Can a Texas licensing board charge a fee that its governing statute does not specifically authorize?

Plain-English summary

The state board that licenses nursing-home administrators wanted a new revenue stream. It already charged course providers to get their continuing-education classes approved for credit. On top of that, it wanted to collect $10 for every administrator who took one of those outside-run classes, billing the provider (who would pass the cost to the student) and refusing to award the credit if the $10 was not paid. The Speaker of the Texas House asked the Attorney General whether the board could do that.

The answer was no. A Texas licensing board can only charge the fees the Legislature has actually given it permission to charge. The board's enabling law spelled out a short list: licensing fees, an examination fee, a biennial renewal fee, and a late-renewal penalty. A separate provision let the board collect "reasonable fees" for instruction courses, but the Attorney General read that to cover only courses the board itself ran, not classes put on by outside providers. There was simply no statute authorizing the proposed $10 charge.

The board argued its general power to make rules and regulations covered the fee. The Attorney General rejected that, pointing to a settled rule running through both court decisions and earlier AG opinions: an agency cannot invent a fee out of a general grant of rule-making authority. A fee has to be specifically authorized by statute, with its amount fixed by law, or it cannot lawfully be charged at all. Since the $10 charge failed that test, the board could not assess or collect it.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Nursing Home Administrators licensing statute (then V.T.C.S. article 4442d) has been amended and recodified since 1993, and the named board's structure and fee schedule have changed, so confirm current law before relying on anything described here.

Background and statutory framework

The board's authority to charge money came from its enabling statute, V.T.C.S. article 4442d. Section 10 set out the permissible fees and their caps: an initial licensing fee of not more than $150, an examination fee of not more than $150, a biennial licensing fee of not more than $150, and a $50 penalty for renewing a license expired more than 30 days.

Subsection 6(7) directed the board to conduct (or cause to be conducted) courses of instruction and training and to "establish and collect reasonable fees" deposited into the general fund "for instruction or training courses conducted by the board," in amounts the board found sufficient to cover those costs, unless enough courses were already offered by others in the state. The Attorney General read the fee power there as tied to courses the board itself conducted.

Section 8 was a general rule-making provision, empowering the board "to make rules and regulations not inconsistent with law as may be necessary or proper for the performance of its duties." The opinion treated that as insufficient, on its own, to support a fee the Legislature had not specifically authorized.

Citations

• V.T.C.S. art. 4442d, § 10 (fees the board is authorized to assess)
• V.T.C.S. art. 4442d, § 6(7) (board may collect reasonable fees for instruction courses conducted by the board)
• V.T.C.S. art. 4442d, § 8 (general rule-making authority)
• Nueces County v. Currington, 162 S.W.2d 687, 688 (Tex. 1942) (no fee may be charged for an official act unless a fee is provided by law and its amount fixed by law)
• McCalla v. City of Rockdale, 246 S.W. 654 (Tex. 1922)
• Prior Attorney General Opinions H-669 (1975), H-443 (1974), H-897 (1976), and V-1426 (1952) (a state licensing agency may not prescribe a fee not specifically authorized by statute)

Common questions

Could the nursing-home administrators board charge the $10 continuing-education fee?
No. The Attorney General concluded the board had no statutory authority to assess or collect a $10 fee for continuing-education courses conducted by outside sources rather than by the board itself.

Why wasn't the board's general rule-making power enough?
Because, under the rule the opinion applied, a licensing agency cannot create a fee out of a general grant of authority to make rules. The fee has to be specifically authorized by statute, with its amount set by law. A broad "necessary or proper" rule-making clause does not supply that authorization.

What fees could the board charge?
The ones its statute listed: an initial licensing fee, an examination fee, and a biennial licensing fee (each capped at $150 at the time), plus a $50 penalty for renewing a license that had been expired more than 30 days. It could also collect reasonable fees for instruction courses it conducted itself.

Did it matter that the provider, not the participant, was billed?
No. The board imposed the charge on the course provider, which passed it to the participant, but the opinion turned on whether any statute authorized the fee at all, not on who paid it. Without statutory authorization, the charge was improper regardless of who was assessed.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0219
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0219.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

April 26, 1993

Honorable James E. "Pete" Laney
Speaker
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-219

Re: Authority of the Board of Licensure for Nursing Home Administrators to charge and "collect a $10.00 fee for each administrator-participant in all education courses approved by the board for continuing education units" (RQ-492)

Dear Mr. Speaker:

You ask the following questions:

Under current governing statutes, does the Board of Licensure for Nursing Home Administrators (TBLNHA) have authority to collect a $10 fee for each administrator-participant in all education courses approved by the TBLNHA for continuing education units (CEUs) when:

• the fee is in addition to the fee charged by TBLNHA to the course provider for approval of the course for CEUs;

• when the course provider is the entity to be assessed and responsible for payment of the fee, and

• when TBLNHA will deny credit to the administrator-participant for the course completed if the $10 fee is not [paid].

Under the circumstances you describe, TBLNHA imposes the $10 fee on the "course provider," which then passes along the charge to the "participant."

Section 10 of the board's enabling statute, article 4442d V.T.C.S., describes the fees which the board is authorized to assess, including an initial licensing fee of not more than $150.00, an examination fee of not more than $150.00, a biennial licensing fee of not more than $150.00, and a penalty of $50.00 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 and training sufficient to meet the requirements of this Act, make provisions for the conduct of such courses and their availability to residents of this State, and establish and collect reasonable fees to be deposited into the general fund for instruction or training courses conducted by the board in amounts determined by the board to be sufficient to cover the costs thereof, unless it finds that there are a sufficient number of courses conducted by others within this State to meet the needs of the State. In lieu thereof the board may approve courses conducted within and without the State as sufficient to meet the education and training requirements of this Act.

V.T.C.S. art. 4442d § 6(7) (emphasis added). As the italicized language demonstrates, the board is empowered to "collect reasonable fees" for continuing education courses, but only for those "instruction courses conducted by the board." When the courses are "conducted by others" the statutory language confers no authority on the board to impose fees of any kind whatsoever.

You indicate that the board believes that its authority to assess the proposed $10 charge for continuing education courses conducted by outside sources derives from section 8 of article 4442d. Section 8 is a general rule-making provision. It empowers the board "to make rules and regulations not inconsistent with law as may be necessary or proper for the performance of its duties." A long line of opinions from this office has held, however, that a state licensing agency may not prescribe any fee which is not specifically authorized by statute. In Attorney General Opinion H-669 (1975), for example, this office declared that the Board of Dental Examiners was not empowered to impose fees on dental laboratories in the absence of specific statutory authorization to do so. Likewise, in Attorney General Opinion H-443 (1974), the attorney general stated that the Structural Pest Control Board was not permitted to assess an additional charge for administering its licensing examinations. Finally, in Attorney General Opinion H-897 (1976), this office asserted that the Department of Labor and Standards was without authority to conduct "shop surveys" of boiler manufacturers and charge a fee for doing so. See also Attorney General Opinion V-1426 (1952). Each of these prior opinions relies on the court's decision in Nueces County v. Currington, 162 S.W.2d 687 (Tex. 1942), which declared that

unless a fee is provided by law for an official act required to be performed and the amount thereof fixed by law, none can lawfully be charged therefor.

Id. at 688; see also McCalla v. City of Rockdale, 246 S.W. 654 (Tex. 1922).

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 continuing 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 collect the fees in question.

SUMMARY

The Board of Licensure for Nursing Home Administrators is not authorized to impose and collect a $10.00 fee from administrators or participants in courses conducted by outside sources and approved by the board as continuing education units.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General