Texas Administrative Code Title 19

Education: As effective August 6, 2010

Part 2

Chapter 30

Subchapter A

§30.1: Petition for Adoption of Rule Changes

(a) Any interested person may petition for the adoption, amendment, or repeal of a rule of the State Board of Education (SBOE) by filing a petition on a form provided in this subsection. The petition shall be signed and submitted to the commissioner of education. In consultation with the persons in the Texas Education Agency who are responsible for the area with which the rule is concerned, the commissioner shall evaluate the merits of the proposal to determine whether to recommend that rulemaking proceedings be initiated or that the petition be denied.

Attached Graphic

(b) In accordance with the Texas Government Code, §2001.021, the agency must respond to the petitioner within 60 days of receipt of the petition.

(1) Where possible, the commissioner's recommendation concerning the petition shall be placed on the SBOE agenda, and the SBOE shall act on the petition within the 60-day time limit.

(2) Where the time required to review the petition or the scheduling of SBOE meetings will not permit the SBOE to act on the petition within the required 60 days, the commissioner or a designee shall respond to the petitioner within the required 60 days, notifying the petitioner of the date of the SBOE meeting at which the recommendation will be presented to the SBOE for action.

(c) The SBOE will review the petition and the recommendation of the commissioner and will either direct the commissioner to begin the rulemaking process or deny the petition, giving reasons for the denial. The commissioner or designee will notify the petitioner of the SBOE's action related to the petition.

(d) If the SBOE initiates rulemaking procedures in response to a petition, the rule text which the SBOE proposes may differ from the rule text proposed by the petitioner.

Comments

Source Note: The provisions of this §30.1 adopted to be effective December 5, 2004, 29 TexReg 11339; amended to be effective April 26, 2009, 34 TexReg 2531

Subchapter B

§30.21: Historically Underutilized Business (HUB) Program

In accordance with the Texas Government Code, §2161.003, the State Board of Education adopts by reference the rules of the Comptroller of Public Accounts, found at Title 34 Texas Administrative Code, §§20.11-20.28, concerning the Historically Underutilized Business (HUB) Program.

Comments

Source Note: The provisions of this §30.21 adopted to be effective December 5, 2004, 29 TexReg 11339; amended to be effective April 26, 2009, 34 TexReg 2532

§30.22: Procedures for Protests, Dispute Resolution, and Appeals Relating to Purchasing and Contract Issues

(a) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation, evaluation, or award of a contract under the jurisdiction of the State Board of Education (SBOE) may formally protest to the director of the Texas Education Agency (TEA) division responsible for purchasing and contracts. Such protests must be in writing and received in the purchasing and contracts director's office within ten working days after such aggrieved person knows, or reasonably should have known, of the occurrence of the action which is protested, unless the director finds that good cause for delay is shown or determines that a protest or appeal raises issues significant to the TEA's procurement practices or procedures.

(b) Formal protests must conform to the requirements of this subsection and subsection (d) of this section, and shall be resolved in accordance with the procedure set forth in subsections (e)-(f) of this section. Copies of the protest must be mailed or delivered by the protesting party to the TEA and to the other interested parties. For the purposes of this section, "interested parties" means all respondents who have submitted bids, proposals, or offers for the contract involved. Names and addresses of all interested parties may be obtained by sending a written request for this information to the purchasing and contracts director.

(c) In the event of a timely protest or appeal under this section, the TEA shall not proceed further with the solicitation or with the award of the contract unless the commissioner of education or the commissioner's designee, in consultation with the purchasing and contracts director, makes a written determination that the expeditious award of contract is necessary to protect substantial interest of the state. A copy of this determination shall be mailed to the protesting party.

(d) A formal protest petition must be sworn and must contain:

(1) a specific identification of the statutory or regulatory provision(s) that the action complained of is alleged to have violated;

(2) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified in paragraph (1) of this subsection;

(3) a precise statement of the relevant facts;

(4) an identification of the issue or issues to be resolved;

(5) argument and authorities in support of the protest; and

(6) a statement that copies of the protest have been mailed or delivered to the TEA and other identifiable interested parties.

(e) The purchasing and contracts director shall have the authority to settle and resolve the dispute concerning the solicitation or award of a contract. The director may solicit written responses to the protest petition from other interested parties, and if he or she makes such a request, the protesting party shall be given notice of the director's request and of any written responses to the request that the director receives. The director may consult with the TEA office of legal services concerning the dispute.

(f) If the protest is not resolved by mutual agreement, the purchasing and contracts director will issue a written determination on the protest.

(1) If the director determines that no violation of rules or statutes has occurred, he or she shall so inform the protesting party and other interested parties by a letter which sets forth the reasons for the determination.

(2) If the director determines that a violation of rules or statutes has occurred in a case where a contract has not been awarded, he or she shall so inform the protesting party and other interested parties by letter which sets forth the reasons for the determination and the appropriate remedial action.

(3) If the director determines that a violation of rules or statutes has occurred in a case where a contract has been awarded, he or she shall so inform the protesting party and other interested parties by a letter which sets forth the reasons for the determination. In such a case, the director has the authority to declare the contract void. If he or she declares the contract void, this fact shall be included in the determination letter.

(g) The purchasing and contracts director's determination on a protest may be appealed by the protesting party to the commissioner of education or the commissioner's designee. An appeal of the director's determination must be in writing and must be received in the commissioner's office no later than ten working days after the date of the director's determination. An appeal of the determination shall be limited to those issues raised in the protest petition and the determination letter. Copies of the appeal must be mailed or delivered by the appealing party to the TEA and other interested parties and must contain a sworn statement that such copies have been provided.

(h) The commissioner or the commissioner's designee shall review the protest petition, the purchasing and contracts director's requests for written responses to the protest petition, any written responses received from other interested parties, the determination, and the appeal.

(i) The commissioner or the commissioner's designee may, in his or her discretion, issue a written decision on the protest or refer the matter to the SBOE for consideration at a regularly scheduled open meeting.

(j) A decision issued either by the SBOE in an open meeting or in writing by the commissioner or the commissioner's designee shall be the final administrative action of the TEA.

Comments

Source Note: The provisions of this §30.22 adopted to be effective December 5, 2004, 29 TexReg 11339

Subchapter AA

§30.1001: Petition for Adoption of Rule Changes

(a) In accordance with Texas Government Code, §2001.021, any interested person may petition for the adoption, amendment, or repeal of a rule of the commissioner of education by filing a petition on a form provided in this subsection. The petition shall be signed and submitted to the commissioner of education.

Attached Graphic

(b) The commissioner or the commissioner's designee shall evaluate the merits of the proposal.

(c) In accordance with the Texas Government Code, §2001.021, the commissioner or the commissioner's designee shall respond to the petitioner within 60 days of receipt of the petition. The response shall:

(1) advise that rulemaking proceedings will be initiated; or

(2) deny the petition, stating the reasons for its denial.

(d) If the commissioner initiates rulemaking procedures in response to a petition, the rule text which the commissioner proposes may differ from the rule text proposed by the petitioner.

Comments

Source Note: The provisions of this §30.1001 adopted to be effective September 23, 2004, 29 TexReg 9184; amended to be effective May 12, 2009, 34 TexReg 2766

Subchapter BB

§30.2001: Historically Underutilized Business (HUB) Program

In accordance with the Texas Government Code, §2161.003, the Texas Education Agency (TEA) adopts by reference the rules of the Texas Building and Procurement Commission (TBPC), found at Title 1 Texas Administrative Code, §§111.11 - 111.28, concerning the Historically Underutilized Business (HUB) Program. For purposes of implementing the TBPC rules at the TEA, references to the state agency or agency shall be considered to be a reference to the TEA.

Comments

Source Note: The provisions of this §30.2001 adopted to be effective January 6, 2005, 29 TexReg 12185

§30.2002: Procedures for Protests, Dispute Resolution, and Appeals Relating to Purchasing and Contract Issues

(a) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation, evaluation, or award of a contract under the jurisdiction of the Texas Education Agency (TEA) may formally protest to the director of the TEA division responsible for purchasing and contracts. Such protests must be in writing and received in the purchasing and contracts director's office within ten working days after such aggrieved person knows, or reasonably should have known, of the occurrence of the action which is protested, unless the director finds that good cause for delay is shown or determines that a protest or appeal raises issues significant to the TEA's procurement practices or procedures.

(b) Formal protests must conform to the requirements of this subsection and subsection (d) of this section, and shall be resolved in accordance with the procedure set forth in subsections (e) and (f) of this section. Copies of the protest must be mailed or delivered by the protesting party to the TEA and to the other interested parties. For the purposes of this section, "interested parties" means all respondents who have submitted bids, proposals, or offers for the contract involved. Names and addresses of all interested parties may be obtained by sending a written request for this information to the purchasing and contracts director.

(c) In the event of a timely protest or appeal under this section, the TEA shall not proceed further with the solicitation or with the award of the contract unless the commissioner of education or the commissioner's designee, in consultation with the purchasing and contracts director, makes a written determination that the expeditious award of contract is necessary to protect substantial interest of the state. A copy of this determination shall be mailed to the protesting party.

(d) A formal protest petition must be sworn and must contain:

(1) a specific identification of the statutory or regulatory provision(s) that the action complained of is alleged to have violated;

(2) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified in paragraph (1) of this subsection;

(3) a precise statement of the relevant facts;

(4) an identification of the issue or issues to be resolved;

(5) argument and authorities in support of the protest; and

(6) a statement that copies of the protest have been mailed or delivered to the TEA and other identifiable interested parties.

(e) The purchasing and contracts director shall have the authority to settle and resolve the dispute concerning the solicitation or award of a contract. The director may solicit written responses to the protest petition from other interested parties, and if he or she makes such a request, the protesting party shall be given notice of the director's request and of any written responses to the request that the director receives. The director may consult with the TEA office of legal services concerning the dispute.

(f) If the protest is not resolved by mutual agreement, the purchasing and contracts director will issue a written determination on the protest.

(1) If the director determines that no violation of rules or statutes has occurred, he or she shall so inform the protesting party and other interested parties by a letter which sets forth the reasons for the determination.

(2) If the director determines that a violation of rules or statutes has occurred in a case where a contract has not been awarded, he or she shall so inform the protesting party and other interested parties by letter which sets forth the reasons for the determination and the appropriate remedial action.

(3) If the director determines that a violation of rules or statutes has occurred in a case where a contract has been awarded, he or she shall so inform the protesting party and other interested parties by a letter which sets forth the reasons for the determination. In such a case, the director has the authority to declare the contract void. If he or she declares the contract void, this fact shall be included in the determination letter.

(g) The purchasing and contracts director's determination on a protest may be appealed by the protesting party to the commissioner of education or the commissioner's designee. An appeal of the director's determination must be in writing and must be received in the commissioner's office no later than ten working days after the date of the director's determination. An appeal of the determination shall be limited to those issues raised in the protest petition and the determination letter. Copies of the appeal must be mailed or delivered by the appealing party to the TEA and other interested parties and must contain a sworn statement that such copies have been provided.

(h) The commissioner or the commissioner's designee shall review the protest petition, the purchasing and contracts director's requests for written responses to the protest petition, any written responses received from other interested parties, the determination, and the appeal.

(i) A decision issued in writing by the commissioner or the commissioner's designee shall be the final administrative action of the TEA.

Comments

Source Note: The provisions of this §30.2002 adopted to be effective January 6, 2005, 29 TexReg 12185

Chapter 33

§33.1: Constitutional Authority and Constitutional Restrictions

(a) The Texas Permanent School Fund (PSF) is comprised of the principal of all bonds and other funds, and the principal arising from the sale of the lands set apart for the PSF, including dividends and other income to the fund. The total amount distributed from the permanent school fund to the available school fund:

(1) must be an amount that is not more than 6.0% of the average of the market value of the permanent school fund, excluding real property belonging to the fund on the last day of each of the 16 state fiscal quarters preceding the regular session of the legislature that begins before that state fiscal biennium, in accordance with the rate adopted by:

(A) a vote of two-thirds of the total membership of the State Board of Education, taken before the regular session of the legislature convenes; or

(B) the legislature by general law or appropriation, if the State Board of Education does not adopt a rate as provided by subparagraph (A) of this paragraph; and

(2) over the 10-year period consisting of the current state fiscal year and the nine preceding state fiscal years, may not exceed the total return on all investment assets of the permanent school fund over the same 10-year period.

(b) In managing the assets of the PSF, the State Board of Education (SBOE) may acquire, exchange, sell, supervise, manage, or retain, through procedures and subject to restrictions it establishes and in amounts it considers appropriate, any kind of investment, including investments in the Texas Growth Fund created by the Texas Constitution, Article XVI, §70, that persons of ordinary prudence, discretion, and intelligence, exercising the judgment and care under the circumstances then prevailing, acquire or retain for their own account in the management of their affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.

Comments

Source Note: The provisions of this §33.1 adopted to be effective September 1, 1996, 21 TexReg 3937; amended to be effective March 31, 2004, 29 TexReg 3174

§33.2: Distributions to the Available School Fund

Each year, the State Board of Education (SBOE) shall determine whether a distribution to the Available School Fund (ASF) shall be made for the current state fiscal year. The SBOE shall determine whether such distribution is permitted under the Texas Constitution, Article VII, §5(a)(2). The annual determination for the current fiscal year shall include a projection of the expected total return of the Permanent School Fund (PSF) at the end of the current fiscal year and the realized returns during the nine preceding state fiscal years. Any one-year distribution to the ASF shall not exceed 6.0% of the average market value of the PSF, excluding real property managed, sold, or acquired under the Texas Constitution, Article VII, §4, as determined under the Texas Constitution, Article VII, §5(a)(1).

Comments

Source Note: The provisions of this §33.2 adopted to be effective April 21, 2010, 35 TexReg 3027

§33.5: Code of Ethics

(a) General principles. The Texas Permanent School Fund (PSF) is held in public trust for the benefit of the schoolchildren of Texas. All those charged with the management of the PSF will aspire to the highest standards of ethical conduct. The purpose of the PSF code of ethics is to assist and help guide all such persons in the proper discharge of their duties and to assist them in avoiding even the appearance of impropriety.

(b) Fiduciary responsibility. The members of the State Board of Education (SBOE) serve as fiduciaries of the PSF and are responsible for prudently investing its assets. The SBOE members or anyone acting on their behalf shall comply with the provisions of this section, the Texas Constitution, Texas statutes, and all other applicable provisions governing the responsibilities of a fiduciary.

(c) Compliance with constitution and code of ethics. The SBOE members are public officials governed by the provisions of the Texas Government Ethics Act, as stated in the Texas Government Code, Chapter 572.

(d) Definitions. For purposes of this section, the following terms shall have the following meanings.

(1) SBOE Member--For the purposes of the PSF code of ethics, a member of the SBOE shall be deemed to include the SBOE Member's spouse and dependent child(ren). "Dependent child(ren)" is defined as an individual's child(ren), including adopted child(ren) or stepchild(ren) for whom the SBOE Member or SBOE Member's spouse provides more than 50% of support during the current or prior calendar year.

(2) Persons Providing PSF Investment and Management Services to the SBOE (PSF Service Providers) are the following individuals:

(A) any person responsible by contract for managing the PSF, investing the PSF, executing brokerage transactions, or acting as a custodian of the PSF;

(B) a member of the Committee of Investment Advisors;

(C) any person who provides consultant services for compensation regarding the management and investment of the PSF;

(D) any person who provides investment and management advice to an SBOE Member, with or without compensation, if an SBOE Member:

(i) gives the person access to PSF records or information that are identified as confidential; or

(ii) asks the person to interview, meet with, or otherwise confer with a PSF Service Provider or Texas Education Agency (TEA) staff;

(E) any member of the TEA PSF staff or legal staff who is responsible for managing or investing assets of the PSF, executing brokerage transactions, acting as a custodian of the PSF, or providing investment or management advice or legal advice regarding the investment or management of the PSF to an SBOE Member or PSF staff; or

(F) any person who submits a response to a Request for Proposal (RFP) or Request for Qualifications (RFQ), or similar types of solicitations, while such response is pending. An applicant is not required to file reports under this section except as required in the RFP or RFQ process.

(e) Assets affected by this section. The provisions of this section apply to all PSF assets, both publicly and nonpublicly traded investments.

(f) General ethical standards.

(1) SBOE Members and PSF Service Providers must comply with all applicable laws, specifically, the following statutes: Texas Government Code, Chapter 2263 (Ethics and Disclosure Requirements for Outside Financial Advisors and Service Providers), §572.051 (Standards of Conduct for Public Servants), §552.352 (Distribution of Confidential Information), §572.058 (Private Interest in Measure or Decision; Disclosure; Removal from Office for Violation), §572.054 (Representation by Former Officer or Employee of Regulatory Agency Restricted), §572.002 (General Definitions), §572.004 (Definition: Regulation), and Chapter 305 (Registration of Lobbyists); Texas Penal Code, Chapter 36 (Bribery, Corrupt Influence, and Gifts to Public Servants) and Chapter 39 (Abuse of Office, Official Misconduct); and Texas Education Code, §43.0031 (Permanent School Fund Ethics Policy), §43.0032 (Conflicts of Interest), and §43.0033 (Reports of Expenditures). The omission of any applicable statute listed in this paragraph does not excuse violation of its provisions.

(2) SBOE Members and PSF Service Providers must be honest in the exercise of their duties and must not take actions that will discredit the PSF.

(3) SBOE Members and PSF Service Providers shall be loyal to the interests of the PSF to the extent that such loyalty is not in conflict with other duties, which legally have priority. SBOE Members and PSF Service Providers shall avoid personal, employment, or business relationships that create conflicts of interest. Should SBOE Members or PSF Service Providers become aware of any conflict of interest, they have an affirmative duty to disclose and to cure the conflict in a manner provided for under this section prior to the next SBOE or committee meeting and such SBOE Member shall take no action nor participate in the RFP or RFQ process, or similar types of solicitations, that concerns the conflict.

(4) SBOE Members and PSF Service Providers shall not use nonpublic information gained through their relationship with the PSF to seek or obtain personal gain beyond agreed compensation and/or any properly authorized expense reimbursement. This should not be interpreted to forbid the use of PSF as a reference or the communication to others of the fact that a relationship with PSF exists, provided that no misrepresentation is involved.

(5) An SBOE Member shall report in writing the name and address of any PSF Service Provider, as defined by subsection (d)(2)(D) of this section, who provides investment and management advice to that SBOE Member. The SBOE Member shall submit the report to the commissioner of education for distribution to the SBOE within 30 days of the PSF Service Provider first providing investment and management advice to that SBOE Member.

(6) SBOE Members and PSF Service Providers shall report in writing any action described by the Texas Education Code, §7.108, to the commissioner of education for distribution to the SBOE within seven days of discovering the violation.

(7) A PSF Service Provider shall not make any gift or donation to a school or other charitable interest on behalf of, at the request of, or in coordination with an SBOE Member. Any PSF Service Provider or SBOE Member shall disclose in writing to the commissioner of education any information regarding such a donation.

(8) A PSF Service Provider shall disclose in writing to the commissioner of education for dissemination to all SBOE Members any business or financial transaction greater than $50 in value with an SBOE Member, the commissioner of education, or any TEA employee within 30 days of the transaction. Excluded from this subsection are checking accounts, savings accounts, credit cards, brokerage accounts, mutual funds, or other financial accounts that are provided to the SBOE Member under the same terms and conditions as they are provided to members of the general public.

(9) An SBOE Member shall disclose in writing to the commissioner of education on a quarterly basis any business or financial transaction greater than $50 in value between the SBOE Member, or a business entity in which the SBOE Member has a significant ownership interest, and a PSF Service Provider. A report shall be filed even if there has not been a business or financial transaction greater than $50 in value between the SBOE Member, or a business entity in which the SBOE Member has a significant ownership interest, and a PSF Service Provider. Excluded from this subsection are checking accounts, savings accounts, credit cards, brokerage accounts, mutual funds, or other financial accounts that are provided to an SBOE Member under the same terms and conditions as they are provided to members of the general public. The reports shall be filed on or before January 15, April 15, July 15, and October 15 and shall cover the preceding three calendar months. The first report filed for each SBOE Member shall cover the preceding one-year period. Subsection (u) of this section does not apply to the first report filed. The commissioner of education shall communicate the information included in the disclosure to all SBOE Members.

(g) Notification of disclosure. In order to preserve the integrity and public trust in the PSF, it is deemed necessary and appropriate to allow all SBOE Members a reasonable time to promptly review and respond to any disclosures or written inquiries made by applicants or made by PSF Service Providers as provided in SBOE operating procedures. In compliance with Texas Government Code, §2156.123, no SBOE Member or PSF Service Provider should publicly disclose any submission materials prior to completion of the RFP or RFQ process. For purposes of this subsection, an RFP or RFQ is completed upon final award of an RFP, or selection of qualified bidders for an RFQ, or closure without any selection. This subsection does not allow an SBOE Member to refrain from publicly disclosing a conflict of interest as required by subsections (f)(3) and (i)(4) of this section and Texas Government Code, §572.058.

(h) Disclosure.

(1) If an SBOE Member solicited a specific investment action by the PSF staff or a PSF Service Provider, the SBOE Member shall publicly disclose the fact to the SBOE in a public meeting. The disclosure shall be entered into the minutes of the meeting. For purposes of this section, a matter is a prospective directive to the PSF staff or a PSF Service Provider to undertake a specific investment or divestiture of securities for the PSF. This term does not include ratification of prior securities transactions performed by the PSF staff or a PSF Service Provider and does not include an action to allocate classes of assets within the PSF.

(2) In addition, an SBOE Member shall fully disclose any substantial interest in any publicly or nonpublicly traded PSF investment (business entity) on the SBOE Member's annual financial report filed with the Texas Ethics Commission pursuant to Texas Government Code, §572.021. An SBOE Member has a substantial interest if the SBOE Member:

(A) has a controlling interest in the business entity;

(B) owns more than 10% of the voting interest in the business entity;

(C) owns more than $25,000 of the fair market value of the business entity;

(D) has a direct or indirect participating interest by shares, stock, or otherwise, regardless of whether voting rights are included, in more than 10% of the profits, proceeds, or capital gains of the business entity;

(E) is a member of the board of directors or other governing board of the business entity;

(F) serves as an elected officer of the business entity; or

(G) is an employee of the business entity.

(i) Conflicts of interest.

(1) A conflict of interest exists whenever SBOE Members or PSF Service Providers have personal or private commercial or business relationships that could reasonably be expected to diminish their independence of judgment in the performance of their duties. For example, a person's independence of judgment is diminished when the person is in a position to take action or not take action with respect to PSF and such act or failure to act is, may be, or reasonably appears to be influenced by considerations of personal gain or benefit rather than motivated by the interests of the PSF. Conflicts include, but are not limited to, beneficial interests in securities, corporate directorships, trustee positions, or other special relationships that could reasonably be considered a conflict of interest with the duties to the PSF. Further, Texas Education Code, §43.0032, requires disclosure and no participation, unless a waiver is granted, when an SBOE Member or a PSF Service Provider has a business, commercial, or other relationship that could reasonably be expected to diminish a person's independence of judgment in the performance of the person's responsibilities relating to the management or investment of the PSF. Such business, commercial, or other relationship is defined to be a relationship that is prohibited under Texas Government Code, §572.051, or that would require public disclosure under Texas Government Code, §572.058, or a relationship that does not rise to this level but that is determined by the SBOE to create an unacceptable risk to the integrity and reputation of the PSF investment program.

(2) Any SBOE Member or PSF Service Provider who has a possible conflict of interest as defined in paragraph (1) of this subsection shall disclose the possible conflict to the commissioner of education and the chair and vice chair of the SBOE on the disclosure form. The disclosure form is provided in this paragraph entitled "Potential Conflict of Interest Disclosure Form."

Attached Graphic

(3) A person who files a statement under paragraph (2) of this subsection disclosing a possible conflict of interest may not give advice or make decisions about a matter affected by the possible conflict of interest unless the SBOE, after consultation with the general counsel of the TEA, expressly waives this prohibition. The SBOE may delegate the authority to waive this prohibition. If an SBOE Member or a PSF Service Provider wishes to seek a waiver or determination of a possible conflict of interest, the SBOE Member or PSF Service Provider shall request an opinion from the Texas Ethics Commission. An SBOE Member will be given the assistance of the TEA ethics advisor to help draft a request for an opinion, if such assistance is requested. When the SBOE Member or PSF Service Provider receives the opinion of the Texas Ethics Commission and if a waiver is still sought, the SBOE Member or PSF Service Provider shall forward the opinion to the SBOE chair and the commissioner. An opinion of the Texas Ethics Commission that determines a conflict exists is final and the SBOE may not waive the conflict of interest. An opinion of the Texas Ethics Commission that determines that no conflict exists will automatically result in an SBOE waiver. If a decision concerning a waiver cannot be achieved with sufficient expedition through the procedures specified in this subsection, the SBOE may vote to grant a waiver after consultation with the general counsel of the TEA.

(4) If an SBOE Member believes he or she has a conflict of interest based on the existence of certain relationships described in Texas Government Code, §572.058, the SBOE Member shall publicly disclose the conflict at an SBOE meeting or committee meeting and the SBOE Member shall not vote or otherwise participate in any decision involving the conflict. This requirement is in addition to the requirement of filing a disclosure under paragraph (2) of this subsection.

(5) Texas Government Code, §572.051, establishes standards of conduct for state officers and employees. SBOE Members and TEA employees shall abide by these standards.

(j) Prohibited transactions and interests.

(1) For purposes of this section, the term "direct placement" (with respect to investments that are not publicly traded) is defined as a direct sale of securities, generally to institutional investors, with or without the use of brokers or underwriters.

(2) For the purposes of this section, the term "placement agent" is defined as any third party, whether or not affiliated with a PSF Service Provider, that is a party to an agreement or arrangement (whether written or oral) with a PSF Service Provider for direct or indirect payment of a fee in connection with a PSF investment.

(3) No SBOE Member or PSF Service Provider shall:

(A) have a financial interest in a direct placement investment of the PSF;

(B) serve as an officer, director, or employee of an entity in which a direct placement investment is made by the PSF; or

(C) serve as a consultant to, or receive any fee, commission or payment from, an entity in which a direct placement investment is made by the PSF.

(4) No SBOE Member shall:

(A) act as a representative or agent of a third party in dealing with a PSF manager or consultant in connection with a PSF investment; or

(B) be employed for two years after the end of his or her term on the SBOE with an organization in which the PSF invested, unless the organization's stock or other evidence of ownership is traded on the public stock or bond exchanges.

(5) A PSF Service Provider shall:

(A) not act as a representative or agent of a third party in dealing with a PSF manager or consultant in connection with a PSF investment; and

(B) not use a placement agent in connection with a PSF investment unless:

(i) the relationship with the placement agent and any compensation is disclosed in writing to and approved by the SBOE;

(ii) the placement agent is registered with the Securities and Exchange Commission or the Financial Industry Regulatory Authority; and

(iii) such placement agent does not share any fees with a non-registered person or entity.

(6) A placement agent approved by the SBOE may only be used in accordance with the SBOE's approval. If a PSF Service Provider wishes to use the same placement agent for a different purpose or in a different manner, a separate approval is required.

(7) A placement agent shall file campaign contribution reports in the same manner as does a PSF Service Provider under subsection (o)(1) of this section.

(k) Solicitation of support. No SBOE Member shall solicit or receive a campaign contribution on behalf of any political candidate, political party, or political committee from a PSF Service Provider or any PSF manager, consultant, or staff member. The manager, PSF Service Provider, consultant, or staff member shall report any such incident in writing to the commissioner of education for distribution to the SBOE.

(l) Hiring external professionals. The SBOE may contract with private professional investment managers to help make PSF investments. The SBOE has the authority and responsibility to hire other external professionals, including custodians or consultants. The SBOE shall select each professional based solely on merit and subject to the provisions of §33.55 of this title (relating to Standards for Selecting Consultants, Investment Managers, Custodians, and Other Professionals To Provide Outside Expertise for the Fund).

(m) Responsibilities of PSF Service Providers. The PSF Service Providers shall be notified in writing of the code of ethics contained in this section. Any existing contracts for investment and any future investment shall strictly conform to this code of ethics. The PSF Service Provider shall report in writing any suggestion or offer by an SBOE Member to deviate from the provisions of this section to the commissioner of education for distribution to the SBOE within 30 days of the PSF Service Provider discovering the violation. The PSF Service Provider shall report in writing any violation of this code of ethics committed by another PSF Service Provider to the commissioner of education for distribution to the SBOE within 30 days of the PSF Service Provider discovering the violation. A PSF Service Provider or other person retained in a fiduciary capacity must comply with the provisions of this section.

(n) Gifts and entertainment.

(1) Bribery. SBOE Members are prohibited from soliciting, offering, or accepting gifts, payments, and other items of value in exchange for an official act, including a vote, recommendation, or any other exercise of official discretion pursuant to Texas Penal Code, §36.02.

(2) Acceptance of gifts.

(A) An SBOE Member may not accept gifts, favors, services, or benefits that may reasonably tend to influence the SBOE Member's official conduct or that the SBOE Member knows or should know are intended to influence the SBOE Member's official conduct. For purposes of this paragraph, a gift does not include an item with a value of less than $50, excluding cash or negotiable instruments.

(B) An SBOE Member may not accept a gift, favor, service, or benefit from a person that the SBOE Member knows is interested or is likely to become interested in a charter, contract, purchase, payment, claim, or other pecuniary transaction over which the SBOE has discretion.

(C) An SBOE Member may not accept a gift, favor, service, or benefit from a person that the SBOE Member knows to be subject to the regulation, inspection, or investigation of the SBOE or the TEA.

(D) An SBOE Member may not solicit, accept, or agree to accept a benefit from a person with whom civil or criminal litigation is pending or contemplated by the SBOE or the TEA.

(E) So long as the gift or benefit is not given by a person subject to the SBOE's or the TEA's regulation, inspection, or investigation, an SBOE Member may accept a gift, payment, or contribution from an individual who is not registered as a lobbyist with the Texas Ethics Commission if it fits into one of the following categories:

(i) items worth less than $50 (may not be cash, checks, or negotiable instruments);

(ii) independent relationship, such as kinship, or a personal, professional, or business relationship independent of the SBOE Member's official capacity;

(iii) fees for services rendered outside the SBOE Member's official capacity;

(iv) government property issued by a governmental entity that allows the use of the property; or

(v) food, lodging, entertainment, and transportation, if accepted as a guest and the donor is present.

(F) The following provisions govern the disposition of an individual who is a PSF Service Provider or who is both a lobbyist registered with the Texas Ethics Commission and who represents a person subject to the SBOE's or the TEA's regulation, inspection, or investigation.

(i) An SBOE Member may not accept:

(I) loans, cash, or negotiable instruments;

(II) travel or lodging for a pleasure trip;

(III) travel and lodging in connection with a fact-finding trip or to a seminar or conference at which the SBOE Member does not provide services;

(IV) entertainment worth more than $250 in a calendar year;

(V) gifts, other than awards and mementos, that combined are worth more than $250 in value for a calendar year. Gifts do not include food, entertainment, lodging, and transportation; or

(VI) individual awards and mementos worth more than $250 each.

(ii) An SBOE Member may accept food and beverages if the PSF Service Provider or lobbyist is present.

(G) An SBOE Member may not solicit, agree to accept, or accept an honorarium in consideration for services that the SBOE Member would not have been asked to provide but for the SBOE Member's official position. An SBOE Member may accept food, transportation, and lodging in connection with a speech performed as a result of the SBOE Member's position in accordance with the rulings with the Texas Ethics Commission, which may place limitations on the type of entity that may fund such travel. An SBOE Member must report the food, lodging, or transportation accepted under this subparagraph in the SBOE Member's annual personal financial statement.

(H) Under no circumstances shall an SBOE Member accept a prohibited gift if the source of the gift is not identified or if the SBOE Member knows or has reason to know that the gift is being offered through an intermediary.

(I) If an unsolicited prohibited gift is received by an SBOE Member, he or she should return the gift to its source. If that is not possible or feasible, the gift should be donated to charity. The SBOE Member shall report the return of the gift or the donation of the gift to the commissioner of education.

(J) A PSF Service Provider shall file a report annually on April 15 of each year on the expenditure report provided in this subparagraph entitled "Report of Expenditures of Persons Providing Services to the State Board of Education Relating to the Management and Investment of the Permanent School Fund." The report shall be for the time period beginning on January 1 and ending on December 31 of the previous year. The expenditure report must describe in detail any expenditure of more than $50 made by the person on behalf of:

Attached Graphic

(i) an SBOE Member;

(ii) the commissioner of education; or

(iii) an employee of the TEA or of a nonprofit corporation created under the Texas Education Code, §43.006.

(K) A PSF Service Provider shall file a report annually with the TEA's PSF office, in the format specified by the PSF staff, on or before April 15 of each year. The report will be deemed to be filed when it is actually received. The report shall be for the time period beginning on January 1 and ending on December 31 of the previous year. It shall list any individuals who served in any of the following capacities at any time during the reporting period:

(i) all members of the governing body of the PSF Service Provider;

(ii) the officers of the PSF Service Provider;

(iii) any broker who conducts transactions with PSF funds;

(iv) all members of the governing body of the firm of a broker who conducts transactions with PSF funds; and

(v) all officers of the firm of a broker who conducts transactions with PSF funds.

(L) This subsection does not apply to campaign contributions.

(M) Each SBOE Member and each PSF Service Provider shall, no later than April 15, file an annual report affirmatively disclosing any violation of this code of ethics known to that person during the time period beginning January 1 and ending December 31 of the previous year which has not previously been disclosed in writing to the commissioner of education for distribution to all board members, or affirmatively state that the person has no knowledge of any such violation. For purposes of this subparagraph only, "SBOE Member" means only the individual elected official.

(o) Campaign contributions.

(1) A PSF Service Provider shall, no later than April 15 and October 15, file a semi-annual report of each political contribution that the PSF Service Provider has made to an SBOE Member or a candidate seeking election to the SBOE in writing to the commissioner of education. The report shall be for the six-month time period preceding the reporting dates and include the name of each SBOE Member or candidate seeking election to the SBOE who received a contribution, the amount of each contribution, and date of each contribution. Subsection (u) of this section does not apply to the first report filed. A report shall be filed even if the PSF Service Provider made no reportable contribution during the reporting period to an SBOE Member or a candidate seeking election to the SBOE. The commissioner of education shall communicate the information included in the disclosure to all SBOE Members.

(2) Any person or firm filing a response to an RFP or RFQ relating to the management and investments of the PSF shall disclose in the response whether at any time in the preceding four years from the due date of the response to the RFP or RFQ the person or firm has made a campaign contribution to a candidate for or member of the SBOE.

(p) Compliance with professional standards.

(1) SBOE Members and PSF Service Providers who are members of professional organizations which promulgate standards of conduct must comply with those standards.

(2) PSF Service Providers must comply with the Code of Ethics and Standards of Professional Conduct of the Chartered Financial Analyst Institute (CFA Institute).

(q) Transactions between PSF Service Providers and/or consultants.

(1) PSF Service Providers or persons who act as consultants to the SBOE regarding investment and management of the PSF shall not engage in any transaction involving the assets of the PSF with another PSF Service Provider or a person who acts as a consultant to the SBOE regarding investment and management of the PSF.

(2) PSF Service Providers and/or consultants to the SBOE who provide advice regarding investment and management of the PSF shall report to the SBOE on a quarterly basis all investment transactions or trades and any fees or compensation paid or received in connection with the transactions or trades with another PSF Service Provider or a person who acts as a consultant to the SBOE regarding investment and management of the PSF.

(r) Compliance and enforcement.

(1) The SBOE will enforce this section through its chair or vice chair or the commissioner of education.

(2) Any violation of this section will be reported to the chair and vice chair of the SBOE and the commissioner of education and a recommended action will be presented to the SBOE by the chair or the commissioner. A violation of this section may result in the termination of the contract or a lesser sanction. Repeated minor violations may also result in the termination of the contract.

(3) The PSF compliance officer under the direction of the TEA confidentiality officer shall act as custodian of all statements, waivers, and reports required under this section for purposes of public disclosure requirements.

(4) The ethics advisor of the TEA shall respond to inquiries from the SBOE Members and PSF Service Providers concerning the provisions of this section. The ethics advisor may confer with the general counsel and the executive administrator of the PSF.

(5) No payment shall be made to a PSF Service Provider who has failed to timely file a completed report as described by subsection (m) of this section, until a completed report is filed.

(s) Ethics training. The SBOE shall receive annual training regarding state ethics laws through the Texas Ethics Commission and the TEA's ethics advisor.

(t) TEA general ethical standards. The commissioner of education and PSF staff shall comply with the General Ethical Standards for the Staff of the Permanent School Fund and the Commissioner of Education.

(u) Reporting period. A new report required by an amendment to the code of ethics need only concern events after the effective date of the amendment. An amendment to a rule that presently requires a report does not affect the reporting period unless the amendment explicitly changes the reporting period.

(v) Statutory statement.

(1) A "statutory financial advisor or service provider" as defined in this subsection shall on or before April 15 file a statement as required by Texas Government Code, §2263.005, with the commissioner of education and the state auditor, for the previous calendar year. The statement will be deemed filed when it is actually received. A statutory financial advisor or service provider shall promptly file a new or amended statement with the commissioner of education and the state auditor whenever there is new information required to be reported under Texas Government Code, §2263.005(a).

(2) A "statutory financial advisor or service provider" is a member of the Committee of Investment Advisors or an individual or business entity, including a financial advisor, financial consultant, money or investment manager, or broker, who is not an employee of the TEA, but who provides financial services or advice to the TEA or the SBOE or an SBOE member in connection with the management and investment of the PSF and who may reasonably be expected to receive, directly or indirectly, more than $5,000 in compensation from the TEA or the SBOE during a fiscal year.

(3) An annual statement required to be filed under this subsection will be made using the form developed by the state auditor.

§33.10: Purposes of Texas Permanent School Fund Assets and the Statement of Investment Policy

(a) The purpose of the Texas Permanent School Fund (PSF), as defined by the Texas Constitution, shall be to support and maintain an efficient system of public free schools. The State Board of Education (SBOE) views the PSF as a perpetual institution. Consistent with its perpetual nature, the PSF shall be an endowment fund with a long-term investment horizon. The SBOE shall strive to manage the PSF consistently with respect to the following: generating income for the benefit of the public free schools of Texas, the real growth of the corpus of the PSF, protecting capital, and balancing the needs of present and future generations of Texas school children. The PSF will strive to maintain intergenerational equity by attempting to pay out a constant distribution per student after adjusting for inflation.

(b) The purposes of the investment policy statement are to:

(1) specify the investment objectives, policies, and guidelines the SBOE considers appropriate and prudent, considering the needs of the PSF, and to comply with the Texas Constitution by directing PSF assets;

(2) establish SBOE performance criteria for an investment manager;

(3) communicate the investment objectives, guidelines, and performance criteria to the SBOE, PSF investment staff and managers, and all other parties;

(4) guide the ongoing oversight of PSF investment and test compliance with the Texas Constitution and other applicable statutes;

(5) document that the SBOE is fulfilling its responsibilities for managing PSF investments solely in the interests of the PSF; and

(6) document that the SBOE is fulfilling its responsibilities under Texas law.

Comments

Source Note: The provisions of this §33.10 adopted to be effective September 1, 1996, 21 TexReg 4609; amended to be effective September 1, 1998, 23 TexReg 7777; amended to be effective October 10, 2004, 29 TexReg 9357

§33.15: Objectives

(a) Investment objectives.

(1) Investment objectives have been formulated based on the following considerations:

(A) the anticipated financial needs of the Texas public free school system in light of expected future contributions to the Texas Permanent School Fund (PSF);

(B) the need to preserve capital;

(C) the risk tolerance set by the State Board of Education (SBOE) and the need for diversification;

(D) observations about historical rates of return on various asset classes;

(E) assumptions about current and projected capital market and general economic conditions and expected levels of inflation;

(F) the need to invest according to the prudent person rule; and

(G) the need to document investment objectives, guidelines, and performance standards.

(2) Investment objectives represent desired results and are long-term in nature, covering typical market cycles of three to five years. Any shortfall in meeting the objectives should be explainable in terms of general economic and capital market conditions and asset allocation.

(3) The investment objectives are consistent with generally accepted standards of fiduciary responsibility.

(4) Under the provisions of this chapter, investment managers shall have discretion and authority to implement security selection and timing.

(b) Goal and objectives for the PSF.

(1) Goal. The goal of the SBOE for the PSF shall be to invest for the benefit of current and future generations of Texans consistent with the safety of principal, in light of the strategic asset allocation plan adopted. To achieve this goal, PSF investment shall be carefully administered at all times.

(2) Objectives.

(A) The preservation and safety of principal shall be a primary consideration in PSF investment.

(B) Fixed income securities shall be purchased at the highest yield consistent with the preservation and safety of principal.

(C) To the extent possible, the PSF administrators shall hedge against inflation.

(D) Securities, except investments for cash management purposes as specified in §33.25 of this title (relating to Permissible and Restricted Investments and General Guidelines for Investment Managers), shall be selected for investment on the basis of long-term investment merits rather than short-term gains.

(c) Investment rate of return and risk objectives.

(1) Because the education needs of the future generations of Texas school children are long-term in nature, the return objective of the PSF shall also be long-term and focused on fairly balancing the benefits between the current generation and future generations while preserving the real per capita value of the PSF.

(2) Investment rates of return shall adhere to the Chartered Financial Analyst (CFA) Institute Global Investment Performance Standards (GIPS) guidelines in calculating and reporting investment performance return information.

(3) The overall risk level of PSF assets in terms of potential for price fluctuation shall not be extreme and risk variances shall be minimal. The primary means of achieving such a risk profile are:

(A) a broad diversification among asset classes that, as nearly as possible, react independently through varying economic and market circumstances;

(B) careful control of risk level within each asset class by avoiding over-concentration and not taking extreme positions against the market averages; and

(C) a degree of emphasis on stable growth.

(4) Over time, the volatility of returns (or risk) for the total fund, as measured by standard deviation of investment returns, should be comparable to investments in market indices in the proportion in which the PSF invests.

(5) The objective of the domestic equity fund shall be to earn, over time, an average annual total rate of return that meets or exceeds that of a representative benchmark index, combining dividends and capital appreciation, while maintaining an acceptable risk level compared to that of the representative benchmark index.

(6) The objective of the international equity fund shall be to earn, over time, an average annual total rate of return that meets or exceeds that of a representative international benchmark index in U.S. dollars, combining dividends and capital appreciation, while maintaining an acceptable risk level compared to that of the representative benchmark index.

(7) The objective of the domestic fixed income fund shall be to earn, over time, an average annual total rate of return that meets or exceeds that of a representative benchmark index, combining interest income and capital appreciation, while maintaining an acceptable risk level compared to that of the representative benchmark index.

(8) The objective of the real estate fund shall be to earn, over time, an average annual total rate of return that meets or exceeds that of a representative benchmark index in U.S. dollars, combining income and capital appreciation, while maintaining an acceptable risk level compared to that of the representative benchmark index.

(9) The objective of the private equity fund shall be to earn, over time, an average annual total rate of return that meets or exceeds that of a representative benchmark or a targeted internal rate of return in U.S. dollars, combining income and capital appreciation, while maintaining an acceptable risk level compared to that of the representative benchmark.

(10) The objective of the absolute return fund shall be to earn, over time, an average annual total rate of return that meets or exceeds that of a representative benchmark index in U.S. dollars, combining income and capital appreciation, while maintaining an acceptable risk level compared to that of the representative benchmark index.

(11) The objective of the real return fund shall be to earn, over time, an average annual total rate of return that meets or exceeds that of a representative benchmark index in U.S. dollars, combining income and capital appreciation, while maintaining an acceptable risk level compared to that of the representative benchmark index.

(12) The objective of the short-term cash fund shall be to provide liquidity for the timely payment of security transactions, while earning a competitive return. The expected return, over time, shall meet or exceed that of the representative benchmark index, while maintaining an acceptable risk level compared to that of the representative benchmark index.

(13) Notwithstanding the risk parameters specified in paragraphs (4) - (12) of this subsection, consideration shall be given to marginal risk variances exceeding the representative benchmark indices if returns are commensurate with the risk levels of the respective portfolios.

(d) Asset allocation policy.

(1) The SBOE shall adopt and implement a strategic asset allocation plan based on a well diversified, balanced investment approach that uses a broad range of asset classes indicated by the following characteristics of the PSF:

(A) the long-term nature of the PSF;

(B) the spending policy of the PSF;

(C) the relatively low liquidity requirements of the PSF;

(D) the investment preferences and risk tolerance of the SBOE;

(E) the rate of return objectives; and

(F) the diversification objectives of the PSF, specified in the Texas Constitution, Article VII, §5(d), the Texas Education Code, Chapter 43, and the provisions of this chapter.

(2) The strategic asset allocation plan shall contain guideline percentages, at market value of the total fund's assets, to be invested in various asset classes. The target mix may not be attainable at a specific point in time since actual asset allocation will be dictated by current and anticipated market conditions, as well as the overall directions of the SBOE.

(3) The SBOE Committee on School Finance/Permanent School Fund, with the advice of the PSF investment staff, shall review the provisions of this section at least annually and, as needed, rebalance the assets of the portfolio according to the asset allocation rebalancing procedure specified in the PSF Investment Procedures Manual. The SBOE Committee on School Finance/Permanent School Fund shall consider the industry diversification and the percentage allocation within the following asset classes:

(A) domestic equities;

(B) international equities;

(C) domestic fixed income;

(D) real estate;

(E) private equity;

(F) absolute return;

(G) real return; and

(H) cash.

(4) Investments shall not exceed the strategic ranges the SBOE establishes for each asset class.

(5) Periodically, the SBOE shall allocate segments of the total fund to each investment manager and specify guidelines, investment objectives, and standards of performance that apply to those assets.

Comments

Source Note: The provisions of this §33.15 adopted to be effective September 1, 1997, 22 TexReg 4359; amended to be effective March 31, 2004, 29 TexReg 3174; amended to be effective October 10, 2004, 29 TexReg 9357; amended to be effective October 15, 2006, 31 TexReg 8347

§33.20: Responsible Parties and Their Duties

(a) The Texas Constitution, Article VII, §§1-8, establishes the Available School Fund, the Texas Permanent School Fund (PSF), and the State Board of Education (SBOE), and specifies the standard of care SBOE members must exercise in managing PSF assets. In addition, the constitution directs the legislature to establish suitable provisions for supporting and maintaining an efficient public free school system, defines the composition of the PSF and the Available School Fund, and requires the SBOE to set aside sufficient funds to provide free textbooks for the use of children attending the public free schools of this state.

(b) The SBOE shall be responsible for overseeing all aspects of the PSF and may employ any of the following parties, whose duties and responsibilities are as follows.

(1) An investment manager is a person, firm, corporation, bank, or insurance company the SBOE retains to manage a portion of the PSF assets under specified guidelines.

(2) A custodian is an organization, normally a bank, the SBOE retains to safekeep, and provide accurate and timely reports of, PSF assets.

(3) A consultant is a person or firm the SBOE retains to advise the PSF based on professional expertise.

(4) Investment counsel or consultant is a person or firm retained under criteria specified in the PSF Investment Procedures Manual to advise PSF investment staff and the SBOE Committee on School Finance/Permanent School Fund within the policy framework established by the SBOE. Counsel is responsible for asset allocation reviews, manager searches, spending policy recommendations and research related to the management of the fund's assets.

(5) A performance measurement consultant is a person or firm retained to provide the SBOE Committee on School Finance/Permanent School Fund an analysis of the PSF portfolio performance. The outside portfolio performance measurement service firm shall perform the analysis on a quarterly or as-needed basis. Quarterly reports shall be distributed to each member of the SBOE Committee on School Finance/Permanent School Fund, and a representative of the firm shall be available as necessary to brief the committee.

(6) The State Auditor's Office is an independent state agency that performs an annual financial audit of the TEA at the direction of the Texas Legislature. The financial audit, conducted according to generally accepted auditing standards, is designed to test compliance with generally accepted accounting principles. The state auditor performs tests of the transactions of the PSF Investment Office as part of this annual audit, including compliance with governing statutes and SBOE policies and directives. The TEA Internal Audit Division will participate in the audit process by participating in entrance and exit conferences, being provided copies of all reports and management letters furnished by the external auditor, and having access to the external auditor's audit programs and working papers.

(7) The SBOE may retain independent external auditors to review the PSF accounts annually or on an as-needed basis. The TEA Internal Audit Division will participate in the audit process by participating in entrance and exit conferences, being provided copies of all reports and management letters furnished by the external auditor, and having access to the external auditor's audit programs and working papers.

(c) The SBOE shall meet on a regular or as-needed basis to conduct the affairs of the PSF.

(d) In case of emergency or urgent public necessity, the SBOE Committee on School Finance/Permanent School Fund or the SBOE, as appropriate, may hold an emergency meeting under the Texas Government Code, §551.045.

(e) The SBOE shall have the following exclusive duties:

(1) determining the strategic asset allocation mix between asset classes based on the attending economic conditions and the PSF goals and objectives;

(2) ratifying the investment transactions pertaining to the purchase, sale, or reinvestment of fixed income, equity, or cash securities by all internal and external managers for the current reporting period;

(3) appointing members to the SBOE Investment Advisory Committee;

(4) approving the selection of, and all contracts with, external professional investment managers, financial advisors, financial consultants, or other external professionals employed to help the SBOE invest the PSF;

(5) approving the selection of, and the performance measurement contract with, a well-recognized and reputable firm employed to evaluate and analyze PSF investment results. The service shall compare investment results to the written investment objectives of the SBOE and also compare the investment of the PSF with the investment of other public and private funds against market indices and by managerial style;

(6) setting policies, objectives, and guidelines for investing PSF assets; and

(7) representing the PSF to the state.

(f) The SBOE may establish committees to administer the affairs of the PSF. The duties and responsibilities of any committee established shall be specified in the PSF Investment Procedures Manual.

(g) The PSF shall have an executive administrator, with a staff to be adjusted as necessary, who functions directly with the SBOE through the SBOE Committee on School Finance/Permanent School Fund concerning investment matters, and who functions as part of the internal operation under the commissioner of education. At all times, the PSF executive administrator and staff shall invest PSF assets as directed by the SBOE according to the Texas Constitution and all other applicable Texas statutes, as amended, and SBOE rules governing the operation of the PSF. The PSF staff shall:

(1) administer the PSF according to SBOE goals and objectives;

(2) execute all directives, policies, and procedures from the SBOE and the SBOE Committee on School Finance/Permanent School Fund;

(3) keep records and provide a continuous and accurate accounting of all PSF transactions, revenues, and expenses and provide reports on the status of the PSF portfolio;

(4) advise any officials, investment firms, or other interested parties about the powers, limitations, and prohibitions regarding PSF investments that have been placed on the SBOE or PSF investment staff by statutes, attorney general opinions and court decisions, or by SBOE policies and operating procedures;

(5) continuously research all internally managed securities held by the PSF and report to the SBOE Committee on School Finance/Permanent School Fund and the SBOE any information requested, including reports and statistics on the PSF, for the purpose of administering the PSF;

(6) establish and maintain a procedures manual that implements this section to be approved by the SBOE;

(7) make recommendations regarding investment and policy matters to the SBOE Committee on School Finance/Permanent School Fund and the SBOE; and

(8) establish and maintain accounting policies and internal control procedures concerning all receipts, disbursements and investments of the PSF, according to the procedures adopted by the SBOE.

Comments

Source Note: The provisions of this §33.20 adopted to be effective September 1, 1997, 22 TexReg 4359; amended to be effective September 1, 1998, 23 TexReg 7777; amended to be effective March 31, 2004, 29 TexReg 3174

§33.25: Permissible and Restricted Investments and General Guidelines for Investment Managers

(a) Permissible investments.

(1) Equities are considered to be common or preferred corporate stocks; corporate bonds, debentures, or preferreds that may be converted into corporate stock; and investment trusts. Stocks listed or traded on well recognized or principal U.S. or foreign exchanges or nationally recognized over-the-counter markets are permitted.

(2) Fixed income securities are considered to be U.S. or foreign treasury or government agency obligations, U.S. or foreign corporate bonds, asset- or mortgage-backed securities, taxable municipal obligations, Canadian bonds, Yankee bonds, supranational bonds (denominated in U.S. dollars), and 144A securities.

(3) Real estate is considered to be investments in real properties, as well as investments in real estate related securities and real estate related debt. Common property types associated with real estate investments are, but not limited to, apartments, office buildings, retail centers, infrastructure, timberlands, and industrial parks.

(4) Private equity is considered to be, but not limited to, venture capital, buy-out investing, mezzanine financing, and distressed debt.

(5) Absolute returns are investments in a diversified bundle of primarily marketable investment strategies that seek positive returns, regardless of market direction.

(6) Real returns are investments that target a return that exceed the rate of inflation, measured by the Consumer Price Index (CPI), by a premium.

(7) Cash equivalents are securities with maturities of less than or equal to one year that are considered to include interest bearing or discount instruments of the U.S. government or its agencies, money market funds, corporate discounted instruments, corporate-issued commercial paper, time deposits of U.S. or foreign banks, bankers acceptances, and fully collateralized repurchase agreements. Both U.S. and foreign offerings are permitted. All residual cash in the Texas Permanent School Fund (PSF) portfolio must be swept and invested on a daily basis.

(8) Any form of investment or nonpublicly traded investment may be considered by the State Board of Education (SBOE) based on risk and return characteristics, provided the investment is consistent with PSF goals and objectives.

(9) The SBOE may approve currency hedging strategies for the international portfolios and delineate the related procedures in the "Standards of Performance" section of the PSF Investment Procedures Manual.

(b) Prohibited transactions and restrictions. Unless the SBOE gives its written approval, the following prohibited transactions and restrictions apply for all PSF managers:

(1) short sales of any kind;

(2) purchasing letter or restricted stock;

(3) buying or selling on margin;

(4) engaging in purchasing or writing options or similar transactions;

(5) purchasing or selling futures on commodities contracts;

(6) borrowing money, or pledging or otherwise encumbering PSF assets;

(7) purchasing the equity or debt securities of the portfolio manager's organization or an affiliated organization;

(8) engaging in any purchasing transaction, after which the cumulative market value of common stock in a single corporation exceeds 2.5% of the PSF total market value or 5.0% of the manager's total portfolio market value;

(9) engaging in any purchasing transaction, after which the cumulative number of shares of common stock in a single corporation held by the PSF exceeds 5.0% of the outstanding voting stock of that issuer;

(10) engaging in any purchasing transaction, after which the cumulative market value of fixed income securities or cash equivalent securities in a single corporation (excluding the U.S. government, its federal agencies, and government sponsored enterprises) exceeds 2.5% of the PSF total market value or 5.0% of the manager's total portfolio market value;

(11) purchasing tax exempt bonds;

(12) purchasing guaranteed investment contracts (GICs) from an insurance company or bank investment contracts (BICs) from a bank not rated at least AAA by Standard & Poor's or Moody's;

(13) purchasing any fixed income security not rated investment grade by at least two of the following ratings agencies: at least BBB- by Standard & Poor's, Baa3 by Moody's, and BBB by Fitch, subject to the provisions in the PSF Investment Procedures Manual related to the fixed income portfolio mandates regarding quality and duration;

(14) purchasing short-term money market instruments rated below A-1 by Standard & Poor's or P-1 by Moody's;

(15) engaging in any transaction that results in unrelated business taxable income (excluding current holdings);

(16) engaging in any transaction considered a "prohibited transaction" under the Internal Revenue Code or the Employee Retirement Income Security Act (ERISA);

(17) purchasing precious metals or other commodities;

(18) engaging in any transaction that would leverage a manager's position;

(19) lending securities owned by the PSF, but held in custody by another party, such as a bank custodian, to any other party for any purpose, unless lending securities according to a separate written agreement the SBOE approved; and

(20) purchasing fixed income securities without a stated par value amount due at maturity.

(c) General guidelines for investment managers.

(1) Each investment manager retained to manage a portion of PSF assets shall be aware of, and operate within, the provisions of this chapter and all applicable Texas statutes.

(2) As fiduciaries of the PSF, investment managers shall discharge their duties solely in the interests of the PSF according to the prudent expert rule, engaging in activities that include the following.

(A) Diversification. The investment policy shall be to diversify each manager's common stock portfolio by participating in industries and companies with above average prospects or sound fundamentals.

(B) Securities trading.

(i) Each manager shall send copies of each transaction record to the PSF investment staff and custodians.

(ii) Each manager shall be required to reconcile the accounts under management on a monthly basis with the PSF investment staff and custodians.

(iii) Each manager shall be responsible for complying fully with PSF policies for trading securities and selecting brokerage firms, as specified in §33.40 of this title (relating to Trading and Brokerage Policy). In particular, the emphasis of security trading shall be on best execution; that is, the highest proceeds to the PSF and the lowest costs, net of all transaction expenses. Placing orders shall be based on the financial viability of the brokerage firm and the assurance of prompt and efficient execution.

(iv) The SBOE shall require each external manager to indemnify the PSF for all failed trades not due to the negligence of the PSF or its custodian in instances where the selection of the broker dealer is not in compliance with §33.40 of this title (relating to Trading and Brokerage Policy).

(C) Acknowledgments in writing.

(i) Each external investment manager retained by the PSF must be a person, firm, or corporation registered as an investment adviser under the Investment Adviser Act of 1940, a bank as defined in the Act, or an insurance company qualified to do business in more than one state, and must acknowledge its fiduciary responsibility in writing. A firm registered with the Securities and Exchange Commission (SEC) must annually provide a copy of its Form ADV, Section II.

(ii) The SBOE may require each external manager to obtain coverage for errors and omissions in an amount set by the SBOE, but the coverage shall be at least the greater of $500,000 or 1.0% of the assets managed, not exceeding $10 million. The coverage should be specific as to the assets of the PSF. The manager shall annually provide evidence in writing of the existence of the coverage.

(iii) Each external manager may be required by the SBOE to obtain fidelity bonds, fiduciary liability insurance, or both.

(iv) Each manager shall acknowledge in writing receiving a copy of, and agreeing to comply with, the provisions of this chapter.

(D) Discretionary investment authority. Subject to the provisions of this chapter, any investment manager of marketable securities or other investments, retained by the PSF, shall have full discretionary investment authority over the assets for which the manager is responsible. Specialist advisors retained for alternative asset investments may have a varying degree of discretionary authority, which will be outlined in the respective management contract.

(d) Reporting procedures for investment managers. The investment manager shall:

(1) prepare a monthly and quarterly report for delivery to the SBOE, the SBOE Committee on School Finance/Permanent School Fund, and the PSF investment staff that shall include, in the appropriate format, items requested by the SBOE. The monthly reports shall briefly cover the firm's economic review; a review of recent and anticipated investment activity; a summary of major changes that have occurred in the investment markets and in the portfolio, particularly since the last report; and a summary of the key characteristics of the PSF portfolio. Quarterly reports shall comprehensively cover the same information as monthly reports but shall also include any changes in the firm's structure, professional team, or product offerings; a detail of the portfolio holdings; and transactions for the period. Periodically, the PSF investment staff shall provide the investment manager a detailed description of, and format for, these reports;

(2) when requested by the SBOE Committee on School Finance/Permanent School Fund, make a presentation describing the professionals retained for the PSF, the investment process used for the PSF portfolio under the manager's responsibility, and any related issues;

(3) when requested by the PSF investment staff, meet to discuss the management of the portfolio, new developments, and any related matters; and

(4) implement a specific investment process for the PSF. The manager shall describe the process and its underlying philosophy in an attachment to its investment management agreement with the PSF and manage according to this process until the PSF and manager agree in writing to any change.

Comments

Source Note: The provisions of this §33.25 adopted to be effective September 1, 1996, 21 TexReg 3937; amended to be effective September 1, 1998, 23 TexReg 7777; amended to be effective October 15, 2006, 31 TexReg 8347

§33.30: Standards of Performance

(a) The State Board of Education (SBOE) Committee on School Finance/Permanent School Fund shall set and maintain performance standards for the total fund, the equity fund, the fixed income fund, and the cash fund of the Texas Permanent School Fund (PSF), and all investment managers based on criteria that include the following:

(1) time horizon;

(2) real rate of return;

(3) representative benchmark index;

(4) volatility of returns (or risk), as measured by standard deviation; and

(5) universe comparison.

(b) The SBOE Committee on School Finance/Permanent School Fund shall develop and implement the procedures necessary to establish and recommend to the SBOE the performance standards criteria.

(c) Performance standards shall be included in the PSF Investment Procedures Manual.

Comments

Source Note: The provisions of this §33.30 adopted to be effective September 1, 1996, 21 TexReg 3937; amended to be effective September 1, 1998, 23 TexReg 7777.

§33.35: Guidelines for the Custodian and the Securities Lending Agent

Completing custodial and security lending functions in an accurate and timely manner is necessary for effective investment management and accurate records.

(1) A custodian shall have the following responsibilities regarding the segments of the funds for which the custodian is responsible.

(A) Provide complete custody and depository services for the designated accounts.

(B) Provide for investment of any cash on a daily basis to avoid uninvested amounts.

(C) Implement the investment actions in a timely and effective manner as directed by the investment managers.

(D) Collect all realizable income and principal and properly report the information on the periodic statements to the Texas Permanent School Fund (PSF) investment staff, the investment managers, or other appropriate parties.

(E) Provide monthly and annual accounting statements, as well as on-line, real-time accounting, that includes all transactions. Accounting shall be based on accurate security values for cost and market value and provided within a time frame acceptable to the State Board of Education (SBOE).

(F) Report to the PSF investment staff situations in which security pricing is either not possible or subject to considerable uncertainty.

(G) Distribute all proxy voting materials in a timely manner.

(H) Provide research and assistance to the SBOE and the PSF investment staff on all issues related to accounting and administration.

(I) Confirm that the depth of resources and personnel associated with the designated funds are comparable to those of the nation's leading custodial banks.

(2) A securities lending agent for the PSF shall have the following responsibilities.

(A) Provide complete transaction reporting for the designated funds.

(B) Provide a monthly accounting, as well as on-line, real-time accounting for securities lending transactions, based on accurate security values.

(C) Report to the PSF investment staff any irregular situation that is outside the standard of practice for securities lending or inconsistent with the provisions of the securities lending agreement.

(D) Implement a securities lending program for the PSF in a manner that does not impair any rights of the PSF by virtue of PSF ownership in securities.

(E) As requested, provide research and assistance to the SBOE and the PSF investment staff on all issues related to accounting and administration.

(F) Provide indemnification to the PSF satisfactory to the SBOE in the event of default on securities lending transactions.

(G) Fully disclose all revenues and other fees associated with the securities lending program.

(H) Comply with restrictions on types of securities lending transactions or eligible investments of cash collateral or any other restrictions imposed by the SBOE or the PSF investment staff. Unless the SBOE gives its written approval, the following guidelines apply to the PSF Securities Lending Program. Cash collateral reinvestment guidelines must meet the following standards.

(i) Permissible investments.

(I) U.S. Government and U.S. Agencies, under the following criteria:

(-a-) any security issued by or fully guaranteed as to payment of principal and interest by the U.S. Government or a U.S. Government Agency or sponsored Agency, and eligible for transfer via Federal Reserve Bank book entry, Depository Trust Company book entry, and/or Participants Trust Company book entry;

(-b-) maximum 397-day maturity on fixed rate;

(-c-) maximum three-year maturity on floating rate, with maximum reset period of 90 days and use a standard repricing index such as London InterBank Offered Rate (LIBOR), Federal Funds, Treasury Bills, or commercial paper; and

(-d-) no maximum dollar limit.

(II) Bank obligations, under the following criteria:

(-a-) time deposits with maximum 60-day maturity on fixed rate or three-year maturity for floating rate, with maximum reset period of 60 days and use a standard repricing index such as LIBOR, Federal Funds, Treasury Bills, or commercial paper;

(-b-) negotiable Certificates of Deposit with maximum 397-day maturity on fixed rate or three-year maturity for floating rate, with maximum reset period of 90 days and use a standard repricing index such as LIBOR, Federal Funds, Treasury Bills, or commercial paper;

(-c-) bank notes with maximum 397-day maturity on fixed rate or three-year maturity on floating rate, with maximum reset period of 90 days and use a standard repricing index such as LIBOR, Federal Funds, Treasury Bills, or commercial paper;

(-d-) bankers acceptances with maximum 45-day maturity;

(-e-) banks with at least $25 billion in assets with a short-term rating of "Tier 1" as defined in clause (ii)(IV) of this subparagraph for fixed rate and AA2 and AA by Moody's Investor Service and Standard & Poor's Corporation for floating rate. In addition, placements can be made in branches within the following countries:

(-1-) Canada;

(-2-) France;

(-3-) United Kingdom; and

(-4-) United States; and

(-f-) dollar limit maximum per institution of 5.0% of investment portfolio at time of purchase.

(III) Commercial paper, under the following criteria:

(-a-) dollar limit maximum per issuer of 5.0% of investment portfolio at time of purchase including any other obligations of that issuer as established in subclause (II)(-d-) of this clause. If backed 100% by bank Letter of Credit, then dollar limit is applied against the issuing bank;

(-b-) must be rated "Tier 1" as defined in clause (ii)(IV) of this subparagraph; and

(-c-) maximum 397-day maturity.

(IV) Asset backed commercial paper, under the following criteria:

(-a-) dollar limit maximum per issuer of 5.0% of investment portfolio;

(-b-) must be rated "Tier 1" as defined in clause (ii)(IV) of this subparagraph; and

(-c-) maximum 397-day maturity.

(V) Asset backed securities, under the following criteria:

(-a-) maximum 397-day weighted average life on fixed rate;

(-b-) maximum three-year weighted average life on floating rate, with maximum reset period of 90 days and use a standard repricing index such as LIBOR, Federal Funds, Treasury Bills, or commercial paper; and

(-c-) rated Aaa and AAA by Moody's Investor Service and Standard & Poor's Corporation at time of purchase. One AAA rating may suffice if only rated by one Nationally Recognized Securities Rating Organization (NRSRO).

(VI) Corporate debt (other than commercial paper), under the following criteria:

(-a-) must be senior debt;

(-b-) maximum 397-day maturity on fixed rate;

(-c-) maximum three-year maturity on floating rate, with maximum rest period of 90 days and use a standard repricing index such as LIBOR, Federal Funds, Treasury Bills, or commercial paper;

(-d-) issuers or guarantor's short-term obligations must be rated "Tier 1" as defined in clause (ii)(IV) of this subparagraph for fixed rate and AA2 and AA by Moody's Investor Service and Standard & Poor's Corporation for floating rate; and

(-e-) dollar limit maximum per issuer of 5.0% of investment portfolio at time of purchase, including any other obligations of that issuer.

(VII) Reverse repurchase agreements, under the following criteria:

(-a-) counterparty must be "Tier 1" rated as defined in clause (ii)(IV) of this subparagraph for fixed rate and AA2 and AA by Moody's Investor Service and Standard & Poor's Corporation for floating rate or be a "Primary Dealer" in Government Securities as per the New York Federal Reserve Bank;

(-b-) underlying collateral may be any security permitted for direct investment;

(-c-) lending agent or a third party custodian must hold collateral under tri-party agreement;

(-d-) collateral must be marked to market daily and maintained at the following margin levels;

(-1-) U.S. Government, U.S. Government Agency, sponsored Agency, International Organization at 100%;

(-2-) Certificate of Deposits, Bankers Acceptance, bank notes, commercial paper at 102% under one year to maturity and rated at least "Tier 1" as defined in clause (ii)(IV) of this subparagraph; and

(-3-) corporate debt (other than commercial paper) at 105% rated at least AA2/AA or better by Moody's Investor Service and Standard & Poor's Corporation at time of purchase;

(-e-) due to daily margin maintenance, dollar limits and maturity limits of underlying collateral are waived, except with respect to the maturity limit in subclause (II)(-d-) of this clause;

(-f-) maximum 180-day maturity; and

(-g-) dollar limit for total reverse repurchase agreements is the greater of $300 million or 15% of value of cash collateral portfolio with one counterparty at time of purchase.

(VIII) Foreign sovereign debt, under the following criteria:

(-a-) any security issued by or fully guaranteed as to payment of principal and interest by a foreign government whose sovereign debt is rated AA2/AA or better by Moody's Investor Service and Standard & Poor's Corporation at time of purchase. Securities must be delivered to Lending Agent or a third party under a Tri-Party agreement;

(-b-) dollar limit maximum per issuer or guarantor of 2.5% of investment portfolio; and

(-c-) maximum maturity of 397 days.

(IX) Short Term Investment Fund (STIF) and/or Registered Mutual Funds, under the following criteria:

(-a-) funds must comprise investments similar to those that would otherwise be approved for securities lending investment under the provisions of this subparagraph, not invest in derivatives, and not re-hypothecate assets;

(-b-) lender must approve each fund in writing and only upon receipt of offering documents and qualified letter; and

(-c-) fund must have an objective of a constant share price of one dollar.

(ii) Investment parameters.

(I) Maximum weighted average maturity of investment portfolio must be 180 days.

(II) Maximum weighted average interest rate exposure of investment portfolio must be 60 days.

(III) All investments must be U.S. dollar-denominated.

(IV) "Tier 1" credit quality is defined as the highest short-term rating category by the following NRSROs:

(-a-) Standard & Poor's;

(-b-) Moody's Investors Service;

(-c-) Fitch Investors Service; and

(-d-) Duff & Phelps, LLC.

(V) At time of purchase all investments must be rated in the highest short-term numerical category by at least two NRSROs, one of which must be either Standard & Poor's or Moody's Investors Service.

(VI) Issuer's ratings cannot be on negative credit watch at the time of purchase.

(VII) Interest and principal only (IO, PO) stripped mortgages are not permitted.

(VIII) Mortgage backed securities are not permitted.

(IX) Complex derivative or structured securities, including, but not limited to the following are not permitted:

(-a-) inverse floating rate notes;

(-b-) defined range floating rate notes;

(-c-) trigger notes; and

(-d-) set-up notes.

(I) Provide a copy of the investment policy governing the custodian's securities lending program, as amended, to the PSF investment staff.

(J) Confirm that the depth of resources and personnel associated with the designated funds are comparable to those of the nation's leading securities lending agents.

Comments

Source Note: The provisions of this §33.35 adopted to be effective September 1, 1996, 21 TexReg 3937; amended to be effective March 31, 2004, 29 TexReg 3174; amended to be effective August 14, 2005, 30 TexReg 4478; amended to be effective October 15, 2006, 31 TexReg 8347

§33.40: Trading and Brokerage Policy

(a) Security transaction policy.

(1) The following principles shall guide all Texas Permanent School Fund (PSF) transactions.

(A) Each manager shall be responsible for complying fully with PSF policies for trading securities and selecting brokerage firms, as specified in this section. In particular, the emphasis of security trading shall be on best execution; that is, the highest proceeds to the PSF and the lowest costs, net of all transaction expenses. Placing orders shall be based on the financial viability of the brokerage firm and the assurance of prompt and efficient execution.

(B) Ongoing efforts must be made to reduce trading costs, in terms of both commissions and market impact, provided the investment returns of the PSF are not jeopardized.

(2) The State Board of Education (SBOE) may enter into brokerage commission recapture agreements or soft dollar agreements.

(3) The SBOE may evaluate transaction activity annually through a trading cost analysis.

(b) Directed trades. The SBOE may adopt directed trade procedures for the PSF portfolio according to procedures developed by the SBOE Committee on School Finance/Permanent School Fund.

(c) Guidelines for selecting a brokerage firm and standards of ethical conduct for brokerage firms.

(1) Introduction and basic principles.

(A) The SBOE intends that any transaction of publicly traded security occur through a brokerage firm or automated trading system, regardless of location, to obtain the lowest transaction cost consistent with best execution.

(B) Each investment manager shall be responsible for selecting brokerage firms or automated trading systems through which PSF trading shall be completed. The selections must meet PSF guidelines and be for the exclusive benefit of the PSF.

(2) Guidelines for selection and standards of ethical conduct. The broker or dealer firm must:

(A) have appropriate trading and market expertise;

(B) have comprehensive, proprietary, in-house research capabilities;

(C) be in compliance with applicable federal and Texas laws related to conducting business as a broker or dealer, including the Anti-Fraud provisions of the Securities Exchange Act of 1934;

(D) be a member in good standing of the major financial exchanges;

(E) have on-site, in-house trading capability and direct access to major markets;

(F) have in-house access to trading support equipment;

(G) trade for competitive rates that provide the lowest transaction cost consistent with best execution;

(H) be financially able to accommodate a capital commitment trade over an industry standard settlement period;

(I) have the ability and record to clear and settle trades without unnecessary delays or fails; and

(J) have been in business as a broker or dealer for a reasonable period of time to ensure financial and operational stability.

(3) Exemptions.

(A) Broker/dealer firms that are certified as Texas based historically underutilized businesses (HUBs) are exempted from the requirements specified in paragraph (2)(B), (D), and (H) of this subsection; and

(B) broker/dealer firms that are operating as electronic communication networks are exempted from the requirements specified in paragraph (2)(B) of this subsection.

(4) Reporting requirements. The executive administrator of the PSF will report to the SBOE Committee on School Finance/Permanent School Fund, on an ongoing basis, a list of broker dealers with whom the PSF has conducted business during the fiscal year that have been granted exemptions under paragraph (2)(B), (D), and (H) of this subsection and will identify the specific exemptions granted.

(5) Review and evaluation. At least annually, the SBOE Committee on School Finance/Permanent School Fund shall review the brokerage firms used by PSF investment managers and all transactions for compliance with the provisions of this section.

(6) Broker expenditure report. A broker shall file a report annually on January 15 of each year on the expenditure report provided in §33.5(l)(2)(J) of this title (relating to Code of Ethics) entitled "Report of Expenditures of Persons Providing Services to the State Board of Education Relating to the Management and Investment of the Permanent School Fund." The report shall be for the time period beginning on December 1 of the previous year and ending on November 30 of the current year. The expenditure report must describe in detail any expenditure of more than $50 made by the person on behalf of:

(A) an SBOE Member;

(B) the commissioner of education; or

(C) an employee of the TEA or of a nonprofit corporation created under the Texas Education Code, §43.006.

Comments

Source Note: The provisions of this §33.40 adopted to be effective September 1, 1996, 21 TexReg 4609; amended to be effective September 1, 1998, 23 TexReg 7777; amended to be effective April 2, 2000, 25 TexReg 2568; amended to be effective October 11, 2000, 25 TexReg 10151; amended to be effective March 31, 2004, 29 TexReg 3174; amended to be effective October 10, 2004, 29 TexReg 9354

§33.45: Proxy Voting Policy

The State Board of Education (SBOE) recognizes its fiduciary obligations with respect to the voting of proxies of companies with securities that are owned by the Texas Permanent School Fund (PSF). Because the issues related to proxy voting are complex and directly impact investment values, the SBOE believes the PSF is best suited to vote the proxies of shares held in the PSF portfolio. Therefore, as part of the PSF investment policy, the SBOE instructs the PSF executive administrator and investment staff to vote all of the PSF proxies of companies according to the following guidelines. The executive administrator may delegate voting of proxies of securities not held in internally managed portfolios to external investment managers or proxy voting companies, provided voting is in accordance with the following guidelines.

(1) Routine matters. Routine proxy proposals shall be voted in support of company proposals unless there is a clear reason not to do so. Routine matters include:

(A) electing directors;

(B) determining the size of a board;

(C) changing a corporate name;

(D) appointing an auditor;

(E) splitting stock;

(F) amending articles of incorporation that are required to comply with federal or state regulation; and

(G) changing the date, time, or location of an annual meeting.

(2) Business matters. Business proposals that do not eliminate the rights of shareholders, especially minority shareholders, or the status of securities held, including ownership status, shall not be treated as routine; rather, they shall be carefully analyzed. These issues may be voted with management. However, business proposals that are nonroutine or would impair the economic interests of shareholders shall be voted against management. Examples of such proposals include:

(A) requests to alter bylaws to require a super majority to approve mergers;

(B) anti-takeover proposals that could restrict tender offers or deny majority owners from exercising judgment;

(C) proposals to dilute existing shares by issuing substantially more stock without adequate explanation by management; and

(D) proposals that would enrich management excessively or substantially increase compensation awards or employment contracts to senior management that become effective when ownership of the company changes (also known as "golden parachute" awards).

(3) Other matters. On all other matters, the PSF executive administrator, investment staff, and external investment managers shall vote proxies judged to be in the best interests of the PSF.

(4) Reporting to SBOE. At each regularly scheduled SBOE meeting, the PSF executive administrator shall advise the SBOE of all instances in which the PSF executive administrator or external investment managers voted against management. External investment managers shall provide written reports monthly to the executive administrator according to procedures and a format established by the executive administrator.

Comments

Source Note: The provisions of this §33.45 adopted to be effective September 1, 1996, 21 TexReg 4609; amended to be effective September 1, 1998, 22 TexReg 11671; amended to be effective March 31, 2004, 29 TexReg 3174

§33.50: Socially and Politically Responsible Investment Policy

Investments shall be considered based on the prudent person rule and the provisions of this chapter. Investments shall provide the highest return commensurate with the lowest risk and shall be diversified.

Comments

Source Note: The provisions of this §33.50 adopted to be effective September 1, 1996, 21 TexReg 3937.

§33.55: Standards for Selecting Consultants, Investment Managers, Custodians, and Other Professionals to Provide Outside Expertise for the Fund

The State Board of Education (SBOE) may retain qualified professionals to assist in investment and related matters.

(1) Basis for selection. The SBOE shall retain professional assistance based solely on the demonstrated ability of the professional to provide the expertise or assistance needed. For each type of expertise, relevant and objective criteria shall be established to judge and select experts.

(2) Types of expertise for consideration. Examples of professionals or specialized expertise the SBOE may retain include: investment managers, accountants, consultants, legal counsel, custodians, security lending agents, and system specialists.

(3) Process for selecting professional assistance. The SBOE shall establish and maintain in the Texas Permanent School Fund (PSF) Procedures Manual an objective process for selecting expertise or assistance. The SBOE Committee on School Finance/Permanent School Fund shall periodically review the process to ensure it reflects SBOE objectives.

Comments

Source Note: The provisions of this §33.55 adopted to be effective September 1, 1996, 21 TexReg 3937; amended to be effective September 1, 1998, 23 TexReg 7777.

§33.60: Performance and Review Procedures

As requested by the State Board of Education (SBOE) or Texas Permanent School Fund (PSF) investment staff, evaluation and periodic investment reports shall supply critical information on a continuing basis, such as the amount of trading activity, investment performance, cash positions, diversification ratios, rates of return, and other perspectives of the portfolios. The reports shall address compliance with investment policy guidelines.

(1) Performance measurements. The SBOE Committee on School Finance/Permanent School Fund shall review the quarterly performance of each investment manager portfolio of the PSF in terms of the provisions of this chapter. The investment performance review shall include comparisons with representative benchmark indices, a broad universe of investment managers, and the consumer price index. A time-weighted return formula (which minimizes the effect of contributions and withdrawals) shall be used for investment return analysis. The review also may include quarterly performance analysis and comparisons of retained firms. The services of an outside, independent consulting firm that provides performance measurement and evaluation shall be retained.

(2) Meeting and reports. At least annually, the SBOE Committee on School Finance/Permanent School Fund shall meet with the PSF investment managers and custodian to review their responsibilities, the PSF portfolio, and investment results in terms of the provisions of this chapter.

(3) Review and modification of investment policy statement. The SBOE Committee on School Finance/Permanent School Fund shall review the provisions of this chapter at least once a year to determine if modifications are necessary or desirable. Upon approval by the SBOE, any modifications shall be promptly reported to all investment managers and other responsible parties.

(4) Compliance with this chapter and Texas statutes. Annually, the SBOE Committee on School Finance/Permanent School Fund shall confirm that the PSF and each of its managed portfolios have complied with the provisions of this chapter concerning exclusions imposed by the SBOE, proxy voting, and trading and brokerage selection.

(5) Significant events. The SBOE must be notified promptly if any of the following events occur within the custodian or external investment manager organizations:

(A) any event that is likely to adversely impact to a significant degree the management, professionalism, integrity, or financial position of the custodian or investment manager. A custodian must report the loss of an account of $500 million or more. An investment manager must report the loss of an account of $25 million or more;

(B) a loss of one or more key people;

(C) a significant change in investment philosophy;

(D) the addition of a new portfolio manager on the sponsor's account;

(E) a change in ownership or control, through any means, of the custodian or investment manager; or

(F) any violation of policy.

Comments

Source Note: The provisions of this §33.60 adopted to be effective September 1, 1996, 21 TexReg 3937; amended to be effective September 1, 1998, 23 TexReg 7777.

§33.65: Bond Guarantee Program

(a) Statutory provision. The commissioner of education must administer the guarantee program for school district bonds according to the provisions of the Texas Education Code (TEC), Chapter 45, Subchapter C.

(b) Definitions. The following definitions apply to the guarantee program for school district bonds.

(1) Annual debt service--Payments of principal and interest on outstanding bonded debt scheduled to occur between September 1 and August 31 during the fiscal year in which the guarantee is sought as reported by the Municipal Advisory Council (MAC) of Texas or its successor, if the district has outstanding bonded indebtedness.

(A) The annual debt service will be determined by the current report of the bonded indebtedness of the district as reported by the MAC of Texas or its successor as of the date of the application deadline.

(B) The annual debt service does not include:

(i) the amount of debt service to be paid on the bonds for which the reservation is sought; or

(ii) the amount of debt service attributable to any debt that is no longer outstanding at the application deadline, provided that the Texas Education Agency (TEA) has sufficient evidence of the discharge or defeasance of such debt.

(C) The debt service amounts used in this calculation for variable rate bonds will be those that are published in the final official statement.

(2) Application deadline--The last business day of the month in which an application for a guarantee is filed. Applications must be received by the TEA division responsible for state funding by 5:00 p.m. on the last business day of the month to be considered in that month's application processing.

(3) Average daily attendance (ADA)--Total refined average daily attendance as defined by the TEC, §42.005.

(4) Bond Guarantee Program (BGP)--The guarantee program for school district bonds that is described by this section and established under the TEC, Chapter 45, Subchapter C.

(5) Bond order--The order adopted by the governing body of a school district that authorizes the issuance of bonds.

(6) Combination issue--An issuance of bonds for which an application is filed for a guarantee that includes both a new money portion and a refunding portion, as permitted by the Texas Government Code, Chapter 1207. The eligibility of combination issues for the guarantee is limited by the eligibility of the new money and refunding portions as defined in this subsection.

(7) Enrollment growth--Growth in student enrollment, as defined by §129.1025 of this title (relating to Adoption By Reference: Student Attendance Accounting Handbook), that has occurred over the previous five school years.

(8) Financial exigency--A determination by a school district board of trustees that the financial condition of the district requires a reduction in personnel, as authorized by the TEC, §21.211.

