                             ATTORNEY GENERAL                    OF TEXAS
                                          GREG        ABBOTT




                                            September l&2006



 The Honorable Geraldine “Tincy” Miller                 Opinion No. GA-0456
 Chair, State Board of Education
 1701 North Congress Avenue                             Re: Whether the State Board of Education
 Austin, Texas 78701-1494                               may adopt a rule requiring school textbooks to
                                                        meet general textbook content standards as a
                                                        condition ofthe Board’s approval; reconsidering
                                                        Attorney General Opinion DM-424 (1996)
                                                        (RQ-0430-GA)


Dear Ms. Miller:

         On behalf of Terri Leo, a member of the State Board of Education (the “Board”), you ask
whether the Board may adopt a rule requiring school textbooks to meet general textbook content
standards as a condition of the Board’s approval.’ You also ask whether the Board has authority to
adopt or reject ancillary materials publishers provide at no additional cost to school districts that
purchase the publishers’ textbooks. See Request Letter, supra note 1, at 1. This office considered
both of these issues in Attorney General Opinion DM-424 and concluded that (1) the Board has no
authority to adopt rules establishing content criteria for textbook approval beyond that contained in
the Education Code and (2) the Board lacks authority to consider ancillary items. See Tex. Att’y
Gen. Op. No. DM-424 (1996) at 7-8. You ask us to reevaluate that opinion. See Request Letter,
supra note 1, at 1.

I.      First Issue: Whether the Board may adopt a rule requiring textbooks to meet general
        textbook content standards as a condition of Board approval

        A.     Statutory background

        The Board “may perform         those duties relating to school districts” that the Texas
Constitution or the Texas Education Code assigns to the Board. TEx. EDUC. CODEANN. 3 7.102(a)
(Vernon 2006). Among the powers and duties section 7.102 of the Education Code assigns, the



          ‘SeeLetter Tom Honorable Geraldine “Tincy” Miller, Chair, State Board of Education, to Honorable Greg
Abbott, AttorneyGeneralofTexas (Jan. 6,2006) (on file with the OpinionCommittee,also mailabLzat http://w.oag
.state.tx.us);Letter Gem Terri Leo, State Board of Education, District 6, to HonorableGreg Abbott,Attorney General
of Texas (undated) (on file with the Opinion Committee, also available af http:ii~.oag.state.tx.us) [hereinafter
Request Letter].
The Honorable Geraldine “Tincy” Miller - Page 2             (GA-0456)




Board is responsible for establishing curriculum requirements; adopting rules to carry out the
curriculum required or authorized under section 28.002; and adopting and purchasing or licensing
textbooks “as provided by [Education Code] Chapter 3 1 and adopt[ing] rules required by that
chapter.” Id. § 7.102(c)(4), (1 l), (23). The Board’s authority to establish and regulate curriculum
is intertwined with its authority to adopt textbooks.

         A school district that offers kindergarten through twelfth grade must offer a “required
curriculum” comprising a “foundation curriculum” and an “enrichment curriculum.” See id. 3
28002(a). The foundation curriculum includes

                        (A)   English language arts;

                        (B)   mathematics;

                        (C)   science; and

                       (D) social studies, consisting of Texas, United States, and
                world history, government, and geography[.]

Id. 5 28002(a)(l).   The enrichment curriculum 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)   tine arts;

                         (E) economics, with emphasis on the free enterprise system
                 and its benefits;

                        (F)   career and technology education; and

                        (G)   technology applications.

Id. $‘28002(a)(2).    The Board must identify by rule “the essential knowledge and skills of each
subject of the required curriculum , that will be used in evaluating textbooks under Chapter 3 1.”
Id. $28002(c). (The essential knowledge and skills that the Board has identified by rule are known
as the Texas Essential Knowledge and Skills, or “TEKS.“) Section 28002(h) requires the Board,
“in the adoption of textbooks,” to “foster the continuation of the tradition of teaching United States
and Texas history and the free enterprise system.” Id. 5 28.002(h). The Board must adopt rules for
implementing its curriculum-related duties. See id. 5 28.002(i). See generally 19 TEX. ADMIN.
CODE ch. 74 (2006) (Tex. Educ. Agency, Curriculum Requirements).
The Honorable Geraldine “Tincy” Miller - Page 3             (GA-0456)




