                               ATTORNEY GENERAL OF TEXAS
                                            GREG       ABBOTT




                                                April 152003



Mr. Felipe T. Alanis                                        Opinion No. GA-0060
Commissioner of Education
Texas Education Agency                                      Re: Relative authority of the State Board of
1701 North Congress Avenue                                  Education and the Commissioner of Education
Austin, Texas 78701-1494                                    with regard to the adoption of academic
                                                            excellence evaluators and the evaluation of
                                                            school districts under chapter 39 of the
                                                            Education Code (RQ-0607-JC)

Dear Commissioner       Alanis:

         You inquire about the relative authority of the Commissioner           of Education (“the
Commissioner”)     and the Texas Education Agency (“the Agency”) on the one hand, and the State
Board of Education (“the Board”) on the other, with respect to the performance indicators and
accreditation status for public schools under chapter 39 of the Education Code. Your questions first
require the examination of section 39.05 1 of the Education Code, concerning academic excellence
indicators (“AEIs”), which was revised by three separate enactments of the Seventy-seventh
Legislature.

         Your questions are occasioned by a controversy between the Board and the Cornmissioner
as to the responsibility   for defining the appropriate dropout rate to be used in the annual
determination of the performance of Texas school districts and their accreditation status. Pursuant
to section 39.073(a) of the Education Code, “The agency shall annually review the performance of
each district and campus on the indicators adopted under sections 39.05 l(b)( 1) through (7) and
determine if a change in the accreditation status of the district is warranted.” TEX. EDUC.CODEANN.
5 39.073(a) (V emon Supp. 2003). Section 39.051(a) of the Code provides, “The State Board of
Education shall adopt a set of indicators of the quality of learning on a campus. The State Board of
Education biennially shall review the indicators for the consideration of appropriate revisions.” Id.
8 39.05 1(a). Questions have arisen that concern the use of a “completion rate” in the calculation of
dropout rates for the purposes of the indicator required by section 39.05 1(b)(2). As you put it, “A
number of questions have arisen regarding the authority of the Board over the AEIs . . . and the effect
of that authority on the commissioner’s         role in determining a school district or campus’
accountability rating, as well as on the annual report required by Section 39.182.“’ You note in



        ‘Letter from Felipe T. Alanis, Commissioner of Education, Texas Education      Agency, to Honorable John
Cornyn, Texas Attorney General at 3 (Sept. 10,2002) (on file with Opinion Committee)   [hereinafter Request Letter].
Mr. Felipe T. Alanis      - Page 2                    (GA-0060)




particular a resolution adopted by the Board in November 200 1: “That a high school completion rate
(Grades 9- 12) re pl ace the annual dropout rate in the accountability rating system, starting in the year
2003-2004.” Request Letter, supra note 1 (Exhibit A, Resolution) (emphasis added). Your concern
is whether the power granted to the Board in section 39.05 1(a) of the Education Code encompasses
the sort of definition attempted by the November 2001 resolution, and how such definitions are to
be considered in undertaking your responsibility to issue annual “report cards” and “performance
reports” on the schools of Texas under sections 39.052 and 39.053.

         A variety ofbills were passed in the Seventy-seventh Legislature amending section 39.05 1(b)
of the Education Code, not all of which appear to be entirely reconcilable. Accordingly, before we
consider your particular questions we must determine which of two alternatives prevails in two
instances. We must determine which “completion rate” statute effectively amends subsection (b)(2)
of section 39.05 1, and whether the language permitting the Board to adopt “any other indicator”
remains a part of subsection (b)( 10). Under Senate Bill 702, subsection (b)(2) of section 39.05 1
requires the AEIs to include “dropout and completion rates.” Act of May 17,2001,77th Leg., R.S.,
ch. 725, 0 4, 2001 Tex. Gen. Laws 1439, 1441. On the other hand, the statutory language was
amended by House Bill 1144 to require the inclusion of “dropout rates, including dropout rates and
district completion rates for grade levels 9 through 12.” Act of May 24,200 1,77th Leg., R.S., ch.
834, 8 lo,2001 Tex. Gen. Laws 1657, 1663-64 (emphasis added). The last legislative action on
Senate Bill 702 was on May 17,200 1. The last legislative action on House Bill 1144 was taken on
May 24, 2001. Accordingly, to the extent these sections conflict, House Bill 1144’s language
prevails. TEX. GOV’T CODEANN. 9 3 11.025(b) (Vernon 1998) (later enactment prevails). The AEIs
are therefore mandated to contain “dropout rates, including dropout rates and district completion
rates for grade levels 9 through 12.”