(9) New money issue--An issuance of bonds for the purposes of constructing, renovating, acquiring, and equipping school buildings; the purchase of property; or the purchase of school buses. Eligibility for the guarantee for new money issues is limited to the issuance of bonds authorized under the TEC, §45.003. A new money issue does not include the issuance of bonds to purchase a facility from a public facility corporation created by the school district or to purchase any property that is currently under a lease-purchase contract under the Local Government Code, Chapter 271, Subchapter A. A new money issue does not include an issuance of bonds to refinance any type of maintenance tax-supported debt. Maintenance tax-supported debt includes, but is not limited to:

(A) time warrants or loans entered under the TEC, Chapter 45, Subchapter E; or

(B) any other type of loan or warrant that is not supported by bond taxes as defined by the TEC, §45.003.

(10) Notes issued to provide interim financing--An issuance of notes, including commercial paper notes, designed to provide short-term financing for the purposes of constructing, renovating, acquiring, and equipping school buildings; the purchase of property; or the purchase of school buses. For notes to be eligible for the guarantee under this section, the notes must be:

(A) issued to pay costs for which bonds have been authorized at an election occurring before the issuance of the notes;

(B) approved by the Office of the Attorney General or issued in accordance with proceedings that have been approved by the Office of the Attorney General; and

(C) refunded by bonds issued to provide long-term financing no more than three years from the date of issuance of such notes, provided that the date of issuance of notes will be determined by reference to the date on which the notes were issued for capital expenditures and the intervening date or dates of issuance of any notes issued to refinance outstanding notes will be disregarded.

(11) Refunding issue--An issuance of bonds for the purpose of refunding bonds, including notes issued to provide interim financing, that are supported by bond taxes as defined by the TEC, §45.003. Eligibility for the guarantee for refunding issues is limited to refunding issues that refund bonds, including notes issued to provide interim financing, that were authorized by a bond election under the TEC, §45.003.

(12) Total debt service--Total outstanding principal and interest on bonded debt.

(A) The total debt service will be determined by the current report of the bonded indebtedness of the district as reported by the MAC of Texas or its successor as of the date of the application deadline, if the district has outstanding bonded indebtedness.

(B) The total debt service does not include:

(i) the amount of debt service to be paid on the bonds for which the reservation is sought; or

(ii) the amount of debt service attributable to any debt that is no longer outstanding at the application deadline, provided that the TEA has sufficient evidence of the discharge or defeasance of such debt.

(C) The debt service amounts used in this calculation for variable rate bonds will be those that are published in the final official statement.

(c) Data sources.

(1) The following data sources will be used for purposes of prioritization:

(A) projected ADA for the current school year as adopted by the legislature for appropriations purposes;

(B) final property values certified by the comptroller of public accounts, as described in the Texas Government Code, Chapter 403, Subchapter M, for the tax year preceding the year in which the bonds will be issued. If final property values are unavailable, the most recent projection of property values by the comptroller, as described in the Texas Government Code, Chapter 403, Subchapter M, will be used;

(C) debt service information reported by the MAC of Texas or its successor as of the date of the application deadline; and

(D) enrollment information reported to the Public Education Information Management System (PEIMS) for the five-year time period ending in the year before the application date.

(2) The commissioner may consider adjustments to data values determined to be erroneous or not reflective of current conditions before the deadline for receipt of applications for that application cycle.

(d) Application processing. To facilitate prioritization of applications for the guarantee or the credit enhancement authorized under §61.1038 of this title (relating to School District Bond Enhancement Program), all applications received during a calendar month will be held until the fifteenth business day of the subsequent month. On the fifteenth business day of each month, the commissioner of education will announce the results of the prioritization described in paragraph (5) of this subsection and process applications for initial approval for the guarantee or initial and final approval for the guarantee, as applicable, up to the available capacity as of the application deadline, subject to the requirements of this subsection. If Permanent School Fund (PSF) capacity has been exhausted, the commissioner will process the application for approval of the credit enhancement as specified in §61.1038 of this title.

(1) The school district may not submit an application for a guarantee or credit enhancement before the successful passage of an authorizing proposition.

(2) The actual guarantee of the bonds is subject to the approval process prescribed in subsection (e) of this section. An applicant school district is ineligible for consideration for the guarantee if its lowest credit rating from any credit rating agency is the same as or higher than that of the BGP.

(3) Refunding issues must comply with the following requirements to retain eligibility for the guarantee for the refunding bonds, except that subparagraph (D) of this paragraph does not apply to a refunding issue that provides long-term financing for notes issued to provide interim financing.

(A) The district must have an accreditation status of Accredited as defined by §97.1055 of this title (relating to Accreditation Status). If the district has an accreditation status of Accredited-Warned or Accredited-Probation, the commissioner will investigate the underlying reason for the accreditation rating to determine whether the accreditation rating is related to the district's financial soundness. If the accreditation rating is related to the district's financial soundness, the refunding bonds will not be eligible to retain the guarantee. Districts with an accreditation status of Not Accredited-Revoked will not be eligible to retain the guarantee on the refunding bonds.

(B) The bonds to be refunded must have been:

(i) previously guaranteed by the PSF or approved for credit enhancement under §61.1038 of this title;

(ii) issued on or after November 1, 2008, and before the effective date of §61.1038 of this title; or

(iii) issued as notes to provide interim financing as defined in subsection (b)(10) of this section.

(C) Only refunding issues as defined in subsection (b)(11) of this section are eligible for the guarantee.

(D) The district must demonstrate that issuing the refunding bond(s) will result in a present value savings to the district and that the refunding bond or bonds will not have a maturity date later than the final maturity date of the bonds being refunded. Present value savings is determined by computing the net present value of the difference between each scheduled payment on the original bonds and each scheduled payment on the refunding bonds. Present value savings must be computed at the true interest cost of the refunding bonds.

(E) If a district files an application for a combination issue, the application will be treated as a single issue for the purposes of eligibility for the guarantee. A guarantee for the combination issue will be awarded only if both the new money portion and the refunding portion meet all of the applicable eligibility requirements described in this subsection. The district making the application must present data to the commissioner that demonstrate compliance for both the new money portion of the issue and the refunding portion of the issue.

(F) The refunding transaction must comply with the provisions of paragraphs (7) and (9) of this subsection.

(4) The commissioner will estimate the available capacity of the PSF on a monthly basis so that the commissioner is able to make the determination described in subsection (e)(2) of this section. If necessary, the commissioner will confirm that the PSF has sufficient capacity to guarantee the bonds before the issuance of the final approval for the guarantee in accordance with subsection (e)(4) of this section. The calculation of capacity will be based on a multiplier of three times the cost value of the PSF. The commissioner may reduce the multiplier to maintain the AAA credit rating of the BGP. Changes to the multiplier made by the commissioner are to be ratified or rejected by the State Board of Education (SBOE) at the next meeting for which the item can be posted.

(5) The SBOE will establish an amount of capacity to be held in reserve of no less than 5.0% of the fund's capacity. Guarantees will be awarded each month beginning with the districts with the lowest property wealth per ADA until the PSF reaches its net capacity to guarantee bonds, as determined by subtracting the amount to be held in reserve from the total available capacity. The reserved capacity can be used to award guarantees for districts that experience unforeseen catastrophes or emergencies that require the renovation or replacement of school facilities as described in the TEC, §44.031(h).

(A) The amount to be held in reserve may be increased by a majority vote of the SBOE based on changes in the asset allocation and risk in the portfolio and unrealized gains in the portfolio, or by the commissioner as necessary to prudently manage fund capacity. Changes to the amount held in reserve made by the commissioner are to be ratified or rejected by the SBOE at the next meeting for which the item can be posted.

(B) Guarantees will be awarded to applicants based on the fund's capacity to fully guarantee the bond issue for which the guarantee is sought. Applications for bond issues that cannot be fully guaranteed will not receive an award. The amount of bond issue for which the guarantee was requested may not be modified after the monthly application deadline for the purposes of securing the guarantee during the award process.

(6) An application received after the application deadline will be considered a valid application for the subsequent month, unless withdrawn by the submitting district before the end of the subsequent month.

(7) Each district that submits a valid application will be notified of the application status within 15 business days of the application deadline. If a district is awarded initial approval for the guarantee or initial and final approval for the guarantee, as applicable, as described in subsection (e) of this section, the following requirements must be met.

(A) If applicable, the district must comply with the provisions for final approval described in subsection (e)(4) of this section to maintain approval for the guarantee.

(B) The bonds must be approved by the Office of the Attorney General within 180 days of the date of the letter granting the approval of the guarantee. The initial approval for the guarantee or initial and final approval for the guarantee, as applicable, will expire at the end of the 180-day period. The commissioner may extend the 180-day period, based on extraordinary circumstances, on receiving a written request from the district before the expiration of the 180-day period.

(8) If a district does not receive a guarantee or for any reason does not receive approval of the bonds from the Office of the Attorney General within the specified time period, the district may reapply in a subsequent month. Applications that were denied a guarantee will not be retained for consideration in subsequent months.

(9) If the bonds are not approved by the Office of the Attorney General within 180 days of the date of the letter granting the approval of the guarantee, the commissioner will consider the application withdrawn, and the district must reapply for a guarantee.

(10) Districts may not represent the bonds as guaranteed for the purposes of pricing or marketing the bonds before the date of the letter granting approval of the guarantee.

(e) Application for the guarantee.

(1) Application process. Districts must apply to the commissioner of education for the guarantee or the credit enhancement of eligible bonds. The district must submit, in a form specified by the commissioner, the information required under the TEC, §45.055(b), and this section and any additional information the commissioner may require. The application and all additional information required by the commissioner must be received before the application will be processed.

(A) The application fee is $2,300.

(B) The fee is due at the time the application for the guarantee or the credit enhancement is submitted. An application will not be processed until the fee has been received in accordance with the process prescribed by the commissioner for remitting the fee on the application form.

(C) The fee will not be refunded to a district that:

(i) is not approved for the guarantee or the credit enhancement; or

(ii) does not sell its bonds before the expiration of its approval for the guarantee or the credit enhancement.

(D) The fee may be transferred to a subsequent application for the guarantee or the credit enhancement by the district if the district withdraws its application and submits the subsequent application before the expiration of its approval for the guarantee or the credit enhancement.

(2) Initial and final approval provisions.

(A) If, during the monthly estimation of PSF capacity described in subsection (d)(4) of this section, the commissioner determines that the available capacity of the PSF is 10% or less, the commissioner may require an applicant school district to obtain final approval for the guarantee as described in paragraph (4) of this subsection.

(B) If the commissioner has not made such a determination:

(i) the commissioner will consider the initial approval described in paragraph (3) of this subsection as both the initial and final approval; and

(ii) an applicant school district that has received notification of initial approval for the guarantee, as described in paragraph (3) of this subsection, may consider that notification as notification of initial and final approval for the guarantee and may complete the sale of the applicable bonds.

(3) Initial approval.

(A) Under the TEC, §45.056, the commissioner will investigate the applicant school district's accreditation status and financial status. A district must be accredited and financially sound to be eligible for initial approval by the commissioner. The commissioner's review will include the following:

(i) the purpose of the bond issue;

(ii) the district's accreditation status as defined by §97.1055 of this title in accordance with the following:

(I) if the district's accreditation status is Accredited, the district will be eligible for consideration for the guarantee;

(II) if the district's accreditation status is Accredited-Warned or Accredited-Probation, the commissioner will investigate the underlying reason for the accreditation rating to determine whether the accreditation rating is related to the district's financial soundness. If the accreditation rating is related to the district's financial soundness, the district will not be eligible for consideration for the guarantee; or

(III) if the district's accreditation status is Not Accredited-Revoked, the district will not be eligible for consideration for the guarantee;

(iii) the district's compliance with statutes and rules of the TEA; and

(iv) the district's financial status and stability, regardless of the district's accreditation rating, including approval of the bonds by the Office of the Attorney General under the provisions of the TEC, §45.0031 and §45.005.

(B) The commissioner will grant or deny initial approval for the guarantee based on the review described in subparagraph (A) of this paragraph and will provide an applicant district whose application has received initial approval for the guarantee written notice of initial approval.

(4) Final approval. The provisions of this paragraph apply only as described in paragraph (2) of this subsection. A district must receive final approval before completing the sale of the bonds for which the district has received notification of initial approval.

(A) A district that has received initial approval must provide a written notice to the TEA two working days before issuing a preliminary official statement (POS) for the bonds that are eligible for the guarantee or two business days before soliciting investment offers, if the bonds will be privately placed without the use of a POS.

(i) The district must receive written confirmation from the TEA that the capacity continues to be available before proceeding with the public or private offer to sell bonds.

(ii) The TEA will provide this notification within one business day of receiving the notice of the POS or notice of other solicitation offers to sell the bonds.

(B) A district that received confirmation from the TEA in accordance with subparagraph (A) of this paragraph must provide written notice to the TEA of the placement of an agenda item on a meeting of the school board of trustees to approve the bond sale no later than two business days before the meeting. If the bond sale is completed pursuant to a delegation by the board to a pricing officer or committee, notice must be given to the TEA no later than two business days before the execution of a bond purchase agreement by such pricing officer or committee.

(i) The district must receive written confirmation from the TEA that the capacity continues to be available for the bond sale before the approval of the sale by the school board of trustees or by the pricing officer or committee.

(ii) The TEA will provide this notification within one business day before the date that the district expects to complete the sale by official action of the board or of a pricing officer or committee.

(C) The TEA will process requests for final approval from districts that have received initial approval on a first come, first served basis. Requests for final approval must be received before the expiration of the initial approval.

(D) A district may provide written notification as required by this paragraph by facsimile transmission or by electronic mail in a manner prescribed by the commissioner.

(f) Limitations on access to the guarantee.

(1) The following limitations apply to bonds for which the election authorizing the issuance of bonds was called after July 15, 2004.

(2) The commissioner will limit approval of the guarantee to a district that has, at the time of the application for the guarantee, less than the amount of annual debt service per ADA that represents the 90th percentile of annual debt service per ADA for all districts, as determined by the commissioner annually, or less than the amount of total debt service per ADA that represents the 90th percentile of total debt service per ADA for all districts, as determined by the commissioner annually. The limitation will not apply to school districts that have enrollment growth, as defined in subsection (b)(7) of this section, of at least 25%, based on PEIMS data on enrollment available at the time of application. The annual debt service amount is the amount defined by subsection (b)(1) of this section. The total debt service amount is the amount defined by subsection (b)(12) of this section.

(3) The eligibility of bonds to receive the guarantee is limited to those new money, refunding, and combination issues as defined in subsection (b)(9), (11), and (6), respectively, of this section.

(g) Financial exigency. A school district that declares a financial exigency must designate the fiscal year to which the exigency applies. A state of financial exigency expires at the end of that fiscal year unless renewed or may be terminated by action of the board of trustees at any time before the end of the fiscal year.

(1) Declaration for current fiscal year.

(A) Application for guarantee of new money issue. The commissioner will deny approval of an application for the guarantee of a new money issue if the applicant school district has declared a state of financial exigency for the district's current fiscal year. The denial of approval will be in effect for the duration of the applicable fiscal year unless the district can demonstrate financial stability.

(B) Approval granted before declaration. If in a given district's fiscal year the commissioner grants approval for the guarantee of a new money issue and the school district subsequently declares a state of financial exigency for that same fiscal year, the district must immediately notify the commissioner and may not offer the bonds for sale unless the commissioner determines that the district may proceed.

(C) Application for guarantee of refunding issue. The commissioner will consider an application for the guarantee of a refunding issue that meets all applicable requirements specified in this section even if the applicant school district has declared a state of financial exigency for the district's current fiscal year. In addition to fulfilling all applicable requirements specified in this section, the applicant school district must also describe, in its application, the reason financial exigency was declared and how the refunding issue will support the district's financial recovery plan.

(2) Declaration in a previous fiscal year. An applicant school district that declared a state of financial exigency in a previous district fiscal year but that has not declared such a state for the district's current fiscal year will not be considered to be in a state of financial exigency for the purposes of this section.

(h) Allocation of specific holdings. If necessary to successfully operate the BGP, the commissioner may allocate specific holdings of the PSF to specific bond issues guaranteed under this section. This allocation will not prejudice the right of the SBOE to dispose of the holdings according to law and requirements applicable to the fund; however, the SBOE will ensure that holdings of the PSF are available for a substitute allocation sufficient to meet the purposes of the initial allocation. This allocation will not affect any rights of the bond holders under law.

(i) Defeasance. The guarantee will be completely removed when bonds guaranteed by the BGP are defeased, and such a provision must be specifically stated in the bond resolution. If bonds guaranteed by the BGP are defeased, the district must notify the commissioner in writing within ten calendar days of the action.

(j) Bonds issued before August 15, 1993. For bonds issued before August 15, 1993, a school district seeking the guarantee of eligible bonds must certify that, on the date of issuance of any bond, no funds received by the district from the Available School Fund (ASF) are reasonably expected to be used directly or indirectly to pay the principal or interest on, or the tender or retirement price of, any bond of the political subdivision or to fund a reserve or placement fund for any such bond.

(k) Bonds guaranteed before December 1, 1993. For bonds guaranteed before December 1, 1993, if a school district cannot pay the maturing or matured principal or interest on a guaranteed bond, the commissioner will cause the amount needed to pay the principal or interest to be transferred to the district's paying agent solely from the PSF and not from the ASF. The commissioner also will direct the comptroller of public accounts to withhold the amount paid, plus interest, from the first state money payable to the district, excluding payments from the ASF.

(l) Bonds issued after August 15, 1993, and guaranteed on or after December 1, 1993. If a school district cannot pay the maturing or matured principal or interest on a guaranteed bond, the commissioner will cause the amount needed to pay the principal or interest to be transferred to the district's paying agent from the PSF. The commissioner also will direct the comptroller of public accounts to withhold the amount paid, plus interest, from the first state money payable to the district, regardless of source, including the ASF.

(m) Payments. For purposes of the provisions of the TEC, Chapter 45, Subchapter C, matured principal and interest payments are limited to amounts due on guaranteed bonds at scheduled maturity, at scheduled interest payment dates, and at dates when bonds are subject to mandatory redemption, including extraordinary mandatory redemption, in accordance with their terms. All such payment dates, including mandatory redemption dates, must be specified in the order or other document pursuant to which the bonds initially are issued. Without limiting the provisions of this subsection, payments attributable to an optional redemption or a right granted to a bondholder to demand payment upon a tender of such bonds in accordance with the terms of the bonds do not constitute matured principal and interest payments.

(n) Guarantee restrictions. The guarantee provided for eligible bonds in accordance with the provisions of the TEC, Chapter 45, Subchapter C, is restricted to matured bond principal and interest. The guarantee does not extend to any obligation of a district under any agreement with a third party relating to bonds that is defined or described in state law as a "bond enhancement agreement" or a "credit agreement," unless the right to payment of such third party is directly as a result of such third party being a bondholder.

(o) Notice of default. A school district that has determined that it is or will be unable to pay maturing or matured principal or interest on a guaranteed bond must immediately, but not later than the fifth business day before maturity date, notify the commissioner.

(p) Payment from PSF.

(1) Immediately after the commissioner receives the notice described in subsection (o) of this section, the commissioner will instruct the comptroller to transfer from the appropriate account in the PSF to the district's paying agent the amount necessary to pay the maturing or matured principal or interest.

(2) Immediately after receipt of the funds for payment of the principal or interest, the paying agent must pay the amount due and forward the canceled bond or coupon to the comptroller. The comptroller will hold the canceled bond or coupon on behalf of the PSF.

(3) Following full reimbursement to the PSF with interest, the comptroller will further cancel the bond or coupon and forward it to the school district for which payment was made. Interest will be charged at the rate determined under the Texas Government Code, §2251.025(b). Interest will accrue as specified in the Texas Government Code, §2251.025(a) and (c).

(q) Bonds not accelerated on default. If a school district fails to pay principal or interest on a guaranteed bond when it matures, other amounts not yet mature are not accelerated and do not become due by virtue of the school district's default.

(r) Reimbursement of PSF. If payment from the PSF is made on behalf of a school district, the school district must reimburse the amount of the payment, plus interest, in accordance with the requirements of the TEC, §45.061.

(s) Repeated failure to pay. If a total of two or more payments are made under the BGP or the credit enhancement program authorized under §61.1038 of this title on the bonds of a school district, the commissioner will take action in accordance with the provisions of the TEC, §45.062.

Chapter 53

Subchapter AA

§53.1001: Board of Directors

(a) Term of office.

(1) A member of a regional education service center (RESC) board of directors shall be elected for a three-year term. The term of office shall begin June 1.

(2) If a vacancy occurs due to death or resignation of a member of an RESC board of directors, a 30- day period shall elapse, after notice has been given to the board chair, before the vacancy is filled.

(3) At the beginning of the 30-day period, notice of any vacancy shall be given to the president of the board of trustees and the superintendent of each school district in the education service center region and shall be posted in appropriate locations.

(4) A vacancy for the unexpired term of a member of an RESC board of directors shall be filled by appointment by the remaining board members.

(b) Election procedures.

(1) A member of an RESC board of directors must be a United States citizen, at least 18 years of age, and a resident of that education service center region. He or she may not be engaged professionally in education or be a member of a board of any educational agency or institution. The eligibility of an RESC board member under this subsection is determined by the requirements specified in this subsection as they existed on the date the RESC board member was elected or appointed to office.

(2) A member of an RESC board of directors shall be elected by the boards of trustees of the school districts in that education service center region.

(3) Any eligible person wishing to seek election to an RESC board of directors shall file at the headquarters of that RESC in person or by certified mail between February 1 and February 20. No filing fee shall be required. Each RESC board of directors shall adopt policies concerning filing procedures.

(4) By February 1, notice of the time and place for filing shall be posted in appropriate locations and submitted to appropriate newspapers in the education service center region for publication and to the superintendent of each school district in the education service center region.

(5) A ballot shall be developed and submitted to the board of trustees of each school district in the education service center region by March 1. Placement on the ballot shall be determined by drawing. Each member of the board of trustees of each school district in the education service center region shall have one vote for each vacancy on the RESC board of directors. Completed ballots shall be returned to the chair of the RESC board of directors by April 5. The RESC board of directors shall canvass the ballots at its next regularly scheduled or special meeting, but not later than May 31, and determine the winner by a plurality of the votes cast. In the event of a tie, the names of the candidates who have tied shall be resubmitted to the board of trustees of each school district in the education service center region.

(6) The provisions described in subsection (b)(2) and (5) of this section do not apply if all positions in the election are uncontested. In the event of an uncontested election, the RESC board of directors may determine that no election will be held. The RESC board of directors must make this determination prior to March 1. If, due to an uncontested election, the RESC board of directors determines that an election should not be held, the RESC board shall declare the unopposed candidates elected to office. The RESC executive director shall notify the commissioner of education of the results of an election, whether contested or uncontested.

Comments

Source Note: The provisions of this §53.1001 adopted to be effective September 1, 1998, 23 TexReg 5964; amended to be effective December 26, 1999, 24 TexReg 11324

§53.1002: Charter School Representation on Board of Directors

(a) Charter school member. Notwithstanding the provisions of §53.1001 of this title (relating to Board of Directors), where a regional education service center (RESC) has at least one open-enrollment charter school, as defined by §100.1011(3) of this title (relating to Definitions), approved to operate within its boundaries on or after June 1, the commissioner of education shall appoint a representative of the open-enrollment charter schools in the region to serve as a non-voting member of the board of directors of that RESC as provided by this section.

(b) Term of office.

(1) A charter school member of an RESC board of directors shall be appointed for a one-year term. The term of office shall begin June 1, and may be extended for up to three years by the commissioner.

(2) If a vacancy occurs due to death or resignation of a charter school member of an RESC board of directors, a 30-day period shall elapse, after notice has been given to the board chair, before the vacancy is filled.

(3) At the beginning of the 30-day period, notice of any vacancy shall be given to the president of the governing body and the chief executive officer of each open-enrollment charter school in the education service center region and shall be posted in appropriate locations.

(4) A vacancy for the unexpired term of a charter school member of an RESC board of directors shall be filled by appointment by the commissioner of education.

(c) Appointment process.

(1) A charter school member of an RESC board of directors must be a United States citizen and a resident of the State of Texas, and must be at least 18 years of age. A person may be appointed to serve as a charter school member of more than one RESC board of directors.

(2) Any eligible person wishing to seek appointment as a charter school member of an RESC board of directors shall file an application between February 1 and February 20. The application shall be in the form of a letter seeking appointment to a specific RESC board of directors. The letter must:

(A) include a description of the applicant's qualifications to serve as a charter member of the RESC board of directors;

(B) enclose letters of support signed by representatives from at least one open-enrollment charter school in the education service center region; and

(C) supply contact information for the persons signing the letters of support.

(3) The application for appointment as a charter school member of an RESC board of directors may be filed by mail if sent by certified United States mail, return receipt requested, or by an overnight courier service. The envelope must be addressed to the Charter School Division, Texas Education Agency, 1701 N. Congress Avenue, Austin, Texas 78701-1494.

(4) Not later than May 31, the commissioner of education shall notify the board of directors of each qualifying RESC of the commissioner's appointee to serve as the charter school member of that RESC board of directors effective June 1.

(d) No applicant appointed. If the commissioner does not select a representative from among the applicants under subsection (c) of this section, or if no applicant applies for such appointment, then there shall be a vacancy which shall be filled by appointment by the commissioner of education.

Comments

Source Note: The provisions of this §53.1002 adopted to be effective July 8, 2002, 27 TexReg 6025; amended to be effective October 23, 2003, 28 TexReg 9074

Chapter 61

Subchapter A

§61.1: Continuing Education for School Board Members

(a) Under the Texas Education Code, §11.159, the State Board of Education (SBOE) shall adopt a framework for governance leadership to be used in structuring continuing education for school board members. Copies of the framework shall be sent annually to the president of each board of trustees to be distributed to all current board members and the superintendent.

(b) The continuing education required under the Texas Education Code, §11.159, applies to each member of an independent school district board of trustees. The continuing education requirement consists of orientation sessions, an annual team building session with the local board and the superintendent, and specified hours of continuing education based on identified needs. The superintendent's participation in team building sessions as part of the continuing education for board members shall represent one component of the superintendent's ongoing professional development.

(1) Each school board member of an independent school district shall receive a local district orientation and an orientation to the Texas Education Code.

(A) Each new board member shall participate in a local district orientation session within 60 days before or after the board member's election or appointment. The purpose of the local orientation is to familiarize new board members with local board policies and procedures and district goals and priorities.

(B) A sitting board member shall receive a basic orientation to the Texas Education Code and relevant legal obligations. The orientation shall have special but not exclusive emphasis on statutory provisions related to governing Texas school districts. The orientation shall be delivered by regional education service centers (ESCs) and shall be three hours in length. Topics shall include, but not be limited to, Texas Education Code, Chapter 26 (Parental Rights and Responsibilities), and Texas Education Code, §28.004 (Local School Health Education Advisory Council and Health Education Instruction).

(C) A newly elected board member of an independent school district shall receive the orientation to the Texas Education Code within the first year of service. The orientation shall be delivered by ESCs and shall be three hours in length.

(D) After each session of the Texas Legislature, including each regular session and called session related to education, each school board member shall receive an update from an ESC or any registered provider to the basic orientation to the Texas Education Code. The update session shall be of sufficient length to familiarize board members with major changes in the code and other relevant legal developments related to school governance. A board member who has attended an ESC basic orientation session that incorporates the most recent legislative changes is not required to attend an update.

(2) The entire board, including all board members, shall annually participate with their superintendent in a team building session facilitated by the ESC or any registered provider. The team building session shall be of a length deemed appropriate by the board, but generally at least three hours. The purpose of the team building session is to enhance the effectiveness of the board-superintendent team and to assess the continuing education needs of the board-superintendent team. The assessment of needs shall be based on the framework for governance leadership and shall be used to plan continuing education activities for the year for the governance leadership team.

(3) In addition to the continuing education requirements in paragraph (1) and paragraph (2) of this subsection, each board member shall receive additional continuing education on an annual basis in fulfillment of assessed needs and based on the framework for governance leadership. The continuing education sessions may be provided by ESCs or other registered providers.

(A) In a board member's first year of service, he or she shall receive at least ten hours of continuing education in fulfillment of assessed needs. Up to five of the required ten hours may be fulfilled through online instruction, provided that the training is designed and offered by a registered provider, incorporates interactive activities that assess learning and provide feedback to the learner, and offers an opportunity for interaction with the instructor. The registered provider shall determine the clock hours of training credit to be awarded for successful completion of an online course and shall provide verification of completion as required in subsection (g) of this section.

(B) Following a board member's first year of service, he or she shall receive at least five hours of continuing education annually in fulfillment of assessed needs. A board member may fulfill the five hours of continuing education through online instruction, provided that the training is designed and offered by a registered provider, incorporates interactive activities that assess learning and provide feedback to the learner, and offers an opportunity for interaction with the instructor. The registered provider shall determine the clock hours of training credit to be awarded for successful completion of an online course and shall provide verification of completion as required in subsection (g) of this section.

(C) A board president shall receive continuing education related to leadership duties of a board president as some portion of the annual requirement.

(c) No continuing education shall take place during a school board meeting unless that meeting is called expressly for the delivery of board member continuing education. However, continuing education may take place prior to or after a legally called board meeting in accordance with the provisions of the Government Code, §551.001(4).

(d) An ESC board member continuing education program shall be open to any interested person, including a current or prospective board member.

(e) A registration fee shall be determined by ESCs to cover the costs of providing continuing education programs offered by ESCs.

(f) A private or professional organization, school district, government agency, college/university, or private consultant shall register with the Texas Education Agency (TEA) to provide the board member continuing education required in subsections (b)(1)(D), (b)(2), and (b)(3) of this section.

(1) The registration process shall include documentation of the provider's training and/or expertise in the activities and areas covered in the framework for governance leadership.

(2) An updated registration shall be required of a provider of continuing education every three years.

(3) A school district that provides continuing education exclusively for its own board members is not required to register.

(g) The provider of continuing education shall provide verification of completion of board member continuing education to the individual participant and to the participant's school district. The verification must include the provider's registration number.

(h) At least 50% of the continuing education required in subsection (b)(3) of this section shall be designed and delivered by persons not employed or affiliated with the board member's local school district. No more than one hour of the required continuing education that is delivered by the local district may utilize self-instructional materials.

(i) To the extent possible, the entire board shall participate in continuing education programs together.

(j) Annually, at the meeting at which the call for election of board members is normally scheduled, the current president of each local board of trustees shall announce the name of each board member who has completed the required continuing education, who has exceeded the required hours of continuing education, and who is deficient in the required continuing education. The president shall cause the minutes of the local board to reflect the information and shall make this information available to the local media.

(k) Annually, SBOE shall commend those local board-superintendent teams that receive at least eight hours of the continuing education specified in subsection (b)(2) and subsection (b)(3) of this section as an entire board-superintendent team.

Comments

Source Note: The provisions of this §61.1 adopted to be effective March 1, 1996, 21 TexReg 875; amended to be effective May 7, 2003, 28 TexReg 3718

§61.2: Nomination of Trustees for Military Reservation School Districts

(a) In nominating trustee candidates for military reservation school districts, the commanding officer of the military reservation shall do the following:

(1) submit a list to the commissioner of education with at least three nominees for each vacancy. A majority of the trustees appointed to the school board must be civilian, and all may be civilian. When two or more vacancies occur simultaneously, a list of three different nominees for each vacancy shall be submitted. In cases when the commanding officer wishes to reappoint existing board members, a list of three nominees for each vacancy must still be submitted. Nominees not selected for existing vacancies may be resubmitted as candidates for subsequent vacancies. The commanding officer may rank in the order of preference the nominees submitted for each vacancy;

(2) submit a statement that verifies that each of the nominees is qualified under the general school laws of Texas and lives or is employed on the military reservation;

(3) submit a copy of a current biographical vita (resume) for each of the nominees, with a signature by the nominee attesting truth to the contents of the biographical vita;

(4) submit a statement from each of the nominees which expresses the nominee's willingness to accept appointment and to serve in such a capacity with full adherence to the state established standards on the duties and responsibilities of school board members;

(5) submit a signed statement which expresses recognition of the powers of the board of trustees to govern and manage the operations of the military reservation school districts;

(6) submit a signed statement regarding the governance and management operations of the district which expresses recognition that the role of the commanding officer of the military reservation is limited only to the duty defined by statute in the process for appointing members of the board of trustees; and

(7) submit a statement that the membership composition of the entire board of trustees is in full compliance with the provisions of the Texas Education Code, §11.352.

(b) A member of the board of trustees, who during the period of the term of office experiences a change of status which disqualifies such member for appointment under the provisions of the Texas Education Code, shall become ineligible to serve at the time of the change of status.

Comments

Source Note: The provisions of this §61.2 adopted to be effective September 1, 1996, 21 TexReg 3705.

Subchapter AA

§61.1011: Public Education Grant Supplemental Payments

(a) Definitions. The following phrases, when used in the implementation of Texas Education Code, §29.203(b), or in this section, shall have the following meaning, unless the context clearly indicates otherwise.

(1) Cost to the district of providing services--The Foundation School Program cost per student, including the equalized state and local share of the guaranteed yield allotment at the district's tax effort for the applicable school year, as limited by Texas Education Code, §42.253(e).

(2) Net additional students--The number of students accepted by a district under the public education grant program minus the number of that district's resident students who are educated in other districts under the public education grant program. For purposes of this section, the number of net additional students cannot be less than zero.

(b) Computation methodology. A school district with property wealth per student greater than the guaranteed wealth level but less than the equalized wealth level is entitled to a supplemental payment for the number of net additional students educated under the public education grant program. The amount of the supplemental payment shall be computed as the guaranteed level multiplied by the district enrichment and facilities tax rate as specified in Texas Education Code, §42.302(a), as limited by Texas Education Code, §42.253(e), multiplied by the number of net additional students.

(c) Payment method. The supplemental payment shall be made to the district in a lump sum in the subsequent school year.

Comments

Source Note: The provisions of this §61.1011 adopted to be effective September 1, 1998, 23 TexReg 7779

§61.1012: Contracts and Tuition for Education Outside District

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Home district--District of residence of a transferring student.

(2) Receiving district--District to which a student is transferring for the purpose of obtaining an education.

(3) Tuition--Amount charged to the home district by the receiving district to educate the transfer student.

(b) Tuition charge for transfer students. For the purposes of adjusting the property value of the home district as authorized by Texas Education Code (TEC), §42.106, the amount of tuition that may be attributed to a home district for a transfer student in payment for that student's education may not exceed an amount per enrollee calculated for each receiving district. The calculated limit applies only to tuition paid to a receiving district for the education of a student at a grade level not offered in the home district. Tuition may be set at a rate higher than the calculated limit if both districts enter a written agreement, but the calculated tuition limit will be used in the calculation of adjusted property value for the home district. The calculation will use the most currently available data in an ongoing school year to determine the limit that applies to the subsequent school year. For purposes of this section, the number of students enrolled in a district will be appropriately adjusted to account for students ineligible for the Foundation School Program funding and those eligible for half-day attendance.

(1) Excess maintenance and operations (M&O) revenue per enrollee. A district's excess M&O revenue per enrollee is defined as the sum of state aid in accordance with TEC, Chapter 42, Subchapters B, C, and F, plus the state aid generated in accordance with TEC, §42.2516(b), and any reductions to state aid made in accordance with TEC, §42.2516(g) and §42.2516(h). These state aid amounts are added to M&O tax collections, and the sum is divided by enrollment to determine the amount of total state and local revenue per enrolled student. The amount of state aid gained by the addition of one transfer student is subtracted from the total amount of state and local revenue per student to determine the revenue shortfall created by the addition of one student. M&O taxes exclude the local share of any lease purchases funded in the Instructional Facilities Allotment (IFA) as referenced in TEC, Chapter 46, Subchapter A.

(A) The data for this calculation are derived from the Public Education Information Management System (PEIMS) fall data submission (budgeted M&O tax collections and student enrollment) and the Legislative Payment Estimate (LPE) data (Foundation School Program (FSP) student counts and property value).

(B) The state aid gained by the receiving district from the addition of one transfer student is computed by the commissioner of education. The calculation assumes that the transfer student participates in the special programs at the average rate of other students in the receiving district.

(2) Excess debt revenue per enrollee. A district's excess debt revenue per enrollee is defined as interest and sinking fund (I&S) taxes budgeted to be collected that surpass the taxes equalized by the IFA pursuant to TEC, Chapter 46, Subchapter A, and the Existing Debt Allotment (EDA) pursuant to TEC, Chapter 46, Subchapter B, divided by enrollment.

(A) The local share of the IFA for bonds is subtracted from debt taxes budgeted to be collected as reported through PEIMS. The local share of the EDA is subtracted from debt taxes budgeted to be collected as reported through PEIMS only if the district receives a payment for the state share of EDA.

(B) The estimate of enrollment includes transfer students.

(3) Base tuition limit. The base tuition limit per transfer student for the receiving district is a percentage of its state and local entitlement per enrollee from both tiers of the FSP. The entitlement includes the Texas Education Agency's estimate for the current year for the total of allotments in accordance with TEC, Chapter 42, Subchapters B and C, plus the state and local shares of the guaranteed yield allotment (GYA) in accordance with TEC, Subchapter F, which includes additional state aid for tax reduction in accordance with TEC, §42.2516(b).

(A) For this purpose, the GYA is calculated as the product of the guaranteed level (GL) multiplied by weighted average daily attendance (WADA), then multiplied by district tax rate (DTR), and finally multiplied by 100 for tax effort that is described in TEC, §42.302(a-1) and (a-3), as applicable.

(B) Beginning with the 2008-2009 school year, the GL paid in accordance with TEC, §42.302(a-1)(2), is applicable to the first $.06 by which the district's M&O tax rate exceeds the rate equal to the district's 2005 adopted tax rate and the state compression rate, as determined under TEC, §42.2516(a).

(C) For the 2006-2007 and 2007-2008 school years, the GL paid in accordance with TEC, §42.302(a-1)(2), is applicable to the first $.04 by which the district's M&O tax rate exceeds the rate equal to the district's 2005 adopted tax rate and the state compression rate, as determined under TEC, §42.2516(a). This subparagraph expires September 1, 2008.

(4) Calculated tuition limit. The calculated tuition limit is the sum of the excess M&O revenue per enrollee, the excess debt revenue per enrollee, and the base tuition limit, as calculated in subsections (b)(1), (b)(2), and (b)(3) of this section, respectively.

(5) Notification and appeal process. In the spring of each school year, the commissioner will provide each district with its calculated tuition limit and a worksheet with a description of the derivation process. A district may appeal to the commissioner if it can provide evidence that the use of projected student counts from the LPE in making the calculation is so inaccurate as to result in an inappropriately low authorized tuition charge and undue financial hardship. A district that used significant nontax sources to make any of its debt service payments during the base year for the computation may appeal to the commissioner to use projections of its tax collections for the year for which the tuition limit will apply. The commissioner's decision regarding an appeal is final.

(c) Maximum tuition amount in property value adjustment. The maximum tuition amount to be used in the adjustment to property value is limited to the amount per student computed in subsection (b)(4) of this section.

(1) The adjusted property values will be applied to the calculation of state aid as described in the following subparagraphs.

(A) Beginning with the 2008-2009 school year and subsequent school years, this adjustment to property values will be made in the calculation of state aid in accordance with TEC, §42.302(a-1)(1). Unadjusted property values will be used to calculate state aid in accordance with TEC, §42.302(a-1)(2) and (a-1)(3).

(B) For the 2006-2007 and the 2007-2008 school years, this adjustment to property values will be made in the calculation of state aid in accordance with TEC, §42.302(a-3)(1). Unadjusted property values will be used to calculate state aid in accordance with TEC, §42.302(a-3)(2) and (a-1)(3). This subparagraph expires September 1, 2008.

(C) The tax rate used to calculate the adjustment to property values will be adjusted to ensure that the property value adjustment provides sufficient state aid to cover the cost of the maximum tuition amount or the actual tuition amount, whichever is lesser.

(2) The adjustment to property values of the home district may not result in an increase of revenue to the home school district that exceeds 10% of the total tuition paid to the receiving district to educate the transfer student(s).

Comments

Source Note: The provisions of this §61.1012 adopted to be effective September 7, 2000, 25 TexReg 8640; amended to be effective March 28, 2004, 29 TexReg 2881; amended to be effective May 4, 2008, 33 TexReg 3410

§61.1015: Property Value Adjustments Due to Taxpayer Protests

(a) A school district is eligible for a property value adjustment if a major taxpayer fails to pay all or a portion of its ad valorem taxes because of a protest regarding the valuation of its property.

(1) A taxpayer is considered "major" if the amount protested contributes 5.0% or more to the tax collections of the school district.

(2) To be eligible for the adjustment, the district must have a Maintenance and Operations (M&O) tax rate that equals or exceeds the M&O tax rate in the prior year.

(b) The commissioner of education shall grant the adjustment at his or her discretion. If granted, the tax base of the eligible district shall be reduced by 100% of the protested value for the purpose of temporarily increasing the state aid payment to the district.

(c) When the protest has been resolved, the district must submit the results of the settlement to the commissioner within 30 days. An appropriate form shall be supplied by the commissioner to be completed by the district documenting the results of the protest and verified by the signature of the chief appraiser.

(d) Recovery of state aid overpayment or collection of insufficient recapture amounts due from the district as a result of the settlement shall be made by means of offsetting adjustments to current or subsequent year state aid or recapture amounts. These amounts must be repaid no later than two years after the year in which the adjustment was initially made.

Comments

Source Note: The provisions of this §61.1015 adopted to be effective December 2, 2001, 26 TexReg 9619

§61.1016: Delivery of Funds per House Bill 1, Rider 82, 2003

(a) General provisions. For the 2003-2004 and 2004-2005 school years, each school district and open- enrollment charter school is entitled to an additional $110 per student in weighted average daily attendance as authorized by the General Appropriations Act, House Bill 1, Rider 82, 78th Texas Legislature, 2003. Only those school districts that are authorized to participate in the full range of Tier 1 allotments under Texas Education Code (TEC), Chapter 42, and open-enrollment charter schools established under TEC, Chapter 12, are eligible to receive this funding. A school district required to take an action under TEC, Chapter 41, is eligible to receive the $110 per student in weighted average daily attendance, subject to the adjustment in subsection (d) of this section.

(b) Calculation. The amount to which each eligible school district or open-enrollment charter school is entitled shall be based on the final weighted average daily attendance of those students actually educated by the entity for the respective school years. An estimate of the weighted average daily attendance shall be used for purposes of the initial calculation.

(c) Payment and reconciliation. Payment of the estimated amount shall be made in conjunction with other regularly scheduled state aid payments from the Foundation School Fund solely as an administrative convenience, and is not considered part of the general state aid calculation under the formulas for state aid in TEC, Chapters 42 or 46. Upon final determination of the amount earned for the 2003-2004 school year, the 2004-2005 amount shall be increased or reduced for any underpayment or overpayment from the preceding school year. Upon final determination of the amount earned for the 2004-2005 school year, and pending any future legislative action that would affect it, the 2005-2006 Foundation School Program entitlement for the school district or open-enrollment charter school shall be increased or reduced for the amount overpaid or underpaid for the 2004-2005 school year.

(d) Adjustment. For districts that are not entitled to state aid from the Foundation School Fund in Tier 1 as computed according to TEC, §42.253(c), the total amount of funding provided under Rider 82 is subject to reduction for the increase in the amount of funding received from the Available School Fund caused by the adoption of amendments to the Texas Constitution, Article VII, §5, at the election held September 13, 2003. The Texas Education Agency shall provide a computation of the additional revenue derived from the constitutional amendment to each affected district. The amount of the reduction shall be equal to the difference between the payment from the Available School Fund before and after the effects of the constitutional amendment, less any increase in recapture payment under TEC, §41.002(e), that may arise as a result of the increase in revenue from the Available School Fund. In no case shall the adjustment result in a payment for Rider 82 purposes higher than $110 per student in weighted average daily attendance.

Comments

Source Note: The provisions of this §61.1016 adopted to be effective February 22, 2004, 29 TexReg 1361

§61.1018: Payment of Health Care Supplementation

(a) Purpose. In accordance with the Texas Education Code (TEC), Chapter 22, Subchapter D, each year the Texas Education Agency (TEA) shall distribute staff salary allotment funds to eligible entities for the purpose of making payments of health care supplementation to eligible employees, as specified by the provisions delineated in this section.

(b) Definitions. The following words and terms, when used in this section, shall have the following meaning, unless the context clearly indicates otherwise.

(1) Eligible entity--An eligible entity is defined as:

(A) a school district or other educational district whose employees are members of the Teacher Retirement System of Texas (TRS);

(B) a participating open-enrollment charter school; or

(C) a regional education service center.

(2) Full-time employee--An individual is employed as a full-time employee if the individual:

(A) is a participating member of the TRS;

(B) is employed by an eligible entity;

(C) is not a retiree covered under the Texas Public School Retired Employees Group Benefits Act established under the Texas Insurance Code, Chapter 1575;

(D) is not a minimum-salary-schedule employee; and

(E) works for an eligible entity or any combination of eligible entities for 30 or more hours each week.

(3) Minimum-salary-schedule employee--A classroom teacher, full-time librarian, full-time counselor, or full-time nurse subject to the minimum salary schedule under the TEC, §21.402.

(4) Part-time employee--An individual is employed as a part-time employee if the individual:

(A) is a participating member of the TRS;

(B) is employed by an eligible entity;

(C) is not a retiree covered under the Texas Public School Retired Employees Group Benefits Act established under the Texas Insurance Code, Chapter 1575;

(D) is not a minimum-salary-schedule employee; and

(E) works for an eligible entity or any combination of eligible entities for fewer than 30 hours each week.

(5) Staff salary allotment--An allotment made up of the health care supplementation funding an eligible entity is due under the TEC, Chapter 22, Subchapter D, based on the entity's number of full-time and part-time employees.

(c) Reporting. For each designated report month, each eligible entity must report to the TEA the number of full-time and part-time employees eligible to receive health care supplementation, as determined by the eligible entity in accordance with requirements established by the TEA in this section. The TEA may dispute, seek verification of, or conduct an investigation regarding the reported number of employees and staff at any time after receiving the report.

(d) Eligibility. For the purposes of this section, an individual is eligible to receive health care supplementation if the individual:

(1) is employed by an eligible entity;

(2) is a full-time employee, as defined in subsection (b)(2) of this section, or a part-time employee, as defined in subsection (b)(4) of this section;

(3) is not a minimum-salary-schedule employee, as defined in subsection (b)(3) of this section; and

(4) has provided written election of whether to designate a portion of the individual's compensation to be used as health care supplementation, in accordance with the TEC, §22.105.

(e) Funding formula. The funds for health care supplementation will comprise the staff salary allotment. Funding for the staff salary allotment is based on the number of employees who are eligible and the full- or part-time status of those employees. The staff salary allotment will be paid to the eligible entity as part of its regularly scheduled payments from the Foundation School Program (FSP). If the eligible entity is not scheduled or eligible to receive FSP payments, the staff salary allotment will be paid to the entity in a separate payment.

(1) During the school year, the staff salary allotment will be based on the sum of:

(A) an amount equal to the estimated number of full-time employees multiplied by $500; and

(B) an amount equal to the estimated number of part-time employees multiplied by $250.

(2) The final staff salary allotment due to an eligible entity for a school year will be determined by the reports of eligible employees submitted to the division responsible for state funding during the settle-up processes as described in subsection (f) of this section.

(3) The formula for determining the final staff salary allotment is as follows.

(A) The data submitted by an eligible entity to the division responsible for state funding is used to calculate the entity's staff salary allotment.

(B) Each month, the count of full-time employees is multiplied by $500/12.

(C) Each month, the count of part-time employees is multiplied by $250/12.

(D) The final staff salary allotment is determined by summing the monthly amounts for the full-time and part-time staff for the state fiscal year beginning September 1 and ending August 31.

(f) Settle-up. The TEA may make adjustments to previously reported numbers and may make a corresponding increase or decrease in funds that would otherwise be remitted to an eligible entity at any time after receipt of a report. A final determination of the staff salary allotment due to an eligible entity will be based on the reports of eligible employees submitted to the TEA division responsible for state funding.

(1) Near-final settle-up. Eligible entities must submit proposed adjustments to reports of eligible employees for a school year by August 31 of that school year for those adjustments to be reflected in the near-final settle-up reconciliation. Additional amounts owed to an eligible entity for health care supplementation will be added to the staff salary allotment due to the eligible entity in the subsequent school year. Any reductions in payments will be subtracted from the staff salary allotment due to the eligible entity in the subsequent school year until the overpayment has been recovered.

(2) Final settle-up. Eligible entities must submit proposed adjustments to reports of eligible employees for a school year by March 31 of the following school year for those adjustments to be reflected in the final settle-up reconciliation. Additional amounts owed to an eligible entity for health care supplementation will be added to the staff salary allotment due to the eligible entity in April and subsequent months of the current school year. Any overpayments from a prior year that exceed the amount owed to an eligible entity for health care supplementation by March 31 of the following school year will be subtracted from other FSP payments owed to that eligible entity in April and subsequent months until the full amount of overpayment has been recovered. Any overpayments that cannot be subtracted from the current staff salary allotment or other FSP payments will be due and payable on request from the TEA.

(3) Adjustments to allotment. For a period not to exceed five years after the close of a fiscal year, the TEA may adjust the amount of an eligible entity's staff salary allotment for that year as a result of review, investigation, or audit of the eligible entity's reports of eligible employees and other data related to the staff salary allotment.

Comments

Source Note: The provisions of this §61.1018 adopted to be effective January 31, 2006, 31 TexReg 490; amended to be effective March 5, 2009, 34 TexReg 1584

§61.1019: Additional State Aid for Ad Valorem Tax Credits under the Texas Economic Development Act

(a) General provisions. This section implements the Texas Education Code (TEC), §42.2515 (Additional State Aid for Ad Valorem Tax Credits Under Texas Economic Development Act). In accordance with the TEC, §42.2515, a school district, including a school district that is otherwise ineligible for state aid under the TEC, Chapter 42, is entitled to state aid in an amount equal to the amount of all tax credits applied against ad valorem taxes of the school district in each year that tax credits were applied pursuant to the Texas Tax Code, Chapter 313, also known as the Texas Economic Development Act. School districts eligible to receive additional state aid under the TEC, §42.2515, must apply to the commissioner of education in order to receive additional state aid equal to the qualifying ad valorem tax credits issued under the Texas Tax Code, Chapter 313, Subchapter D, subject to certain annual limitations.

(b) Definitions. The following phrases, words, and terms, when used in this section, will have the following meanings, unless the context clearly indicates otherwise.

(1) Eligible property--A term that has the meaning assigned in the Texas Tax Code, §313.024.

(2) Limitation on appraised value--A term that has the meaning assigned in the Texas Tax Code, Chapter 313. A school district may limit the appraised value on a qualified property for the purposes of ad valorem taxation for a period of eight tax years, beginning with the tax year that follows the applicable two-year qualifying time period. A limitation on appraised value applies only to the maintenance and operations portion of a school district's ad valorem tax rate. For each tax year in which the limitation on appraised value is in effect, the appraised value of the qualified property that is described in the written agreement between the school district and taxpayer for school district maintenance and operations ad valorem tax may not exceed the lesser of the market value of the property or the amount to which the school district has agreed, but the limited amount must be at least the minimum amount of limitation that is set for the applicable school district category in the Texas Tax Code, Chapter 313.

(3) Qualified property--A term that has the meaning assigned in the Texas Tax Code, §313.021(2).

(4) Tax credit--A credit that is made to a taxpayer who has applied for and received a limitation on appraised value under the Texas Tax Code, Chapter 313, from the school district that approved the limitation in an amount equal to the amount of ad valorem taxes paid to that school district that were imposed on the portion of the appraised value of the qualified property that exceeds the amount of the limitation agreed to by the governing body of the school district under the Texas Tax Code, §313.027(a)(2), in each year in the applicable qualifying time period.

(5) Tax year--The calendar year beginning January 1 in which the taxpayer incurred ad valorem taxes on the qualified property for which the taxpayer is entitled to a tax credit toward ad valorem taxes paid in that tax year.

(6) Texas Economic Development Act--The Texas Tax Code, Chapter 313.

(c) Eligibility for additional state aid.

(1) A school district may be eligible for additional state aid under the TEC, §42.2515, only pursuant to the provisions of the TEC, §42.2515, and the Texas Tax Code, Chapter 313.

(2) A school district must file an application on a form prescribed by the commissioner in accordance with the applicable timeline as described in subsection (i) of this section. A separate application must be made for each tax year for which additional state aid is being requested. An application, including the required supporting documentation described in subsections (d)(2) and (d)(3) of this section, as applicable, must be complete in order for the Texas Education Agency (TEA) to process it.

(3) A school district must be in compliance with the reporting requirements set forth in 34 Texas Administrative Code Chapter 9, Subchapter F (relating to Limitation on Appraised Value and Tax Credits on Certain Qualified Property), to be eligible for additional state aid under the TEC, §42.2515.

(d) Procedures for filing request for additional state aid for ad valorem tax credits.

(1) Method of filing. All requests for additional state aid under the TEC, §42.2515, must be filed by mail with the TEA, 1701 North Congress Avenue, Austin, Texas 78701, in accordance with instructions on the application.

(2) Information required for first year of tax credit. A school district's initial request for additional state aid under the TEC, §42.2515, must include:

(A) a completed Request for Additional State Aid for Ad Valorem Tax Credit application form, including the template that comprises a component of the application showing requested and projected additional state aid for each agreement under the Texas Tax Code, Chapter 313;

(B) a copy of the taxpayer's application to the school district for the tax credit, together with all required attachments to the application;

(C) a copy of the school board's resolution or other proof that the school district has approved the taxpayer's application for the tax credit;

(D) a copy of the tax bill sent to the taxpayer (showing the credit) or other proof that the school district has reimbursed the tax credit to the taxpayer; and

(E) confirmation that, as of the date of the tax credit approval, the taxpayer has not relocated its business outside of the school district.

(3) Information required for subsequent years of tax credit. For each year subsequent to the year in which the initial request for the tax credit was approved, the request for additional state aid under the TEC, §42.2515, must include:

(A) a completed Request for Additional State Aid for Ad Valorem Tax Credit application form, including the template that comprises a component of the application showing requested and projected additional state aid for each agreement under the Texas Tax Code, Chapter 313;

(B) a copy of the tax bill sent to the taxpayer (showing the credit) or other proof that the school district has reimbursed the tax credit to the taxpayer; and

(C) confirmation that, as of the date of the tax credit approval, the taxpayer has not relocated its business outside of the school district.

(e) Forms. The division of the TEA responsible for state funding will make available the application form, including the template, required under subsections (d)(2) and (d)(3) of this section.

(f) Limitation of tax credit. In the fourth through the tenth years in which the agreement described in subsection (b)(2) of this section is in effect, the tax credit is limited to 50% of the total maintenance and operations and interest and sinking fund taxes imposed on the qualified property for the tax year for which the credit applies.

(g) Determination of additional state aid. For any tax year for which additional state aid authorized by the TEC, §42.2515, is approved, additional state aid will be limited to the amount of the tax credit due to the taxpayer for a qualified property that is receiving a limitation on appraised value for that year as determined in the Texas Tax Code, §313.104.

(h) Erroneous tax credits and recovery of state aid for erroneous tax credits. If the comptroller of public accounts or the governing body of the school district determines that an entity that received a tax credit was ineligible to have received it or received more credit than the entity should have received, the school district must provide a notification of the facts to the commissioner within 30 days of the official action. If the TEA determines that an entity that received a tax credit was ineligible to have received it or received more credit than the entity should have received, the commissioner will notify the school district within 30 days of the determination. Any overpayment of additional state aid provided to the school district based on issuance of an erroneous tax credit by the school district will be fully recovered by the TEA pursuant to the TEC, §42.258.

(i) Timeline for submission of application requests.

(1) For tax credits earned under the TEC, §42.2515, for taxes that became due and payable on January 31, 2009, or at any time before that date, the school district must submit its application for additional state aid for ad valorem tax credits on or before May 31, 2009.

(2) For tax credits earned under the TEC, §42.2515, for taxes that become due and payable on January 31, 2010, or at any time after that date, the school district must submit its application for additional state aid for ad valorem tax credits on or before May 31 each year for which the tax credit is due.

(j) Payment to the school district. On approval of a school district's application for additional state aid for ad valorem tax credits by the commissioner, the amount of the credit will be applied to the entitlement due to the school district under the Foundation School Program as follows.

(1) State aid payments for tax credits on taxes that become due and payable after January 31, 2009, will be applied to the school district entitlement as prescribed by the TEC, §42.2516(b-2)(1). Payments for this credit will be incorporated into the payments made under the schedule prescribed by the TEC, §42.259.

(2) State aid payments for tax credits on taxes that were due and payable on January 31, 2009, or at any time before that date will be paid on or before August 31, 2009. This paragraph expires on September 1, 2009.

Comments

Source Note: The provisions of this §61.1019 adopted to be effective April 23, 2009, 34 TexReg 2532

Subchapter BB

§61.1021: School Report Cards

(a) The campus report card disseminated by the Texas Education Agency (TEA) under the Texas Education Code, §39.052, shall be termed the "school" report card (SRC).

(b) The intent of the SRC is to inform each student's parents or guardians about the school's performance and characteristics. Where possible, the SRC will present the school information in relation to the district, the state, and a comparable group of schools. The SRC will present the student, staff, financial, and performance information required by statute, as well as any explanations and additional information deemed appropriate to the intent of the report.

(c) The SRC must be disseminated within six weeks after it is received from TEA.

(d) The campus administration may provide the SRC in the same manner it would normally transmit official communications to parents and guardians, such as: including the SRC in a weekly folder sent home with each student, mailing it to the student's residence, providing it at a teacher-parent conference, or enclosing it with the student report card.

(e) The school may not alter the report provided by TEA; however, it may concurrently provide additional information to the parents or guardians that supplements or explains information in the SRC.

Comments

Source Note: The provisions of this §61.1021 adopted to be effective November 28, 1994, 19 TexReg 8979.

§61.1022: Academic Excellence Indicator System Report

(a) The performance report provided by the Texas Education Agency (TEA) under the Texas Education Code, §39.053, shall be termed the Academic Excellence Indicator System (AEIS) report.

(b) The intent of the AEIS report is to inform the public about the educational performance of the district and of each campus in the district in relation to the district, the state, and a comparable group of schools. The AEIS report will present the campus performance information as well as student, staff, and financial information required by statute. It will also include any explanations and additional information deemed appropriate to the intent of the report.

(c) The hearing for public discussion of the AEIS report must be held within 90 days after the report is received from TEA.

(d) The AEIS report must be published within two weeks after the public hearing. It must be published in the same format as it was received from TEA.

(e) The district may not alter the report provided by TEA; however, it may concurrently provide additional information to the public that supplements or explains information in the AEIS report.

(f) The local board of trustees shall disseminate the report by posting it in public places, such as each school office, local businesses, and public libraries.

Comments

Source Note: The provisions of this §61.1022 adopted to be effective November 28, 1994, 19 TexReg 8979.

§61.1025: Public Education Information Management System (PEIMS) Data and Reporting Standards

(a) Data submissions. The Public Education Information Management System (PEIMS) consists of all data submitted by school districts, charter schools, campuses, and other educational organizations and entities to the Texas Education Agency (TEA).

(b) Standards. Data standards, established by the commissioner of education under Texas Education Code (TEC), §42.006, shall be used by school districts and charter schools to submit information required for the legislature and the TEA to perform their legally authorized functions. Data standards shall be published annually in official TEA publications. These publications shall be widely disseminated and include:

(1) descriptions of the data collections and submission requirements;

(2) descriptions of data elements and the codes used to report them;

(3) detailed responsibilities of school districts, education service centers, and the TEA in connection with the data submission processes, including each deadline for submission and resubmission; and

(4) descriptions of the data submission requirements, including submission record layout specifications and data edit specifications.

(c) External review process. The commissioner shall establish a policy advisory group that provides oversight of data collections and reporting standards policies. The policy advisory group membership shall be composed of representatives of school districts, charter schools, education service centers, state government, and educational associations. Subcommittees consisting of technical experts and representatives from user groups may be established by the commissioner to provide timely and impartial reviews of requested changes or additions to TEA data collections and reporting standards. The procedure for adding, deleting, or modifying data elements described in paragraphs (1) - (5) of this subsection provides consistency in updates to the data and reporting standards. The commissioner may approve changes to the data and reporting standards outside this process if necessary to expedite implementation of data collections and reporting.

(1) Prepare proposal. A written proposal is prepared to add, delete, or modify data elements. The proposal provides justification for the data collection, determination of data availability, and definitions of critical attributes and required analyses of requested data elements.

(2) Conduct research. Survey a sampling of districts to update and refine cost estimates, assess district burden, and determine any benefits from a pilot of the data collection.

(3) Solicit feedback. The subcommittee(s) established by the commissioner and other appropriate TEA committees review proposals and make formal, written recommendations to the policy advisory group. The policy advisory group reviews proposals and committee recommendations and makes recommendations to the commissioner for approval, modification, or rejection of the proposed changes.

(4) Collect data. Data standards and software made available to districts online are updated annually, implementing changes to data submissions requirements.

(5) Reevaluate data requirements. All data elements are reviewed by the commissioner-appointed subcommittee(s) and policy advisory group on a three-year cycle as part of an ongoing sunset process. The sunset process is designed to ensure that data standards meet the requirements specified in TEC, §42.006(c)(1) - (3) and (d).

(d) Internal review process. The commissioner shall establish and determine the membership of a TEA committee that provides oversight of the TEA data collections and reporting policies. The commissioner shall also establish a TEA subcommittee that reviews data collections and reporting standards according to the requirements specified in TEC, §42.006(c)(1) - (3) and (d). The subcommittee is also responsible for maintaining data collections at the TEA. The procedure for adding, deleting, or modifying data elements described in subsection (c)(1) - (5) of this section provides consistency in updates to data and reporting standards. The commissioner may approve changes to data and reporting standards outside this process if necessary to expedite implementation.

Comments

Source Note: The provisions of this §61.1025 adopted to be effective May 30, 2001, 26 TexReg 3744; amended to be effective July 14, 2005, 30 TexReg 3995

§61.1027: Report on the Number of Disadvantaged Students

(a) Student eligibility. School districts and open-enrollment charter schools that do not participate in the national school lunch program may derive an eligible student count by an alternative method for the purpose of receiving the compensatory education allotment pursuant to Texas Education Code, §42.152(b).

(1) To be considered educationally disadvantaged in order to be counted for compensatory education funding using the alternative method, a student must meet the income requirements for eligibility under the national school lunch program.

(2) The total number of eligible students is the average of the best six months' count of pupils in accordance with subsection (a)(1) of this section. For school districts and open-enrollment charter schools in the first year of operation, the count is taken from the current school year. For all others, the count is from the preceding school year.

(b) Application and reporting procedures. The commissioner of education will make available to school districts and open-enrollment charter schools appropriate income eligibility guidelines and application and reporting forms. The number of eligible students in accordance with subsection (a)(1) of this section will be reported on a monthly basis to the Texas Education Agency in a manner and with a deadline specified by the commissioner.

(c) Recordkeeping. School districts and open-enrollment charter schools that receive compensatory education program funding pursuant to this section are responsible for obtaining the appropriate data from families of potentially eligible students, verifying that information, and retaining records.

(d) Auditing procedures. The Texas Education Agency will conduct an audit of data submitted by school districts and open-enrollment charter schools that receive compensatory education program funding pursuant to this section approximately every five years or on an alternative schedule adopted at the discretion of the commissioner.

Comments

Source Note: The provisions of this §61.1027 adopted to be effective December 2, 2001, 26 TexReg 9619

§61.1028: Reporting of Bus Accidents

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Accident--Any accident as described by the Texas Transportation Code, Chapter 550, Subchapter B.

(2) School bus--In accordance with the Texas Transportation Code, §541.201, a school bus is a motor vehicle that was manufactured in compliance with the Federal Motor Vehicle Safety Standards (FMVSS) for school buses in effect on the date of manufacture and that is used to transport preprimary, primary, or secondary students on a route to or from school or on a school-related activity trip other than on routes to and from school. A school bus is a bus owned, leased, contracted to, or operated by a school or school district that is regularly used to transport students to and from school or school-related activities; meets all applicable FMVSS; and is readily identified by alternately flashing lights, national school bus yellow paint, and the legend "School Bus." The term does not include a multifunction school activity bus, a school activity bus, or a motor bus.

(3) Multifunction school activity bus--In accordance with the Texas Transportation Code, §541.201, a multifunction school activity bus is a subcategory of school bus. It must meet all FMVSS for a school bus except having traffic control devices, including flashing lights and stop arm, and it may not be painted in national school bus yellow. The multifunction school activity bus cannot be used to transport students from home to school or school to home or for any purpose other than school activities.

(4) School activity bus--In accordance with the Texas Transportation Code, §541.201, a school activity bus is a bus designed to accommodate more than 15 passengers, including the operator, that is owned, operated, rented, or leased by a school district, county school, open-enrollment charter school, regional education service center, or shared services arrangement and that is used to transport public school students on a school-related activity trip, other than on routes to and from school. The term does not include a chartered bus, a bus operated by a mass transit authority, a school bus, or a multifunction school activity bus.

(5) Motor bus--The term "motor bus" does not include a vehicle that meets the definition of a school bus, a multifunction school activity bus, or a school activity bus. A motor bus is:

(A) a commercial, motor transit-type vehicle owned or leased by the school district or the school district's commercial contractor that is designed to transport 16 or more passengers including the driver on school activity trips; or

(B) a transit-type bus operated by a mass/metropolitan transit authority when the school district contracts with the authority in accordance with Texas Education Code, §34.008, to transport students to and from school.

(b) Reporting.

(1) School districts and open-enrollment charter schools shall report annually to the Texas Education Agency (TEA) the number of accidents in which their buses were involved in the past year. School districts and open-enrollment charter schools shall report the accidents in a manner prescribed by the commissioner of education. School districts and open-enrollment charter schools shall file annual accident reports to the TEA only in the period beginning July 1 and ending July 31 and shall include the following information in the report:

(A) the total number of bus accidents;

(B) the date each accident occurred;

(C) the type of bus, as specified in subsection (a) of this section, involved in each accident;

(D) whether the bus involved in each accident was equipped with seat belts and, if so, the type of seat belts;

(E) the number of students and adults involved in each accident;

(F) the number and types of injuries that were sustained by the bus passengers in each accident; and

(G) whether the injured passengers in each accident were wearing seat belts at the time of the accident and, if so, the type of seat belts.

(2) A school district or open-enrollment charter school shall report a bus accident involving a school bus, a multifunction school activity bus, a school activity bus, or a motor bus if:

(A) the bus is owned, leased, contracted, or chartered by a school district or charter school and was transporting school district or charter school personnel, students, or a combination of personnel and students; or

(B) the bus was driven by a school district or charter school employee or by an employee of the school district's or charter school's bus contractor with no passengers on board and the accident involved a collision with a pedestrian.

(3) A school district or open-enrollment charter school shall not report a bus accident involving a school bus, a multifunction school activity bus, a school activity bus, or a motor bus if:

(A) the bus was driven by a school district or charter school employee or by an employee of the school district's or charter school's bus contractor, the accident occurred when no passenger other than the school district's or charter school's driver or bus contractor's driver was on board the bus, and the accident did not involve a collision with a pedestrian; or

(B) the accident involved a bus chartered by a school district or charter school for a school activity trip and no school district or charter school personnel or students were on board the bus at the time of the accident.

(4) A school district or open-enrollment charter school shall not report an accident that occurred in a vehicle that is owned, contracted, or chartered by a school district or charter school and is not a school bus, a multifunction school activity bus, a school activity bus, or a motor bus.

Comments

Source Note: The provisions of this §61.1028 adopted to be effective August 28, 2008, 33 TexReg 6819

Subchapter CC

§61.1032: Instructional Facilities Allotment

(a) Definitions. The following definitions apply to the instructional facilities allotment (IFA) governed by this section:

(1) Instructional facility--real property, an improvement to real property, or a necessary fixture of an improvement to real property that is used predominantly for teaching the curriculum required by Texas Education Code (TEC), §28.002.

(2) Noninstructional facility--a facility that may occasionally be used for instruction, but the predominant use is for purposes other than teaching the curriculum required by TEC, §28.002.

(3) Necessary fixture--equipment necessary to the use of a facility for its intended purposes, but which is permanently attached to the facility, such as lighting and plumbing.

(4) Debt service--as used in this section, debt service shall include regularly scheduled payments of principal and interest that are made between September 1 and August 31 each year on general obligation bonded debt or the underlying bonded debt applicable to an eligible lease-purchase agreement as reported in the final official statement (FOS) or in the bond order, if the bonds are privately placed, to the state information depository. Debt service payments that are not reported to the state information depository are not eligible to receive IFA state assistance.

(5) Allotment--the amount of eligible debt service that can be considered for state aid. The total allotment is made up of a combination of state aid and local funds. The state share and local share are adjusted annually based on changes in average daily attendance (ADA), property values, and debt service.

(6) Interest rate management agreement--an agreement that provides for an interest rate transaction, including a swap, basis, forward, option, cap, collar, floor, lock, debt derivative transaction, or hedge transaction, for a transaction similar to those types of transactions, or for a combination of any of those types of transactions, as described in the Texas Government Code, §1231.001.

(b) Application process. A school district must complete a separate application requesting funding under the IFA for each debt issue or lease-purchase agreement proposed for funding. The commissioner of education may require supplemental information to be submitted at an appropriate time after the application is filed to reflect changes in amounts and conditions related to the debt. The application shall contain at a minimum the following:

(1) a description of the needs and projects to be funded with the debt issue or other financing, with an estimate of cost of each project and a categorization of projects according to instructional and noninstructional facilities or other uses of funds;

(2) a description of the debt issuance or other financing proposed for funding, including a projected schedule of payments covering the life of the debt;

(3) an estimate of the weighted average maturity of bonded debt; and

(4) drafts of official statements or contracts that fully describe the debt, as soon as available.

(c) District eligibility. All school districts legally authorized to enter into eligible debt arrangements as defined in subsection (d) of this section are eligible to apply for an IFA.

(d) Debt eligibility. In order to be eligible for state funding under this section, a debt service requirement must meet all of the criteria of this subsection.

(1) The debt service must be an obligation of a school district that is entered into pursuant to the issuance of bonded debt under TEC, Chapter 45, Subchapter A; an obligation for refunding bonds as defined in TEC, §46.007; or an obligation under a lease-purchase agreement authorized by Local Government Code, §271.004.

(2) Application for funding of bonded debt service must be received at the Texas Education Agency (TEA) before the date on which a district or its representatives price the bonds.

(3) Application for funding of lease-purchase payments must be received at the TEA before the passage of an order by the school district board of trustees authorizing the lease-purchase agreement.

(4) Eligible bonded debt must have a weighted average maturity of at least eight years. The term of a lease-purchase agreement must be for at least eight years. For purposes of this section, a weighted average maturity shall be calculated by dividing bond years by the issue price, where "bond years" is defined as the product of the dollar amount of bonds divided by 1,000 and the number of years from the dated date to the stated maturity, and "issue price" is defined as the par value of the issue plus accrued interest, less original issue discount or plus premium.

(5) Funds raised by the district through the issuance of bonded debt must be used for an instructional facility purpose as defined by TEC, §46.001. The facility acquired by entering into a lease-purchase agreement must be an instructional facility as defined by TEC, §46.001.

(6) If the bonded debt is for a refinancing or a combination of refinancing and new debt, the refinanced portion must meet the same eligibility criteria with respect to dates of first debt service as a new issue as defined by TEC, §46.003(d)(1). The method used for the allocation of debt service between qualified and nonqualified projects and between eligible and ineligible debt will be applied to the debt service schedule resulting from a refinancing of IFA-supported debt.

(7) An amended application packet is required for any IFA-supported bonds or IFA-supported lease-purchase agreement that has undergone changes, including, but not limited to, refinancing, restatement, or any other transaction that materially affects the terms of the bonds or the terms of the lease-purchase agreement, including transactions that materially affect the terms of the underlying bonds. Amended application packets must be submitted to the TEA no later than 180 days following the date on which the transaction was approved by the attorney general, if the transaction required approval by the attorney general. If approval by the attorney general was not required, the amended application packet is due within 180 days of the date that the school board approved the transaction.

(8) Failure to submit the amended application packet to the TEA division responsible for state funding within the 180-day period defined in paragraph (7) of this subsection will result in the suspension of IFA state aid payments for the applicable IFA allotment award. This suspension has the following effects.

(A) Debt service payments associated with the applicable IFA allotment will be disqualified for IFA state aid upon expiration of the 180-day period defined in paragraph (7) of this subsection. Debt service payments made after the 180-day period expires will not earn IFA state aid.

(B) IFA state aid associated with the applicable allotment will resume on the date the amended application packet, including any required supporting documentation, is received. The IFA state aid will be based on eligible debt service payments scheduled on or after the date the amended application packet is received.

(C) Current and future IFA state aid payments may be adjusted to reflect the disqualified debt service payments. If no IFA state aid is due in a fiscal year that is affected by such an adjustment, a district will be notified about the disqualified amount and will be required to remit that amount to the TEA no later than 30 days after notification.

(D) Unless otherwise requested, payments of IFA state aid based on the updated eligible debt service reported in the completed amended application packet shall be made with the payments due for the following fiscal year in accordance with TEC, §46.009(d).

(9) Refunding bonds must also meet the following criteria, the first three of which are defined by TEC, §46.007.

(A) Refunding bonds may not be called for redemption earlier than the earliest call date of the bonds being refunded.

(B) Refunding bonds must not have a final maturity date later than the last day of the last fiscal year applicable to the final maturity date of the bonds being refunded.

(C) The refinancing of bonds must result in a present value savings, which is determined by computing the net present value of the difference between each scheduled payment on the original bonds, or on the most recently approved debt service schedule, if the bonds have been previously modified, and each scheduled payment on the newly revised debt applicable to the modified bonds.

(i) Present value savings for fixed rate bonds shall be computed at the true interest cost of the refinanced bonds.

(ii) In a refinancing of variable rate bonds with fixed rate bonds, present value savings will be calculated based on:

(I) an assumed interest rate for the variable rate bonds equal to the Municipal Market Data index (or other comparable index) of "AAA" general obligation tax-exempt bonds for the month in which the bonds were originally issued; and

(II) the rate, if any, used to determine the amount deposited into a mandatory and irrevocable fund for the sole purpose of defeasing the bonds in a variable rate mode.

(iii) In a refinancing of fixed rate bonds with variable rate bonds, present value savings will be calculated based on an assumed interest rate for the variable rate bonds equal to the ten-year average of the Municipal Market Data index (or other comparable index) of "AAA" general obligation tax-exempt bonds bearing interest in a variable rate mode comparable to the variable rate mode in which the refinanced bonds will be issued.

(iv) The financial advisor to a district must certify the projected net present value savings for refinancing described in clause (ii) and (iii) of this subparagraph based on the parameters prescribed therein. The district's financial advisor to the refinancing transaction must sign and date the certification. The district must submit the certification to the TEA division responsible for state funding no later than 180 days after the date the refunding bonds were approved for sale by the attorney general if refunding bonds are issued. If refunding bonds are not issued, the district must submit the certification no later than 180 days after the refinancing transaction is approved by the school district board of trustees. The district must submit the certification in a format prescribed by the commissioner.

(D) A conversion of the period, mode, or index used to determine the interest rate for eligible debt in accordance with the order authorizing the issuance or delivery of such eligible debt shall not be considered a refunding of eligible debt, and a district shall be eligible for state funding assistance based on the new debt service schedule contingent upon receipt of the required amended application packet as defined in paragraph (7) of this subsection.

(E) Effective January 1, 2008, a district may refinance IFA-supported debt up to two times after the issuance of the original IFA-supported debt. Upon the third refinancing transaction, the TEA will evaluate the IFA-supported debt for conversion to the Existing Debt Allotment (EDA) program. Determination of eligibility for conversion will be based on the district's remaining capacity in the EDA program and the district's other IFA-supported debt. The TEA will notify the district of the results of this evaluation within 180 days of receiving notification of the third refinancing transaction involving an IFA-supported debt.

(F) Debt that has been refinanced three or more times before January 1, 2008, will be evaluated for possible conversion and districts will be notified of the results of that evaluation no later than January 1, 2009. This subparagraph expires January 1, 2009.

(10) Certain other refinanced debt may be eligible for the funding under this subsection.

(A) When a district issues a general obligation bond to acquire a facility that is the subject of an existing lease-purchase agreement of the district or refinances an existing lease-purchase agreement with another lease-purchase agreement, the transaction is considered a refinancing of the lease-purchase agreement for purposes of continued participation in the IFA program. Any transactions affecting the lease-purchase agreement, including those that affect the underlying bonds, are subject to the amendment requirements and eligibility criteria specified in paragraphs (7) - (9) of this subsection, including the restrictions related to early redemption and extension of maturity dates, and the requirement for the refinancing transactions to produce present value savings.

(B) A lease-purchase agreement in the IFA program that is refinanced with a general obligation bond or another lease-purchase agreement at a present value savings and without extension of the original term of the lease-purchase agreement shall remain part of the IFA program. Any transaction that reduces the term of the lease-purchase agreement to less than eight years will result in the disqualification of IFA state aid on debt service that is associated with the lease-purchase agreement, beginning with the date that the transaction is approved by the school district board of trustees.

(C) Any portion of a bond issue that refinances a portion of a lease-purchase agreement that was originally ineligible for IFA funding shall remain ineligible. Ineligible debt includes refunded bonds that fail to meet the criteria under TEC, §46.007, and/or bonds used for purposes not meeting the definition of qualified projects as described in TEC, §46.001 and §46.002.

(D) Any portion of a bond issue that refinances a portion of an original lease-purchase agreement that was eligible for IFA consideration but exceeded the IFA limit shall not be eligible for consideration in future funding cycles.

(E) General obligation bonded debt that is used to refinance a lease-purchase agreement that is not in the IFA program shall gain eligibility for the IFA by the terms of that program. Any interest and sinking (I&S) fund tax effort associated with the bonded debt payments may be counted for purposes of computing the IFA. For the refinancing to be considered for IFA funding, a district must submit an application to the program that identifies the refinancing as a new debt before the refinancing of the lease-purchase agreement.

(F) If any portion of a maturity of an IFA debt is refinanced at a present value cost or with an extension of the term beyond the fiscal year in which the final maturity occurs in the original debt service schedule, the entire amount of annual debt service associated with that maturity shall be removed from eligibility for further IFA state aid.

(G) Debt that is refinanced in a manner that disqualifies it for eligibility for funding within the IFA program shall be treated as new bonded debt at the time of issuance for the purpose of EDA funding consideration.

(11) In addition to I&S fund taxes collected in the current school year, other district funds budgeted for the payment of bonds may be eligible for the IFA program for the purpose of meeting local share requirements pursuant to Texas Education Code, Chapter 46.

(A) Funds budgeted by a district for payment of eligible bonds may include I&S fund taxes collected in the 1999-2000 school year or a later school year in excess of the amount necessary to pay the district's local share of debt service on bonds in that year, provided that the taxes were not used to generate other state aid.

(B) Funds budgeted by a district for payment of eligible bonds may include maintenance and operations (M&O) taxes collected in the 1999-2000 school year or a later school year that are in excess of amounts used to generate other state aid.

(C) The commissioner will provide each district with information about what tax collections were not equalized by state assistance in the preceding school year and worksheets to enable districts to calculate tax collections that will not receive state assistance in a current school year.

(D) The commissioner of education will determine the amount of excess collections, if any, to be applied to the IFA local share requirement.

(12) If a district issues debt that requires the deposit of payments into a mandatory I&S fund or debt service reserve fund, the deposits will be considered debt payments for the purpose of the IFA if the district's bond covenant calls for the deposit of payments into a mandatory and irrevocable fund for the sole purpose of defeasing the bonds or if the final statement stipulates the requirements of the I&S fund and the bond covenant.

(13) If a district enters into an interest rate management agreement related to debt that is supported by IFA funds, the district shall provide a schedule or schedules demonstrating the anticipated effect of the interest rate management agreement on the debt service for the related bonds within 180 days of entering the interest rate management agreement, subject to the provisions of paragraph (8) of this subsection.

(14) I&S fund taxes collected during a school year will be attributed first to satisfy the local share requirement of debts eligible for EDA state aid for that school year, second to satisfy the local share requirements of any debts eligible for IFA state aid for that school year, and third to excess taxes that may raise the limit for the EDA program in a subsequent biennium if collected in the second year of a state fiscal biennium.

(15) When the TEA considers an application for IFA funding, the TEA shall remove from consideration under the IFA program any debt that meets the eligibility requirements of the EDA program unless a district's existing debt tax rate exceeds the limit for that program described in TEC, §46.034, during the year in which the IFA application is evaluated.

(e) Biennial limitation on access to allotment. The cumulative amount of new debt service for which a district may receive approvals for funding within a biennium shall be the greater of $100,000 per year or $250 per student in average daily attendance per year. A district may submit multiple applications for approval during the same biennium. Timely application before executing the bond order for bonds or authorizing the order for a lease-purchase agreement must be made to ensure eligibility of the debt for program participation. The calculation of the limitation on assistance shall be based on the highest annual amount of debt service that occurs within the state fiscal biennium in which payment of state assistance begins.

(f) Additional applications. For previously awarded debt, increases in a district's debt allotment to pay for increases in debt service payment requirements in subsequent biennia must receive approval through one or more additional application(s). The portion of any increase in eligible, qualified debt service that may be funded in subsequent biennia is the amount that exceeds any previously awarded and approved allotments, within the biennial limitation on funding as calculated at the time of approval of the additional applications. If additional IFA state aid is approved, the allotment limit will be amended to reflect the increased IFA support for the applicable debt issuance.

(g) Finality of award. Awards of assistance under TEC, Chapter 46, will be made based on the information available to TEA at the deadline for receipt of applications for that application cycle. Changes in the terms of the issuance of debt, either in the length of the payment schedule or the applicable interest rate, that occur after the time of the award of assistance will not result in an increase in the debt service considered for award.

(1) Any reduction in debt service requirements resulting from changes in the terms of issuance of debt shall result in a reduction in the amount of the award of assistance. Such a reduction in debt service requirements may result in an adjustment to the allotment awarded for the last application on the prioritization list to receive funding during an application cycle, if that application was not fully funded because of a lack of sufficient appropriations. In no case will changes to debt service amounts result in the awarding of additional IFA allotments for other eligible applications that were not funded during that application cycle because of a lack of sufficient appropriations.

(2) Refinancing of the bonds or lease-purchase agreements that receive IFA state aid may result in amendments to the allotment for the original IFA-supported debt issuance and may result in the designation of allotment amounts to be associated with the new debt issuances that include refundings of the original IFA-supported debt issuance.

(h) Data sources.

(1) For purposes of determining the limitation on assistance and prioritization, the projected ADA as adopted by the legislature for appropriations purposes shall be used.

(2) For purposes of prioritization, the final property values certified by the comptroller of public accounts for the tax year preceding the year in which assistance is to begin shall be used. If final property values are unavailable, the most recent projection of property values shall be used.

