            THE      ATTO            EY    GENERAL
                            OF       EXzW3

                            September 15. 1987




Honorable Bill Hammond                           Opinion No.JM-786
Chairman
House Committee on Local h                       Re:    Vslidity of a rider
   Consent Calendars                             regarding high school exit-
P.O. Box 2910                                    level tests
Austin, Texas 78769

Dear Mr. Hammond:

     You ask whether a rider to the 1987 appropriations       bill conflicts
with the following statute:

             (a) The Central Education     Agency shall adopt
          appropriate   cri tqion     referenced     aSsessnle”t
          instruments  designed    to asses* minimum      basic
          skills competencies     in reading, writing,      and
          mathematics for all pupils at the first, third,
          fifth, seventh, and ninth grade       levels and in
          mathematics and English     language arts for all
          pupils at the 12th grade level.

             (b) The Central Education Agency     shall also
         adopt secondary exit level assessment    instruments
         designed   to  .4ssess mathematics     and   English
         language arts competencies for pupils at the 12th
         grade level. The State Board of Education      shall
         administer the assessment instruments.


             Cc) The      secondary exit       level   assessrm”t
          instrument must be administered       to all pupils   at
          the 11th grade level.       Each pupil who did not
          perform satisfactorily on all sections when tested
          at the     11th    grade   level     shall   be    given
          opportunities    during   the 11th and      12th grade
          levels to retake    the sections     of the assessment
          instrument on which      the pupil did not perform
          satisfactorily,    including     the   opportunity    to
          retake those sections during the        final month   of
          the school term in which the pupil is enrolled        at
          the 12th grade level.




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Educ. Code   521.551 (emphasis added).   See also Educ. Code 121.553
(pupil may not receive high school     diploma until he has performed
satisfactorily on all sections of the secondary exit level assessment
instrument).

     The rider you ask about provides:

             Exit-Level   Tests.    State funds appropriated
          under  this Act      shall not be      used in    the
          development and administration of an exit-level
          assessment instrument under Sections      21.551, et
          seq., Texas Education Code, which tests objectives
          in which     eleventh    graders would     not   have
          reasonably been expected    to receive   instructions
          in previous courses.

General Appropriations Act, Acts 1987, 70th Leg., 2d C.S., ch.      78,
art. III, 51, Central Education Agency-Programs, subset. 16, at 111-7.
See Educ. Code 521.558 (cost of preparing and administering assessment
instruments to be paid from the compensatory aid provided by Educ.
Code 516.1521;   5516.152, 16.251 (financing of compensatory aid). A
rider to an appropriations bill is invalid if its provisions  conflict
with the provisions   of a general statute. Attorney General   Opinion          ?
V-1254 (19511.    A rider is not invalid, however,    if it is merely
declaratory of existing law. Attorney General Opinion MW-389   (1981).
You suggest   that the rider set out above is invalid because        it
conflicts with section 21.551 of the Education Code.

     The legislature   delegated to the Central Education Agency    the
task of adopting exit-level assessment instruments to assure that high
school graduates have at least basic skills in math and English.    The
legislature may delegate authority to carry out a legislative purpose,
State ex rel. Grimes County Taxpayers Association v. Texas Municipal
Power Agency,   565 S.W.2d 258, '273 (Tex. Civ. App. - Houston     list
Dist.1 1978, writ dism'dl.      In carrying  out delegated  authority,
however, an administrative agency must act reasonably.   See Allstate
Insurance Co. v. State Board of Insurance, 401 S.W.2d 131,132    (Tex.
Civ. App. - Austin 1966, writ ref'd n.r.e.).

     The legislature directed   that exit-level assessment   instruments
be administered to all pupils in the 11th grade. We think it would be
unreasonable, as a matter of law, for a competency test administered
to 11th graders to test material   that 11th graders are not likely to
have covered.   Therefore, we think it is implicit in section     21.551
that the material    tested be material    that an Ilth-grader     could
reasonably be expected to have covered.      The rider you ask about
simply   states that the exit-level     examination   should not cover
subjects in which   "eleventh graders would not have reasonably     been    ?
expected to receive instructions in previous courses." That rider      is




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    Honorable Bill Bammond - Page 3      (JM-786j




    simply declaratory of what we think is implicit in section 21.551 of
    the Education  Code. Therefore,   we conclude that the rider is not
    invalid.

                                  SUMMARY

                 A rider concerning exit-level examinations   for
              high school students   is merely   declaratory   of
              existing law and is therefore not invalid.     Acts
              1987, 70th Leg., 2d C.S.,  ch. 78, art. III, 91,
              Central Education Agency-Programs, subset. 16, at
              111-7.




                                              JIM     MATTOX
                                              Attorney General of Texas

    MARY KELLER
    Executive Assistant Attorney General
r
    JUDGE ZOLLIE STBAKLEY
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Sarah Woelk
    Assistant Attorney General




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