         The language giving the Board the power to adopt “any other indicator” was specifically
deleted from the statute by Senate Bill 676. See Act of Apr. 5,2001,77th Leg., R.S., ch. 8,§ 3;2001
Tex. Gen. Laws 14, 15-16. There is no question that it was the intent of Senate Bill 676 to
“[d]elete[] text regarding any other indicator the State Board of Education adopts.” SENATECOMM.
ONEDUCATION,BILL ANALYSIS, Tex. S.B. 676,77th Leg., R.S. (2001). Accordingly, were Senate
Bill 676 the only legislation enacted by the Seventy-seventh Legislature with regard to section
39.05 1(b)( lo), the legislature’s decision to strip the Board of power to adopt “any other indicator”
would be unmistakably clear.

        However, two later bills, Senate Bill 702 and House Bill 1144, contain the original language
of subsection (b)( 10). It has therefore been argued that, as these enactments are later, section
3 11.025(b) of the Government Code provides that they prevail over the earlier language in Senate
Bill 676 which stripped the Board of its powers under subsection (b)(10).2




         2See Brief from Joe J. Bemal, Vice Chair, State Board of Education, to Honorable John Corny-n, Texas Attorney
General at 5 (Nov. 6,2002) (on file with Opinion Committee); Brief from Chris Patterson, Director of Education, Texas
Public Policy Foundation, to Susan D. Gusky, Chair, Opinion Committee, Office of the Attorney General at 3 (Nov. 4,
2002) (on file with Opinion Committee).
Mr. Felipe T. Alanis    - Page 3                 (GA-0060)




       This argument,    however, fails to take into account section 3 11.025(c) of the Government
Code, which reads:

                         (c) In deterrnining whether amendments are irreconcilable,
                text that is reenacted because of the requirement of Article III, Section
                36, of the Texas Constitution is not considered to be irreconcilable
                with additions or omissions in the same text made by another
                amendment. Unless clearly indicated to the contrary, an amendment
                that reenacts text in compliance with that constitutional requirement
                does not indicate legislative intent that the reenacted text prevail over
                changes in the same text made by another amendment, regardless of
                the relevant dates of enactment.

TEX. GOV’T CODEANN. 8 3 11.025(c) (Vernon          1998) (emphasis added).

         Article III, section 36, to which section 3 11.025(c) refers, states, “No law shall be revived
or amended by reference to its title; but in such case the act revived, or the section or sections
amended, shall be re-enacted and published at length.” TEX. CONST. art. III, 8 36. As the
Interpretive Commentary notes, “The evil designed to be remedied by this mandate was the passage
of amendments in terms so blind that legislators could be deceived in regard to their effects. . . . An
amendment which sought to insert words or substitute phrases by reference with no publication could
well mislead as to its effect.” Id. inter-p. commentary. The Court of Criminal Appeals explained in
Rhoades v. State, 934 S.W.2d 113,121 (Tex. Crim. App. 1996)) “to amend a statute, the Legislature
must indicate changes by interlineating the modifications onto the text of the statute as the text was
prior to amendment.”

         Senate Bill 702 makes minor changes to the introductory language of section 39.05 1(b) and
to subsection 7, but otherwise simply sets out the provision’s language in extenso. There is no
indication by interlineation that it intends to reintroduce subsection (b)( 10). Nor does the legislative
history suggest any such intent. The bill analysis describes that the relevant section of Senate Bill
702 “requires the indicators to be based on information that is disaggregated by race, ethnicity,
gender (rather than sex), and socioeconomic status and requires the indicators to include certain
information.”   SENATECOMM. ON EDUCATION,BILLANALYSIS,Tex. S.B. 702, 77th Leg., R.S.
(2001).