(3) For purposes of both the calculation of the limitation on assistance and prioritization, the commissioner may consider, before the deadline for receipt of applications for that application cycle, adjustments to data values determined to be erroneous.

(4) For purposes of prioritization, enrollment increases over the previous five years shall be determined using Public Education Information Management System (PEIMS) submission data available at the time of application.

(5) For purposes of prioritization, outstanding debt is defined as voter-approved bonded debt or lease-purchase debt outstanding at the time of the application deadline.

(6) All final calculations of assistance earned shall be based on property values as certified by the comptroller for the preceding school year, and the final ADA for the current school year. A district must request any adjustment to state assistance based on changes in the final ADA, property values, or debt service or based on any other reason no later than three years following August 31 of the state fiscal year for which the adjustment is sought.

(7) For the TEA to determine eligible debt service applicable to eligible bonded debt or the underlying bonds of an eligible lease-purchase agreement, the debt service schedule a district submits on the application must reflect the debt service schedule the district reported in the FOS or, if no FOS is prepared, in the final bond order or other official document describing the relevant financing activity, including a final debt service schedule. Failure to submit the required amended application packet to the TEA following any refinancing transaction as required by subsection (d)(7) of this section will result in the disqualification of debt service as prescribed in subsection (d)(8) of this section. IFA state aid for debt service payments that are later determined to be disqualified may be recovered through the reduction of future IFA state aid payments for the affected debt issuance.

(i) Allocation of debt service between qualified and nonqualified projects. Debt service shall be allocated between qualified and nonqualified purposes and between eligible and ineligible categories of debt. The method used for allocation between qualified and nonqualified purposes shall be on the basis of pro rata value of the instructional facility versus the noninstructional purposes over the life of the debt service. The method of allocation of debt service between eligible and ineligible categories shall be on the basis of the pro rata value of the refinanced portion of the bond issue versus the new money portion of the bond issue. The method used for the allocation of debt service between qualified and nonqualified projects and between eligible and ineligible debt will be applied to the debt service schedule for the original bond issuance and for the revised debt service schedule that results from the refinancing of IFA-eligible bonds. This allocation method will also be applied to determine the eligible and qualified portions of the debt service on the bonds that are issued to refinance IFA-supported debt. Total IFA-eligible debt service for refinanced bonds is determined by the following method.

(1) The amount of remaining debt service on the original IFA-funded debt service must be reflected in the revised debt service schedule reported in the FOS, or (if no FOS is prepared) in a schedule submitted to the TEA, for that bond issue. The amount of IFA-related debt service for this bond series will be determined using the same pro rata allocation that was used to allocate the debt service for the original IFA allotment award as described in this subsection.

(2) The portion of the IFA-eligible debt service on the bond issue that refunds the IFA-supported debt is determined by:

(A) multiplying the debt service on the refunding bonds by the ratio that results from dividing the principal of refunding bonds by the total issue amount to determine the amount of IFA-related debt service associated with the refunding bonds; and

(B) then allocating the IFA-related debt service associated with the refunding bonds using the same pro rata allocation that was used to allocate the debt service for the original IFA allotment award as described in this subsection.

(3) The total amount of qualified, eligible IFA-related debt service is determined by the sum of IFA-related debt service as determined in paragraphs (1) and (2) of this subsection.

(j) Payments and deposits.

(1) Payment of state assistance shall be made as soon as practicable after September 1 of each year. No payments shall be made until the execution of the bond order or the authorization of the lease-purchase agreement, whichever is applicable, has occurred. Requests for payments and/or adjustments submitted to the TEA after December 15 shall be processed with the payments due for the following fiscal year in accordance with TEC, §46.009(d). Debt service for IFA-supported debt that is subject to the provisions of subsection (d)(7) of this section because of a refinancing or other transaction as described in subsection (d) of this section is not eligible for IFA state aid until a complete amended application packet has been submitted to the TEA, subject to the provisions of subsection (d)(8) of this section.

(2) Funds received from the state for bonded debt must be deposited to the I&S fund of the school district and must be considered in setting the tax rate necessary to service the debt.

(3) Funds received from the state for lease-purchase agreements must be deposited to the general fund of the district and used for lease-purchase payments.

(4) A final determination of state assistance for a school year will be made using final attendance data and property value information as may be affected by TEC, §42.257. Additional amounts owed to districts shall be paid along with assistance in the subsequent school year, and any reductions in payments shall be subtracted from payments in the subsequent school year.

(5) As an alternative method of adjustment of payments, the commissioner may increase or decrease allocations of state aid under TEC, Chapter 42, to reflect appropriate increases or decreases in assistance under TEC, Chapter 46.

(6) Adjustments to state assistance based on changes in the final counts of ADA, changes to a district's property value, changes in the debt service schedule, or changes for any other reason must be requested no later than three years following the close of the school year for which the adjustment is sought. Changes to the debt service schedule will be subject to the provisions of subsection (d)(8) of this section, including the disqualification of debt service associated with a refinancing transaction as described in subsection (d)(7) of this section, if deadlines for reporting the refinancing transaction have not been met.

(k) Approval of attorney general required. All bond issues and all lease-purchase agreements must receive approval from the attorney general before a deposit of state funds will be made in the accounts of the school district.

(l) Deadlines.

(1) The commissioner of education shall conduct an annual application cycle with a deadline of June 15 or the next working day after June 15 every year based on the availability of appropriations for the purpose of awarding new allotments. If no funding is available, the commissioner shall cancel the June 15 deadline.

(2) The commissioner shall establish the relevant limit on the date of first debt service payment from property taxes for eligible bonded debt that will be considered for funding in the announced application cycle.

(3) An application received after the deadline shall be considered a valid application for the subsequent period unless withdrawn by the submitting district before the end of the subsequent period.

(4) If the bond order or the lease-purchase agreement has not been approved by the attorney general within 180 days of the deadline for the current application cycle, the TEA shall consider the application withdrawn.

(5) The school district may not submit an application for bonded debt before the successful passage of an authorizing proposition. The election to authorize the debt must be held before the close of the application cycle. An application for a lease-purchase agreement may not be submitted before the end of the 60-day waiting period in which voters may petition for a referendum, or until the results of the referendum, if called, approve the agreement.

(m) Prioritization and notice of award. Upon close of the application cycle, all eligible applications shall be ranked in order of property wealth per student in ADA. State assistance will be awarded beginning with the district with the lowest property wealth and continue until all available funds have been used. Each district shall be notified of the amount of assistance awarded and its position in the rank order for the application cycle. A district's wealth per student may be reduced if any or all of the following criteria are met.

(1) A district's wealth per student is first reduced by 10% if the district does not have any outstanding debt at the time the district applies for assistance.

(2) A district's wealth per student is next reduced if a district has had substantial student enrollment growth in the preceding five-year period. For this purpose, the district's wealth per student is reduced:

(A) by 5.0%, if the district has an enrollment growth rate in that period that is 10% or more but less than 15%;

(B) by 10%, if the district has an enrollment growth rate in that period that is 15% or more but less than 30%;

(C) by 15%, if the district has an enrollment growth rate in that period that is 30% or more; or

(D) by 25%, if the district demonstrates, in a manner prescribed by the commissioner, that the district must construct, acquire, renovate, or improve one or more instructional facilities to serve the children of military personnel transferred to a military installation in or near the district under the Defense Base Closure and Realignment Act of 1990 (10 USC §2687). To qualify for this reduction, the district must include in its application for IFA funding one or more project descriptions for facilities that will serve the children of military personnel who are transferred to the military installation in or near the district. This subparagraph expires September 1, 2012.

(3) If a district has submitted an application with eligible debt and has not previously received any assistance due to a lack of appropriated funds, its property wealth for prioritization shall be reduced by 10% for each biennium in which assistance was not provided. The reduction is calculated after reductions for outstanding debt and enrollment are completed, if applicable. This reduction in property wealth for prioritization purposes is only effective if the district actually entered the proposed debt without state assistance before the deadline for a subsequent cycle for which funds are available.

(n) Bond taxes. A school district that receives state assistance must levy and collect sufficient eligible taxes to meet its local share of the debt service requirement for which state assistance is granted. Failure to levy and collect sufficient eligible taxes shall result in pro rata reduction of state assistance. The requirement to levy and collect eligible taxes specified in this subsection may be waived at the discretion of the commissioner for a school district that must maintain local maintenance tax effort in order to continue receiving federal impact aid.

(o) Exclusion from taxes. The taxes collected for bonded debt service for which funding under TEC, Chapter 46, is granted shall be excluded from the tax collections used to determine the amount of state aid under TEC, Chapter 42. For a district operating with a waiver as described in subsection (n) of this section, the amount of the local share of the allotment shall be subtracted from the total tax collections used to determine state aid under TEC, Chapter 42.

(p) Calculation of bond tax rate (BTR) for lease-purchase agreements. The value of BTR in the formula for state assistance for a lease-purchase agreement shall be calculated based on the lease-purchase payment requirement, not to exceed the relevant limitations described in this section. The lease-purchase payment shall be divided by the guaranteed level (FYL), then by ADA, and then by 100. The value of BTR shall be subtracted from the value of district tax rate (DTR) as computed in TEC, §42.302, before limitation imposed by TEC, §42.303.

(q) Continued treatment of taxes and lease-purchase payments. Taxes associated with bonded debt may not be considered for state aid under TEC, Chapter 42. Bonded debt service or lease-purchase payments that were excluded from consideration for state assistance due to prioritization or due to the limitation on assistance may be considered for state assistance in subsequent biennia through additional applications. A modified application may be provided for previously rejected debt service or lease-purchase payments.

(r) Variable rate bonds. Variable rate bonds are eligible for state assistance under the IFA. For purposes of calculating the biennial limitation on access to the allotment, the payment requirement for a variable rate bond shall be valued at the minimum amount a district must budget for payment of interest cost and the scheduled minimum mandatory redemption amount, if applicable. For purposes of calculating state assistance under TEC, Chapter 46, the lesser of the actual payment or the limitation on the allotment shall be used. A district may exercise its ability to make payments in amounts in excess of the minimum, but the excess amount shall not be used in determining the value of BTR or in the calculation of state assistance under TEC, Chapter 46, in that year.

(s) Fixed-rate bonds. Computation for fixed-rate bonds shall be based on published debt service schedules as contained in the FOS or, for a private placement, in a supplemental filing with the TEA. Prepayment of a bond, either through an early call provision or some other mechanism, shall not increase the state's obligation or the computed state aid pursuant to the IFA. To the extent that prepayments reduce future debt service requirements, the computation of state aid shall also be appropriately adjusted.

(t) Reports required. The commissioner shall require such information and reports as are necessary to assure compliance with applicable laws.

(1) The commissioner shall require immediate notification by a district of relevant financing activities as described in subsection (d)(7) of this section. Failure by a district to make such notification will result in the disqualification of debt service from IFA state aid as described in subsection (d)(8) of this section. A district is also required to report changes in use of bond proceeds or other actions taken by the district that might affect state funding requirements by submitting a complete amended application packet. Failure to submit the amended application packet will result in the suspension of IFA state aid payments for the applicable IFA allotment award, as described in subsection (d)(8) of this section.

(2) A complete amended application packet, as prescribed by the commissioner, includes:

(A) the appropriate schedules needed to identify the original IFA allotment award or the most recently approved revised allotment award including the assigned document control number and changes to the title of the debt issuance, the authorization to issue the debt, and other relevant terms;

(B) the appropriate schedules needed to describe changes in the use of the bond proceeds, if applicable;

(C) the appropriate schedules needed to describe changes in debt service schedules to demonstrate present value savings;

(D) a copy of the FOS, or, if an FOS is not available, the final bond order or other official document describing the relevant financing activity, including a final debt service schedule; and

(E) a copy of the letter from the attorney general approving the transaction, if the transaction required approval by the attorney general.

(3) Receipt of the complete amended application packet is required before debt service payments on the relevant debt issuances will be qualified for IFA state aid.

(4) Upon evaluation of the complete amended application packet, the TEA may request additional supporting documentation.

§61.1033: School Facilities Standards for Construction before January 1, 2004

(a) Definitions and procedures. The following words, terms, and procedures, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Educational program--A written document that includes the following information:

(A) a summary of the school district's educational philosophy, mission, and goals; and

(B) a description of the general nature of the district's instructional program in accordance with §74.1 of this title (relating to Essential and Knowledge and Skills).

(2) Educational specifications--Educational specifications for a proposed new school facility or major space renovation include a description of the proposed project, expressing the range of issues and alternatives. The following information should be included in the educational specifications:

(A) the instructional programs, grade configuration, and type of facility;

(B) number of students;

(C) a list of any specialized classrooms or major support areas, noninstructional support areas, or external activity spaces;

(D) estimated size of facility;

(E) estimated budget for the facility project;

(F) school administrative organization; and

(G) hours of operation that include the instructional day, extracurricular activities, and any public access or use.

(3) Instructional space--General classrooms, specialized classrooms, and major support areas.

(4) Library--Library will include the following minimum requirements:

(A) reading room;

(B) stack area; and

(C) necessary service areas.

(5) Major space renovations--At least 50% of the gross area of the facility's instructional space is within the limits of the work. Other renovations associated with repair or replacement of architectural interior or exterior finishes; fixtures; equipment; and electrical, plumbing, and mechanical systems are not subject to the requirements of subsections (d) and (e) of this section, but shall comply with applicable building codes as required by subsection (f) of this section.

(6) Square feet per pupil--The net interior space of a room divided by the maximum number of pupils to be housed in that room during a single class period.

(7) Square feet per room measurements--The net square footage of a room that will house 22 students at the elementary level and 25 students at the middle or high school level. The net square footage of a room includes exposed storage space, such as cabinets or shelving, but does not include hallway space or storage space, such as closets or preparation offices.

(b) Implementation date. The requirements for school facility standards shall apply to projects for new construction or major space renovations approved by a school district board of trustees after September 1, 1998, and before January 1, 2004.

(c) Certification of design and construction.

(1) In this section, the word "certify" indicates that the architect or engineer has reviewed the standards contained in this chapter and used the best professional judgment and reasonable care consistent with the practice of architecture or engineering in the State of Texas in executing the construction documents. The architect or engineer also certifies that these documents conform to the provisions of this section, except as indicated on the certification.

(2) The school district shall notify and obligate the architect or engineer to provide the required certification. The architect's or engineer's signature and seal on the construction documents shall certify compliance.

(3) To ensure that facilities have been designed and constructed according to the provisions of this section, each of the involved parties shall execute responsibilities as follows.

(A) The school district shall provide the architect or engineer the long-range school facility plan and/or educational specifications approved by the board of trustees as required by this subchapter, and building code specifications for the facility.

(B) The architect or engineer shall perform a building code search under applicable regulations that may influence the project, and shall certify that the design has been researched before it is final.

(C) The architect or engineer shall also certify that the facility has been designed according to the provisions of this section, based on the long-range school facility plan and/or educational specifications, building code specifications, and all documented changes to the construction documents provided by the district.

(D) The building contractor or construction manager shall certify that the facility has been constructed in general accordance with the construction documents specified in subparagraph (C) of this paragraph.

(E) When construction is completed, the school district shall certify that the facility conforms to the design requirements specified in subparagraph (A) of this paragraph.

(d) Space, minimum square foot requirements.

(1) A school district shall provide instructional space if required by the district educational specifications described in subsection (e) of this section.

(2) For each type of instructional space, a district may satisfy the requirements of this section by using, as appropriate, either the standard for the minimum square feet per pupil or for square feet per room specified in paragraphs (1)-(3) of this subsection. Room size requirements are based on rooms that will house 22 students at the elementary level and 25 students at the middle or high school level.

(A) General classrooms.

(i) Classrooms for prekindergarten-Grade 1 shall have a minimum of 36 square feet per pupil or 800 square feet per room.

(ii) Classrooms at the elementary school level shall have a minimum of 30 square feet per pupil or 700 square feet per room.

(iii) Classrooms at the secondary school level shall have a minimum of 28 square feet per pupil or 700 square feet per room.

(B) Specialized classrooms.

(i) Computer laboratories shall have a minimum of 41 square feet per pupil or 900 square feet per room at the elementary school level; and 36 square feet per pupil or 900 square feet per room at the secondary school level.

(ii) Science lecture/lab shall have a minimum of 41 square feet per pupil or 900 square feet per room at the elementary school level; 50 square feet per pupil or 1,000 square feet per room at the middle school level; and 50 square feet per pupil or 1,200 square feet per room at the high school level. A science lecture/lab is a classroom where both lecture and lab work occur in the same room and during the same class period.

(C) Major support areas.

(i) Primary gymnasiums or physical education space, if required by the district's educational program, shall have a minimum of 3,000 square feet at the elementary school level; 4,800 square feet at the middle school level; and 7,500 square feet at the high school level.

(ii) Libraries shall have a minimum of 3.0 square feet times the planned student capacity of the school. The minimum size of any elementary school library shall be 1,400 square feet. The minimum size of any middle school library shall be 2,100 square feet. The minimum size of any high school library shall be 2,800 square feet.

(3) Other space requirements should be developed from school district design criteria as required to meet educational program needs.

(e) Educational adequacy. A proposed new school facility or major space renovation of an existing school facility meets the conditions of educational adequacy if the design of the proposed project is based on the requirements of the school district's educational program and the student population that it serves.

(f) Construction quality.

(1) Districts with existing building codes. A school district located in an area that has adopted local building codes shall comply with those codes (including fire and mechanical, electrical, and plumbing codes). The school district is not required to seek additional plan review of school facilities projects other than what is required by the local building authority.

(2) Districts without existing building codes. A school district located in an area that has not adopted local building codes shall adopt and use the latest edition of either the Uniform Building Code or Standard (Southern) Building Code (and related fire, mechanical, and plumbing codes); and the National Electric Code. A qualified, independent third party, not employed by the design architect or engineer, shall review the plans and specifications for compliance with the requirements of the adopted building code. The plan review shall examine compliance conditions for emergency egress, fire protection, structural integrity, life safety, plumbing, and mechanical and electrical design. The review shall be conducted before bidding and must be conducted by a certified building code consultant. Associated fees shall be the responsibility of the school district. The reviewer shall prepare a summary list of any conditions not in conformance with the provisions of the adopted building code and is required to send a copy to the school district, design architect, or engineer. The design architect or engineer shall revise the plans and specifications as necessary and certify code compliance to the district. Any disputes shall be a matter for contract resolution.

(3) Other provisions. School districts shall comply with the provisions of the Americans with Disabilities Act of 1990 (Title I and Title II) and other local, state, and federal requirements as applicable.

Comments

Source Note: The provisions of this §61.1033 adopted to be effective September 1, 1998, 23 TexReg 7221; amended to be effective June 9, 2003, 28 TexReg 4420

§61.1034: New Instructional Facility Allotment

(a) Definitions and eligibility. The following definitions and eligibility criteria apply to the new instructional facility allotment (NIFA) in accordance with Texas Education Code (TEC), §42.158.

(1) A facility eligible for the NIFA is a newly constructed instructional site (campus) used for teaching the curriculum required by TEC, Chapter 28. To qualify for first-year funding, a new campus will not have been occupied in the prior school year. To qualify for follow-up funding, the campus will have been occupied for the first time in the prior school year and funded for the NIFA for that first year. A special case of one-year funding pertains to facilities that were occupied for the first time in the prior school year but did not receive NIFA funds because of a failure to apply. Any such eligible campus will receive funds for one year of operation only.

(2) The facility must have its own principal or will receive an accountability rating through the standard or the optional alternative rating procedures as described in the most current accountability manuals, published by the Texas Education Agency (TEA).

(3) The facility must have its own unique campus ID number as designated by the TEA, its own record of expenditures that is not a subset of another school budget, and attendance data that can be reported for those students who are assigned to its campus.

(4) With the exception of a covered walkway connecting the new facility to another building, the new facility must be physically separate from other existing school structures.

(5) The facility must have its own assigned instructional staff and instructional program distinct from other facilities, and cannot be a program for students enrolled in another public school (summer school, evening school, etc.).

(6) Expansion or renovation of existing facilities, as well as portable and temporary structures, are not eligible for the NIFA.

(b) Application process. School districts must complete the TEA's on-line application process requesting funding pursuant to the NIFA.

(1) The initial (first-year) application must include the following:

(A) the electronic submission of the TEA's on-line application for initial funding; and

(B) the submission of the following materials by certified mail through the U.S. Postal Service or other common postal carrier:

(i) a brief description and photograph of the newly constructed instructional site; and

(ii) a copy of a legal document that clearly describes the nature and dates of the new construction.

(2) On-line applications must be submitted electronically no later than July 15 and supporting documents must be postmarked no later than July 15 of the year preceding the applicable school year.

(3) Second-year applications require only the electronic submission of the TEA's on-line application for follow-up funding no later than July 15 of the year preceding the applicable school year.

(c) Costs and payments. The cost and payments for the NIFA are determined by the commissioner of education.

(1) The allotment for the NIFA is a part of the cost of the first tier of the Foundation School Program (FSP). This allotment is not counted in the calculation of weighted average daily attendance (WADA) for the second tier of the FSP.

(2) If, for all eligible districts combined, the total cost of the NIFA exceeds the amount appropriated, each allotment is reduced so that the total amount to be distributed equals the amount appropriated. Reductions to allotments are made by applying the same number of cents of tax rate in each district to the district's taxable value of property so that the reduced total for all districts equals the amount appropriated. For each district, the taxable value of property is the property value certified by the Comptroller of Public Accounts for the preceding school year as determined under Government Code, Chapter 403, Subchapter M, or, if applicable, a reduced property value that reflects either a rapid decline pursuant to TEC, §42.2521, or a grade level adjustment pursuant to TEC, §42.106.

(3) Allocations will be made in conjunction with allotments for the FSP in accordance with the district's payment class. For districts that are not subject to the requirements of TEC, Chapter 41, and do not receive payments from the Foundation School Fund, NIFA distributions will correspond to the schedule for payment class 3.

(4) For districts that are required to reduce wealth pursuant to TEC, Chapter 41, any NIFA funds for which the district is eligible are applied as credits to the amounts owed to equalize wealth.

(5) For all districts receiving the NIFA, a final (settle-up) amount earned is determined by the commissioner when final counts of ADA, as reported through the Public Education Information Management System (PEIMS), are available for the eligible campus at the close of business for the school year.

(6) The amount of funds to be distributed for the NIFA to a school district is in addition to any other state aid entitlements.

Comments

Source Note: The provisions of this §61.1034 adopted to be effective January 3, 2000, 24 TexReg 12065; amended to be effective September 23, 2004, 29 TexReg 9184

§61.1035: Assistance with Payment of Existing Debt

(a) Eligibility. Certain restrictions apply to debt and to school districts eligible for the existing debt allotment (EDA).

(1) Debt eligible for the EDA is an existing obligation of a school district made through the issuance of a bond for instructional or non-instructional purposes pursuant to Texas Education Code (TEC), Chapter 45, Subchapter A, or through the refunding of bonds as defined in TEC, §46.007. The district must have made a payment on the bonds on or before August 31, 2007. Lease-purchase agreements authorized by Local Government Code, §271.004, are not eligible. Payments demonstrating eligibility for the EDA must appear on the debt service schedule contained in the final official statement (FOS) or bond order. The debt service schedule contained in the FOS (or in the bond order, if the bonds are privately placed) and filed with the state information depository will be used to determine eligible bond payments. To the extent that neither the FOS nor the bond order is filed with the state information depository, such documents shall be filed with the Texas Education Agency (TEA). Bond issues and their related debt service payments that are not reported to the state information depository or the TEA, as applicable, are not eligible to receive EDA state assistance.

(2) Eligible debt does not include any portion of an existing obligation that has been approved for financial assistance with the Instructional Facilities Allotment (IFA) as defined in §61.1032 of this title (relating to Instructional Facilities Allotment), in accordance with TEC, Chapter 46.

(3) Eligible bond payments include regularly scheduled principal and interest payments that are made between September 1 and August 31 each year.

(4) Certain other refinanced debt may be eligible for funding under this subsection.

(A) A lease purchase refinanced with a general obligation bond shall be eligible for consideration for the EDA in future years based on the date of payment on the new bond and the limits on tax rates that apply.

(B) Any portion of a bond issue that refinances a portion of an original lease-purchase agreement that was eligible for IFA consideration but exceeded the IFA limit shall be eligible for consideration in future years pursuant to this subsection based on the date of first payment on the new bond and the limits on tax rates that apply.

(C) If a lease purchase that is not funded in the IFA program is refinanced with a general obligation bonded debt, the bonded debt shall gain eligibility for the EDA by the terms of the EDA program. Any interest and sinking (I&S) fund tax effort associated with the bonded debt payments may be counted for purposes of computing the EDA. Qualification pursuant to this subsection shall be according to the terms of the program, including the date of first payment on the bond and the relevant tax rate limitation.

(D) Debt that is refinanced in a manner that disqualifies it for eligibility for funding within the IFA program shall be treated as new bonded debt at the time of issuance for the purpose of funding consideration pursuant to the EDA.

(b) Qualifying debt service. Certain district revenues may qualify to meet the local share requirement of the EDA when computing state assistance amounts.

(1) I&S fund taxes collected in the current school year may qualify toward meeting the local share requirement of the EDA. In addition, other district funds budgeted for the payment of bonds may qualify to meet the EDA local share requirements.

(A) Funds budgeted by a district for payment of eligible bonds may include I&S fund taxes collected in the 1999-2000 school year or later school year in excess of the amount necessary to pay the district's local share of debt service on bonds in that year, provided that the taxes were not used to generate other state aid.

(B) Funds budgeted by a district for payment of eligible bonds may include maintenance and operations (M&O) taxes collected in the current or previous school year that are in excess of amounts used to generate other state aid.

(C) The commissioner of education will provide each district with information about what tax collections were not equalized by state assistance in the preceding school year and worksheets to enable districts to calculate tax collections that will not receive state assistance in a current school year.

(D) The commissioner of education will determine the amount of excess collections, if any, to be applied to the EDA local share requirement.

(2) If a district issues debt that requires the deposit of payments into a mandatory I&S fund or debt service reserve fund, the deposits will be considered debt payments for the purpose of the EDA if the district's bond covenant calls for the deposit of payments into a mandatory and irrevocable fund for the sole purpose of defeasing the bonds or if the FOS stipulates the requirements of the I&S fund and the bond covenant.

(3) An EDA correction form packet is required for any EDA-supported bonds that have undergone changes, including, but not limited to, refinancing, restatement, or any other transaction that materially affects the terms of the bonds, including transactions that materially affect the terms of the underlying bonds. An EDA correction form packet must be submitted to the TEA no later than 180 days following the date on which the transaction was approved by the attorney general, if the transaction required approval by the attorney general. If approval by the attorney general was not required, the EDA correction form packet is due within 180 days of the date that the school board approved the transaction.

(4) Failure to submit the EDA correction form packet to the TEA division responsible for state funding within the 180-day period defined in paragraph (3) of this subsection will result in the suspension of EDA state aid payments for the applicable EDA allotment award. This suspension has the following effects.

(A) Debt service payments associated with the applicable EDA allotment will be disqualified for EDA state aid upon expiration of the 180-day period defined in paragraph (3) of this subsection. Debt service payments made after the 180-day period expires will not earn EDA state aid.

(B) Eligibility for EDA state aid associated with the applicable allotment will resume on the date the EDA correction form packet, including any required supporting documentation, is received. The EDA state aid will be based on eligible debt service payments scheduled on or after the date the EDA correction form packet is received.

(C) Current and future EDA state aid payments may be adjusted to reflect the disqualified debt service payments. If no EDA state aid is due in a fiscal year that is affected by such an adjustment, a district will be notified about the disqualified amount and will be required to remit that amount to the TEA no later than 30 days after notification.

(D) Unless otherwise requested, payments of EDA state aid based on the updated eligible debt service reported in the completed EDA correction form packet shall be made with the payments due for the following fiscal year in accordance with TEC, §46.035.

(5) If a district enters into an interest rate management agreement related to debt that is supported by EDA funds, the district shall provide a schedule or schedules demonstrating the anticipated effect of the interest rate management agreement on the debt service for the related bonds. If a district enters into an interest rate management agreement, the amount of debt service eligible for EDA funding shall be determined as follows.

(A) If an interest rate management agreement is executed concurrently with a public offering or private placement of bonds related thereto, the debt service eligible for EDA funding will be equal to the amount of debt service reflected in the debt service schedule contained in the FOS, in the private placement memorandum, or (if no FOS or private placement memorandum is prepared) in supplemental schedule(s) filed with the TEA.

(B) If an interest rate management agreement is not executed concurrently with a public offering or private placement of bonds related thereto, the debt service eligible for EDA funding will be equal to the amount of debt service reflected in schedules to be provided by the district to the TEA as required by paragraph (3) of this subsection.

(C) Failure to identify the interest rate management agreement transaction to the commissioner within 180 days of its execution, by submitting an EDA correction form packet, may disqualify the debt service on the related bonds from the EDA state assistance as described in paragraph (4) of this subsection. Such debt service will remain ineligible unless the information described in this paragraph is provided to the TEA division responsible for state funding. The commissioner may require that EDA funding paid to a district for such ineligible debt service be refunded by the district.

(D) For purposes of this section, "interest rate management agreement" means an agreement that provides for an interest rate transaction, including a swap, basis, forward, option, cap, collar, floor, lock, debt derivative transaction, or hedge transaction; for a transaction similar to those types of transactions; or for a combination of any of those types of transactions, as described in the Texas Government Code, §1231.001.

(6) I&S fund taxes collected during a school year will be attributed first to satisfy the local share requirement of debts eligible for EDA state aid for that school year, second to satisfy the local share requirements of any IFA debts for that school year, and third to excess taxes that may raise the limit for the EDA program in a subsequent biennium if collected in the second year of a state fiscal biennium.

(7) Computation of state aid in the EDA program for a variable rate bond shall be based on the minimum payment requirement. A district may receive such state aid for payment on a variable rate bond in excess of the minimum payment requirement as long as the additional amount meets certain conditions.

(A) The payment is necessary to meet the computed interest costs for the year.

(B) The amount shall not exceed the applicable limit for debt established pursuant to TEC, §46.034(b).

(C) The district shall notify the commissioner of education of its intent prior to the adoption of the district's tax rate for debt service for the applicable year.

(8) A district may exercise its ability to make payments in excess of the minimum payment required but the excess amount shall not be used in determining the limit on the existing debt tax rate (EDTR) or in the calculation of state assistance in that year.

(9) Computation for fixed-rate bonds shall be based on published debt service schedules as contained in the FOS or in schedules filed with the TEA for a private placement or other transaction in which no FOS is prepared. Prepayment of a bond, either through an early call provision or some other mechanism, shall not increase the state's obligation or the computed state aid pursuant to the EDA. To the extent that prepayments reduce future debt service requirements, the computation of state aid shall also be appropriately adjusted.

(c) Limits on assistance. The amount of state assistance is limited by the lesser of a calculated EDTR for eligible debt or an appropriated debt tax limit.

(1) The calculated EDTR is a rate determined with the debt limit resulting from the lesser of calculations specified in subparagraphs (A) or (B) of this paragraph, except as specified in paragraph (2) of this subsection.

(A) EDTR may be calculated as the I&S fund taxes collected for eligible bonds for the last fiscal year of the preceding state fiscal biennium divided by the property value used for state funding purposes in that year, then multiplied by 100.

(B) EDTR may be calculated as the current year debt service payment on eligible bonds divided by the product of the current year average daily attendance (ADA) multiplied by $35, and then divided by $100.

(2) If the district demonstrates, in a manner prescribed by the commissioner, that the district must construct, acquire, renovate, or improve one or more instructional facilities to serve the children of military personnel transferred to a military installation in or near the district under the Defense Base Closure and Realignment Act of 1990 (10 USC §2687), the EDTR may be calculated using the method specified in paragraph (1)(B) of this subsection.

(3) The EDTR used in the funding formula cannot exceed the appropriated limit ($.29).

(4) For purposes of computing EDTR, tax collections or payment amounts associated with bonded debt in the IFA program shall be excluded from the calculation.

(d) Data and payment cycles. The necessary data elements to calculate state assistance for existing debt and the associated payment cycle are determined by the commissioner of education.

(1) An initial, preliminary payment of state assistance will be made as soon as practicable after September 1 of each year. This payment will be based on an estimate of ADA; the taxable value of property certified by the comptroller of public accounts for the preceding school year as determined in accordance with Government Code, Chapter 403, Subchapter M; and the amount of taxes budgeted to be collected for payment of eligible bonds. Districts will supply information about budgeted taxes in July on a data collection survey.

(2) Requests for payments and or adjustments submitted to the TEA after December 15 shall be processed with the payments due for the following fiscal year in accordance with TEC, §46.035.

(3) A final determination of assistance for a school year will be made at the close of business for the current school year when final counts of ADA and collection amounts for eligible debt are available. This determination will also take into account, if applicable, a reduced property value that reflects either a rapid decline pursuant to TEC, §42.2521, or a grade level adjustment pursuant to TEC, §42.106.

(A) Any additional amounts owed will be paid as soon as practicable after the final determination is made.

(B) Any overpayment will be subtracted from the EDA in the subsequent year. If no such assistance is due in the subsequent school year, the Foundation School Fund will be reduced accordingly. If no payments are due from the Foundation School Fund, the district will be notified about the overpayment and must remit that amount to the TEA no later than 30 days after notification.

(C) Adjustments to state assistance based on changes in the final counts of ADA, changes to a district's property value, changes to IFA eligible debt, or any other reason must be requested no later than three years following the close of the school year for which the adjustment is sought.

(e) Deposit and uses of funds.

(1) Funds received from the state for assistance with existing debt must be deposited in the district's I&S fund and must be taken into account before setting the I&S fund tax rate.

(2) State and local shares of the EDA must be used for the exclusive purpose of making principal and interest payments on eligible debt.

(f) Refinancing of eligible debt.

(1) A district that refinances eligible debt in part or in full must inform the TEA division responsible for state funding in writing and must provide appropriate documentation related to the refinancing, including payment schedules for the refinanced debt that clearly identify the bonds being refinanced and the debt service attributable to the refinanced bonds, if available. Refinancing of eligible debt includes:

(A) the refunding of eligible debt through the issuance of refunding bonds; and

(B) the conversion of the period, mode, or index used to determine the interest rate for eligible debt in accordance with the order authorizing the issuance or delivery of such eligible debt.

(2) In order to retain eligibility for EDA funding, a district shall submit an EDA correction form packet in accordance with subsection (b)(3) of this section to the TEA division responsible for state funding no later than 180 days after the date the refunding bonds were approved for sale by the office of the attorney general (or, in the case of a conversion, such information shall be submitted within 180 days after the date of the conversion). Failure to submit the information required by this paragraph within 180 days after the date the refunding bonds were approved for sale by the attorney general (or, in the case of a conversion, within 180 days after the date of the conversion) will disqualify otherwise eligible bonds for EDA funding as described in subsection (b)(4) of this section. Such bonds will remain ineligible until such information is provided to the TEA division responsible for state funding. The commissioner may require that EDA funding paid to a district for such ineligible debt service be refunded by the district.

(3) The portion of the debt eligible for state assistance on refinanced bonds is subject to the same limits as eligible debt that has not been refinanced.

(4) If a refinancing transaction decreases the current year bond payment requirement, the reduced payment amount shall be the basis of determining the limit on funding.

(5) If a refinancing transaction increases the bond payment requirement, the amount of increase shall not be used to determine state aid unless the pricing took place prior to January 1 of the last fiscal year of the preceding state fiscal biennium. The total debt service eligible for state assistance will be limited to the district's total debt service prior to January 1 of the last fiscal year of the preceding state fiscal biennium.

(g) Reports required. The commissioner shall require such information and reports as are necessary to assure compliance with applicable laws.

(1) The commissioner shall require immediate notification by a district of relevant financing activities as described in subsections (b)(3) and (b)(5) of this section. Failure by a district to make such notification will result in the disqualification of debt service from EDA state aid as described in subsections (b)(4) and (b)(5)(C) of this section. A district is also required to report changes in use of bond proceeds, or other actions taken by the district that might affect state funding requirements by submitting a complete EDA correction form packet, or possibly face disqualification of debt service from EDA state aid, as described in subsections (b)(4) and (b)(5)(C) of this section.

(2) A complete EDA correction form packet includes:

(A) a completed EDA correction form;

(B) the appropriate schedules needed to identify the original EDA allotment award or the most recently approved revised allotment award and changes to the title of the debt issuance, the authorization to issue the debt, and other relevant terms;

(C) the appropriate schedules needed to describe changes in debt service schedules;

(D) a copy of the FOS, or, if an FOS is not available, the final bond order or other official document describing the relevant financing activity, including a final debt service requirement schedule, the sources and uses schedule, and the schedule of refinanced bonds;

(E) a copy of the letter from the attorney general approving the transaction, if the transaction required approval by the attorney general; and

(F) copies of the payment vouchers for the payments made on the debt associated with the allotment, if requested by the TEA.

(3) Receipt of the complete EDA correction form packet is required before debt service payments on the relevant debt issuances will be qualified for EDA state aid.

(4) Upon evaluation of the complete EDA correction form packet, the TEA may request additional supporting documentation.

§61.1036: School Facilities Standards for Construction on or after January 1, 2004

(a) Definitions and procedures. The following words, terms, and procedures, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Architect--An individual registered as an architect under the Texas Occupations Code, Chapter 1051, and responsible for compliance with the architectural design requirements and all other applicable requirements of the Texas Occupations Code, Chapter 1051.

(2) Educational program--A written document, developed and provided by the district, that includes the following information:

(A) a summary of the school district's educational philosophy, mission, and goals; and

(B) a description of the general nature of the district's instructional program in accordance with §74.1 of this title (relating to Essential Knowledge and Skills). The written educational program should describe:

(i) the learning activities to be housed, by instructional space;

(ii) how the subject matter will be taught (methods of instructional delivery);

(iii) the materials and equipment to be used and stored;

(iv) utilities and infrastructure needs; and

(v) the characteristics of furniture needed to support instruction.

(3) Educational specifications--A written document for a proposed new school facility or major space renovation that includes a description of the proposed project, expressing the range of issues and alternatives. School districts that do not have personnel on staff with experience in developing educational specifications shall use the services of a design professional or consultant experienced in school planning and design to assist in the development of the educational specifications. The school district shall allow for input from teachers, other school campus staff, and district program staff in developing the educational specifications. The following information should be included in the educational specifications:

(A) the instructional programs, grade configuration, and type of facility;

(B) the spatial relationships--the desired relationships for the functions housed at the facility:

(i) should be developed by the school district to support the district's instructional program;

(ii) should identify functions that should be:

(I) adjacent to, immediately accessible;

(II) nearby, easily accessible; and

(III) removed from or away from; and

(iii) should relate to classroom/instructional functions, instructional support functions, building circulation, site activities/functions, and site circulation;

(C) number of students;

(D) a list of any specialized classrooms or major support areas, noninstructional support areas, outdoor learning areas, outdoor science discovery centers, living science centers, or external activity spaces;

(E) a schedule of the estimated number and approximate size of all instructional and instructional support spaces included in the facility;

(F) estimated budget for the facility project;

(G) school administrative organization;

(H) provisions for outdoor instruction;

(I) hours of operation that include the instructional day, extracurricular activities, and any public access or use;

(J) the safety of students and staff in instructional programs, such as science and vocational instruction; and

(K) the overall security of the facility.

(4) Engineer--An individual registered as an engineer under the Texas Occupations Code, Chapter 1001, and responsible for compliance with the engineering design requirements and all other applicable requirements of the Texas Occupations Code, Chapter 1001.

(5) Grade levels:

(A) elementary school level--a school facility that includes some or all grades from prekindergarten through Grade 5 or Grade 6;

(B) middle school level--a school facility that includes some or all grades from Grade 6 through Grade 8 or Grade 9, or a school facility that includes only Grade 6;

(C) high school level--a school facility that includes some or all grades from Grade 9 or Grade 10 through Grade 12, or a school facility that includes only Grade 9; and

(D) secondary school level--a school facility that includes some or all grades from Grade 6 through Grade 12.

(6) Hazardous chemical--As defined by the Texas Health and Safety Code, Chapter 502, Hazard Communication Act.

(7) Instructional space--General classrooms, specialized classrooms, outdoor learning areas, and major support areas.

(8) Library--Library will include the following minimum requirements:

(A) reading/instructional area;

(B) reference/independent study area;

(C) stack area;

(D) circulation desk/area;

(E) computer/online reference areas; and

(F) necessary ancillary areas, such as offices, workrooms, head-end room, and storage rooms.

(9) Long-range school facility plan--School districts are encouraged to formulate a long-range facilities plan prior to making major capital investments. When formulating a plan, a school district's process should allow for input from teachers, students, parents, taxpayers, and other interested parties that reside within the school district. Major considerations should include:

(A) a description of the current and future instructional program and instructional delivery issues;

(B) the age, condition, and educational appropriateness of all buildings on the campus (in district), considering condition of all components and systems as well as design flexibility, including an estimate of cost to replace or refurbish and appropriate recommendations;

(C) verification of the suitability of school site(s) for the intended use, considering size, shape, useable land, suitability for the planned improvements, and adequate vehicular and pedestrian access, queuing, parking, playgrounds and fields, etc.; and

(D) a timeline and a series of recommendations to modify or supplement existing facilities to support the district's instructional program.

(10) Major space renovations--Renovations to all or part of the facility's instructional space where the scope of the work in the affected part of the facility involves substantial renovations to the extent that most existing interior walls and fixtures are demolished and then subsequently rebuilt in a different configuration and/or function. Other renovations associated with repair or replacement of architectural interior or exterior finishes; fixtures; equipment; and electrical, plumbing, and mechanical systems are not subject to the requirements of subsections (d) and (e) of this section, but shall comply with applicable building codes as required by subsection (f) of this section.

(11) Portable, modular building--An industrialized building as defined by the Texas Occupations Code, §1202.003, or any other manufactured or site-built building that is capable of being relocated and is used as a school facility.

(12) Square feet per student--The net square footage of a room divided by the maximum number of students to be housed in that room during any single class period.

(13) Square feet per room measurements--The net square footage of a room includes exposed storage space, such as cabinets or shelving, but does not include hallway space, classroom door alcoves, or storage space, such as closets or preparation offices. The net square footage of a room shall be measured from the inside surfaces of the room's walls.

(14) Abbreviations:

(A) ANSI--American National Standards Institute;

(B) ICC--International Code Council; and

(C) NFPA--National Fire Protection Association.

(b) Implementation date. The requirements for school facility standards shall apply to projects for new construction or major space renovations for which the construction documents have been approved by a school district board of trustees, or a board's authorized representative, on or after January 1, 2004. For projects for which a school district approved the construction documents prior to January 1, 2004, if a school district makes changes or revisions to the design of the projects on or after January 1, 2004, and before the end of construction, the changes or revisions are subject to the standards specified in §61.1033 of this title (relating to School Facilities Standards for Construction before January 1, 2004). For projects funded from bond elections passed prior to October 1, 2003, and for which a contract for construction has been awarded no later than December 31, 2005, a school district may comply with the standards specified in §61.1033(d)(2)(B)(ii) of this title in lieu of the standards specified in subsection (d)(5)(C)(iii) of this section, and with the standards specified in §61.1033(d)(2)(C)(ii) of this title in lieu of the standards specified in subsection (d)(5)(D)(ii) of this section.

(c) Certification of design and construction.

(1) In this section, the word "certify" indicates that the architect or engineer has reviewed the standards contained in this chapter and used the best professional judgment and reasonable care consistent with the practice of architecture or engineering in the State of Texas in executing the construction documents. The architect or engineer also certifies that these documents conform to the provisions of this section, except as indicated on the certification.

(2) The school district shall notify and obligate the architect or engineer to provide the required certification. The architect's or engineer's signature and seal on the construction documents shall certify compliance.

(3) To ensure that facilities have been designed and constructed according to the provisions of this section, each of the involved parties shall execute responsibilities as follows.

(A) The school district shall provide the architect or engineer the educational program and educational specifications approved by the board of trustees as required by this subchapter, and building code specifications for the facility. If a school district has a long-range school facility plan, it shall also be provided to the architect or engineer.

(B) The architect or engineer shall perform a building code search under applicable regulations that may influence the project, and shall certify that the design has been researched before it is final.

(C) The architect or engineer shall also certify that the facility has been designed according to the provisions of this section, based on the educational program, educational specifications, long-range school facility plan, building code specifications, and all documented changes to the construction documents provided by the district.

(D) The building contractor or construction manager shall certify that the facility has been constructed in general accordance with the construction documents specified in subparagraph (C) of this paragraph. If the school district acts as general contractor, it shall make the certification required by this paragraph.

(E) When construction is completed, the school district shall certify that the facility conforms to the design requirements specified in subparagraph (A) of this paragraph.

(F) The certifications specified in subparagraphs (A) - (E) of this paragraph shall be gathered on the "Certification of Project Compliance" form developed by the Texas Education Agency (TEA). The school district will retain this form in its files indefinitely until review and/or submittal is required by representatives of the TEA.

(d) Space, minimum square foot, and design requirements.

(1) A school district shall provide instructional space if required by the district educational specifications described in subsection (e) of this section.

(2) For each type of instructional space, a district shall satisfy the requirements of this section by using the standard for square feet per room specified in paragraph (5)(B) - (D) of this subsection. For school districts with facilities that have one or more classrooms with maximum class sizes that are normally less than 22 students at the elementary level and less than 25 students at the middle or high school level, the school districts may satisfy the requirements of this section for those classrooms by using the standard for the minimum square feet per student specified in paragraph (5)(B) - (D) of this subsection. These classrooms shall be designed on the basis of expected maximum class size, and not expected average class size. Upon submission by a district, alternate classroom designs with square feet per room measurements less than those specified in this subsection may be considered for approval by the TEA division responsible for state funding on a case-by-case basis.

(3) School districts should consider providing extra square footage in classrooms where the use on a regular basis of multiple computers, large furniture, televisions, mobile laptop carts, mobile video conferencing carts, monitors on carts, or the like is anticipated. To improve circulation and usability of classroom space, school districts with class sizes that are normally larger than 25 students for Grades 5-12 should also consider increasing the minimum classroom size by adding the appropriate minimum square feet per student specified in paragraph (5)(B) - (D) of this subsection for each student in excess of 25.

(4) Compliance with the standards specified in paragraph (5)(B) - (D) of this subsection will be evaluated based on the school district's intended full-time and/or part-time use of the areas, and not the name of the areas as identified in the construction documents.

(5) Instructional area size and design requirements.

(A) Design criteria. The school district shall provide the architect or engineer with all expected class sizes for the facilities, with the list of chemicals to be used in the science laboratories or science laboratory/classrooms, and with the number of computers anticipated in the library, so that the architect or engineer can adequately design the facilities to meet the criteria specified in subparagraphs (B) - (D) of this paragraph.

(B) General classrooms.

(i) Classrooms for prekindergarten-Grade 1 shall have a minimum of 800 square feet per room. School districts with small class sizes may have classrooms that provide a minimum of 36 square feet per student.

(ii) Classrooms at the elementary school level for Grades 2 and up shall have a minimum of 700 square feet per room. School districts with small class sizes may have classrooms that provide a minimum of 32 square feet per student.

(iii) Classrooms at the secondary school level shall have a minimum of 700 square feet per room. School districts with small class sizes may have classrooms that provide a minimum of 28 square feet per student.

(C) Specialized classrooms.

(i) A computer classroom used for the teaching of computer skills shall have a minimum of 900 square feet per room. The minimum room size is ideal for 25 students; 36 square feet per student should be added to the minimum square footage for each student in excess of 25. School districts with small class sizes may have computer classrooms that provide a minimum of 36 square feet per student. School districts should consider the heat output of computers when designing the ventilation system that serves a computer classroom.

(ii) Computer laboratories that are not used regularly for scheduled instruction but that are intended to support other instructional areas shall have a minimum of 25 square feet per computer station. For computer laboratories where the use of portable computers, such as laptop computers, is anticipated, the size may be reduced to 20 square feet per computer station.

(iii) The following provisions shall apply to combination science laboratories/classrooms, where each student has a lab station and where typically there is a clearly defined laboratory area and a clearly defined lecture area.

(I) Combination science laboratories/classrooms shall have a minimum of 900 square feet per room at the elementary school level. The minimum room size is adequate for 22 students; 41 square feet per student shall be added to the minimum square footage for each student in excess of 22.

(II) Combination science laboratories/classrooms shall have a minimum of 1,200 square feet per room at the middle school level. The minimum room size is adequate for 24 students; 50 square feet per student shall be added to the minimum square footage for each student in excess of 24.

(III) Combination science laboratories/classrooms shall have a minimum of 1,400 square feet per room at the high school level. The minimum room size is adequate for 24 students; 58 square feet per student shall be added to the minimum square footage for each student in excess of 24.

(IV) School districts with small class sizes may have combination science laboratories/classrooms that provide a minimum of 41 square feet per student but not less than 700 square feet total at the elementary school level, a minimum of 50 square feet per student but not less than 950 square feet total at the middle school level, and a minimum of 58 square feet per student but not less than 1,100 square feet total at the high school level.

(iv) For districts that choose to use separate science classrooms and science laboratories, the following provisions shall apply.

(I) A science classroom shall be a minimum of 700 square feet regardless of grade level served.

(II) A science laboratory shall have a minimum of 800 square feet at the elementary school level. The minimum laboratory size is adequate for 22 students; 36 square feet per student shall be added to the minimum square footage for each student in excess of 22.

(III) A science laboratory shall have a minimum of 900 square feet at the middle school level. The minimum laboratory size is adequate for 24 students; 38 square feet per student shall be added to the minimum square footage for each student in excess of 24.

(IV) A science laboratory shall have a minimum of 1,000 square feet at the high school level. The minimum laboratory size is adequate for 24 students; 42 square feet per student shall be added to the minimum square footage for each student in excess of 24.

(V) Science classrooms shall be provided at a ratio not to exceed 2:1 of science classrooms to science laboratories at the middle school and high school levels. The science laboratories shall be located convenient to the science classrooms they serve.

(VI) School districts with small class sizes may have science classrooms that provide a minimum of 32 square feet per student, and they may have science laboratories that provide a minimum of 36 square feet per student but not less than 600 square feet total at the elementary school level, a minimum of 38 square feet per student but not less than 700 square feet total at the middle school level, and a minimum of 42 square feet per student but not less than 800 square feet total at the high school level.

(v) If hazardous or vaporous chemicals are to be used in the science laboratories or science laboratories/classrooms, a separate chemical storage room shall be provided. The chemical storage room shall be separate from, and shall not be combined as part of, a preparation room or an equipment storage room; however, the chemical storage room may be located so that access is through a preparation room or equipment storage room. The chemical storage room shall be secure to prevent access to chemicals by students. One chemical storage room may be shared among multiple laboratories or laboratories/classrooms.

(vi) Each school science laboratory, science classroom, science laboratory/classroom, science preparatory room, and chemical storage room shall include the following provisions.

(I) A built-in fume hood shall be provided in each high school level chemistry or advanced placement chemistry laboratory or laboratory/classroom. A built-in fume hood should also be provided in each high school level integrated physics and chemistry laboratory or laboratory/classroom. The exhaust shall be vented to the outside above the roof and away from air vents.

(II) A built-in eye/face wash that can wash both eyes simultaneously shall be provided in each room where hazardous chemicals are used by instructors and/or students. The eye/face wash shall comply with the ANSI Standards for Shower and Eyewash Equipment (Z358.1). The tepid water required by ANSI Z358.1 is not required to come from a heated source; however, school districts that commonly experience lengthy periods of extremely cold temperatures during the winter season should consider a tepid water system with a heated source.

(III) A built-in safety shower shall be provided in each high school level chemistry or advanced placement chemistry laboratory or laboratory/classroom. A built-in safety shower should also be provided in each high school level integrated physics and chemistry laboratory or laboratory/classroom. The safety shower shall comply with the ANSI Standards for Shower and Eyewash Equipment (Z358.1). The tepid water required by ANSI Z358.1 is not required to come from a heated source; however, school districts that commonly experience lengthy periods of extremely cold temperatures during the winter season should consider a tepid water system with a heated source.

(IV) Ventilation systems serving science rooms shall be designed and constructed so that under normal operation the return air from the science rooms is not recirculated into non-science areas. In the chemical storage rooms, a ventilation system shall exhaust the air to the outside, and shall not be recirculated back into the space.

(V) An exhaust fan that is controlled by the instructor shall be provided in all rooms where hazardous or vaporous chemicals are to be used or stored. The exhaust fan shall be of sufficient size to exhaust the total volume of air in the room within 15 minutes. The exhaust shall be vented to the outside above the roof and away from air vents.

(VI) A minimum of 6 linear feet of total horizontal workspace, such as lab stations, lab tables, countertops, desktops, or some combination of these, shall be provided for each student in each middle school and high school science laboratory and science laboratory/classroom.

(VII) If electricity, gas, and/or water are provided in student areas, emergency shut-off controls shall be provided for each in a location accessible to the instructor but not easily accessible to students.

(vii) Special education classrooms shall have a minimum of 400 square feet per room. School districts with small class sizes may have rooms that provide a minimum of 40 square feet per student.

(viii) Specialized classrooms not otherwise identified within these standards shall at a minimum comply with the requirements specified in subparagraph (B) of this paragraph.

(ix) Compliance with the standards specified in clauses (iii) and (iv) of this subparagraph will be evaluated based on the average class size in those classrooms.

(D) Major support areas.

(i) Primary gymnasiums or physical education space, if required by the district's educational program, shall have a minimum of 3,000 square feet at the elementary school level; 4,800 square feet at the middle school level; and 7,500 square feet at the high school level.

(ii) A school district shall consider the School Library Standards and Guidelines as adopted under Texas Education Code, §33.021, when developing, implementing, or expanding library services. Libraries for campuses with a planned student capacity of 100 or less shall be a minimum of 1,400 square feet. Libraries for campuses with a planned student capacity of 101 to 500 shall be a minimum of 1,400 square feet plus an additional 4.0 square feet for each student in excess of 100. Libraries for campuses with a planned student capacity of 501 to 2,000 shall be a minimum of 3,000 square feet plus an additional 3.0 square feet for each student in excess of 500. Libraries for campuses with a planned student capacity of 2,001 or more shall be a minimum of 7,500 square feet plus an additional 2.0 square feet for each student in excess of 2,000. A school district that plans to locate more than 12 student computers in the library shall add 25 square feet of space for each additional computer anticipated. The space allotments within the library shall be based on a formula of 30% for the reading/instructional area and reference/independent study area; 45% for the stack area, circulation desk/area, and computer/online reference areas; and 25% for the necessary ancillary areas. Windows shall be placed so that adequate wall and floor space remains to accommodate the shelving necessary for the library collection size established by the School Library Standards and Guidelines.

(6) It is not the intent of these standards to limit the use of nontraditional, alternative, sustainable, and/or innovative school designs. A nontraditional design model is one that works to break down the scale of the school and to improve the connection of the student to the resources available within the school environment. If a school district chooses to use a nontraditional model, the following provisions shall apply.

(A) The instructional spaces where teachers will instruct groups of students in specialized coursework shall meet the standard, as appropriate based on group size, for square feet per room or for the minimum square feet per student specified in paragraph (5)(C) of this subsection.

(B) Large group lecture spaces that do not use tables or desks for the students shall have a minimum of 15 square feet per student. Large group lecture spaces that do use tables or desks for the students shall meet the standard, as appropriate based on group size, for square feet per room or for the minimum square feet per student specified in paragraph (5)(B) of this subsection. A minimum of 150 square feet shall be provided for each small group, conference, or office space area or room.

(C) An individual student learning area that is assigned to a specific student shall have a minimum of 35 square feet. An individual student learning area that is not assigned to a specific student shall have a minimum of 25 square feet.

(D) If necessary under the design model, up to half of the reading/reference area function of the library may be dispersed throughout the facility outside the normal library boundaries. The sum total square footage of all library-related areas shall meet the minimum square feet specified for libraries in paragraph (5)(D)(ii) of this subsection.

(7) Other space requirements should be developed from school district design criteria as required to meet educational program needs.

(e) Educational adequacy. A proposed new school facility or major space renovation of an existing school facility meets the conditions of educational adequacy if the design of the proposed project is based on the requirements of the school district's educational program, the educational specifications, and the student population that it serves.

(f) Construction quality.

(1) Districts with existing building codes.

(A) A school district located in an area that has adopted local construction codes shall comply with those codes (including building, fire, plumbing, mechanical, fuel gas, energy conservation, and electrical codes). The school district is not required to seek additional plan review of school facilities projects other than what is required by the local building authority. If the local building authority does not require a plan review, then a qualified, independent third party, not employed by the design architect or engineer, shall review the plans and specifications for compliance with the requirements of the adopted building code. The plan review shall examine compliance conditions for emergency egress, fire protection, structural integrity, life safety, plumbing, energy conservation, and mechanical and electrical design. The review shall be conducted prior to the commencement of construction and must be conducted by a qualified building code consultant or a third party architect or engineer. A qualified building code consultant is a person who maintains, as a minimum, a current certification from the ICC. Associated fees shall be the responsibility of the school district. The reviewer shall prepare a summary list of any conditions not in conformance with the provisions of the adopted building code and is required to send a copy to the school district, design architect, or engineer. The design architect or engineer shall revise the plans and specifications as necessary and certify code compliance to the district. The reviewer, in his or her reasonable judgment and with the approval of the local building authority, may allow a limited number of variances from the codes if such variances do not negatively affect the quality or safety of the facility. Any disputes shall be a matter for contract resolution.

(B) For school facilities projects subject to these standards, and where not otherwise required by local code, fire alarm systems shall be provided. Fire alarm systems shall be designed and installed in accordance with applicable portions of the latest edition of the International Building Code (IBC) and International Fire Code (IFC).

(C) As part of their school facilities projects and where not otherwise required by local code, school districts should consider providing automatic sprinkler systems for fire protection, fire suppression, and life safety. In absence of a local code, each automatic sprinkler system shall be installed in accordance with the latest edition of the IBC and IFC.

(D) If the local building authority does not conduct reviews and inspections during the course of construction of the facility, then a qualified, independent third party, not employed by the design architect or engineer or contractor, should perform a reasonable number of reviews and inspections during the course of construction for compliance with the requirements of the adopted building code. The reviews and inspections should examine compliance conditions for emergency egress, fire protection, structural integrity, life safety, plumbing, energy conservation, and mechanical and electrical design. A qualified code inspector is a person who maintains, as a minimum, a current certification from the ICC as a combination commercial inspector and commercial energy inspector.

(2) Districts without existing building codes.

(A) A school district located in an area that has not adopted local building codes shall adopt and use the building code and related fire, plumbing, mechanical, fuel gas, and energy conservation codes from the latest edition of the family of International Codes as published by the ICC; and the National Electric Code as published by the NFPA. As an alternative, a school district may adopt the building code and related fire, plumbing, mechanical, fuel gas, and energy conservation codes as adopted by a nearby municipality or county. A qualified, independent third party, not employed by the design architect or engineer, shall review the plans and specifications for compliance with the requirements of the adopted building code. The plan review shall examine compliance conditions for emergency egress, fire protection, structural integrity, life safety, plumbing, energy conservation, and mechanical and electrical design. The review shall be conducted prior to the commencement of construction and must be conducted by a qualified building code consultant or a third party architect or engineer. A qualified building code consultant is a person who maintains, as a minimum, a current certification from the ICC. Associated fees shall be the responsibility of the school district. The reviewer shall prepare a summary list of any conditions not in conformance with the provisions of the adopted building code and is required to send a copy to the school district, design architect, or engineer. The design architect or engineer shall revise the plans and specifications as necessary and certify code compliance to the district. The reviewer, in his or her reasonable judgment, may allow a limited number of variances from the codes if such variances do not negatively affect the quality or safety of the facility. Any disputes shall be a matter for contract resolution.

(B) For school facilities projects subject to these standards, fire alarm systems shall be provided. Fire alarm systems shall be designed and installed in accordance with applicable portions of the latest edition of the IBC and IFC.

(C) As part of their school facilities projects, school districts should consider providing automatic sprinkler systems for fire protection, fire suppression, and life safety. Each automatic sprinkler system shall be installed in accordance with the latest edition of the IBC and IFC.

(D) A qualified, independent third party, not employed by the design architect or engineer or contractor, should perform a reasonable number of reviews and inspections during the course of construction of the facility for compliance with the requirements of the adopted building code. The reviews and inspections should examine compliance conditions for emergency egress, fire protection, structural integrity, life safety, plumbing, energy conservation, and mechanical and electrical design. A qualified code inspector is a person who maintains, as a minimum, a current certification from the ICC as a combination commercial inspector and commercial energy inspector.

(3) Special provisions for portable, modular buildings. Any portable, modular building capable of being relocated that is purchased or leased for use as a school facility by a school district, whether that building is manufactured off-site or constructed on-site, must comply with all provisions of this section. Effective September 1, 2007, the following additional provisions shall apply to any portable, modular building that is purchased or leased for use as a school facility by a school district.

(A) A school district located in an area that has adopted local construction codes shall have the portable, modular building, including the construction of the foundation system and the erection and installation of the building on the foundation, inspected by the local building authority for compliance with the mandatory building codes or approved designs, plans, and specifications. The school district is not required to seek additional inspection of the portable, modular building other than what is required by the local building authority. If the local building authority does not perform inspections, then a qualified, independent third party, not employed by the design architect, engineer, contractor, or manufacturer, shall inspect the facility, including the construction of the foundation system and the erection and installation of the facility on the foundation, for compliance with the mandatory building codes or approved designs, plans, and specifications. The inspections shall be performed within 30 days of the completion of the construction, erection, and installation of the facility on the site, and the school district shall not occupy or use the facility until the independent third party makes a final determination that the facility is in compliance with all provisions of this section. For a manufactured portable, modular building that is an industrialized building as defined by the Texas Occupations Code, §1202.003, the factory inspection performed under the oversight of the Texas Department of Licensing and Regulation shall suffice to determine compliance of the building envelope with the mandatory building codes or approved designs, plans, and specifications in lieu of an inspection by the local building authority or an independent third party for a portable, modular building constructed on or after January 1, 1986; however, an inspection of the construction of the foundation system and the erection and installation of the portable, modular building on the foundation shall still be performed.

(B) A school district located in an area that has not adopted local building codes shall have the portable, modular building, including the construction of the foundation system and the erection and installation of the building on the foundation, inspected by a qualified, independent third party, not employed by the design architect, engineer, contractor, or manufacturer, for compliance with the mandatory building codes or approved designs, plans, and specifications. The inspections shall be performed within 30 days of the completion of the construction, erection, and installation of the facility on the site, and the school district shall not occupy or use the facility until the independent third party makes a final determination that the facility is in compliance with all provisions of this section. For a manufactured portable, modular building that is an industrialized building as defined by the Texas Occupations Code, §1202.003, the factory inspection performed under the oversight of the Texas Department of Licensing and Regulation shall suffice to determine compliance of the building envelope with the mandatory building codes or approved designs, plans, and specifications in lieu of an inspection by an independent third party for a portable, modular building constructed on or after January 1, 1986; however, an inspection of the construction of the foundation system and the erection and installation of the portable, modular building on the foundation shall still be performed.

(C) A qualified, independent third party inspector is a person who maintains, as a minimum, a current certification from the ICC as a combination commercial inspector and commercial energy inspector.

(D) A school district that has purchased or leased a portable, modular building for use as a school facility on or after September 1, 2007, and before the effective date of this section, shall have the inspections required by this subsection performed within 60 days of the effective date of this section; any items of noncompliance identified during the inspections shall be brought into compliance by the school district within 90 days of the date of the inspections.

(4) Other provisions.

(A) For school facilities projects subject to these standards, an adequate technology, electrical, and communications infrastructure shall be provided. To ensure the adequacy of the infrastructure, the school district and the architect or engineer shall seek the input of the school district staff, including, but not limited to, the technology director, the library director, the program directors, the maintenance director, and the campus staff, in the planning and design of the infrastructure.

(B) As part of their school facilities projects, school districts should consider the use of designs, methods, and materials that will reduce the potential for indoor air quality problems. School districts should consult with a qualified indoor air quality specialist during the design process to ensure that the potential for indoor air quality problems after construction and occupancy of a facility is minimized. School districts should use the voluntary indoor air quality guidelines adopted by the Texas Department of State Health Services under the Texas Health and Safety Code, Chapter 385. School districts should also use the "Indoor Air Quality Tools for Schools" program administered by the U.S. Environmental Protection Agency.

(C) As part of their school facilities projects, school districts should consider the use of sustainable school designs. A sustainable design is a design that minimizes a facility's impact on the environment through energy and resource efficiency.

(D) School district facilities shall comply with the "Texas Accessibility Standards" as promulgated under the Texas Government Code, Chapter 469, Elimination of Architectural Barriers, as prepared and administered by the Texas Department of Licensing and Regulation.

(E) School district facilities shall comply with the provisions of the Americans with Disabilities Act of 1990 (Title I and Title II).

(F) School district facilities shall comply with all other local, state, and federal requirements as applicable.

§61.1037: Science Laboratory Grant Program

(a) Definitions. The following words and terms, when used in this section, shall have the following meaning, unless the context clearly indicates otherwise.

(1) Average daily attendance--The definition of this term is assigned in the Texas Education Code (TEC), §42.005(a).

(2) Construction project--A project consisting of the construction of a new free-standing building or the construction of a new addition to an existing building.

(3) Renovation project--A project consisting of the renovation of space that is not currently used as a science laboratory within an existing building that does not include the addition of any new space.

(4) High school campus--A campus that houses Grades 9-12. For purposes of this grant program, a school district that has a separate Grade 9 campus and a separate Grades 10-12 campus, or some similar division, shall combine the campuses on the application and submit as one campus. For purposes of this grant program, a district that has a campus that serves Grades 6-12, Kindergarten-Grade 12, or some similar range, shall identify only the number of students enrolled in Grades 9-12 on the application.

(5) Science laboratories--Rooms identified as combination science laboratories/classrooms per §61.1036(d)(5)(C)(iii) of this title (relating to School Facilities Standards for Construction on or after January 1, 2004), or identified as laboratories per §61.1036(d)(5)(C)(iv) of this title. To provide clarity in the exercise of the grant program governed by this section, rooms identified as laboratories per §61.1036(d)(5)(C)(iv) of this title shall be referred to as "stand-alone laboratories" within this section and within the grant application.

(6) Enrollment--The actual high school campus enrollment for the school year before the year in which a district submits an application for the science laboratory grant program.

(7) Support areas--For a construction project, support areas are limited to prep rooms, storage areas, and corridor access space. For a renovation project, support areas are limited to prep rooms and storage areas.

(b) Application process. A school district must complete an application to request funding under the science laboratory grant program. The application shall contain at a minimum the following:

(1) a description of each individual high school campus for which funds are being requested;

(2) the enrollment on each high school campus;

(3) the number of existing science laboratories on each high school campus;

(4) a certification that the existing district science laboratories are insufficient in number to comply with the curriculum requirements imposed for the recommended and advanced high school programs under TEC, §28.025(b-1)(1);

(5) the number of science laboratories to be constructed or renovated; and

(6) a timeline for each construction or renovation project proposed by the high school campus.

(c) Prioritization and notice of award. Upon close of the application cycle, all eligible applications shall be ranked in order of the district's property wealth per student in average daily attendance. Grants will be awarded beginning with the district with the lowest property wealth and continue until all available funds have been used. The commissioner of education shall award the full amount of the grant to which a district is entitled under this section, except that the commissioner may award less than the full amount to the last district for which any funds are available. By posting on the Texas Education Agency (TEA) website, the commissioner shall notify each district of the amount of grant awarded and its position in the rank order for the application cycle.

(d) Data sources.

(1) For purposes of determining prioritization, the projected average daily attendance as adopted by the legislature for appropriations purposes shall be used.

(2) For purposes of prioritization, the final property values certified by the comptroller of public accounts for the tax year preceding the year in which assistance is to begin shall be used. If final property values are unavailable, the most recent projection of property values shall be used.

(3) For purposes of prioritization, the commissioner may consider, before the deadline for receipt of applications for that fiscal year, adjustments to data values determined to be erroneous.

(e) Payments, determination of need, and eligible projects.

(1) Payment of the grant shall be made as soon as practicable after June 1 of each year. No payments shall be made until all initial submissions required by the application have been received and approved by the TEA division responsible for state funding.

(2) For a construction project, the grant amount shall be limited to not more than $200 per square foot of the science laboratory to be constructed.

(A) For science laboratories identified as combination science laboratories/classrooms, the grant amount will be paid on the actual square footage plus reasonable support areas identified on the application not to exceed 2,050 square feet for each science laboratory/classroom.

(B) For science laboratories identified as stand-alone laboratories, the grant amount will be paid on the actual square footage plus reasonable support areas identified on the application not to exceed 1,550 square feet for each stand-alone science laboratory.

(3) For a renovation project, the grant amount shall be limited to not more than $100 per square foot of the science laboratory to be renovated.

(A) For science laboratories identified as combination science laboratories/classrooms, the grant amount will be paid on the actual square footage plus reasonable support areas identified on the application not to exceed 1,640 square feet for each science laboratory/classroom.

(B) For science laboratories identified as stand-alone laboratories, the grant amount will be paid on the actual square footage plus reasonable support areas identified on the application not to exceed 1,240 square feet for each stand-alone science laboratory.

(4) The maximum number of science laboratories/classrooms eligible for funding for each campus under this grant program is determined by subtracting the number of existing laboratories/classrooms on the campus from the number of laboratories/classrooms needed. The number of laboratories/classrooms needed on a campus is calculated using the formula "E x LC" where:

(A) "E" is the campus enrollment;

(B) "LC" is the laboratories/classrooms calculation factor, which is equal to 0.007353; and

(C) any resulting fractional number of laboratories/classrooms needed is rounded up to the next whole number.

(5) The maximum number of science stand-alone laboratories eligible for funding for each campus under this grant program is determined by subtracting the number of existing stand-alone laboratories on the campus from the number of stand-alone laboratories needed. The number of stand-alone laboratories needed on a campus is calculated using the formula "E x SAL" where:

(A) "E" is the campus enrollment;

(B) "SAL" is the stand-alone laboratories calculation factor, which is equal to 0.003676; and

(C) any resulting fractional number of stand-alone laboratories needed is rounded up to the next whole number.

(6) The following additional limitations and requirements apply to the science laboratory grant program.

(A) For the science laboratory grant program application cycle that occurs before August 31, 2008, for a project to be eligible for the grant program, a contract for construction or renovation cannot have been entered into by a school district before September 1, 2007.

(B) For science laboratory grant program application cycles that fall after August 31, 2008, for a project to be eligible for the grant program, a contract for construction or renovation cannot have been entered into by a school district at the time of the application deadline.

(C) Renovations to existing science laboratories/classrooms or to existing science stand-alone laboratories are not eligible for this grant program.

(D) Eligibility is limited to construction or renovation projects at high school campuses.

(E) All projects must comply with §61.1036 of this title (relating to School Facilities Standards for Construction on or after January 1, 2004).

(f) Deadlines and accountability.

(1) By January 15 of each fiscal year, the commissioner shall certify whether the amount appropriated for the fiscal year for purposes of TEC, Chapter 46, Subchapters A and B, exceeds the amount to which school districts are entitled under those subchapters for that fiscal year. The commissioner shall use the excess funds, in an amount not to exceed $20 million, for the purpose of making grants under this section. The commissioner shall conduct an annual application cycle with a deadline of April 15 or the next working day after April 15 every year based on the availability of excess funds. A district may file an amendment to its initial application before the deadline; any amendment received after the deadline will not be considered.

(2) When all funds within an application cycle have been awarded, the remaining unfunded applications shall carry forward and be considered valid applications for the two application cycles immediately following the initial application except for those applications withdrawn by the submitting districts before the end of the two following cycles. A district that subsequently proceeds with its construction or renovations projects in the absence of grant funds shall not have its application invalidated. An application that remains unfunded after three application cycles will expire and will not be eligible for consideration in future cycles.

(3) If no excess funds are available, the commissioner will not make awards, and all applications received on or before the April 15 deadline shall be considered valid applications for the following cycle except for those applications withdrawn by the submitting districts before the end of the following application cycle. A district that subsequently proceeds with its construction or renovation projects in the absence of grant funds shall not have its application invalidated.

(4) An application received after the deadline shall be considered a valid application for the following cycle unless withdrawn by the submitting district before the end of the following application cycle.

(5) Within one year of award of grant, the district must submit evidence in a form acceptable to the commissioner that a contract has been awarded for the construction or renovation projects identified in the application. Within two years of award of grant, the district must submit evidence in a form acceptable to the commissioner that all work has been completed for the construction or renovation projects identified in the application, with a final accounting of the costs incurred by the district for the projects. Failure to provide satisfactory evidence by any of the deadlines specified in this paragraph could be cause for the commissioner to cancel the district's grant and to recover the grant amount from other scheduled FSP payments due to the district.

(g) Reports required. The commissioner shall require such information and reports as are necessary to assure compliance with applicable laws.

Comments

Source Note: The provisions of this §61.1037 adopted to be effective July 6, 2008, 33 TexReg 5004

Subchapter DD

§61.1041: Missing Child Prevention and Identification Program: Fingerprints and Photographs

(a) In accordance with the Texas Education Code, §33.054, a photograph of a student shall be retained by the participating school until the photograph is replaced by a photograph taken after the date of the original photograph or until the expiration of three years, whichever is earlier.

(b) When a student withdraws from a school district, all photographs and fingerprints of the student taken as part of the Missing Child Prevention and Identification Program shall be returned to the parent or guardian of the student. If the district is unable to return the photograph and fingerprints to the parent or guardian, the photograph and fingerprints shall be destroyed by the school district.

Comments

Source Note: The provisions of this §61.1041 adopted to be effective September 1, 1996, 21 TexReg 3706.

Subchapter EE

§61.1051: Reporting Child Abuse and Neglect

(a) The board of trustees of a school district shall establish and annually review policies for reporting child abuse and neglect. The policies shall follow the requirements outlined in the Family Code, Chapter 261.

(1) The policies must require that every school employee, agent, or contractor who suspects child abuse or neglect submit a written or oral report to at least one of the following authorities within 48 hours or less, as determined by the board of trustees, after learning of facts giving rise to the suspicion:

(A) a local or state law enforcement agency;

(B) the Texas Department of Protective and Regulatory Service, Child Protective Services Division;

(C) a local office of Child Protective Services, where available; or

(D) the state agency that operates, licenses, certifies, or registers the facility in which the alleged child abuse or neglect occurred.

(2) The policies must notify school personnel of the following:

(A) penalties under the Penal Code, §39.06, Family Code, §261.109, and Chapter 249 of this title (relating to Disciplinary Proceedings, Sanctions, and Contested Cases including Enforcement of the Educator's Code of Ethics) for failure to submit a required report of child abuse or neglect;

(B) applicable prohibitions against interference with an investigation of a report of child abuse or neglect, including the following:

(i) Family Code, §261.302 and §261.303, prohibiting school officials from denying an investigator's request to interview a student at school; and

(ii) Family Code, §261.302, prohibiting school officials from requiring the presence of a parent or school administrator during an interview by an investigator;

(C) immunity provisions applicable to a person who reports child abuse or neglect or otherwise assists an investigation in good faith;

(D) confidentiality provisions relating to reports of suspected child abuse or neglect;

(E) any disciplinary action that may result from noncompliance with the district's reporting policy; and

(F) the prohibition under Texas Education Code (TEC), §26.0091, against using or threatening to use the refusal to consent to administration of a psychotropic drug to a child or to any other psychiatric or psychological testing or treatment of a child as the sole basis for making a report of neglect, except as authorized by TEC, §26.0091.

(3) The policies must be consistent with the Family Code, Chapter 261, and 40 TAC Chapter 700 (relating to Child Protective Services) regarding investigations by the Texas Department of Protective and Regulatory Services, including regulations governing investigation of abuse by school personnel and volunteers.

(4) The policies may not require that school personnel report suspicions of child abuse or neglect to a school administrator prior to making a report to one of the agencies identified in subsection (a)(1) of this section.

(5) The policies must include the current toll-free telephone number of the Texas Department of Protective and Regulatory Services.

(b) The policies required by this section and adopted by the board of trustees must be distributed to all school personnel at the beginning of each school year. The policies shall be addressed in staff development programs at regular intervals determined by the board of trustees.

Comments

Source Note: The provisions of this §61.1051 adopted to be effective December 5, 1999, 24 TexReg 10527; amended to be effective January 20, 2004, 29 TexReg 457

Subchapter FF

§61.1061: Application Form for Diploma and Evidence of Eligibility

(a) In accordance with Texas Education Code (TEC), §28.0251, a school district may issue a high school diploma to a person who:

(1) is an honorably discharged member of the armed forces of the United States;

(2) was scheduled to graduate from high school after 1940 and before 1975; and

(3) left high school before graduation to serve in World War II, the Korean War, or the Vietnam War.

(b) A school district may issue a diploma to an eligible veteran notwithstanding the fact that the person holds a high school equivalency certificate or is deceased.

(c) The Texas Education Agency will develop and make available an application form to be used by a veteran or a person acting on behalf of a deceased veteran. The application form is provided in this subsection entitled "Application for a High School Diploma for Certain Veterans."

Attached Graphic

(d) Acceptable evidence of eligibility for a diploma under TEC, §28.0251, is:

(1) a completed, signed, and dated application form; and

(2) a copy of the discharge notification (DD form 214, enlisted record and report of separation, or discharge certificate) from the appropriate branch of the United States armed forces indicating dates of military service during World War II, the Korean War, or the Vietnam War.

(e) The acceptable evidence of eligibility described in subsection (d) of this section must be submitted to the school district where the veteran was enrolled in high school. If the veteran's school district no longer exists (e.g., the district was consolidated into another district), the acceptable evidence must be submitted to the consolidated district, which will be responsible for issuing the high school diploma. In the case of high schools that have experienced consolidation or for some other reason no longer exist, the local school district that assumed the records of the previously existing school will make the determination as to which existing high school will issue the veteran's diploma.

Comments

Source Note: The provisions of this §61.1061 adopted to be effective August 12, 2001, 26 TexReg 5806; amended to be effective June 11, 2006, 31 TexReg 4611

Subchapter GG

§61.1071: Counseling Public School Students Regarding Higher Education

(a) In accordance with Texas Education Code (TEC), §33.007, a counselor shall provide certain information about higher education to a student and a student's parent or guardian during the first year the student is enrolled in a high school or at the high school level in an open-enrollment charter school and again during the student's senior year.

(b) The information that counselors provide in accordance with subsection (a) of this section must include information regarding all of the following:

(1) the importance of higher education, which:

(A) includes workforce education, liberal arts studies, science education, graduate education, and professional education to provide broad educational opportunities for all students;

(B) furthers students' intellectual and academic development; and

(C) offers students more career choices and a greater potential earning power;

(2) the advantages of completing the recommended high school curriculum or higher, including, at a minimum, curriculum programs which:

(A) provide students with opportunities to complete higher-level course work, particularly in mathematics, science, social studies, and languages other than English, thereby:

(i) increasing students' readiness for higher education and reducing the need for additional preparation for college-level work;

(ii) preparing students for additional advanced work and research in both career and educational settings;

(iii) allowing students, in certain instances, to receive college credit for their high school course work; and

(iv) enabling students to be eligible for certain financial aid programs for which they would otherwise be ineligible (e.g., the TEXAS grant program);

(B) enable students to receive an academic achievement record noting the completion of either the recommended program or higher; and

(C) provide students who elect to complete the distinguished achievement program with an opportunity to demonstrate student performance at the college or career level by demonstrating certain advanced measures of achievement;

(3) the advantages of taking courses leading to a high school diploma relative to the disadvantages of preparing for a high school equivalency examination, including:

(A) the progressive relationship between education and income; and

(B) the greater possibility for post-secondary opportunities (including higher education and military service) that are available to students with a high school diploma;

(4) financial aid eligibility, including;

(A) the types of available aid, not limited to need-based aid, and including grants, scholarships, loans, tuition and/or fee exemptions, and work-study;

(B) the types of organizations that offer financial aid, such as federal and state government, civic or church groups, foundations, nonprofit organizations, parents' employers, and institutions of higher education; and

(C) the importance of meeting financial aid deadlines;

(5) instruction on how to apply for financial aid, including guidance and assistance in:

(A) determining when is the most appropriate time to complete financial aid forms; and

(B) completing and submitting the Free Application for Federal Student Aid (FAFSA) or any new version of this form as adopted by the U.S. Department of Education;

(6) the Texas Higher Education Coordinating Board's Center for Financial Aid Information, including its toll-free telephone line, its Internet website address, and the various publications available to students and their parents;

(7) the Automatic Admissions policy, which provides certain students who graduate in the top 10% of their high school class with automatic admission into Texas public universities; and

(8) the general eligibility and academic performance requirements for the TEXAS grant program, which allows students meeting the academic standards set by their college or university to receive awards for up to 150 credit hours or for six years or until they receive their bachelor's degree, whichever occurs first. The specific eligibility and academic performance requirements, along with certain exemptions to these requirements, are specified in Chapter 22, Subchapter L, of this title (relating to Toward Excellence, Access and Success (TEXAS) Grant Program). The general requirements include:

(A) Texas residency;

(B) financial need;

(C) registration for the Selective Service or exemption from this requirement;

(D) completion of the recommended high school program or higher or, in the case of a public high school that did not offer all of the courses necessary to complete the recommended or higher curriculum, a certification from the district that certifies that the student completed all courses toward such a curriculum that the high school had to offer;

(E) enrollment of at least three-quarters time in an undergraduate degree or certificate program within 16 months of high school graduation, unless an allowable exemption is satisfied; and

(F) no conviction of a felony or crime involving a controlled substance, unless certain conditions are met.

Comments

Source Note: The provisions of this §61.1071 adopted to be effective July 14, 2002, 27 TexReg 6027

Subchapter HH

§61.1081: Teacher Supply Reimbursement Grant Program

(a) Application process. In order to participate in the classroom supply reimbursement program authorized by Texas Education Code (TEC), §21.414, a school district must apply to the Texas Education Agency (TEA) for these funds by a date set by the commissioner of education. The application must include the following:

(1) a standard Teacher Supply Reimbursement Grant Program district application;

(2) the number of teachers and campus library media specialists who have received reimbursement for supply purchases in the last two years;

(3) the number of teachers and campus library media specialists anticipated to receive reimbursement under this program and the amount each teacher and campus library media specialist will be eligible to receive; and

(4) a district procedure that would ensure each teacher and campus library media specialist meets the requirement that an expenditure will benefit students.

(b) Eligibility requirements. To be eligible to participate in the classroom supply reimbursement program, a district will be required to:

(1) re-apply to participate each year;

(2) account for funds in accordance with applicable state and federal requirements;

(3) match individual reimbursements from the Teacher Supply Reimbursement Grant Program with an equal amount of local funds. Local matching funds may be donated, or otherwise provided, to the school district by local community groups, parent/teacher organizations, businesses, professional organizations, etc.;

(4) ensure that items purchased with grant funds are tangible items, of direct benefit to students;

(5) retain ownership of all durable goods purchased under this program. A district may develop a procedure allowing each teacher and campus library media specialist to retain ownership of goods of nominal value purchased with grant money; and

(6) return unexpended Teacher Supply Reimbursement Grant Program balances at the end of the state fiscal year for which they were awarded.