         The Board must review and adopt textbooks for each subject in the foundation curriculum
at least once every six years and for each subject in the enrichment curriculum in accordance with
a schedule that the Board considers appropriate. See TEx. EDUC. CODE ANN. 5 31.022(at(c)
(Vernon 2006); 19 TEX. ADMIN. CODE 5 66.21(a)-(b) (2006) (Tex. Educ. Agency, Review and
Adoption Cycles). When textbooks for a particular subject in either the foundation orthe enrichment
curriculum are scheduled for the Board’s review and adoption, section 3 1.024 requires the Board to
adopt or reject each textbook submitted for consideration. See TEx. EDUC. CODE ANN. § 3 1.024(a)
(Vernon 2006) (stating that each textbook must be placed on a conforming or nonconforming list
or rejected for placement on either list). The Board must reject a textbook that contains factual
errors. See id. § 31.023(b); 19 TEX. ADMIN. CODE § 66.66(c)(3) (2006) (Tex. Educ. Agency,
Consideration and Adoption of Instructional Materials by the [Board]); see also 19 Bx. ADMIN.
CODE 3 66.10(c)(l)        (2006) (Tex. Educ. Agency, Procedures            Governing Violations        of
Statutes-Administrative     Penalties) (defining the term “factual error” as “a verified error of fact or
any error that would interfere with student learning”). Under section 3 1.023, the Board is required
to separate textbooks without factual errors into two lists, “conforming” and “nonconforming”:

                        For each subject and grade level, the.    Board. shall adopt
                two lists of textbooks. The conforming list includes each textbook
                submitted for .fhe subject and grade levet that meets applicable
                physical specifications adopted by the         Board . and contains
                material covering each element of the essential knowledge and skills
                of the subject and grade level as determined by the      Board
                under Section 28.002 and adopted under Section 31.024. The
                nonconforming list includes each textbook submitted for the subject
                and grade level that:

                             (1) meets applicable physical specifications    adopted by
                the.    Board.    ;

                             (2) contains material covering at least half, but not all,
                of the elements of the essential knowledge and skills of the subject
                and grade level; and

                             (3) is adopted under Section 3 1.024

TEx. EDUC. CODE ANN. $ 31$23(a) (Vernon 2006). The Board adopts or rejects textbooks and
determines whether to place accepted textbooks on the conforming or nonconforming list by majority
vote. See id. § 3 1.024(a).

        Section 3 1.024 requires the board to provide the conforming and nonconforming lists of
adopted textbooks to each school district. See id. 8 3 1.024(b). The nonconforming list must include
the reasons an adopted textbook is ineligible for the conforming list. See id. Each school district
then decides which textbooks to purchase.         See id. 8 3 1.101(a); 19 TEX. ADMIN. CODE 5
66.104(a)-(d) (2006) (Tex. Educ. Agency, Selection of Instructional Materials by School Districts).
The Honorable Geraldine “Tincy” Miller - Page 4            (GA-0456)




        B.   Analysis

         An administrative agency such as the Board has “those powers that the Legislature confers
upon it in clear and express language.” Tex. Natural Res. Consewation Comln’n v. Lakeshore Util.
co., 164 S.W.3d 368, 377-78 (Tex. 2005). The authority given to the Board by the legislature
concerns “those duties relating to school districts      assigned to the [Bloard by the constitution of
this state or by this subchapter [Education Code chapter 7, subchapter B] or another provision of’
theEducationCode.       TEX.EDUC.CODEANN. §7.102(a)(Vemon2~06).             Inadditiontothese   express
powers, an agency like the Board has those implied powers that are reasonably necessary to carry
out the responsibilities the legislature has expressly bestowed. See Pub. Util. Comm ‘n, 901 S.W.2d
at 407 (quoting Sexton v. Mount Olivet Cemetery Ass’n, 72~0 S.W.2d 129, 137-38 (Tex.
App.-Austin      1986,writreP dn.r.e.); KawasakiMotorsv. Motor Vehicle Comm’n, 855 S.W.2d792,
798 (Tex. App.-Austin       1993, writ denied)); accordPub. Util. Comm ‘nv. City Pub. Serv. Bd. ofSan
Antonio, 53 S.W.3d 310, 316 (Tex. 2001).