        House Bill 1144’s sole amendment to the language of subsection (b) is the addition of the
words “including dropout rates and district completion rates for grade levels 9 through 12” to section
39.05 1(b)(2). Otherwise, it simply sets forth the prior statutory language. Again, there is nothing
in the bill analysis to suggest an intention to re-introduce subsection (b)(lO).

         There is, therefore, no evidence in either of these bills of an attempt to reinstate the power
to adopt other indicators which had been taken from the Board by Senate Bill 676. Absent such clear
indication to the contrary, we cannot infer a legislative intent that the reenacted text in Senate Bill
702 or House Bill 1144 prevail over Senate Bill 676, even though they were enacted later.
Mr. Felipe T. Alanis   - Page 4                 (GA-0060)




Accordingly, the operative amendment of subsection (b)(lO) is that of Senate Bill 676, deleting the
text that indicates the Board has power to adopt “any other indicator.”

          In light of this construction of the statute we turn to your specific questions. You first ask
whether the Board may, pursuant to section 39.05 1(a), provide for the use of the particular method
of dropout calculation at issue here, as it attempted to do by resolution on November 11,200l. It
may not. The Board’s resolution required that “a high school completion rate replace the annual
dropout rate in the accountability rating system.” Request Letter, supra note 1 (Exhibit A,
Resolution) (emphasis added). Pursuant, however, to the change in subsection (b)(2) effected by
House Bill 1144, the relevant indicator mandated by the legislature is “dropout rates, including
dropout rates and district completion rates for grade levels 9 through 12.” TEX. EDUC.CODEANN.
fj 39.05 1(b)(2) (V emon Supp. 2003) (emphasis added). To reach the conclusion that the Board’s
resolution was consistent with this language, we would have to read dropout rates as restricted to
completion rates. But “it is a well settled rule that the words ‘include,’ ‘including,’ and ‘shall
include’ are generally employed as terms of enlargement rather than limitation or restriction.”
Badouh v. Hale, 22 S.W.3d 392, 396 (Tex. 2000) (citing Republic Ins. Co. v. Silverton Elevators,
Inc., 493 S.W.2d 748,752 (Tex. 1973)). The legislature has required that the calculation of dropout
rates include, but not be limited to, completion rates. What the legislature requires by statute, an
administrative agency cannot gainsay by rule. See R.R. Comm ‘n v. Lone Star Gas Co., 844 S.W.2d
679,685 (Tex. 1992) (agency “can adopt only such rules as are authorized by and consistent with
its statutory authority”).

         Given that the Board’s authority to adopt other indicators was repealed by the abolition of
section 39.05 l(b)(lO), you next ask whether indicators added by the Board to those mandated by
statute before the effective date of the deletion of subsection (b)( 10) remain in effect. Any such
indicators were, until that time, within the Board’s discretion. Accordingly, given that legislation
is ordinarily prospective, see TEX. GOV’T CODEANN. 5 3 11.022 (Vernon 1998)’ any such indicators
properly so adopted remain in full force and effect.

        Your final question concerns the effect of the Board’s attempted definition of dropout rates
on the responsibility of the Commissioner and the Agency with respect to the determination of
school accreditation status under sections 39.072(b) and 39.073 of the Education Code, as well as
on the comprehensive annual report required of the Agency under section 39.182. Because we have
determined that the Board lacked authority to promulgate such a definition, this question is moot.
Mr. Felipe T. Alanis   - Page 5               (GA-0060)




                                       SUMMARY

                        The Seventy-seventh Legislature specifically required as an
               academic excellence indicator under section 39.05 l(b) of the
               Education Code the inclusion of “dropout rates, including dropout
               rates and district completion rates for grade levels 9 through 12.”
               Accordingly,    the State Board of Education does not have the
               authority to promulgate a rule mandating that such rates be computed
               based upon district completion rates alone. The Seventy-seventh
               Legislature further amended section 39.05 1(b) of the Education Code
               to excise the State Board of Education’s authority to adopt additional
               academic excellence indicators. Any such indicators adopted by the
               State Board before the effective date of this legislation, however,
               remain in full force and effect.

                                              Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WTLLETT
Deputy Attorney General - Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