(c) Evaluation criteria. Applications to the TEA will be evaluated on the following criteria:

(1) information about a district's existing supply reimbursement program, if applicable;

(2) the balance between the number of teachers and campus library media specialists receiving reimbursements and the size of the reimbursements;

(3) the process by which a district would determine whether an expenditure meets the student benefit criteria as required in subsection (a)(4) of this section; and

(4) the district's size relative to other applicants.

(d) Other provisions.

(1) A district found in noncompliance with the provisions specified in this section must reimburse the state for funds unaccounted for or used for purposes not meeting the requirements in TEC, §21.414.

(2) A district found to have reduced its local expenditures may be required to refund the entire grant to the state.

(3) A district may allow, but not require, teachers and campus library media specialists to pool their respective supply monies for the purchase of an item, as long as the item meets the student benefit criteria established by the district.

(4) Funds for each grant period must be expended by the end date of that grant period.

(5) Total reimbursement to an individual teacher or campus library media specialist in a single year from the Teacher Supply Reimbursement Grant Program may not exceed $200. Reimbursements from local funds may exceed the matching requirement in subsection (b)(3) of this section.

(6) The reimbursement program may be implemented only if funds are specifically appropriated by the legislature for the program or if the commissioner identifies available funds, other than general revenue funds, that may be used for the program.

(e) Dispute resolution.

(1) A determination by the local school district board of trustees of any dispute involving teacher or campus library media specialist reimbursement is final and may not be appealed to the TEA, except as provided by TEC, §7.057. Nothing in this provision precludes the TEA from recovering funds from a district pursuant to an audit.

(2) A determination by the TEA in the administration of this program is final and may not be appealed.

(f) Expiration date. This section, issued under TEC, §21.414, expires September 1, 2007.

Comments

Source Note: The provisions of this §61.1081 adopted to be effective January 4, 2004, 28 TexReg 11585; amended to be effective August 13, 2006, 31 TexReg 6211

Subchapter II

§61.1091: Definitions

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Academically rigorous course work--Academically rigorous course work is an academically intense and high-quality program of study that provides students with the information and skills necessary to successfully enroll in entry-level courses at an institution of higher education without the need for developmental course work. Academically rigorous coursework includes four years of high school level mathematics and four years of high school level science.

(2) Advanced academic opportunity--An advanced academic opportunity includes the following:

(A) honors courses, such as College Board advanced placement and International Baccalaureate courses, and others as defined in §74.30 of this title (relating to Identification of Honors Courses), with the exception of the Social Studies Advanced Studies;

(B) dual enrollment courses for which students receive both high school and college credit, as limited by §74.25 of this title (relating to High School Credit for College Courses);

(C) an original research/project as described in §74.54 of this title (relating to Distinguished Achievement High School Program--Advanced High School Program) or by §74.64 of this title (relating to Distinguished Achievement High School Program--Advanced High School Program); and

(D) advanced technical credit courses.

(3) College readiness program--A college readiness program is any program, activity, or strategy designed to do either of the following:

(A) increase the number of students who are academically prepared to enroll in entry-level courses at institutions of higher education without the need for developmental course work; or

(B) increase the number of students who enroll in institutions of higher education.

(4) Developmental course work--As defined in §4.53 of this title (relating to Definitions), developmental course work is non-degree-credit course work designed to address a student's deficiencies.

(5) High school allotment--The high school allotment is the funding allocated under the Texas Education Code (TEC), §42.160.

(6) High school completion and success initiative--A high school completion and success initiative is any program, activity, or strategy designed to do the following:

(A) improve student achievement in high school; and

(B) increase the number of students who graduate from high school.

(7) Institution of higher education--An institution of higher education is any public technical institute, public junior college, public senior college or university, medical or dental unit, or other agency of higher education as defined in the TEC, §61.003.

(8) School district--For the purposes of this subchapter, an open-enrollment charter school is considered a school district.

Comments

Source Note: The provisions of this §61.1091 adopted to be effective November 9, 2006, 31 TexReg 9025; amended to be effective March 3, 2010, 35 TexReg 1732

§61.1092: Payment of the High School Allotment

(a) In accordance with the Texas Education Code (TEC), Chapter 42, Subchapter C, the Texas Education Agency (TEA) will distribute funds to school districts for the purpose of payment of the high school allotment, as specified by the provisions in this subchapter.

(b) Each school district must provide to the TEA an estimate of student enrollment for Grades 9-12 for the school district in a manner established by the commissioner of education.

(c) High school allotment funds will be distributed to each school district as a part of regularly scheduled state aid payments according to the district's Foundation School Program payment schedule.

(d) School districts must account for the receipt and expenditure of funds distributed under the TEC, §42.160, in accordance with §109.41 of this title (relating to Financial Accountability System Resource Guide). The commissioner may establish specific procedures for reporting the receipt and expenditure of high school allotment funds.

Comments

Source Note: The provisions of this §61.1092 adopted to be effective November 9, 2006, 31 TexReg 9025; amended to be effective March 3, 2010, 35 TexReg 1732

§61.1093: Use of Funds

In accordance with the Texas Education Code, §39.234(a), high school allotment funds may be spent on the following, which, unless otherwise noted, must be targeted toward Grades 6-12:

(1) programs that provide underachieving students, as defined by local policy, with the following:

(A) instruction in study skills for success in college level work;

(B) academic and community support for success in college preparatory classes;

(C) support to participate in academic competitions; and

(D) information about and access to college and financial aid;

(2) activities designed to increase the number of students who take preparatory college entrance examinations and college entrance examinations;

(3) programs that increase the number of students who enroll and succeed in College Board advanced placement courses and International Baccalaureate courses;

(4) programs that increase the number of students who take College Board advanced placement examinations and International Baccalaureate examinations;

(5) programs that expand participation in dual enrollment or concurrent enrollment courses;

(6) activities designed to increase access for underachieving students to college and financial aid;

(7) activities designed to create a college-going culture within a district or on a campus;

(8) early college high school programs that provide at-risk students and other students with the opportunity to graduate from high school with an associate's degree or 60 hours of credit toward a baccalaureate degree;

(9) programs that provide academic support and instruction to increase the number of students who complete the Recommended High School Program or the Distinguished Achievement Program as defined in Chapter 74, Subchapter E, of this title (relating to Graduation Requirements, Beginning with School Year 2004-2005) or Chapter 74, Subchapter F, of this title (relating to Graduation Requirements, Beginning with School Year 2007-2008);

(10) strategies that create small learning communities, advocacy programs, or advisory programs for students;

(11) programs or activities that create individualized high school graduation and postsecondary plans for students;

(12) programs that ensure that students have access to rigorous curriculum, effective instruction, and timely formative assessment;

(13) programs that create opportunities for middle and high school educators and college and university faculty to jointly identify college and secondary curricular requirements and expectations and develop means to align these requirements and expectations;

(14) summer transition programs and other programs that provide academic support and instruction for students entering Grade 9; and

(15) other high school completion and success initiatives as approved by the commissioner of education.

Comments

Source Note: The provisions of this §61.1093 adopted to be effective November 9, 2006, 31 TexReg 9025; amended to be effective March 3, 2010, 35 TexReg 1732

§61.1094: Exceptions for Alternative Uses of Funds

In accordance with the Texas Education Code, §39.234(b), before the beginning of each school year, the commissioner of education will identify school districts that are eligible for exceptions for alternative uses of high school allotment funds.

Comments

Source Note: The provisions of this §61.1094 adopted to be effective November 9, 2006, 31 TexReg 9025; amended to be effective March 3, 2010, 35 TexReg 1732

§61.1095: Allowable Expenditures

(a) A school district may use high school allotment funds to support a program or activity that is currently in place in the district or on a campus, provided that the program satisfies at least one of the permissible uses of funds identified in the Texas Education Code (TEC), §39.234(a), and further defined in §61.1093 of this title (relating to Use of Funds).

(b) A school district may spend high school allotment funds on the following, provided these items are for uses identified in the TEC, §39.234(a), and further defined in §61.1093 of this title:

(1) tuition and fees;

(2) textbooks and other instructional materials;

(3) transportation;

(4) equipment, including science laboratory equipment;

(5) technology;

(6) parent and community involvement and outreach;

(7) professional development;

(8) technical assistance services;

(9) performance reward and incentive programs for students;

(10) personnel costs, including salaries and benefits;

(11) stipends and extra-duty pay; and

(12) performance reward and incentive programs established in district policy or employment contracts.

(c) School districts may pool high school allotment funds to implement multidistrict programs for the uses of funds identified in the TEC, §39.234(a), and further defined in §61.1093 of this title.

Comments

Source Note: The provisions of this §61.1095 adopted to be effective November 9, 2006, 31 TexReg 9025; amended to be effective March 3, 2010, 35 TexReg 1732

§61.1096: Unallowable Expenditures

A school district may not spend high school allotment funds on indirect or administrative costs or athletic programs.

Comments

Source Note: The provisions of this §61.1096 adopted to be effective November 9, 2006, 31 TexReg 9025

§61.1097: Additional High School Completion and Success Initiatives Approved by the Commissioner

(a) To implement high school completion and success initiatives for students in Grades 6-12 other than those programs, activities, and strategies identified for Grades 6-12 in the Texas Education Code (TEC), §39.234(a), or further defined in §61.1093 of this title (relating to Use of Funds), a school district must apply to the Texas Education Agency (TEA), by a date set by the commissioner of education. The application must include a standard application as required by the TEA division responsible for approving high school completion and success initiatives under this subchapter. No application is needed to implement programs under §61.1093 of this title.

(b) The TEA will review and consider approval of applications submitted under this section.

(c) The TEA may consider criteria that include, but are not limited to, the following when determining whether to approve an application:

(1) indications that the initiative will improve student performance in relation to the performance indicators established in §61.1099 of this title (relating to School District Annual Performance Review);

(2) evidence that activities under the initiative address the needs of the target population participating in the initiative;

(3) indications that the design of the initiative reflects up-to-date knowledge about high school completion and success and/or college readiness and effective practices;

(4) the qualifications, experience, or certifications of personnel or external consultants involved in the initiative; and

(5) the appropriateness of proposed expenditures.

(d) A school district that receives approval from the TEA to implement a high school completion and success initiative under this section may be required to reapply for approval each year.

(e) The TEA may identify specific programs, activities, and strategies that are approved for use in the expenditure of high school allotment funds in addition to those identified in the TEC, §39.234(a), or further defined in §61.1093 of this title.

Comments

Source Note: The provisions of this §61.1097 adopted to be effective November 9, 2006, 31 TexReg 9025; amended to be effective March 3, 2010, 35 TexReg 1732

§61.1098: Policy Advisory Group

(a) The commissioner of education may create an advisory group composed of stakeholders, including the following:

(1) representatives from school districts;

(2) representatives from institutions of higher education;

(3) experts with high school completion and success and college readiness experience; and

(4) other interested stakeholders.

(b) The advisory group may review activities and programs implemented with high school allotment funds and make recommendations to the commissioner regarding the following:

(1) standards for evaluating the success and cost-effectiveness of high school completion and success and college readiness programs implemented with high school allotment funds;

(2) criteria for identifying and disseminating promising practices and strategies; and

(3) guidance for school districts and campuses in establishing and improving high school completion and success and college readiness programs implemented with high school allotment funds.

(c) If requested by the commissioner, the advisory group will make recommendations regarding standards for selecting and methods for recognizing school districts and campuses with exceptional high school completion and success and college readiness programs implemented with high school allotment funds.

Comments

Source Note: The provisions of this §61.1098 adopted to be effective November 9, 2006, 31 TexReg 9025; amended to be effective March 3, 2010, 35 TexReg 1732

§61.1099: School District Annual Performance Review

(a) At an open meeting of the board of trustees, each school district must establish annual performance goals for programs, activities, and strategies implemented with high school allotment funds related to the following performance indicators:

(1) percentage of students graduating from high school;

(2) enrollment in advanced courses, including College Board advanced placement courses, International Baccalaureate courses, and dual or college credit courses;

(3) percentage of students successfully graduating on the Recommended High School Program or Distinguished Achievement Program described in Chapter 74, Subchapter E, of this title (relating to Graduation Requirements, Beginning with School Year 2004-2005) or Chapter 74, Subchapter F, of this title (relating to Graduation Requirements, Beginning with School Year 2007-2008);

(4) percentage of students who achieve the higher education readiness component qualifying scores on the English language arts section of the exit-level Texas Assessment of Knowledge and Skills (TAKS); and

(5) percentage of students who achieve the higher education readiness component qualifying scores on the mathematics section of the exit-level TAKS.

(b) Annually, the board of trustees of each school district must review its progress in relation to the performance indicators specified in subsection (a) of this section. Progress should be assessed based on information that is disaggregated with respect to race, ethnicity, gender, and socioeconomic status.

(c) Each school district must ensure that decisions about the continuation or establishment of programs, activities, and strategies implemented with high school allotment funds are based on:

(1) state assessment results and other student performance data;

(2) standards for success and cost-effectiveness as established by the commissioner of education under the Texas Education Code (TEC), §39.233(a)(1); and

(3) guidance for improving high school completion and success and college readiness programs as established by the commissioner under the TEC, §39.233(a)(2).

Comments

Source Note: The provisions of this §61.1099 adopted to be effective November 9, 2006, 31 TexReg 9025; amended to be effective March 3, 2010, 35 TexReg 1732

§61.1100: Evaluation of Programs

(a) The Texas Education Agency (TEA) will evaluate programs implemented with high school allotment funds based on the following:

(1) performance indicators as established in §61.1099 of this title (relating to School District Annual Performance Review); and

(2) standards for success and cost-effectiveness as established by the commissioner under the Texas Education Code, §39.233(a)(1).

(b) In addition to the evaluation on the indicators identified in subsection (a) of this section, school districts will be evaluated based on the academic quality indicators in the TEA's performance-based monitoring system and other compliance requirements.

Comments

Source Note: The provisions of this §61.1100 adopted to be effective November 9, 2006, 31 TexReg 9025; amended to be effective March 3, 2010, 35 TexReg 1732

§61.1101: Standards for Selecting and Methods for Recognizing Districts and Campuses Offering Exceptional Programs

(a) In accordance with the Texas Education Code (TEC), §39.233(a)(3), by January 1 of each year, the commissioner of education will select for recognition districts and campuses that offer exceptional high school completion and success and college readiness programs implemented with high school allotment funds.

(b) The commissioner must establish standards for selecting school districts and campuses with exceptional high school completion and success and college readiness programs.

(c) The standards for selection will be based on information that is disaggregated with respect to race, ethnicity, gender, and socioeconomic status. Standards for selection will include consideration of district and campus performance in relation to the following:

(1) performance indicators as established in §61.1099 of this title (relating to School District Annual Performance Review);

(2) standards for success and cost-effectiveness as established by the commissioner under the TEC, §39.233(a)(1); and

(3) district or campus improvement relative to districts and campuses that exhibit similar characteristics of students served by the campus or district, including, but not limited to, past academic performance, socioeconomic status, ethnicity, and limited English proficiency.

(d) The commissioner must establish methods for recognizing school districts and campuses that offer exceptional high school completion and college readiness programs implemented with high school allotment funds.

Comments

Source Note: The provisions of this §61.1101 adopted to be effective November 9, 2006, 31 TexReg 9025; amended to be effective March 3, 2010, 35 TexReg 1732

Subchapter JJ

§61.1201: Notification of Automatic College Admission

(a) In accordance with the Texas Education Code (TEC), §28.026, a school district shall provide each student, at the time the student first registers for one or more classes required for high school graduation, with a written notification of the substance of the TEC, §51.803, concerning automatic college admission.

(b) Not later than the 14th day after the last day of classes for the fall semester or an equivalent date in the case of a school operated on a year-round system, a school district shall provide each eligible senior student under the TEC, §51.803, and each student enrolled in the junior year of high school who has a grade point average in the top ten percent of the student's high school class, and the student's parent or guardian, with a written notification of the student's eligibility for automatic college admission. The written notification shall provide a detailed explanation in plain language of the substance of the TEC, §51.803, using the form developed by the Texas Education Agency.

(1) The notification form to be used by school districts is provided in this paragraph entitled "Notification of Eligibility for Automatic College Admission."

Attached Graphic

(2) A school district shall obtain written acknowledgement of receipt of the notification from each eligible student and the student's parent or guardian.

Comments

Source Note: The provisions of this §61.1201 adopted to be effective May 9, 2010, 35 TexReg 3495

Chapter 62

§62.1001: Authority of Trustees; Duration of Agreements

(a) Trustees of independent school districts may not delegate their authority to enter into agreements necessary to achieve the purposes of the Texas Education Code, Chapter 41. Nor may the trustees authorize any exclusive franchises on the right to negotiate on behalf of the district.

(b) Consolidations under the Texas Education Code, Chapter 41, Subchapter B; detachments and annexations under Subchapter C; and tax base consolidations under Subchapter F are permanent in duration and districts may not enter into agreements that purport to limit the duration of the agreement. Nor may the parties create by agreement any right to cancel the agreement.

Comments

Source Note: The provisions of this §62.1001 adopted to be effective September 13, 1993, 18 TexReg 5743; amended to be effective May 7, 2003, 28 TexReg 3720

§62.1011: Election Duties of Board of Trustees

For the purposes of an election ordered under the Texas Education Code, Chapter 41, the board of trustees that orders the election shall perform any applicable duty assigned to the county judge or to the county commissioners court under the Texas Education Code, Chapter 13.

Comments

Source Note: The provisions of this §62.1011 adopted to be effective September 13, 1993, 18 TexReg 5743; amended to be effective May 7, 2003, 28 TexReg 3720

§62.1031: Date of Agreement for Purposes of Determining Election Date

For the purposes of the Texas Education Code, §41.012, the date of an agreement entered by the board of trustees of a school district under the Texas Education Code, Chapter 41, Subchapter E or F, is the date that the agreement is certified by the commissioner of education.

Comments

Source Note: The provisions of this §62.1031 adopted to be effective September 13, 1993, 18 TexReg 5743; amended to be effective May 7, 2003, 28 TexReg 3720

§62.1041: Weighted Students in Average Daily Attendance for Purposes of Tax Rate Rollback

In determining the number of weighted students in average daily attendance for the purposes of tax rate rollback calculations under the Texas Tax Code, §26.08, the number calculated under the Texas Education Code, §42.302, is adjusted:

(1) as provided by the Texas Education Code, §41.123, by adding the number of weighted students in average daily attendance attributed to the district through a contract to educate nonresident students under the Texas Education Code, Chapter 41, Subchapter E; and

(2) by adding the number of weighted students in average daily attendance attributed to the district through the purchase of attendance credits under the Texas Education Code, Chapter 41, Subchapter D.

Comments

Source Note: The provisions of this §62.1041 adopted to be effective September 13, 1993, 18 TexReg 5743; amended to be effective May 7, 2003, 28 TexReg 3720

§62.1051: Definition of Parcel Detached and Annexed by Commissioner

For the purposes of implementing the Texas Education Code, Chapter 41, Subchapter G, a parcel shall be defined as one or more separately described items of real property, together with the improvements and personal property located on the property, that have the same taxable situs or that are:

(1) contiguous to each other;

(2) used as a unit or subject to the same predominant use; and

(3) located within the boundaries of a single school district.

Comments

Source Note: The provisions of this §62.1051 adopted to be effective September 13, 1993, 18 TexReg 5743; amended to be effective May 7, 2003, 28 TexReg 3720

§62.1061: Election of Trustees of District Consolidated by Commissioner

The election date under the Texas Education Code, §41.253(b), is modified to be the first May uniform election date after the effective date of a consolidation order under the Texas Education Code, Chapter 41.

Comments

Source Note: The provisions of this §62.1061 adopted to be effective September 13, 1993, 18 TexReg 5743; amended to be effective May 7, 2003, 28 TexReg 3720

§62.1071: Administration of Wealth Equalization

(a) Identification. Identification of districts subject to the wealth equalization provisions of the Texas Education Code (TEC), Chapter 41, is based on estimates of weighted average daily attendance (WADA) available in July of each year. WADA is projected in accordance with TEC, Chapter 42, Subchapter F, and derived from student counts adopted by the legislature in the appropriation process under the provisions of TEC, §42.254.

(b) Alternative calculation of wealth per WADA. Districts subject to recapture in accordance with TEC, Chapter 41, may utilize an alternative method to calculate a wealth per weighted student for the purpose of determining the amount needed to equalize wealth.

(1) The optional alternative method will enable a qualifying district to retain a wealth per weighted student (WADA) after exercising an option pursuant to TEC, §41.003(2) or (3), that would achieve a Maintenance and Operations (M&O) revenue (state and local) level equal to the M&O revenue per WADA for the 1999-2000 school year, less the current year per capita distribution from the available school fund, other than amounts distributed under TEC, Chapter 31, for the technology allotment.

(2) The optional alternative method will compute M&O revenue (state and local) in the 1999-2000 school year and in the applicable year, excluding recapture amounts, any Public Education Grant and New Instructional Facilities Allotment state aid pursuant to TEC, §42.157 and §42.158.

(3) The optional alternative method will utilize a measure of WADA in the 1999-2000 school year and in the applicable year that excludes resident students that were not educated in the eligible district.

(4) The optional alternative method pertains only to districts that did not offer all grades from kindergarten to Grade 12 in the 1999-2000 school year and are imposing a current effective M&O tax rate equal to or greater than their 1999-2000 M&O tax rate.

(5) The commissioner of education will notify districts that qualify for the optional alternative method of calculating wealth per WADA for the purpose of determining the amount owed to equalize wealth when they are notified of their TEC, Chapter 41, status by July 15 of each year. The commissioner will also provide appropriate worksheets so that eligible districts can determine the financial impact of adopting the optional alternative method.

(6) Districts must inform the commissioner by September 1 of each applicable year of their decision whether to adopt the optional alternative method for calculating wealth per WADA for determining recapture costs. They must also complete and return to the Texas Education Agency (TEA) division responsible for state funding the worksheets provided by the commissioner and submit evidence that they will maintain or exceed their 1999-2000 M&O tax effort by letter attesting to their proposed tax rate, tax levy, and estimated M&O tax collections for the applicable year.

(7) The optional alternative method is in effect for the 2001-2002, 2002-2003, and 2003-2004 school years. This subsection, issued under TEC, §41.0021, 77th Texas Legislature, 2001, expires September 1, 2004.

(c) Actions to equalize wealth. The commissioner may require specific actions to ensure that the wealth of a district subject to the provisions of TEC, Chapter 41, is properly equalized.

(1) Districts subject to the provisions of TEC, Chapter 41, may consolidate with another district in accordance with TEC, Subchapter B (Option 1), detach territory in accordance with TEC, Subchapter C (Option 2), or consolidate tax bases with another district in accordance with TEC, Subchapter F (Option 5). These actions are not subject to change once approved by the commissioner and executed by the participants. The commissioner may require the exercise of other options in addition to options 1, 2, or 5 to ensure that wealth will be properly equalized.

(2) A student who transfers to and is educated tuition-free by a district subject to the provisions of TEC, Chapter 41, may be counted as WADA for the purpose of wealth equalization. No agreement with the home district is required, but the district must provide the commissioner with a written statement certifying that no tuition or other benefit has been received in exchange for the student's education. The number of transferring students is converted to a WADA count by multiplying it by the district's current WADA-to-enrollment ratio.

(3) A student who transfers as a Public Education Grant (PEG) student pursuant to TEC, Chapter 29, Subchapter G, to a district subject to the provisions of TEC, Chapter 41, may be counted under subsection (c)(2) of this section as WADA by the receiving district for the purposes of wealth equalization. No contract with the home district is required. The sending district may not count the student for state aid purposes.

(4) Regardless of any applicable credits, a district identified as subject to the provisions of TEC, Chapter 41, must exercise one or more of the available options to reduce wealth to ensure that wealth will be properly equalized.

(d) Costs to equalize wealth. For each year in which one or more options to equalize wealth is exercised, the commissioner determines the cost and the associated cycle.

(1) Districts purchasing attendance credits from the state in accordance with TEC, Chapter 41, Subchapter D (Option 3), may obtain a discount in the form of an early agreement credit in accordance with TEC, §41.098. The discount is limited to 4.0% of the computed cost of Option 3 before any discounts are applied or $80 multiplied by the number of WADA purchased, whichever is less. To qualify, the district subject to the provisions of TEC, Chapter 41, must submit a signed Option 3 agreement to the TEA with a postmark on or before September 1 of the applicable year.

(2) Districts paying to educate nonresident students from a partner district in accordance with TEC, Chapter 41, Subchapter E (Option 4), may obtain a discount in the form of an efficiency credit in accordance with TEC, §41.121. The discount is limited to 5.0% of the computed cost of Option 4 before any discounts are applied or $100 multiplied by the district's WADA for TEC, Chapter 41, whichever is less. Such discounts may be obtained for the following programs approved by the commissioner.

(A) The partner agrees to use at least 50% of the gain from the sale of WADA for a 30-day extended year program for all eligible kindergarten through Grade 8 students for the school year in accordance with TEC, §29.082.

(B) The partner agrees to use at least 50% of the gain from the sale of WADA for enhancement of an existing alternative education program for behavior management for all eligible students for the school year in accordance with TEC, §37.008. The funds used must be in excess of amounts expended for the basic operation of the program pursuant to TEC, §37.008(g).

(C) The partner agrees to use at least 50% of the gain from the sale of WADA for a juvenile justice alternative education program for the school year in accordance with TEC, 37.011. The expenditures for this program must be used to pay for additional costs not funded by member districts pursuant to TEC, §37.012.

(D) The partner agrees to use at least 50% of the gain from the sale of WADA for a combined program of at least two of the following programs for the school year: extended year, alternative education (enhancement of), and juvenile justice alternative education. Each of the programs must meet the corresponding requirements described in subparagraphs (A)-(C) of this paragraph.

(E) The partner agrees to use at least some portion of the gain from the sale of WADA for combined programs plus any remaining funds for instructional technology. Any of the three following programs apply, singly or in any combination, for the school year: extended year, alternative education, and juvenile justice alternative education. Each of the programs must meet the corresponding requirements described in subparagraphs (A)-(D) of this paragraph. In addition to the funds committed to any one or combination of the programs described in subparagraphs (A)-(D), all of the remaining gain must be used for instructional technology.

(F) The partner agrees to use all of the gain from the sale of WADA for instructional technology. That technology may involve computer networking of instruction among or between its campuses and/or from the district or its campuses to an education service center (ESC), other Internet service provider (ISP), or local telephone company point of presence (teleco POP). A portion of the gain may be sent to the ESC, ISP, or teleco POP, as long as the funds are expended for connecting such services. A portion of the gain may be sent to the ESC for instructional technology purposes that include the services described in clauses (i)-(iv) of this subparagraph. If any of the gain is expended in this manner, the district subject to the provisions of TEC, Chapter 41, may not obtain free or reduced-price instructional technology services from the service provider. Annual charges to the district subject to the provisions of TEC, Chapter 41, must be equal to at least the amount paid by the partner to the service provider for the year for equivalent services. If this option is exercised, the executive director of the entity must sign the contract agreement. Instructional technology purposes for which a portion of the gain may be sent to the ESC include:

(i) the expansion and/or upgrade of networks, labs, classroom applications, and related telecommunications systems;

(ii) the integration of technology into the teaching/learning process;

(iii) the acquisition and distribution of Internet services; or

(iv) the implementation and/or expansion of distance learning or other innovative programs.

(G) The partner agrees to use at least 50% of the gain from the sale of WADA for an innovative education program. The gain on the sale of WADA may not be used for general capital outlay unrelated to improving student performance. The commissioner retains full discretion to approve or reject the proposed educational program for this purpose.

(H) Each partner agrees to use 100% of the gain from the sale of WADA to participate in a technology consortium in accordance with the provisions of TEC, §41.099. At least three partner districts must be members of the consortium. The district subject to the provisions of TEC, Chapter 41, may be a member of the consortium but must pay at market value for all services received. Market value is determined by the consortium, subject to review by the TEA division responsible for financial audits and the requirements of paragraph (3) of this subsection. Partner districts must reside, at least in part, in a county or counties with a population of less than 40,000. The technology consortium form of Option 4 must be combined with Option 3, the purchase of attendance credits from the state, in order to enable the district subject to the provisions of TEC, Chapter 41, to retain its "hold harmless" status. The gain resulting from the sale of WADA (for all partners combined) must be limited to 10% of the cost of buying WADA of the district subject to the provisions of TEC, Chapter 41.

(3) To the extent that a district subject to the provisions of TEC, Chapter 41, exercising Option 4 receives any service or product from an entity that receives a portion of the gain from an Option 4 arrangement, the price paid for the service or product must be at fair market value. For the purposes of this requirement, fair market value is defined as the price that would be paid by any other party had the gain from the Option 4 arrangement not been applied to reduce the cost.

(4) Each district subject to the provisions of TEC, Chapter 41, that exercises Option 4 must disclose to the commissioner any other contractual or financial arrangement between the district and its partner(s) or between the district and any other entity that directly benefits from the distribution of the gain. Any business transaction between the district subject to the provisions of TEC, Chapter 41, and other entities must be at a fair market price. A district subject to the provisions of TEC, Chapter 41, must be prepared to document that any product or service it provides as part of a financial arrangement with its partners has an open marketplace that can establish a fair market price, for example, through previous sales of the product or service to unrelated parties. A district subject to the provisions of TEC, Chapter 41, may not demand or negotiate a discounted purchase price from a partner district or other related entity for products or services provided to the district subject to the provisions of TEC, Chapter 41, that results in a lower price than would be paid by an unrelated party. A district subject to the provisions of TEC, Chapter 41, may not make an Option 4 partnership agreement subject to any separate financial agreement between the districts that is not contained in the TEC, Chapter 41, agreement.

(5) For Options 3 and 4, the projected cost estimate provided by the commissioner to the district by February of the year serves as the basis for initial payments made to the state and/or partner(s). For Option 4, payments to the partner(s) must be made between February and August of the year but otherwise may adhere to a mutually acceptable schedule.

(6) Unless a school district adopts the alternative method for calculating wealth per WADA in accordance with subsection (b) of this section, a school district subject to the provisions of wealth equalization that pays tuition to another district to educate its students may apply the cost of the tuition toward the cost of the option chosen to reduce wealth. The credit amount per student cannot be greater than the district's cost per WADA. Written documentation must be provided to the commissioner to verify the total tuition paid and the amount per student. The maximum tuition amount that may be charged by the receiving district and the state aid reduction as a result of the tuition charge is described in §61.1012 of this title (relating to Contracts and Tuition for Education Outside District).

(7) For each school district subject to the provisions of wealth equalization, transitional state aid for professional staff salaries is computed in accordance with §105.1012 of this title (relating to Additional State Aid for Professional Staff Salaries). Any amount earned by a district is deducted as a credit against the amount owed to equalize wealth. If a credit exceeds an amount owed, the difference is paid to the district. An initial payment will be made as soon as the TEA has estimated an assistance amount. A final settle-up will be made during September of the following year.

(8) Initially, the cost to equalize wealth is projected by the commissioner based on estimates of the district's WADA for TEC, Chapter 41, and expected tax collections. For districts exercising Option 3 or 4, the cost estimate may be updated by the commissioner periodically throughout the year.

(9) For Options 3 and 4, the projected cost estimate provided by the commissioner to the district by February of the year serves as the basis for initial payments made to the state and/or partner(s). For Option 4, payments to the partner(s) must be made between February and August of the year but otherwise may adhere to a mutually acceptable schedule.

(10) For Options 3 and 4, the final cost to equalize wealth is determined by the commissioner when audited tax collections and data elements for the calculation of WADA for TEC, Chapter 41, are final and available, after the close of business for the school year. The calculation of WADA for TEC, Chapter 41, incorporates final values for WADA for TEC, Chapter 42, and, when applicable, current-year data for the number of student transfers. The final WADA for TEC, Chapter 42, is based, in part, on attendance data submitted at year-end through the Public Education Information Management System (PEIMS). When applicable, student transfer data are obtained from the PEIMS fall submission. When applicable, final values for WADA for TEC, Chapter 42, and current-year fall PEIMS data for enrollment are used in the WADA-to-enrollment ratio that is applied to the number of transfers to calculate a corresponding WADA.

(11) When final costs for the fiscal year are determined for Options 3 and 4, the payments are compared to the final cost. Districts that have not sufficiently reduced wealth must remedy the shortfall in accordance with the directives of the commissioner before the end of that fiscal year. Districts that have overpaid in the process of reducing their wealth level will receive either appropriate refunds from the state and/or partner district(s) or credits against future costs.

(12) For those districts authorized to retain a tax base per student greater than the equalized wealth level as provided by TEC, §41.002(e), in the 2003-2004 school year, the resulting tax base per weighted student that the district is allowed to retain shall be the greater of two amounts. The first amount shall be the tax base per weighted student necessary to produce the M&O tax revenue per weighted student to which the district had access in 1992-1993 after the 1992-1993 M&O tax revenue is reduced by the 2003-2004 distributions from the available school fund. The second amount shall be the tax base per weighted student necessary to produce the M&O tax revenue per weighted student to which the district had access in 1992-1993, less the amount of tax base per student that would be necessary in 2003-2004 to produce the 2003-2004 distribution from the available school fund at a tax rate of $1.50. In the 2004-2005 and subsequent school years, the amount of tax base per weighted student that a district is allowed to retain under TEC, §41.002(e), shall be the tax base per weighted student necessary to produce the M&O tax revenue per weighted student to which the district had access in 1992-1993, less the amount of tax base per student that would be necessary in the current school year to produce the current year's distribution from the available school fund at a tax rate of $1.50.

(e) Administrative requirements. Districts taking action to equalize wealth must abide by all fiscal, procedural, and administrative requirements.

(1) Unless other definitive action (such as submission of a contract) has already been taken by a district subject to the provisions of TEC, Chapter 41, the district must inform the TEA in writing of intended actions to equalize wealth. A "letter of intent" must be postmarked (or have some other postal carrier verification of date mailed) by September 1 of the applicable year.

(2) Pursuant to TEC, Chapter 41, Subchapters D and E, any contract submitted for Option 3 or 4 must be submitted to the TEA by certified mail through the U.S. Postal Service or other common postal carrier.

(3) Option 3 contracts must be postmarked by September 1 of each year in order to qualify for the early agreement credit. Option 4 and Option 3 contracts not incorporating efficiency credits or early agreement credits must be postmarked by November 15. Option 4 contracts seeking efficiency credits must be postmarked by December 20.

(4) All contractual arrangements must be approved yearly by the commissioner, regardless of continuing or long-term arrangements between contracting parties.

(5) Contracts and forms submitted to the TEA that require signatures must be originals.

(6) All written correspondence pertaining to TEC, Chapter 41, including contracts and data forms, must be sent to the TEA division responsible for state funding.

(f) Noncompliance. Noncompliance with the requirements of wealth equalization is determined by the commissioner and may result in corrective action, including detachment and annexation or consolidation in accordance with TEC, Chapter 41, Subchapters G or H, by the commissioner.

(1) Refusal by a district subject to the provisions of TEC, Chapter 41, to declare an intent to exercise an option to equalize wealth, to take action to equalize wealth, or to comply with the terms of a contractual agreement will result in corrective action by the commissioner in accordance with TEC, Chapter 41, Subchapters G and H, to consolidate or to detach and annex property. Any such action taken after November 8 of a school year will take effect in the subsequent school year.

(2) Noncompliance with requirements other than those listed in subsection (f)(1) of this section may result in loss of an efficiency credit for Option 4, the early agreement credit for Option 3, or in a financial audit.

(g) Excellence exemption. An excellence exemption pursuant to the provisions of TEC, §39.112, does not apply to options for or requirements of wealth equalization.

(h) Property value decline. If a district subject to the provisions of wealth equalization experiences a property value decline, exceeding 4.0%, from the prior tax year and funds made available by the legislature to compensate for such a decline are insufficient, the district's taxable value for the prior tax year will be adjusted so that the allocation of the shortfall is shared among all districts participating in this appropriation in accordance with TEC, §42.252. The adjustment will be sufficient to exhaust the district's share of the amount appropriated.

(1) The cost of recognizing the applicable property value decline is computed as the difference in the cost of equalizing wealth using the property value for the prior tax year and the cost of equalizing wealth using the property value for the current tax year using the same (current year) tax collection amount. This difference is then adjusted for the percent of decline not recognized in accordance with TEC, §42.252.

(2) If the cost of recognizing the applicable amount of property value decline exceeds the amount appropriated, each district with a decline in value will have its value adjusted in proportion to its share of the total property value decline.

Chapter 66

Subchapter A

§66.1: Scope of Rules

The State Board of Education (SBOE) shall adopt lists of conforming and nonconforming instructional materials for use in the public schools of Texas according to the Texas Education Code, Chapter 31, and the requirements in this chapter. Instructional materials recommended as suitable for use in special populations, including bilingual education programs, shall be adopted according to the rules in this chapter for adopting regular instructional materials.

Comments

Source Note: The provisions of this §66.1 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective March 4, 2001, 26 TexReg 1706

§66.4: Requirement for Registers

(a) A register shall be kept by the commissioner of education and appropriate staff of the Texas Education Agency (TEA) to record all personal contacts with publishers, their representatives, agents, authors, consultants, editors, depositories, or any other person who has received or expects to receive any money, thing of value, or financial benefit for an appearance; or contact regarding any instructional materials submitted and being considered for State Board of Education (SBOE) approval.

(b) Publishers shall file with the commissioner of education, on or before a date specified in the schedule of adoption procedures, a register indicating all visits, meetings, or contacts with SBOE members, including the date, time, location, and purpose of the communication.

Comments

Source Note: The provisions of this §66.4 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective February 22, 2010, 35 TexReg 1454

§66.7: Manufacturing Standards and Specifications

(a) Instructional materials adopted by the State Board of Education (SBOE) shall comply with the standards in the latest edition of Manufacturing Standards and Specifications for Textbooks approved by the national Advisory Commission on Textbook Specifications. If it is determined that good cause exists, the commissioner of education may recommend that the SBOE grant an exception to this requirement.

(b) If no standards exist for a particular media submitted for adoption, the instructional material is eligible for adoption.

(c) A publisher shall file a statement certifying instructional materials submitted for consideration will meet minimum manufacturing standards if adopted. Each statement must be made on a form provided by the commissioner of education, signed by a company official, and filed on or before the deadline specified in the schedule of adoption procedures.

(d) If, during the contract period, the commissioner of education determines that any adopted instructional materials have faulty manufacturing characteristics or are made of inferior materials, the materials shall be replaced by the publisher without cost to the state.

Comments

Source Note: The provisions of this §66.7 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective March 4, 2001, 26 TexReg 1706; amended to be effective February 22, 2010, 35 TexReg 1454

§66.10: Procedures Governing Violations of Statutes--Administrative Penalties

(a) Complaints. An official complaint alleging a violation of the Texas Education Code, §31.151, must be filed with the commissioner of education. The commissioner may hold a formal or informal hearing in the case of an apparent violation of statute. Upon determining that a violation has occurred, the commissioner shall report his or her findings to the State Board of Education (SBOE).

(b) Administrative penalties. Under the Texas Education Code, §31.151(b), the SBOE may impose a reasonable administrative penalty against a publisher or manufacturer found in violation of a provision of §31.151(a). An administrative penalty shall be assessed only after the SBOE has granted the publisher or manufacturer a hearing in accordance with the Texas Education Code, §31.151, and the Administrative Procedure Act.

(c) Penalties for failure to correct factual errors.

(1) A factual error shall be defined as a verified error of fact or any error that would interfere with student learning. The context, including the intended student audience and grade level appropriateness, shall be considered.

(2) A factual error repeated in a single item or contained in both the student and teacher components of instructional material shall be counted once for the purpose of determining penalties.

(3) A penalty may be assessed for failure to correct a factual error identified in the list of corrections submitted by a publisher under §66.54(h) of this title (relating to Samples) or for failure to correct a factual error identified in the report of the commissioner of education under §66.63(d) of this title (relating to Report of the Commissioner of Education) and required by the SBOE. The publisher shall provide an errata sheet approved by the commissioner of education with each teacher component of an adopted title.

(4) A penalty not to exceed $5,000 may be assessed for each factual error identified after the deadline established in the proclamation by which publishers must have submitted corrected samples of adopted instructional materials.

(d) Categories of factual errors.

(1) Category 1. A factual error in a student component that interferes with student learning.

(2) Category 2. A factual error in a teacher component only.

(3) Category 3. A factual error in either a student or teacher component that reviewers do not consider serious.

(e) First-year penalties. The base and per-book penalties shall be assessed as follows for failure to correct factual errors described in subsections (c) and (d) of this section.

(1) Category 1 error. $25,000 base plus 1% of sales.

(2) Category 2 error. $15,000 base plus 1% of sales.

(3) Category 3 error. $5,000 base plus 1% of sales.

(f) Second-year penalties. The base and per-book penalties shall be assessed as follows if a publisher, after being penalized for failure to correct factual errors described in subsections (c)-(e) of this section, repeats the violation in the subsequent adoption.

(1) Category 1 error. $30,000 base plus 1% of sales.

(2) Category 2 error. $20,000 base plus 1% of sales.

(3) Category 3 error. $10,000 base plus 1% of sales.

(g) Penalties for failure to deliver adopted instructional materials, including teacher components, in a timely manner or in the quantities the school district or open-enrollment charter school is eligible to receive as specified in the publisher's bid. The SBOE may assess penalties as allowed by law against publishers who fail to deliver adopted instructional materials, including teacher components specified by §66.51(a)(3) of this title (relating to Instructional Materials Purchased by the State), in accordance with provisions in the contracts.

(h) Penalties for selling textbooks with factual errors. The SBOE may assess administrative penalties in accordance with the Texas Education Code, §31.151, against a seller of textbooks who sells textbooks with factual errors.

(i) Penalties for failure to maintain websites in state-adopted products. The SBOE may assess administrative penalties against a publisher who fails to maintain a website or provide a suitable alternative for conveying the information in the website, or who otherwise fails to meet the requirements of this subsection. Where applicable, the publisher shall monitor, update, and maintain any in-house and third party electronic, web-based, or online products furnished as part of the instructional materials specified in State of Texas Official Publisher Contract for the period determined by the SBOE. If, at any time during the contract period, the commissioner of education determines in a hearing that electronic, web-based, or online instructional materials furnished and supplied under the terms of a contract have faulty manufacturing characteristics or display dated or inferior information, the instructional materials or information shall be replaced with complying materials or information by the publishers without cost to the state. The publisher further agrees that electronic, web-based or online instructional materials listed in a State of Texas Official Publishers Contract will not be altered in any way that would remove content from the curriculum, or that would change content in the curriculum without prior SBOE approval. The publisher will not allow advertising of any type to be placed in or associated with the materials. The publisher will not add any Internet links to the materials without the approval of the commissioner of education, will not redirect any user accessing the web-based or online instructional materials to other Internet or electronic sites, and will not collect any information about the user or computer accessing the materials that would allow determination of personal information, including email addresses. This section applies only to a website that is a component used to address Texas Essential Knowledge and Skills as part of a state-adopted product.

(j) State Board of Education discretion regarding penalties. The SBOE may, if circumstances warrant, waive or vary penalties contained in this section for first or subsequent violations based on the seriousness of the violation, any history of a previous violation or violations, the amount necessary to deter a future violation, any effort to correct the violation, and any other matter justice requires.

(k) Payment of fines. Each affected publisher shall issue credit to the Texas Education Agency (TEA) in the amount of any penalty imposed under the provisions of this section. When circumstances warrant it, TEA is authorized to require payment of penalties in cash within ten days. Each affected publisher who pays a fine for failure to deliver adopted instructional materials in a timely manner will not be subject to the liquidated damages provision in the publisher's contract for the same failure to deliver adopted instructional materials in a timely manner.

Comments

Source Note: The provisions of this §66.10 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective August 15, 1999, 24 TexReg 5699; amended to be effective March 4, 2001, 26 TexReg 1706; amended to be effective February 7, 2002, 27 TexReg 746; amended to be effective October 12, 2006, 31 TexReg 8352; amended to be effective December 25, 2007, 32 TexReg 9611; amended to be effective February 22, 2010, 35 TexReg 1454

Subchapter B

§66.21: Review and Adoption Cycles

(a) The State Board of Education (SBOE) shall adopt a review and adoption cycle for subjects in the foundation curriculum. No more than one-sixth of the subjects in the foundation curriculum may be reviewed each year. Placement of a subject in the cycle shall be based on the need for up-to-date materials due to changes in essential knowledge and skills, changing information, and/or changing technology. Estimated expenditures shall also be considered when determining placement of subjects in the cycle.

(b) The SBOE shall adopt a review and adoption cycle for subjects in the enrichment curriculum. Placement of a subject in the cycle shall be based on the need for up-to-date materials due to changes in essential knowledge and skills, changing information, and/or changing technology. Estimated expenditures shall also be considered when determining placement of subjects in the cycle.

Comments

Source Note: The provisions of this §66.21 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective March 4, 2001, 26 TexReg 1706

§66.22: Midcycle Review and Adoption

(a) The State Board of Education (SBOE) shall adopt a midcycle review and adoption for textbooks for a subject for which textbooks are not currently under review by the SBOE under the Texas Education Code (TEC), §31.022.

(b) The SBOE shall establish a fee not to exceed $10,000 for each textbook submitted for midcycle review.

(c) A publisher who intends to offer instructional materials for midcycle review shall submit a statement of intent to bid that includes a commitment from the publisher to provide the textbooks to school districts in the manner specified by the publisher, which may include:

(1) providing the textbook to any district in a regional education service center area identified by the publisher; or

(2) providing a certain maximum number of textbooks specified by the publisher.

(d) Instructional materials submitted for midcycle review shall be placed on the conforming list, non-conforming list, or rejected as specified in the TEC, §31.023 and §31.024.

(e) The publisher of a textbook submitted for midcycle review shall enter into a contract with the SBOE for a term that ends at the same time as any contract entered into by the SBOE for another textbook for the same subject and grade level.

(f) The publisher of a textbook submitted for midcycle review is not required to ship samples to education service centers or school districts as specified in the TEC, §31.027.

(g) The publisher of a textbook submitted for midcycle review shall make available up to three examination copies of each submitted textbook, including teacher editions and ancillaries, to each SBOE member upon that member's request, beginning on the date in the adoption schedule when publishers file their samples at the Texas Education Agency (TEA). SBOE members may request publishers through the TEA to ship these items directly to interested citizens. Publishers participating in the midcycle review process are responsible for all expenses incurred by their participation. The state does not guarantee return of these SBOE-requested materials.

(h) Publishers of Internet-based instructional content submitted for midcycle review shall provide the TEA, and SBOE members upon request, with appropriate information, such as locator and login information and passwords, required to ensure public access to their programs throughout the midcycle review period.

(i) The midcycle adoption process shall follow the same procedures as the regular adoption except to the extent specified in this chapter.

(j) The SBOE will implement this section only to the extent the commissioner of education determines that funds are appropriated for that purpose.

Comments

Source Note: The provisions of this §66.22 adopted to be effective December 25, 2007, 32 TexReg 9611; amended to be effective February 22, 2010, 35 TexReg 1454

§66.24: Review and Renewal of Contracts

(a) The commissioner of education shall review contracts for instructional materials and recommend which contracts should be renewed for terms not to exceed four years and which contracts should not be renewed.

(b) The State Board of Education (SBOE) shall decide to renew existing contracts upon determining that the renewal would be in the best interest of the state and after considering the following factors:

(1) placement of subject areas in the foundation and enrichment review and adoption cycles;

(2) availability of new instructional materials;

(3) willingness of publishers to offer materials for readoption and renewal of contracts; and

(4) cost of instructional materials under new contract.

(c) Publishers awarded new contracts shall be prepared to make the adopted instructional materials available for at least one extended contract period of not more than four years at prices the commissioner of education approves. The SBOE may consider refusing to award future contracts to a publisher who, after receiving written notice to do so, refuses to rebid instructional materials at least one time. Failure of a publisher to negotiate an acceptable price for an extended contract shall not be considered failure to rebid instructional materials.

(d) Contracts with publishers are limited to the Texas Education Code, Chapter 31.

Comments

Source Note: The provisions of this §66.24 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective March 4, 2001, 26 TexReg 1706; amended to be effective February 22, 2010, 35 TexReg 1454

§66.27: Proclamation, Public Notice, and Schedule for Adopting Instructional Materials

(a) The State Board of Education (SBOE) shall issue a proclamation calling for new instructional materials according to the review and adoption cycles for foundation and enrichment subjects adopted by the SBOE. The proclamation shall serve as notice to all publishers and to the public that bids to furnish new materials to the state are being invited. The proclamation shall be issued at least 24 months before the scheduled adoption of the new instructional materials by the SBOE. The SBOE shall designate a request for the production of textbooks in a subject area and grade level by the school year in which the textbooks are intended to be made available in classrooms and not by the school year in which the SBOE makes the request for production. The SBOE shall amend a proclamation, as necessary, to conform to the textbook funding levels provided by the General Appropriations Act for the year of implementation.

(b) The proclamation shall contain the following:

(1) specifications for essential knowledge and skills in each subject for which bids are being invited;

(2) a maximum cost to the state for adopted instructional materials in each subject for which bids are being invited;

(3) an estimated number of units to be purchased during the first contract year for each subject in the proclamation;

(4) specifications for providing computerized files to produce braille versions of adopted instructional materials; and

(5) a schedule of adoption procedures.

(c) The proclamation shall require instructional materials to cover specific essential knowledge and skills a certain number of times in the student text narrative in addition to end-of-section review exercises, end-of-chapter activities, or unit tests.

(d) A draft copy of the proclamation shall be provided to each member of the SBOE and to representatives of the publishing industry to solicit input regarding the draft proclamation, including maximum costs, prior to the scheduled adoption by the SBOE. The Texas Education Agency may use the Internet to facilitate this process. Any revisions recommended as a result of input from publishers shall be presented to the SBOE along with the subsequent draft of the proclamation.

(e) Under extraordinary circumstances, the SBOE may adopt an emergency, supplementary, or revised proclamation without complying with the timelines and other requirements of this section.

(f) The SBOE may issue a proclamation for textbooks eligible for midcycle review. The midcycle proclamation shall contain the following:

(1) specifications for essential knowledge and skills in each subject for which bids are being invited;

(2) specifications for providing computerized files to produce braille versions of adopted instructional materials;

(3) a fee not to exceed $10,000 for each program, textbook, or system of instructional materials intended for a certain subject area and grade level submitted for midcycle review; and

(4) a schedule of midcycle adoption procedures.

Comments

Source Note: The provisions of this §66.27 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective September 1, 1997, 22 TexReg 3779; amended to be effective March 4, 2001, 26 TexReg 1706; amended to be effective October 12, 2006, 31 TexReg 8354; amended to be effective December 25, 2007, 32 TexReg 9611; amended to be effective February 22, 2010, 35 TexReg 1454

§66.28: Adoption by Reference

(a) The sections titled "Content Requirements" in the Proclamation 2004 of the State Board of Education Advertising for Bids on Instructional Materials are adopted by this reference as the State Board of Education's official rule governing essential knowledge and skills that shall be used to evaluate instructional materials submitted for consideration under Proclamation 2004. A copy of the Proclamation 2004 of the State Board of Education Advertising for Bids on Instructional Materials is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. Proclamation 2004 of the State Board of Education Advertising for Bids on Instructional Materials can be accessed from the Texas Education Agency official website.

(b) The sections titled "Content Requirements" in the Proclamation 2005 of the State Board of Education Advertising for Bids on Instructional Materials are adopted by this reference as the State Board of Education's official rule governing essential knowledge and skills that shall be used to evaluate instructional materials submitted for consideration under Proclamation 2005. A copy of the Proclamation 2005 of the State Board of Education Advertising for Bids on Instructional Materials is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. Proclamation 2005 of the State Board of Education Advertising for Bids on Instructional Materials may be accessed from the Texas Education Agency official website.

(c) The sections titled "Content Requirements" in the Proclamation 2010 of the State Board of Education Advertising for Bids on Instructional Materials are adopted by this reference as the State Board of Education's official rule governing essential knowledge and skills that shall be used to evaluate instructional materials submitted for consideration under Proclamation 2010. A copy of the Proclamation 2010 of the State Board of Education Advertising for Bids on Instructional Materials is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. Proclamation 2010 of the State Board of Education Advertising for Bids on Instructional Materials may be accessed from the Texas Education Agency official website.

(d) The sections titled "Content Requirements" in the Proclamation 2011 of the State Board of Education Advertising for Bids on Instructional Materials are adopted by this reference as the State Board of Education's official rule governing essential knowledge and skills that shall be used to evaluate instructional materials submitted for consideration under Proclamation 2011. A copy of the Proclamation 2011 of the State Board of Education Advertising for Bids on Instructional Materials is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. Proclamation 2011 of the State Board of Education Advertising for Bids on Instructional Materials may be accessed from the Texas Education Agency official website.

Comments

Source Note: The provisions of this §66.28 adopted to be effective February 15, 1998, 23 TexReg 1020; amended to be effective September 1, 1999, 24 TexReg 3859; amended to be effective September 1, 2000, 25 TexReg 5330; amended to be effective March 4, 2001, 26 TexReg 1706; amended to be effective February 7, 2002, 27 TexReg 746; amended to be effective September 1, 2003, 28 TexReg 6023; amended to be effective October 12, 2006, 31 TexReg 8354; amended to be effective February 22, 2010, 35 TexReg 1454

§66.30: State Review Panels: Eligibility

(a) A person is not eligible to serve on a state review panel if, during the three years immediately preceding the appointment, the person:

(1) was employed by or received funds from any individual or entity in any way affiliated with a publishing company or participating in an adoption under which the state or a state review panel will evaluate instructional materials; or

(2) owned or controlled, directly or indirectly, any interest in a publishing company or an entity receiving funds from a publishing company.

(b) For the purposes of this section, an eligible institution under §66.67 of this title (relating to Adoption of Open-Source Instructional Materials) that has submitted open-source materials for adoption is considered to be an entity participating in an adoption.

Comments

Source Note: The provisions of this §66.30 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective February 22, 2010, 35 TexReg 1454

§66.33: State Review Panels: Appointment

(a) The commissioner of education shall determine the number of review panels needed to review instructional materials under consideration for adoption, determine the number of persons to serve on each panel, and determine the criteria for selecting panel members. Each appointment to a state review panel shall be made by the commissioner of education with the advice and consent of the State Board of Education (SBOE) member whose district is to be represented. The commissioner of education shall make appointments to state textbook review panels that ensure participation by academic experts in each subject area for which instructional materials are being considered. The appointments shall include educators, parents, business and industry representatives, and employers.

(b) The commissioner of education shall solicit nominations for possible appointees to state review panels from the SBOE, school districts, open-enrollment charter schools, and educational organizations in the state. Nominations may be accepted from any Texas resident. Nominations shall not be made by or accepted from any publishers; hardware or software providers; authors; depositories; agents for publishers, hardware or software providers, authors, or depositories; or any person who holds any official position with a publisher, hardware or software providers, author, depository, or agent.

(c) The SBOE shall be notified of appointments made by the commissioner of education to state review panels.

(d) Members of a state review panel may be removed at the discretion of the commissioner of education.

Comments

Source Note: The provisions of this §66.33 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective October 12, 2006, 31 TexReg 8354; amended to be effective February 22, 2010, 35 TexReg 1454

§66.36: State Review Panels: Duties and Conduct

(a) The duties of each member of a state review panel are to:

(1) evaluate all instructional materials submitted for adoption in each subject assigned to the panel to determine if essential knowledge and skills are covered in the student version of the textbook, as well as in the teacher version of the textbook. Nothing in this rule shall be construed to contravene the Texas Education Code (TEC), §28.004(e)(5), which makes coverage of contraception and condom use optional in both the student and teacher editions of health textbooks. Panel members will use State Board of Education-approved procedures for evaluating coverage of the essential knowledge and skills in the student text narrative in addition to end-of-section review exercises, end-of-chapter activities, or unit tests as required in the proclamation. The approved procedures include the following.

(A) State review panel members must participate in training to ensure clear and consistent guidelines for determining full Texas Essential Knowledge and Skills (TEKS) coverage within the instructional materials.

(B) State review panel members must participate in a team during the review and reach a consensus to determine if the TEKS have been covered sufficiently in the instructional materials.

(C) Instructional materials shall be evaluated for TEKS coverage at each grade level.

(D) One reference to a TEKS statement is not considered sufficient coverage. At least three examples of each student expectation must be evident in the instructional materials to ensure sufficient coverage.

(E) If a TEKS statement has multiple student expectations, at least three examples of each student expectation must be evident in the instructional materials to ensure sufficient coverage.

(F) TEKS statements are not considered covered if only included in side bars, captions, or one question at the end of a chapter.

(2) make recommendations to the commissioner of education that each submission assigned to be evaluated by the state review panel be placed on the conforming list, nonconforming list, or rejected;

(3) submit to the commissioner of education a list of any factual errors in instructional materials assigned to be evaluated by the state review panel; and

(4) as appropriate to a subject area and/or grade level, ascertain that instructional materials submitted for adoption do not contain content that clearly conflicts with the stated purpose of the TEC, §28.002(h).

(b) State review panel members shall not accept meals, entertainment, gifts, or gratuities in any form from publishers, authors, or depositories; agents for publishers, authors, or depositories; any person who holds any official position with publishers, authors, depositories, or agents; or any person or organization interested in influencing the selection of instructional materials.

(c) Before presenting recommendations to the commissioner of education, state review panel members shall be given an opportunity to request a meeting with a publisher to obtain responses to questions regarding instructional materials being evaluated by the state review panel. Questions shall be provided to publishers in advance of the meeting.

(d) State textbook review panel members shall be afforded the opportunity to collaborate with other panel members during the official meetings to discuss coverage of TEKS, errors, manufacturing specifications, or any other aspect of instructional materials being evaluated. A member of a state review panel shall have no contact with other members of the panel except during official meetings. State review panel members shall not discuss instructional materials being evaluated with any party having a direct or indirect interest in adoption of instructional materials.

(e) Members of each state review panel may be required to be present at the State Board of Education meeting at which instructional materials are adopted.

Comments

Source Note: The provisions of this §66.36 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective March 4, 2001, 26 TexReg 1706; amended to be effective October 12, 2006, 31 TexReg 8354; amended to be effective December 25, 2007, 32 TexReg 9611; amended to be effective February 22, 2010, 35 TexReg 1454

§66.39: State Review Panels: Expenses

(a) State review panel members shall be reimbursed for expenses incurred in attending official meetings according to the applicable provisions of the General Appropriations Act.

(b) Expenses shall be paid for designated state review panel members to attend the State Board of Education (SBOE) meeting at which instructional materials are considered for adoption.

Comments

Source Note: The provisions of this §66.39 adopted to be effective September 1, 1996, 21 TexReg 7236.

§66.42: State Review Panels: Orientation

State review panel members shall receive an orientation including at least the following:

(1) the responsibilities of a state review panel member;

(2) statutes and rules pertaining to the state adoption process;

(3) essential knowledge and skills specified for subjects included in the proclamation;

(4) identifying factual errors;

(5) the schedule of adoption procedures;

(6) training in technology appropriate to media submitted for adoption; and

(7) regulatory requirements, including the Government Code, §572.051 (relating to Standards of Conduct), and the Texas Penal Code, §36.02 (relating to Bribery). Copies of the statutes mentioned in this section shall be supplied to each state review panel member.

Comments

Source Note: The provisions of this §66.42 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective February 22, 2010, 35 TexReg 1454

§66.45: State Review Panels: No-Contact Periods

(a) State review panel members shall observe a no-contact period that shall begin with the initial communication regarding possible appointment to a state review panel and end after recommendations have been made to the commissioner of education that each submission assigned to be evaluated by the state review panel be placed on the conforming list, nonconforming list, or rejected. During this period, state review panel members shall not be contacted either directly or indirectly by any person having an interest in the adoption process regarding content of instructional materials under evaluation by the panel. This restriction is not intended to prohibit members of the state review panels from seeking advice regarding materials under consideration from the State Board of Education (SBOE).

(b) State review panel members shall report immediately to the commissioner of education any communication or attempted communication by any person regarding instructional materials being evaluated by the panel.

(c) State review panel members shall not discuss content of instructional materials under consideration with any subject area staff member of the Texas Education Agency (TEA), except during the official orientation meeting. Additional requests for information or clarification shall be directed to the commissioner of education or his designee. Copies of all questions from individual members shall be distributed with responses to all members of the appropriate state review panel. This restriction is not intended to prohibit members of the state review panels from contacting designated staff of the TEA regarding adoption procedures.

Comments

Source Note: The provisions of this §66.45 adopted to be effective September 1, 1996, 21 TexReg 7236.

§66.48: Statement of Intent to Bid Instructional Materials

(a) Each publisher who intends to offer instructional materials for adoption shall submit a statement of intent to bid and preliminary price information on or before the date specified in the schedule of adoption procedures. The statement of intent with preliminary price information shall be accompanied by publisher's data submitted in a form approved by the commissioner of education.

(b) A publisher shall designate instructional materials submitted as appropriate for placement on the conforming list or nonconforming list.

(c) If a student or teacher component of a submission consists of more than one item, a publisher shall provide complete and correct titles of each item included in the student and/or teacher component at the time the statement of intent is filed.

(d) A publisher shall specify hardware or special equipment needed to review any item included in an instructional materials submission.

(e) Additions to a publisher's submission shall not be accepted after the deadline for filing statements of intent, except as allowed in the schedule of adoption procedures included in the proclamation. A publisher who wishes to withdraw an instructional materials submission after having filed a statement of intent to bid shall notify the commissioner of education in writing on or before the date specified in the schedule of adoption procedures.

(f) A publisher who intends to offer instructional materials for midcycle review shall submit a statement of intent to bid and price information on or before the date specified in the schedule of adoption procedures under midcycle review. The statement of intent to bid must:

(1) specify the manner in which textbooks will be provided to school districts, including:

(A) the regional education service center area(s) to be served; or

(B) the certain maximum number of textbooks to be provided under the contract; and

(2) include payment of the fee for review of instructional materials submitted for midcycle review.

Comments

Source Note: The provisions of this §66.48 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective August 15, 1999, 24 TexReg 5699; amended to be effective October 12, 2006, 31 TexReg 8354; amended to be effective December 25, 2007, 32 TexReg 9611; amended to be effective February 22, 2010, 35 TexReg 1454

§66.51: Instructional Materials Purchased by the State

(a) Instructional materials offered for adoption by the State Board of Education (SBOE).

(1) Publishers may not submit instructional materials for adoption that have been authored by an employee of the Texas Education Agency (TEA).

(2) The official bid price of an instructional material submission may exceed the price included with the statement of intent to bid filed under §66.48 of this title (relating to Statement of Intent to Bid Instructional Materials).

(3) A teacher's component submitted to accompany student instructional materials under consideration for adoption shall be part of the publisher's official bid and shall be provided for the duration of the original contract and any contract extensions at no cost to the school district or open-enrollment charter school as specified in the publisher's bid.

(4) Under the Texas Education Code, §31.025, the official bid price for an instructional material submission may exceed the maximum cost to the state that is established in the proclamation. The state shall only be responsible for payment to the publisher in an amount equal to the maximum cost. A school district ordering instructional materials is responsible for the portion of the cost that exceeds the state maximum.

(5) Any discounts offered for volume purchases of adopted instructional materials shall be included in price information submitted with statement of intent to bid and in the official bid.

(6) The official bid filed by a publisher shall include separate prices for each item included in an instructional material submission. The publisher shall guarantee that individual items included in the student and/or teacher component shall be available for local purchase at the individual prices listed for the entire contract period. (Individual component prices are listed to show school districts the replacement costs of components and not to reflect publisher's bid prices for these components.)

(7) Publishers shall submit to the TEA a signed affidavit certifying that each individual whose name is listed as an author or contributor of a textbook contributed to the development of the textbook. The affidavit shall also state in general terms each author's involvement in the development of the textbook.

(8) Instructional materials submitted for adoption shall be self-sufficient for the period of adoption. Nonconsumable components shall be replaced by the publisher during the warranty period. Consumable materials included in a student or teacher component of a submission shall be clearly marked as consumable. An item not marked as "consumable" is deemed to be "nonconsumable." The cost of such consumables to the state for the entire contract period may exceed the maximum cost established in the proclamation. School districts may be required to pay the difference between the state maximum cost and the actual cost of the materials.

(9) Student materials offered for adoption may include consumable components in subjects and grade levels in which consumable materials are not specifically called for in the proclamation. In such cases, publishers must meet the following conditions.

(A) The per student price of the materials must include the cost of replacement copies of consumable student components for the full term of the adoption and contract, including any extensions of the contract terms, but for no more than nine years. The offer must be set forth in the publisher's official bid.

(B) The publisher's official bid shall contain a clear explanation of the terms of the sale, including the publisher's agreement to supply consumable student materials for the duration of the contract and extensions as noted in subparagraph (A) of this paragraph.

(C) The publisher and the school district shall determine the manner in which consumable student materials are supplied beyond the initial order year.

(10) On or before the deadline established in the schedule of adoption procedures, publishers shall submit correlations of instructional materials submitted for adoption with essential knowledge and skills required by the proclamation. These correlations shall include essential knowledge and skills covered in the student text narrative in addition to end-of-section review exercises, end-of-chapter activities, or unit tests as required in the proclamation. Correlations shall be submitted in a format approved by the commissioner of education.

(11) The SBOE shall reduce the approved maximum cost for each nonconforming instructional material. The reduced maximum cost for each adopted nonconforming instructional material shall be equal to the original maximum cost for that instructional material times a certain percentage. This percentage shall be the same as the percentage of elements of the essential knowledge and skills covered by the instructional material and that was used by the SBOE to determine whether the instructional material should be designated as conforming, nonconforming, or rejected per the Texas Education Code. Each performance description shall count as an independent element of the essential knowledge and skills of the subject. For those courses where a student expectation is not identified, the knowledge and skill will replace the student expectation to determine the percentage of student expectations addressed. The reduced maximum cost for nonconforming instructional materials will apply to both foundation and enrichment courses. For nonconforming instructional materials, the state shall be responsible for payment to the publisher in an amount only equal to the reduced maximum cost. A school district ordering nonconforming instructional materials is responsible for the portion of the cost that exceeds the reduced state maximum cost.

(b) Non-adopted instructional materials. A publisher of non-adopted instructional materials selected and purchased by school districts or open-enrollment charter schools under §66.104(c) - (f) of this title (relating to Selection of Instructional Materials by School Districts) shall meet all applicable requirements of the Texas Education Code, §31.151.

Comments

Source Note: The provisions of this §66.51 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective September 1, 2001, 26 TexReg 5807; amended to be effective October 12, 2006, 31 TexReg 8354; amended to be effective December 25, 2007, 32 TexReg 9611

§66.54: Samples

(a) Samples of student and teacher components of instructional materials submitted for adoption shall be complete as to content and representative of finished format. Electronic textbooks submitted for adoption, including Internet-based products, must be representative of the final product and completely functional.

(b) The publisher of instructional materials submitted for adoption shall make available up to three examination copies of each submitted student and teacher component to each State Board of Education (SBOE) member upon that member's request, beginning on the date in the adoption schedule when publishers file their samples at the Texas Education Agency (TEA). SBOE members may request publishers through the TEA to ship these items directly to interested citizens. Publishers participating in the adoption process are responsible for all expenses incurred by their participation. The state does not guarantee return of these SBOE-requested materials.

(c) Two sample copies of the student and teacher components of each instructional materials submission shall be filed with each of the 20 regional education service centers (ESCs) on or before the date specified in the schedule of adoption procedures. The TEA may request additional samples if they are needed. These samples shall be available for public review. Publishers of Internet-based instructional content submitted for review shall provide the ESCs with appropriate information, such as locator and login information and passwords, required to ensure public access to their programs throughout the review period. Samples to ESCs are not required for instructional materials submitted for midcycle review, as specified in §66.22(f) of this title (relating Midcycle Review and Adoption).

(d) If it is determined that good cause exists, the commissioner of education may extend the deadline for filing samples with ESCs or specify a lesser number of samples a publisher must provide. At its discretion, the SBOE may remove from consideration any materials proposed for adoption that were not properly deposited with the ESCs, the TEA, or members of the state review panel.

(e) One official sample copy of each student and teacher component of an instructional materials submission shall be filed with the TEA on or before the date specified in the schedule of adoption procedures. The TEA may request additional samples if they are needed. In addition, the publisher shall provide a complete description of all items included in a student and teacher component of an instructional materials submission.

(f) One sample copy of each student and teacher component of an instructional materials submission shall be filed with each member of the appropriate state review panel in accordance with instructions provided by the TEA. To ensure that the evaluations of state review panel members are limited to student and teacher components submitted for adoption, publishers shall not provide ancillary materials or descriptions of ancillary materials to state review panel members. Texas Education Code, §31.002(3), defines a textbook as a book, a system of instructional materials, a combination of a book and supplementary instructional materials that conveys information to the student or otherwise contributes to the learning process, or an electronic textbook.

(g) The TEA, ESCs, and affected publishing companies shall work together to ensure that hardware or special equipment necessary for review of any item included in a student and/or teacher component of an instructional materials submission is available in each ESC. Affected publishers may be required to loan such hardware or special equipment to any member of a state review panel who does not have access to the necessary hardware or special equipment.

(h) A publisher shall provide a list of all corrections necessary to each student and teacher component of an instructional materials submission. The list must be in a format designated by the commissioner of education and filed on or before the deadline specified in the schedule of adoption procedures. If no corrections are necessary, the publisher shall file a letter stating this on or before the deadline in the schedule for submitting the list of corrections. On or before the deadline for submitting lists of corrections, publishers shall submit certification that all instructional materials have been edited for accuracy, content, and compliance with requirements of the proclamation.

(i) One complete sample copy of each student and teacher component of adopted instructional materials that incorporate all corrections required by the SBOE shall be filed with the commissioner of education on or before the date specified in the schedule of adoption procedures. In addition, each publisher shall file an affidavit signed by an official of the company verifying that all corrections required by the commissioner of education and SBOE have been made. Corrected samples shall be identical to materials that will be provided to school districts after purchase.

(j) Publishers participating in the adoption process are responsible for all expenses incurred by their participation. The state does not guarantee return of sample instructional materials.

Comments

Source Note: The provisions of this §66.54 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective March 4, 2001, 26 TexReg 1706; amended to be effective September 1, 2002, 27 TexReg 7105; amended to be effective October 12, 2006, 31 TexReg 8354; amended to be effective December 25, 2007, 32 TexReg 9611; amended to be effective February 22, 2010, 35 TexReg 1454

§66.57: Regional Education Service Centers: Procedures for Handling Samples; Public Access to Samples

(a) Handling procedures.

(1) Each regional education service center (ESC) executive director shall designate one person to supervise all shipments of instructional materials. The Texas Education Agency (TEA) shall provide to each designated person forms to be used in reporting receipt of sample shipments.

(2) On or before the date specified in the schedule of adoption procedures, each ESC representative shall notify the commissioner of education of all irregularities in sample shipments. The appropriate publisher shall be notified of any sample shipment irregularities reported by the ESCs.

(b) Public access to samples.

(1) One sample of all instructional materials under consideration for adoption shall be retained in each ESC for review by interested persons until notification is received from the TEA. Any additional samples shall be made available to be checked out according to rules established by each ESC based on demand. Appropriate information, such as locator and login information and passwords, shall be made available by the ESCs to ensure public access to Internet-based instructional content throughout the review period.

(2) Regional ESCs shall ensure reasonable public access to sample instructional materials, including access outside of normal working hours that shall be scheduled by appointment.

(3) On or before the date specified in the schedule of adoption procedures, each ESC shall issue a news release publicizing the date on which sample instructional materials will be available for review at the center and shall notify all school districts in the region of the schedule.

Comments

Source Note: The provisions of this §66.57 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective September 1, 2002, 27 TexReg 7105; amended to be effective February 22, 2010, 35 TexReg 1454

§66.60: Public Comment on Instructional Materials

(a) Written comments.

(1) Any resident of Texas may submit written comments for, against, or about any instructional materials submitted for adoption.

(2) Written comments and lists of factual errors shall be submitted to the commissioner of education on or before the deadlines specified in the schedule of adoption procedures.

(3) Copies of written comments and lists of factual errors shall be provided to the State Board of Education (SBOE), participating publishers, regional education service centers (ESCs), and persons who have filed written requests.

(b) Public hearing before the SBOE. On a date specified in the schedule of adoption procedures, the SBOE shall hold a hearing on instructional materials submitted for adoption that may, at the discretion of the SBOE chair, be designated an official meeting of the SBOE.

(1) Testimony at the hearing shall be accepted from Texas residents and non-residents with priority given to Texas residents. Copies of testimony made at the hearing may be distributed to SBOE members. No other written material may be distributed during the hearings. Persons who wish to testify must notify the commissioner of education on or before the date specified in the schedule of adoption procedures. The notice must identify the subject areas and titles about which testimony will be presented. The SBOE may limit the time available for each person to testify.

(2) Oral responses to testimony at the hearing may be made by official representatives of publishing companies who have requested time to present responses on or before the date specified in the schedule of adoption procedures.

(3) The commissioner of education shall have a complete record of the hearing. The recorded hearing or transcript of the hearing shall be provided to the SBOE, ESCs, participating publishers, and persons who have filed written requests. The official record shall be held open for ten business days after the close of the hearings. During this period, any person who participated in a hearing before the SBOE and any official representative of a publishing company may submit a written response to written comments and/or oral testimony presented at the hearing.

(4) Within ten business days after the record is closed, the commissioner shall send copies of responses to written and/or oral testimony to members of the SBOE, ESCs, participating publishers, and persons who have filed written requests.

(c) Public comment on instructional materials not adopted on schedule. Public comment on instructional materials not adopted by the SBOE on the date specified in the schedule of adoption procedures shall be accepted according to the SBOE Operating Rules, §2.10 (relating to Public Testimony).

Comments

Source Note: The provisions of this §66.60 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective September 1, 1997, 22 TexReg 3779; amended to be effective October 12, 2006, 31 TexReg 8354; amended to be effective February 22, 2010, 35 TexReg 1454

§66.63: Report of the Commissioner of Education

(a) The commissioner of education shall review all instructional materials submitted for consideration for adoption. The commissioner's review shall include the following:

(1) evaluations of instructional materials prepared by state review panel members, including recommendations that instructional materials be placed on the conforming list, placed on the nonconforming list, or rejected (To be conforming, instructional materials must cover all essential knowledge and skills as required by the proclamation in the student text narrative in addition to end-of-section review exercises, end-of-chapter activities, or unit tests.);

(2) compliance with established manufacturing standards and specifications;

(3) recommended corrections of factual errors identified by state review panels;

(4) prices of instructional materials submitted for adoption; and

(5) whether instructional materials are offered by a publisher who refuses to rebid instructional materials according to §66.24 of this title (relating to Review and Renewal of Contracts).

(b) Based on the review specified in subsection (a) of this section, the commissioner of education shall prepare preliminary recommendations that instructional materials under consideration be placed on the conforming list, placed on the nonconforming list, or rejected. According to the schedule of adoption procedures, a publisher shall be given an opportunity for a show-cause hearing if the publisher elects to protest the commissioner's preliminary recommendation.

(c) The commissioner of education shall submit to the State Board of Education (SBOE) final recommendations that instructional materials under consideration be placed on the conforming list, placed on the nonconforming list, or rejected.

(d) The commissioner of education shall submit for SBOE approval a report on corrections of factual errors that should be required in instructional materials submitted for consideration. The report on recommended corrections shall be sent to the SBOE, affected publishers, regional education service centers (ESCs), and other persons, such as braillists, needing immediate access to the information. The commissioner shall obtain written confirmation from publishers that they would be willing to make all identified corrections should they be required by the SBOE.

Comments

Source Note: The provisions of this §66.63 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective December 25, 2007, 32 TexReg 9611; amended to be effective February 22, 2010, 35 TexReg 1454

§66.66: Consideration and Adoption of Instructional Materials by the State Board of Education

(a) Publishers shall file three copies of the official bid form with the commissioner of education according to the schedule of adoption procedures.

(b) A committee of the State Board of Education (SBOE) shall be designated by the SBOE chair to review the commissioner's report concerning instructional materials recommended for state adoption. The committee shall report the results of its review to the SBOE.

(c) The SBOE shall adopt both a list of conforming and nonconforming instructional materials in accordance with the Texas Education Code (TEC), §31.023. Instructional materials may be adopted only if they:

(1) meet the requisite percentage of Texas Essential Knowledge and Skills (TEKS) required under the TEC, §31.023. In determining the percentage of elements of the TEKS covered by instructional materials, each student expectation shall count as an independent element of the TEKS of the subject;

(2) meet the established physical specifications adopted by the SBOE;

(3) are free from factual errors; and

(4) receive majority vote of the SBOE. However, no instructional material may be adopted that contains content that clearly conflicts with the stated purpose of the TEC, §28.002(h).

(d) Instructional materials submitted for placement on a conforming or nonconforming list may be rejected by majority vote of the SBOE in accordance with the TEC, §31.024.

(e) The SBOE shall either adopt or reject each submitted instructional material in accordance with the TEC, §31.024.

(f) The SBOE may allow a publisher to withdraw from the adoption process after the date specified in the proclamation due to recommended placement on a conforming or nonconforming list, manufacturing specifications required as a condition of adoption by the SBOE that the publisher states cannot be met, or failure to agree to make corrections required by the SBOE.

Comments

Source Note: The provisions of this §66.66 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective September 1, 1997, 22 TexReg 3779; amended to be effective October 12, 2006, 31 TexReg 8354; amended to be effective December 25, 2007, 32 TexReg 9611; amended to be effective February 22, 2010, 35 TexReg 1454

§66.67: Adoption of Open-Source Instructional Materials

(a) "Open-Source Materials" are defined by the Texas Education Code, (TEC) §31.002, as electronic textbooks that are available for downloading from the Internet at no charge to a student and without requiring the purchase of an unlock code, membership, or other access or use charge, except for a charge to order an optional printed copy of all or part of the textbook. The term includes a state-developed open-source textbook purchased under the TEC, Chapter 31, Subchapter B-1.

(b) The State Board of Education (SBOE) shall place an open-source textbook submitted for a secondary-level course on a conforming or nonconforming list if the textbook meets the criteria outlined in subsections (c) and (d) of this section.

(c) An open-source textbook must be:

(1) submitted by an eligible institution, defined as a public institution of higher education that is designated as a research university or emerging research university under the Texas Higher Education Coordinating Board's accountability system, or a private university located in Texas that is a member of the Association of American Universities, or a public technical institute, as defined by the TEC, §61.003;

(2) intended for a secondary-level course; and

(3) written, compiled, or edited primarily by faculty of an eligible institution who specialize in the subject area of the textbook.

(d) To submit an open-source textbook, an eligible institution must:

(1) certify by the board of regents or president of the university, or by an individual authorized by one of these entities, that the textbook qualifies for placement on a conforming or nonconforming list based on the extent to which the textbook covers the essential knowledge and skills identified under the TEC, §28.002;

(2) identify each contributing author;

(3) certify by the appropriate academic department of the submitting institution that the textbook is accurate; and

(4) certify that:

(A) for a textbook for a senior-level course, a student who successfully completes a course based on the textbook will be prepared, without remediation, for entry into the eligible institution's freshman-level course in that subject; or

(B) for a textbook for a junior-level and senior-level course, a student who successfully completes the junior-level course based on the textbook will be prepared for entry into the senior-level course.

(e) All submissions required by subsection (d) of this section shall be made in a format approved by the SBOE and the commissioner of education.

(f) Technology-based open-source textbooks shall be required to comply with the technical standards in the Rehabilitation Act, §508, as applicable.

(g) All university-developed open-source textbook submissions shall be reviewed independently by the same process used in §66.36 of this title (relating to State Review Panels: Duties and Conduct) to confirm the content meets the criteria for placement on the conforming or nonconforming list based on the extent to which the textbook covers the essential knowledge and skills. The SBOE shall notify the submitting institution of any discrepancy with alignment with essential knowledge and skills.

(h) Before placing an open-source textbook submitted under subsection (b) of this section on the conforming or nonconforming list, the SBOE shall direct the Texas Education Agency (TEA) to post the materials on the TEA website for 60 days to allow for public comment and the SBOE shall hold a public hearing on the textbooks.

(i) With the exception of 1% of sales, all university-developed open-source textbook submissions shall be assessed fines as defined in §66.10(d)-(f) of this title (relating to Procedures Governing Violations of Statutes--Administrative Penalties).

(j) For purposes of this chapter, an entity producing an open-source material shall comply with all duties of publishers in this chapter or in the TEC, Chapter 31, from which such entity is not explicitly exempted.

(k) An open-source textbook defined in the TEC, §31.0241 and §31.071, shall not fulfill the requirement of a classroom set.

Comments

Source Note: The provisions of this §66.67 adopted to be effective April 27, 2010, 35 TexReg 3257

§66.69: Ancillary Materials

(a) "Ancillary materials" are defined by the Texas Education Agency (TEA) as materials that are not listed on the publisher's intent to bid statement but which the publisher plans to provide to districts and open-enrollment charter schools free with their order. A publisher of adopted instructional materials shall provide any ancillary item free of charge or at the same price discount to the same extent that the publisher provides the item free of charge or at a price discount to any state, public school, or school district in the United States. Free or discounted price ancillary items will be distributed equitably to all school districts and open-enrollment charter schools regardless of size. The title of each ancillary item that a publisher will make available to school districts and open-enrollment charter schools at no charge and the ratio at which each item shall be supplied shall be filed with the TEA according to the schedule contained in the proclamation. A publisher must notify TEA of any ancillaries provided to school districts and open-enrollment charter schools that are not listed with TEA. All packages of ancillary materials shipped to school districts and open-enrollment charter schools shall be labeled, "Ancillary Materials -- Not Reviewed by the State Board of Education."

(b) Three-dimensional ancillary materials designed for use as manipulatives in prekindergarten systems that cannot be produced in a digital or web-based format shall not be required to be provided electronically. This subsection shall be implemented beginning with Proclamation 2011.

(c) Designated ancillaries shall be made available to the State Board of Education (SBOE) upon request. Individual SBOE members are not authorized to act on behalf of the SBOE in requesting and making changes to supplemental or ancillary materials.

Comments

Source Note: The provisions of this §66.69 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective March 4, 2001, 26 TexReg 1706; amended to be effective October 12, 2006, 31 TexReg 8354; amended to be effective December 25, 2007, 32 TexReg 9611; amended to be effective April 27, 2010, 35 TexReg 3258

§66.72: Preparing and Completing Contracts

(a) The state contract form shall not be changed or modified without approval of the Texas Education Agency's (TEA) legal counsel.

(b) Contract forms shall be sent to the publishers for signature. Signed contracts returned by the publishers shall be signed by the chair of the State Board of Education (SBOE) and attested to by the commissioner of education. Properly signed and attested contracts shall be filed with the TEA.