        The Board has significant statutory authority over textbooks and textbook content in the
adoption process. First, the Board must identify the TEKS standards by which all submitted
textbooks will be judged. See TEX. EDUC. CODE ANN. 5 28.002(c) (Vernon 2006). Second, the
Board must evaluate whether each textbook submitted (a) contains factual errors and (b) meets
physical specifications that theBoardhas set. See id. § 31.023(a)-(b). Third, of those textbooks that
have no factual errors and meet the established physical standards, the Board must place the books
on either the conforming or nonconforming list. See id. 5 3 1.023(a). Fourth, “in the adoption of
textbooks” the Board must “foster the continuation of the tradition of teaching United States and
Texas history and the free enterprise system.” Id. § 28002(h). Because these are the only statutory
provisions that give the Board authority over textbooks, the Board’s authority over textbook content
must fall within one of these powers.

         We accordingly conclude that the Board may adopt general textbook content standards to the
extent such standards fall within the express powers granted by the Education Code and those
implied powers necessary to effectuate its express powers. The Board has express authority to adopt
applicable physical standards with which textbooks must comply and the essential knowledge and
skills of each subject of the required curriculum that will be used in evaluating textbooks. The Board
must evaluate each textbook for compliance with the physical standards and the TEKS, must
ascertain whether the book contains factual errors, and must consider whether the textbook fosters
“the continuation of the tradition of teaching United States and Texas history and the free enterprise
system.” See id. 3s 28.002(h), 3 1.023(a)-(b); see also 1~TEx. ADMIN.CODE 5 66.66(c) (2006) (Tex.
Educ. Agency, Consideration and Adoption ofInstructional Materials by the [Board]). To the extent
Opinion DM-424 is read or applied inconsistently with this conclusion, that opinion is overruled.

II.     Second Issue: Whether the Board may adopt or reject ancillary materials

        You also ask whether the Board may review and adopt or reject “ancillaries provided by
publishers at no additional cost to school districts that adopt their textbooks.” Request Letter, supra
note 1. at 1.
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         The Board’s jurisdiction extends to the review of “textbooks.” See TEX. EDUC. CODEANN.
$5 31.0222.024 (Vernon 2006) (concerning textbook review, placing textbooks on lists, and
adoption). Section 3 1.002 of the Education Code defines the term “textbook” to mean “a book, a
system of instructional materials, or 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.” Id. 5 3 1.002(3). Although the components of the definition, such as “a
system of instructional materials” and“supplementary instructional materials” are not further defined
by statute, the statutory definition of “textbook” does not expressly refer to ancillary materials.

        Instead, ancillary materials are referenced in section 3 1.15 1(a)(3), which sets out publishers’
and manufacturers’ duties. See id. 8 31.151(a)(3). Under section 31.151(a)(3), publishers and
manufacturers must “provide any textbook or ancillary item free of charge,in this state to the same
extent that the publisher or manufacturer provides the textbook or ancillary item free of charge to
any state, public school, or school district in the United States.” Id. (emphasis added); accord 19
TEX. ADMIN. CODE 5 66.69 (2006) (Tex. Educ. Agency,~Ancillary Materials).

         We must presume that the legislature intended the entire statute to be effective and
purposefully used every word. See TEX. GOV’T CODEANN. 5 3 11.021(2) (Vernon 2005); see also
Tex. Workers’Camp. Ins. Fundv. Del Indus., Inc., 35 S.W.3d 591,593 (Tex. 2000) (citing Perkins
v. State, 367 S.W.2d 140,146 (Tex. 1963)) (”every word in a statute is presumed to have been used
for a purpose”). In general, where the legislature has used different words, we presume it intended
to convey different meanings. Cf: Guarantee Mut. Lif Ins. Co. v. Harrison, 358 S.W.2d 404,
40607 (Tex. Civ. App.-Austin       1962, writ rerd n.r.e.) (rejecting the contention that the phrases
“of the same classes’? and “of substantially the same grade” in one statute means the same as the
phrase “similar securities” used in another statute).

