                                ATTORNEY GENERAL OF TEXAS
                                             GREG        ABBOTT




                                              September 30, 2010



The Honorable Rob Eissler                                Opinion No. GA-0807
Chair, Committee on Public Education
Texas House of Representatives                           Re: Meaning of "normal course load" as used in
Post Office Box 2910                                     section 42.159 of the Education Code for the
Austin, Texas 78768-2910                                 purposes of determining whether electronic courses
                                                         provided by school districts fall under the funding
                                                         method of section 42.159(b) or section 42. 159(d)
                                                         (RQ-0866-GA)

Dear Representative Eissler:

        Section 42.159 of the Education Code authorizes allotments for a successfully completed
qualifYing electronic course' provided by a school district or an open-enrollment charter school
through the State Virtual School Network ("SVSN"), which is established under chapter 30A of the
Education Code. See TEx. EDUC. CODE ANN. § 42. 159(a)(3), (b), (d)(West Supp. 2010); see also
id. §§ 30A.001-.155 (providing for SVSN). You explain that subsection 42. 159(b) and subsection
42.159(d) provide different funding methods depending "on whether ... a course is 'part of a normal
course load' ... or 'exceeds a normal course load. ",' Thus, you ask about "the meaning of 'normal
course load' for the purposes of determining whether a course falls under the funding method of
42.159(b) or 42.159(d)." Request Letter at 1.

         To provide a context for your question and discussion of Education Code section 42.159, we
begin with an overview of chapter 42. Chapter 42 generally provides for the funding of school
districts through the Foundation School Program ("FSP"). See generally TEx. EDUC. CODE ANN.
§§ 42.001-.457 (West 2006 & Supp. 2010). The cost of the FSP is financed with local school
district taxes, available school fund distributions, and state appropriations. Id. § 42.251(b) (West
2006). The FSP, generally speaking, consists of two funding components or "tiers" that provide for
(l) basic educational programs and substantially equal access to funds to provide enriched
educational programs above the basic level, and (2) educational facilities. See id. § 42.002(b). "The



          ISee TEx. EDUC. CODE ANN. § 42.159(a)(I) (West Supp. 2010) ("'Electronic course' means a course that is a
semester in length."); id. § 30A.OOI(4)(B), (C) (defming "Electronic course" as a course in which, among other items,
"a student and teacher are in different locations for a majority of the student's instructional period" and "most
instructional activities take place in an online environment").

         'Request Letter at I (available at http://www.texasattomeygeneral.gov).
The Honorable Rob Eissler - Page 2                    (GA-0807)



sum of the basic [state] allotment under Subchapter B and the special [state] allotments under
Subchapter C ... constitute the tier one allotments." Id. § 42.25 1(a) (footnotes omitted).3

       With this background, we tum to section 42.159, which is a part of subchapter C and
provides allotments to school districts for courses offered through the SVSN. See id. § 42.159 (West
Supp.20l0). Subsections 42.1 59(b) and (d) provide in pertinent part:

                 (b) For each student who successfully completes an electronic
                 course that satisfies a curriculum requirement for graduation adopted
                 under Section 28.025 [High School Diploma and Certificate;
                 Academic Achievement Record], and is provided through the state
                 virtual school network as part ofa normal course load:

                     (1) the school district or open-enrolhnent charter school that
                 provided the course is entitled to an allotment of $400; and

                      (2) the school district or open-enrollment charter school in which
                 the student is enrolled is entitled to an allotment of$80 to reimburse
                 the district or school for associated administrative costs.



                 (d) For each student who successfully completes an electronic
                 course that satisfies a curriculum requirement for graduation adopted
                 under section 28.025 [High School Diploma and Certificate:
                 Academic Achievement Record], is provided through the state virtual
                 school network, and exceeds a normal course load, ... the school
                 district or open-enrollment charter school that provided the course
                 may be entitled to an allotment in an amount determined by the
                 commissioner based on the amount of funds appropriated for
                 purposes of this subsection.

Id. § 42. 159(b), (d) (emphasis added). With respect to a course that "exceeds a normal course load,"
subsection 42. 159(d), (1) provides for unspecified allotments, and (2) limits the allotments to funds
specifically appropriated by the Legislature for such a purpose. See id. § 42.l59(d). In contrast, with
respect to a course that is "part of a normal course load," subsection 42. 159(b), (1) provides for fixed
allotments of$400 and $80, and (2) does not limit the allotments to specifically appropriated funds.
See id. § 42.1 59(b).