(c) The publisher of a textbook submitted for midcycle review shall:

(1) enter into a contract with the SBOE for a term that ends at the same time as any contract entered into by the SBOE for another textbook for the same subject and grade level; and

(2) commit to provide the textbook in the manner specified by the publisher in the statement of intent to bid midcycle materials in §66.48(f) of this title (relating to Statement of Intent to Bid Instructional Materials).

Comments

Source Note: The provisions of this §66.72 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective August 15, 1999, 24 TexReg 5699; amended to be effective December 25, 2007, 32 TexReg 9611

§66.73: Contracts for Printing of Open-Source Textbooks

(a) The State Board of Education (SBOE) may execute a contract for the printing of an open-source textbook listed on the conforming or nonconforming list.

(b) The contract shall allow a school district or an open-enrollment charter school to requisition printed copies of an open-source textbook as provided by the Texas Education Code, §31.103.

(c) The contract form shall be approved by, and shall not be changed or modified without approval of, the Texas Education Agency's (TEA) legal counsel.

(d) Contract forms shall be sent to the awarded vendor for signature. Signed contracts returned by the awarded vendor shall be signed by the chair of the SBOE and attested to by the commissioner of education. Properly signed and attested contracts shall be filed with the TEA.

Comments

Source Note: The provisions of this §66.73 adopted to be effective February 22, 2010, 35 TexReg 1454

§66.75: Updates

(a) A publisher may submit a request to the commissioner of education for approval to substitute an updated edition of state-adopted instructional materials. A publisher requesting an update shall provide the request in writing, along with two copies of the updated edition, and one copy of the corresponding state-adopted instructional material. This section includes electronic textbooks and Internet products for which all users receive the same updates.

(b) Requests for approval of the updated edition shall provide that there will be no additional cost to the state.

(c) Requests for approval of the updates shall not be approved during the first year of the original contract unless the commissioner of education determines that changes in technology, curriculum, or other reasons warrant the updates.

(d) Publishers submitting requests for approval of the updates must certify in writing that the new material meets the applicable essential knowledge and skills and is free from factual errors.

(e) Responses from the commissioner of education to update requests shall be provided within 30 days after receipt of the request.

(f) All requests for updates involving content in state-adopted instructional materials must be approved by the State Board of Education (SBOE) prior to their introduction into state-adopted instructional materials. The SBOE may assess penalties as allowed by law against publishers who fail to obtain approval for updates to content in state-adopted instructional materials prior to delivery of the materials to school districts.

(g) Publishers shall request approval from the commissioner of education for electronic design changes and/or updates that improve performance, design, and technology capabilities that enhance the operation and usage for students and teachers but do not include changes to Texas essential knowledge and skills coverage or new content.

(h) Publishers must agree to supply the previous version of state-adopted textbooks to school districts that choose to continue using the previous version during the duration of the original contract. This subsection does not apply to online instructional materials.

(i) A publisher of instructional materials may provide alternative formats for use by school districts if:

(1) the content is identical to SBOE-approved content;

(2) the alternative formats include the identical revisions and updates as the original product; and

(3) the cost to the state and school is equal to or less than the cost of the original product.

(j) Alternative formats may be developed and introduced at a time when the subject or grade level is not scheduled in the cycle to be considered for at least two years, in conformance with the procedures for adoption of other state-adopted materials.

(k) Publishers must notify the commissioner of education in writing if they are providing SBOE-approved products in alternative formats.

(l) Publishers are responsible for informing districts of the availability of the alternative formats and for accurate fulfillment of these orders.

(m) The commissioner of education may add alternative formats of SBOE-approved products to the list of available products disseminated to school districts.

Comments

Source Note: The provisions of this §66.75 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective August 15, 1999, 24 TexReg 5699; amended to be effective October 12, 2006, 31 TexReg 8354; amended to be effective February 22, 2010, 35 TexReg 1454

§66.78: Delivery of Adopted Instructional Materials

(a) Under the Texas Education Code (TEC), §31.151, each publisher of adopted instructional materials is required to maintain a depository in this state or arrange with a depository in this state to receive and fill orders for textbooks. Publishers whose products are delivered on-line or are warehoused and shipped from a facility less than 300 miles from the Texas border are not required to maintain a depository in Texas. Publishers who do not maintain a depository in Texas in accordance with TEC, §31.151, must deliver textbooks to a school district or open-enrollment charter school without a delivery charge to the school district, open-enrollment charter school, or state.

(b) Each publisher is required to have adopted instructional materials in stock and available for distribution to school districts throughout the entire adoption period. A back order is defined as adopted instructional material not in stock when ordered and not available for delivery to school districts or open-enrollment charter schools on the specified shipment date. The commissioner of education shall report the number of back-ordered materials by publisher to the State Board of Education (SBOE).

(c) Each publisher shall guarantee delivery of textbooks at least ten business days before the opening day of school of the year for which the textbooks are ordered if the textbooks have been ordered by a date specified in the sales contract.

(d) Each publisher with instructional materials on back order shall notify affected school districts of the expected ship dates for each title on back order.

(e) Payments from the Texas Education Agency (TEA) for adopted instructional materials shall be made directly to the publisher or to any agent or trustee designated in writing by the publisher.

(f) Any publisher, at its discretion, and at least 60 days after notifying the TEA in writing, may change from one depository to another approved depository, except with respect to newly adopted instructional materials in the first year of adoption, when at least 120 days written notice to the TEA is required.

(g) Any request to establish a new depository shall be submitted to the commissioner of education by September 1. The effective date for any new depository shall be April 1 of the year following approval. Each party requesting authority to establish a new depository shall:

(1) present evidence of financial viability adequate to ensure performance of obligations under all contracts on an annual basis;

(2) provide specifications for the warehouse; equipment; as appropriate, evidence of a climate-controlled environment for storage of electronic media; plans for staffing of the proposed depository; and computer capability to receive and process orders and communicate in the automated format specified by the TEA;

(3) submit assurances that a proper stock of instructional materials is available; and

(4) submit a list of publishers under contract with the request.

Comments

Source Note: The provisions of this §66.78 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective March 4, 2001, 26 TexReg 1706; amended to be effective February 7, 2002, 27 TexReg 746

Subchapter C

§66.101: Sample Copies of Instructional Materials for School Districts

(a) A publisher shall provide each school district and open-enrollment charter school with information that fully describes adopted instructional material. Descriptive information provided to each school district or open-enrollment charter school shall be identical.

(b) Upon request by the textbook coordinator of a school district or open-enrollment charter school, a publisher shall provide one complete sample of adopted instructional materials. Samples of learning systems and electronic, visual, or auditory media may be provided in demonstration or representative format, provided that identical samples are provided to each school district or open-enrollment charter school. Samples of instructional materials provided to school districts shall be labeled, "Sample Copy - Not for Classroom Use." Samples to schools are not required for materials submitted for midcycle review, as specified in §66.22(f) of this title (relating Midcycle Review and Adoption).

(c) Samples supplied to school districts shall be provided and distributed at the expense of the publisher. No state or local funds shall be expended to purchase, distribute, or ship sample materials. Publishers may make arrangements with school districts or open-enrollment charter schools to retrieve samples after local selections are completed, but the state does not guarantee return of sample instructional materials.

Comments

Source Note: The provisions of this §66.101 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective February 7, 2002, 27 TexReg 746; amended to be effective December 25, 2007, 32 TexReg 9611

§66.102: Textbook Credits

(a) A school district or an open-enrollment charter school is entitled to receive credit for textbooks purchased at a cost below the cost limit established under the Texas Education Code (TEC), §31.025(a).

(b) The credit is an amount equal to the difference between the price paid for a textbook and the cost limit established under the TEC, §31.025(a), for that textbook multiplied by the number of copies of that textbook the school district or open-enrollment charter school selects.

(c) A school district or an open-enrollment charter school that selects a state-developed open-source textbook or a State Board of Education (SBOE) open-source textbook placed on the list pursuant to the TEC, §31.0241, instead of another textbook adopted under TEC, §31.023, is entitled to the difference between the cost determined by the commissioner of education under the TEC, §31.073, and the maximum price for a textbook in the same subject area, as determined by the SBOE under the TEC, §31.023.

(d) Fifty percent of the total textbook credit of a school district or an open-enrollment charter school shall be credited to the state textbook fund, and 50% of the credit shall be credited to the school district or open-enrollment charter school. A school district or an open-enrollment charter school may apply textbook credits toward the purchase of:

(1) additional textbooks or electronic textbooks that are on the conforming or nonconforming list under the TEC, §31.023;

(2) components of such textbooks, including any electronic components;

(3) supplemental textbooks as provided by the TEC, §31.035; and

(4) technological equipment necessary to support the instruction of electronic textbooks or instructional materials included on the list adopted under the TEC, §31.0231, or any textbook or instructional materials included on the conforming or nonconforming list adopted by the SBOE.

(e) A school district or an open-enrollment charter school is entitled to receive credit for textbooks purchased at a cost below the cost limit established under the TEC, §31.025(a), only in the first year of implementation.

(f) A school district or an open-enrollment charter school must notify the Texas Education Agency (TEA) for the use of funds generated by textbook credits.

(g) A school district or an open-enrollment charter school must submit an itemized expenditure report to the TEA.

Comments

Source Note: The provisions of this §66.102 adopted to be effective February 22, 2010, 35 TexReg 1454

§66.104: Selection of Instructional Materials by School Districts

(a) Each local board of trustees of a school district or governing body of an open-enrollment charter school shall adopt a policy for selecting instructional materials. Final selections must be recorded in the minutes of the board of trustees or governing body.

(b) If instructional materials priced above the maximum cost to the state established in the proclamation are selected by a school district or open-enrollment charter school, the school district or open-enrollment charter school is responsible for paying to the publisher the portion of the cost above the state maximum.

(c) If instructional materials for subjects in the enrichment curriculum that are not on the conforming or nonconforming lists adopted by the State Board of Education (SBOE) are selected by a school district or open-enrollment charter school, the state shall be responsible for paying the district an amount equal to the lesser of:

(1) 70% of the cost to the district of the instructional materials. The applicable quota for adopted materials in the subject shall be the basis for determining instructional materials needed by the district; or

(2) 70% of the maximum cost to the state established for the subject. The applicable quota for adopted materials in the subject shall be the basis for determining instructional materials needed by the district.

(d) A school district or open-enrollment charter school that selects non-adopted instructional materials for enrichment subjects is responsible for the portion of the cost of the materials not eligible for payment by the state under subsection (c) of this section. The minutes of the board of trustees or governing body meeting at which such a selection is ratified shall reflect the agreement of the school district or open-enrollment charter school to bear responsibility for the portion of the cost not eligible for payment by the state. A school district or open-enrollment charter school that selects non-adopted instructional materials for enrichment subjects also bears responsibility for providing braille and/or large type versions of the non-adopted instructional materials.

(e) Funds paid by the state under subsection (c) of this section shall be used only for purchasing the non-adopted instructional materials selected and ratified by the board of trustees or governing body.

(f) Non-adopted instructional materials selected and purchased under subsection (c) of this section shall be used by the school district or open-enrollment charter school during the contract period for conforming and nonconforming instructional materials adopted by the SBOE in the subject area.

(g) A report listing instructional materials selected for use in a school district or open-enrollment charter school shall be transmitted to the Texas Education Agency (TEA) no later than April 1 each year.

(h) Only instructional materials ratified by the board of trustees or governing body shall be furnished by the state for use in any school district or open-enrollment charter school. Selections certified to the TEA shall be final and, therefore, shall not be subject to reconsideration during the original contract period or readoption contract periods covering the instructional materials selected.

(i) Except as otherwise provided by statute, requisitions submitted before the first day of school shall be approved based on the maximum number of students enrolled in the district or open-enrollment charter school during the previous school year and/or registered to attend the district during the next school year. Requisitions submitted after the first day of school shall be approved based on the actual number of students enrolled in the district when the requisition is submitted. If two or more titles are selected in a subject, requisitions may be made for a combined total of the selected titles.

(j) Instructional materials requisitioned by, and delivered to, a school district or an open-enrollment charter school shall be continued in use during the contract period or periods of the materials. A school district may not return copies of one title to secure copies of another title in the same subject.

(k) If a school district or open-enrollment charter school does not have a sufficient number of copies of a textbook used by the district or school for use during the following school year, and a sufficient number of additional copies will not be available from the publisher's depository or the publisher within ten business days prior to the opening day of school, the school district or school is entitled to be reimbursed from the state textbook fund at a rate not to exceed the actual cost of the used textbook, or the state maximum cost, whichever is less, for the purchase of a sufficient number of used adopted textbooks.

(l) In making a requisition, a school district or open-enrollment charter school may requisition textbooks on the conforming and nonconforming list for grades above the grade level in which the student is enrolled, except that the total quantity of textbooks requisitioned may not exceed a school district's eligibility quota for that subject.

(m) Adopted instructional materials shall be supplied to a pupil in special education classes as appropriate to the level of the pupil's ability and without regard to the grade for which the instructional material is adopted or the grade in which the pupil is enrolled.

(n) A school district or open-enrollment charter school may order replacements for textbooks that have been lost or damaged directly from the textbook depository or the textbook publisher or manufacturer if the textbook publisher or manufacturer does not have a designated textbook depository in this state, in accordance with §66.78(a) of this title (relating to Delivery of Adopted Instructional Materials).

(o) School districts or open-enrollment charter schools shall not be reimbursed from state funds for expenses incurred in local handling of textbooks.

(p) Selection and use of ancillary materials provided by publishers under §66.69 of this title (relating to Ancillary Materials) is at the discretion of each local board of trustees or governing body.

(q) The SBOE shall reduce the approved maximum cost for each nonconforming instructional material according to §66.51(a)(11) of this title (relating to Instructional Materials Purchased by the State). For nonconforming instructional materials, the state shall be responsible for payment to the publisher in an amount only equal to the reduced maximum cost. A school district or open-enrollment charter school ordering nonconforming instructional materials is responsible for the portion of the cost that exceeds the reduced state maximum cost.

(r) A school district or open-enrollment charter school that selects from the commissioner's list as specified in the TEC, §31.0231, must purchase a classroom set of textbooks adopted by the SBOE under the TEC, §31.023 or §31.035, for each subject and grade level in the foundation and enrichment curriculum.

(s) A classroom set shall be defined as the total count of SBOE-adopted textbooks on the conforming or nonconforming list necessary to provide one copy to each student during the class period. A classroom kit that includes materials for every student in the classroom is considered to be a classroom set.

(t) The classroom set requirement shall be implemented as new textbook adoptions become available and are funded. The classroom set requirement will begin with Proclamation 2010.

Comments

Source Note: The provisions of this §66.104 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective March 4, 2001, 26 TexReg 1706; amended to be effective February 7, 2002, 27 TexReg 746; amended to be effective October 12, 2006, 31 TexReg 8358; amended to be effective February 22, 2010, 35 TexReg 1454

§66.105: Certification by School Districts

Prior to the beginning of each school year, each school district and open-enrollment charter school shall submit to the State Board of Education (SBOE) and commissioner of education certification that for each subject in the foundation and enrichment curriculum and each grade level, the district or charter school provides each student with textbooks, electronic textbooks, or instructional materials that cover all elements of the essential knowledge and skills adopted by the SBOE. The certification shall be submitted in a format approved by the commissioner of education.

Comments

Source Note: The provisions of this §66.105 adopted to be effective February 22, 2010, 35 TexReg 1454

§66.107: Local Accountability

(a) Each school district or open-enrollment charter school shall conduct an annual physical inventory of all currently adopted instructional materials that have been requisitioned by, and delivered to, the district. The results of the inventory shall be recorded in the district's files. Reimbursement and/or replacement shall be made for all instructional materials determined to be lost.

(b) Each textbook, other than an electronic textbook, must be covered by the student under the direction of the teacher.

(c) After the beginning of every school year, each school district or open-enrollment charter school shall determine if it has surplus instructional materials for any subject area/grade level, based on its current enrollment for the subject area/grade level. In accordance with the Educational Materials and Textbooks (EMAT) online ordering system, surplus is defined as follows. For courses that use textbooks that are in the first year of adoption, any textbook in excess of 110% of enrollment shall be considered surplus. For courses that use textbooks that are in the second or later years of adoption, any textbook in excess of 120% of enrollment shall be considered surplus. Overages that exceed these definitions should be entered into the EMAT Online Adjust Surplus Screen, except that instructional materials that are needed for the following school year are not considered surplus and should not be entered into the Adjust Surplus Screen. Instructional materials determined by the school district or open-enrollment charter school to be surplus-to-quota shall be reported to the Texas Education Agency (TEA) by October 1 of each year in accordance with instructions provided by the TEA. A school district or open-enrollment charter school is entitled to retain surplus-to-quota instructional materials only when data approved by the TEA indicate that students will be enrolled in the subject and a need for the surplus-to-quota instructional materials exists.

(d) When placing orders for instructional materials, school districts and open-enrollment charter schools shall report enrollments as follows:

(1) Annual orders for instructional materials. Enrollments shall be reported based on the maximum number of students enrolled in the district or open-enrollment charter school during the previous school year and/or registered to attend the district during the next school year; and

(2) Supplemental orders for instructional materials. Enrollments shall be reported based on the actual number of students enrolled in the district when the order is submitted, adjusted for students reported as working above or below grade level.

(e) A school district's enrollment growth or decline for the prior three years shall be used by the TEA as the basis for determining any additional percentage of attendance for which a school district may requisition instructional materials.

(f) The TEA assumes that enrollments reported by a school district or open-enrollment charter school at the time an order for instructional materials is placed are accurate.

(g) A school district or open-enrollment charter school that orders instructional materials in excess of its eligibility by reporting enrollments above enrollments described in subsection (d)(1) and (2) of this section enters into a contract with the state to purchase the instructional materials supplied that exceed the school district or open-enrollment charter school's eligibility for the subject area/grade level. A school district or open-enrollment charter school may cancel the contract to purchase instructional materials supplied in excess of its eligibility by immediately notifying the TEA of the surplus and posting the surplus in accordance with instructions provided by the TEA. If prior approval is received, surplus instructional materials may be returned to the publisher's approved depository or placed into statewide surplus inventory in accordance with instructions from the TEA. A school district or open-enrollment charter school that fails to notify the TEA of surplus instructional materials for more than six months after the beginning of the school year shall reimburse the state at the full price for the surplus instructional materials.

(h) All textbooks must be turned in at the end of the school year or when the student withdraws from school.

(i) The board of trustees of a school district may not require an employee of the district to pay for a textbook or instructional technology that is stolen, misplaced, or not returned by a student.

Comments

Source Note: The provisions of this §66.107 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective September 1, 1998, 23 TexReg 7779; amended to be effective February 7, 2002, 27 TexReg 746; amended to be effective October 12, 2006, 31 TexReg 8358

Subchapter D

§66.121: Special Instructional Materials

(a) All laws and rules applying to instructional materials provided to sighted pupils that are not in conflict with the Texas Education Code, §31.028, or this section shall apply to the distribution and control of braille and large type instructional materials, including, but not limited to, the following.

(1) A requisition for special instructional materials shall be based on actual student enrollment to meet individual student need.

(2) Each school district or open-enrollment charter school shall conduct an annual physical inventory of all currently adopted instructional materials that have been requisitioned by, and delivered to, the district. The results of the inventory shall be recorded in the district's files.

(b) Reimbursement and/or replacement shall be made for all volumes of braille and large type instructional materials determined to be lost.

(c) Publishers shall grant permission to the state to have adopted instructional materials transcribed into braille, large type, and audiotape without penalty or royalty.

(d) On or before the deadline specified in the schedule of adoption procedures, each publisher of newly adopted instructional materials shall provide computerized files as specified in the proclamation to be used for producing braille or other versions of materials to be used by students with disabilities. All information contained in adopted instructional materials shall be included on the computerized files. Computerized files may be copied and distributed to a school district, upon request, for instructional use with a student with disabilities who requires the use of computerized instructional materials, pursuant to an individualized plan developed for the student under the Rehabilitation Act, §504; the Americans with Disabilities Act; or the Individuals with Disabilities Education Act.

(e) The state shall make suitable student instructional materials available in large type. The commissioner of education shall develop specifications for large type instructional materials and notify publishers of student instructional materials suitable for production in large type. The publisher may elect to supply the large type materials, or the commissioner of education may enter into contracts for producing large type materials.

(f) Gifts of instructional materials for educating students who are blind or visually impaired tendered by individuals, groups, or school district officials may be accepted by the State Board of Education and shall become state property and subject to the same regulations as similar items purchased with state funds. Gift materials may be shipped by Free Matter for the Blind and Visually Handicapped to the Special Textbook Redistribution Center or other location designated by the Texas Education Agency (TEA).

(g) Copies of adopted instructional materials in braille and large type needed by a person who is blind or visually impaired to carry out the duties of a teacher in the public schools of this state shall be furnished without cost. The materials are to be loaned to the public school districts as long as needed and are to be returned to the state when they are no longer needed. Materials in the medium needed by the teacher may be requisitioned by a textbook coordinator after the superintendent of schools has certified to the commissioner of education:

(1) the name of the teacher;

(2) the grade or subject taught; and

(3) the fact of the teacher's visual impairment.

(h) Large type instructional materials shall meet or exceed the specifications in §66.7 of this title (relating to Manufacturing Standards and Specifications) and any additional specifications that may be prescribed.

(i) Copies of adopted instructional materials in braille, large type, or in an electronic file that are requested by a parent who is blind or visually impaired shall be furnished without cost by the state. Materials in the medium needed by the parent may be requisitioned by a textbook coordinator. Requests for electronic files will be filled by the TEA after the parent signs and the TEA receives a statement, through the appropriate school district, promising that the parent will safeguard the security of the files and observe all current copyright laws including those that forbid reproduction of the files and their transfer to other parties. All braille and large type textbooks and electronic files with educational content that have been provided to parents who are blind or visually impaired must be returned to the local school district at the end of the school year for reuse.

Comments

Source Note: The provisions of this §66.121 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective October 12, 2006, 31 TexReg 8360; amended to be effective February 22, 2010, 35 TexReg 1454

§66.124: Authorizing State Funds

Money from the state textbook fund may be used to purchase braille and large type state-adopted instructional materials listed in the General Catalog of Braille and Large Type Publications issued by the American Printing House for the Blind and supplements and/or revisions of this publication.

Comments

Source Note: The provisions of this §66.124 adopted to be effective September 1, 1996, 21 TexReg 7236.

Subchapter E

§66.131: Out-of-Adoption Instructional Materials

(a) School districts or open-enrollment charter schools may retain out-of-adoption instructional materials.

(b) Each school district or open-enrollment charter school shall make out-of-adoption instructional materials (other than electronic instructional materials) available to libraries maintained by city and county jails, institutions within the Texas Department of Criminal Justice, and other state agency institutions.

(c) School officials may donate out-of-adoption instructional materials (other than electronic instructional materials) to students, adult education programs, and nonprofit organizations. Individuals and officials making requests for out-of-adoption instructional materials shall be responsible for transporting the materials.

(d) After all efforts to donate out-of-adoption instructional materials (other than electronic instructional materials) to organizations listed under subsection (c) of this section have been exhausted, a school district or open-enrollment charter school may donate these materials for recycling locally. Recycling is defined as removing the bindings and shredding the textbooks for the purpose of producing new products from the processed materials.

(e) Under no circumstances shall out-of-adoption instructional materials be sold by a school district or open-enrollment charter school.

Comments

Source Note: The provisions of this §66.131 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective September 1, 1997, 22 TexReg 3779; amended to be effective March 4, 2001, 26 TexReg 1706

Chapter 74

Subchapter A

§74.1: Essential Knowledge and Skills

(a) A school district that offers kindergarten through Grade 12 must offer the following as a required curriculum:

(1) a foundation curriculum that includes:

(A) English language arts;

(B) mathematics;

(C) science; and

(D) social studies, consisting of Texas, United States and world history, government, and geography; and

(2) an enrichment curriculum that includes:

(A) to the extent possible, languages other than English;

(B) health, with emphasis on the importance of proper nutrition and exercise;

(C) physical education;

(D) fine arts;

(E) economics, with emphasis on the free enterprise system and its benefits;

(F) career and technical education;

(G) technology applications; and

(H) religious literature, including the Hebrew Scriptures (Old Testament) and New Testament, and its impact on history and literature.

(b) A school district must provide instruction in the essential knowledge and skills of the appropriate grade levels in the foundation and enrichment curriculum as specified in paragraphs (1)-(13) of this subsection. A school district may add elements at its discretion but must not delete or omit instruction in the foundation and enrichment curriculum specified in subsection (a) of this section.

(1) Chapter 110 of this title (relating to Texas Essential Knowledge and Skills for English Language Arts and Reading);

(2) Chapter 111 of this title (relating to Texas Essential Knowledge and Skills for Mathematics);

(3) Chapter 112 of this title (relating to Texas Essential Knowledge and Skills for Science);

(4) Chapter 113 of this title (relating to Texas Essential Knowledge and Skills for Social Studies);

(5) Chapter 114 of this title (relating to Texas Essential Knowledge and Skills for Languages Other Than English);

(6) Chapter 115 of this title (relating to Texas Essential Knowledge and Skills for Health Education);

(7) Chapter 116 of this title (relating to Texas Essential Knowledge and Skills for Physical Education);

(8) Chapter 117 of this title (relating to Texas Essential Knowledge and Skills for Fine Arts);

(9) Chapter 118 of this title (relating to Texas Essential Knowledge and Skills for Economics with Emphasis on the Free Enterprise System and Its Benefits);

(10) Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications);

(11) Chapter 127 of this title (relating to Texas Essential Knowledge and Skills for Career Development);

(12) Chapter 128 of this title (relating to Texas Essential Knowledge and Skills for Spanish Language Arts and English as a Second Language); and

(13) Chapter 130 of this title (relating to Texas Essential Knowledge and Skills for Career and Technical Education).

Comments

Source Note: The provisions of this §74.1 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective October 3, 2004, 29 TexReg 9185; amended to be effective January 9, 2007, 32 TexReg 80; amended to be effective April 21, 2010, 35 TexReg 3028

§74.2: Description of a Required Elementary Curriculum

A school district that offers kindergarten through Grade 5 must provide instruction in the required curriculum as specified in §74.1 of this title (relating to Essential Knowledge and Skills). The district must ensure that sufficient time is provided for teachers to teach and for students to learn English language arts and reading, mathematics, science, social studies, fine arts, health, physical education, technology applications, and to the extent possible, languages other than English. The school district may provide instruction in a variety of arrangements and settings, including mixed-age programs designed to permit flexible learning arrangements for developmentally appropriate instruction for all student populations to support student attainment of course and grade level standards.

Comments

Source Note: The provisions of this §74.2 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective January 9, 2007, 32 TexReg 80

§74.3: Description of a Required Secondary Curriculum

(a) Middle Grades 6-8.

(1) A school district that offers Grades 6-8 must provide instruction in the required curriculum as specified in §74.1 of this title (relating to Essential Knowledge and Skills). The district must ensure that sufficient time is provided for teachers to teach and for students to learn English language arts, mathematics, science, social studies, fine arts, health, physical education, technology applications, and to the extent possible, languages other than English. The school district may provide instruction in a variety of arrangements and settings, including mixed-age programs designed to permit flexible learning arrangements for developmentally appropriate instruction for all student populations to support student attainment of course and grade level standards.

(2) The school district must ensure that, beginning with students who enter Grade 6 in the 2010-2011 school year, each student completes one Texas essential knowledge and skills-based fine arts course in Grade 6, Grade 7, or Grade 8.

(b) Secondary Grades 9-12.

(1) A school district that offers Grades 9-12 must provide instruction in the required curriculum as specified in §74.1 of this title. The district must ensure that sufficient time is provided for teachers to teach and for students to learn the subjects in the required curriculum. The school district may provide instruction in a variety of arrangements and settings, including mixed-age programs designed to permit flexible learning arrangements for developmentally appropriate instruction for all student populations to support student attainment of course and grade level standards.

(2) The school district must offer the courses listed in this paragraph and maintain evidence that students have the opportunity to take these courses:

(A) English language arts--English I, II, III, and IV;

(B) mathematics--Algebra I, Algebra II, Geometry, Precalculus, and Mathematical Models with Applications;

(C) science--Integrated Physics and Chemistry, Biology, Chemistry, and Physics. Science courses shall include at least 40% hands-on laboratory investigations and field work using appropriate scientific inquiry;

(D) social studies--United States History Studies Since Reconstruction, World History Studies, United States Government, and World Geography Studies;

(E) economics, with emphasis on the free enterprise system and its benefits--Economics with Emphasis on the Free Enterprise System and Its Benefits;

(F) physical education--at least two courses selected from Foundations of Personal Fitness, Adventure/Outdoor Education, Aerobic Activities, or Team or Individual Sports;

(G) health education--Health 1;

(H) fine arts--courses selected from at least two of the four fine arts areas (art, music, theatre, and dance)--Art I, II, III, IV; Music I, II, III, IV; Theatre I, II, III, IV; or Dance I, II, III, IV;

(I) career and technical education--coherent sequences of courses selected from at least three of the following sixteen career clusters:

(i) Agriculture, Food, and Natural Resources;

(ii) Architecture and Construction;

(iii) Arts, Audio/Video Technology, and Communications;

(iv) Business Management and Administration;

(v) Education and Training;

(vi) Finance;

(vii) Government and Public Administration;

(viii) Health Science;

(ix) Hospitality and Tourism;

(x) Human Services;

(xi) Information Technology;

(xii) Law, Public Safety, Corrections, and Security;

(xiii) Manufacturing;

(xiv) Marketing;

(xv) Science, Technology, Engineering, and Mathematics; and

(xvi) Transportation, Distribution, and Logistics.

(J) languages other than English--Levels I, II, and III or higher of the same language;

(K) technology applications--at least four courses selected from Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications; and

(L) speech--Communication Applications.

(3) Districts may offer additional courses from the complete list of courses approved by the State Board of Education to satisfy graduation requirements as referenced in this chapter.

(4) The school district must provide each student the opportunity to participate in all courses listed in subsection (b)(2) of this section. The district must provide students the opportunity each year to select courses in which they intend to participate from a list that includes all courses required to be offered in subsection (b)(2) of this section. If the school district will not offer the required courses every year, but intends to offer particular courses only every other year, it must notify all enrolled students of that fact. The school district must teach a course in which ten or more students indicate they will participate or that is required for a student to graduate. For a course in which fewer than ten students indicate they will participate, the district must either teach the course or employ options described in Subchapter C of this chapter (relating to Other Provisions) to provide the course and must maintain evidence that it is employing those options.

(5) For students entering Grade 9 beginning with the 2007-2008 school year, districts must ensure that one or more courses offered in the required curriculum for the recommended and advanced high school programs include a research writing component.

(c) Courses in the foundation and enrichment curriculum in Grades 6-12 must be provided in a manner that allows all grade promotion and high school graduation requirements to be met in a timely manner. Nothing in this chapter shall be construed to require a district to offer a specific course in the foundation and enrichment curriculum except as required by this subsection.

(d) Notwithstanding any other graduation requirements in this chapter, a student is required to complete one credit in physical education to satisfy the graduation requirements under the recommended high school program. A student is also not required to complete one-half credit of health or one credit of technology applications to satisfy the graduation requirements under the recommended high school program. A student entering Grade 9 in the 2010-2011 school year and thereafter and who opts into the minimum high school program must complete one fine arts credit to satisfy the graduation requirements.

Comments

Source Note: The provisions of this §74.3 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective October 13, 1997, 22 TexReg 10129; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective September 1, 2001, 25 TexReg 7691; amended to be effective October 3, 2004, 29 TexReg 9185; amended to be effective January 9, 2007, 32 TexReg 80; amended to be effective December 23, 2009, 34 TexReg 9198; amended to be effective April 21, 2010, 35 TexReg 3028

§74.4: English Language Proficiency Standards

(a) Introduction.

(1) The English language proficiency standards in this section outline English language proficiency level descriptors and student expectations for English language learners (ELLs). School districts shall implement this section as an integral part of each subject in the required curriculum. The English language proficiency standards are to be published along with the Texas Essential Knowledge and Skills (TEKS) for each subject in the required curriculum.

(2) In order for ELLs to be successful, they must acquire both social and academic language proficiency in English. Social language proficiency in English consists of the English needed for daily social interactions. Academic language proficiency consists of the English needed to think critically, understand and learn new concepts, process complex academic material, and interact and communicate in English academic settings.

(3) Classroom instruction that effectively integrates second language acquisition with quality content area instruction ensures that ELLs acquire social and academic language proficiency in English, learn the knowledge and skills in the TEKS, and reach their full academic potential.

(4) Effective instruction in second language acquisition involves giving ELLs opportunities to listen, speak, read, and write at their current levels of English development while gradually increasing the linguistic complexity of the English they read and hear, and are expected to speak and write.

(5) The cross-curricular second language acquisition skills in subsection (c) of this section apply to ELLs in Kindergarten-Grade 12.

(6) The English language proficiency levels of beginning, intermediate, advanced, and advanced high are not grade-specific. ELLs may exhibit different proficiency levels within the language domains of listening, speaking, reading, and writing. The proficiency level descriptors outlined in subsection (d) of this section show the progression of second language acquisition from one proficiency level to the next and serve as a road map to help content area teachers instruct ELLs commensurate with students' linguistic needs.

(b) School district responsibilities. In fulfilling the requirements of this section, school districts shall:

(1) identify the student's English language proficiency levels in the domains of listening, speaking, reading, and writing in accordance with the proficiency level descriptors for the beginning, intermediate, advanced, and advanced high levels delineated in subsection (d) of this section;

(2) provide instruction in the knowledge and skills of the foundation and enrichment curriculum in a manner that is linguistically accommodated (communicated, sequenced, and scaffolded) commensurate with the student's levels of English language proficiency to ensure that the student learns the knowledge and skills in the required curriculum;

(3) provide content-based instruction including the cross-curricular second language acquisition essential knowledge and skills in subsection (c) of this section in a manner that is linguistically accommodated to help the student acquire English language proficiency; and

(4) provide intensive and ongoing foundational second language acquisition instruction to ELLs in Grade 3 or higher who are at the beginning or intermediate level of English language proficiency in listening, speaking, reading, and/or writing as determined by the state's English language proficiency assessment system. These ELLs require focused, targeted, and systematic second language acquisition instruction to provide them with the foundation of English language vocabulary, grammar, syntax, and English mechanics necessary to support content-based instruction and accelerated learning of English.

(c) Cross-curricular second language acquisition essential knowledge and skills.

(1) Cross-curricular second language acquisition/learning strategies. The ELL uses language learning strategies to develop an awareness of his or her own learning processes in all content areas. In order for the ELL to meet grade-level learning expectations across the foundation and enrichment curriculum, all instruction delivered in English must be linguistically accommodated (communicated, sequenced, and scaffolded) commensurate with the student's level of English language proficiency. The student is expected to:

(A) use prior knowledge and experiences to understand meanings in English;

(B) monitor oral and written language production and employ self-corrective techniques or other resources;

(C) use strategic learning techniques such as concept mapping, drawing, memorizing, comparing, contrasting, and reviewing to acquire basic and grade-level vocabulary;

(D) speak using learning strategies such as requesting assistance, employing non-verbal cues, and using synonyms and circumlocution (conveying ideas by defining or describing when exact English words are not known);

(E) internalize new basic and academic language by using and reusing it in meaningful ways in speaking and writing activities that build concept and language attainment;

(F) use accessible language and learn new and essential language in the process;

(G) demonstrate an increasing ability to distinguish between formal and informal English and an increasing knowledge of when to use each one commensurate with grade-level learning expectations; and

(H) develop and expand repertoire of learning strategies such as reasoning inductively or deductively, looking for patterns in language, and analyzing sayings and expressions commensurate with grade-level learning expectations.

(2) Cross-curricular second language acquisition/listening. The ELL listens to a variety of speakers including teachers, peers, and electronic media to gain an increasing level of comprehension of newly acquired language in all content areas. ELLs may be at the beginning, intermediate, advanced, or advanced high stage of English language acquisition in listening. In order for the ELL to meet grade-level learning expectations across the foundation and enrichment curriculum, all instruction delivered in English must be linguistically accommodated (communicated, sequenced, and scaffolded) commensurate with the student's level of English language proficiency. The student is expected to:

(A) distinguish sounds and intonation patterns of English with increasing ease;

(B) recognize elements of the English sound system in newly acquired vocabulary such as long and short vowels, silent letters, and consonant clusters;

(C) learn new language structures, expressions, and basic and academic vocabulary heard during classroom instruction and interactions;

(D) monitor understanding of spoken language during classroom instruction and interactions and seek clarification as needed;

(E) use visual, contextual, and linguistic support to enhance and confirm understanding of increasingly complex and elaborated spoken language;

(F) listen to and derive meaning from a variety of media such as audio tape, video, DVD, and CD ROM to build and reinforce concept and language attainment;

(G) understand the general meaning, main points, and important details of spoken language ranging from situations in which topics, language, and contexts are familiar to unfamiliar;

(H) understand implicit ideas and information in increasingly complex spoken language commensurate with grade-level learning expectations; and

(I) demonstrate listening comprehension of increasingly complex spoken English by following directions, retelling or summarizing spoken messages, responding to questions and requests, collaborating with peers, and taking notes commensurate with content and grade-level needs.

(3) Cross-curricular second language acquisition/speaking. The ELL speaks in a variety of modes for a variety of purposes with an awareness of different language registers (formal/informal) using vocabulary with increasing fluency and accuracy in language arts and all content areas. ELLs may be at the beginning, intermediate, advanced, or advanced high stage of English language acquisition in speaking. In order for the ELL to meet grade-level learning expectations across the foundation and enrichment curriculum, all instruction delivered in English must be linguistically accommodated (communicated, sequenced, and scaffolded) commensurate with the student's level of English language proficiency. The student is expected to:

(A) practice producing sounds of newly acquired vocabulary such as long and short vowels, silent letters, and consonant clusters to pronounce English words in a manner that is increasingly comprehensible;

(B) expand and internalize initial English vocabulary by learning and using high-frequency English words necessary for identifying and describing people, places, and objects, by retelling simple stories and basic information represented or supported by pictures, and by learning and using routine language needed for classroom communication;

(C) speak using a variety of grammatical structures, sentence lengths, sentence types, and connecting words with increasing accuracy and ease as more English is acquired;

(D) speak using grade-level content area vocabulary in context to internalize new English words and build academic language proficiency;

(E) share information in cooperative learning interactions;

(F) ask and give information ranging from using a very limited bank of high-frequency, high-need, concrete vocabulary, including key words and expressions needed for basic communication in academic and social contexts, to using abstract and content-based vocabulary during extended speaking assignments;

(G) express opinions, ideas, and feelings ranging from communicating single words and short phrases to participating in extended discussions on a variety of social and grade-appropriate academic topics;

(H) narrate, describe, and explain with increasing specificity and detail as more English is acquired;

(I) adapt spoken language appropriately for formal and informal purposes; and

(J) respond orally to information presented in a wide variety of print, electronic, audio, and visual media to build and reinforce concept and language attainment.

(4) Cross-curricular second language acquisition/reading. The ELL reads a variety of texts for a variety of purposes with an increasing level of comprehension in all content areas. ELLs may be at the beginning, intermediate, advanced, or advanced high stage of English language acquisition in reading. In order for the ELL to meet grade-level learning expectations across the foundation and enrichment curriculum, all instruction delivered in English must be linguistically accommodated (communicated, sequenced, and scaffolded) commensurate with the student's level of English language proficiency. For Kindergarten and Grade 1, certain of these student expectations apply to text read aloud for students not yet at the stage of decoding written text. The student is expected to:

(A) learn relationships between sounds and letters of the English language and decode (sound out) words using a combination of skills such as recognizing sound-letter relationships and identifying cognates, affixes, roots, and base words;

(B) recognize directionality of English reading such as left to right and top to bottom;

(C) develop basic sight vocabulary, derive meaning of environmental print, and comprehend English vocabulary and language structures used routinely in written classroom materials;

(D) use prereading supports such as graphic organizers, illustrations, and pretaught topic-related vocabulary and other prereading activities to enhance comprehension of written text;

(E) read linguistically accommodated content area material with a decreasing need for linguistic accommodations as more English is learned;

(F) use visual and contextual support and support from peers and teachers to read grade-appropriate content area text, enhance and confirm understanding, and develop vocabulary, grasp of language structures, and background knowledge needed to comprehend increasingly challenging language;

(G) demonstrate comprehension of increasingly complex English by participating in shared reading, retelling or summarizing material, responding to questions, and taking notes commensurate with content area and grade level needs;

(H) read silently with increasing ease and comprehension for longer periods;

(I) demonstrate English comprehension and expand reading skills by employing basic reading skills such as demonstrating understanding of supporting ideas and details in text and graphic sources, summarizing text, and distinguishing main ideas from details commensurate with content area needs;

(J) demonstrate English comprehension and expand reading skills by employing inferential skills such as predicting, making connections between ideas, drawing inferences and conclusions from text and graphic sources, and finding supporting text evidence commensurate with content area needs; and

(K) demonstrate English comprehension and expand reading skills by employing analytical skills such as evaluating written information and performing critical analyses commensurate with content area and grade-level needs.

(5) Cross-curricular second language acquisition/writing. The ELL writes in a variety of forms with increasing accuracy to effectively address a specific purpose and audience in all content areas. ELLs may be at the beginning, intermediate, advanced, or advanced high stage of English language acquisition in writing. In order for the ELL to meet grade-level learning expectations across foundation and enrichment curriculum, all instruction delivered in English must be linguistically accommodated (communicated, sequenced, and scaffolded) commensurate with the student's level of English language proficiency. For Kindergarten and Grade 1, certain of these student expectations do not apply until the student has reached the stage of generating original written text using a standard writing system. The student is expected to:

(A) learn relationships between sounds and letters of the English language to represent sounds when writing in English;

(B) write using newly acquired basic vocabulary and content-based grade-level vocabulary;

(C) spell familiar English words with increasing accuracy, and employ English spelling patterns and rules with increasing accuracy as more English is acquired;

(D) edit writing for standard grammar and usage, including subject-verb agreement, pronoun agreement, and appropriate verb tenses commensurate with grade-level expectations as more English is acquired;

(E) employ increasingly complex grammatical structures in content area writing commensurate with grade-level expectations, such as:

(i) using correct verbs, tenses, and pronouns/antecedents;

(ii) using possessive case (apostrophe s ) correctly; and

(iii) using negatives and contractions correctly;

(F) write using a variety of grade-appropriate sentence lengths, patterns, and connecting words to combine phrases, clauses, and sentences in increasingly accurate ways as more English is acquired; and

(G) narrate, describe, and explain with increasing specificity and detail to fulfill content area writing needs as more English is acquired.

(d) Proficiency level descriptors.

(1) Listening, Kindergarten-Grade 12. ELLs may be at the beginning, intermediate, advanced, or advanced high stage of English language acquisition in listening. The following proficiency level descriptors for listening are sufficient to describe the overall English language proficiency levels of ELLs in this language domain in order to linguistically accommodate their instruction.

(A) Beginning. Beginning ELLs have little or no ability to understand spoken English in academic and social settings. These students:

(i) struggle to understand simple conversations and simple discussions even when the topics are familiar and the speaker uses linguistic supports such as visuals, slower speech and other verbal cues, and gestures;

(ii) struggle to identify and distinguish individual words and phrases during social and instructional interactions that have not been intentionally modified for ELLs; and

(iii) may not seek clarification in English when failing to comprehend the English they hear; frequently remain silent, watching others for cues.

(B) Intermediate. Intermediate ELLs have the ability to understand simple, high-frequency spoken English used in routine academic and social settings. These students:

(i) usually understand simple or routine directions, as well as short, simple conversations and short, simple discussions on familiar topics; when topics are unfamiliar, require extensive linguistic supports and adaptations such as visuals, slower speech and other verbal cues, simplified language, gestures, and preteaching to preview or build topic-related vocabulary;

(ii) often identify and distinguish key words and phrases necessary to understand the general meaning during social and basic instructional interactions that have not been intentionally modified for ELLs; and

(iii) have the ability to seek clarification in English when failing to comprehend the English they hear by requiring/requesting the speaker to repeat, slow down, or rephrase speech.

(C) Advanced. Advanced ELLs have the ability to understand, with second language acquisition support, grade-appropriate spoken English used in academic and social settings. These students:

(i) usually understand longer, more elaborated directions, conversations, and discussions on familiar and some unfamiliar topics, but sometimes need processing time and sometimes depend on visuals, verbal cues, and gestures to support understanding;

(ii) understand most main points, most important details, and some implicit information during social and basic instructional interactions that have not been intentionally modified for ELLs; and

(iii) occasionally require/request the speaker to repeat, slow down, or rephrase to clarify the meaning of the English they hear.

(D) Advanced high. Advanced high ELLs have the ability to understand, with minimal second language acquisition support, grade-appropriate spoken English used in academic and social settings. These students:

(i) understand longer, elaborated directions, conversations, and discussions on familiar and unfamiliar topics with occasional need for processing time and with little dependence on visuals, verbal cues, and gestures; some exceptions when complex academic or highly specialized language is used;

(ii) understand main points, important details, and implicit information at a level nearly comparable to native English-speaking peers during social and instructional interactions; and

(iii) rarely require/request the speaker to repeat, slow down, or rephrase to clarify the meaning of the English they hear.

(2) Speaking, Kindergarten-Grade 12. ELLs may be at the beginning, intermediate, advanced, or advanced high stage of English language acquisition in speaking. The following proficiency level descriptors for speaking are sufficient to describe the overall English language proficiency levels of ELLs in this language domain in order to linguistically accommodate their instruction.

(A) Beginning. Beginning ELLs have little or no ability to speak English in academic and social settings. These students:

(i) mainly speak using single words and short phrases consisting of recently practiced, memorized, or highly familiar material to get immediate needs met; may be hesitant to speak and often give up in their attempts to communicate;

(ii) speak using a very limited bank of high-frequency, high-need, concrete vocabulary, including key words and expressions needed for basic communication in academic and social contexts;

(iii) lack the knowledge of English grammar necessary to connect ideas and speak in sentences; can sometimes produce sentences using recently practiced, memorized, or highly familiar material;

(iv) exhibit second language acquisition errors that may hinder overall communication, particularly when trying to convey information beyond memorized, practiced, or highly familiar material; and

(v) typically use pronunciation that significantly inhibits communication.

(B) Intermediate. Intermediate ELLs have the ability to speak in a simple manner using English commonly heard in routine academic and social settings. These students:

(i) are able to express simple, original messages, speak using sentences, and participate in short conversations and classroom interactions; may hesitate frequently and for long periods to think about how to communicate desired meaning;

(ii) speak simply using basic vocabulary needed in everyday social interactions and routine academic contexts; rarely have vocabulary to speak in detail;

(iii) exhibit an emerging awareness of English grammar and speak using mostly simple sentence structures and simple tenses; are most comfortable speaking in present tense;

(iv) exhibit second language acquisition errors that may hinder overall communication when trying to use complex or less familiar English; and

(v) use pronunciation that can usually be understood by people accustomed to interacting with ELLs.

(C) Advanced. Advanced ELLs have the ability to speak using grade-appropriate English, with second language acquisition support, in academic and social settings. These students:

(i) are able to participate comfortably in most conversations and academic discussions on familiar topics, with some pauses to restate, repeat, or search for words and phrases to clarify meaning;

(ii) discuss familiar academic topics using content-based terms and common abstract vocabulary; can usually speak in some detail on familiar topics;

(iii) have a grasp of basic grammar features, including a basic ability to narrate and describe in present, past, and future tenses; have an emerging ability to use complex sentences and complex grammar features;

(iv) make errors that interfere somewhat with communication when using complex grammar structures, long sentences, and less familiar words and expressions; and

(v) may mispronounce words, but use pronunciation that can usually be understood by people not accustomed to interacting with ELLs.

(D) Advanced high. Advanced high ELLs have the ability to speak using grade-appropriate English, with minimal second language acquisition support, in academic and social settings. These students:

(i) are able to participate in extended discussions on a variety of social and grade-appropriate academic topics with only occasional disruptions, hesitations, or pauses;

(ii) communicate effectively using abstract and content-based vocabulary during classroom instructional tasks, with some exceptions when low-frequency or academically demanding vocabulary is needed; use many of the same idioms and colloquialisms as their native English-speaking peers;

(iii) can use English grammar structures and complex sentences to narrate and describe at a level nearly comparable to native English-speaking peers;

(iv) make few second language acquisition errors that interfere with overall communication; and

(v) may mispronounce words, but rarely use pronunciation that interferes with overall communication.

(3) Reading, Kindergarten-Grade 1. ELLs in Kindergarten and Grade 1 may be at the beginning, intermediate, advanced, or advanced high stage of English language acquisition in reading. The following proficiency level descriptors for reading are sufficient to describe the overall English language proficiency levels of ELLs in this language domain in order to linguistically accommodate their instruction and should take into account developmental stages of emergent readers.

(A) Beginning. Beginning ELLs have little or no ability to use the English language to build foundational reading skills. These students:

(i) derive little or no meaning from grade-appropriate stories read aloud in English, unless the stories are:

(I) read in short "chunks;"

(II) controlled to include the little English they know such as language that is high frequency, concrete, and recently practiced; and

(III) accompanied by ample visual supports such as illustrations, gestures, pantomime, and objects and by linguistic supports such as careful enunciation and slower speech;

(ii) begin to recognize and understand environmental print in English such as signs, labeled items, names of peers, and logos; and

(iii) have difficulty decoding most grade-appropriate English text because they:

(I) understand the meaning of very few words in English; and

(II) struggle significantly with sounds in spoken English words and with sound-symbol relationships due to differences between their primary language and English.

(B) Intermediate. Intermediate ELLs have a limited ability to use the English language to build foundational reading skills. These students:

(i) demonstrate limited comprehension (key words and general meaning) of grade-appropriate stories read aloud in English, unless the stories include:

(I) predictable story lines;

(II) highly familiar topics;

(III) primarily high-frequency, concrete vocabulary;

(IV) short, simple sentences; and

(V) visual and linguistic supports;

(ii) regularly recognize and understand common environmental print in English such as signs, labeled items, names of peers, logos; and

(iii) have difficulty decoding grade-appropriate English text because they:

(I) understand the meaning of only those English words they hear frequently; and

(II) struggle with some sounds in English words and some sound-symbol relationships due to differences between their primary language and English.

(C) Advanced. Advanced ELLs have the ability to use the English language, with second language acquisition support, to build foundational reading skills. These students:

(i) demonstrate comprehension of most main points and most supporting ideas in grade-appropriate stories read aloud in English, although they may still depend on visual and linguistic supports to gain or confirm meaning;

(ii) recognize some basic English vocabulary and high-frequency words in isolated print; and

(iii) with second language acquisition support, are able to decode most grade-appropriate English text because they:

(I) understand the meaning of most grade-appropriate English words; and

(II) have little difficulty with English sounds and sound-symbol relationships that result from differences between their primary language and English.

(D) Advanced high. Advanced high ELLs have the ability to use the English language, with minimal second language acquisition support, to build foundational reading skills. These students:

(i) demonstrate, with minimal second language acquisition support and at a level nearly comparable to native English-speaking peers, comprehension of main points and supporting ideas (explicit and implicit) in grade-appropriate stories read aloud in English;

(ii) with some exceptions, recognize sight vocabulary and high-frequency words to a degree nearly comparable to that of native English-speaking peers; and

(iii) with minimal second language acquisition support, have an ability to decode and understand grade-appropriate English text at a level nearly comparable to native English-speaking peers.

(4) Reading, Grades 2-12. ELLs in Grades 2-12 may be at the beginning, intermediate, advanced, or advanced high stage of English language acquisition in reading. The following proficiency level descriptors for reading are sufficient to describe the overall English language proficiency levels of ELLs in this language domain in order to linguistically accommodate their instruction.

(A) Beginning. Beginning ELLs have little or no ability to read and understand English used in academic and social contexts. These students:

(i) read and understand the very limited recently practiced, memorized, or highly familiar English they have learned; vocabulary predominantly includes:

(I) environmental print;

(II) some very high-frequency words; and

(III) concrete words that can be represented by pictures;

(ii) read slowly, word by word;

(iii) have a very limited sense of English language structures;

(iv) comprehend predominantly isolated familiar words and phrases; comprehend some sentences in highly routine contexts or recently practiced, highly familiar text;

(v) are highly dependent on visuals and prior knowledge to derive meaning from text in English; and

(vi) are able to apply reading comprehension skills in English only when reading texts written for this level.

(B) Intermediate. Intermediate ELLs have the ability to read and understand simple, high-frequency English used in routine academic and social contexts. These students:

(i) read and understand English vocabulary on a somewhat wider range of topics and with increased depth; vocabulary predominantly includes:

(I) everyday oral language;

(II) literal meanings of common words;

(III) routine academic language and terms; and

(IV) commonly used abstract language such as terms used to describe basic feelings;

(ii) often read slowly and in short phrases; may re-read to clarify meaning;

(iii) have a growing understanding of basic, routinely used English language structures;

(iv) understand simple sentences in short, connected texts, but are dependent on visual cues, topic familiarity, prior knowledge, pretaught topic-related vocabulary, story predictability, and teacher/peer assistance to sustain comprehension;

(v) struggle to independently read and understand grade-level texts; and

(vi) are able to apply basic and some higher-order comprehension skills when reading texts that are linguistically accommodated and/or simplified for this level.

(C) Advanced. Advanced ELLs have the ability to read and understand, with second language acquisition support, grade-appropriate English used in academic and social contexts. These students:

(i) read and understand, with second language acquisition support, a variety of grade-appropriate English vocabulary used in social and academic contexts:

(I) with second language acquisition support, read and understand grade-appropriate concrete and abstract vocabulary, but have difficulty with less commonly encountered words;

(II) demonstrate an emerging ability to understand words and phrases beyond their literal meaning; and

(III) understand multiple meanings of commonly used words;

(ii) read longer phrases and simple sentences from familiar text with appropriate rate and speed;

(iii) are developing skill in using their growing familiarity with English language structures to construct meaning of grade-appropriate text; and

(iv) are able to apply basic and higher-order comprehension skills when reading grade-appropriate text, but are still occasionally dependent on visuals, teacher/peer assistance, and other linguistically accommodated text features to determine or clarify meaning, particularly with unfamiliar topics.

(D) Advanced high. Advanced high ELLs have the ability to read and understand, with minimal second language acquisition support, grade-appropriate English used in academic and social contexts. These students:

(i) read and understand vocabulary at a level nearly comparable to that of their native English-speaking peers, with some exceptions when low-frequency or specialized vocabulary is used;

(ii) generally read grade-appropriate, familiar text with appropriate rate, speed, intonation, and expression;

(iii) are able to, at a level nearly comparable to native English-speaking peers, use their familiarity with English language structures to construct meaning of grade-appropriate text; and

(iv) are able to apply, with minimal second language acquisition support and at a level nearly comparable to native English-speaking peers, basic and higher-order comprehension skills when reading grade-appropriate text.

(5) Writing, Kindergarten-Grade 1. ELLs in Kindergarten and Grade 1 may be at the beginning, intermediate, advanced, or advanced high stage of English language acquisition in writing. The following proficiency level descriptors for writing are sufficient to describe the overall English language proficiency levels of ELLs in this language domain in order to linguistically accommodate their instruction and should take into account developmental stages of emergent writers.

(A) Beginning. Beginning ELLs have little or no ability to use the English language to build foundational writing skills. These students:

(i) are unable to use English to explain self-generated writing such as stories they have created or other personal expressions, including emergent forms of writing (pictures, letter-like forms, mock words, scribbling, etc.);

(ii) know too little English to participate meaningfully in grade-appropriate shared writing activities using the English language;

(iii) cannot express themselves meaningfully in self-generated, connected written text in English beyond the level of high-frequency, concrete words, phrases, or short sentences that have been recently practiced and/or memorized; and

(iv) may demonstrate little or no awareness of English print conventions.

(B) Intermediate. Intermediate ELLs have a limited ability to use the English language to build foundational writing skills. These students:

(i) know enough English to explain briefly and simply self-generated writing, including emergent forms of writing, as long as the topic is highly familiar and concrete and requires very high-frequency English;

(ii) can participate meaningfully in grade-appropriate shared writing activities using the English language only when the writing topic is highly familiar and concrete and requires very high-frequency English;

(iii) express themselves meaningfully in self-generated, connected written text in English when their writing is limited to short sentences featuring simple, concrete English used frequently in class; and

(iv) frequently exhibit features of their primary language when writing in English such as primary language words, spelling patterns, word order, and literal translating.

(C) Advanced. Advanced ELLs have the ability to use the English language to build, with second language acquisition support, foundational writing skills. These students:

(i) use predominantly grade-appropriate English to explain, in some detail, most self-generated writing, including emergent forms of writing;

(ii) can participate meaningfully, with second language acquisition support, in most grade-appropriate shared writing activities using the English language;

(iii) although second language acquisition support is needed, have an emerging ability to express themselves in self-generated, connected written text in English in a grade-appropriate manner; and

(iv) occasionally exhibit second language acquisition errors when writing in English.

(D) Advanced high. Advanced high ELLs have the ability to use the English language to build, with minimal second language acquisition support, foundational writing skills. These students:

(i) use English at a level of complexity and detail nearly comparable to that of native English-speaking peers when explaining self-generated writing, including emergent forms of writing;

(ii) can participate meaningfully in most grade-appropriate shared writing activities using the English language; and

(iii) although minimal second language acquisition support may be needed, express themselves in self-generated, connected written text in English in a manner nearly comparable to their native English-speaking peers.

(6) Writing, Grades 2-12. ELLs in Grades 2-12 may be at the beginning, intermediate, advanced, or advanced high stage of English language acquisition in writing. The following proficiency level descriptors for writing are sufficient to describe the overall English language proficiency levels of ELLs in this language domain in order to linguistically accommodate their instruction.

(A) Beginning. Beginning ELLs lack the English vocabulary and grasp of English language structures necessary to address grade-appropriate writing tasks meaningfully. These students:

(i) have little or no ability to use the English language to express ideas in writing and engage meaningfully in grade-appropriate writing assignments in content area instruction;

(ii) lack the English necessary to develop or demonstrate elements of grade-appropriate writing such as focus and coherence, conventions, organization, voice, and development of ideas in English; and

(iii) exhibit writing features typical at this level, including:

(I) ability to label, list, and copy;

(II) high-frequency words/phrases and short, simple sentences (or even short paragraphs) based primarily on recently practiced, memorized, or highly familiar material; this type of writing may be quite accurate;

(III) present tense used primarily; and

(IV) frequent primary language features (spelling patterns, word order, literal translations, and words from the student's primary language) and other errors associated with second language acquisition may significantly hinder or prevent understanding, even for individuals accustomed to the writing of ELLs.

(B) Intermediate. Intermediate ELLs have enough English vocabulary and enough grasp of English language structures to address grade-appropriate writing tasks in a limited way. These students:

(i) have a limited ability to use the English language to express ideas in writing and engage meaningfully in grade-appropriate writing assignments in content area instruction;

(ii) are limited in their ability to develop or demonstrate elements of grade-appropriate writing in English; communicate best when topics are highly familiar and concrete, and require simple, high-frequency English; and

(iii) exhibit writing features typical at this level, including:

(I) simple, original messages consisting of short, simple sentences; frequent inaccuracies occur when creating or taking risks beyond familiar English;

(II) high-frequency vocabulary; academic writing often has an oral tone;

(III) loosely connected text with limited use of cohesive devices or repetitive use, which may cause gaps in meaning;

(IV) repetition of ideas due to lack of vocabulary and language structures;

(V) present tense used most accurately; simple future and past tenses, if attempted, are used inconsistently or with frequent inaccuracies;

(VI) undetailed descriptions, explanations, and narrations; difficulty expressing abstract ideas;

(VII) primary language features and errors associated with second language acquisition may be frequent; and

(VIII) some writing may be understood only by individuals accustomed to the writing of ELLs; parts of the writing may be hard to understand even for individuals accustomed to ELL writing.

(C) Advanced. Advanced ELLs have enough English vocabulary and command of English language structures to address grade-appropriate writing tasks, although second language acquisition support is needed. These students:

(i) are able to use the English language, with second language acquisition support, to express ideas in writing and engage meaningfully in grade-appropriate writing assignments in content area instruction;

(ii) know enough English to be able to develop or demonstrate elements of grade-appropriate writing in English, although second language acquisition support is particularly needed when topics are abstract, academically challenging, or unfamiliar; and

(iii) exhibit writing features typical at this level, including:

(I) grasp of basic verbs, tenses, grammar features, and sentence patterns; partial grasp of more complex verbs, tenses, grammar features, and sentence patterns;

(II) emerging grade-appropriate vocabulary; academic writing has a more academic tone;

(III) use of a variety of common cohesive devices, although some redundancy may occur;

(IV) narrations, explanations, and descriptions developed in some detail with emerging clarity; quality or quantity declines when abstract ideas are expressed, academic demands are high, or low-frequency vocabulary is required;

(V) occasional second language acquisition errors; and

(VI) communications are usually understood by individuals not accustomed to the writing of ELLs.

(D) Advanced high. Advanced high ELLs have acquired the English vocabulary and command of English language structures necessary to address grade-appropriate writing tasks with minimal second language acquisition support. These students:

(i) are able to use the English language, with minimal second language acquisition support, to express ideas in writing and engage meaningfully in grade-appropriate writing assignments in content area instruction;

(ii) know enough English to be able to develop or demonstrate, with minimal second language acquisition support, elements of grade-appropriate writing in English; and

(iii) exhibit writing features typical at this level, including:

(I) nearly comparable to writing of native English-speaking peers in clarity and precision with regard to English vocabulary and language structures, with occasional exceptions when writing about academically complex ideas, abstract ideas, or topics requiring low-frequency vocabulary;

(II) occasional difficulty with naturalness of phrasing and expression; and

(III) errors associated with second language acquisition are minor and usually limited to low-frequency words and structures; errors rarely interfere with communication.

(e) Effective date. The provisions of this section supersede the ESL standards specified in Chapter 128 of this title (relating to Texas Essential Knowledge and Skills for Spanish Language Arts and English as a Second Language) upon the effective date of this section.

Subchapter B

§74.11: High School Graduation Requirements

(a) Graduates of each high school are awarded the same type of diploma. The academic achievement record (transcript), rather than the diploma, records individual accomplishments, achievements, and courses completed and displays appropriate graduation seals.

(b) All credit for graduation must be earned no later than Grade 12.

(c) To receive a high school diploma, a student entering Grade 9 in the 1998-1999, 1999-2000, or 2000-2001 school years must complete the requirements of the minimum high school program, as specified in subsection (d) of this section; the recommended high school program, as specified in §74.12 of this title (relating to Recommended High School Program); or the distinguished achievement program, as specified in §74.13 of this title (relating to Distinguished Achievement Program--Advanced High School Program); as well as the testing requirements for graduation, as specified in Chapter 101 of this title (relating to Assessment).

(d) A student must earn at least 22 credits to complete a minimum high school program. Credit may be awarded without prior instruction under Texas Education Code, §28.023 (Credit by Examination). College Board advanced placement and International Baccalaureate courses may be substituted for requirements in appropriate areas. A student must demonstrate proficiency in the following.

(1) English language arts--four credits. The credits must consist of:

(A) English I, II, and III (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II only for immigrant students with limited English proficiency); and

(B) a fourth credit of English, which may be satisfied by English IV, Research/Technical Writing, Creative/Imaginative Writing, Practical Writing Skills, Literary Genres, Business Communication, Journalism, or concurrent enrollment in a college English course.

(2) Mathematics--three credits to include Algebra I.

(3) Science--two credits to include at least one credit from Biology, Chemistry, or Physics. The second credit may be selected from any science course approved by the State Board of Education (SBOE).

(4) Social studies--two and one-half credits. The credits must consist of World History Studies (one credit) or World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit).

(5) Academic elective--one credit. The credit must be selected from World History Studies, World Geography Studies, or any course approved by the SBOE for science credit as found in Chapter 112 of this title (relating to Texas Essential Knowledge and Skills for Science).

(6) Economics, with emphasis on the free enterprise system and its benefits--one-half credit. The credit must consist of Economics with Emphasis on the Free Enterprise System and Its Benefits.

(7) Physical education--one and one-half credits to include one-half credit in Foundations of Personal Fitness.

(A) The school district board of trustees may allow a student to substitute certain physical activities for the one and one-half required credits of physical education, including the one-half credit of Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Junior Reserve Officer Training Corps (JROTC); athletics; Dance I-IV; and two- or three-credit career and technology work-based training courses.

(B) A student may not earn more than two credits in physical education toward state graduation requirements.

(C) In accordance with local district policy, a school district may award up to two credits for physical education for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. The district must apply to the commissioner of education for approval of such programs, which may be substituted for state graduation credit in physical education. Such approval may be granted under the following conditions.

(i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intensive, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education.

(ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day.

(8) Health education--one-half credit of Health 1 or Advanced Health, or Health Science Technology--one credit.

(9) Speech--one-half credit, which may be satisfied by Communication Applications, Speech Communication, Public Speaking, Debate, or Oral Interpretation.

(10) Technology applications--one credit, which may be satisfied by:

(A) the following courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications): Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications;

(B) the following courses in Chapter 120 of this title (relating to Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; or

(C) the following courses in Chapter 123 of this title (relating to Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communication Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology.

(11) Electives--five and one-half credits. The credits must be selected from:

(A) the list of courses approved by the SBOE for Grades 9-12 as specified in §74.1 of this title (relating to Essential Knowledge and Skills);

(B) Junior Reserve Officer Training Corps (JROTC) (one to four credits); or

(C) Driver Education (one-half credit).

(e) A maximum of three credits of reading may be offered by districts for state graduation elective credit for identified students under the following conditions. The school district board of trustees shall adopt policies to identify students in need of additional reading instruction, and district procedures shall include assessment of individual student needs, ongoing evaluation of each student's progress, and monitoring of instructional activities to ensure that student needs are addressed. Reading credits may be selected from Reading I, II, or III.

(f) An out-of-state or out-of-country transfer student (including foreign exchange students) or a transfer student from a Texas nonpublic school is eligible to receive a Texas diploma but must complete all requirements of this section to satisfy state graduation requirements. Any course credit required in this section that is not completed by the student before he or she enrolls in a Texas school district may be satisfied through the provisions of §74.23 of this title (relating to Correspondence Courses) and §74.24 of this title (relating to Credit by Examination) or by completing the course or courses according to the provisions of §74.26 of this title (relating to the Award of Credit).

(g) The requirements for high school graduation for students who enrolled in a high school program during or before the 1997-1998 school year shall remain in effect as adopted by the State Board of Education.

(h) Students entering Grade 9 in the 2001-2002 school year and thereafter must complete requirements in Chapter 74, Subchapter D, of this title (relating to Curriculum Requirements).

Comments

Source Note: The provisions of this §74.11 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective October 13, 1997, 22 TexReg 10129; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective September 1, 2001, 25 TexReg 7691

§74.12: Recommended High School Program

(a) General requirements. A student entering Grade 9 in the 1998-1999, 1999-2000, or 2000-2001 school years who wishes to complete the recommended high school program and have the accomplishment recognized on the academic achievement record must complete the following requirements.

(b) Academic core components. College Board advanced placement and International Baccalaureate courses may be substituted for requirements in appropriate areas. Credit may be awarded without prior instruction under Texas Education Code, §28.023 (Credit by Examination). The student must demonstrate proficiency in the following.

(1) English--four credits. The credits must consist of English I, English II, English III, and English IV (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II only for immigrant students with limited English proficiency).

(2) Mathematics--three credits. The credits must consist of Algebra I, Algebra II, and Geometry.

(3) Science--three credits. Students may choose three credits from the following four areas. Not more than one credit may be chosen from each of the four areas. All students who wish to complete the recommended high school program are encouraged to take Biology, Chemistry, and Physics to fulfill the requirements of this section.

(A) Integrated Physics and Chemistry;

(B) Biology, AP Biology, or IB Biology;

(C) Chemistry, AP Chemistry, or IB Chemistry; and

(D) Physics, Principles of Technology I, AP Physics, or IB Physics.

(4) Social studies--three and one-half credits. The credits must consist of World History Studies (one credit), World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit).

(5) Economics, with emphasis on the free enterprise system and its benefits--one-half credit. The credit must consist of Economics with Emphasis on the Free Enterprise System and Its Benefits.

(6) Languages other than English--two credits. The credits must consist of Level I and Level II in the same language.

(7) Health education--one-half credit of Health 1 or Advanced Health, or Health Science Technology--one credit.

(8) Fine arts--one credit, which may be satisfied by any course in Chapter 117, Subchapter C, of this title (relating to Texas Essential Knowledge and Skills for Fine Arts).

(9) Physical education--one and one-half credits to include one-half credit in Foundations of Personal Fitness.

(A) A school district board of trustees may allow a student to substitute certain physical activities for the one and one-half required credits of physical education, including the one-half credit of Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Junior Reserve Officer Training Corps (JROTC); athletics; Dance I-IV; and two- or three-credit career and technology work-based training courses.

(B) In accordance with local district policy, a school district may also apply to the commissioner of education for a waiver to allow credit for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. Such approval may be granted under the following conditions.

(i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intensive, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education.

(ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day.

(10) Technology applications--one credit, which may be satisfied by:

(A) the following courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications): Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications;

(B) the following courses in Chapter 120 of this title (relating to Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; or

(C) the following courses in Chapter 123 of this title (relating to Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communication Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology.

(11) Speech--one-half credit, which may be satisfied by Communication Applications, Speech Communication, Public Speaking, Debate, or Oral Interpretation.

(c) Additional components. All students who wish to complete the recommended high school program are encouraged to study each of the foundation curriculum areas (English language arts, mathematics, science and social studies) every year in high school as provided in Option I. Options II and III are provided for students who want to focus on a particular career exploration or the development of an academic interest or artistic talent. College Board advanced placement and International Baccalaureate courses may be substituted for requirements in appropriate areas. The student must choose one of the following options for additional components. Credit may be awarded without prior instruction under Texas Education Code, §28.023 (Credit by Examination), or §39.023(i) (end-of-course tests).

(1) Option I: mathematics, science, elective. The student must demonstrate proficiency in the following.

(A) Mathematics--one credit. The credit must consist of Precalculus.

(B) Science--one credit. Students may select any Science course including Integrated Physics and Chemistry; Biology; Environmental Systems; Chemistry; Aquatic Science; Physics; Astronomy; Geology, Meteorology, and Oceanography; AP Biology; AP Chemistry; AP Physics; AP Environmental Science; IB Biology; IB Chemistry; IB Physics; IB Environmental Systems; Scientific Research and Design; Anatomy and Physiology of Human Systems; Medical Microbiology; Pathophysiology; Principles of Technology I; and Principles of Technology II.

(C) Elective--one and one-half credits.

(2) Option II: career and technology. The student must demonstrate proficiency equivalent to three and one-half credits in a coherent sequence of courses for career and technology preparation, as defined by the local school district. To be included in the recommended high school program, a technology preparation program approved by the Texas Education Agency must meet recommended high school program criteria in English language arts, mathematics, science, social studies, languages other than English, health, fine arts, and technology applications.

(3) Option III: academic. The student must demonstrate proficiency equivalent to three and one-half credits consisting of state-approved courses from language arts, science, social studies, mathematics, languages other than English, fine arts, or technology applications. Students may choose all three and one-half credits from one of the disciplines, or they may select courses among the listed disciplines.

(d) Substitutions. No substitutions are allowed in the Recommended High School Program.

(e) Students entering Grade 9 in the 2001-2002 school year and thereafter must complete requirements in Chapter 74, Subchapter D, of this title (relating to Curriculum Requirements).

Comments

Source Note: The provisions of this §74.12 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective October 13, 1997, 22 TexReg 10129; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective September 1, 2001, 25 TexReg 7691

§74.13: Distinguished Achievement Program--Advanced High School Program

(a) General requirements. A student entering Grade 9 in the 1998-1999, 1999-2000, or 2000-2001 school years who wishes to complete an advanced high school program (called the distinguished achievement program) and have the accomplishment recognized and distinguished on the academic achievement record (transcript) must complete the following requirements.

(1) Academic core components. College Board advanced placement and International Baccalaureate courses may be substituted for requirements in appropriate areas. The student must demonstrate proficiency in the following.

(A) English--four credits. The credits must consist of English I, English II, English III, and English IV (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II only for immigrant students with limited English proficiency);

(B) Mathematics--three credits. The credits must consist of Algebra I, Algebra II, and Geometry.

(C) Science--three credits. Students may choose three credits from the following four areas. Not more than one credit may be chosen from each of the four areas. All students who wish to complete the distinguished achievement program are encouraged to take Biology, Chemistry, and Physics to fulfill the requirements of this section.

(i) Integrated Physics and Chemistry;

(ii) Biology, AP Biology, or IB Biology;

(iii) Chemistry, AP Chemistry, or IB Chemistry; and

(iv) Physics, Principles of Technology I, AP Physics, or IB Physics.

(D) Social studies--three and one-half credits. The credits must consist of World History Studies (one credit), World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit).

(E) Economics, with emphasis on the free enterprise system and its benefits--one-half credit. The credit must consist of Economics with Emphasis on the Free Enterprise System and Its Benefits.

(F) Languages other than English--three credits. The credits must consist of Level I, Level II, and Level III in the same language.

(G) Health education--one-half credit of Health 1 or Advanced Health, or Health Science Technology--one credit.

(H) Fine arts--one credit, which may be satisfied by any course in Chapter 117, Subchapter C, of this title (relating to Texas Essential Knowledge and Skills for Fine Arts).

(I) Physical education--one and one-half credits to include one-half credit in Foundations of Personal Fitness.

(i) A school district board of trustees may allow a student to substitute certain physical activities for the one and one-half required credits of physical education, including the one-half credit of Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Junior Reserve Officer Training Corps (JROTC); athletics; Dance I-IV; and two- or three-credit career and technology work-based training courses.

(ii) In accordance with local district policy, a school district may also apply to the commissioner of education for a waiver to allow credit for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. Such approval may be granted under the following conditions.

(I) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intensive, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education.

(II) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day.

(J) Technology applications--one credit, which may be satisfied by:

(i) the following courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications): Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications;

(ii) the following courses in Chapter 120 of this title (relating to Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; or

(iii) the following courses in Chapter 123 of this title (relating to Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communication Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology.

(K) Speech--one-half credit, which may be satisfied by Communication Applications, Speech Communication, Public Speaking, Debate, or Oral Interpretation.

(2) Additional components. All students who wish to complete the distinguished achievement program are encouraged to study each of the foundation curriculum areas (English language arts, mathematics, science and social studies) every year in high school as provided in Option I. Options II and III are provided for students who want to focus on a particular career exploration or the development of an academic interest or artistic talent. College Board advanced placement and International Baccalaureate courses may be substituted for requirements in appropriate academic areas. The student must choose one of the following options for additional components. Credit may be awarded without prior instruction under Texas Education Code, §28.023, (Credit by Examination).

(A) Option I: mathematics, science, elective. The student must demonstrate proficiency in the following.

(i) Mathematics--one credit. The credit must consist of Precalculus.

(ii) Science--one credit. Students may select any Science course including Integrated Physics and Chemistry; Biology; Environmental Systems; Chemistry; Aquatic Science; Physics; Astronomy; Geology, Meteorology, and Oceanography; AP Biology; AP Chemistry; AP Physics; AP Environmental Science; IB Biology; IB Chemistry; IB Physics; IB Environmental Systems; Scientific Research and Design; Anatomy and Physiology of Human Systems; Medical Microbiology; Pathophysiology; Principles of Technology I; and Principles of Technology II.

(iii) Elective--one-half credit.

(B) Option II: career and technology. The student must demonstrate proficiency equivalent to two and one-half credits in a coherent sequence of courses for career and technology preparation, as defined by the local school district. To be included in the distinguished achievement program, a technology preparation program approved by the Texas Education Agency (TEA) must meet distinguished achievement program criteria in English language arts, mathematics, science, social studies, languages other than English, health, fine arts, and technology applications.

(C) Option III: academic. The student must demonstrate proficiency equivalent to two and one-half credits consisting of state-approved courses from language arts, science, social studies, mathematics, languages other than English, fine arts, or technology applications. Students may choose all two and one-half credits from one of the disciplines, or they may select courses among the listed disciplines.

(3) Advanced measures. A student also must achieve any combination of four of the following advanced measures. Original research/projects may not be used for more than two of the four advanced measures. The measures must focus on demonstrated student performance at the college or professional level. Student performance on advanced measures must be assessed through an external review process.

(A) original research/project that is:

(i) judged by a panel of professionals in the field that is the focus of the project; or

(ii) conducted under the direction of mentor(s) and reported to an appropriate audience; and

(iii) related to the required curriculum set forth in §74.1 of this title (relating to Essential Knowledge and Skills);

(B) test data where a student receives:

(i) a score of three or above on The College Board advanced placement examination;

(ii) a score of four or above on an International Baccalaureate examination; or

(iii) a score on the Preliminary Scholastic Assessment Test (PSAT) that qualifies a student for recognition as a Commended Scholar or higher by the National Merit Scholarship Corporation; as part of the National Hispanic Scholar Program of the College Board; or as part of the National Achievement Scholarship Program for Outstanding Negro Students of the National Merit Scholarship Corporation. The PSAT score may count as only one advanced measure regardless of the number of honors received by the student; or

(C) college academic courses and tech-prep articulated college courses with a grade of 3.0 or higher.

(4) Substitutions. No substitutions are allowed in the Distinguished Achievement Program.

(b) Students entering Grade 9 in the 2001-2002 school year and thereafter must complete requirements in Chapter 74, Subchapter D, of this title (relating to Curriculum Requirements).

Comments

Source Note: The provisions of this §74.13 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective October 13, 1997, 22 TexReg 10129; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective September 1, 2001, 25 TexReg 7691

§74.14: Academic Achievement Record (Transcript)

(a) The commissioner of education shall develop and distribute to each school district and institution of higher education in the state a common academic achievement record and coding system for courses and instructions for recording information on the academic achievement record. Each school district must use the coding system provided by the commissioner.

(b) Each school district must use an academic achievement record (transcript) form designated by the State Board of Education (SBOE). Each district must reproduce the form in sufficient quantities. The form shall serve as the academic record for each student and must be maintained permanently by the district. Each district must ensure that copies of the record are made available for a student transferring from one district to another. The information may be provided to the student or to the district to which the student is transferring or both. To ensure appropriate placement of a transfer student, a district must respond promptly to each request for student records from a receiving school district.

(c) Any credit earned by a student must be recorded on the academic achievement record, regardless of when the credit was earned.

(d) A student who completes high school graduation requirements shall have attached to the academic achievement record a seal approved by the SBOE.

(e) A student who completes all graduation requirements except for required exit-level assessment instruments may be issued a certificate of coursework completion. The academic achievement record will include a notation of the date such a certificate was issued to the student.

Comments

Source Note: The provisions of this §74.14 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective September 1, 2001, 25 TexReg 7691

Subchapter C

§74.21: Schedule for Implementation

The requirements in this chapter shall be implemented according to the following schedule.

(1) Elementary, kindergarten through Grade 5. All provisions of §74.2 of this title (relating to Description of a Required Elementary Curriculum) shall be implemented fully beginning with the 1996-1997 school year.

(2) Secondary, Grades 6-12. All provisions of §74.3(b) of this title (relating to Description of a Required Secondary Curriculum) and Subchapter B of this chapter (relating to Graduation Requirements) shall be implemented fully beginning with the 1997-1998 school year. A student entering Grade 9 in the 1997-1998 school year or thereafter must meet the provisions of Subchapter B of this chapter (relating to Graduation Requirements).

(3) Other sections. Provisions of other sections of this chapter shall be implemented during the 1996-1997 school year unless otherwise specified.

Comments

Source Note: The provisions of this §74.21 adopted to be effective September 1, 1996, 21 TexReg 4311.

§74.22: Options for Offering Courses

(a) A school district may use alternative procedures for delivering instruction to ensure that essential knowledge and skills are taught. The district shall pay any fees or other costs for students to participate in alternative delivery procedures.

(b) A school district may operate a magnet program, academy, or other innovative program to serve student populations with specialized interests and aptitudes.

Comments

Source Note: The provisions of this §74.22 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective December 25, 2007, 32 TexReg 9623

§74.23: Correspondence Courses and Distance Learning

Credit toward state graduation requirements may be granted under this section only under the following conditions.

(1) The institution offering correspondence courses must be The University of Texas at Austin, Texas Tech University, or another public institution of higher education approved by the commissioner of education.

(2) Students may earn course credit through distance learning technologies, such as, but not limited to, satellite, Internet, two-way video-conferencing, and instructional television.

(3) The correspondence and distance learning courses must include the essential knowledge and skills as specified in §74.1 of this title (relating to Essential Knowledge and Skills) for such a course.

Comments

Source Note: The provisions of this §74.23 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective September 1, 2001, 25 TexReg 7691

§74.24: Credit by Examination

(a) General provisions.

(1) A school district must provide at least three days between January 1 and June 30 and three days between July 1 and December 31 annually when examinations for acceleration for each primary school grade level and for credit for secondary school academic subjects required under Texas Education Code, §28.023, shall be administered in Grades 1-12. The days do not need to be consecutive but must be designed to meet the needs of all students. The dates must be publicized in the community.

(2) A school district shall not charge for an examination for acceleration for each primary school grade level or for credit for secondary school academic subjects. If a parent requests an alternative examination, the district may administer and recognize results of a test purchased by the parent or student from Texas Tech University or The University of Texas at Austin.

(A) Texas Tech University and The University of Texas at Austin shall ensure that the assessments they provide for the purposes of this section are aligned with and contain appropriate breadth of coverage of the Texas Essential Knowledge and Skills for the appropriate course.

(B) Texas Tech University and The University of Texas at Austin shall arrange for a third party to conduct an audit, on a rotating basis, of at least 20% of the assessments they provide for the purposes of this section. The audit shall be conducted annually.

(C) The results of each audit shall be provided to the Texas Education Agency in the form of a report to be delivered no later than May 31 of each year.

(3) A school district must have the approval of the district board of trustees to develop its own tests or to purchase examinations that thoroughly test the essential knowledge and skills in the applicable grade level or subject area.

(4) A school district may allow a student to accelerate at a time other than one required in paragraph (1) of this subsection by developing a cost-free option approved by the district board of trustees that allows students to demonstrate academic achievement or proficiency in a subject or grade level.

(b) Assessment for acceleration in kindergarten through Grade 5.

(1) A school district must develop procedures for kindergarten acceleration that are approved by the district board of trustees.

(2) A student in any of Grades 1-5 must be accelerated one grade if he or she meets the following requirements:

(A) the student scores 90% on a criterion-referenced test for the grade level he or she wants to skip in each of the following areas: language arts, mathematics, science, and social studies;

(B) a school district representative recommends that the student be accelerated; and

(C) the student's parent or guardian gives written approval for the acceleration.

(c) Assessment for course credit in Grades 6-12.