         Largely for this reason, Opinion DM-424 states that “the reference to ancillary items in
section 3 1.15 1 suggests that the legislature envisioned” that publishers may supply schools with
“items not within the definition of ‘textbook.“’ Tex. Att’y Gen. Op. No. DM-424 (1996) at 8.
Moreover, assuming that publishers provide ancillary materials free of charge, the opinion concludes
that “the board’s authority to adopt or reject textbooks [does not extend] to consideration of ancillary
items provided to school districts free of charge.” Id. “Because the board is to select or reject
textbooks from the books submitted,” the opinion continues, “the submitting party may determine
what materials are to be included for review” and the Board may consider only the materials
submitted in deciding whether to adopt or reject a textbook. Id.

         It is possible, as the opinion suggests, that the phrase “supplementary instructional materials,”
which is included within section 31.002’s definition of “textbook,” and the phrase “ancillaty
materials” are distinguishable because the words “supplementary” and “ancillary” may have slightly
different connotations.       The word “supplementary” connotes something “additional to what is
normal, ordinary[,] or usual.” Cf: B out h er v. Tex. Tpk. Auth., 317 S.W.2d 594, 597 (Tex. Civ.
App.-Texarkana         1958, no writ) (defining the term “supplemental”). By contrast, “as used in law,”
the word “ancillary” designates or pertains to “‘a document, proceeding, officer or office, etc., that
is subordinate to, or in aid of, another primary or principal one.“’ Am. Refractories Co. v.
The Honorable Geraldine “Tincy” Miller - Page 6                     (GA-0456)




Combustion Controls, 70 S.W.3d 660,663 (MO. App. 2002) (quoting Herhalser v. Herhalser, 401
S.W.2d 187, 193 (MO. App. 1966)).

          But Opinion DM-424 wrongly concludes that the terms “supplementary instructional
‘materials” and “ancillary materials” are mutually exclusive. See Tex. Att’y Gen. Op. No. DM-424
 (1996) at 8. First, section 31,151(a)(3) 1s an example of a typical “most-favored-nations”     contract
 clause’ and, as such, it is wholly unrelated to the process by which the Board designates textbooks
 as conforming, nonconforming, or rejected. The phrase “ancillary materials” is thus a red herring
 in considering whether the statutory definition of the term “textbook” includes such materials for
 purposes of the textbook review process. Moreover, the opinion wrongly suggests that ancillary
 materials are textbooks for purposes of section 3 1.002(3) only ifthey are supplementary instructional
 materials. The opinion should instead have considered whether any of the items comprising the
 statutory definition of the term “textbook’-“a       book, a system of instructional materials, or 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’-include         the
 kinds of materials that the Board, in posing this question, considers ancillary materials. TEX. EDUC.
 CODE ANN. 5 3 1.002(3) (Vernon 2006). For example, materials considered ancillary for purposes
 of section 3 1.15 l(a)(3) may be part of “a system of instructional materials” for purposes of the
 statutory definition of “textbook” and thus be textbooks within the Board’s review jurisdiction. See
 id. Alternatively, certain anci&ry materials may be “supplementary instructional materials” for
 purposes of the definition of “textbook” and thus be within the Board’s review jurisdiction. See id.
 As Opinion DM-424 admits, the statutory phrase “ancillary materials,‘: given its ordinary meaning,
 “would appear to come within the broad definition of ‘textbook.“’ Tex. Att’y Gen. Op. No. DM-424
  (1996) at 8 (footnote omitted).

          Opinion DM-424 further errs in suggesting that it is textbook publishers, not the Board, who
 determine what materials are textbooks subject to the Boards reviewjurisdiction.     See id. (indicating
 that “the submitting party may determine what materials are to be included for review”). The Board
 is authorized to adopt a reasonable rule clarifying the kinds ofmaterials that are within the definition
 of “textbook” by, for example, clarifying the phrases “system of instructional materials” or
 “supplementary instructional materials,” and textbook publishers must comply with the rule. See
 TEX: EDUC. CODEANN. 5 3 1.003 (Vernon 2006) (authorizing the Board to adopt rules, “consistent
 with this chapter, for the adoption        of textbooks”). At present, however, the Board has not
 adopted any such rule.


