*1 QBffice of tiy JTMmep @heral
%tate of Okxae April 26.1993 Al-rORNEY GENERAL Opiion No. DM-219
Honorable James E. “Pete” Lsney SW= Re: Authority of the Board of Licensure
Texas House of Rep- for Nursing Home Administrstors to charge P.O. Box 2910 and “collect a SlO.00 fee for each Austin, Texss 787682910 . . &umstretor-psrdcipsnt in ell educstion
tames approved by the -1 for wntinuing education units” (RQ-492) DearMr. speaker:
You ask the folhnving questions:
Under current g overning 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~e for 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 *2 (DM-219) of not more than Sl50.00, and a penalty of SSO.00 for 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 &ennined by the baa& to be conducfed~theboardin~ ~~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 Opinion H-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). *3 (DM-2 19)
In the situation you pose, a number of permissible fees 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 Administrators may 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.
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