(1) A student in any of Grades 6-12 must be given credit for an academic subject in which he or she has had no prior instruction if the student scores 90% on a criterion-referenced test for the applicable course.

(2) If a student is given credit in a subject on the basis of an examination, the school district must enter the examination score on the student's transcript.

(3) In accordance with local school district policy, a student in any of Grades 6-12 may be given credit for an academic subject in which he or she had some prior instruction, if the student scores 70% on a criterion-referenced test for the applicable course.

Comments

Source Note: The provisions of this §74.24 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective September 1, 2001, 25 TexReg 7691; amended to be effective August 8, 2006, 31 TexReg 6212; amended to be effective September 1, 2008, 33 TexReg 1089

§74.25: High School Credit for College Courses

(a) A school district board of trustees may adopt a policy that allows a student to be awarded credit toward high school graduation for completing a college-level course. The course must be provided only by an institution of higher education that is accredited by one of the following regional accrediting associations:

(1) Southern Association of Colleges and Schools;

(2) Middle States Association of Colleges and Schools;

(3) New England Association of Schools and Colleges;

(4) North Central Association of Colleges and Schools;

(5) Western Association of Schools and Colleges; or

(6) Northwest Association of Schools and Colleges.

(b) To be eligible to enroll and be awarded credit toward state graduation requirements, a student must have the approval of the high school principal or other school official designated by the school district. The course for which credit is awarded must provide advanced academic instruction beyond, or in greater depth than, the essential knowledge and skills for the equivalent high school course.

Comments

Source Note: The provisions of this §74.25 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective September 1, 2001, 25 TexReg 7691

§74.26: Award of Credit

(a) The award of credit for a course by a school district affirms that a student has satisfactorily met all state and local requirements. Any course for which credit is awarded must be provided according to this subsection.

(1) Credit earned toward state graduation requirements by a student in an accredited school district shall be transferable and must be accepted by any other school district in the state. A district may not prohibit a new student from attending school pending receipt of transcripts or records from the school district the student previously attended. Credit earned in a local-credit course may be transferred only with the consent of the receiving school district.

(2) A school district must ensure that the records or transcripts of an out-of-state or out-of-country transfer student (including foreign exchange students) or a transfer student from a Texas nonpublic school are evaluated and that the student is placed in appropriate classes promptly. The district may use a variety of methods to verify the content of courses for which a transfer student has earned credit.

(b) Districts may offer courses designated for Grades 9-12 (refer to §74.11 of this title (relating to High School Graduation Requirements)) in earlier grade levels. A course must be considered completed and credit must be awarded if the student has demonstrated achievement by meeting the standard requirements of the course, including demonstrated proficiency in the subject matter, regardless of the time the student has received instruction in the course or the grade level at which proficiency was attained. The academic achievement record (transcript) shall reflect that students have satisfactorily completed courses at earlier grade levels than Grades 9-12 and have been awarded state graduation credits.

(c) Credit for courses for high school graduation may be earned only if the student received a grade which is the equivalent of 70 on a scale of 100, based upon the essential knowledge and skills for each course.

(d) In accordance with local district policy, students who are able to successfully complete only one semester of a two-semester course can be awarded credit proportionately.

Comments

Source Note: The provisions of this §74.26 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective September 1, 2001, 25 TexReg 7691

§74.27: Innovative Courses and Programs

A school district may offer innovative courses to enable students to master knowledge, skills, and competencies not included in the essential knowledge and skills of the required curriculum.

(1) The State Board of Education (SBOE) may approve any course that does not fall within any of the subject areas listed in the foundation and enrichment curricula when the applying school district or organization demonstrates that the proposed course is academically rigorous and addresses documented student needs.

(2) The commissioner of education may approve a discipline-based course in the foundation or enrichment curriculum when the applying school district or organization demonstrates that the proposed course is academically challenging and addresses documented student needs.

(3) To request approval from the SBOE or the commissioner of education, the applying school district or organization must submit a request for approval at least six months before planned implementation that includes:

(A) a description of the course and its essential knowledge and skills;

(B) the rationale and justification for the request in terms of student need;

(C) a description of activities, major resources, and materials to be used;

(D) the methods of evaluating student outcomes;

(E) the qualifications of the teacher; and

(F) the amount of credit requested.

(4) With the approval of the local board of trustees, a school district may offer, without modifications, any state-approved innovative course.

Comments

Source Note: The provisions of this §74.27 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective September 1, 2001, 25 TexReg 7691; amended to be effective December 25, 2007, 32 TexReg 9623

§74.28: Students with Dyslexia and Related Disorders

(a) The board of trustees of a school district must ensure that procedures for identifying a student with dyslexia or a related disorder and for providing appropriate instructional services to the student are implemented in the district. These procedures will be monitored by the Texas Education Agency with on-site visits conducted as appropriate.

(b) A school district's procedures must be implemented according to the State Board of Education (SBOE) approved strategies for screening, and techniques for treating, dyslexia and related disorders. The strategies and techniques are described in "Procedures Concerning Dyslexia and Related Disorders," a set of flexible guidelines for local districts that may be modified by SBOE only with broad-based dialogue that includes input from educators and professionals in the field of reading and dyslexia and related disorders from across the state. Screening should only be done by individuals/professionals who are trained to assess students for dyslexia and related disorders.

(c) A school district shall purchase a reading program or develop its own reading program for students with dyslexia and related disorders, as long as the program is characterized by the descriptors found in "Procedures Concerning Dyslexia and Related Disorders." Teachers who screen and treat these students must be trained in instructional strategies which utilize individualized, intensive, multisensory, phonetic methods and a variety of writing and spelling components described in the "Procedures Concerning Dyslexia and Related Disorders" and in the professional development activities specified by each district and/or campus planning and decision making committee.

(d) Before an identification or assessment procedure is used selectively with an individual student, the school district must notify the student's parent or guardian or another person standing in parental relation to the student.

(e) Parents/guardians of students eligible under the Rehabilitation Act of 1973, §504, must be informed of all services and options available to the student under that federal statute.

(f) Each school must provide each identified student access at his or her campus to the services of a teacher trained in dyslexia and related disorders. The school district may, with the approval of each student's parents or guardians, offer additional services at a centralized location. Such centralized services shall not preclude each student from receiving services at his or her campus.

(g) Because early intervention is critical, a program for early identification, intervention, and support for students with dyslexia and related disorders must be available in each district as outlined in the "Procedures Concerning Dyslexia and Related Disorders."

(h) Each school district shall provide a parent education program for parents/guardians of students with dyslexia and related disorders. This program should include: awareness of characteristics of dyslexia and related disorders; information on testing and diagnosis of dyslexia; information on effective strategies for teaching dyslexic students; and awareness of information on modification, especially modifications allowed on standardized testing.

Comments

Source Note: The provisions of this §74.28 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective September 1, 2001, 25 TexReg 7691; amended to be effective August 8, 2006, 31 TexReg 6212

§74.29: Texas Advanced Placement Incentive Program

(a) Purpose. The Texas advanced placement incentive program is created to recognize and reward students, teachers, and schools that demonstrate success in achieving the educational goals of the state. An award or a subsidy granted under this section shall be for the public purpose of promoting an educated citizenry.

(b) Types of awards.

(1) A school participating in the program shall be eligible to receive the following awards:

(A) a one-time, $3,000 equipment grant for providing a College Board advanced placement or International Baccalaureate course, based on need as determined by the commissioner of education; and

(B) $100 for each student who receives a score of three or better on a College Board advanced placement or International Baccalaureate test.

(2) A teacher who teaches a College Board advanced placement or International Baccalaureate course shall be eligible to receive the following awards:

(A) a subsidy of up to $450 per teacher for teacher training for College Board advanced placement or International Baccalaureate courses;

(B) a one-time award of $250 for teaching a College Board advanced placement or International Baccalaureate course for the first time; and

(C) a share of the teacher bonus pool proportional to the number of courses taught that shall be distributed by the teacher's school. Fifty dollars may be deposited in the teacher bonus pool for each student enrolled in the school who receives a score of three or better on a College Board advanced placement or International Baccalaureate test.

(3) A student who receives a score of three or better on a College Board advanced placement or International Baccalaureate test may receive a reimbursement of up to $65 for the advanced placement or International Baccalaureate testing fee. The reimbursement shall be reduced by the amount of any subsidy awarded by the College Board or International Baccalaureate or under subsection (e) of this section.

(c) Award adjustment. The commissioner of education shall adjust and prorate by category the sum and number of awards to ensure the purpose of the program is realized.

(d) Application for, and use of, awards.

(1) To obtain an award, a school or teacher must submit to the State Board of Education (SBOE) a written application in a form, manner, and time prescribed by the commissioner of education. The intended recipient of the award must submit the application.

(2) A school must give priority to academic enhancement purposes in using any award received under this section. An award may not be used for any purpose relating to athletics.

(e) Subsidies for College Board advanced placement or International Baccalaureate tests.

(1) A student is entitled to a subsidy for the fee he or she pays to take a College Board advanced placement or International Baccalaureate test if the student demonstrates financial need according to guidelines adopted by the College Board.

(2) The Texas Education Agency (TEA), with SBOE approval, may pay each eligible applicant an equal amount of up to $25.

(f) Funding of awards and subsidies.

(1) An award or a subsidy granted under this section is subject to the availability of funds. An award or a subsidy may be funded by donations, grants, or legislative appropriations.

(2) The commissioner of education may solicit and receive a grant or donation for the purpose of making awards under this section. The TEA shall account for and distribute any donation, grant, or legislative appropriation.

(3) The TEA shall apply to the program any available funds from its appropriations that may be used for this purpose.

(4) An application for funding may be filed with TEA at a date determined by the commissioner of education.

Comments

Source Note: The provisions of this §74.29 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective September 1, 2001, 25 TexReg 7691

§74.30: Identification of Honors Courses

(a) The following are identified as honors classes as referred to in the Texas Education Code, §33.081(d)(1), concerning extracurricular activities:

(1) all College Board advanced placement courses and International Baccalaureate courses in all disciplines;

(2) English language arts: high school/college concurrent enrollment classes that are included in the "Community College General Academic Course Guide Manual (Part One)";

(3) Languages other than English: high school/college concurrent enrollment classes that are included in the "Community College General Academic Course Guide Manual (Part One)," and languages other than English courses Levels IV-VII;

(4) Mathematics: high school/college concurrent enrollment classes that are included in the "Community College General Academic Course Guide Manual (Part One) " and Precalculus;

(5) Science: high school/college concurrent enrollment classes that are included in the "Community College General Academic Course Guide Manual (Part One)"; and

(6) Social studies: Social Studies Advanced Studies, Economics Advanced Studies, and high school/college concurrent enrollment classes that are included in the "Community College General Academic Course Guide Manual (Part One)."

(b) Districts may identify additional honors courses in the subject areas of English language arts, mathematics, science, social studies, economics, or a language other than English for the purpose of this section, but must identify such courses prior to the semester in which any exemptions related to extracurricular activities occur.

(c) Districts are neither required to nor restricted from considering courses as honors for the purpose of grade point average calculation.

Comments

Source Note: The provisions of this §74.30 adopted to be effective September 1, 1996, 21 TexReg 4311; amended to be effective September 1, 1998, 23 TexReg 5675; amended to be effective June 23, 2008, 33 TexReg 4883

§74.31: Health Classifications for Physical Education

For physical education, a district must classify each student, on the basis of health, into one of the following categories.

(1) Unrestricted (not limited in activities).

(2) Restricted (excludes the more vigorous activities).

(A) Permanent. A member of the healing arts licensed to practice in Texas must provide the school written documentation concerning the nature of the impairment and the expectations for physical activity for the student.

(B) Temporary. The student may be restricted from physical activity of the physical education class. A member of the healing arts licensed to practice in Texas must provide the school written documentation concerning the nature of the temporary impairment and the expected amount of time for recovery. During recovery time, the student must continue to learn the concepts of the lessons but may not actively participate in the skill demonstration.

(3) Adapted and remedial (specific activities prescribed or prohibited, as directed by a member of the healing arts licensed to practice in Texas).

Comments

Source Note: The provisions of this §74.31 adopted to be effective September 1, 2001, 25 TexReg 7691

§74.33: Additional Requirements for Social Studies Classes for Grades 3 - 12

(a) Instruction during Celebrate Freedom Week. Each social studies class shall include, during Celebrate Freedom Week as provided under Texas Education Code, §29.907, or during another full school week as determined by the board of trustees of a school district, appropriate instruction concerning the intent, meaning, and importance of the Declaration of Independence and the United States Constitution, including the Bill of Rights, in their historical contexts. The study of the Declaration of Independence must include the study of the relationship of the ideas expressed in that document to subsequent American history, including the relationship of its ideas to the rich diversity of our people as a nation of immigrants, the American Revolution, the formulation of the United States Constitution, and the abolitionist movement, which led to the Emancipation Proclamation and the women's suffrage movement.

(b) Recitation during Celebrate Freedom Week.

(1) Each school district shall require that, during Celebrate Freedom Week or other week of instruction prescribed under subsection (a) of this section, students in Grades 3 - 12 study and recite the following text: "We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness--That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed."

(2) Each school district shall excuse from the recitation a student:

(A) whose parent or guardian submits to the district a written request that the student be excused;

(B) who, as determined by the district, has a conscientious objection to the recitation; or

(C) who is the child of a representative of a foreign government to whom the United States government extends diplomatic immunity.

Comments

Source Note: The provisions of this §74.33 adopted to be effective December 7, 2003, 28 TexReg 10935

§74.34: Additional Requirements for Economics Classes, Grades 9-12

(a) A school district and an open-enrollment charter school shall incorporate instruction in personal financial literacy into any course meeting a requirement for an economics credit, using the materials approved by the State Board of Education for this purpose in accordance with Texas Education Code, §28.0021.

(b) A school district may add elements at its discretion but must include the following areas of instruction:

(1) understanding interest and avoiding and eliminating credit card debt;

(2) understanding the rights and responsibilities of renting or buying a home;

(3) managing money to make the transition from renting a home to home ownership;

(4) starting a small business;

(5) being a prudent investor in the stock market and using other investment options;

(6) beginning a savings program and planning for retirement;

(7) bankruptcy;

(8) the types of bank accounts available to consumers and the benefits of maintaining a bank account;

(9) balancing a checkbook;

(10) the types of loans available to consumers and becoming a low-risk borrower;

(11) understanding insurance; and

(12) charitable giving.

(c) A school district or open-enrollment charter school may apply to the commissioner of education for an extension in complying with the requirements of this section for the 2006-2007 school year.

Comments

Source Note: The provisions of this §74.34 adopted to be effective August 8, 2006, 31 TexReg 6212

§74.35: Additional Requirements for High School Health Classes

(a) Parenting and paternity awareness.

(1) A school district and an open-enrollment charter school shall incorporate instruction in parenting awareness into any course meeting a requirement for a health education credit, using the materials approved by the State Board of Education for this purpose in accordance with Texas Education Code (TEC), §28.002(p). Implementation of this requirement shall comply with requirements that the board of trustees of each school district establish a local school health advisory council to assist the district in ensuring that local community values are reflected in the district's health education instruction as stated in TEC, §28.004.

(2) A school district may add elements at its discretion but must include the following areas of instruction:

(A) parenting skills and responsibilities, including child support;

(B) relationship skills, including money management, communication, and marriage preparation; and

(C) skills relating to the prevention of family violence, only if the school district's high schools do not have a family violence prevention program.

(3) If the required high school health education credit is earned through a course taken prior to Grade 9, the materials and parenting awareness instruction must be incorporated into that course or, at the district's discretion, may be incorporated into another course available to all students in Grades 9-12.

(4) At the discretion of the district, a teacher may modify the suggested sequence and pace of the program at any grade level.

(5) A student under 14 years of age may not participate in a parenting and paternity awareness program without the permission of the student's parent or person standing in parental relation to the student.

(6) A school district shall use the materials approved by the State Board of Education for this purpose beginning with the 2008-2009 school year.

(b) Alcohol awareness.

(1) A school district and an open-enrollment charter school shall incorporate instruction in the dangers, causes, consequences, signs, symptoms, and treatment of binge drinking and alcohol poisoning into any course meeting a requirement for a health education credit in accordance with TEC, §28.002(r).

(2) A school district shall choose an evidence-based alcohol awareness program to use in the district's middle school, junior high school, and high school health curriculum from a list of programs approved by the commissioner of education for this purpose.

Comments

Source Note: The provisions of this §74.35 adopted to be effective April 27, 2008, 33 TexReg 3261; amended to be effective December 23, 2009, 34 TexReg 9198

§74.36: Requirements for Elective Courses on the Bible's Hebrew Scriptures (Old Testament) and New Testament and Their Impact on the History and Literature of Western Civilization

(a) Pursuant to this rule, a school district may offer to students in Grade 9 or above:

(1) an elective course on the Hebrew Scriptures (Old Testament) and its impact and an elective course on the New Testament and its impact; or

(2) an elective course that combines the courses on the Hebrew Scriptures (Old Testament) and its impact and on the New Testament and its impact.

(b) The purpose of a course under this section is to:

(1) teach students knowledge of biblical content, characters, poetry, and narratives that are prerequisites to understanding contemporary society and culture, including literature, art, music, mores, oratory, and public policy; and

(2) familiarize students with, as applicable:

(A) the contents of the Hebrew Scriptures or New Testament;

(B) the history of the Hebrew Scriptures or New Testament;

(C) the literary style and structure of the Hebrew Scriptures or New Testament; and

(D) the influence of the Hebrew Scriptures or New Testament on law, history, government, literature, art, music, customs, morals, values, and culture.

(c) A course offered under this section shall follow applicable law and all federal and state guidelines in maintaining religious neutrality and accommodating the diverse religious views, traditions, and perspectives of students in their school district. A course under this section shall not endorse, favor, or promote, or disfavor or show hostility toward, any particular religion or nonreligious faith or religious perspective.

(d) A course offered under this section shall follow the Texas Essential Knowledge and Skills for Special Topics in Social Studies or the Texas Essential Knowledge and Skills for Independent Study in English as set out in this subsection.

(1) Texas Essential Knowledge and Skills for Special Topics in Social Studies (One-Half Credit).

(A) General requirements. Students shall be awarded one-half unit of credit for successful completion of this course. Students may take this course with different course content for a maximum of two credits.

(B) Introduction. In Special Topics in Social Studies, an elective course comparable to the former Advanced Social Science Problems, students are provided the opportunity to apply the knowledge and skills of the social sciences to a variety of topics and issues. Students use critical-thinking skills to locate, organize, analyze, and use data collected from a variety of sources. Problem solving and decision making are important elements of the course as is the communication of information in written, oral, and visual forms.

(C) Knowledge and skills.

(i) Social studies skills. The student applies critical-thinking skills to organize and use information acquired from a variety of sources including electronic technology. The student is expected to:

(I) differentiate between, locate, and use primary and secondary sources such as computer software, databases, media and news services, biographies, interviews, and artifacts to acquire information about a selected topic in social studies;

(II) analyze information by sequencing, categorizing, identifying cause-and-effect relationships, comparing, contrasting, finding the main idea, summarizing, making generalizations and predictions, and drawing inferences and conclusions;

(III) identify points of view from the historic context surrounding an event and the frame of reference that influenced the participants;

(IV) support a point of view on a social studies issue or event;

(V) identify bias in written, oral, and visual material;

(VI) evaluate the validity of a source based on language, corroboration with other sources, and information about the author; and

(VII) use appropriate mathematical skills to interpret social studies information such as maps and graphs.

(ii) Social studies skills. The student communicates in written, oral, and visual forms. The student is expected to:

(I) use social studies terminology correctly;

(II) use standard grammar, spelling, sentence structure, and punctuation;

(III) transfer information from one medium to another, including written to visual and statistical to written or visual, using computer software as appropriate; and

(IV) create written, oral, and visual presentations of social studies information.

(iii) Social studies skills. The student uses problem-solving and decision-making skills, working independently and with others, in a variety of settings. The student is expected to:

(I) use a problem-solving process to identify a problem, gather information, list and consider options, consider advantages and disadvantages, choose and implement a solution, and evaluate the effectiveness of the solution; and

(II) use a decision-making process to identify a situation that requires a decision, gather information, identify options, predict consequences, and take action to implement a decision.

(2) Texas Essential Knowledge and Skills for Independent Study in English (One-Half to One Credit).

(A) Introduction. Students enrolled in Independent Study in English write in a variety of forms for a variety of audiences and purposes. High school students are expected to plan, draft, and complete written compositions on a regular basis, and carefully examine their papers for clarity, engaging language, and the correct use of the conventions and mechanics of written English. Independent Study in English students are expected to write in a variety of forms including business, personal, literary, and persuasive texts for a variety of audiences and purposes. Writing is used as a tool for learning as students create, clarify, critique, and express appreciation for others' ideas and responses. Independent Study in English students evaluate their own written work as well as the work of others. Students continue to read extensively in increasingly difficult texts selected in multiple genres for a variety of purposes. When comprehension breaks down, students effectively and efficiently monitor and adjust their use of a variety of comprehension strategies. Students respond to texts through talking and writing in both traditional print and electronic formats. Students connect their knowledge of the world and the knowledge they gather from other texts with the text being read. For high school students whose first language is not English, the students' native language serves as a foundation for English language acquisition and language learning.

(B) Knowledge and skills.

(i) Writing. The student uses writing as a tool for learning and research. The student is expected to:

(I) use writing to formulate questions, refine topics, and clarify ideas;

(II) use writing to organize and support what is known and what needs to be learned about a topic;

(III) compile information from primary and secondary sources using available technology;

(IV) use writing to discover, record, review, and learn;

(V) organize notes from multiple sources, including primary and secondary sources, in useful and informing ways;

(VI) link related information and ideas from a variety of sources;

(VII) represent information in a variety of ways such as graphics, conceptual maps, and learning logs;

(VIII) compile written ideas and representations, interpret empirical data into reports, summaries, or other formats, and draw conclusions; and

(IX) use writing as a tool such as to reflect, explore, or problem solve.

(ii) Reading. The student inquires through reading and researching self-selected and assigned topics. The student is expected to:

(I) read widely to establish a specific area of interest for further study;

(II) generate relevant, interesting, and researchable questions with instructor guidance and approval;

(III) locate appropriate print and non-print information using text and technical resources, including databases;

(IV) use text organizers such as overviews, headings, and graphic features to locate and categorize information;

(V) organize and record new information in systematic ways such as notes, charts, and graphic organizers;

(VI) produce research projects and reports in various forms for audiences;

(VII) draw relevant questions for further study from the research findings or conclusions; and

(VIII) conduct a research project(s), producing an original work in print or another medium with a demonstration of advanced skill.

(iii) Viewing/representing. The student produces visual representations that communicate with others. The student is expected to:

(I) use a range of techniques in planning and creating media text; and

(II) prepare and present a research project.

Comments

Source Note: The provisions of this §74.36 adopted to be effective September 1, 2008, 33 TexReg 7159

§74.37: Public School Physical Education Curriculum

(a) The essential knowledge and skills for physical education shall:

(1) emphasize the knowledge and skills capable of being used during a lifetime of regular physical activity;

(2) be consistent with national physical education standards for:

(A) the information that students should learn about physical activity; and

(B) the physical activities that students should be able to perform;

(3) meet the needs of students of all physical ability levels, including students who have a disability, chronic health problem, or other special need that precludes the student from participating in regular physical education instruction but who might be able to participate in physical education that is suitably adapted and, if applicable, included in the student's individualized education program;

(4) take into account the effect that gender and cultural differences might have on the degree of student interest in physical activity or on the types of physical activity in which a student is interested;

(5) ensure students develop self-management and movement skills;

(6) ensure students develop cooperation, fair play, and responsible participation in physical activity; and

(7) promote student participation in physical activity outside of school.

(b) A physical education course shall:

(1) offer students an opportunity to choose among many types of physical activity in which to participate;

(2) offer students both cooperative and competitive games; and

(3) be an enjoyable experience for students.

(c) On a weekly basis, at least 50% of a physical education class shall be used for actual student physical activity and the activity shall be, to the extent practicable, at a moderate or vigorous level.

Comments

Source Note: The provisions of this §74.37 adopted to be effective December 23, 2009, 34 TexReg 9198

Subchapter D

§74.41: High School Graduation Requirements

(a) Graduates of each high school are awarded the same type of diploma. The academic achievement record (transcript), rather than the diploma, records individual accomplishments, achievements, and courses completed and displays appropriate graduation seals.

(b) All credit for graduation must be earned no later than Grade 12.

(c) To receive a high school diploma, a student entering Grade 9 in the 2001-2002 school year and thereafter must complete the following:

(1) requirements of the minimum high school program specified in §74.42 of this title (relating to Minimum High School Program), the recommended high school program specified in §74.43 of this title (relating to Recommended High School Program), or the advanced program specified in §74.44 of this title (relating to Distinguished Achievement High School Program); and

(2) testing requirements for graduation as specified in Chapter 101 of this title (relating to Assessment).

(d) A maximum of three credits of reading (selected from Reading I, II, or III) may be offered by districts for state graduation elective credit for identified students under the following conditions.

(1) The school district board of trustees shall adopt policies to identify students in need of additional reading instruction.

(2) District procedures shall include assessment of individual student needs, ongoing evaluation of each student's progress, and monitoring of instructional activities to ensure that student needs are addressed.

(e) An out-of-state or out-of-country transfer student (including foreign exchange students) or a transfer student from a Texas nonpublic school is eligible to receive a Texas diploma, but must complete all requirements of this section to satisfy state graduation requirements. Any course credit required in this section that is not completed by the student before he or she enrolls in a Texas school district may be satisfied through the provisions of §74.23 of this title (relating to Correspondence Courses and Distance Learning) and §74.24 of this title (relating to Credit by Examination) or by completing the course or courses according to the provisions of §74.26 of this title (relating to Award of Credit).

(f) Elective credits in all three graduation programs may be selected from the following:

(1) the list of courses approved by the State Board of Education (SBOE) for Grades 9-12 as specified in §74.1 of this title (relating to Essential Knowledge and Skills);

(2) state-approved innovative courses as specified in §74.27 of this chapter (relating to Innovative Courses and Programs);

(3) Junior Reserve Officer Training Corps (JROTC)--one to four credits;

(4) Driver Education--one-half credit.

(g) College Board advanced placement and International Baccalaureate courses may be substituted for courses required in appropriate areas in all three high school graduation programs. College Board advanced placement and International Baccalaureate courses may be used as electives in all three high school graduation programs.

Comments

Source Note: The provisions of this §74.41 adopted to be effective September 1, 2001, 25 TexReg 7691

§74.42: Minimum High School Program

(a) Credits. A student must earn at least 22 credits to complete the Minimum High School Program.

(b) Core Courses. A student must demonstrate proficiency in the following.

(1) English language arts--four credits. The credits must consist of:

(A) English I, II, and III (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II only for immigrant students with limited English proficiency); and

(B) Fourth credit of English, which may be satisfied by English IV, Research/Technical Writing, Creative/Imaginative Writing, Practical Writing Skills, Literary Genres, Business Communication, Journalism, or concurrent enrollment in a college English course.

(2) Mathematics--three credits to include Algebra I and Geometry.

(3) Science--two credits. The credits must consist of Biology and Integrated Physics and Chemistry (IPC). A student may substitute Chemistry or Physics for IPC and then must use the second of these two courses as the academic elective credit identified in subsection (b)(6) of this section.

(4) Social studies--two and one-half credits. The credits must consist of World History Studies (one credit) or World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit).

(5) Economics, with emphasis on the free enterprise system and its benefits--one-half credit. The credit must consist of Economics with Emphasis on the Free Enterprise System and Its Benefits.

(6) Academic elective--one credit. The credit must be selected from World History Studies, World Geography Studies, or any science course approved by the State Board of Education (SBOE) for science credit as found in Chapter 112 of this title (relating to Texas Essential Knowledge and Skills for Science). If a student elects to replace IPC with either Chemistry or Physics as described in subsection (b)(3) of this section, the academic elective must be the other of these two science courses.

(7) Physical education--one and one-half credits to include Foundations of Personal Fitness (one-half credit).

(A) A student may not earn more than two credits in physical education toward state graduation requirements.

(B) The school district board of trustees may allow a student to substitute certain physical activities for the required credits in physical education, including the Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Junior Reserve Officer Training Corps (JROTC); athletics; Dance I-IV; two- or three-credit career and technology work-based training courses, and off-campus physical education.

(C) In accordance with local district policy, a school district may award up to two credits for physical education for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. The district must apply to the commissioner of education for approval of such programs, which may be substituted for state graduation credit in physical education. Such approval may be granted under the following conditions:

(i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intensive, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education.

(ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day.

(8) Health education--one-half credit, which may be satisfied by Health 1 or Advanced Health, or Health Science Technology--one credit, which may be satisfied by Introduction to Health Science Technology, Health Science Technology I, or Health Science Technology II.

(9) Speech--one-half credit. The credit must consist of Communication Applications.

(10) Technology applications--one credit, which may be satisfied by:

(A) the following courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications): Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications;

(B) the following courses in Chapter 120 of this title (relating to the Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; or

(C) the following courses in Chapter 123 of this title (relating to the Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communications Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology.

(c) Elective Courses--five and one-half credits. The credits must be selected from the list of courses specified in §74.41(f) of this title (relating to High School Graduation Requirements).

Comments

Source Note: The provisions of this §74.42 adopted to be effective September 1, 2001, 25 TexReg 7691

§74.43: Recommended High School Program

(a) Credits. A student must earn at least 24 credits to complete the Recommended High School Program.

(b) Core Courses. A student must demonstrate proficiency in the following:

(1) English language arts--four credits. The credits must consist of English I, II, III, and IV (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II only for immigrant students with limited English proficiency).

(2) Mathematics--three credits. The credits must consist of Algebra I, Algebra II, and Geometry.

(3) Science--three credits. One credit must be a biology credit (Biology, Advanced Placement (AP) Biology, or International Baccalaureate (IB) Biology). Students must choose the remaining two credits from the following areas. Not more than one credit may be chosen from each of the areas to satisfy this requirement. Students on the Recommended High School Program are encouraged to take courses in biology, chemistry, and physics to complete the science requirements.

(A) Integrated Physics and Chemistry (IPC);

(B) Chemistry, AP Chemistry, or IB Chemistry; and

(C) Physics, Principles of Technology I, AP Physics, or IB Physics.

(4) Social studies--three and one-half credits. The credits must consist of World History Studies (one credit), World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit).

(5) Economics, with emphasis on the free enterprise system and its benefits--one-half credit. The credit must consist of Economics with Emphasis on the Free Enterprise System and Its Benefits.

(6) Languages other than English--two credits. The credits earned must be for any two levels in the same language.

(7) Physical education--one and one-half credits to include Foundations of Personal Fitness (one-half credit).

(A) A student may not earn more than two credits in physical education toward state graduation requirements.

(B) The school district board of trustees may allow a student to substitute certain physical activities for the required credits in physical education, including the Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Junior Reserve Officer Training Corps (JROTC); athletics; Dance I - IV; and two- or three-credit career and technology work-based training courses.

(C) In accordance with local district policy, a school district may award up to two credits for physical education for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. The district must apply to the commissioner of education for approval of such programs, which may be substituted for state graduation credit in physical education. Such approval may be granted under the following conditions:

(i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intensive, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education.

(ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day.

(8) Health education--one-half credit, which may satisfied by Health 1 or Advanced Health, or Health Science Technology--one credit, which may be satisfied by Introduction to Health Science Technology, Health Science Technology I, or Health Science Technology II.

(9) Speech--one-half credit. The credit must consist of Communication Applications.

(10) Technology applications--one credit, which may be satisfied by:

(A) the following courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications): Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications;

(B) the following courses in Chapter 120 of this title (relating to the Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; or

(C) the following courses in Chapter 123 of this title (relating to the Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communications Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology.

(11) Fine arts--one credit, which may be satisfied by any course in Chapter 117, Subchapter C, of this title (relating to Texas Essential Knowledge and Skills for Fine Arts).

(c) Elective Courses--three and one-half credits. The credits may be selected from the list of courses specified in §74.41(f) of this title (relating to High School Graduation Requirements). All students who wish to complete the Recommended High School Program are encouraged to study each of the four foundation curriculum areas (English language arts, mathematics, science, and social studies) every year in high school.

(d) Substitutions. No substitutions are allowed in the Recommended High School Program, except as specified in this chapter.

Comments

Source Note: The provisions of this §74.43 adopted to be effective September 1, 2001, 25 TexReg 7691; amended to be effective August 8, 2006, 31 TexReg 6212

§74.44: Distinguished Achievement High School Program--Advanced High School Program

(a) Credits. A student must earn at least 24 credits to complete the Distinguished Achievement High School Program.

(b) Core Courses. A student must demonstrate proficiency in the following:

(1) English language arts--four credits. The credits must consist of English I, II, III, and IV (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II only for immigrant students with limited English proficiency).

(2) Mathematics--three credits. The credits must consist of Algebra I, Algebra II, and Geometry.

(3) Science--three credits. One credit must be a biology credit (Biology, Advanced Placement (AP) Biology, or International Baccalaureate (IB) Biology). Students must choose the remaining two credits from the following areas. Not more than one credit may be chosen from each of the areas to satisfy this requirement. Students on the Distinguished Achievement High School Program are encouraged to take courses in biology, chemistry, and physics to complete the science requirements.

(A) Integrated Physics and Chemistry (IPC);

(B) Chemistry, AP Chemistry, or IB Chemistry; and

(C) Physics, Principles of Technology I, AP Physics, or IB Physics.

(4) Social studies--three and one-half credits. The credits must consist of World History Studies (one credit), World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit).

(5) Economics, with emphasis on the free enterprise system and its benefits--one-half credit. The credit must consist of Economics with Emphasis on the Free Enterprise System and Its Benefits.

(6) Languages other than English--three credits. The credits earned must be for any three levels in the same language.

(7) Physical education--one and one-half credits to include Foundations of Personal Fitness (one-half credit).

(A) A student may not earn more than two credits in physical education toward state graduation requirements.

(B) The school district board of trustees may allow a student to substitute certain physical activities for the required credits in physical education, including the Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Junior Reserve Officer Training Corps (JROTC); athletics; Dance I - IV; and two- or three-credit career and technology work-based training courses.

(C) In accordance with local district policy, a school district may award up to two credits for physical education for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. The district must apply to the commissioner of education for approval of such programs, which may be substituted for state graduation credit in physical education. Such approval may be granted under the following conditions:

(i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intensive, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education.

(ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day.

(8) Health education--one-half credit, which may be satisfied by Health 1 or Advanced Health, or Health Science Technology--one credit, which may be satisfied by Introduction to Health Science Technology, Health Science Technology I, or Health Science Technology II.

(9) Speech--one-half credit. The credit must consist of Communication Applications.

(10) Technology applications--one credit, which may be satisfied by:

(A) the following courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications): Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications;

(B) the following courses in Chapter 120 of this title (relating to the Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; or

(C) the following courses in Chapter 123 of this title (relating to the Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communications Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology.

(11) Fine arts--one credit, which may be satisfied by any course in Chapter 117, Subchapter C, of this title (relating to Texas Essential Knowledge and Skills for Fine Arts).

(c) Elective Courses--two and one-half credits. The credits may be selected from the list of courses specified in §74.41(f) of this title (relating to High School Graduation Requirements). All students who wish to complete the Distinguished Achievement High School Program are encouraged to study each of the four foundation curriculum areas (English language arts, mathematics, science, and social studies) every year in high school.

(d) Advanced measures. A student also must achieve any combination of four of the following advanced measures. Original research/projects may not be used for more than two of the four advanced measures. The measures must focus on demonstrated student performance at the college or professional level. Student performance on advanced measures must be assessed through an external review process. The student may choose from the following options:

(1) original research/project that is:

(A) judged by a panel of professionals in the field that is the focus of the project; or

(B) conducted under the direction of mentor(s) and reported to an appropriate audience; and

(C) related to the required curriculum set forth in §74.1 of this title (relating to Essential Knowledge and Skills);

(2) test data where a student receives:

(A) a score of three or above on the College Board advanced placement examination;

(B) a score of four or above on an International Baccalaureate examination; or

(C) a score on the Preliminary Scholastic Assessment Test (PSAT) that qualifies the student for recognition as a commended scholar or higher by the National Merit Scholarship Corporation, as part of the National Hispanic Scholar Program of the College Board or as part of the National Achievement Scholarship Program for Outstanding Negro Students of the National Merit Scholarship Corporation. The PSAT score shall count as only one advanced measure regardless of the number of honors received by the student; or

(3) college academic courses, advanced technical credit courses, and dual credit courses with a grade of 3.0 or higher.

(e) Substitutions. No substitutions are allowed in the Distinguished Achievement High School Program, except as specified in this chapter.

Comments

Source Note: The provisions of this §74.44 adopted to be effective September 1, 2001, 25 TexReg 7691; amended to be effective August 8, 2006, 31 TexReg 6212

Subchapter E

§74.51: High School Graduation Requirements

(a) Graduates of each high school are awarded the same type of diploma. The academic achievement record (transcript), rather than the diploma, records individual accomplishments, achievements, and courses completed and displays appropriate graduation seals.

(b) All credit for graduation must be earned no later than Grade 12.

(c) A student entering Grade 9 in the 2004 - 2005 school year and thereafter shall enroll in the courses necessary to complete the curriculum requirements for the recommended high school program specified in §74.53 of this title (relating to Recommended High School Program) or the advanced program specified in §74.54 of this title (relating to Distinguished Achievement High School Program--Advanced High School Program) unless the student, the student's parent or other persons standing in parental relation to the student, and a school counselor or school administrator agree that the student should be permitted to take courses under the minimum high school program specified in §74.52 of this title (relating to Minimum High School Program).

(d) To receive a high school diploma, a student entering Grade 9 in the 2004 - 2005 school year and thereafter must complete the following:

(1) in accordance with subsection (c) of this section, requirements of the minimum high school program specified in §74.52, the recommended high school program specified in §74.53, or the advanced program specified in §74.54; and

(2) testing requirements for graduation as specified in Chapter 101 of this title (relating to Assessment).

(e) A maximum of three credits of reading (selected from Reading I, II, or III) may be offered by districts for state graduation elective credit for identified students under the following conditions.

(1) The school district board of trustees shall adopt policies to identify students in need of additional reading instruction.

(2) District procedures shall include assessment of individual student needs, ongoing evaluation of each student's progress, and monitoring of instructional activities to ensure that student needs are addressed.

(f) An out-of-state or out-of-country transfer student (including foreign exchange students) or a transfer student from a Texas nonpublic school is eligible to receive a Texas diploma, but must complete all requirements of this section to satisfy state graduation requirements. Any course credit required in this section that is not completed by the student before he or she enrolls in a Texas school district may be satisfied through the provisions of §74.23 of this title (relating to Correspondence Courses and Distance Learning) and §74.24 of this title (relating to Credit by Examination) or by completing the course or courses according to the provisions of §74.26 of this title (relating to Award of Credit).

(g) Elective credits in all three graduation programs may be selected from the following:

(1) the list of courses approved by the State Board of Education (SBOE) for Grades 9 - 12 as specified in §74.1 of this title (relating to Essential Knowledge and Skills);

(2) state-approved innovative courses as specified in §74.27 of this chapter (relating to Innovative Courses and Programs);

(3) Junior Reserve Officer Training Corps (JROTC)--one to four credits;

(4) Driver Education--one-half credit.

(h) College Board advanced placement and International Baccalaureate courses may be substituted for courses required in appropriate areas in all three high school graduation programs. College Board advanced placement and International Baccalaureate courses may be used as electives in all three high school graduation programs.

Comments

Source Note: The provisions of this §74.51 adopted to be effective December 7, 2003, 28 TexReg 10936

§74.52: Minimum High School Program

(a) Credits. A student must earn at least 22 credits to complete the Minimum High School Program.

(b) Core Courses. A student must demonstrate proficiency in the following.

(1) English language arts--four credits. The credits must consist of:

(A) English I, II, and III (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II only for immigrant students with limited English proficiency); and

(B) Fourth credit of English, which may be satisfied by English IV, Research/Technical Writing, Creative/Imaginative Writing, Practical Writing Skills, Literary Genres, Business Communication, Journalism, or concurrent enrollment in a college English course.

(2) Mathematics--three credits to include Algebra I and Geometry.

(3) Science--two credits. The credits must consist of Biology and Integrated Physics and Chemistry (IPC). A student may substitute Chemistry or Physics for IPC and then must use the second of these two courses as the academic elective credit identified in subsection (b)(6) of this section.

(4) Social studies--two and one-half credits. The credits must consist of World History Studies (one credit) or World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit).

(5) Economics, with emphasis on the free enterprise system and its benefits--one-half credit. The credit must consist of Economics with Emphasis on the Free Enterprise System and Its Benefits.

(6) Academic elective--one credit. The credit must be selected from World History Studies, World Geography Studies, or any science course approved by the State Board of Education (SBOE) for science credit as found in Chapter 112 of this title (relating to Texas Essential Knowledge and Skills for Science). If a student elects to replace IPC with either Chemistry or Physics as described in subsection (b)(3) of this section, the academic elective must be the other of these two science courses.

(7) Physical education--one and one-half credits to include Foundations of Personal Fitness (one-half credit).

(A) A student may not earn more than two credits in physical education toward state graduation requirements.

(B) The school district board of trustees may allow a student to substitute certain physical activities for the required credits in physical education, including the Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Junior Reserve Officer Training Corps (JROTC); athletics; Dance I - IV; two- or three-credit career and technology work-based training courses, and off-campus physical education.

(C) In accordance with local district policy, a school district may award up to two credits for physical education for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. The district must apply to the commissioner of education for approval of such programs, which may be substituted for state graduation credit in physical education. Such approval may be granted under the following conditions:

(i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intensive, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education.

(ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day.

(8) Health education--one-half credit, which may be satisfied by Health 1 or Advanced Health, or Health Science Technology--one credit, which may be satisfied by Introduction to Health Science Technology, Health Science Technology I, or Health Science Technology II.

(9) Speech--one-half credit. The credit must consist of Communication Applications.

(10) Technology applications--one credit, which may be satisfied by:

(A) the following courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications): Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications;

(B) the following courses in Chapter 120 of this title (relating to the Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; or

(C) the following courses in Chapter 123 of this title (relating to the Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communications Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology.

(c) Elective Courses--five and one-half credits. The credits must be selected from the list of courses specified in §74.51(g) of this title (relating to High School Graduation Requirements).

Comments

Source Note: The provisions of this §74.52 adopted to be effective December 7, 2003, 28 TexReg 10936; amended to be effective August 8, 2006, 31 TexReg 6212

§74.53: Recommended High School Program

(a) Credits. A student must earn at least 24 credits to complete the Recommended High School Program.

(b) Core Courses. A student must demonstrate proficiency in the following:

(1) English language arts--four credits. The credits must consist of English I, II, III, and IV (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II only for immigrant students with limited English proficiency).

(2) Mathematics--three credits. The credits must consist of Algebra I, Algebra II, and Geometry.

(3) Science--three credits. One credit must be a biology credit (Biology, Advanced Placement (AP) Biology, or International Baccalaureate (IB) Biology). Students must choose the remaining two credits from the following areas. Not more than one credit may be chosen from each of the areas to satisfy this requirement. Students on the Recommended High School Program are encouraged to take courses in biology, chemistry, and physics to complete the science requirements.

(A) Integrated Physics and Chemistry (IPC);

(B) Chemistry, AP Chemistry, or IB Chemistry; and

(C) Physics, Principles of Technology I, AP Physics, or IB Physics.

(4) Social studies--three and one-half credits. The credits must consist of World History Studies (one credit), World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit).

(5) Economics, with emphasis on the free enterprise system and its benefits--one-half credit. The credit must consist of Economics with Emphasis on the Free Enterprise System and Its Benefits.

(6) Languages other than English--two credits. The credits earned must be for any two levels in the same language.

(7) Physical education--one and one-half credits to include Foundations of Personal Fitness (one-half credit).

(A) A student may not earn more than two credits in physical education toward state graduation requirements.

(B) The school district board of trustees may allow a student to substitute certain physical activities for the required credits in physical education, including the Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Junior Reserve Officer Training Corps (JROTC); athletics; Dance I - IV; and two- or three-credit career and technology work-based training courses.

(C) In accordance with local district policy, a school district may award up to two credits for physical education for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. The district must apply to the commissioner of education for approval of such programs, which may be substituted for state graduation credit in physical education. Such approval may be granted under the following conditions:

(i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intensive, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education.

(ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day.

(8) Health education--one-half credit, which may satisfied by Health 1 or Advanced Health, or Health Science Technology--one credit, which may be satisfied by Introduction to Health Science Technology, Health Science Technology I, or Health Science Technology II.

(9) Speech--one-half credit. The credit must consist of Communication Applications.

(10) Technology applications--one credit, which may be satisfied by:

(A) the following courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications): Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications, or state-approved technology applications innovative courses;

(B) the following courses in Chapter 120 of this title (relating to the Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia;

(C) the following courses in Chapter 123 of this title (relating to the Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communications Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology; or

(D) the completion of three credits (for students participating in a coherent sequence of career and technology courses or who are enrolled in a Tech Prep high school plan of study) consisting of two or more state-approved career and technology courses in Chapters 119-125 and 127 of this title. Districts shall ensure that career and technology courses, including innovative courses, in a coherent sequence used to meet the technology applications credit are appropriate to collectively teach the knowledge and skills found in any of the approved courses listed in subparagraphs (A), (B), and (C) of this paragraph. Students pursuing the technology applications option described in this subparagraph must demonstrate proficiency in technology applications prior to the beginning of Grade 11.

(11) Fine arts--one credit, which may be satisfied by any course in Chapter 117, Subchapter C, of this title (relating to Texas Essential Knowledge and Skills for Fine Arts).

(c) Elective Courses--three and one-half credits. The credits may be selected from the list of courses specified in §74.51(g) of this title (relating to High School Graduation Requirements). All students who wish to complete the Recommended High School Program are encouraged to study each of the four foundation curriculum areas (English language arts, mathematics, science, and social studies) every year in high school.

(d) Substitutions. No substitutions are allowed in the Recommended High School Program, except as specified in this chapter.

Comments

Source Note: The provisions of this §74.53 adopted to be effective December 7, 2003, 28 TexReg 10936; amended to be effective August 8, 2006, 31 TexReg 6212

§74.54: Distinguished Achievement High School Program--Advanced High School Program

(a) Credits. A student must earn at least 24 credits to complete the Distinguished Achievement High School Program.

(b) Core Courses. A student must demonstrate proficiency in the following:

(1) English language arts--four credits. The credits must consist of English I, II, III, and IV (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II only for immigrant students with limited English proficiency).

(2) Mathematics--three credits. The credits must consist of Algebra I, Algebra II, and Geometry.

(3) Science--three credits. One credit must be a biology credit (Biology, Advanced Placement (AP) Biology, or International Baccalaureate (IB) Biology). Students must choose the remaining two credits from the following areas. Not more than one credit may be chosen from each of the areas to satisfy this requirement. Students on the Distinguished Achievement High School Program are encouraged to take courses in biology, chemistry, and physics to complete the science requirements.

(A) Integrated Physics and Chemistry (IPC);

(B) Chemistry, AP Chemistry, or IB Chemistry; and

(C) Physics, Principles of Technology I, AP Physics, or IB Physics.

(4) Social studies--three and one-half credits. The credits must consist of World History Studies (one credit), World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit).

(5) Economics, with emphasis on the free enterprise system and its benefits--one-half credit. The credit must consist of Economics with Emphasis on the Free Enterprise System and Its Benefits.

(6) Languages other than English--three credits. The credits earned must be for any three levels in the same language.

(7) Physical education--one and one-half credits to include Foundations of Personal Fitness (one-half credit).

(A) A student may not earn more than two credits in physical education toward state graduation requirements.

(B) The school district board of trustees may allow a student to substitute certain physical activities for the required credits in physical education, including the Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Junior Reserve Officer Training Corps (JROTC); athletics; Dance I - IV; and two- or three-credit career and technology work-based training courses.

(C) In accordance with local district policy, a school district may award up to two credits for physical education for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. The district must apply to the commissioner of education for approval of such programs, which may be substituted for state graduation credit in physical education. Such approval may be granted under the following conditions:

(i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intensive, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education.

(ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day.

(8) Health education--one-half credit, which may be satisfied by Health 1 or Advanced Health, or Health Science Technology--one credit, which may be satisfied by Introduction to Health Science Technology, Health Science Technology I, or Health Science Technology II.

(9) Speech--one-half credit. The credit must consist of Communication Applications.

(10) Technology applications--one credit, which may be satisfied by:

(A) the following courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications): Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications, or state-approved technology applications innovative courses;

(B) the following courses in Chapter 120 of this title (relating to the Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia;

(C) the following courses in Chapter 123 of this title (relating to the Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communications Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology; or

(D) the completion of three credits (for students participating in a coherent sequence of career and technology courses or who are enrolled in a Tech Prep high school plan of study) consisting of two or more state-approved career and technology courses in Chapters 119-125 and 127 of this title. Districts shall ensure that career and technology courses, including innovative courses, in a coherent sequence used to meet the technology applications credit are appropriate to collectively teach the knowledge and skills found in any of the approved courses listed in subparagraphs (A), (B), and (C) of this paragraph. Students pursuing the technology applications option described in this subparagraph must demonstrate proficiency in technology applications prior to the beginning of Grade 11.

(11) Fine arts--one credit, which may be satisfied by any course in Chapter 117, Subchapter C, of this title (relating to Texas Essential Knowledge and Skills for Fine Arts).

(c) Elective Courses--two and one-half credits. The credits may be selected from the list of courses specified in §74.51(g) of this title (relating to High School Graduation Requirements). All students who wish to complete the Distinguished Achievement High School Program are encouraged to study each of the four foundation curriculum areas (English language arts, mathematics, science, and social studies) every year in high school.

(d) Advanced measures. A student also must achieve any combination of four of the following advanced measures. Original research/projects may not be used for more than two of the four advanced measures. The measures must focus on demonstrated student performance at the college or professional level. Student performance on advanced measures must be assessed through an external review process. The student may choose from the following options:

(1) original research/project that is:

(A) judged by a panel of professionals in the field that is the focus of the project; or

(B) conducted under the direction of mentor(s) and reported to an appropriate audience; and

(C) related to the required curriculum set forth in §74.1 of this title (relating to Essential Knowledge and Skills);

(2) test data where a student receives:

(A) a score of three or above on the College Board advanced placement examination;

(B) a score of four or above on an International Baccalaureate examination; or

(C) a score on the Preliminary Scholastic Assessment Test (PSAT) that qualifies the student for recognition as a commended scholar or higher by the National Merit Scholarship Corporation, as part of the National Hispanic Scholar Program of the College Board or as part of the National Achievement Scholarship Program for Outstanding Negro Students of the National Merit Scholarship Corporation. The PSAT score shall count as only one advanced measure regardless of the number of honors received by the student; or

(3) college academic courses, advanced technical credit courses, and dual credit courses with a grade of 3.0 or higher.

(e) Substitutions. No substitutions are allowed in the Distinguished Achievement High School Program, except as specified in this chapter.

Comments

Source Note: The provisions of this §74.54 adopted to be effective December 7, 2003, 28 TexReg 10936; amended to be effective August 8, 2006, 31 TexReg 6212

Subchapter F

§74.61: High School Graduation Requirements

(a) Graduates of each high school are awarded the same type of diploma. The academic achievement record (transcript), rather than the diploma, records individual accomplishments, achievements, and courses completed and displays appropriate graduation seals.

(b) All credit for graduation must be earned no later than Grade 12.

(c) A student entering Grade 9 in the 2007-2008 school year and thereafter shall enroll in the courses necessary to complete the curriculum requirements for the recommended high school program specified in §74.63 of this title (relating to Recommended High School Program) or the advanced program specified in §74.64 of this title (relating to Distinguished Achievement High School Program--Advanced High School Program) unless the student, the student's parent or other persons standing in parental relation to the student, and a school counselor or school administrator agree that the student should be permitted to take courses under the minimum high school program specified in §74.62 of this title (relating to Minimum High School Program). High school courses successfully completed prior to Grade 9 and the 2007-2008 school year shall count toward graduation in the manner established in this chapter for credit in the year the course is successfully completed.

(d) To receive a high school diploma, a student entering Grade 9 in the 2007-2008 school year and thereafter must complete the following:

(1) in accordance with subsection (c) of this section, requirements of the minimum high school program specified in §74.62, the recommended high school program specified in §74.63, or the advanced program specified in §74.64; and

(2) testing requirements for graduation as specified in Chapter 101 of this title (relating to Assessment).

(e) A maximum of three credits of reading (selected from Reading I, II, or III) may be offered by districts for state graduation elective credit for identified students under the following conditions.

(1) The school district board of trustees shall adopt policies to identify students in need of additional reading instruction.

(2) District procedures shall include assessment of individual student needs, ongoing evaluation of each student's progress, and monitoring of instructional activities to ensure that student needs are addressed.

(f) An out-of-state or out-of-country transfer student (including foreign exchange students) or a transfer student from a Texas nonpublic school is eligible to receive a Texas diploma, but must complete all requirements of this section to satisfy state graduation requirements. Any course credit required in this section that is not completed by the student before he or she enrolls in a Texas school district may be satisfied through the provisions of §74.23 of this title (relating to Correspondence Courses and Distance Learning) and §74.24 of this title (relating to Credit by Examination) or by completing the course or courses according to the provisions of §74.26 of this title (relating to Award of Credit).

(g) Elective credits in all three graduation programs may be selected from the following:

(1) the list of courses approved by the State Board of Education (SBOE) for Grades 9-12 as specified in §74.1 of this title (relating to Essential Knowledge and Skills);

(2) state-approved innovative courses as specified in §74.27 of this chapter (relating to Innovative Courses and Programs);

(3) Junior Reserve Officer Training Corps (JROTC)--one to four credits; or

(4) Driver Education--one-half credit.

(h) College Board advanced placement and International Baccalaureate courses may be substituted for courses required in appropriate areas in all three high school graduation programs. College Board advanced placement and International Baccalaureate courses may be used as electives in all three high school graduation programs.

Comments

Source Note: The provisions of this §74.61 adopted to be effective September 1, 2005, 29 TexReg 9357; amended to be effective January 9, 2007, 32 TexReg 80; amended to be effective December 25, 2007, 32 TexReg 9624

§74.62: Minimum High School Program

(a) Credits. A student must earn at least 22 credits to complete the Minimum High School Program.

(b) Core Courses. A student must demonstrate proficiency in the following.

(1) English language arts--four credits. The credits must consist of:

(A) English I, II, and III (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II only for immigrant students with limited English proficiency); and

(B) Fourth credit of English, which may be satisfied by English IV, Research/Technical Writing, Creative/Imaginative Writing, Practical Writing Skills, Literary Genres, Business Communication, Journalism, or concurrent enrollment in a college English course.

(2) Mathematics--three credits to include Algebra I and Geometry.

(3) Science--two credits. The credits must consist of Biology and Integrated Physics and Chemistry (IPC). A student may substitute Chemistry or Physics for IPC and then must use the second of these two courses as the academic elective credit identified in subsection (b)(6) of this section.

(4) Social studies--two and one-half credits. The credits must consist of World History Studies (one credit) or World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit).

(5) Economics, with emphasis on the free enterprise system and its benefits--one-half credit. The credit must consist of Economics with Emphasis on the Free Enterprise System and Its Benefits.

(6) Academic elective--one credit. The credit must be selected from World History Studies, World Geography Studies, or any science course approved by the State Board of Education (SBOE) for science credit as found in Chapter 112 of this title (relating to Texas Essential Knowledge and Skills for Science). If a student elects to replace IPC with either Chemistry or Physics as described in subsection (b)(3) of this section, the academic elective must be the other of these two science courses.

(7) Physical education--one and one-half credits to include Foundations of Personal Fitness (one-half credit).

(A) A student may not earn more than two credits in physical education toward state graduation requirements.

(B) The school district board of trustees may allow a student to substitute certain physical activities for the required credits in physical education, including the Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Junior Reserve Officer Training Corps (JROTC); athletics; Dance I-IV; two- or three-credit career and technology work-based training courses, and off-campus physical education.

(C) In accordance with local district policy, a school district may award up to two credits for physical education for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. The district must apply to the commissioner of education for approval of such programs, which may be substituted for state graduation credit in physical education. Such approval may be granted under the following conditions:

(i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intensive, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education.

(ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day.

(8) Health education--one-half credit, which may be satisfied by Health 1 or Advanced Health, or Health Science Technology--one credit, which may be satisfied by Introduction to Health Science Technology, Health Science Technology I, or Health Science Technology II.

(9) Speech--one-half credit. The credit must consist of Communication Applications.

(10) Technology applications--one credit, which may be satisfied by:

(A) the following courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications): Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications;

(B) the following courses in Chapter 120 of this title (relating to the Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; or

(C) the following courses in Chapter 123 of this title (relating to the Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communications Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology.

(c) Elective Courses--five and one-half credits. The credits must be selected from the list of courses specified in §74.61(g) of this title (relating to High School Graduation Requirements).

Comments

Source Note: The provisions of this §74.62 adopted to be effective September 1, 2005, 29 TexReg 9357

§74.63: Recommended High School Program

(a) Credits. A student must earn at least 26 credits to complete the Recommended High School Program.

(b) Core Courses. A student must demonstrate proficiency in the following:

(1) English language arts--four credits. The credits must consist of English I, II, III, and IV (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II only for immigrant students with limited English proficiency).

(2) Mathematics--four credits.

(A) The credits must consist of Algebra I, Algebra II, and Geometry. After successful completion of Algebra I, Geometry, and Algebra II, a student may select the fourth required credit from any of the following courses, except as provided in subparagraph (B) of this paragraph:

(i) Precalculus;

(ii) Independent Study in Mathematics;

(iii) Advanced Placement (AP) Statistics;

(iv) AP Calculus AB;

(v) AP Calculus BC;

(vi) AP Computer Science;

(vii) International Baccalaureate (IB) Mathematical Studies Subsidiary Level;

(viii) IB Mathematical Methods Subsidiary Level;

(ix) IB Mathematics Higher Level;

(x) IB Advanced Mathematics Subsidiary Level;

(xi) concurrent enrollment in college mathematics courses; and

(xii) Mathematical Models with Applications.

(B) If selected, Mathematical Models with Applications must be taken prior to Algebra II.

(C) The SBOE may designate additional courses that meet the requirements of this paragraph.

(3) Science--four credits.

(A) One credit must be a biology credit (Biology, Advanced Placement (AP) Biology, or International Baccalaureate (IB) Biology). Students must choose two credits from the following areas. Not more than one credit may be chosen from each of the areas to satisfy this requirement.

(i) Integrated Physics and Chemistry (IPC);

(ii) Chemistry, AP Chemistry, or IB Chemistry; and

(iii) Physics, Principles of Technology I, AP Physics, or IB Physics.

(B) IPC cannot be taken as the final or fourth year of science, but must be taken before the senior year of high school. The fourth year of science may be selected from the laboratory-based courses listed in Chapter 112 of this title (relating to Texas Essential Knowledge and Skills for Science), with the addition of Engineering and Earth and Space Science.

(C) A student entering Grade 9 beginning with the 2012-2013 school year must take three science credits, at least one from each category, from the following areas:

(i) Biology, AP Biology, or IB Biology;

(ii) Chemistry, AP Chemistry, or IB Chemistry; and

(iii) Physics, Principles of Technology I, AP Physics, or IB Physics.

(D) The fourth year of science may be selected from the laboratory-based courses listed in Chapter 112 of this title (relating to Texas Essential Knowledge and Skills for Science), with the addition of Engineering and Earth and Space Science.

(E) The SBOE may designate additional courses that meet the requirements of this paragraph.

(4) Social studies--three and one-half credits. The credits must consist of World History Studies (one credit), World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit).

(5) Economics, with emphasis on the free enterprise system and its benefits--one-half credit. The credit must consist of Economics with Emphasis on the Free Enterprise System and Its Benefits.

(6) Languages other than English--two credits. The credits earned must be for any two levels in the same language.

(7) Physical education--one and one-half credits to include Foundations of Personal Fitness (one-half credit).

(A) A student may not earn more than two credits in physical education toward state graduation requirements.

(B) The school district board of trustees may allow a student to substitute certain physical activities for the required credits in physical education, including the Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Junior Reserve Officer Training Corps (JROTC); athletics; Dance I-IV; and two- or three-credit career and technology work-based training courses.

(C) In accordance with local district policy, a school district may award up to two credits for physical education for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. The district must apply to the commissioner of education for approval of such programs, which may be substituted for state graduation credit in physical education. Such approval may be granted under the following conditions.

(i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intensive, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education.

(ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day.

(8) Health education--one-half credit, which may satisfied by Health 1 or Advanced Health, or Health Science Technology--one credit, which may be satisfied by Introduction to Health Science Technology, Health Science Technology I, or Health Science Technology II.

(9) Speech--one-half credit. The credit must consist of Communication Applications.

(10) Technology applications--one credit, which may be satisfied by:

(A) the following courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications): Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications, or state-approved technology applications innovative courses;

(B) the following courses in Chapter 120 of this title (relating to the Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia;

(C) the following courses in Chapter 123 of this title (relating to the Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communications Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology; or

(D) the completion of three credits (for students participating in a coherent sequence of career and technology courses or who are enrolled in a Tech Prep high school plan of study) consisting of two or more state-approved career and technology courses in Chapters 119 - 125 and 127 of this title. Districts shall ensure that career and technology courses, including innovative courses, in a coherent sequence used to meet the technology applications credit are appropriate to collectively teach the knowledge and skills found in any of the approved courses listed in subparagraphs (A), (B), and (C) of this paragraph. Students pursuing the technology applications option described in this subparagraph must demonstrate proficiency in technology applications prior to the beginning of Grade 11.

(11) Fine arts--one credit, which may be satisfied by any course in Chapter 117, Subchapter C, of this title (relating to Texas Essential Knowledge and Skills for Fine Arts).

(c) Elective Courses--three and one-half credits. The credits may be selected from the list of courses specified in §74.61(g) of this title (relating to High School Graduation Requirements). All students who wish to complete the Recommended High School Program are encouraged to study each of the four foundation curriculum areas (English language arts, mathematics, science, and social studies) every year in high school.

(d) Substitutions. No substitutions are allowed in the Recommended High School Program, except as specified in this chapter.

Comments

Source Note: The provisions of this §74.63 adopted to be effective September 1, 2005, 29 TexReg 9357; amended to be effective January 9, 2007, 32 TexReg 80

§74.64: Distinguished Achievement High School Program--Advanced High School Program

(a) Credits. A student must earn at least 26 credits to complete the Distinguished Achievement High School Program.

(b) Core Courses. A student must demonstrate proficiency in the following:

(1) English language arts--four credits. The credits must consist of English I, II, III, and IV (English I for Speakers of Other Languages and English II for Speakers of Other Languages may be substituted for English I and II only for immigrant students with limited English proficiency).

(2) Mathematics--four credits. The credits must consist of Algebra I, Algebra II, and Geometry and an additional SBOE-approved mathematics course for which Algebra II is a prerequisite.

(3) Science--four credits. The credits must consist of a biology credit (Biology, Advanced Placement (AP) Biology, or International Baccalaureate (IB) Biology), a chemistry credit (Chemistry, AP Chemistry, or IB Chemistry), a physics credit (Physics, AP Physics, or IB Physics), and an additional approved laboratory-based science course. After successful completion of a biology course, a chemistry course, and a physics course, a student may select the fourth required credit from any of the following laboratory-based courses:

(A) Earth and Space Science;

(B) Environmental Systems;

(C) Aquatic Science;

(D) Astronomy;

(E) Anatomy and Physiology of Human Systems;

(F) AP Biology;

(G) IB Biology

(H) AP Chemistry;

(I) IB Chemistry;

(J) AP Physics;

(K) IB Physics;

(L) AP Environmental Science;

(M) IB Environmental Systems;

(N) Scientific Research and Design; and

(O) Engineering.

(4) Social studies--three and one-half credits. The credits must consist of World History Studies (one credit), World Geography Studies (one credit), United States History Studies Since Reconstruction (one credit), and United States Government (one-half credit).

(5) Economics, with emphasis on the free enterprise system and its benefits--one-half credit. The credit must consist of Economics with Emphasis on the Free Enterprise System and Its Benefits.

(6) Languages other than English--three credits. The credits earned must be for any three levels in the same language.

(7) Physical education--one and one-half credits to include Foundations of Personal Fitness (one-half credit).

(A) A student may not earn more than two credits in physical education toward state graduation requirements.

(B) The school district board of trustees may allow a student to substitute certain physical activities for the required credits in physical education, including the Foundations of Personal Fitness. The substitutions must be based on the physical activity involved in drill team, marching band, and cheerleading during the fall semester; Junior Reserve Officer Training Corps (JROTC); athletics; Dance I-IV; and two- or three-credit career and technology work-based training courses.

(C) In accordance with local district policy, a school district may award up to two credits for physical education for appropriate private or commercially-sponsored physical activity programs conducted on or off campus. The district must apply to the commissioner of education for approval of such programs, which may be substituted for state graduation credit in physical education. Such approval may be granted under the following conditions.

(i) Olympic-level participation and/or competition includes a minimum of 15 hours per week of highly intensive, professional, supervised training. The training facility, instructors, and the activities involved in the program must be certified by the superintendent to be of exceptional quality. Students qualifying and participating at this level may be dismissed from school one hour per day. Students dismissed may not miss any class other than physical education.

(ii) Private or commercially-sponsored physical activities include those certified by the superintendent to be of high quality and well supervised by appropriately trained instructors. Student participation of at least five hours per week must be required. Students certified to participate at this level may not be dismissed from any part of the regular school day.

(8) Health education--one-half credit, which may be satisfied by Health 1 or Advanced Health, or Health Science Technology--one credit, which may be satisfied by Introduction to Health Science Technology, Health Science Technology I, or Health Science Technology II.

(9) Speech--one-half credit. The credit must consist of Communication Applications.

(10) Technology applications--one credit, which may be satisfied by:

(A) the following courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications): Computer Science I, Computer Science II, Desktop Publishing, Digital Graphics/Animation, Multimedia, Video Technology, Web Mastering, or Independent Study in Technology Applications, or state-approved technology applications innovative courses;

(B) the following courses in Chapter 120 of this title (relating to the Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia;

(C) the following courses in Chapter 123 of this title (relating to the Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communications Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology; or

(D) the completion of three credits (for students participating in a coherent sequence of career and technology courses or who are enrolled in a Tech Prep high school plan of study) consisting of two or more state-approved career and technology courses in Chapters 119 - 125 and 127 of this title. Districts shall ensure that career and technology courses, including innovative courses, in a coherent sequence used to meet the technology applications credit are appropriate to collectively teach the knowledge and skills found in any of the approved courses listed in subparagraphs (A), (B), and (C) of this paragraph. Students pursuing the technology applications option described in this subparagraph must demonstrate proficiency in technology applications prior to the beginning of Grade 11.

(11) Fine arts--one credit, which may be satisfied by any course in Chapter 117, Subchapter C, of this title (relating to Texas Essential Knowledge and Skills for Fine Arts).

(c) Elective Courses--two and one-half credits. The credits may be selected from the list of courses specified in §74.61(g) of this title (relating to High School Graduation Requirements). All students who wish to complete the Distinguished Achievement High School Program are encouraged to study each of the four foundation curriculum areas (English language arts, mathematics, science, and social studies) every year in high school.

(d) Advanced measures. A student also must achieve any combination of four of the following advanced measures. Original research/projects may not be used for more than two of the four advanced measures. The measures must focus on demonstrated student performance at the college or professional level. Student performance on advanced measures must be assessed through an external review process. The student may choose from the following options:

(1) original research/project that is:

(A) judged by a panel of professionals in the field that is the focus of the project; or

(B) conducted under the direction of mentor(s) and reported to an appropriate audience; and

(C) related to the required curriculum set forth in §74.1 of this title (relating to Essential Knowledge and Skills);

(2) test data where a student receives:

(A) a score of three or above on the College Board advanced placement examination;

(B) a score of four or above on an International Baccalaureate examination; or

(C) a score on the Preliminary Scholastic Assessment Test (PSAT) that qualifies the student for recognition as a commended scholar or higher by the National Merit Scholarship Corporation, as part of the National Hispanic Scholar Program of the College Board or as part of the National Achievement Scholarship Program for Outstanding Negro Students of the National Merit Scholarship Corporation. The PSAT score shall count as only one advanced measure regardless of the number of honors received by the student; or

(3) college academic courses, advanced technical credit courses, and dual credit courses, including local articulation, with a grade of 3.0 or higher.

(e) Substitutions. No substitutions are allowed in the Distinguished Achievement High School Program, except as specified in this chapter.

Comments

Source Note: The provisions of this §74.64 adopted to be effective September 1, 2005, 29 TexReg 9357; amended to be effective January 9, 2007, 32 TexReg 80

Subchapter AA

§74.1001: College Readiness Vertical Team

(a) Purpose. In accordance with the Texas Education Code (TEC), §28.008, the purpose of a college readiness vertical team is to develop or establish standards and expectations designed to ensure that graduates of Texas high schools are able to perform college-level course work at institutions of higher education.

(b) Composition.

(1) The college readiness vertical team shall be comprised of four subject-specific vertical teams, one each to address English language arts, mathematics, science, and social studies.

(2) Each subject-specific vertical team shall be composed of a minimum of eight and a maximum of 20 members per team who represent:

(A) all levels of secondary public education;

(B) institutions of higher education;

(C) a balance between small and large districts;

(D) various geographic regions of the state; and

(E) the overall demographics of the state.

(3) A maximum of 60% of each subject-specific vertical team's membership shall be composed of faculty from institutions of higher education.

(4) Upon completion of the development of college readiness standards as required in the TEC, §28.008(b)(1), the subject-specific vertical teams shall be reconstituted to include a maximum of 60% secondary public education teachers employed full time in Texas public schools. The reconstituted teams shall complete duties as defined in the TEC, §28.008(b)(2) - (5).

(5) Representatives from each of the four subject-specific vertical teams shall form a leadership team for the purpose of alignment across English language arts, mathematics, science, and social studies.

(c) Appointment.

(1) The commissioner of education shall determine the criteria for selecting public education members for the college readiness vertical team.

(2) The commissioner of education shall solicit recommendations for possible appointees to the college readiness vertical team from the State Board of Education (SBOE), school districts, open-enrollment charter schools, the business community, and educational organizations in Texas. Recommendations may be accepted from any Texas resident. Nominations shall not be made by or accepted from any textbook publishers; authors; depositories; agents for textbook publishers, authors, or depositories; or any person who holds any official position with a textbook publisher, author, depository, or agent.

(3) The SBOE shall be notified of appointments made by the commissioner of education to the college readiness vertical team.

(4) Initial appointments to the college readiness vertical team shall be made no later than January 7, 2007, or as soon as practicable.

(5) Public education members of the college readiness vertical team may be removed or replaced at the discretion of the commissioner of education.

(d) Duties.

(1) The college readiness vertical team shall carry out the duties as defined in the TEC, §28.008(b).

(2) In accordance with the TEC, §28.008(f), the duties of the college readiness vertical team shall be concluded no later than September 1, 2011.

(3) Members of the subject-specific vertical teams may be required to be present at the SBOE meeting at which standards developed or established by the teams are presented or considered for approval.

Comments

Source Note: The provisions of this §74.1001 adopted to be effective January 7, 2007, 31 TexReg 10797

Chapter 75

Subchapter AA

§75.1001: Administration and Supervision

(a) To be approved, a driver education course must be part of the course offerings of a public school, college, or university. An education service center (ESC) may manage and provide driver education programs for public schools if the course is part of the course offerings of the public school.

(b) The superintendent, ESC director, and college or university chief school official must:

(1) certify that the course meets Texas Education Agency (TEA) and Texas Department of Public Safety (DPS) standards for an approved course in driver education for Texas schools;

(2) certify that all driver education personnel and substitutes are properly certified to teach driver education, meet applicable state requirements, and the requirements of this subchapter;

(3) not falsify driver education records or allow driver education personnel and substitutes to falsify records;

(4) certify that all driver education teachers and teaching assistants annually (July 1 to June 30) complete a minimum of six hours of continuing education. Carryover credit of continuing education hours shall not be permitted. Instructors shall not receive credit for the same course each year. An instructor that teaches a continuing education course or instructor development course may receive credit for attending continuing education;

(5) document that each driver education instructor and teaching assistant providing instruction at the school, upon employment and once every other year thereafter, has not accumulated ten or more penalty points in the past three-year period on a driving record evaluation. The school must use the standards for assessing penalty points for convictions of traffic law violations and accident involvements appearing on the instructor's current driving record established by the DPS that are the same as those used for Texas school bus drivers. Instructors that accumulated ten or more penalty points in a three-year period cannot conduct training in a driver education program until it is documented that the accumulated penalty is less than ten points;

(6) prohibit an instructor from giving instruction and prohibit a student from securing instruction in the classroom or in a motor vehicle if that instructor or student is using or exhibits any evidence or effect of an alcoholic beverage, controlled substance, drug, abusable glue, aerosol paint, or other volatile chemical as those terms are defined in the Alcohol Beverage Code and the Health and Safety Code;

(7) ensure that teachers and teaching assistants teach no more than eight hours of behind-the-wheel instruction per day;

(8) ensure that at least once each year that each driver education teaching assistant giving instruction is evaluated for quality by a supervising driver education teacher while providing actual instruction to students and that the evaluation is made part of the instructor's personnel file;

(9) provide each driver education instructor and administrator a copy of this subchapter; and

(10) conduct reviews on a periodic basis to assure that driver education programs and instructors are in compliance with all requirements specified for the programs and teachers and to ensure that training is being provided in a quality and ethical manner so as to promote respect for the purposes and objectives of driver training.

(c) The TEA and Texas Department of Public Safety may conduct on-site compliance surveys and complaint investigations.

Comments

Source Note: The provisions of this §75.1001 adopted to be effective January 1, 2000, 24 TexReg 11325; amended to be effective February 26, 2009, 34 TexReg 1236

§75.1002: Driver Education Teachers

(a) To qualify to teach all phases of driver education to teens or adults and add a driver education endorsement as a specialization area on his or her current Texas teaching certificate, an individual must:

(1) possess a Bachelor's degree;

(2) complete six semester hours of driver education classroom, in-car, simulation, and traffic safety instruction if the individual entered driver education teacher instructor development training before January 1, 1999, or for individuals entering driver education teacher instructor development training on or after January 1, 1999, complete nine semester hours of driver education classroom, in-car, simulation, and traffic safety instruction that include, as a minimum, learning activities that focus on preparing the prospective driver educator to conduct:

(A) driver education classroom knowledge courses with application to classroom organization; maintaining a learning environment; developing instructional modules for the classroom, observation, and simulator training; and facilitating learning experiences;

(B) learning activities which develop vehicle operational skills for a novice driver with emphasis placed on laboratory organization and administration; maintaining a learning environment; developing laboratory instructional modules; and conducting learning experiences; and

(C) driving task analysis that includes an introduction to the task of the driver within the highway transportation system with emphasis on risk perception and management and the decision-making process;

(3) possess a valid Texas teaching certificate as defined by the State Board for Educator Certification;

(4) possess a valid Texas driver's license for the type of vehicle used for instruction; and

(5) not have accumulated ten or more penalty points in the past three-year period on a driving record evaluation, using the standards for assessing penalty points for convictions of traffic law violations and accident involvements appearing on the instructor's current driving record established by the Texas Department of Public Safety (DPS) that are the same as those used for Texas school bus drivers. Instructors that accumulated ten or more penalty points in a three-year period cannot be issued an endorsement until it is documented that the accumulated penalty is less than ten points.

(b) A fully certified teacher of driver education may be designated by the superintendent, college or university chief school official, education service center (ESC) director, or their designee assigned to manage the driver education program as a supervising teacher. A school district, an ESC, or a college or university that uses teaching assistants must designate a minimum of one driver education supervising teacher to supervise, mentor, and evaluate teaching assistants.

(c) A student instructor may teach any practice teaching necessary for certification in the classroom phase of a driver education program under the direction and in the direct presence of a driver education teacher or supervising teacher or in accordance with the provisions of an approved alternative certification program. A student instructor may teach any practice teaching necessary for certification in the in-car phase of a driver education program under the direction and in the direct presence of a driver education teacher, supervising teacher or teaching assistant. The student instructor shall sign the student record for the training they instruct, and the driver education teacher, supervising teacher, or teaching assistant that observed the instruction shall co-sign.

(d) Driver education instructors and student instructors shall provide training in an ethical manner so as to promote respect for the purpose and objectives of a driver education program. A driver education instructor or student instructor shall not:

(1) make any sexual or obscene comments or gestures while performing the duties of an instructor or give instruction or allow a student to secure instruction in the classroom or in a motor vehicle if that instructor or student is using or exhibits any evidence or effect of an alcoholic beverage, controlled substance, drug, abusable glue, aerosol paint, or other volatile chemical as those terms are defined in the Alcohol Beverage Code and the Health and Safety Code;

(2) falsify driver education records; or

(3) accumulate ten or more penalty points in the past three-year period on a driving record, using the standards for assessing penalty points for convictions of traffic law violations and accident involvements appearing on the instructor's current driving record established by the DPS that are the same as those used for Texas school bus drivers. Instructors that accumulated ten or more penalty points in a three-year period cannot provide instruction until it is documented that the accumulated penalty is less than ten points.

(e) Driver education teachers and student instructors shall not teach more than eight hours of behind-the-wheel instruction per day.

Comments

Source Note: The provisions of this §75.1002 adopted to be effective January 1, 2000, 24 TexReg 11325; amended to be effective February 26, 2009, 34 TexReg 1236

§75.1003: Teaching Assistants

(a) An individual may be employed as a teaching assistant in a driver education program under the direction of a supervising driver education teacher after completing one of the following programs.

(1) Teaching assistant (full). An individual may be approved as a teaching assistant (full) to conduct behind-the-wheel, observation, multicar range, and simulator training instruction to teens or adults; to assist certified teachers in the classroom phase of driver education provided the instructor is present and in the room; and to serve as a temporary substitute instructor in the classroom phase of driver education for no more than 25% of a driver education classroom program by successfully completing:

(A) a program of study in driver education approved by the Texas Education Agency (TEA). Applications are available from the TEA that must be submitted and approved by TEA before the training program begins;

(B) nine semester hours of driver and traffic safety education from an approved university that are required for driver education teacher endorsement; or

(C) nine semester hours of driver and traffic safety education instructor training as outlined in Texas Education Code, Chapter 1001.

(2) Teaching assistant (in-car only). An individual may be approved as a teaching assistant (in-car only) to conduct only behind-the-wheel and observation training instruction to teens or adults by completing one of the following requirements:

(A) six of the nine semester hours of driver and traffic safety education required for driver education teacher certification that include learning activities that focus on preparing the prospective driver educator to conduct vehicle operational skills for a novice driver with emphasis placed on laboratory organization and administration, maintaining a learning environment, developing laboratory instructional modules, conducting learning experiences, driving task analysis that includes an introduction to the task of the driver within the highway transportation system with emphasis on risk perception and management and the decision-making process; and driver education behind-the-wheel, observation, and traffic safety instructor development, and

(B) six semester hours of driver and traffic safety education instructor training as outlined in Texas Education Code, Chapter 1001.

(b) The TEA shall conduct criminal record evaluations and issue certificates of completed training for teaching assistants.

(c) To be approved, a teaching assistant in driver education must have a high school diploma or equivalent, have been a licensed driver, excluding the instruction permit, for at least five years, possess a Texas driver's license valid for the type of vehicle used for instruction, and meet the driving record evaluation standards established by the Texas Department of Public Safety (DPS) for Texas school bus drivers.

(d) A teaching assistant may be trained by an approved university as described in subsection (a)(1)(B) of this section; or by a university, college, school district, or an education service center (ESC) as described in subsection (a)(1)(A) of this section. When the training is conducted by a college, school district, or an ESC, the program must be approved by TEA. A driver education school licensed under Texas Education Code, Chapter 1001, may train teaching assistants as described in subsection (a)(1)(C) or subsection (a)(2)(B) of this section.

(e) A school district, an ESC, or a college or university that uses teaching assistants must employ driver education supervising teachers to supervise, mentor, and evaluate the teaching assistants.

(f) A student instructor may teach any practice teaching necessary for certification in the in-car phase of a driver education program under the direction and in the direct presence of a driver education teacher, supervising teacher, or teaching assistant. The student teacher shall sign the student record for the training they instruct, and the driver education teacher, supervising teacher, or teaching assistant that observed the instruction shall co-sign.

(g) All teaching assistants (full or in-car only) and student instructors shall provide training in an ethical manner so as to promote respect for the purpose and objectives of a driver education program. A teaching assistant or student instructor shall not:

(1) make any sexual or obscene comments or gestures while performing the duties of an instructor or give instruction or allow a student to secure instruction in a motor vehicle if that instructor or student is using or exhibits any evidence or effect of an alcoholic beverage, controlled substance, drug, abusable glue, aerosol paint, or other volatile chemical as those terms are defined in the Alcohol Beverage Code and the Health and Safety Code;

(2) falsify driver education records; and

(3) accumulated ten or more penalty points in the past three-year period on a driving record, using the standards for assessing penalty points for convictions of traffic law violations and accident involvements appearing on the instructor's current driving record established by the Texas Department of Public Safety (DPS) that are the same as those used for Texas school bus drivers. Instructors that accumulated ten or more penalty points in a three-year period cannot provide instruction until it is documented that the accumulated penalty is less than ten points.

(h) All teaching assistants (full or in-car only) and student instructors shall not teach more than eight hours of behind-the-wheel instruction per day.

Comments

Source Note: The provisions of this §75.1003 adopted to be effective January 1, 2000, 24 TexReg 11325; amended to be effective February 26, 2009, 34 TexReg 1236

§75.1004: Classroom Instruction

(a) Teenage driver education students shall receive classroom instruction that is provided directly by a fully certified driver education instructor who is in the classroom and available to students during the entire hours of instruction, except that a maximum of 25% of the classroom phase may be provided by an approved teaching assistant (full) when a certified instructor is ill or not available.

(b) Instructors and substitutes shall not have other teaching assignments or administrative duties during the time the class is scheduled and students are present.

Comments

Source Note: The provisions of this §75.1004 adopted to be effective January 1, 2000, 24 TexReg 11325

§75.1005: Course Requirements

(a) To be approved under this subchapter, a driver education plan shall include one or more of the following course programs.

(1) Core program. This program shall consist of at least 32 hours of classroom instruction, seven hours of behind-the-wheel instruction, and seven hours of in-car observation. Under this plan, a student may receive only local credit for the course.

(2) In-car only program. This program shall consist of at least seven hours of behind-the-wheel instruction and seven hours of in-car observation. Under this plan, a student may receive only local credit for the course.

(3) Classroom only program. This program shall consist of at least 32 hours of classroom instruction. Under this plan, a student may receive only local credit for the course.