       Subsection 42.159(a) defines "normal course load" as "the number ofclasses or credit hours
generally required to be taken by a student to generate the foil amount offundingprovided under this



        'Tier two funding for educational facilities does not appear to be relevant to your question.
The Honorable Rob Eissler - Page 3                   (GA-0807)



chapter [42] for a student in average daily attendance, as determined by the commissioner [of
Education]." Id. § 42. 159(a)(2) (emphasis added). As you note, however, the "Education Code does
not contain a definition of the number of classes or credit hours generally required by a student to
generate the full amount offunding." Request Letter at 2. You suggest that based on an existing rule
of the Commissioner of Education (the "Commissioner") relating to attendance accounting, four
hours per day of course load generates the full amount of chapter 42 funding and should be "the basis
for [the] definition of 'normal course load.''' Id.

        The Legislature may, of course, provide that four hours per day of course load is "the number
of classes or credit hours generally required to be taken by a student to generate the full amount of
funding provided under this chapter [42]" for the purposes of section 42.159. However, in the
absence oflegislative action defining "normal course load" based on a four-hour course load, we
cannot say definitively that the four-hour course load should be the basis of the definition in view
of the Commissioner's authority under and with respect to section 42.159. The '.'[c]onstruction of
a statute by the administrative agency charged with its enforcement is entitled to serious
consideration, so long as the construction is reasonable and does not contradict the plain language
of the statute." Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993); accord First
Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 632 (Tex. 2008).

        In section 42.159(a), the Legislature has granted the Commissioner the authority to
specifically determine the meaning of "normal course load" by providing that '''[n]ormal course
load' means the number of classes or credit hours generally required to be taken by a student to
generate the full amount of funding ... , as determined by the commissioner." TEx. EDUC. CODE
ANN. § 42.159(a)(2) (West Supp. 2010) (emphasis added); see also TEx. GOy'T CODE ANN.
§ 311.011(a) (West 2005) ("Word and phrases shall be read in context and construed according to
the rules of grammar and common usage."); Ludwigv. State, 931 S.W.2d239,241 (Tex. Crim. App.
1996) (stating rule of construction that "a comma separating a modifYing clause in a statute from the
clause immediately preceding is an indication that the modifYing clause was intended to modifY all
the preceding clauses and not only the last antecedent"). Additionally, the Legislature has
specifically directed the Commissioner in section 42.159(h) to "adopt rules necessary to implement
this section [42.159]." TEx. EDUC. CODE ANN. § 42.159(h) (West Supp. 2010).4

        The Commissioner and agency staff comprise the Texas Education Agency (the "TEA"). Id.
§ 7.002(a) (West 2006); see also id § 7.055(b)(2) (providing that the Commissioner serves as
executive officer of the TEA and as executive secretary of the State Board of Education). TEA rules
require public schools to "maintain records to reflect the average daily attendance (ADA) for
the allocation of Foundation School Program (FSP) funds and other funds allocated by the" TEA.
19 TEx. ADMIN. CODE § 129.21 (a) (2010) (Tex. Educ. Agency, Requirements for Student Attendance
Accounting for State Funding Purposes). Section 129.21(h) of the TEA rule to which you


         4The Commissioner is also charged with administering Education Code chapter 30A. The Legislatme has (I)
directed the Commissioner to administer the SYSN and ensure the quality of and equitable access to the education
provided through the network, and (2) authorized the Commissioner to adopt rules to implement chapter 30A. See TEX.
EDUe. CODE ANN. § 30A.051 (West Supp. 2010).
The Honorable Rob Eissler - Page 4                      (GA-0807)



specifically refer provides that "[a] student must be enrolled for at least two hours of instruction to
be considered in membership for one half day, and for at least four hours of instruction to be
considered in membership' for one full day." Id § 129.21(h) (emphasis and footnote added). The
TEA notes that the preexisting section 129.2 I (h) four-hour definition "relates to scheduled minutes
of instruction and not to a number of 'classes' or 'credits hours'" and that "[t]here is no existing
standard by which a 'course' or 'credit' is translated into a uniform number of minutes of instruction
for state funding purposes.,,6 The TEA has instead "implemented Section 42.159 by considering a
'normal course load' to be the number of credits necessary to graduate from high school in four years
under the state's recommended high school program, which is seven credits per year." TEA Brief
at 3;7 see also TEx. EDUC. CODE ANN. § 28.025(a) (West Supp. 2010) (providing that "[t]he State
Board of Education by rule shall determine curriculum requirements for the minimum,
recommended, and advanced high school programs that are consistent with the required
curriculum"); 19 TEx. ADMIN. CODE § 74.12 (b)-{c) (2010) (Tex. Educ. Agency, Recommended
High School Program) (providing for core requirement credits for graduation and recommended
components and credits for each year).