           ‘Cf., e.g., PG&EGas Transmissionv. CityofEdinburg, 59 S.W,3d225,227 (Tex.+pp.--Corpus Cbristi2001)
 (considering a most-favored-nationscontractprovision requiring,if the vendor should pay a higher percentage of gross
 receipts to any municipalityother than Edinburg,that “this franchiseshall automaticallybe amended to provide for the
 payment of such higher percent to the City of Edinburg”), aff’d m relevant part sub nom. S. Union Co. Y. City of
 Edinburg, 129 S.W.3d74 (TM. 2003); Tex. Utils. Elec. Co. v. City of Waco, 919 S.W.2d436,438 (TM. App.-Waco
  1995,writ denied)(consideringamost-favored-nationscontractprovisionrequiringTexasUtilitiesElectricCo., ifitpays
 any municipality other than Waco a 6anchise or street rental fee higher than three percent of gross receipts, to then
 increase the percentagepaid to Waco accordingly);Enterprise-Laredo Assocs. v. Hachar’s, Inc., 839 S.W.2d 822,826
 (TM. App.-San Antonio 1992,writ denied)(consideringa most-favored-nationscontractclauserequiringthe vendor,
 Enterprise-LaredoAssociates,should it make a later common-area-maintenance-chargeagreementwith a lessee other
 than Hachar, to give Hachar “the benefit of the later and mire favorablearrangement”).
The Honorable Geraldine “Tincy” Miller - Page 7           (GA-0456)




         In any event, whether particular materials considered ancillary for purposes of section
3 1,151(a)(3) are textbooks within the Board’s review jurisdiction is a question requiring the
resolution of fact issues and is not, therefore, amenable to the opinion process. Cf: Tex. Att’y Gen.
Op. No. GA-0156 (2004) at 10 (stating that fact questions,,cannot be answered in the opinion
process). In the absence of a Board rule reasonably clarifying the items comprising the defmition
of “textbook,” we cannot conclude that ancillary materials are textbooks subject to Board review as
a matter of law. Because it incorrectly analyzed the statutes with respect to this issue, we overrule
Attorney General Opinion DM-424 to the extent it is, inconsistent with this opinion.
The Honorable Geraldine “Tincy” Miller - Page 8           (GA-0456)




                                        SUMMARY

                        Attorney General Opinion DM-424 is overruled to the extent
              that it concludes that the statutory definition of the term “textbook”
              cannot include materials that are ancillary for purposes of section
               3 1.151 (a)(3) of the Education Code. See Tex. Att’y Gen. Op. No.
              DM-424 (1996). Opinion DM-424 is further overruled to the extent
              it suggests that textbook publishers, not the Board, determine what
              materials are textbooks within the Board’s review jurisdiction. The
              Board may adopt a reasonable rule further defining the components
              of the statutory definition of “textbook” by, for example, defining
              the phrase “system of instructional materials” or “supplementary
              instructional materials,” and textbook publishers must comply with
              the rule. Whether a particular material considered ancillary for
              purposes of section 3 1.151(a)(3) is a textbook within the Board’s
              jurisdiction to adopt or reject is a question of fact.

                        The legislature has provided the State Board of Education
               with certain specific authority over textbooks and their content. First,
               the Board must identify the TEKS standards by which all submitted
               textbooks will be judged. Second, the Board must evaluate whether
               each textbook submitted (a) contains factual errors and (b) meets
               physical specifications that the Board has set. Third, of those
               textbooks that have no factual errors and meet the established
               physical standards, the Board must place the books on either the
               conforming or nonconforming        list. Fourth, “in the adoption of
               textbooks” the Board must “foster the continuation of the tradition of
               teaching United States and Texas history and the free enterprise
               system.” The Board may adopt general textbook content standards
               that fall within these statutory authorizations, but the legislature has
               not authorized the Board to regulate textbook content to the extent
               such regulation falls outside these statutory provisions. To the extent
               Attorney General Opinion JIM-424 is read or applied inconsistently
               with this opinion, it is overruled.     See Tex. Att’y Gen. Op. No.
               DM-424 (1996).




                                                           eneral of Texas


KENT C. SULLIVAN
First Assistant Attorney General
The Honorable Geraldine “Tincy” Miller - Page 9   (GA-0456)




ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