(4) School day credit program. This program shall consist of at least one class period per scheduled day of school, for a semester (traditional, condensed, accelerated, block, etc.), covering the driver education classroom and in-car program of organized instruction or only the classroom program of organized instruction. This class traditionally consists of at least 56 hours of driver education classroom instruction and, if in-car instruction is provided, must include seven hours of behind-the-wheel instruction and seven hours of in-car observation. Under this plan, a student may receive one-half unit of state credit toward graduation.

(5) Non-school day credit program. This program shall consist of at least 56 hours of driver education classroom instruction, and, if in-car instruction is provided, must include seven hours of behind-the-wheel instruction and seven hours of in-car observation. Under this plan, a student may receive one-half unit of state credit toward graduation.

(6) Multi-phase school day or non-school day credit program. This program shall consist of at least 40 hours of driver education classroom instruction, four hours of behind-the-wheel instruction, eight hours of in-car observation, and 12 hours of simulator instruction. Under this plan, a student may receive one-half unit of state credit toward graduation.

(b) The minimum requirements of the driver education program must be met regardless of how the course is scheduled. The following applies to all teenage driver education programs.

(1) Driver education programs may be scheduled in block or concurrent form.

(A) Block form is when the classroom phase is taught as a separate, complete unit before the in-car phase begins.

(B) Concurrent form is when the classroom and the in-car phases are taught simultaneously or on alternating days.

(2) Instruction may be scheduled any day of the week, during regular school hours, before or after school, and during the summer.

(3) Instruction shall not be scheduled before 5:00 a.m. or after 11:00 p.m. The superintendent, college or university chief school official, or education service center (ESC) director may approve exceptions to the scheduled hours of instruction and must include acceptance in writing of the exception by the parents or legal guardians for each of the students involved.

(4) The driver education classroom phase must have uniform beginning and ending dates. Students shall proceed in a uniform sequence. Students shall be enrolled and in class before the seventh hour of classroom instruction in a 32-hour program and the twelfth hour of classroom instruction in 56-hour or semester-length programs.

(5) Self-study assignments occurring during regularly scheduled class periods shall not exceed 25% of the course and shall be presented to the entire class simultaneously.

(6) The driver education course shall be completed within the timelines established by the superintendent, college or university chief school official, or ESC director. This shall not circumvent attendance or progress. Variances to the established timelines shall be determined by the superintendent, college or university chief school official, or ESC director and must be agreed to by the parent or legal guardian.

(7) Schools are allowed five minutes of break within each instructional hour in all phases of instruction. A break is an interruption in a course of instruction occurring after the lesson introduction and before the lesson summation. It is recommended that the five minutes of break be provided outside the time devoted to behind-the-wheel instruction so students receive a total of seven hours of instruction.

(8) A student shall not receive credit for more than four hours of driver education training in one calendar day no matter what combination of training is provided, excluding makeup. Further, for each calendar day, a student shall be limited to a maximum of:

(A) two hours of classroom instruction;

(B) four hours of observation time;

(C) two hours of multicar range driving;

(D) three hours of simulation instruction; and

(E) one hour of behind-the-wheel instruction.

(c) Course content, minimum instruction requirements, and administrative guidelines for each phase of driver education classroom instruction, in-car training (behind-the-wheel and observation), simulation, and multicar range shall include the instructional objectives established by the commissioner of education, as specified in this subsection, and meet the requirements of this subchapter. Sample instructional modules may be obtained from the Texas Education Agency (TEA). Schools may use sample instructional modules developed by the TEA or develop their own instructional modules based on the approved instructional objectives. The instructional objectives are organized into the modules outlined in this subsection and include objectives for classroom and in-car training (behind-the-wheel and observation), simulation lessons, parental involvement activities, and evaluation techniques. In addition, the instructional objectives include information relating to litter prevention, anatomical gifts, and alcohol awareness and the effect of alcohol on the effective operation of a motor vehicle that must be provided to every student enrolled in a teenage driver education course. A student may apply to the Texas Department of Public Safety (DPS) for an instruction permit after completing six hours of instruction as specified in Module One if the student is taking the course in a concurrent program. The teenage driver education program instructional objectives shall include:

(1) Module One: Traffic Laws. The student legally and responsibly performs reduced-risk driving practices in the Highway Transportation System (HTS) by:

(A) accepting driving as a privilege with responsibilities, obligations, and potential consequences; and

(B) applying knowledge and understanding of Texas traffic laws, including traffic control devices and right-of-way laws.

(2) Module Two: Driver Preparation. The student legally and responsibly performs reduced-risk driving practices in the HTS by:

(A) employing pre-drive tasks;

(B) using and requiring passengers to use occupant protection and restraint systems;

(C) using vehicle symbols and devices;

(D) employing starting tasks;

(E) performing vehicle operation and control tasks;

(F) employing post-drive tasks;

(G) using baseline and progress assessment tools to evaluate and improve behind-the-wheel skill level; and

(H) formulating a driving plan.

(3) Module Three: Vehicle Movements. The student legally and responsibly performs reduced-risk driving practices in the HTS by:

(A) sustaining visual attention and communication;

(B) using reference points;

(C) managing vehicle balance: and

(D) executing vehicle maneuvers.

(4) Module Four: Driver Readiness. The student legally and responsibly performs reduced-risk driving practices in the HTS by:

(A) employing legal and responsible driving practices; and

(B) limiting and managing fatigue and aggressive driving.

(5) Module Five: Risk Reduction. The student legally and responsibly performs reduced-risk driving practices in the HTS by:

(A) predicting, analyzing, and minimizing risk factors; and

(B) employing a space management system.

(6) Module Six: Environmental Factors. The student legally and responsibly performs reduced-risk driving practices in the HTS by:

(A) identifying and analyzing driving environments; and

(B) minimizing environmental risk.

(7) Module Seven: Distractions. The student legally and responsibly performs reduced-risk driving practices in the HTS by limiting and managing distractions and multi-task performances.

(8) Module Eight: Alcohol and Other Drugs. The student legally and responsibly performs reduced-risk driving practices in the HTS by adopting zero-tolerance practices related to the use of alcohol and other drugs by applying knowledge and understanding of alcohol and other drug laws, regulations, penalties, and consequences to licensing, driving, and lifestyles.

(9) Module Nine: Adverse Conditions. The student legally and responsibly performs reduced-risk driving practices in the HTS by managing adverse conditions resulting from weather, reduced-visibility, traction loss, and emergencies.

(10) Module Ten: Vehicle Requirements. The student legally and responsibly performs reduced-risk driving practices in the HTS by:

(A) assessing and managing vehicle malfunctions;

(B) performing preventative maintenance; and

(C) planning trips.

(11) Module Eleven: Consumer Responsibilities. The student legally and responsibly performs reduced-risk driving practices in the HTS by attending to the vehicle requirements by making wise consumer decisions regarding vehicle use and ownership, vehicle insurance, environmental protection and litter prevention, and anatomical gifts.

(12) Module Twelve: Personal Responsibilities. The student legally and responsibly performs reduced-risk driving practices in the HTS by:

(A) using the knowledge, skills, and experiences of the Driver Education and Traffic Safety Program;

(B) obtaining and using a driver license; and

(C) continuing the lifelong learning process of reduced-risk driving practices.

(d) A school may use multimedia systems, simulators, and multicar driving ranges for instruction in a driver education program.

(e) Each simulator, including the filmed instructional programs, and each plan for a multicar driving range must meet state specifications developed by the DPS and TEA. Simulators are electromechanical equipment that provides for teacher evaluation of perceptual, judgmental, and decision-making performance of individuals and groups. With simulation, group learning experiences permit students to operate vehicular controls in response to audiovisual depiction of traffic environments and driving emergencies. The specifications are available from TEA.

(f) A minimum of four periods of at least 55 minutes per hour of instruction in a simulator may be substituted for one hour of behind-the-wheel and one hour observation instruction. A minimum of two periods of at least 55 minutes per hour of multicar driving range instruction may be substituted for one hour of behind-the-wheel and one hour observation instruction relating to elementary or city driving lessons. However, a minimum of four hours must be devoted to behind-the-wheel instruction and a minimum of four hours must be devoted to observation instruction.

(g) A school may not permit more than 36 students per driver education class, excluding make-up students.

(h) All behind-the-wheel lessons shall consist of actual driving instruction. Observation of the instructor, mechanical demonstrations, etc., shall not be counted for behind-the-wheel instruction. The instructor shall be in the vehicle with the student the entire time behind-the-wheel instruction is provided.

(i) Teenage driver education programs shall include the following components.

(1) Driver education instruction is limited to eligible students between the ages of 14-18 years of age, who are at least 14 years of age when the driver education classroom phase begins and who will be 15 years of age or older when the behind-the-wheel instruction begins. Students officially enrolled in school who are 18-21 years of age may attend a teenage driver education program.

(2) Motion picture films, slides, videos, tape recordings, and other media that present concepts outlined in the instructional objectives may be used as part of the required instructional hours of the classroom instruction. Units scheduled to be instructed may also be conducted by guest speakers as part of the required hours of instruction. Together, these shall not exceed 640 minutes of the total classroom phase.

(3) Each classroom student shall be provided a driver education textbook currently adopted by the State Board of Education.

(4) A copy of the current edition of the "Texas Driver Handbook" published by DPS, shall be furnished to each student enrolled in the classroom phase of the driver education course.

(5) No school should permit a ratio of less than two, or more than four, students per instructor for behind-the-wheel instruction, except behind-the-wheel instruction may be provided for only one student when it is not practical to instruct more than one student, for make-up lessons, or if a hardship would result if scheduled instruction is not provided. In each case when only one student is instructed:

(A) the school shall obtain a waiver signed and dated by the parent or legal guardian of the student and the chief school official stating that the parent or legal guardian understands that the student may be provided behind-the-wheel instruction on a one-on-one basis with only the instructor and student present in the vehicle during instruction;

(B) the waiver may be provided for any number of lessons; however, the waiver shall specify the exact number of lessons for which the parent is providing the waiver; and

(C) the waiver shall be signed before the first lesson in which the parent is granting permission for the student to receive one-on-one instruction.

(j) Courses offered to adult persons who are 18 years of age or older shall only be offered by colleges and universities. Colleges and universities that offer driver education to adults shall submit and receive written approval for the course from the TEA prior to implementation of the program. The request for approval must include a syllabus, list of instructors, samples of instructional records that will be used with the course, and information necessary for approval of the program.

§75.1006: Driver Licensing

(a) Students without a valid driver's license or instruction permit in his or her possession shall not receive behind-the-wheel instruction. The instructor must ensure that every student receiving behind-the-wheel instruction has a valid driver's license or instruction permit in his or her possession during all behind-the- wheel instruction.

(b) The student shall present a properly executed DE-964E to any Texas Department of Public Safety (DPS) driver's license office to apply for a driver's license or instruction permit.

(c) As soon as possible after a student receives an instruction permit or license from the DPS, the instructor must record the license number on the student's individual record.

(d) Under the block and concurrent programs a student may apply to the DPS for an instruction permit after completing all of the required classroom instruction or after completing six hours of classroom instruction devoted to the instructional objectives of classroom instruction designated by the commissioner of education found in Module One: Texas Driver Responsibilities - Knowing Texas Traffic Laws, as identified in §75.1005 of this title (Course Requirements).

(e) A licensee shall not apply to DPS to have the restriction removed from the instruction permit until the licensee is 16 years of age or older and presents a DE-964E certificate showing that he or she completed an approved driver education program. In this case, the approved program must include, as a minimum, 32 hours of classroom instruction, seven hours of behind-the-wheel instruction, and seven hours of observation. A licensee age of 18 or older is not required to complete a driver education program to apply.

(f) The DPS may revoke the student's instruction permit when the student does not complete the classroom phase no matter which plan was followed or how the program was scheduled. The instructor or superintendent, college or university chief school official, or education service center director shall complete DPS Form DL-42 and provide it to the DPS division responsible for license and driver records within a period of time determined by the school, when the student does not complete the classroom.

Comments

Source Note: The provisions of this §75.1006 adopted to be effective January 1, 2000, 24 TexReg 11325

§75.1007: Verification of School Enrollment and Attendance for Issuance of a Driver License

(a) School enrollment and attendance as a condition of licensing a student to operate a motor vehicle applies to persons under 18 years of age, unless a high school diploma or its equivalent has been obtained.

(b) The Texas Education Agency (TEA) is responsible for the development of the verification of attendance and enrollment (VOE) forms pursuant to Texas Transportation Code, §521.003. Schools may develop their own VOE form provided they incorporate as a minimum the information contained on the TEA form.

(c) Original signatures must appear on all completed VOE forms. The name of the student must be typed or printed on the form upon issuance. The VOE form does not have to be signed by the student in the presence of the person certifying attendance. The Texas Department of Public Safety (DPS) may accept properly executed copies of the VOE form faxed directly to DPS by a school. The signature of the student can be affixed to the form before or after it is faxed to DPS.

(d) The expiration date of the VOE form shall be determined upon issuance by the school. If a specified issuance date is omitted, the form will expire 30 days from execution.

(e) The VOE document is a government record as defined under Texas Penal Code, §37.01(2). Any misrepresentation by the applicant or person issuing the form may result in denial of an application for a Texas driver's license and/or criminal prosecution.

Comments

Source Note: The provisions of this §75.1007 adopted to be effective January 1, 2000, 24 TexReg 11325

§75.1008: Progress

(a) Appropriate standards shall be implemented to ascertain the progress of teenage driver education students.

(b) Progress standards shall meet the requirements of the instructional objectives of the program of organized instruction outlined in this subchapter for driver education.

(c) Each school shall establish a procedure to ensure that each student demonstrates an acceptable level of mastery of the instructional objectives for driver education. Mastery is not related to passing the Texas Department of Public Safety (DPS) driver's license test. Successful completion and mastery is a prerequisite to awarding a grade of 70% or above. The instructors must certify that each student successfully mastered the course content before the student is awarded successful completion of a driver education program.

(d) One or more of the following methods and any methods implemented by the school shall determine evidence of successful completion, and mastery shall be utilized:

(1) unit tests;

(2) written assignments;

(3) skills performance checklists; and

(4) comprehensive examinations of knowledge and skills.

(e) The progress and mastery evaluation record shall be of the type and nature to reflect whether the student is making satisfactory progress to the point of being able to successfully complete all subject matter within the allotted time provided in the currently approved course of organized instruction for driver education.

(f) The school should provide parents and legal guardians with evaluations of the student progress and recommend parental involvement techniques to enhance the driver education training.

Comments

Source Note: The provisions of this §75.1008 adopted to be effective January 1, 2000, 24 TexReg 11325

§75.1009: Attendance, Makeup, and Conduct Policy

(a) Appropriate standards, which include positive records of student attendance, shall be implemented to ascertain the attendance of the students.

(b) A student must make up any time missed during the approved program of organized instruction. The make- up policy shall be developed by the school and shall ensure that all required hours of instruction and course content are completed. Students shall not be allowed to make up missed lessons in a scheduled classroom session unless the lesson missed is being taught. Make-up lessons can be provided on an individual basis. All make-up lessons for classroom must be organized by a driver education teacher.

(c) A student may receive credit for previous training if the student reenters and completes the applicable portion of the course within the timeline specified by a policy established by the school.

(d) The school shall establish policies pertaining to conduct that include conditions for dismissal and conditions for reentry of those students dismissed for violating the conduct policy.

Comments

Source Note: The provisions of this §75.1009 adopted to be effective January 1, 2000, 24 TexReg 11325

§75.1010: Motor Vehicles

(a) All motor vehicles, including motor vehicles for students with disabilities or special needs, that are used to demonstrate or practice driving lessons shall:

(1) be equipped with dual control brake pedals so that there is a foot brake located within easy reach of the instructor that is capable of bringing the vehicle to a stop and otherwise be equipped in accordance with Texas motor vehicle laws;

(2) be equipped with safety belts, and all occupants in the driver education vehicle must be properly secured in a safety belt at all times;

(3) be properly registered in compliance with the motor vehicle registration laws of Texas and bear a current motor vehicle inspection certificate;

(4) be insured according to the insurance laws of Texas (including, specifically, for use as a driver education vehicle);

(5) be equipped with an extra inside rearview mirror on the instructor's side and an outside rearview mirror on both sides (a visor mirror shall not substitute for the instructor's inside rearview mirror);

(6) be maintained in safe mechanical and physical condition at all times; and

(7) if the student is a student with disabilities, be equipped with all applicable mechanical devices and/or other modifications or accommodations determined to be necessary and appropriate based on evaluation data.

(b) All occupants must be seated in forward-facing seats in the vehicle that are in compliance with seatbelt capacities. Only one student and one instructor shall be seated in the front seat.

Comments

Source Note: The provisions of this §75.1010 adopted to be effective January 1, 2000, 24 TexReg 11325

§75.1011: Driver Education Course Records

(a) A written record of instruction and observation time in minutes or hours shall be maintained by the school district, education service center, or college or university for a minimum of seven years for each driver education student who received instruction to include students who withdrew or were terminated. The record shall be made available to officials of the Texas Education Agency (TEA) or the Texas Department of Public Safety upon request.

(b) The entries on the individual student record form shall be made in ink and updated for each lesson.

(c) Sample forms provided by TEA may be used or appropriate forms may be developed by the school, provided they incorporate at least the following information:

(1) name and classroom address of the school;

(2) name, full address, telephone number of the student, and date of birth;

(3) type and number of license held by the student, including the expiration date;

(4) DE-964E control number;

(5) month, day, and year that the student is present, absent, participating in makeup, terminated, withdrawn, or transferred, etc.;

(6) title of each unit and lesson of classroom and in-car instruction;

(7) grade earned for each unit or lesson;

(8) length of instruction in minutes and hours for each classroom, simulator, behind-the-wheel, and observation lesson;

(9) initials next to each classroom session and in-car lesson entry by the instructor, and student instructor, if applicable;

(10) beginning and ending dates of each phase of instruction; and

(11) statement of assurance signed by the student and instructor certifying that the individual student record is true and correct.

Comments

Source Note: The provisions of this §75.1011 adopted to be effective January 1, 2000, 24 TexReg 11325

§75.1012: Fees and Tuition

(a) A school district or the education service center (ESC) may collect fees for driver education in accordance with Texas Education Code, §11.158. Each fiscal transaction for driver education must be handled through the district's regular accounting procedures as required in §109.41 of this title (relating to Financial Accountability System Resource Guide).

(b) Individuals, instructors, or non-approved entities shall not receive fees or tuition for driver education directly.

(c) Colleges and universities may collect tuition for driver education in accordance with the Texas Education Code, Chapter 54.

(d) Fees and tuition for a driver training course shall not exceed the actual cost per student in the program for the current school year.

(e) The public school, ESC, and college or university may withhold a DE-964E form, records, and instruction from a student for non-payment of fees or tuition.

(f) The Texas Education Agency may require the public school, ESC, and college or university to refund the driver education course fees and tuition for any violation of this subchapter or for an infraction that would conclusively establish the course as inadequate.

Comments

Source Note: The provisions of this §75.1012 adopted to be effective January 1, 2000, 24 TexReg 11325

§75.1013: Control of Standards and Signatures

(a) A school, education service center (ESC), college or university may have their approval to conduct a program suspended or revoked if any of the following occur in the driver education course. In addition, the endorsement of a teacher or the permit of a teaching assistant to teach driver education may be suspended or revoked for any of the following:

(1) signing a driver education certificate (Form DE-964E) when the certified driver education teacher did not personally instruct the student or personally verify records and instruction to determine that the student received adequate instruction according to this subchapter;

(2) signing a DE-964E certificate when the certified supervising driver education teacher did not supervise the teaching assistants or student instructors who aided in the instruction of the student during the course described on the certificate;

(3) signing a DE-964E certificate for instruction given during a period of certificate suspension;

(4) providing instruction when a driver education instructor and teaching assistant has accumulated ten or more penalty points in the past three-year period on a driving record evaluation. The school must use the standards for assessing penalty points for convictions of traffic law violations and accident involvements appearing on the instructor's current driving record established by the Texas Department of Public Safety (DPS) that are the same as those used for Texas school bus drivers. Instructors that accumulated ten or more penalty points in a three-year period cannot conduct training in a driver education school until it is documented that the accumulated penalty is less than ten points;

(5) falsifying any record;

(6) permitting an unlicensed student to practice behind-the-wheel driving lessons on a public roadway;

(7) securing or aiding in securing illegal notarization of an application for an operator's license; or

(8) violating any section of this subchapter, or any other violation of law or the standards of the driver education program that, in the opinion of the commissioner of education, warrants suspension or revocation.

(b) The period of any suspension shall be at least one summer or one semester of a school year.

(c) When the endorsement of a driver education teacher or the permit of a teaching assistant is suspended or revoked, or when other action is taken, the Texas Education Agency (TEA) shall notify the DPS in writing, giving the full name of the teacher, his or her certificate number, the action taken, and the expiration date of any suspension. The DPS shall transmit this information to the appropriate driver license and safety education service field representative.

(d) A school district, an ESC, or a college or university may lose its authority to conduct an approved driver education course if the administration fails to provide supervision to prevent violation of the law or the standards of the driver education program.

(e) Based on information it receives directly, TEA may determine that evidence of a violation of the standards exists that may establish a course as inadequate or provide cause for suspending or revoking an instructor's driver education endorsement. The DPS may take the following steps to help enforce standards.

(1) Representatives of DPS may not accept a student for a driver's license examination when they have conclusive evidence of any violation of standards that may establish the course in which the student was enrolled as inadequate. Examples of such violations are:

(A) when fewer than the required number of hours of instruction have been given; or

(B) when the instructor of the course has not been properly certified.

(2) If, after accepting an application, DPS receives conclusive evidence that the course was inadequate, the license may not be issued. In such a case, DPS shall notify the student, TEA, and the chief administrator of the organization that initiated the application. If evidence of the violation is received after the license has been issued, the license may be revoked. When school officials discover a license has been erroneously issued and may be revoked under this paragraph, an authorized representative of the school shall submit to DPS, upon request, a completed Form DL-42 for each student enrolled in the course.

(3) An application may not be rejected and a license shall not be denied for a violation of standards that does not establish the course as inadequate. However, DPS may help TEA and the schools enforce the standards by consulting with school officials as requested or as may be deemed appropriate concerning other violations.

(4) When a DPS representative obtains conclusive evidence that a certified driver education instructor or state-approved teaching assistant may be subject to suspension or revocation under this section, the representative shall report the evidence in writing through proper channels to the director of DPS. The representative shall include the names of sources of information and attach copies of any documents that might help TEA enforce the standards. The director of DPS may notify the commissioner of education. The TEA shall then investigate the report. When a report from DPS concerning the standards results in a hearing before the commissioner of education, a DPS representative may be requested to be present.

Comments

Source Note: The provisions of this §75.1013 adopted to be effective January 1, 2000, 24 TexReg 11325

§75.1014: Procedures for Student Certification and Transfers

(a) The Texas Education Agency (TEA) shall be responsible for providing the driver education certificate (Form DE-964E) to public schools, education service centers (ESCs), and colleges or universities exempt from the Texas Driver and Traffic Safety Education Act. The TEA shall also provide the DE-964E certificate to the Texas Department of Public Safety (DPS) for driver education programs approved by DPS. On this form, the driver education instructor and the superintendent, college or university chief school official, ESC director, DPS director, or their designee must certify that the driver education course was conducted according to TEA and DPS education standards for an approved course in driver education for Texas schools.

(1) For schools exempt from the Texas Driver and Traffic Safety Education Act and programs approved by DPS, the DE-964E certificate shall consist of five parts to be designated as follows: Texas Department of Public Safety Copies (Instruction Permit and Driver's License), Insurance Copy, Texas Education Agency Copy, and School Copy. The DE-964E certificate is used to certify completion of an approved driver education course and is a government record.

(2) The TEA shall charge a fee of $2.00 for each DE-964E certificate provided.

(3) The DE-964E certificates shall be issued to the superintendent, college or university chief school official, ESC director, or individuals designated by the superintendent, college or university chief school official, or ESC director to be responsible for managing the certificates for the school. This does not remove the superintendent, college or university chief school official, or ESC director from obligations pursuant to this subchapter to oversee the program. The DPS shall be responsible for the DE-964E certificates provided to DPS-approved driver education programs.

(4) Unused DE-964Es shall not be transferred to another school without written approval by TEA.

(5) The DE-964E document is a government record as defined under Texas Penal Code, §37.01(2). Any misrepresentation by the applicant or person issuing the form as to the prerequisite set forth may result in suspension or revocation of instructor credentials or program approval and/or criminal prosecution.

(6) The superintendent, college or university chief school official, ESC director, or their designee may request to receive serially numbered DE-964E certificates for exempt schools and programs approved by DPS by submitting a completed order on the form provided by the commissioner of education stating the number of certificates to be purchased and including payment of all appropriate fees. TEA will accept purchase requisitions from school districts.

(7) The superintendent, college or university chief school official, ESC director, or their designee shall be responsible for accounting for each DE-964E certificate he or she has been issued. All DE-964E certificates and records of certificates shall be maintained in an orderly fashion.

(8) The DPS shall accept only the original signature of a certified driver education teacher. The signature of the chief school official or ESC director may be written, stamped, or omitted.

(9) All DE-964E certificates and records of certificates must be provided to TEA or DPS upon request. The superintendent, college or university chief school official, ESC director, or their designee shall maintain the school copies of the certificates and submit the TEA copies of all issued certificates to TEA no later than February 15, June 15, and September 15 of each year. The chief school official, ESC or DPS director, or their designee shall return unissued DE-964E certificates to TEA within 30 days from the date the school discontinues the driver education program, unless otherwise notified.

(10) Each superintendent, college or university chief school official, ESC director, or their designee shall ensure that the policies concerning DE-964E certificates are followed by all individuals who have responsibility for the certificates.

(11) The superintendent, college or university chief school official, ESC director, or their designee shall maintain effective protective measures to ensure that unissued DE-964E certificates and records of certificates are secure.

(12) The superintendent, college or university chief school official, ESC director, or their designee shall report any incident of unaccounted DE-964E certificates to TEA immediately upon discovering the incident. If such an incident occurs, the superintendent, college or university chief school official, ESC director, or their designee shall conduct an investigation to determine the circumstances of the unaccounted certificates. A report of the findings of the investigation, including measures taken to prevent the incident from recurring, shall be submitted to TEA within 30 days of the discovery.

(13) The superintendent, college or university chief school official, or ESC director must insure that employees complete, issue, or validate a DE-964E only to a person who has successfully completed the entire portion of the course for which the DE-964E is being used. The DPS must insure that the participants of the home taught driver education programs complete, issue, or validate a DE-964E only to a person who has successfully completed the entire portion of the course for which the DE-964E is being used. Issuance of the DE-964E is the assurance that the student has successfully achieved mastery of the course objectives.

(14) The right to receive DE-964E certificates may be immediately suspended for a period determined by TEA if:

(A) a TEA investigation is in progress and TEA has reasonable cause to believe the certificates have been misused or abused or that adequate security was not provided; or

(B) the superintendent, college or university chief school official, ESC director, or their designee fails to provide information on records requested by TEA or DPS within the allotted time.

(15) The DPS copy of a DE-964E certificate must contain the original signature of the certified instructor. The name of the superintendent, college or university chief school official, ESC director, or their designee may be written, stamped, typed, or omitted.

(16) The superintendent, college or university chief school official, ESC director, or their designee may issue a duplicate DE-964E certificate to a student who completed a course under the responsibility of the superintendent, college or university chief school official, ESC director, or their designee. The duplicate shall indicate the control number of the original DE-964E certificate.

(b) An authorized DPS employee shall accept a DE-964E certificate when a certified driver education instructor certifies by signing the DE-964E that the driver education program was completed according to this subchapter and that the student has achieved the competencies specified in this subchapter. The school official shall make a copy of the teacher's certificate for driver education available to authorized TEA or DPS representatives when requested.

(c) The superintendent, college or university chief school official, or ESC director may designate one certified driver education teacher to sign the DE-964E certificates for that school. In a concurrent program, only one teacher shall be required to sign a DE-964E certificate, but each teacher giving instruction in the concurrent program must be a fully certified driver education teacher or state-approved teaching assistant and must initial for each lesson they instruct. In each case, the teacher signing the DE-964E certificate must compile all records and verify the student's successful completion.

(d) TEA shall accept any part of the driver education instruction received by a student in another state; however, the student must complete all of the course requirements for a Texas driver education program. Driver education instruction completed in another state must be certified in writing by the chief official or course instructor of the school where the instruction was given and include the hours and minutes of instruction and a complete description of each lesson provided. The certification document must be attached to the student's individual record at the Texas school and be maintained with the record for seven years.

(e) Students who are licensed in another state and have completed that state's driver education program should contact the DPS for information on the licensing reciprocal agreement between that state and Texas.

(f) When it is impossible or inconvenient for the certified driver education instructor to sign the DE-964E (due to transfer, illness, or death, etc.), the superintendent, college or university chief school official, ESC director, or their designee may, by completing the driver education affidavit form on the reverse side of the DE-964E certificate, certify that official records show a particular student completed an approved driver education course as indicated on the DE-964E.

(g) All records of instruction shall be included as part of the student's final history when it is necessary to compile multiple records to verify that a student successfully completed a driver education course.

(h) A student may receive credit for course hours completed if there was a violation of this subchapter or before a teacher's endorsement was suspended provided the violation or suspension was not for an infraction that would conclusively establish the course as inadequate.

Comments

Source Note: The provisions of this §75.1014 adopted to be effective January 1, 2000, 24 TexReg 11325

Subchapter BB

§75.1021: Applicability

The provisions of this subchapter apply only to school districts receiving federal career and technical education funds.

Comments

Source Note: The provisions of this §75.1021 adopted to be effective May 29, 1996, 21 TexReg 4329; amended to be effective June 7, 2010, 35 TexReg 4699

§75.1022: General Provisions

(a) As specified in the Texas Education Code, §29.182, career and technical education is established as an integral part of the total education system and constitutes an option for student learning that provides a rigorous course of study that:

(1) incorporates competencies leading to academic and technical skill attainment;

(2) leads to an industry-recognized license, credential, or certificate or, at the postsecondary level, an associate or baccalaureate degree;

(3) includes opportunities for students to earn college credit for coursework; and

(4) includes, as an integral part of the program, participation by students and teachers in activities of career and technical student organizations supported by the Texas Education Agency (TEA) and State Board of Education.

(b) The state shall distribute federal funds available under the Carl D. Perkins Career and Technical Education Improvement Act of 2006, Public Law 109-270 (Carl D. Perkins Act of 2006), to eligible institutions.

(c) An eligible secondary entity seeking financial assistance under the Carl D. Perkins Act of 2006 shall submit a local plan to the TEA as described in 20 United States Code (USC), §2354, in accordance with requirements established by the TEA.

(d) Each eligible recipient that receives funding under the Carl D. Perkins Act of 2006 shall use the funds to improve career and technical education programs in compliance with 20 USC, §2355.

Comments

Source Note: The provisions of this §75.1022 adopted to be effective May 29, 1996, 21 TexReg 4329; amended to be effective December 26, 1999, 24 TexReg 11325; amended to be effective June 7, 2010, 35 TexReg 4699

§75.1023: Provisions for Individuals Who Are Members of Special Populations

(a) An individual who is a member of a special population as defined in 20 United States Code (USC), §2302(29), shall be provided career and technical education in accordance with all applicable federal law and regulations, state statutes, and rules of the State Board of Education (SBOE) and commissioner of education.

(b) A student with a disability shall be provided career and technical education in accordance with the provisions of the Individuals with Disabilities Education Improvement Act (IDEA) of 2004, 20 USC §§1400-1491o, and implementing regulations, state statutes, and rules of the SBOE and commissioner of education relating to services to students with disabilities.

(c) A student with a disability shall be instructed in accordance with the student's individualized education program (IEP) in the least restrictive environment, as determined by the admission, review, and dismissal (ARD) committee. If a student is unable to receive a free appropriate public education (educational benefit) in a regular career and technical education program, using supplementary aids and services, the student may be served in separate programs designed to address the student's occupational/training needs, such as career and technical education for students with disabilities (CTED) programs.

(d) A student with a disability identified in accordance with provisions of Public Law 105-302 and the IDEA of 2004, 20 USC §§1400-1491o, is an eligible participant in career and technical education when the requirements of this subsection are met.

(1) The ARD committee shall include a representative from career and technical education, preferably the teacher, when considering initial or continued placement of a student in a career and technical education program.

(2) Planning for students with disabilities shall be coordinated among career and technical education, special education, and state rehabilitation agencies and should include a coherent sequence of courses.

(3) A school district shall monitor to determine if the instruction being provided students with disabilities in career and technical education classes is consistent with the IEP developed for a student.

(4) A school district shall provide supplementary services that each student with a disability needs to successfully complete a career and technical education program, such as curriculum modification, equipment modification, classroom modification, supportive personnel, and instructional aids and devices.

(5) A school district shall help fulfill the transitional service requirements of the IDEA of 2004, 20 USC §§1400-1491o, and implementing regulations, state statutes, and rules of the commissioner of education for each student with a disability who is completing a coherent sequence of career and technical education courses.

(6) When determining placement in a career and technical education classroom, the ARD committee shall consider a student's graduation plan, the content of the individual transition plan and the IEP, and classroom supports. Enrollment numbers should not create a harmful effect on student learning for a student with or without disabilities in accordance with the provisions in the IDEA of 2004, 20 USC §§1400-1491o, and its implementing regulations.

Comments

Source Note: The provisions of this §75.1023 adopted to be effective May 29, 1996, 21 TexReg 4329; amended to be effective December 26, 1999, 24 TexReg 11325; amended to be effective June 7, 2010, 35 TexReg 4699

§75.1024: Career and Technical Student Organizations

(a) A school district may use federal career and technical education funds to provide opportunities for student participation in approved student leadership organizations and assist career and technical student organizations in accordance with all applicable federal and state laws, rules, and regulations. The following provisions apply to career and technical student organizations.

(1) A student shall not be required to join such an organization.

(2) Student participation in career and technical student organizations shall be governed in accordance with Chapter 76 of this title (relating to Extracurricular Activities).

(b) The following career and technical student organizations are recognized by the United States Department of Education and the Texas Education Agency:

(1) Business Professionals of America (BPA);

(2) DECA;

(3) Future Business Leaders of America (FBLA);

(4) FFA;

(5) Family, Career and Community Leaders of America (FCCLA);

(6) Health Occupations Students of America (HOSA);

(7) Technology Student Association (TSA); and

(8) SkillsUSA.

Comments

Source Note: The provisions of this §75.1024 adopted to be effective May 29, 1996, 21 TexReg 4329; amended to be effective December 26, 1999, 24 TexReg 11325; amended to be effective June 7, 2010, 35 TexReg 4699

§75.1025: Program Evaluations

Each district and consortium shall annually evaluate its career and technical education programs.

Comments

Source Note: The provisions of this §75.1025 adopted to be effective May 29, 1996, 21 TexReg 4329; amended to be effective December 26, 1999, 24 TexReg 11325; amended to be effective June 7, 2010, 35 TexReg 4699

§75.1031: Voluntary Workforce Training Standards and Agreements

(a) A voluntary workforce training program means a career and technical secondary and postsecondary education program conducted under an agreement as described in §75.1033 of this title (relating to Certified Program Agreements) or a voluntary program certified by the Texas Education Agency (TEA) in conjunction with the Texas Workforce Commission that meets the standards prescribed under §75.1032 of this title (relating to Certification Standards). The voluntary workforce training program must:

(1) integrate a secondary school academic curriculum with private sector workplace training and a postsecondary curriculum;

(2) place the participant in job internships;

(3) be designed to continue into postsecondary education and lead to the participant earning an associate's degree or a bachelor's degree;

(4) result in teaching new skills and adding value to the wage-earning potential of the participant and increasing the participant's long-term employability in Texas; and

(5) meet recognized or accepted industry standards.

(b) The participants must be at least 16 years of age and enrolled in a public or private secondary or postsecondary school, or an equivalent program, and who began to voluntarily participate in a certified voluntary workforce training program as part of secondary school education.

(c) Each certified voluntary workforce training program must have a designated sponsor responsible for operating the program and in whose name the program is registered when certified by the TEA. The term "sponsor" shall be defined as the entity or organization in whose name the program is registered. Examples of sponsors may include, but are not be limited to, a business, a school district, a local workforce development board, or other appropriate entity who has agreed to operate the program according to the established guidelines.

(d) No student will be required to participate in a certified voluntary workforce training program.

Comments

Source Note: The provisions of this §75.1031 adopted to be effective September 7, 2000, 25 TexReg 8642; amended to be effective June 7, 2010, 35 TexReg 4699

§75.1032: Certification Standards

(a) Entities wishing to sponsor a voluntary workforce training program will apply to the Agency for certification. The Agency will process applications from secondary and postsecondary sponsors. Applications that include an agreement between a participant and a sponsor that is not a secondary or postsecondary institution will be processed by the Agency in conjunction with the Texas Workforce Commission (Commission). The Commission's role in the certification process will be to review the applications and inform the Agency of any past violations of Texas Labor Code, Chapter 51 (Employment of Children) and Chapter 61 (Payment of Wages). The Agency will make the final determination of certification and revocation of certifications. Certification will be granted for a period of three years and will be reauthorized automatically every three years unless the program fails to maintain the required certification standards. The Agency may revoke certification at any time for failure to maintain the required certification standards.

(b) Certified programs will agree to submit to the Agency annual documentation of student participants disaggregated by race, ethnicity, gender, and socioeconomic status.

(c) If certified programs are inactive for two years, certification will be automatically revoked.

(d) To be eligible for certification by the Agency, a program must meet the criteria in §75.1031(a) of this title (relating to Voluntary Workforce Training Standards and Agreements) and must:

(1) be conducted under an organized, written training plan embodying the terms and conditions of employment, job training, classroom instruction, and supervision of participants and be approved by a sponsoring school district or other sponsoring entity that assumes responsibility to carry out the program;

(2) comply with all state and federal laws, including laws pertaining to fair labor standards and workplace health and safety;

(3) comply with recognized industry standards applicable to the program in which the participant is engaged; and

(4) include an agreement by the employer to assign an employee to serve as a mentor for the participant.

Comments

Source Note: The provisions of this §75.1032 adopted to be effective September 7, 2000, 25 TexReg 8642

§75.1033: Certified Program Agreements

(a) A certified program must be conducted under a signed written agreement between each participant and the employer. The agreement may include the following:

(1) the name and signature of the participant, the sponsor, the employer, and a parent or guardian of the participant, if the participant is under 18 years of age;

(2) a description of the career field in which the participant is to be trained, the academic and technical skills to be attained, and the beginning date and duration of the broad-based training; and

(3) the employer's agreement to provide paid employment, at a base wage not less than the minimum wage, for the participant during the participant's junior and senior years in high school and after the participant's first year of postsecondary education.

(b) A participant's time spent at the worksite in a certified program prescribed under §75.1031(a) of this title (relating to Voluntary Workforce Training Standards and Agreements) will be limited to 15 hours during the school week. A school week is defined as the week beginning at 12:01 a.m. on the first instructional day of a calendar week and ends at the close of instruction on the last instructional day of the calendar week, excluding holidays.

(c) A participant may, but is not required to, enter into a postsecondary education agreement with the participant's employer. A postsecondary education agreement must include at least the following:

(1) the participant's agreement to pay half of the participant's wages to be held in trust to be applied toward the participant's postsecondary education and the employer's agreement to pay into the trust an additional amount equal to the amount paid by the participant;

(2) the participant's agreement to work for the employer for at least two years immediately following the date of completion of the participant's postsecondary education;

(3) the employer's agreement to pay the participant during the period described under paragraph (2) of this subsection at least the prevailing wage for employees having a similar education or license and performing similar work and to provide other employee benefits to which employees performing similar work are entitled; and

(4) the participant's agreement to reimburse the employer if the participant does not perform the two years of employment described by paragraph (2) of this subsection for the employer's contribution to the trust, plus interest at the prime interest rate at the time the participant defaults on the agreement. Terms of the reimbursement arrangements should be mutually determined by the employer, participant, and parent or guardian if the participant is under 18 years of age, and formalized through a written agreement.

(d) The agreement between the participant and employer may be modified through mutual written consent at any time.

(e) If a participant decides not to continue in the program before beginning postsecondary education, the participant and employer each shall be refunded, not later than the 30th day after the last date of participation in the program, their respective contributions to the trust and a pro rata share of the interest earned on the money in the trust.

(f) The money held in trust under subsection (c)(1) of this section must be held for the benefit of the participant. The fund must be specified in the written agreement between the participant and the employer. The trust funds must be held in an account or fund with the beneficiary identified by name. The trust fund agreement must prohibit access to trust fund assets by a creditor of the employer, the participant, or the trustee. In developing a trust agreement, the employer and participant shall consider the qualifications and powers of the trustee, the method of and schedule for transferring funds to the trust, the investment of the trust fund, accounting requirements for the fund, requirements for and the method of disbursing funds from the trust, and requirements and procedures for the termination of the trust. Payment into a trust approved under 29 United States Code, §1103, for the benefit of the participant satisfies the requirements of this subsection.

(g) An employer who enters into an agreement under this section may not retain participants solely to replace the employer's current employees.

Comments

Source Note: The provisions of this §75.1033 adopted to be effective September 7, 2000, 25 TexReg 8642

§75.1034: Dispute Resolution

Disputes regarding terms of the certified program agreement and/or postsecondary agreement will be decided between the employer and participant.

Comments

Source Note: The provisions of this §75.1034 adopted to be effective September 7, 2000, 25 TexReg 8642

Chapter 76

Subchapter AA

§76.1001: Extracurricular Activities

(a) An extracurricular activity is an activity sponsored by the University Interscholastic League (UIL), the school district board of trustees, or an organization sanctioned by resolution of the board of trustees. The activity is not necessarily directly related to instruction of the essential knowledge and skills but may have an indirect relation to some areas of the curriculum. Extracurricular activities include, but are not limited to, public performances, contests, demonstrations, displays, and club activities, with the exception of public performances specified in paragraph (2) of this subsection.

(1) In addition, an activity shall be subject to the provisions for an extracurricular activity if any one of the following criteria apply:

(A) the activity is competitive;

(B) the activity is held in conjunction with another activity that is considered to be extracurricular;

(C) the activity is held off campus, except in a case in which adequate facilities do not exist on campus;

(D) the general public is invited; or

(E) an admission is charged.

(2) A student ineligible to participate in an extracurricular activity, but who is enrolled in a state-approved course that requires demonstration of the mastery of the essential knowledge and skills in a public performance, may participate in the performance subject to the following requirements and limitations.

(A) Only the criterion listed in paragraph (1)(D) of this subsection applies to the performance.

(B) The requirement for student participation in public is stated in the essential knowledge and skills of the course.

(b) The school week is defined as beginning at 12:01 a.m. on the first instructional day of the calendar week and ending at the close of instruction on the last instructional day of the calendar week, excluding holidays.

(c) In accordance with the provisions of the Texas Education Code (TEC), §33.0811, the number of times that a school district may allow a student to miss a class for extracurricular participation during a school year shall be determined by the school district board of trustees. Each school district must maintain an accurate record of extracurricular absences for each student in the school district each school year.

(d) Limitations on practice, rehearsal, and student participation in extracurricular activities during the school week shall be as follows.

(1) For any given extracurricular activity, a student may not participate in more than one activity per school week, excluding holidays, except as provided in paragraph (2) of this subsection.

(2) In addition to the limit specified in paragraph (1) of this subsection of one extracurricular activity permitted per school week, a student may also participate in a tournament or post-district contest, as well as a contest postponed by weather or public disaster that may determine advancement to a post-district level of competition.

(3) For each extracurricular activity, a school district must limit students to a maximum of eight hours of practice and rehearsal outside the school day per school week.

(4) The commissioner of education recommends that school districts avoid scheduling extracurricular activities or public performances on the day or evening immediately preceding the day on which the administration of the statewide student assessment program is scheduled for Grades 3-11.

(e) Limitations on practice and rehearsal for extracurricular activities during the school day shall be as follows.

(1) A school district must limit a student to one period of practice during the regularly scheduled school day for extracurricular activities, such as athletics, or drill team, or cheerleading.

(2) The limit specified in paragraph (1) of this subsection of one period per school day for practice in an extracurricular activity does not prohibit a student from enrolling in any state-approved class. A student who is enrolled in a state-approved class that includes essential knowledge and skills that relate to the preparation for an extracurricular activity may practice that extracurricular activity no more than one period during the school day.

(3) A student may not be permitted to miss a scheduled academic class to practice for an unrelated extracurricular activity.

(4) A school district must limit extracurricular practice during the school day to ensure that class periods for extracurricular practice do not exceed the time allotted for other class periods.

(5) A school operates on a traditional class schedule or on a non-traditional class schedule, such as an alternating, accelerated, or a modified block schedule. Regardless of the schedule type in place, a school may elect to practice extracurricular activities daily, provided the total minutes allowed for the extracurricular practice is not greater than 300 minutes during the school week.

(f) The provisions of this section apply to any UIL activity. Any other organization requiring student participation that causes a student to miss a class may request sanction from the school district board of trustees. If the organization is sanctioned by resolution of the board of trustees, student participation in the organization's activities shall be subject to all provisions of this section and statute. Any absence incurred by a student while participating with an organization that has not received sanction from the school district board of trustees shall be subject to provisions of the TEC related to student attendance.

Comments

Source Note: The provisions of this §76.1001 adopted to be effective April 9, 2000, 25 TexReg 2807; amended to be effective January 5, 2003, 27 TexReg 12189

§76.1003: Extracurricular Athletic Activity Safety Training Requirements

(a) The commissioner of education, in compliance with the Texas Education Code (TEC), §33.202, adopts the Extracurricular Activity Safety Training Program, provided by the University Interscholastic League, as an extracurricular athletic activity safety training program.

(b) The commissioner of education, in compliance with the TEC, §33.202, adopts the educational requirements for licensure as a licensed athletic trainer, as set forth in 22 TAC §871.7 (relating to Qualifications) and 22 TAC §871.12 (relating to Continuing Education Requirements), as an extracurricular athletic activity safety training program.

(c) The following persons must satisfactorily complete an adopted extracurricular athletic activity safety training program specified in subsection (a) or (b) of this section:

(1) a coach or sponsor for an extracurricular athletic activity;

(2) a trainer, except as provided by subsection (b) of this section;

(3) a director responsible for a school marching band; and

(4) a physician who is employed by a school or school district or who volunteers to assist with an extracurricular athletic activity, except as provided by subsection (d) of this section.

(d) A physician who is employed by a school or school district or who volunteers to assist with an extracurricular athletic activity is not required to complete the safety training program if the physician submits to the school or school district documentation of successful completion of continuing medical education sufficient to comply with the continuing medical education requirements of the Texas Occupations Code, §156.051, and that the physician's continuing medical education specifically addresses emergency medicine.

(e) Beginning with the 2008-2009 school year, each school district shall ensure and maintain documentation that each person subject to the TEC, §33.202, has satisfactorily completed the extracurricular athletic activity safety training program required by this section.

Comments

Source Note: The provisions of this §76.1003 adopted to be effective March 10, 2009, 34 TexReg 1585

Chapter 89

Subchapter A

§89.1: Student Assessment

School districts shall develop written policies on student identification that are approved by the local board of trustees and disseminated to parents. The policies must:

(1) include provisions for ongoing screening and selection of students who perform or show potential for performing at remarkably high levels of accomplishment in the areas defined in the Texas Education Code, §29.121;

(2) include assessment measures collected from multiple sources according to each area defined in the Texas State Plan for the Education of Gifted/Talented Students;

(3) include data and procedures designed to ensure that students from all populations in the district have access to assessment and, if identified, services for the gifted/talented program;

(4) provide for final selection of students to be made by a committee of at least three local district educators who have received training in the nature and needs of gifted students; and

(5) include provisions regarding furloughs, reassessment, exiting of students from program services, transfer students, and appeals of district decisions regarding program placement.

Comments

Source Note: The provisions of this §89.1 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.2: Professional Development

School districts shall ensure that:

(1) prior to assignment in the program, teachers who provide instruction and services that are a part of the program for gifted students have a minimum of 30 hours of staff development that includes nature and needs of gifted/talented students, assessing student needs, and curriculum and instruction for gifted students;

(2) teachers without training required in paragraph (1) of this section who provide instruction and services that are part of the gifted/talented program must complete the 30-hour training requirement within one semester;

(3) teachers who provide instruction and services that are a part of the program for gifted students receive a minimum of six hours annually of professional development in gifted education; and

(4) administrators and counselors who have authority for program decisions have a minimum of six hours of professional development that includes nature and needs of gifted/talented students and program options.

Comments

Source Note: The provisions of this §89.2 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective February 13, 2000, 25 TexReg 776

§89.3: Student Services

School districts shall provide an array of learning opportunities for gifted/talented students in kindergarten through Grade 12 and shall inform parents of the opportunities. Options must include:

(1) instructional and organizational patterns that enable identified students to work together as a group, to work with other students, and to work independently;

(2) a continuum of learning experiences that leads to the development of advanced-level products and performances;

(3) in-school and, when possible, out-of-school options relevant to the student's area of strength that are available during the entire school year; and

(4) opportunities to accelerate in areas of strength.

Comments

Source Note: The provisions of this §89.3 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.4: Fiscal Responsibility

School districts shall ensure that: no more than 15% of state funds allocated for gifted/talented education are spent on indirect costs.

Comments

Source Note: The provisions of this §89.4 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.5: Program Accountability

School districts shall ensure that student assessment and services for gifted/talented students comply with accountability standards defined in the Texas State Plan for the Education of the Gifted/Talented.

Comments

Source Note: The provisions of this §89.5 adopted to be effective September 1, 1996, 21 TexReg 5690.

Subchapter B

§89.21: Definitions

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Adult education--Basic and secondary instruction and services for adults.

(A) Adult basic education--Instruction in reading, writing, English and solving quantitative problems, including functional context, designed for adults who:

(i) have minimal competence in reading, writing, and solving quantitative problems;

(ii) are not sufficiently competent to speak, read, or write the English language; or

(iii) are not sufficiently competent to meet the requirements of adult life in the United States, including employment commensurate with the adult's real ability.

(B) Adult secondary education--Comprehensive secondary instruction below the college credit level in reading, writing and literature, mathematics, science, and social studies, including functional context, and instruction for adults who do not have a high school diploma or its equivalent.

(2) Base allocation--An amount of funds set aside for each grantee to provide adult basic education services to eligible adults within its service area in compliance with provisions of the grant application and the state's federally-approved adult education plan.

(3) Contact time--The cumulative sum of minutes during which an eligible adult student receives instructional, counseling, and/or assessment services by a staff member supported by federal and state adult education funds as documented by local attendance and reporting records.

(A) Student contact time generated by volunteers may be accrued by the adult education program when volunteer services are verifiable by attendance and reporting records and volunteers meet requirements under §89.25 of this title (relating to Qualifications and Training of Staff).

(B) Student contact hour is 60 minutes.

(4) Cooperative/consortium adult education program--A community or area partnership of educational, work force development, human service entities, and other agencies that agree to collaborate for the provision of adult education and literacy services.

(5) Eligible grant recipient--Eligible grant recipients for adult education programs are those entities specified in state and federal law.

(6) Fiscal agent--The local entity that applies for, receives, and manages funds on behalf of the cooperative or adult education partnership.

(7) Grantee--Recipient of award of federal and/or state adult education funds from the Texas Education Agency.

(8) Performance definitions--

(A) Allocation--A performance allocation is an amount of funds set aside for each grantee from which it is eligible to withdraw funds once it has demonstrated that it has met or exceeded set performance targets.

(B) Payment--A performance payment is a financial incentive awarded to grantees based on the number of performance points earned by meeting or exceeding identified federal and state performance targets.

(C) Points--Performance points are the basis by which the grantee can earn performance payments. Performance points are earned by grantees by meeting or exceeding state and federal performance targets.

(D) Target--A performance target is a quantifiable measurement that identifies the degree or extent to which grantees are expected to achieve performance measures.

(i) Federal targets--A quantifiable measurement assigned to individual federal performance measures set forth in the Texas plan for adult education approved by the United States Department of Education (USDE).

(ii) State targets--A quantifiable measurement assigned to individual state performance measures set forth in the Texas plan for adult education approved by the USDE.

(9) Reallocation fund--Monies from grantee's performance allocations that grantees fail to earn because they did not achieve all federal performance targets that are placed in a fund to be distributed among grantees based on their performance on state performance measures.

Comments

Source Note: The provisions of this §89.21 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective September 1, 1999, 24 TexReg 386; amended to be effective December 25, 2006, 31 TexReg 10297; amended to be effective July 1, 2010, 35 TexReg 5556

§89.22: Use of Funds

(a) Federal adult education and literacy funds may be used for programs of adult education and literacy for out-of-school individuals who have attained 16 years of age and:

(1) function at less than a secondary school completion level;

(2) lack a secondary school credential; or

(3) are unable to speak, read, or write in English.

(b) State adult education and literacy funds are to be used for programs of adult education and literacy for out-of-school individuals who are beyond compulsory school attendance age and:

(1) function at less than a secondary school completion level;

(2) lack a secondary school credential; or

(3) are unable to speak, read, or write in English.

(c) The proportion of students served who meet the requirements of subsection (a) of this section but do not meet the requirements of subsection (b) of this section may not exceed the grantee's percentage of federal funds to the total allocation.

Comments

Source Note: The provisions of this §89.22 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective July 1, 2010, 35 TexReg 5556

§89.23: Essential Program Components

The following essential program components shall be provided:

(1) adult basic education;

(2) programs for adults of limited English proficiency;

(3) adult secondary education, including programs leading to the achievement of a high school equivalency certificate and/or a high school diploma;

(4) instructional services to improve student proficiencies necessary to function effectively in adult life, including accessing further education, employment-related training, or employment;

(5) assessment and guidance services related to paragraphs (1)-(4) of this section; and

(6) collaboration with multiple partners in the community to expand the services available to adult learners and to prevent duplication of services.

Comments

Source Note: The provisions of this §89.23 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective July 1, 2010, 35 TexReg 5556

§89.24: Diploma Requirements

The standards for the awarding of diplomas to adults shall be those established under Chapter 74 of this title (relating to Curriculum Requirements) with the following exceptions.

(1) There shall be no limit to the number of secondary credits adults may earn by demonstration of competence.

(2) Adults may earn the required physical education credits by one or more of the following:

(A) satisfactory completion of approved secondary physical education courses; or

(B) substitution of state-approved secondary elective courses.

(3) Adults must meet the requirements for successful performance on a secondary level test designated by the commissioner of education.

Comments

Source Note: The provisions of this §89.24 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective September 1, 1999, 24 TexReg 386

§89.25: Qualifications and Training of Staff

The requirements of this section shall apply to all adult education staff hired after September 1, 1996, excluding clerical and janitorial staff.

(1) All staff shall receive at least 12 clock hours of professional development annually.

(2) All staff new to adult education shall receive six clock hours of preservice professional development before they begin work in an adult education program.

(3) Aides shall have at least a high school diploma or high school equivalency certificate.

(4) The following apply to directors, teachers, counselors, and supervisors.

(A) Persons must possess at least a bachelor's degree.

(B) Persons without valid Texas teacher certification must attend 12 clock hours of inservice professional development annually in addition to that specified in paragraph (1) of this section until they have completed either six clock hours of adult education college credit or attained two years of adult education experience.

(5) The requirements for inservice professional development may be reduced by local programs in individual cases where exceptional circumstances prevent employees from completing the required hours of inservice professional development. Documentation shall be kept justifying such circumstances. Requests for exemption from staff qualification requirements in individual cases may be submitted to the Texas Education Agency (TEA) for approval in the application for funding and must include justification and proposed qualifications.

(6) Records of staff qualifications and professional development shall be maintained by each fiscal agent and must be available for monitoring.

(7) The requirements in paragraphs (1)-(5) of this section also apply to volunteers who generate student contact time, as defined under §89.21 of this title (relating to Definitions), which is accrued by the adult education program and reported to TEA for funding purposes.

Comments

Source Note: The provisions of this §89.25 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.26: Service Requirements for Staff

Teachers and aides shall be assigned to instruction, counseling, and/or assessment for a minimum of 75% of the hours for which they are employed.

Comments

Source Note: The provisions of this §89.26 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.27: Program Delivery System

(a) There shall be a statewide system of adult education cooperatives/consortia for the coordinated provision of adult education services. To the extent possible, service delivery areas shall be large enough to support a program meeting the requirements of §89.23 of this title (relating to Essential Program Components) and to ensure efficient and effective delivery of services.

(b) Eligible grant recipients may apply directly to the Texas Education Agency (TEA) for adult education and literacy funding. Eligible grant recipients are encouraged to maximize the fiscal resources available for service to undereducated adults and avoid unproductive duplication of services and excessive administrative costs by forming consortia or cooperatives and using fiscal agents for the delivery of services.

(c) Grant applicants who will serve as a fiscal agent for a cooperative/consortium must consult with other adult education and literacy providers in the cooperative/consortium in developing applications for funding to be submitted to TEA.

(d) Each fiscal agent shall be responsible for:

(1) the overall management of the cooperative/consortium, including technical assistance to consortium members, on-site visits, staff qualifications and professional development, and program implementation in accordance with the requirements of this subchapter;

(2) the employment of an administrator for the cooperative/consortium;

(3) development of written agreements with consortium members for the operation of the adult education program; and

(4) expenditures of funds for the conduct of the project and making and filing composite reports for the consortium.

(e) Nonconsortium applicants must also provide evidence of coordination of existing adult education and literacy services in the area proposed to be served and maintain an advisory committee.

Comments

Source Note: The provisions of this §89.27 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.28: Advisory Committee

At least one collaborative advisory committee shall be formed in each funded adult education service area. That committee shall be composed of a broad spectrum of community representatives, including work force development representatives, to review the activities of and make recommendations to the fiscal agent in planning, developing, and evaluating the adult education program. The fiscal agent shall be responsible for convening the collaborative advisory committee at least twice each year.

Comments

Source Note: The provisions of this §89.28 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective July 1, 2010, 35 TexReg 5556

§89.29: Allocation of Funds Prior to School Year 2010-2011

(a) The provisions of this section apply to the allocation of state and federal adult education funds prior to school year 2010-2011. Allocations beginning with school year 2010-2011 shall be in accordance with provisions established in §89.30 of this title (relating to Allocation of Funds Beginning with School Year 2010-2011) and §89.31 of this title (relating to Payment of Funds).

(b) Annually, after federal adult education and literacy funds have been set aside for state administration, special projects and staff development, state and federal adult education fund allocations shall be developed for each county and each school district geographic area. Allocations shall be computed as follows.

(1) Twenty-five percent of the funds available shall be allocated based on the best available estimates of the number of eligible adults in each county and school district geographic area within each county.

(2) Seventy-five percent of the funds available shall be allocated based on student contact hours reported by each school district geographic area and for the most recent complete fiscal year reporting period.

(3) A school district geographic area's student contact hour annual allocation shall not be reduced by more than 10% below the preceding fiscal year's contact hour allocation provided that:

(A) sufficient funds are available; and

(B) the school district geographic area's contact hour performance used in calculating the allocation was not less than that of the preceding fiscal year.

(4) If public funds, other than state and federal adult education funds, are used in the adult education instructional program, the program may claim only the proportionate share of the student contact time based on the adult education program's expenditures for the instructional program.

Comments

Source Note: The provisions of this §89.29 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective December 25, 2006, 31 TexReg 10297; amended to be effective July 1, 2010, 35 TexReg 5556

§89.30: Allocation of Funds Beginning with School Year 2010-2011

(a) Allocation of state and federal funds. The provisions of this section apply to the allocation of state and federal adult education funds beginning with school year 2010-2011. Annually, after federal adult education and literacy funds have been set aside for state administration, special projects, staff development, and leadership, state and federal adult education funds shall be allocated based upon grantees':

(1) funding received in the second year of the previous biennium; and

(2) proportionate share of need.

(b) Total grantee allocation. Each grantee's total shall be comprised of the following components:

(1) base allocation; and

(2) performance allocation.

(c) Calculation of base allocation. Each grantee will receive a base allocation equal to the amount of funding it received in the second year of the previous biennium, provided that:

(1) the grantee serves, at a minimum, the same or equivalent school district geographic areas as it served in the second year of the previous biennium; and

(2) the total amount of federal and state funds available statewide is equal to or greater than the amount available in the second year of the previous biennium.

(d) Reduction of base allocation. If the calculation of the base allocation results in a total that is greater than the state and federal funds available, each grantee's base allocation shall be reduced proportionately.

(e) Calculation of performance allocation. The sum of all grantees' base allocations, which are calculated based on subsection (c) of this section, will be subtracted from the total amount of federal and state funds available, excluding the amount of federal funds set aside for state administration, special projects, staff development, and leadership. The remainder then will be allocated among all grantees based upon need and will be designated as each grantee's performance allocation.

Comments

Source Note: The provisions of this §89.30 adopted to be effective July 1, 2010, 35 TexReg 5556

§89.31: Payment of Funds

(a) Base payments. Each grantee will receive its base allocation as calculated in accordance with §89.30(c) of this title (relating to Allocation of Funds Beginning with School Year 2010-2011).

(b) Performance payments. Each grantee may earn performance payments from:

(1) its performance allocation as calculated in accordance with §89.30(e) of this title by achieving federal performance targets; and

(2) the reallocation fund by achieving state performance targets.

(c) Earning payments from a grantee's performance allocation. Each grantee is eligible to earn performance payments from its performance allocation by meeting or exceeding federal performance targets.

(1) For each federal performance target that the grantee meets or exceeds, the grantee will earn:

(A) one and one-half performance points for meeting or exceeding a target that advances students from the lowest literacy level for either adult basic education or English as a second language to the next literacy level; and

(B) one performance point for meeting or exceeding all other targets.

(2) The amount of funds that each grantee will receive from its performance allocation is calculated by adding the number of performance points the grantee earned and dividing it by the total number of performance points possible to earn and multiplying that number by 100. The resulting percentage of possible points earned is then multiplied by the amount of funds set aside in the grantee's performance allocation.

(3) The amount of funds in each grantee's performance allocation that are not earned will be placed in a statewide reallocation fund.

(d) Earning payments from the reallocation fund. All grantees, regardless of performance on the federal performance measures, will be eligible to earn funds from the reallocation fund by meeting or exceeding state performance targets for state performance measures.

(1) For each state performance target that a grantee meets or exceeds, the grantee will earn:

(A) one and one-half performance points for meeting or exceeding a target that advances students from the lowest literacy level for either adult basic education or English as a second language to the next literacy level; and

(B) one performance point for meeting or exceeding all other targets.

(2) The total number of performance points earned by all grantees will be summed and divided into the total amount of funds in the reallocation fund to determine a cost per state performance point earned.

(3) The amount of funds that each grantee will receive from the reallocation fund is calculated by adding the number of performance points the grantee earned for meeting or exceeding state performance targets and multiplying that number by the cost per state performance point earned.

Comments

Source Note: The provisions of this §89.31 adopted to be effective July 1, 2010, 35 TexReg 5556

§89.32: Match Requirements

(a) Service providers shall provide and document any cash or in-kind match. The match must be met using non-federal (i.e., local or state) sources.

(b) The cash or in-kind match may be obtained from any state or local source that is fairly evaluated, excluding any sources of federal funds.

(c) The match may include allowable costs such as the following:

(1) goods and services;

(2) fair market value of third-party goods and services donated by volunteers and employees or other organizations; and

(3) supplies, equipment, and building space not owned by the fiscal agent.

(d) The grantee is required to maintain auditable records for all expenditures relating to the cash or in-kind match the same as for the funds granted through an approved application.

(e) If public funds, other than state and federal adult education funds, are used in the adult education instructional program, the program may claim a proportionate share of the student contact time as the cash or in-kind match.

Comments

Source Note: The provisions of this §89.32 adopted to be effective July 1, 2010, 35 TexReg 5556

§89.33: Tuition and Fees

(a) No student tuition or fees shall be charged for adult basic education as a condition for membership and participation in a class.

(b) Tuition and fees for adult secondary education may be charged and be established by local fiscal agent board policy. Funds generated by such tuition and fees shall be used for the adult education instructional program.

Comments

Source Note: The provisions of this §89.33 adopted to be effective July 1, 2010, 35 TexReg 5556

§89.34: Other Provisions

(a) Allowable and nonallowable expenditures. Supervisory and administrative costs shall not exceed 25% of the total budget. These costs may include supervisory payroll costs, rental of administrative space, indirect costs, and clerical costs.

(b) Staff development and special projects.

(1) Priorities for expenditures of federal funds as required by the Workforce Investment Act, §223, shall be presented annually to the State Board of Education.

(2) From the federal funds set aside for state administration, special projects, staff development, and leadership, a portion of funds shall be used to provide training and professional development to organizations that are not currently receiving grants but are providing literacy services.

(c) Evaluation of programs. The Texas Education Agency shall evaluate adult education programs based on the indicators of program quality for adult education.

Comments

Source Note: The provisions of this §89.34 adopted to be effective July 1, 2010, 35 TexReg 5556

§89.35: Revocation and Recovery of Funds

(a) The commissioner of education may revoke a grant award for the adult education grant program based on the following factors:

(1) noncompliance with application assurances and/or the provisions of this section;

(2) lack of program success as evidenced by progress reports and program data;

(3) failure to participate in data collection and audits;

(4) failure to meet performance standards specified in the application or in the Texas state plan for adult education approved by the U.S. Department of Education; or

(5) failure to provide accurate, timely, and complete information as required by the Texas Education (TEA) to evaluate the effectiveness of the adult education program.

(b) A decision by the commissioner and the TEA to revoke the grant award of an adult education program is final and may not be appealed.

(c) The commissioner may audit the use of grant funds and may recover funds against any state provided funds.

Comments

Source Note: The provisions of this §89.35 adopted to be effective July 1, 2010, 35 TexReg 5556

Subchapter C

§89.41: Policy

The Texas Education Agency (TEA) shall be the only agency in Texas authorized to issue a certificate of high school equivalency on the basis of the General Educational Development (GED) Tests. Tests shall be administered by authorized contracted testing centers under applicable state law and rules of the American Council on Education and the State Board of Education (SBOE).

Comments

Source Note: The provisions of this §89.41 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.42: Official Testing Centers

(a) When authorized by the Texas Education Agency (TEA), official testing centers shall be established by annual contract with an accredited school district, institution of higher learning, or education service center (ESC). The testing center must be located at a high school in an accredited district, an accredited institution of higher learning, or ESC. The chief administrative officer of a school, institution of higher learning, or ESC desiring to provide the General Educational Development (GED) testing service to residents in the community must request authorization to do so from TEA. If the need for a testing center in the location exists, the appropriate agency official, in writing, shall inform the American Council on Education that the establishment of an official testing center is authorized at that particular institution. The center shall be sent an annual contract, together with order forms and other material, relating to the operation of the testing center. The contract forms must be signed by the chief administrative officer of the school, institution of higher learning, or ESC, and the chief examiner.

(b) The chief administrative officer of the school, institution of higher learning, or ESC at which an official testing center is established must agree to provide appropriate storage for restricted test materials and to provide a suitable place for administering the test. Each center is responsible for selecting and ordering test materials.

(c) The administrative officer of a school district or ESC must designate a certified counselor, and the administrative officer of an institution of higher learning must designate a professional person with a master's degree with a background in teaching, training, testing, or counseling, to serve as chief examiner. The person designated as chief examiner shall not be involved in preparing persons for the examinations. The chief administrative officer must obtain prior authorization from TEA to change the chief examiner or the location of a testing center. The person designated as chief examiner must attend annual training conducted by TEA.

(d) A testing center may transport restricted test material to correctional facilities, health facilities, or schools if authorization to do so has been obtained. The chief administrative officer of an institution housing an official testing center and the administrator of the correctional facility, health facility, or school must request authorization to provide the testing services from TEA. Only the exact number of tests plus one needed at a test session may be transported to the addendum site. Testing services at correctional or health facilities shall be limited to inmates or patients of the facility, and the tests must be administered by an employee of the school district, institution of higher learning, or ESC housing the test center. To maintain the integrity of the test, a complete inventory of all secure testing materials shall be conducted:

(1) before leaving the official GED testing center;

(2) upon arrival at the addendum site;

(3) immediately before and after the test administration;

(4) before departure from the addendum site; and

(5) upon return to the official GED testing center.

(e) The authorization to function as an official testing center may be withdrawn by TEA when a center has failed to maintain the integrity of the testing program. The TEA may suspend testing at a center if restricted test material is reported missing or if conditions reported by the TEA site visit indicate that the testing center is in violation of State Board of Education (SBOE) rules or requirements of the American Council on Education.

(f) An official testing center may charge a fee for test administration. The amount of the fee shall be determined by the administration or board of the school district, institution of higher learning, or ESC.

(g) The administration or board of an institution housing an official testing center shall have a written policy concerning the operation of the center, a written emergency plan, and a testing schedule. Each official testing center must provide the following assurances to the GED Testing Service:

(1) appropriate resources;

(2) suitable physical facilities;

(3) adequate staffing;

(4) full testing support services;

(5) cooperation with the GEDTS;

(6) financial management; and

(7) test security.

Comments

Source Note: The provisions of this §89.42 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective October 15, 2006, 31 TexReg 8361

§89.43: Eligibility for a Texas Certificate of High School Equivalency

(a) An applicant for a certificate of high school equivalency shall meet the following requirements.

(1) Residence. The applicant must be a resident of Texas or a member of the United States armed forces stationed at a Texas installation.

(2) Age.

(A) The applicant must be 18 years old.

(B) An applicant who is 17 years of age is eligible with parental or guardian consent. An applicant who is 17 years of age must present written permission signed by the applicant's parent or guardian. An applicant who is 17 years of age and married, who has entered military service, who has been declared an adult by the court, or who has otherwise legally severed the child/parent relationship is not required to present parent or guardian permission to be tested.

(C) An applicant who is at least 16 years of age may test if recommended by a public agency having supervision or custody under a court order. Recommendations must include the applicant's name and date of birth and must be signed by an official of the public agency having supervision or custody of the person under a court order. An applicant who is at least 16 years old may also test if:

(i) required to take the examination under a justice or municipal court order issued under the Code of Criminal Procedure, Article 45.054(a)(1)(C) (formerly codified as Family Code, §54.021(d)(1)(B));

(ii) enrolled in a Job Corps training program under the Workforce Investment Act of 1998 (29 United States Code, §§2801 et seq.) and its subsequent amendments; or

(iii) enrolled in the adjutant general's department's Seaborne ChalleNGe Corps.

(3) Educational status. The applicant must not have received a high school diploma from an accredited high school in the United States. The applicant must not be enrolled in school, unless the applicant is enrolled in a High School Equivalency Program (HSEP) approved by the Texas Education Agency (TEA). A student who is 17 years of age is eligible to test if the student is enrolled in an HSEP approved by the TEA. The student must comply with the provisions of the HSEP.

(4) Minimum test scores. An applicant must achieve the appropriate minimum standard scores in effect at the time the applicant tested as established by the American Council on Education's General Educational Development Testing Service.

(b) Test centers shall verify that any person being tested meets the eligibility requirements in this section.

Comments

Source Note: The provisions of this §89.43 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective September 1, 1999, 24 TexReg 386; amended to be effective April 18, 2002, 27 TexReg 3061; amended to be effective October 15, 2006, 31 TexReg 8361

§89.44: Identification

Test centers shall require each examinee to present a driver's license or Texas Department of Public Safety (DPS) identification card, or a government issued identification card (both national and foreign), provided that the identification includes date of birth, photograph, address, and signature. The examinee must also meet the age, residency, and other requirements of this chapter.

Comments

Source Note: The provisions of this §89.44 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective April 18, 2002, 27 TexReg 3061

§89.45: Retesting

An examinee who fails to achieve a minimum passing score on one or more of the tests may retest on the tests he or she failed, except for instances in which the American Council on Education establishes that scores may not be combined across a General Educational Development test series, in which case the examinee must successfully complete the full battery of tests in a series. A person desiring to retest must wait six months to do so unless he or she presents a letter from an adult preparation program or a certified teacher verifying that the individual is prepared to retest. Each retest must be on a different form of the test.

Comments

Source Note: The provisions of this §89.45 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective April 18, 2002, 27 TexReg 3061

§89.46: Examinees with Disabilities

(a) A physically disabled person who is unable to mark an answer sheet may be assisted by the chief examiner or proctor. The examinee must read the questions without assistance and indicate the answer for the proctor to mark.

(b) A severely handicapped or ill person who cannot travel to the test center may be administered the tests at home. Prior approval to transport the tests shall be requested of the Texas Education Agency (TEA) by the chief examiner.

(c) An applicant who is unable to take the printed form of the test may be administered a taped version of the test upon written authorization of TEA. A request by the chief examiner must be accompanied by certification by a physician that verifies a medical diagnosis of the disability that renders the potential examinee unable to take the printed form of the test.

(d) An applicant who is visually handicapped may take the test in a Braille, large print, or taped version. Versions of the test in these forms are available from the General Educational Development Testing Service.

Comments

Source Note: The provisions of this §89.46 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective April 18, 2002, 27 TexReg 3061

§89.47: Issuance of the Certificate

(a) Test scores shall be accepted as official only when reported directly by official testing centers, the Defense Activity for Nontraditional Education Support, directors of Veterans Administration hospitals, and, in special cases, by the General Educational Development Testing Service (GEDTS).

(b) Following review for eligibility and approval, certificates will be issued directly to clients. A nonrefundable fee of $15 will be assessed for issuance of a certificate and a copy of test scores. A permanent file shall be maintained for all certificates issued.

(c) Duplicate certificates will be issued upon request from the client. The client is required to pay a nonrefundable fee of $5.00 for each request for a duplicate certificate.

(d) The certificate of high school equivalency shall indicate the version of the test taken by the applicant: audiotape, large print, Braille, English, French, or Spanish.

(e) The state General Educational Development (GED) administrator may disapprove issuance of a certificate or may cancel a certificate under the following conditions:

(1) an applicant does not meet eligibility requirements under §89.43 of this title (relating to Eligibility for a Texas Certificate of High School Equivalency);

(2) the applicant in any way violates security of the restricted test material;

(3) the applicant presents fraudulent identification or is not who he or she purports to be;

(4) the applicant uses another person's certificate or test scores in an attempt to defraud; or

(5) the applicant willingly allows another person to use his or her certificate or test scores in an attempt to defraud.

(f) In the case of nonissuance or cancellation of a certificate, the applicant shall be notified in writing by the GED administrator that the certificate will not be issued or may be canceled.

(g) An applicant who has been notified that his or her certificate will not be issued or may be canceled may appeal to the state GED administrator within 30 days of receiving written notification.

(h) If, after further review, the state GED administrator does not approve issuance of the certificate or cancels a certificate, this decision may be appealed to the commissioner of education under Chapter 157 of this title (relating to Hearings and Appeals).

Comments

Source Note: The provisions of this §89.47 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective September 1, 1999, 24 TexReg 386; amended to be effective April 18, 2002, 27 TexReg 3061; amended to be effective June 6, 2004, 29 TexReg 5343; amended to be effective October 15, 2006, 31 TexReg 8361

§89.48: State Administrator

The commissioner of education shall designate the state administrator of General Educational Development (GED) testing and the certificate of high school equivalency program.

Comments

Source Note: The provisions of this §89.48 adopted to be effective September 1, 1996, 21 TexReg 5690.

Subchapter D

§89.61: Contracting for Residential Educational Placements for Students with Disabilities

(a) Residential placement. A school district may contract for residential placement of a student when the student's admission, review, and dismissal (ARD) committee determines that a residential placement is necessary in order for the student to receive a free appropriate public education (FAPE).

(1) A school district may contract for a residential placement of a student only with either public or private residential facilities which maintain current and valid licensure by the Texas Department of Mental Health and Mental Retardation, Texas Department of Human Services, Texas Department of Health, Texas Department of Protective and Regulatory Services, or Texas Council on Alcohol and Drug Abuse for the particular disabling condition and age of the student. A school district may contract for an out-of-state residential placement in accordance with the provisions of subsection (c)(3) of this section.

(2) Subject to subsections (b) and (c) of this section, the district may contract with a residential facility to provide some or all of the special education services listed in the contracted student's individualized education program (IEP). If the facility provides any educational services listed in the student's IEP, the facility's education program must be approved by the commissioner of education in accordance with subsection (c) of this section.

(3) A school district which intends to contract for residential placement of a student with a residential facility under this section shall notify the Texas Education Agency (TEA) of its intent to contract for the residential placement through the residential application process described in subsection (b) of this section.

(4) The school district has the following responsibilities when making a residential placement.

(A) Before the school district places a student with a disability in, or refers a student to, a residential facility, the district shall initiate and conduct a meeting of the student's ARD committee to develop an IEP for the student in accordance with 34 Code of Federal Regulations, §§300.342-300.347, state statutes, and commissioner of education rules.

(B) For each student, the services which the school district is unable to provide and which the facility will provide shall be listed in the student's IEP.

(C) For each student, the ARD committee shall establish, in writing, criteria and estimated timelines for the student's return to the school district.

(D) The appropriateness of the facility for each student residentially placed shall be documented in the IEP. General screening by a regional education service center is not sufficient to meet the requirements of this subsection.

(E) The school district shall make an initial and an annual on-site visit to verify that the residential facility can, and will, provide the services listed in the student's IEP which the facility has agreed to provide to the student.

(F) For each student placed in a residential facility (both initial and continuing placements), the school district shall verify, during the initial residential placement ARD committee meeting and each subsequent annual ARD committee meeting, that:

(i) the facility meets minimum standards for health and safety;

(ii) residential placement is needed and is documented in the IEP; and

(iii) the educational program provided at the residential facility is appropriate and the placement is the least restrictive environment for the student.

(G) The placement of more than one student, in the same residential facility, may be considered in the same on-site visit to a facility; however, the IEP of each student must be individually reviewed and a determination of appropriateness of placement and service must be made for each student.

(H) When a student who is residentially placed by a school district changes his residence to another Texas school district, and the student continues in the contracted placement, the school district which negotiated the contract shall be responsible for the residential contract for the remainder of the school year.

(b) Application approval process. Requests for approval of state and federal funding for residentially placed students shall be negotiated on an individual student basis through a residential application submitted by the school district to the TEA.

(1) A residential application may be submitted for educational purposes only. The residential application shall not be approved if the application indicates that the:

(A) placement is due primarily to the student's medical problems;

(B) placement is due primarily to problems in the student's home;

(C) district does not have a plan, including timelines and criteria, for the student's return to the local school program;

(D) district did not attempt to implement lesser restrictive placements prior to residential placement (except in emergency situations as documented by the student's ARD committee);

(E) placement is not cost effective when compared with other alternative placements; and/or

(F) residential facility provides unfundable/unapprovable services.

(2) The residential placement, if approved by the TEA, shall be funded as follows:

(A) the education cost of residential contracts shall be funded with state funds on the same basis as nonpublic day school contract costs according to Texas Education Code, §42.151;

(B) related services and residential costs for residential contract students shall be funded from a combination of fund sources. After expending any other available funds, the district must expend its local tax share per average daily attendance and 25% of its Individuals with Disabilities Education Act, Part B, (IDEA-B) formula tentative entitlement (or an equivalent amount of state and/or local funds) for related services and residential costs. If this is not sufficient to cover all costs of the residential placement, the district through the residential application process may receive additional IDEA-B discretionary funds to pay the balance of the residential contract placement(s) costs; and

(C) funds generated by the formula for residential costs described in subsection (b)(2)(B) of this section shall not exceed the daily rate recommended by the Texas Department of Protective and Regulatory Services for the specific level of care in which the student is placed.

(c) Approval of the education program for facilities which provide educational services. Residential facilities which provide educational services must have their educational programs approved for contracting purposes by the commissioner of education.

(1) If the education program of a residential facility which is not approved by the commissioner of education is being considered for a residential placement by a local school district, the school district should notify the TEA in writing of its intent to place a student at the facility. The TEA shall begin approval procedures and conduct an on-site visit to the facility within 30 calendar days after the TEA has been notified by the local school district. Approval of the education program of a residential facility may be for one, two, or three years.

(2) The commissioner of education shall renew approvals and issue new approvals only for those facilities which have contract students already placed or which have a pending request for residential placement from a school district. This approval does not apply to residential facilities which only provide related services or residential facilities in which the local accredited school district where the facility is located provides the educational program.

(3) School districts which contract for out-of-state residential placement shall do so in accordance with the rules for in-state residential placement in this section, except that the facility must be approved by the appropriate agency in the state in which the facility is located, rather than by the commissioner of education in Texas.

Comments

Source Note: The provisions of this §89.61 adopted to be effective September 1, 2000, 25 TexReg 4529

§89.62: Support of Students Enrolled in the Texas School for the Blind and Visually Impaired and Texas School for the Deaf

(a) For each student enrolled in the Texas School for the Blind and Visually Impaired or Texas School for the Deaf, the school district responsible for providing appropriate special education and related services to the student shall share the cost of the student's education (excluding the summer programs) as provided under the Texas Education Code, §30.003.

(1) The information required in accordance with the Texas Education Code, §30.003(d), must be submitted in a form prescribed by the commissioner of education within 30 calendar days after the student enrolls in the Texas School for the Blind and Visually Impaired or Texas School for the Deaf.

(2) School districts required to remit their shares to the Texas Education Agency in accordance with the Texas Education Code, §30.003(d), shall do so within 60 days of notification by the commissioner of education.

(b) School districts shall provide, annually, in writing to each parent or legal guardian of an eligible student with visual or auditory impairments, the information specified in the Texas Education Code, §30.004(a)(1)-(3), before considering the student's placement for special education services.

Comments

Source Note: The provisions of this §89.62 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.63: Instructional Arrangements and Settings

(a) Each local school district shall be able to provide services with special education personnel to students with disabilities in order to meet the special needs of those students in accordance with 34 Code of Federal Regulations, §§300.550-300.554.

(b) Subject to §89.1075(e) of this title (relating to General Program Requirements and Local District Procedures) for the purpose of determining the student's instructional arrangement/setting, the regular school day is defined as the period of time determined appropriate by the admission, review, and dismissal (ARD) committee.

(c) Instructional arrangements/settings shall be based on the individual needs and individualized education programs (IEPs) of eligible students receiving special education services and shall include the following.

(1) Mainstream. This instructional arrangement/setting is for providing special education and related services to a student in the regular classroom in accordance with the student's IEP. Qualified special education personnel must be involved in the implementation of the student's IEP through the provision of direct, indirect and/or support services to the student, and/or the student's regular classroom teacher(s) necessary to enrich the regular classroom and enable student success. The student's IEP must specify the services that will be provided by qualified special education personnel to enable the student to appropriately progress in the general education curriculum and/or appropriately advance in achieving the goals set out in the student's IEP. Examples of services provided in this instructional arrangement include, but are not limited to, direct instruction, helping teacher, team teaching, co-teaching, interpreter, education aides, curricular or instructional modifications/accommodations, special materials/equipment, consultation with the student and his/her regular classroom teacher(s) regarding the student's progress in regular education classes, staff development, and reduction of ratio of students to instructional staff.

(2) Homebound. This instructional arrangement/setting is for providing special education and related services to students who are served at home or hospital bedside.