        Because the Legislature has charged the TEA with administering section 42.159, a court will
uphold the TEA's interpretation '''so long as the construction is reasonable and does not contradict
the plain language of the statute.'" First Am. Title Ins. Co., 258 S.W.3d at 632 (considering the
Comptroller of Public Account's interpretation of a tax provision) (quoting Tarrant Appraisal Dist.,
845 S.W.2d at 823); see also Tex. Att'y Gen. Op. No. GA-0458 (2006) at2("ln the event that a state
administrative agency has construed a statute that it is charged with enforcing, as in the instant case,
we will accept that construction, so long as the construction is reasonable and does not contradict
the statute's plain language.") (accepting Texas Lottery Commission's definition of "group" in the
Bingo Enabling Act).

        The TEA's definition of "normal course load" does not appear unreasonable, and it does not
contradict the plain language of the statute. First, the TEA's definition appears consistent with the
section 42.159 definition of "normal course load," which is in terms of the "number of classes or
credit hours" generally required to be taken to generate full funding under chapter 42. See TEx.


          5A TEA handbook defmes "membership" as follows: "The total number of public school students who were

reported in membership as of the October snapshot date (the last Friday in October) at any grade .... Membership is
a slightly different number from enrollment, because it does not include those students who are served in the district for
fewer than 2 hours per day." TEXAS EDUCATION AGENCY, 2009-20 10 STUDENT ATTENDANCE ACCOUNTING HANDBOOK,
VERSION 2, at 236 (Glossary) (Aug. 13,2009) (available at http://www.tea.state.tx.us/index2.aspx?id~I80) (last visited
Sept. 27, 2010).

        6Brieffrom David Anderson, General Counsel, Texas Education Agency, at 2-3 (Apr. 5,2010) (on file with
the Opinion Committee) [hereinafter TEA Brief!.

         'We are informed that the TEA "anticipates filing a proposed rule consistent with" this implementation as
communicated to Legislators by a letter dated September 1,2009. TEA Briefat 3; see also id. at Exhibit A (Letter from
Robert Scott, Commissioner of Education, to Honorable Florence Shapiro and Honorable Scott Hochberg, at 1-2 (Sept.
1,2009»; TxVSN FREQUENTLY ASKED QUESTIONS, General Questions, 10. How is a "normal course load" defined?
(available at http://www.txvsn.orgiTxVSNFAQ.aspx)(lastvisitedSept. 27, 2010).
The Honorable Rob Eissler - Page 5             (GA-0807)



EDUC. CODE ANN. § 42. 159(a)(2) (West Supp. 2010). And, as you note, the Education Code does
not expressly provide for the number of classes or credit hours to generate the full chapter 42
funding. Request Letter at 2. Second, based on the language in a closely related provision in
Education Code chapter 30A establishing the SVSN, the TEA's defInition appears consistent with
the meaning the Legislature most likely intended for "normal course load." Section 30A.l55
addresses fees that a school district mayor must charge a student enrolled in an electronic course
provided through the SVSN and funded under subsection 42.159(d). See TEx. EDUC. CODE ANN.
§ 30A.155 (West Supp. 2010) (providing for fees); see also id § 42. 159(h) (providing that the
Commissioner's adopted rules must include provisions requiring a school district or open-enrollment
charter school that receives funding under section 42.159(d) to reduce or limit the fees charged under
section 30A.155). A school district is permitted to charge a fee if, among other things, the student
"is enrolled in a course load greater than that normally taken by students in the equivalent grade
level . ... " Id § 30A.155(a), (c-l) (emphasis added).

        Accordingly, because the TEA is the administrative agency expressly charged with
administering section 42.159, and its construction ofthe defInition of the term "normal course load"
in terms of seven credit hours per year does not appear unreasonable and is not inconsistent with the
term's statutory defInition, we cannot say that the defInition of "normal course load" should or must
be based on a four-hour course load.
The Honorable Rob Eissler - Page 6           (GA-0807)



                                      SUMMARY

                      Section 42.159 of the Education Code provides allotments to
              school districts or open-emollment charter schools for successfully
              completed courses offered through the State Virtual School Network.
              The Texas Education Agency (the "TEA") is the administrative
              agency expressly charged with administering Education Code section
              42.159. The TEA's definition of the term "normal course load" in
              section 42.159 as seven credit hours per year does not appear
              unreasonable and is not inconsistent with the term's statutory
              definition. Accordingly, this office cannot say that the definition of
              "normal course load" should or must be based on a four-hour course
              load.




DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

SheelaRai
Assistant Attorney General, Opinion Committee
