Aiongliwofopinionshmthisoffiwhaaheld,
howmr,thatastatelicarsiag~mrywtprescn’beMyfwwhichisnotspocifically
authorized by statute. In Attorney Owed OpinionH-669 (1975). for example, this office
declaredthattheBoardofl)entrrl~anrsnotanpoweredtoimposcf#sondental
~~inthelbsmceofspecificItannoryauthorizatontodoso. Likewise,in
Attorney General Opiion H-443 (1974). the attorney genesal stated that the Structural
Pest Control Board was not pemhted to assess an additional charge for administering its
licensing exdnatio~~ Fii, in Attorney General Opiion H-897 (1976), this office
assated that the Depmmnt of Labor and Standards was without authority to conduct
“shop surveys’ of boila manthhuera and charge a fw for doing so. See aho Attomey
General Opinion V-1426 (1952). Each of these. prior opinions relies on the court’s
decision in Nueces Counry v. Currington, 162 S.W.2d 687 (Tar. 1942). which de&red
that
unless a fw is provided by law for an official tice required to be
performed snd the amount thereof tied by law, none can lawtidly be
charged therrfor.
Id. at 688; see alsa AkG& v. City of Rock&ale,246 S.W. 654 (Tex. 1922).
p. 1150
Honorable James E. “Pete”Laney - Page 3 (DM-2 19)
In the situation you pose, a number of permissiblefees are specified by statute, but
there is no statutory authorization for the board to impose a $10.00 charge in connection
with wntinuing education courses which are conducted, not by the board itself, but by
outside sources. It is our opinion, therefore, that the Board of Licensure for Nursing
Home Administratorsmay not assess and wllect the fees in question.
SUMMARY
The Board of Liccnsure for Nursing Home Administrators is not
authorixed to impose and wllect a SlO.00 fee from administrators or
participants in courses conducted by outside sources and approved
by the board as wntinuii education units.
DAN MORALES
Attorney Gwerd of Texas
WILL PRYOR
First Assistant Attorney Germal
MARYKELLER
Deputy Attorney GcneralforLitigation
RENEAHICKS
state solicitor
MADELEINE B. JOHNSON
Chair, Opiion Committee
Pmpared by Rick Gilpin
Assistant Attomeyoend
p. 1151