(A) Students served on a homebound or hospital bedside basis are expected to be confined for a minimum of four consecutive weeks as documented by a physician licensed to practice in the United States. Homebound or hospital bedside instruction may, as provided by local district policy, also be provided to chronically ill students who are expected to be confined for any period of time totaling at least four weeks throughout the school year as documented by a physician licensed to practice in the United States. The student's ARD committee shall determine the amount of services to be provided to the student in this instructional arrangement/setting in accordance with federal and state laws, rules, and regulations, including the provisions specified in subsection (b) of this section.

(B) Home instruction may also be used for services to infants and toddlers (birth through age 2) and young children (ages 3-5) when determined appropriate by the child's individualized family services plan (IFSP) committee or ARD committee. This arrangement/setting also applies to school districts described in Texas Education Code, §29.014.

(3) Hospital class. This instructional arrangement/setting is for providing special education instruction in a classroom, in a hospital facility, or a residential care and treatment facility not operated by the school district. If the students residing in the facility are provided special education services outside the facility, they are considered to be served in the instructional arrangement in which they are placed and are not to be considered as in a hospital class.

(4) Speech therapy. This instructional arrangement/setting is for providing speech therapy services whether in a regular education classroom or in a setting other than a regular education classroom. When the only special education or related service provided to a student is speech therapy, then this instructional arrangement may not be combined with any other instructional arrangement.

(5) Resource room/services. This instructional arrangement/setting is for providing special education and related services to a student in a setting other than regular education for less than 50% of the regular school day.

(6) Self-contained (mild, moderate, or severe) regular campus. This instructional arrangement/setting is for providing special education and related services to a student who is in a self-contained program for 50% or more of the regular school day on a regular school campus.

(7) Off home campus. This instructional arrangement/setting is for providing special education and related services to the following, including students at South Texas Independent School District and Windham Independent School District:

(A) a student who is one of a group of students from more than one school district served in a single location when a free appropriate public education is not available in the respective sending district;

(B) a student whose instruction is provided by school district personnel in a facility (other than a nonpublic day school) not operated by a school district; or

(C) a student in a self-contained program at a separate campus operated by the school district that provides only special education and related services.

(8) Nonpublic day school. This instructional arrangement/setting is for providing special education and related services to students through a contractual agreement with a nonpublic school for special education.

(9) Vocational adjustment class/program. This instructional arrangement/setting is for providing special education and related services to a student who is placed on a job with regularly scheduled direct involvement by special education personnel in the implementation of the student's IEP. This instructional arrangement/setting shall be used in conjunction with the student's individual transition plan and only after the school district's career and technology classes have been considered and determined inappropriate for the student.

(10) Residential care and treatment facility (not school district resident). This instructional arrangement/setting is for providing special education instruction and related services to students who reside in care and treatment facilities and whose parents do not reside within the boundaries of the school district providing educational services to the students. In order to be considered in this arrangement, the services must be provided on a school district campus. If the instruction is provided at the facility, rather than on a school district campus, the instructional arrangement is considered to be the hospital class arrangement/setting rather than this instructional arrangement. Students with disabilities who reside in these facilities may be included in the average daily attendance of the district in the same way as all other students receiving special education.

(11) State school for persons with mental retardation. This instructional arrangement/setting is for providing special education and related services to a student who resides at a state school when the services are provided at the state school location. If services are provided on a local school district campus, the student is considered to be served in the residential care and treatment facility arrangement/setting.

(d) The appropriate instructional arrangement for students from birth through the age of two with visual and/or auditory impairments shall be determined in accordance with the IFSP, current attendance guidelines, and the agreement memorandum between the Texas Education Agency (TEA) and the Texas Interagency Council on Early Childhood Intervention.

(e) For nonpublic day school placements, the school district or shared service arrangement shall submit information to the TEA indicating the students' identification numbers, initial dates of placement, and the names of the facilities with which the school district or shared service arrangement is contracting. The school district or shared service arrangement shall not count contract students' average daily attendance as eligible. The TEA shall determine the number of contract students reported in full-time equivalents and pay state funds to the district according to the formula prescribed in law.

(f) Other program options which may be considered for the delivery of special education and related services to a student may include the following:

(1) contracts with other school districts; and

(2) other program options as approved by the TEA.

Comments

Source Note: The provisions of this §89.63 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective September 1, 2000, 25 TexReg 4529

Subchapter AA

Division 1

§89.1001: Scope and Applicability

(a) Special education services shall be provided to eligible students in accordance with all applicable federal law and regulations, state statutes, rules of the State Board of Education (SBOE) and commissioner of education, and the State Plan Under Part B of the Individuals with Disabilities Education Act (IDEA).

(b) Education programs, under the direction and control of the Texas Youth Commission, Texas School for the Blind and Visually Impaired, Texas School for the Deaf, and schools within the Texas Department of Criminal Justice shall comply with state and federal law and regulations concerning the delivery of special education and related services to eligible students and shall be monitored by the Texas Education Agency in accordance with the requirements identified in subsection (a) of this section.

(c) A school district having a residential facility that is licensed by appropriate state agencies and located within the district's boundaries must provide special education and related services to eligible students residing in the facility. If, after contacting the facility to offer services to eligible students with disabilities, the district determines that educational services are provided through a charter school, approved non-public school, or a facility operated private school, the district is not required to provide services. However, the district shall annually contact the facility to offer services to eligible students with disabilities.

Comments

Source Note: The provisions of this §89.1001 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837

Division 2

§89.1011: Referral for Full and Individual Initial Evaluation

Referral of students for a full and individual initial evaluation for possible special education services shall be a part of the district's overall, general education referral or screening system. Prior to referral, students experiencing difficulty in the general classroom should be considered for all support services available to all students, such as tutorial; remedial; compensatory; response to scientific, research-based intervention; and other academic or behavior support services. If the student continues to experience difficulty in the general classroom after the provision of interventions, district personnel must refer the student for a full and individual initial evaluation. This referral for a full and individual initial evaluation may be initiated by school personnel, the student's parents or legal guardian, or another person involved in the education or care of the student.

Comments

Source Note: The provisions of this §89.1011 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 16, 2003, 28 TexReg 9830; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1015: Time Line for All Notices

"Reasonable time" required for the written notice to parents under 34 Code of Federal Regulations (CFR), §300.503, is defined as at least five school days, unless the parents agree otherwise.

Comments

Source Note: The provisions of this §89.1015 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837

§89.1035: Age Ranges for Student Eligibility

(a) Pursuant to state and federal law, services provided in accordance with this subchapter shall be available to all eligible students ages 3-21. Services will be made available to eligible students on their third birthday. Graduation with a regular high school diploma pursuant to §89.1070(b)(1)-(2) of this title (relating to Graduation Requirements) terminates a student's eligibility to receive services in accordance with this subchapter. An eligible student receiving special education services who is 21 years of age on September 1 of a school year shall be eligible for services through the end of that school year or until graduation with a regular high school diploma pursuant to §89.1070(b)(1)-(2) of this title, whichever comes first.

(b) In accordance with the Texas Education Code (TEC), §§29.003, 30.002(a), and 30.081, a free, appropriate, public education shall be available from birth to students with visual or auditory impairments.

Comments

Source Note: The provisions of this §89.1035 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837

§89.1040: Eligibility Criteria

(a) Special education services. To be eligible to receive special education services, a student must be a "child with a disability," as defined in 34 Code of Federal Regulations (CFR), §300.8(a), subject to the provisions of 34 CFR, §300.8(c), the Texas Education Code (TEC), §29.003, and this section. The provisions in this section specify criteria to be used in determining whether a student's condition meets one or more of the definitions in federal regulations or in state law.

(b) Eligibility determination. The determination of whether a student is eligible for special education and related services is made by the student's admission, review, and dismissal (ARD) committee. Any evaluation or re-evaluation of a student shall be conducted in accordance with 34 CFR, §§300.301-300.306 and 300.122. The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility must include, but is not limited to, the following:

(1) a licensed specialist in school psychology (LSSP), an educational diagnostician, or other appropriately certified or licensed practitioner with experience and training in the area of the disability; or

(2) a licensed or certified professional for a specific eligibility category defined in subsection (c) of this section.

(c) Eligibility definitions.

(1) Autism. A student with autism is one who has been determined to meet the criteria for autism as stated in 34 CFR, §300.8(c)(1). Students with pervasive developmental disorders are included under this category. The team's written report of evaluation shall include specific recommendations for behavioral interventions and strategies.

(2) Deaf-blindness. A student with deaf-blindness is one who has been determined to meet the criteria for deaf-blindness as stated in 34 CFR, §300.8(c)(2). In meeting the criteria stated in 34 CFR, §300.8(c)(2), a student with deaf-blindness is one who, based on the evaluations specified in subsections (c)(3) and (c)(12) of this section:

(A) meets the eligibility criteria for auditory impairment specified in subsection (c)(3) of this section and visual impairment specified in subsection (c)(12) of this section;

(B) meets the eligibility criteria for a student with a visual impairment and has a suspected hearing loss that cannot be demonstrated conclusively, but a speech/language therapist, a certified speech and language therapist, or a licensed speech language pathologist indicates there is no speech at an age when speech would normally be expected;

(C) has documented hearing and visual losses that, if considered individually, may not meet the requirements for auditory impairment or visual impairment, but the combination of such losses adversely affects the student's educational performance; or

(D) has a documented medical diagnosis of a progressive medical condition that will result in concomitant hearing and visual losses that, without special education intervention, will adversely affect the student's educational performance.

(3) Auditory impairment. A student with an auditory impairment is one who has been determined to meet the criteria for deafness as stated in 34 CFR, §300.8(c)(3), or for hearing impairment as stated in 34 CFR, §300.8(c)(5). The evaluation data reviewed by the multidisciplinary team in connection with the determination of a student's eligibility based on an auditory impairment must include an otological examination performed by an otologist or by a licensed medical doctor, with documentation that an otologist is not reasonably available. An audiological evaluation by a licensed audiologist shall also be conducted. The evaluation data shall include a description of the implications of the hearing loss for the student's hearing in a variety of circumstances with or without recommended amplification.

(4) Emotional disturbance. A student with an emotional disturbance is one who has been determined to meet the criteria for emotional disturbance as stated in 34 CFR, §300.8(c)(4). The written report of evaluation shall include specific recommendations for behavioral supports and interventions.

(5) Mental retardation. A student with mental retardation is one who has been determined to meet the criteria for mental retardation as stated in 34 CFR, §300.8(c)(6). In meeting the criteria stated in 34 CFR, §300.8(c)(6), a student with mental retardation is one who:

(A) has been determined to have significantly sub-average intellectual functioning as measured by a standardized, individually administered test of cognitive ability in which the overall test score is at least two standard deviations below the mean, when taking into consideration the standard error of measurement of the test; and

(B) concurrently exhibits deficits in at least two of the following areas of adaptive behavior: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.

(6) Multiple disabilities.

(A) A student with multiple disabilities is one who has been determined to meet the criteria for multiple disabilities as stated in 34 CFR, §300.8(c)(7). In meeting the criteria stated in 34 CFR, §300.8(c)(7), a student with multiple disabilities is one who has a combination of disabilities defined in this section and who meets all of the following conditions:

(i) the student's disability is expected to continue indefinitely; and

(ii) the disabilities severely impair performance in two or more of the following areas:

(I) psychomotor skills;

(II) self-care skills;

(III) communication;

(IV) social and emotional development; or

(V) cognition.

(B) Students who have more than one of the disabilities defined in this section but who do not meet the criteria in subparagraph (A) of this paragraph shall not be classified or reported as having multiple disabilities.

(7) Orthopedic impairment. A student with an orthopedic impairment is one who has been determined to meet the criteria for orthopedic impairment as stated in 34 CFR, §300.8(c)(8). The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on an orthopedic impairment must include a licensed physician.

(8) Other health impairment. A student with other health impairment is one who has been determined to meet the criteria for other health impairment due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette's Disorder as stated in 34 CFR, §300.8(c)(9). The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on other health impairment must include a licensed physician.

(9) Learning disability.

(A) Prior to and as part of the evaluation described in subparagraph (B) of this paragraph and 34 CFR, §§300.307-300.311, and in order to ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or mathematics, the following must be considered:

(i) data that demonstrates the child was provided appropriate instruction in reading (as described in 20 USC, §6368(3)), and/or mathematics within general education settings delivered by qualified personnel; and

(ii) data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal evaluation of student progress during instruction. Data-based documentation of repeated assessments may include, but is not limited to, response to intervention progress monitoring results, in-class tests on grade-level curriculum, or other regularly administered assessments. Intervals are considered reasonable if consistent with the assessment requirements of a student's specific instructional program.

(B) A student with a learning disability is one who:

(i) has been determined through a variety of assessment tools and strategies to meet the criteria for a specific learning disability as stated in 34 CFR, §300.8(c)(10), in accordance with the provisions in 34 CFR, §§300.307-300.311; and

(ii) does not achieve adequately for the child's age or meet state-approved grade-level standards in oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematics calculation, or mathematics problem solving when provided appropriate instruction, as indicated by performance on multiple measures such as in-class tests; grade average over time (e.g. six weeks, semester); norm- or criterion-referenced tests; statewide assessments; or a process based on the child's response to scientific, research-based intervention; and

(I) does not make sufficient progress when provided a process based on the child's response to scientific, research-based intervention (as defined in 20 USC, §7801(37)), as indicated by the child's performance relative to the performance of the child's peers on repeated, curriculum-based assessments of achievement at reasonable intervals, reflecting student progress during classroom instruction; or

(II) exhibits a pattern of strengths and weaknesses in performance, achievement, or both relative to age, grade-level standards, or intellectual ability, as indicated by significant variance among specific areas of cognitive function, such as working memory and verbal comprehension, or between specific areas of cognitive function and academic achievement.

(10) Speech impairment. A student with a speech impairment is one who has been determined to meet the criteria for speech or language impairment as stated in 34 CFR, §300.8(c)(11). The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on a speech impairment must include a certified speech and hearing therapist, a certified speech and language therapist, or a licensed speech/language pathologist.

(11) Traumatic brain injury. A student with a traumatic brain injury is one who has been determined to meet the criteria for traumatic brain injury as stated in 34 CFR, §300.8(c)(12). The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on a traumatic brain injury must include a licensed physician, in addition to the licensed or certified practitioners specified in subsection (b)(1) of this section.

(12) Visual impairment.

(A) A student with a visual impairment is one who has been determined to meet the criteria for visual impairment as stated in 34 CFR, §300.8(c)(13). The visual loss should be stated in exact measures of visual field and corrected visual acuity at a distance and at close range in each eye in a report by a licensed ophthalmologist or optometrist. The report should also include prognosis whenever possible. If exact measures cannot be obtained, the eye specialist must so state and provide best estimates. In meeting the criteria stated in 34 CFR, §300.8(c)(13), a student with a visual impairment is one who:

(i) has been determined by a licensed ophthalmologist or optometrist:

(I) to have no vision or to have a serious visual loss after correction; or

(II) to have a progressive medical condition that will result in no vision or a serious visual loss after correction.

(ii) has been determined by the following evaluations to have a need for special services:

(I) a functional vision evaluation by a professional certified in the education of students with visual impairments or a certified orientation and mobility instructor. The evaluation must include the performance of tasks in a variety of environments requiring the use of both near and distance vision and recommendations concerning the need for a clinical low vision evaluation and an orientation and mobility evaluation; and

(II) a learning media assessment by a professional certified in the education of students with visual impairments. The learning media assessment must include recommendations concerning which specific visual, tactual, and/or auditory learning media are appropriate for the student and whether or not there is a need for ongoing evaluation in this area.

(B) A student with a visual impairment is functionally blind if, based on the preceding evaluations, the student will use tactual media (which includes Braille) as a primary tool for learning to be able to communicate in both reading and writing at the same level of proficiency as other students of comparable ability.

(13) Noncategorical. A student between the ages of 3-5 who is evaluated as having mental retardation, emotional disturbance, a specific learning disability, or autism may be described as noncategorical early childhood.

Comments

Source Note: The provisions of this §89.1040 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1045: Notice to Parents for Admission, Review, and Dismissal (ARD) Committee Meetings

(a) A district shall invite the parents and adult student to participate as members of the admission, review, and dismissal (ARD) committee by providing written notice in accordance with 34 Code of Federal Regulations (CFR), §§300.300, 300.322, and 300.503.

(b) A parent may request an ARD committee meeting at any mutually agreeable time to address specific concerns about his or her child's special education services. The school district must respond to the parent's request either by holding the requested meeting or by requesting assistance through the Texas Education Agency's mediation process. The district should inform parents of the functions of the ARD committee and the circumstances or types of problems for which requesting an ARD committee meeting would be appropriate.

Comments

Source Note: The provisions of this §89.1045 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1047: Procedures for Surrogate and Foster Parents

(a) An individual assigned to act as a surrogate parent for a student with a disability, in accordance with 34 Code of Federal Regulations (CFR), §300.519, relating to surrogate parents, must comply with the requirements specified in Texas Education Code (TEC), §29.001(10).

(1) Pursuant to TEC, §29.001(10)(A), an individual assigned to act as a surrogate parent must complete a training program in which the individual is provided with an explanation of the provisions of federal and state laws, rules, and regulations relating to:

(A) the identification of a student with a disability;

(B) the collection of evaluation and re-evaluation data relating to a student with a disability;

(C) the admission, review, and dismissal (ARD) committee process;

(D) the development of an individualized education program (IEP), including the consideration of transition services for a student who is at least 16 years of age;

(E) the determination of least restrictive environment;

(F) the implementation of an IEP;

(G) the procedural rights and safeguards available under 34 CFR, §§300.148, 300.151-300.153, 300.229, 300.300, 300.500-300.520, 300.530-300.537, and 300.610-300.627, relating to the issues described in 34 CFR, §300.504(c); and

(H) the sources that the surrogate parent may contact to obtain assistance in understanding the provisions of federal and state laws, rules, and regulations relating to students with disabilities.

(2) The training program described in subsection (a)(1) of this section must be provided in the native language or other mode of communication used by the individual who is to serve as a surrogate parent.

(3) The individual assigned to act as a surrogate parent must complete the training program described in subsection (a)(1) of this section within 90 calendar days after the date of initial assignment as a surrogate parent. Once an individual has completed a training program conducted or provided by or through the Texas Department of Family and Protective Services (TDFPS), a school district, an education service center, or any entity that receives federal funds to provide Individuals with Disabilities Education Act (IDEA) training to parents, the individual shall not be required by any school district to complete additional training in order to continue serving as the student's surrogate parent or to serve as the surrogate parent for other students with disabilities. School districts may provide ongoing or additional training to surrogate parents and/or parents; however, a district cannot deny an individual who has received the training as described in subsection (a)(1) of this section from serving as a surrogate parent on the grounds that the individual has not been trained.

(4) A school district should provide or arrange for the provision of the training program described in subsection (a)(1) of this section prior to assigning an individual to act as a surrogate parent but no later than 90 calendar days after assignment.

(b) A foster parent may act as a parent of a child with a disability, in accordance with 34 CFR, §300.30, relating to the definition of parent, if he/she complies with the requirements of TEC, §29.015(b), relating to foster parents, including the completion of the training program described in subsection (a)(1) of this section.

(1) The foster parent must complete the training program described in subsection (a)(1) of this section within 90 calendar days after the date of initial assignment as the parent. Once a foster parent has completed a training program conducted or provided by the TDFPS, a school district, an education service center, or any entity that receives federal funds to provide IDEA training to parents, the foster parent shall not be required by any school district to complete additional training in order to continue serving as his/her child's surrogate parent or parent or to serve as the surrogate parent or parent for other students with disabilities. School districts may provide ongoing or additional training to foster parents and/or parents; however, a district cannot deny an individual who has received the training as described in subsection (a)(1) of this section from serving as the parent on the grounds that the individual has not been trained.

(2) A school district should provide or arrange for the provision of the training program described in subsection (a)(1) of this section prior to assigning a foster parent to act as a parent but no later than 90 calendar days after assignment.

(c) Each school district or shared services arrangement shall develop and implement procedures for conducting an analysis of whether a foster parent or potential surrogate parent has an interest that conflicts with the interests of his/her child. A foster parent in a home which is verified by the TDFPS or a child-placing agency shall not be deemed to have a financial conflict of interest by virtue of serving as the foster parent in that home. These homes include, but are not limited to, basic, habilitative, primary medical, or therapeutic foster or foster group homes. In addition, issues concerning quality of care of the child do not constitute a conflict of interest. Concerns regarding quality of care of the child should be communicated, and may be statutorily required to be reported, to TDFPS.

(d) If a school district denies a foster parent the right to serve as a surrogate parent or parent, the school district must provide the foster parent with written notice of such denial within seven calendar days after the date on which the decision is made. The written notice shall:

(1) specify the reason(s) the foster parent is being denied the right to serve as the surrogate parent or parent (the notice must specifically explain the interests of the foster parent that conflict with the interests of his/her child); and

(2) inform the foster parent of his/her right to file a complaint with the Texas Education Agency in accordance with 34 CFR, §§300.151-300.153, relating to complaint procedures.

Comments

Source Note: The provisions of this §89.1047 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1049: Parental Rights Regarding Adult Students

(a) In accordance with 34 Code of Federal Regulations (CFR), §300.320(c) and §300.520, and Texas Education Code (TEC), §29.017, beginning at least one year before a student reaches 18 years of age, the student's individualized education program (IEP) must include a statement that the student has been informed that, unless the student's parent or other individual has been granted guardianship of the student under the Probate Code, Chapter XIII, Guardianship, all rights granted to the parent under the Individuals with Disabilities Education Act (IDEA), Part B, other than the right to receive any notice required under IDEA, Part B, will transfer to the student upon reaching age 18. After the student reaches the age of 18, except as provided by subsection (b) of this section, the school district shall provide any notice required under IDEA, Part B, to both the adult student and the parent.

(b) In accordance with 34 CFR, §300.520(a)(2), and TEC, §29.017(a), all rights accorded to a parent under IDEA, Part B, including the right to receive any notice required by IDEA, Part B, will transfer to an 18-year-old student who is incarcerated in an adult or juvenile, state or local correctional institution, unless the student's parent or other individual has been granted guardianship of the student under the Probate Code, Chapter XIII, Guardianship.

(c) In accordance with 34 CFR, §300.520(a)(3), a school district must notify in writing the adult student and parent of the transfer of parental rights, as described in subsections (a) and (b) of this section, at the time the student reaches the age of 18. This notification is separate and distinct from the requirement that the student's IEP include a statement relating to the transfer of parental rights beginning at least one year before the student reaches the age of 18. This notification is not required to contain the elements of notice referenced in 34 CFR, §300.503, but must include a statement that parental rights have transferred to the adult student and provide contact information for the parties to use in obtaining additional information.

(d) A notice under IDEA, Part B, which is required to be given to an adult student and parent does not create a right for the parent to consent to or participate in the proposal or refusal to which the notice relates. For example, a notice of an admission, review, and dismissal (ARD) committee meeting does not constitute invitation to, or create a right for, the parent to attend the meeting. However, in accordance with 34 CFR, §300.321(a)(6), the adult student or the school district may invite individuals who have knowledge or special expertise regarding the student, including the parent.

(e) Nothing in this section prohibits a valid power of attorney from being executed by an individual who holds rights under IDEA, Part B.

Comments

Source Note: The provisions of this §89.1049 adopted to be effective April 18, 2002, 27 TexReg 3061; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1050: The Admission, Review, and Dismissal (ARD) Committee

(a) Each school district shall establish an admission, review, and dismissal (ARD) committee for each eligible student with a disability and for each student for whom a full and individual initial evaluation is conducted pursuant to §89.1011 of this title (relating to Referral for Full and Individual Initial Evaluation). The ARD committee shall be the individualized education program (IEP) team defined in federal law and regulations, including, specifically, 34 Code of Federal Regulations (CFR), §300.321. The school district shall be responsible for all of the functions for which the IEP team is responsible under federal law and regulations and for which the ARD committee is responsible under state law, including, specifically, the following:

(1) 34 CFR, §§300.320-300.325, and Texas Education Code (TEC), §29.005 (individualized education programs);

(2) 34 CFR, §§300.145-300.147 (relating to placement of eligible students in private schools by a school district);

(3) 34 CFR, §§300.132, 300.138, and 300.139 (relating to the development and implementation of service plans for eligible students placed by parents in private school who have been designated to receive special education and related services);

(4) 34 CFR, §300.530 and §300.531, and TEC, §37.004 (disciplinary placement of students with disabilities);

(5) 34 CFR, §§300.302-300.306 (relating to evaluations, re-evaluations, and determination of eligibility);

(6) 34 CFR, §§300.114-300.117 (relating to least restrictive environment);

(7) TEC, §28.006 (Reading Diagnosis);

(8) TEC, §28.0211 (Satisfactory Performance on Assessment Instruments Required; Accelerated Instruction);

(9) TEC, §28.0212 (Personal Graduation Plan);

(10) TEC, §28.0213 (Intensive Program of Instruction);

(11) TEC, Chapter 29, Subchapter I (Programs for Students Who Are Deaf or Hard of Hearing);

(12) TEC, §30.002 (Education of Children with Visual Impairments);

(13) TEC, §30.003 (Support of Students Enrolled in the Texas School for the Blind and Visually Impaired or Texas School for the Deaf);

(14) TEC, §33.081 (Extracurricular Activities);

(15) TEC, Chapter 39, Subchapter B (Assessment of Academic Skills); and

(16) TEC, §42.151 (Special Education).

(b) For a child from birth through two years of age with visual and/or auditory impairments, an individualized family services plan (IFSP) meeting must be held in place of an ARD committee meeting in accordance with 34 CFR, §§300.320-300.324, and the memorandum of understanding between the Texas Education Agency (TEA) and Texas Interagency Council on Early Childhood Intervention. For students three years of age and older, school districts must develop an IEP.

(c) ARD committee membership.

(1) ARD committees shall include those persons identified in 34 CFR, §300.321(a), as follows:

(A) the parent(s) of the child;

(B) not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment);

(C) not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child;

(D) a representative of the school district who:

(i) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

(ii) is knowledgeable about the general education curriculum; and

(iii) is knowledgeable about the availability of resources of the school district;

(E) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in subparagraphs (B)-(F) of this paragraph;

(F) at the discretion of the parent or the school district, other individuals who have knowledge or special expertise regarding the child, including related services personnel, as appropriate; and

(G) whenever appropriate, the child with a disability.

(2) The regular education teacher who serves as a member of a student's ARD committee should be a regular education teacher who is responsible for implementing a portion of the student's IEP.

(3) The special education teacher or special education provider that participates in the ARD committee meeting in accordance with 34 CFR, §300.321(a)(3), must be appropriately certified or licensed as required by 34 CFR, §300.18 and §300.156.

(4) If the student is:

(A) a student with a suspected or documented visual impairment, the ARD committee shall include a teacher who is certified in the education of students with visual impairments;

(B) a student with a suspected or documented auditory impairment, the ARD committee shall include a teacher who is certified in the education of students with auditory impairments; or

(C) a student with suspected or documented deaf-blindness, the ARD committee shall include a teacher who is certified in the education of students with visual impairments and a teacher who is certified in the education of students with auditory impairments.

(5) An ARD committee member, including a member described in subsection (c)(4) of this section, is not required to attend an ARD committee meeting if the conditions of either 34 CFR, §300.321(e)(1), regarding attendance, or 34 CFR, §300.321(e)(2), regarding excusal, have been met.

(d) The ARD committee shall make its decisions regarding students referred for a full and individual initial evaluation within 30 calendar days from the date of the completion of the written full and individual initial evaluation report. If the 30th day falls during the summer and school is not in session, the ARD committee shall have until the first day of classes in the fall to finalize decisions concerning the initial eligibility determination, the IEP, and placement, unless the full and individual initial evaluation indicates that the student will need extended school year (ESY) services during that summer.

(e) The written report of the ARD committee shall document the decisions of the committee with respect to issues discussed at the meeting. The report shall include the date, names, positions, and signatures of the members participating in each meeting in accordance with 34 CFR, §§300.321, 300.322, 300.324, and 300.325. The report shall also indicate each member's agreement or disagreement with the committee's decisions. In the event TEC, §29.005(d)(1), applies, the district shall provide a written or audio-taped copy of the student's IEP, as defined in 34 CFR, §300.324 and §300.320. In the event TEC, §29.005(d)(2), applies, the district shall make a good faith effort to provide a written or audio-taped copy of the student's IEP, as defined in 34 CFR, §300.324 and §300.320.

(f) A school district shall comply with the following for a student who is newly enrolled in a school district.

(1) If the student was in the process of being evaluated for special education eligibility in the student's previous school district, the student's current school district shall coordinate with the student's previous school district as necessary and as expeditiously as possible to ensure a prompt completion of the evaluation in accordance with 34 CFR, §300.301(d)(2) and (e) and §300.304(c)(5). The evaluation shall be completed not later than the 60th calendar day following the date on which the current school district receives written consent as required by the TEC, §29.004.

(2) When a student transfers within the state and the parents verify that the student was receiving special education services in the previous school district or the previous school district verifies in writing or by telephone that the student was receiving special education services, the school district must meet the requirements of 34 CFR, §300.323(a) and (e), regarding the provision of special education services. The timeline for completing the requirements outlined in 34 CFR, §300.323(e)(1) or (2), shall be 30 school days from the date the student is verified as being a student eligible for special education services.

(3) When a student transfers from another state and the parents verify that the student was receiving special education services in the previous school district or the previous school district verifies in writing or by telephone that the student was receiving special education services, the school district must meet the requirements of 34 CFR, §300.323(a) and (f), regarding the provision of special education services. The timeline for completing the requirements outlined in 34 CFR, §300.323(f)(1) and (2), shall be 30 school days from the date the student is verified as being a student eligible for special education services.

(4) In accordance with TEC, §25.002, and 34 CFR, §300.323(g), the school district in which the student was previously enrolled shall furnish the new school district with a copy of the student's records, including the child's special education records, not later than the 30th calendar day after the student was enrolled in the new school district. The Family Educational Rights and Privacy Act (FERPA), 20 United States Code, §1232g, does not require the student's current and previous school districts to obtain parental consent before requesting or sending the student's special education records if the disclosure is conducted in accordance with 34 CFR, §99.31(a)(2) and §99.34.

(g) All disciplinary actions regarding students with disabilities shall be determined in accordance with 34 CFR, §§300.101(a) and §300.530-300.536 (relating to disciplinary actions and procedures), the TEC, Chapter 37, Subchapter A (Alternative Settings for Behavior Management), and §89.1053 of this title (relating to Procedures for Use of Restraint and Time-Out).

(h) All members of the ARD committee shall have the opportunity to participate in a collaborative manner in developing the IEP. A decision of the committee concerning required elements of the IEP shall be made by mutual agreement of the required members if possible. The committee may agree to an annual IEP or an IEP of shorter duration.

(1) When mutual agreement about all required elements of the IEP is not achieved, the party (the parents or adult student) who disagrees shall be offered a single opportunity to have the committee recess for a period of time not to exceed ten school days. This recess is not required when the student's presence on the campus presents a danger of physical harm to the student or others or when the student has committed an expellable offense or an offense which may lead to a placement in an alternative education program (AEP). The requirements of this subsection (h) do not prohibit the members of the ARD committee from recessing an ARD committee meeting for reasons other than the failure of the parents and the school district from reaching mutual agreement about all required elements of an IEP.

(2) During the recess the committee members shall consider alternatives, gather additional data, prepare further documentation, and/or obtain additional resource persons which may assist in enabling the ARD committee to reach mutual agreement.

(3) The date, time, and place for continuing the ARD committee meeting shall be determined by mutual agreement prior to the recess.

(4) If a ten-day recess is implemented as provided in paragraph (1) of this subsection and the ARD committee still cannot reach mutual agreement, the district shall implement the IEP which it has determined to be appropriate for the student.

(5) When mutual agreement is not reached, a written statement of the basis for the disagreement shall be included in the IEP. The members who disagree shall be offered the opportunity to write their own statements.

(6) When a district implements an IEP with which the parents disagree or the adult student disagrees, the district shall provide prior written notice to the parents or adult student as required in 34 CFR, §300.503.

(7) Parents shall have the right to file a complaint, request mediation, and request a due process hearing at any point when they disagree with decisions of the ARD committee.

Comments

Source Note: The provisions of this §89.1050 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective August 1, 2002, 27 TexReg 3061; amended to be effective November 16, 2003, 28 TexReg 9830; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1052: Discretionary Placements in Juvenile Justice Alternative Education Programs (JJAEP)

(a) This section applies only to the expulsion of a student with a disability under:

(1) Texas Education Code (TEC), §37.007(b), (c), or (f); or

(2) TEC, §37.007(d), as a result of conduct that contains the elements of any offense listed in TEC, §37.007(b)(2)(C), against any employee or volunteer in retaliation for or as a result of the person's employment or association with a school district.

(b) In a county with a JJAEP, a local school district shall invite the administrator of the JJAEP or the administrator's designee to an admission, review, and dismissal (ARD) committee meeting convened to discuss the expulsion of a student with a disability under one of the provisions listed in subsection (a) of this section, relating to offenses for which a school district may expel a student. The reasonable notice of the ARD committee meeting must be provided consistent with 34 Code of Federal Regulations (CFR), §300.322 and §300.503, and §89.1015 of this title (relating to Time Line for All Notices). A copy of the student's current individualized education program (IEP) must be provided to the JJAEP administrator or designee with the notice. If the JJAEP representative is unable to attend the ARD committee meeting, the representative must be given the opportunity to participate in the meeting through alternative means including conference telephone calls. The JJAEP representative may participate in the meeting to the extent that the meeting relates to the student's placement in the JJAEP and implementation of the student's current IEP in the JJAEP.

(c) For a student with a disability who was expelled under one of the provisions listed in subsection (a) of this section, an ARD committee meeting must be convened to reconsider placement of the student in the JJAEP, if the JJAEP administrator or designee provides written notice to the school district of specific concerns that the student's educational or behavioral needs cannot be met in the JJAEP. The reasonable notice of the ARD committee meeting must be provided consistent with 34 CFR, §300.322 and §300.503, and §89.1015 of this title (relating to Time Line for All Notices). If the JJAEP representative is unable to attend the ARD committee meeting, the representative must be given the opportunity to participate in the meeting through alternative means including conference telephone calls. The JJAEP representative may participate in the meeting to the extent that the meeting relates to the student's continued placement in the JJAEP.

Comments

Source Note: The provisions of this §89.1052 adopted to be effective August 1, 2002, 27 TexReg 3061; amended to be effective November 16, 2003, 28 TexReg 9830; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1053: Procedures for Use of Restraint and Time-Out

(a) Requirement to implement. In addition to the requirements of 34 Code of Federal Regulations (CFR), §300.324(a)(2)(i) and (c), school districts and charter schools must implement the provisions of this section regarding the use of restraint and time-out. In accordance with the provisions of Texas Education Code (TEC), §37.0021 (Use of Confinement, Restraint, Seclusion, and Time-Out), it is the policy of the state to treat with dignity and respect all students, including students with disabilities who receive special education services under TEC, Chapter 29, Subchapter A.

(b) Definitions.

(1) Emergency means a situation in which a student's behavior poses a threat of:

(A) imminent, serious physical harm to the student or others; or

(B) imminent, serious property destruction.

(2) Restraint means the use of physical force or a mechanical device to significantly restrict the free movement of all or a portion of the student's body.

(3) Time-out means a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting:

(A) that is not locked; and

(B) from which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.

(c) Use of restraint. A school employee, volunteer, or independent contractor may use restraint only in an emergency as defined in subsection (b) of this section and with the following limitations.

(1) Restraint shall be limited to the use of such reasonable force as is necessary to address the emergency.

(2) Restraint shall be discontinued at the point at which the emergency no longer exists.

(3) Restraint shall be implemented in such a way as to protect the health and safety of the student and others.

(4) Restraint shall not deprive the student of basic human necessities.

(d) Training on use of restraint. Training for school employees, volunteers, or independent contractors shall be provided according to the following requirements.

(1) A core team of personnel on each campus must be trained in the use of restraint, and the team must include a campus administrator or designee and any general or special education personnel likely to use restraint.

(2) Personnel called upon to use restraint in an emergency and who have not received prior training must receive training within 30 school days following the use of restraint.

(3) Training on use of restraint must include prevention and de-escalation techniques and provide alternatives to the use of restraint.

(4) All trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of restraint.

(e) Documentation and notification on use of restraint. In a case in which restraint is used, school employees, volunteers, or independent contractors shall implement the following documentation requirements.

(1) On the day restraint is utilized, the campus administrator or designee must be notified verbally or in writing regarding the use of restraint.

(2) On the day restraint is utilized, a good faith effort shall be made to verbally notify the parent(s) regarding the use of restraint.

(3) Written notification of the use of restraint must be placed in the mail or otherwise provided to the parent within one school day of the use of restraint.

(4) Written documentation regarding the use of restraint must be placed in the student's special education eligibility folder in a timely manner so the information is available to the ARD committee when it considers the impact of the student's behavior on the student's learning and/or the creation or revision of a behavioral intervention plan (BIP).

(5) Written notification to the parent(s) and documentation to the student's special education eligibility folder shall include the following:

(A) name of the student;

(B) name of the staff member(s) administering the restraint;

(C) date of the restraint and the time the restraint began and ended;

(D) location of the restraint;

(E) nature of the restraint;

(F) a description of the activity in which the student was engaged immediately preceding the use of restraint;

(G) the behavior that prompted the restraint;

(H) the efforts made to de-escalate the situation and alternatives to restraint that were attempted; and

(I) information documenting parent contact and notification.

(f) Clarification regarding restraint. The provisions adopted under this section do not apply to the use of physical force or a mechanical device which does not significantly restrict the free movement of all or a portion of the student's body. Restraint that involves significant restriction as referenced in subsection (b)(2) of this section does not include:

(1) physical contact or appropriately prescribed adaptive equipment to promote normative body positioning and/or physical functioning;

(2) limited physical contact with a student to promote safety (e.g., holding a student's hand), prevent a potentially harmful action (e.g., running into the street), teach a skill, redirect attention, provide guidance to a location, or provide comfort;

(3) limited physical contact or appropriately prescribed adaptive equipment to prevent a student from engaging in ongoing, repetitive self-injurious behaviors, with the expectation that instruction will be reflected in the individualized education program (IEP) as required by 34 CFR, §300.324(a)(2)(i) and (c) to promote student learning and reduce and/or prevent the need for ongoing intervention; or

(4) seat belts and other safety equipment used to secure students during transportation.

(g) Use of time-out. A school employee, volunteer, or independent contractor may use time-out in accordance with subsection (b)(3) of this section with the following limitations.

(1) Physical force or threat of physical force shall not be used to place a student in time-out.

(2) Time-out may only be used in conjunction with an array of positive behavior intervention strategies and techniques and must be included in the student's IEP and/or BIP if it is utilized on a recurrent basis to increase or decrease a targeted behavior.

(3) Use of time-out shall not be implemented in a fashion that precludes the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student's IEP.

(h) Training on use of time-out. Training for school employees, volunteers, or independent contractors shall be provided according to the following requirements.

(1) General or special education personnel who implement time-out based on requirements established in a student's IEP and/or BIP must be trained in the use of time-out.

(2) Newly-identified personnel called upon to implement time-out based on requirements established in a student's IEP and/or BIP must receive training in the use of time-out within 30 school days of being assigned the responsibility for implementing time-out.

(3) Training on the use of time-out must be provided as part of a program which addresses a full continuum of positive behavioral intervention strategies, and must address the impact of time-out on the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student's IEP.

(4) All trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of time-out.

(i) Documentation on use of time-out. Necessary documentation or data collection regarding the use of time-out, if any, must be addressed in the IEP or BIP. The admission, review, and dismissal (ARD) committee must use any collected data to judge the effectiveness of the intervention and provide a basis for making determinations regarding its continued use.

(j) Student safety. Any behavior management technique and/or discipline management practice must be implemented in such a way as to protect the health and safety of the student and others. No discipline management practice may be calculated to inflict injury, cause harm, demean, or deprive the student of basic human necessities.

(k) Data reporting. With the exception of actions covered by subsection (f) of this section, data regarding the use of restraint must be electronically reported to the Texas Education Agency in accordance with reporting standards specified by the agency.

(l) The provisions adopted under this section do not apply to:

(1) a peace officer while performing law enforcement duties;

(2) juvenile probation, detention, or corrections personnel; or

(3) an educational services provider with whom a student is placed by a judicial authority, unless the services are provided in an educational program of a school district.

Comments

Source Note: The provisions of this §89.1053 adopted to be effective August 1, 2002, 27 TexReg 3061; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1055: Content of the Individualized Education Program (IEP)

(a) The individualized education program (IEP) developed by the admission, review, and dismissal (ARD) committee for each student with a disability shall comply with the requirements of 34 Code of Federal Regulations (CFR), §300.320 and §300.324.

(b) The IEP must include a statement of any individual appropriate and allowable accommodations in the administration of assessment instruments developed in accordance with Texas Education Code (TEC), §39.023(a)-(c), or district-wide assessments of student achievement (if the district administers such optional assessments) that are necessary to measure the academic achievement and functional performance of the child on the assessments. If the ARD committee determines that the student will not participate in a general state-wide assessment or district-wide assessment of student achievement (or part of an assessment), the IEP must include a statement of:

(1) why the child cannot participate in the regular assessment; and

(2) why the particular alternate assessment selected is appropriate for the child.

(c) If the ARD committee determines that the student is in need of extended school year (ESY) services, as described in §89.1065 of this title (relating to Extended School Year Services (ESY Services)), then the IEP must also include goals and objectives for ESY services from the student's current IEP.

(d) For students with visual impairments, from birth through 21 years of age, the IEP or individualized family services plan (IFSP) shall also meet the requirements of TEC, §30.002(e).

(e) For students eligible under §89.1040(c)(1) of this title (relating to Eligibility Criteria), the strategies described in paragraphs (1)-(11) of this subsection shall be considered, based on peer-reviewed, research-based educational programming practices to the extent practicable and, when needed, addressed in the IEP:

(1) extended educational programming (for example: extended day and/or extended school year services that consider the duration of programs/settings based on assessment of behavior, social skills, communication, academics, and self-help skills);

(2) daily schedules reflecting minimal unstructured time and active engagement in learning activities (for example: lunch, snack, and recess periods that provide flexibility within routines; adapt to individual skill levels; and assist with schedule changes, such as changes involving substitute teachers and pep rallies);

(3) in-home and community-based training or viable alternatives that assist the student with acquisition of social/behavioral skills (for example: strategies that facilitate maintenance and generalization of such skills from home to school, school to home, home to community, and school to community);

(4) positive behavior support strategies based on relevant information, for example:

(A) antecedent manipulation, replacement behaviors, reinforcement strategies, and data-based decisions; and

(B) a Behavior Intervention Plan developed from a Functional Behavioral Assessment that uses current data related to target behaviors and addresses behavioral programming across home, school, and community-based settings;

(5) beginning at any age, consistent with subsections (g) of this section, futures planning for integrated living, work, community, and educational environments that considers skills necessary to function in current and post-secondary environments;

(6) parent/family training and support, provided by qualified personnel with experience in Autism Spectrum Disorders (ASD), that, for example:

(A) provides a family with skills necessary for a child to succeed in the home/community setting;

(B) includes information regarding resources (for example: parent support groups, workshops, videos, conferences, and materials designed to increase parent knowledge of specific teaching/management techniques related to the child's curriculum); and

(C) facilitates parental carryover of in-home training (for example: strategies for behavior management and developing structured home environments and/or communication training so that parents are active participants in promoting the continuity of interventions across all settings);

(7) suitable staff-to-student ratio appropriate to identified activities and as needed to achieve social/behavioral progress based on the child's developmental and learning level (acquisition, fluency, maintenance, generalization) that encourages work towards individual independence as determined by, for example:

(A) adaptive behavior evaluation results;

(B) behavioral accommodation needs across settings; and

(C) transitions within the school day;

(8) communication interventions, including language forms and functions that enhance effective communication across settings (for example: augmentative, incidental, and naturalistic teaching);

(9) social skills supports and strategies based on social skills assessment/curriculum and provided across settings (for example: trained peer facilitators (e.g., circle of friends), video modeling, social stories, and role playing);

(10) professional educator/staff support (for example: training provided to personnel who work with the student to assure the correct implementation of techniques and strategies described in the IEP); and

(11) teaching strategies based on peer reviewed, research-based practices for students with ASD (for example: those associated with discrete-trial training, visual supports, applied behavior analysis, structured learning, augmentative communication, or social skills training).

(f) If the ARD committee determines that services are not needed in one or more of the areas specified in subsection (e)(1)-(11) of this section, the IEP must include a statement to that effect and the basis upon which the determination was made.

(g) For each student with a disability, beginning at age 16 (prior to the date on which a student turns 16 years of age) or younger, if determined appropriate by the ARD committee, the following issues must be considered in the development of the IEP, and, if appropriate, integrated into the IEP:

(1) appropriate student involvement in the student's transition to life outside the public school system;

(2) if the student is younger than 18 years of age, appropriate parental involvement in the student's transition;

(3) if the student is at least 18 years of age, appropriate parental involvement in the student's transition, if the parent is invited to participate by the student or the school district in which the student is enrolled;

(4) any postsecondary education options;

(5) a functional vocational evaluation;

(6) employment goals and objectives;

(7) if the student is at least 18 years of age, the availability of age-appropriate instructional environments;

(8) independent living goals and objectives; and

(9) appropriate circumstances for referring a student or the student's parents to a governmental agency for services.

Comments

Source Note: The provisions of this §89.1055 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1056: Transfer of Assistive Technology Devices

(a) Unless otherwise specifically defined in this section, the terms used in this section shall have the meanings ascribed to such terms in Texas Education Code (TEC), §30.0015, (Transfer of Assistive Technology Devices).

(b) A transfer of an assistive technology device (ATD) pursuant to TEC, §30.0015, shall be in accordance with a transfer agreement which incorporates the standards described in TEC, §30.0015(c), and which includes, specifically, the following.

(1) The transferor and transferee must represent and agree that the terms of the transfer are based on the fair market value of the ATD, determined in accordance with generally accepted accounting principles.

(2) The informed consent of the parent of the student with a disability for whom the ATD is being transferred must be obtained before the transfer of an ATD pursuant to TEC, §30.0015. The procedures employed by a school district in obtaining such informed consent shall be consistent with the procedures employed by the district to obtain parental consent under 34 Code of Federal Regulations (CFR), §300.300. If the student has the legal capacity to enter into a contract, the informed consent may be obtained from the student. Consistent with 34 CFR, §300.505(c), informed parental or adult student consent need not be obtained if the school district can demonstrate that it has taken reasonable measures to obtain that consent, and the student's parent or the adult student has failed to respond. To meet the reasonable measures requirement, the school district must use procedures consistent with those described in 34 CFR, §300.322(d).

(3) If the transfer is a sale, then the sale of the ATD shall be evidenced by a "Uniform Transfer Agreement" (UTA) which includes the following:

(A) the names of the transferor and the transferee (which may be any individual or entity identified in TEC, §30.0015(b));

(B) the date of the transfer;

(C) a description of the ATD being transferred;

(D) the terms of the transfer (including the transfer of warranties, to the extent applicable); and

(E) the signatures of authorized representatives of both the transferor and the transferee.

(c) The Texas Education Agency shall annually disseminate to school districts the standards for a school district's transfer of an ATD pursuant to TEC, §30.0015.

(d) Nothing in this section or in TEC, §30.0015, shall:

(1) alter any existing obligation under federal or state law to provide ATDs to students with disabilities;

(2) require a school district to transfer an ATD to any person or entity;

(3) limit a school district's right to sell, lease, loan, or otherwise convey or dispose of property as authorized by federal or state laws, rules, or regulations; or

(4) authorize any transfer of an ATD that is inconsistent with any restriction on transferability imposed by the manufacturer or developer of the ATD or applicable federal or state laws, rules, or regulations.

Comments

Source Note: The provisions of this §89.1056 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1065: Extended School Year Services (ESY Services)

Extended school year (ESY) services are defined as individualized instructional programs beyond the regular school year for eligible students with disabilities.

(1) The need for ESY services must be determined on an individual student basis by the admission, review, and dismissal (ARD) committee in accordance with 34 Code of Federal Regulations (CFR), §300.106, and the provisions of this section. In determining the need for and in providing ESY services, a school district may not:

(A) limit ESY services to particular categories of disability; or

(B) unilaterally limit the type, amount, or duration of ESY services.

(2) The need for ESY services must be documented from formal and/or informal evaluations provided by the district or the parents. The documentation shall demonstrate that in one or more critical areas addressed in the current individualized education program (IEP) objectives, the student has exhibited, or reasonably may be expected to exhibit, severe or substantial regression that cannot be recouped within a reasonable period of time. Severe or substantial regression means that the student has been, or will be, unable to maintain one or more acquired critical skills in the absence of ESY services.

(3) The reasonable period of time for recoupment of acquired critical skills shall be determined on the basis of needs identified in each student's IEP. If the loss of acquired critical skills would be particularly severe or substantial, or if such loss results, or reasonably may be expected to result, in immediate physical harm to the student or to others, ESY services may be justified without consideration of the period of time for recoupment of such skills. In any case, the period of time for recoupment shall not exceed eight weeks.

(4) A skill is critical when the loss of that skill results, or is reasonably expected to result, in any of the following occurrences during the first eight weeks of the next regular school year:

(A) placement in a more restrictive instructional arrangement;

(B) significant loss of acquired skills necessary for the student to appropriately progress in the general curriculum;

(C) significant loss of self-sufficiency in self-help skill areas as evidenced by an increase in the number of direct service staff and/or amount of time required to provide special education or related services;

(D) loss of access to community-based independent living skills instruction or an independent living environment provided by noneducational sources as a result of regression in skills; or

(E) loss of access to on-the-job training or productive employment as a result of regression in skills.

(5) If the district does not propose ESY services for discussion at the annual review of a student's IEP, the parent may request that the ARD committee discuss ESY services pursuant to 34 CFR, §300.321.

(6) If a student for whom ESY services were considered and rejected loses critical skills because of the decision not to provide ESY services, and if those skills are not regained after the reasonable period of time for recoupment, the ARD committee shall reconsider the current IEP if the student's loss of critical skills interferes with the implementation of the student's IEP.

(7) For students enrolling in a district during the school year, information obtained from the prior school district as well as information collected during the current year may be used to determine the need for ESY services.

(8) The provision of ESY services is limited to the educational needs of the student and shall not supplant or limit the responsibility of other public agencies to continue to provide care and treatment services pursuant to policy or practice, even when those services are similar to, or the same as, the services addressed in the student's IEP. No student shall be denied ESY services because the student receives care and treatment services under the auspices of other agencies.

(9) Districts are not eligible for reimbursement for ESY services provided to students for reasons other than those set forth in this section.

Comments

Source Note: The provisions of this §89.1065 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1070: Graduation Requirements

(a) Graduation with a regular high school diploma under subsection (b) or (d) of this section terminates a student's eligibility for special education services under this subchapter and Part B of the Individuals with Disabilities Education Act (IDEA), 20 United States Code, §§1400 et seq. In addition, as provided in Texas Education Code (TEC), §42.003(a), graduation with a regular high school diploma under subsection (b) or (d) of this section terminates a student's entitlement to the benefits of the Foundation School Program.

(b) A student receiving special education services may graduate and be awarded a regular high school diploma if:

(1) the student has satisfactorily completed the state's or district's (whichever is greater) minimum curriculum and credit requirements for graduation (under the recommended or distinguished achievement high school programs in Chapter 74 of this title (relating to Curriculum Requirements)) applicable to students in general education, including satisfactory performance on the exit level assessment instrument; or

(2) the student has satisfactorily completed the state's or district's (whichever is greater) minimum curriculum and credit requirements for graduation (under the minimum high school program in Chapter 74 of this title) applicable to students in general education, including participation in required state assessments. The student's admission, review, and dismissal (ARD) committee shall determine whether satisfactory performance on a required state assessment shall also be required for graduation.

(c) A student receiving special education services may also graduate and receive a regular high school diploma when the student's ARD committee has determined that the student has successfully completed:

(1) the student's individualized education program (IEP);

(2) one of the following conditions, consistent with the student's IEP:

(A) full-time employment, based on the student's abilities and local employment opportunities, in addition to sufficient self-help skills to enable the student to maintain the employment without direct and ongoing educational support of the local school district;

(B) demonstrated mastery of specific employability skills and self-help skills which do not require direct ongoing educational support of the local school district; or

(C) access to services which are not within the legal responsibility of public education, or employment or educational options for which the student has been prepared by the academic program;

(3) the state's or district's (whichever is greater) minimum credit requirements for students without disabilities; and

(4) the state's or district's minimum curriculum requirements to the extent possible with modifications/substitutions only when it is determined necessary by the ARD committee for the student to receive an appropriate education.

(d) A student receiving special education services may also graduate and receive a regular high school diploma upon the ARD committee determining that the student no longer meets age eligibility requirements and has completed the requirements specified in the IEP.

(e) All students graduating under this section shall be provided with a summary of academic achievement and functional performance as described in 34 Code of Federal Regulations (CFR), §300.305(e)(3). This summary shall consider, as appropriate, the views of the parent and student and written recommendations from adult service agencies on how to assist the student in meeting postsecondary goals. An evaluation as required by 34 CFR, §300.305(e)(1), shall be included as part of the summary for a student graduating under subsection (c) of this section.

(f) Students who participate in graduation ceremonies but who are not graduating under subsection (c) of this section and who will remain in school to complete their education do not have to be evaluated in accordance with subsection (e) of this section.

(g) Employability and self-help skills referenced under subsection (c) of this section are those skills directly related to the preparation of students for employment, including general skills necessary to obtain or retain employment.

(h) For students who receive a diploma according to subsection (c) of this section, the ARD committee shall determine needed educational services upon the request of the student or parent to resume services, as long as the student meets the age eligibility requirements.

Comments

Source Note: The provisions of this §89.1070 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective August 1, 2002, 27 TexReg 3061; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1075: General Program Requirements and Local District Procedures

(a) Each school district shall maintain an eligibility folder for each student receiving special education services, in addition to the student's cumulative record. The eligibility folder must include, but need not be limited to: copies of referral data; documentation of notices and consents; evaluation reports and supporting data; admission, review, and dismissal (ARD) committee reports; and the student's individualized education programs (IEPs).

(b) For school districts providing special education services to students with visual impairments, there shall be written procedures as required in the Texas Education Code (TEC), §30.002(c)(10).

(c) Each school district shall have procedures to ensure that each teacher involved in a student's instruction has the opportunity to provide input and request assistance regarding the implementation of the student's IEP. These procedures must include a method for a student's regular or special education teachers to submit requests for further consideration of the student's IEP or its implementation. In response to this request, the district's procedures shall include a method for the district to determine whether further consideration is necessary and whether this consideration will be informal or will require an ARD committee meeting. If the district determines that an ARD committee meeting is necessary, the student's current regular and special education teachers shall have an opportunity to provide input. The school district shall also ensure that each teacher who provides instruction to a student with disabilities receives relevant sections of the student's current IEP and that each teacher be informed of specific responsibilities related to implementing the IEP, such as goals and benchmarks, and of needed accommodations, modifications, and supports for the child.

(d) Students with disabilities shall have available an instructional day commensurate with that of students without disabilities. The ARD committee shall determine the appropriate instructional setting and length of day for each student, and these shall be specified in the student's IEP.

(e) School districts that jointly operate their special education programs as a shared services arrangement, in accordance with TEC, §29.007, shall do so in accordance with procedures developed by the Texas Education Agency (TEA).

(f) School districts that contract for services from non-public day schools shall do so in accordance with 34 Code of Federal Regulations, §300.147, and procedures developed by the TEA.

Comments

Source Note: The provisions of this §89.1075 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1076: Interventions and Sanctions

The Texas Education Agency (TEA) shall establish and implement a system of interventions and sanctions, in accordance with the Individuals with Disabilities Education Act, 20 United States Code, §§1400 et seq., Texas Education Code (TEC), §29.010, and TEC, Chapter 39, as necessary to ensure program effectiveness and compliance with federal and state requirements regarding the implementation of special education and related services. In accordance with TEC, §39.131(a), the TEA may combine any intervention and sanction. The system of interventions and sanctions will include, but not be limited to, the following:

(1) on-site review for failure to meet program or compliance requirements;

(2) required fiscal audit of specific program(s) and/or of the district, paid for by the district;

(3) required submission of corrective action(s), including compensatory services, paid for by the district;

(4) required technical assistance, paid for by the district;

(5) public release of program or compliance review findings;

(6) special investigation and/or follow-up verification visits;

(7) required public hearing conducted by the local school board of trustees;

(8) assignment of a special purpose monitor, conservator, or management team, paid for by the district;

(9) hearing before the commissioner of education or designee;

(10) reduction in payment or withholding of funds;

(11) lowering of the special education monitoring/compliance status and/or the accreditation rating of the district; and/or

(12) other authorized interventions and sanctions as determined by the commissioner.

Comments

Source Note: The provisions of this §89.1076 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1080: Regional Day School Program for the Deaf

In accordance with the Texas Education Code (TEC), §§30.081-30.087, local school districts shall have access to regional day school programs for the deaf operated by school districts at sites previously established by the State Board of Education (SBOE). Any student who has a hearing impairment which severely impairs processing linguistic information through hearing, even with recommended amplification, and which adversely affects educational performance shall be eligible for consideration for the Regional Day School Program for the Deaf, subject to the admission, review, and dismissal (ARD) committee recommendations.

Comments

Source Note: The provisions of this §89.1080 adopted to be effective September 1, 1996, 21 TexReg 7240.

§89.1085: Referral for the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf Services

(a) A student's admission, review, and dismissal (ARD) committee may place the student at the Texas School for the Blind and Visually Impaired (TSBVI) or the Texas School for the Deaf (TSD) in accordance with the provisions of 34 Code of Federal Regulations (CFR), Part 300, the Texas Education Code (TEC), including, specifically, §§30.021, 30.051, and 30.057, and the applicable rules of this subchapter.

(b) In the event that a student is placed by his or her ARD committee at either the TSBVI or the TSD, the student's "resident school district," as defined in subsection (e) of this section, shall be responsible for assuring that a free appropriate public education (FAPE) is provided to the student at the TSBVI or the TSD, as applicable, in accordance with the Individuals with Disabilities Education Act (IDEA), 20 United States Code (USC), §§1400 et seq., 34 CFR, Part 300, state statutes, and rules of the State Board of Education (SBOE) and the commissioner of education. If representatives of the resident school district and representatives of the TSBVI or the TSD disagree, as members of a student's ARD committee, with respect to a recommendation by one or more members of the student's ARD committee that the student be evaluated for placement, initially placed, or continued to be placed at the TSBVI or TSD, as applicable, the representatives of the resident school district and the TSBVI or TSD, as applicable, may seek resolution through the mediation procedures adopted by the Texas Education Agency or through any due process hearing to which the resident school district or the TSBVI or the TSD are entitled under the IDEA, 20 USC, §§1400, et seq.

(c) When a student's ARD committee places the student at the TSBVI or the TSD, the student's resident school district shall comply with the following requirements.

(1) For each student, the resident school district shall list those services in the student's individualized education program (IEP) which the TSBVI or the TSD can appropriately provide.

(2) The district may make an on-site visit to verify that the TSBVI or the TSD can and will offer the services listed in the individual student's IEP and to ensure that the school offers an appropriate educational program for the student.

(3) For each student, the resident school district shall include in the student's IEP the criteria and estimated time lines for returning the student to the resident school district.

(d) In addition to the provisions of subsections (a)-(c) of this section, and as provided in TEC, §30.057, the TSD shall provide services in accordance with TEC, §30.051, to any eligible student with a disability for whom the TSD is an appropriate placement if the student has been referred for admission by the student's parent or legal guardian, a person with legal authority to act in place of the parent or legal guardian, or the student, if the student is age 18 or older, at any time during the school year if the referring person chooses the TSD as the appropriate placement for the student rather than placement in the student's resident school district or regional program determined by the student's ARD committee. For students placed at the TSD pursuant to this subsection, the TSD shall be responsible for assuring that a FAPE is provided to the student at the TSD, in accordance with IDEA, 20 USC, §§1400, et seq., 34 CFR, Part 300, state statutes, and rules of the SBOE and the commissioner of education.

(e) For purposes of this section and §89.1090 of this title (relating to Transportation of Students Placed in a Residential Setting, Including the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf), the "resident school district" is the school district in which the student would be enrolled under TEC, §25.001, if the student were not placed at the TSBVI or the TSD.

Comments

Source Note: The provisions of this §89.1085 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1090: Transportation of Students Placed in a Residential Setting, Including the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf

For each student placed in a residential setting by the student's admission, review, and dismissal (ARD) committee, including those students placed in the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf, the resident school district shall be responsible for transportation at the beginning and end of the term and for regularly scheduled school holidays when students are expected to leave the residential campus. The resident school district is not responsible for transportation costs for students placed in residential settings by their parents. Transportation costs shall not exceed state approved per diem and mileage rates unless excess costs can be justified and documented. Transportation shall be arranged using the most cost efficient means. When it is necessary for the safety of the student, as determined by the ARD committee, for an adult designated by the ARD committee to accompany the student, round-trip transportation for that adult shall also be provided. The resident school district and the residential facility shall coordinate to ensure that students are transported safely, including the periods of departure and arrival.

Comments

Source Note: The provisions of this §89.1090 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1096: Provision of Services for Students Placed by their Parents in Private Schools or Facilities

(a) Except as specifically provided in this section, in accordance with 34 Code of Federal Regulations (CFR), §300.137, no eligible student who has been placed by his or her parent(s) in a private school or facility has an individual right to receive some or all of the special education and related services that the student would receive if he or she were enrolled in a public school district. Except as specifically set forth in this section, a school district's obligations with respect to students placed by their parents in private schools are governed by 34 CFR, §§300.130-300.144.

(1) For purposes of subsections (a) and (d) of this section only, private school is defined as a private elementary or secondary school, including any pre-school, religious school, and institutional day or residential school, that:

(A) as required by 34 CFR, §300.13 and §300.130, is a nonprofit entity that meets the definition of nonprofit in 34 CFR, §77.1; and

(B) provides elementary or secondary education that incorporates an adopted curriculum designed to meet basic educational goals, including scope and sequence of courses, and formal review and documentation of student progress.

(2) A home school must meet the requirements of paragraph (1)(B) of this subsection, but not paragraph (1)(A) of this subsection, to be considered a private school for purposes of subsections (a) and (d) of this section.

(b) When a student with a disability who has been placed by his or her parents directly in a private school or facility is referred to the local school district, the local district shall convene an admission, review, and dismissal (ARD) committee meeting to determine whether the district can offer the student a free appropriate public education (FAPE). If the district determines that it can offer a FAPE to the student, the district is not responsible for providing educational services to the student, except as provided in 34 CFR, §§300.130-300.144, or subsection (e) of this section, until such time as the parents choose to enroll the student in public school full time.

(c) Parents of an eligible student ages 3 or 4 shall have the right to "dual enroll" their student in both the public school and the private school beginning on the student's third birthday and continuing until the end of the school year in which the student turns five or until the student is eligible to attend a district's public school kindergarten program, whichever comes first, subject to paragraphs (1)-(3) of this subsection. The public school district where a student resides is responsible for providing special education and related services to a student whose parents choose dual enrollment.

(1) The student's ARD committee shall develop an individualized education program (IEP) designed to provide the student with a FAPE in the least restrictive environment appropriate for the student.

(2) From the IEP, the parent and the district shall determine which special education and/or related services will be provided to the student and the location where those services will be provided, based on the requirements concerning placement in the least restrictive environment set forth in 34 CFR, §§300.114-300.120, and the policies and procedures of the district.

(3) For students served under the provisions of this subsection, the school district shall be responsible for the employment and supervision of the personnel providing the service, providing the needed instructional materials, and maintaining pupil accounting records. Materials and services provided shall be consistent with those provided for students enrolled only in the public school and shall remain the property of the school district.

(d) Parents of an eligible student ages 3 or 4 who decline dual enrollment for their student may request a services plan as described in 34 CFR, §§300.130-300.144. The public school district where the private school is located is responsible for the development of a services plan, if the student is designated to receive services under 34 CFR, §300.132.

(e) The school district shall provide special transportation with federal funds only when the ARD committee determines that the condition of the student warrants the service in order for the student to receive the special education and related services (if any) set forth in the IEP.

(f) Complaints regarding the implementation of the components of the student's IEP that have been selected by the parent and the district under subsection (c) of this section may be filed with the Texas Education Agency under the procedures in 34 CFR, §§300.151-300.153. Additionally, parents may request mediation as outlined in 34 CFR, §300.506. The procedures in 34 CFR, §§300.300, 300.504, 300.507, 300.508, and 300.510-300.518 (relating to due process hearings) do not apply to complaints regarding the implementation of the components of the student's IEP that have been selected by the parent and the district under subsection (c).

Comments

Source Note: The provisions of this §89.1096 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129

Division 3

§89.1100: Memorandum of Understanding on Coordination of Services to Disabled Persons

Clarification of financial and service responsibilities of the Texas Department of Human Services, the Texas Department of Health, the Texas Department of Mental Health and Mental Retardation, the Texas Rehabilitation Commission, the Texas Commission for the Blind, the Texas Commission for the Deaf, Texas Department of Protective and Regulatory Services, Texas Interagency Council on Early Childhood Intervention, and the Texas Education Agency related to disabled persons are contained in the Memorandum of Understanding on Coordination of Services to Disabled Persons, which is adopted by reference as a rule of the Texas Education Agency. The complete text of the memorandum of understanding may be found in the rules of the Texas Department of Human Services, 40 Texas Administrative Code (TAC) Chapter 72. A copy of the memorandum of understanding is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701.

Comments

Source Note: The provisions of this §89.1100 adopted to be effective September 1, 1996, 21 TexReg 7240

§89.1115: Memorandum of Understanding Concerning Interagency Coordination of Special Education Services to Students with Disabilities in Residential Facilities

(a) Parties. The state agencies named in this subsection are parties to this memorandum of understanding (MOU) and will be collectively referred to as the "parties." The term "Health and Human Service (HHS) agencies" will refer to all parties except the Texas Education Agency, Texas Juvenile Probation Commission, and Texas Youth Commission.

(1) Texas Education Agency (TEA);

(2) Texas Department of Human Services (TDHS);

(3) Texas Department of Mental Health and Mental Retardation (TDMHMR);

(4) Texas Department of Health (TDH);

(5) Texas Department of Protective and Regulatory Services (PRS);

(6) Texas Interagency Council on Early Childhood Intervention (ECI);

(7) Texas Commission on Alcohol and Drug Abuse (TCADA);

(8) Texas Juvenile Probation Commission (TJPC); and

(9) Texas Youth Commission (TYC).

(b) Purpose. In accordance with Texas Education Code (TEC),§29.012(d), the purpose of this MOU is to:

(1) establish the respective responsibilities of school districts and of residential facilities (RFs) for the provision of a free appropriate public education (FAPE), as required by the Individuals with Disabilities Education Act (IDEA)(20 USC §1400 et seq.) and its subsequent amendments, including each requirement for children with disabilities who reside in those facilities;

(2) coordinate regulatory and planning functions of the parties;

(3) establish criteria for determining when a public school will provide educational services;

(4) provide for appropriate educational space when education services will be provided at the residential facility;

(5) establish measures designed to ensure the safety of students and teachers; and

(6) provide for binding arbitration consistent with Texas Government Code, Chapter 2009, and Civil Practice and Remedies Code, §154.027.

(c) Definitions. The following words and terms, when used in this MOU, shall have the following meaning, unless the context clearly indicates otherwise.

(1) Consistent with TEC, §5.001(8), "residential facility" (RF) means:

(A) a facility operated by a state agency or political subdivision, including a child placement agency, that provides 24-hour custody or care of a person 22 years of age or younger, if the person resides in the facility for detention, treatment, foster care, or any non-educational purpose; and

(B) any person or entity that contracts with or is funded, licensed, certified, or regulated by a state agency or political subdivision to provide custody or care for a person under subparagraph (A) of this paragraph. RFs include, but are not limited to:

(i) child care facilities or institutions;

(ii) independent foster group homes providing basic, therapeutic or rehabilitative services;

(iii) independent foster family homes providing basic, therapeutic or rehabilitative services;

(iv) agency foster family/group homes verified by a child placing agency licensed by PRS;

(v) intermediate care facilities for the mentally retarded (ICFs-MR);

(vi) psychiatric treatment centers;

(vii) therapeutic camps or ranches;

(viii) residential treatment centers licensed by PRS;

(ix) nursing facilities;

(x) TYC halfway houses and contract facilities;

(xi) emergency shelters;

(xii) hospitals;

(xiii) juvenile pre-adjudication detention facilities;

(xiv) juvenile post-adjudication secure correctional facilities;

(xv) residential facilities funded and/or licensed by TCADA;

(xvi) settings other than the student's natural or adoptive home in which residential services are provided in programs authorized by the Social Security Act, §1915(c); and

(xvii) state hospitals, state schools, and state centers operated by TDMHMR.

(2) "Student with a disability" means an individual who is eligible to receive special education and related services in accordance with IDEA and its implementing regulations, Code of Federal Regulations, Title 34, §§300.1 et seq., and state laws and rules, including, without limitation, TEC, Chapter 29, and Chapter 89 of this title (relating to Adaptations for Special Populations).

(3) Consistent with 20 USC §1401(8), "free appropriate public education" (FAPE) means special education and related services that:

(A) are provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of TEA;

(C) include preschool, elementary, or secondary school education; and

(D) are provided in conformity with the student's individualized education program (IEP).

(4) Consistent with 20 U. S. C. §1401(15), "local educational agency" (LEA) means any public authority, institution, or agency having administrative control and direction of a public elementary or secondary school, including a public charter school that is established as an LEA under state law.

(d) Terms of MOU. The parties agree to the following terms:

(1) The responsibilities of LEAs and RFs related to the provision of a FAPE to students with disabilities who reside in RFs are established as follows.

(A) LEAs must provide or ensure the provision of a FAPE to students with disabilities residing in RFs in accordance with IDEA, applicable federal regulations, and state laws and rules.

(i) Except as provided in paragraph (2) of this subsection, an LEA must provide or ensure the provision of a FAPE for a student with a disability residing in an RF located in the geographical area served by that LEA.

(ii) If an LEA places a student with a disability in an RF for educational purposes, the placing LEA must provide or ensure the provision of a FAPE to the student.

(B) Not later than the third day after the date a person 22 years of age or younger is placed in an RF, the RF must provide notification in accordance with TEC, §29.012(a), as follows:

(i) if the person placed in the RF is three years of age or older, the RF must notify the LEA in which the RF is located, unless the RF is an open-enrollment charter school or the RF has been designated as an LEA (e.g., TYC correctional facilities, Texas School for the Deaf, the University of Texas Medical Branch); or

(ii) if the person placed in the RF is younger than three years of age, the RF must notify a local early childhood intervention program in the area in which the RF is located.

(2) Regulatory and planning functions of the parties are coordinated as follows.

(A) The parties will require LEAs and RFs to:

(i) share, within a reasonable period of time and to the extent permitted by applicable statutes and regulations, all appropriate records and relevant information relating to a student with a disability. This subsection does not authorize the LEA to modify requirements for admission and enrollment into an LEA as set forth in TEC, Chapter 25. The records and information to be shared may include, but are not limited to:

(I) birth certificate or other identifying document that proves the student's age;

(II) medical history and medical records, including current immunization records and a history of infectious disease (e.g., Hepatitis B, tuberculosis), including a description of any behavioral characteristics related to the transmission of such disease;

(III) social history;

(IV) vision and hearing screening and evaluation;

(V) evaluation reports, including psychological, educational, related service, assistive technology and vocational evaluations, and behavioral assessments;

(VI) treatment plan of care or service;

(VII) educational history (e.g., previous educational placement information);

(VIII) any relevant court orders (e.g., orders related to placement in an RF, guardianship or conservatorship, or court-ordered services);

(IX) information regarding a student's movement from an RF to a subsequent residence, including but not limited to the date the student left the RF and the location of the student's subsequent residence; and

(X) name and phone number of contact persons representing the RF and the LEA; and

(ii) coordinate a student's individualized education program (IEP) and treatment plan of care or service. Coordination between an LEA and RF includes but is not limited to communication about responsibilities and timelines related to the development and implementation of the IEP and treatment plan, including permanency planning.

(B) TEA will require LEAs to provide:

(i) the name and phone number of the contact person representing the RF to the surrogate parent, upon assignment of the surrogate parent;

(ii) the name and phone number of the surrogate parent, upon assignment of the surrogate parent, to the contact person representing the RF; and

(iii) designation and training of surrogate parents in accordance with §89.1047 of this title (relating to Procedures for Surrogate and Foster Parents).

(C) TYC and the HHS agencies will provide the following notifications to TEA.

(i) TYC and the HHS agencies, other than PRS, will notify TEA when an RF opens, closes, expands, or reduces its capacity to provide services, if the notifying agency expects such action will have a significant effect on one or more LEAs. The notice will be provided to TEA before the RF opens, closes, expands, or reduces its capacity to provide services, or as soon thereafter as the notifying agency becomes aware of the action. If an RF is closing, the notifying TYC or HHS agency will request that the RF attempt to obtain any consent necessary to release to TEA and an LEA, information about a student with a disability residing in the RF, including the student's name, date of birth, social security number, disability, and name of the LEA to which the student will be moving. TEA will notify the affected LEA of the expected action so the LEA can adjust its capacity to serve students with disabilities.

(ii) PRS will provide TEA with a copy of the notice required by Texas Human Resources Code, §42.0461(a)(2). Additionally, PRS and TEA will explore possible use of PRS' Child Care Licensing Automation Support Services management system to generate information that may assist TEA in its effort to notify LEAs when an RF opens, closes, expands, or reduces its capacity to provide services.

(3) Criteria for determining when a public school will provide educational services are established as follows.

(A) TEA will ensure that the local school district provides a FAPE to all eligible students with disabilities, in the least restrictive environment (LRE), to the maximum extent appropriate, to meet the individual educational needs of the student as determined by a duly-constituted admission, review, and dismissal (ARD) committee, and in accordance with §89.1001 of this title (relating to Scope and Applicability).

(B) The student's ARD committee must determine the appropriate educational placement for the student, considering all available information regarding the educational needs of the student, and including the non-educational needs that may restrict the ability of the LEA to serve the student on a public school campus or other instructional setting. These non-educational needs could include the student's health and safety (e.g. substance abuse), and/or the student's placement in a restrictive RF program (e.g., juvenile incarceration or restrictive court-ordered placements). The ARD committee's determination must be individualized based on student need and not made on a categorical basis, such as the student's disability or residence in an RF. Further, ARD committees must not determine educational placement on the basis of what is most convenient to LEAs or RFs.

(4) When educational services will be provided at an RF, appropriate educational space will be determined as follows.

(A) The ARD committee must determine whether space available at the RF is appropriate for the provision of a FAPE. This determination must be based on the individual student's needs and the RF's available space.

(B) An ARD committee must find alternative locations for providing educational services if the ARD committee or RF determines that the RF has no appropriate available space.

(5) Measures designed to ensure the safety of students and teachers are established as follows.

(A) The parties will require RFs and LEAs to agree in writing to the staffing levels that will be maintained by both the RF and the LEA to ensure the safety of students and teachers while educational services are provided at an RF.

(B) TYC, TJPC, and HHS agencies will require RFs to communicate to LEA staff applicable safety, emergency, and security procedures to be followed while educational services are provided at an RF.

(6) Disputes concerning the implementation of this MOU will be resolved as follows.

(A) Local disputes. Resolution of disputes concerning implementation of this MOU between LEAs or between an LEA and an RF shall first be attempted at the local level. The specific issues involved in the dispute and possible solutions shall be identified and referred to local personnel authorized to make decisions necessary to resolve the dispute. If resolution is not reached after a reasonable period of time (not to exceed 45 calendar days unless the disputing entities agree otherwise), the LEA shall refer (and the RF may refer) the dispute to TEA for further negotiations toward a mutually agreeable resolution. TEA will contact the disputing entities and set up a meeting for this purpose. Local entities referring disputes to TEA shall identify:

(i) the nature of the dispute;

(ii) any resolutions agreed upon;

(iii) the issues that remain unresolved; and

(iv) the contact persons representing the disputing entities.

(B) State agency disputes. Resolution of disputes concerning implementation of this MOU between two or more parties must first be attempted at the staff level. If resolution is not reached after a reasonable period of time (not to exceed 45 calendar days unless the disputing parties agree otherwise), the disputing parties will refer the dispute to their respective executive officers, or their designees for further negotiation. The appropriate state officials shall meet to seek resolution of the dispute.

(i) Mediation. If the chief executive officers of the disputing parties determine that the dispute cannot be resolved at their level, the disputing parties may pursue resolution through the use of mediation pursuant to the Governmental Dispute Resolution Act, Texas Government Code, Chapter 2009.

(ii) Arbitration. If the disputing parties do not agree to pursue resolution of their dispute through mediation, or if mediation does not result in a resolution of their dispute, the disputing parties will participate in binding arbitration consistent with Texas Government Code, Chapter 2009, and Texas Civil Practice and Remedies Code, §154.027.

(7) Other terms of this MOU.

(A) This MOU shall be signed by the executive officers of the participating agencies and shall be effective upon signature by all.

(B) This MOU may be considered for expansion, modification, or amendment upon mutual agreement of the executive officers of the participating agencies.

(C) In the event that federal and/or state laws should be amended, federally interpreted, or judicially interpreted so as to render continued implementation of this MOU unreasonable or impossible, the participating agencies may agree to amend or terminate this MOU.

Division 4

§89.1121: Distribution of State Funds

(a) Procedures for counting the average daily attendance (ADA) of students receiving special education services in various instructional settings shall be developed by the commissioner of education and included in the daily register for pupil attendance accounting.

(b) State special education funds shall be distributed to school districts on the basis of ADA of full-time equivalents of eligible students served in accordance with §129.21 of this title (relating to Requirements for Student Attendance Accounting for State Funding Purposes).

(c) The special education attendance shall be converted to contact hours by instructional arrangement and then to full-time equivalents. The full-time equivalent for each instructional arrangement is multiplied by the school district's adjusted basic allotment and then multiplied by the weight for the instructional arrangement as prescribed in the Texas Education Code (TEC), §42.151(a). Contact hours for any one student receiving special education services may not exceed six hours per day or 30 hours per week for funding purposes. The total contact hours generated per week shall be divided by 30 to determine the full-time equivalents. Special education full-time equivalents generated shall be deducted from the school district's ADA for purposes of the regular education allotment.

(d) The receipt of special education funds shall be contingent upon the operation of an approved comprehensive special education program in accordance with state and federal laws and regulations. No district may divert special education funds for other purposes, with the exception of administrative costs as defined in Chapter 105, Subchapter B, of this title (relating to Maximum Indirect Cost Allowable on Certain Foundation School Program Allotments). Funds generated by full-time equivalents in one instructional arrangement may be spent on the overall special education program and are not limited to the instructional arrangement which generated the funds. The district must maintain separate accountability for the total state special education program fund within the general fund.

(e) A special education fund balance may be carried over to the next fiscal year but must be expended on the special education program in the subsequent year. State special education carryover funds cannot be used for administrative costs.

(f) Students who are at least three, but younger than 22, years of age on September 1 of the current scholastic year who participate in the regional day school program for the deaf may be counted as part of the district's ADA if they receive instruction from the basic program for at least 50% of the school day.

(g) Students from birth through age two with a visual or auditory impairment or both who are provided services by the district according to an individual family services plan (IFSP) shall be enrolled on the district home or regional day school campus and shall be considered eligible for ADA on the same basis as other students receiving special education services.

(h) Funding for the mainstream special education instructional arrangement shall be based on the average daily attendance of the students in the arrangement multiplied by the adjusted basic allotment/adjusted allotment (ABA/AA) and the 1.1 weight. The attendance shall not be converted to contact hours/full-time equivalents as with the other instructional arrangements.

Comments

Source Note: The provisions of this §89.1121 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837

§89.1125: Allowable Expenditures of State Special Education Funds

(a) Persons paid from special education funds shall be assigned to instructional or other duties in the special education program and/or to provide support services to the regular education program in order for students with disabilities to be included in the regular program. Support services shall include, but not be limited to, collaborative planning, co-teaching, small group instruction with special and regular education students, direct instruction to special education students, or other support services determined necessary by the admission, review, and dismissal (ARD) committee for an appropriate program for the student with disabilities. Assignments may include duties supportive to school operations equivalent to those assigned to regular education personnel.

(b) Personnel assigned to provide support services to the regular education program as stated in subsection (a) of this section may be fully funded from special education funds.

(c) If personnel are assigned to special education on less than a full-time basis, except as stated in subsection (a) of this section, only that portion of time for which the personnel are assigned to students with disabilities shall be paid from state special education funds.

(d) State special education funds may be used for special materials, supplies, and equipment which are directly related to the development and implementation of individualized education programs (IEPs) of students and which are not ordinarily purchased for the regular classroom. Office and routine classroom supplies are not allowable. Special equipment may include instructional and assistive technology devices, audiovisual equipment, computers for instruction or assessment purposes, and assessment equipment only if used directly with students.

(e) State special education funds may be used to contract with consultants to provide staff development, program planning and evaluation, instructional services, assessments, and related services to students with disabilities.

(f) State special education funds may be used for transportation only to and from residential placements. Prior to using federal funds for transportation costs to and from a residential facility, a district must use state or local funds based on actual expenses up to the state transportation maximum for private transportation contracts.

(g) State special education funds may be used to pay staff travel to perform services directly related to the education of eligible students with disabilities. Funds may also be used to pay travel of staff (including administrators, general education teachers, and special education teachers and service providers) to attend staff development meetings for the purpose of improving performance in assigned positions directly related to the education of eligible students with disabilities. In no event shall the purpose for attending such staff development meetings include time spent in performing functions relating to the operation of professional organizations. Funds may also be used to pay for the joint training of parents and special education, related services, and general education personnel.

Comments

Source Note: The provisions of this §89.1125 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

Division 5

§89.1131: Qualifications of Special Education, Related Service, and Paraprofessional Personnel

(a) All special education and related service personnel shall be certified, endorsed, or licensed in the area or areas of assignment in accordance with 34 Code of Federal Regulations (CFR), §300.156; the Texas Education Code (TEC), §§21.002, 21.003, and 29.304; or appropriate state agency credentials.

(b) A teacher who holds a special education certificate or an endorsement may be assigned to any level of a basic special education instructional program serving eligible students 3-21 years of age, as defined in §89.1035(a) of this title (relating to Age Ranges for Student Eligibility), in accordance with the limitation of their certification, except for the following.

(1) Persons assigned to provide speech therapy instructional services must hold a valid Texas Education Agency (TEA) certificate in speech and hearing therapy or speech and language therapy, or a valid state license as a speech/language pathologist.

(2) Teachers holding only a special education endorsement for early childhood education for children with disabilities shall be assigned only to programs serving infants through Grade 6.

(3) Teachers certified in the e