                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                March 13,2003



The Honorable Kevin Bailey                               Opinion No. GA-0038
Chair, Committee on General Investigating
Texas House of Representatives                           Re: Authority of the Texas Education Agency to
P.O. Box 2910                                            make a coordinated health program available to
Austin, Texas 78768-29 10                                elementary schools (RQ-0606-JC)


Dear Representative     Bailey:

        Your predecessor in office asked whether Education Code section 3 8 .O13, which requires the
Texas Education Agency (“TEA” or “the Agency”) to make “a coordinated health program” for
elementary students available to each school district in Texas, authorizes TEA to choose only a
single coordinated health program for all school districts in Texas.’

         Section 38.013 provides as follows:

                         (a) The [Texas Education] agencf shall make available to
                 each school district a coordinated health program designed to prevent
                 obesity, cardiovascular disease, and Type II diabetes in elementary
                 school students. The program must provide for coordinating:

                                   (1) health education;

                                   (2) physical education and physical activity;

                                   (3) nutrition services; and

                                   (4) parental involvement.




         ‘Letter from the Honorable Pete P. Gallego, Chair, House Committee on General Investigation, to Honorable
John Corny-n, Texas Attorney General, at 1 (Sept. 12, 2002) (on file with Opinion Committee) [hereinafter Request
Letter].

        *See TEX. EDUC. CODEAN-N. 5 5.001(l)    (Vernon Supp. 2003).
The Honorable Kevin Bailey - Page 2                 (GA-0038)




TEX. EDUC. CODE ANN. 4      38.013(a) (V emon Supp. 2003) (footnote added). TEA “shall notify each
school district of the availability of the program.” Id. 8 38013(b). Section 38.014 requires each
school district to implement section 38.013, providing that “[elach school district shall:

                         (1) participate in appropriate training for the implementation
                 of the program approved by the agency under Section 38.013; and

                             (2) implement   the program in each elementary school in the
                 district.

Id. 4 38.014(a). The Agency, in cooperation with the Texas Department of Health, “shall adopt a
schedule for regional education service centers to provide necessary training under this section.” Id.
8 38.014(b); see id. 0 8.002 (“Regional education service centers shall” provide certain assistance
to school districts and “implement initiatives assigned by the legislature.“).

         Initially, TEA announced that pursuant to section 38.013(a) it would adopt the diabetes
education program that the State Board of Education (“the Board”) had approved under
Education Code section 28.002(k) for school districts to use in their health curriculum.3 See id.
$5 28.002(a)(2)(B) (including health as part of enrichment curriculum); 28.002(k) (State Board of
Education, in consultation with the Texas Department of Health and the Texas Diabetes Council,
shall develop a diabetes education program “that a school district may use in the health
curriculum.“). The Board had approved the Child and Adolescent Trial for Cardiovascular Health
(CATCH)4 materials developed by the National Heart, Lung, and Blood Institute of the
federal National Institute of Health.      See Minutes, State Board of Education, Jan. 8, 1999,
item 6, attachment 5, available at httn:/l~.tea.state.tx.us/sboe/minutes/chiveslsboell999/
99018min.html; http://www.tea.state.tx.us/sboe/schedule/99Ol/diabetes.html         (last visited Jan. 24,
2003); see also CATCH Classroom Curriculum, available at http://www.sph.uth.tmc.edu/chppr/
catch/ curriculum.html (last visited Jan. 27,2003).

         After TEA’s announcement, a number of school districts asked TEA to allow them to
continue other programs that they had implemented in their schools. See TEA Brief, supra note 3,
at 1. Upon reviewing the legislation, TEA concluded that more than one program could be approved
and adopted procedures for placing programs on an approved list. See id. The Agency placed a
notice in the Texas Register stating that coordinated health programs could be submitted for review,
describing their requirements, and describing the evaluation process. See 27 Tex. Reg. 10469-70
(2002) (Request for Information            Concerning     Coordinated    Health Programs) (Tex. Educ.
Agency); see also Evaluation Process for Coordinated School Health Programs, available at
http://www.tea.state.tx.us/curriculum/hpe.html        (last visited Feb. 6,2003).


         3Brief from David A. Anderson, General Counsel, Texas Education Agency, to Honorable John Corny-n, Texas
Attorney General, at 1 (Oct. 25,2002) (on file with Opinion Committee) [hereinafter TEA Brief].

         4The CATCH program is now known as the Coordinated Approach to Child Health program. See Letter from
Honorable Jane Nelson, Senate Committee on Education, to Susan Gusky, Chair, Opinion Committee, Office of the
Attorney General, at 1 (Oct. 18,2002) (on file with Opinion Committee).
The Honorable Kevin Bailey - Page 3              (GA-0038)




        Your predecessor suggested that the phrase “a coordinated health program” in section 3 8 .O13
requires a single coordinated health program to be used in all school districts. See Request Letter,
supra note 1, at 1. Throughout Education Code sections 3 8.0 13 and 3 8.0 14, the term “program” is
used in the singular. TEA’s brief cites the rule of statutory construction providing that “the singular
includes the plural and the plural includes the singular.” TEX. GOV’T CODE ANN. 8 311.012(a)
(Vernon 1998); see TEA Brief, supra note 3, at 2.

         We note that TEA and other persons interested in the coordinated health program use the
term “program” to refer to educational materials and activities used to implement the health
curriculum that Education Code section 38.013 requires. See 27 Tex. Reg. 10469-70 (2002)
(Request for Information Concerning Coordinated Health Programs) (Tex. Educ. Agency). The
emphasis on whether or not the singular includes the plural reflects the confusion generated by using
the statutory term “a coordinated health program” to refer to educational materials that implement
the program. A question more relevant to TEA’s authority under sections 3 8 .O13 and 3 8 .O14 is what
the legislature intended by the phrase “a coordinated health program.” To determine what the
legislature intended by this phrase, we will consider it in the context of the statute as a whole. See
Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697,706 (Tex. 2002).

          Section 3 8 .O13 outlines a plan for coordinating health education, physical education, nutrition
services, and parental involvement for the purpose of preventing specific diseases in elementary
school children, thereby setting the standards for educational materials that might be used to
implement the program in Texas elementary schools. See TEX.EDUC. CODEANN. 9 38.013 (Vernon
Supp. 2003). The statute does not state that TEA must make available to each school district
identical teacher guides, student workbooks, videos, posters, and other educational materials, nor
does it state that only one provider may supply educational materials that implement the coordinated
health program. See id. When the legislature has wished to designate a single provider for goods
or services purchased with public funds, it has done so expressly. See id. 9 44.03 l(j) (purchase
of item available from sole source); Tex. Att’y Gen. Op. No. JM-167 (1984) at 2 (discussing
appropriations     act provision requiring Texas Lions League or similar organization to provide
rehabilitation services to blind adults at the Texas Lions Camp at Kerrville or similar location near
Austin). The legislature has not done so in section 38.013 of the Education Code.

         Section 38.013 establishes the standards ‘for a coordinated health program in Texas
elementary schools and grants TEA the authority to determine how it will be made available to
school districts. See TEX. EDUC. CODE ANN. 5 38.013 (Vernon Supp. 2003). The courts will
generally defer to a reasonable construction of a statute by the administrative agency charged with
its enforcement. See Osterberg v. Peca, 12 S.W.3d 3 1,5 1 (Tex. 2000). TEA has reasonably chosen
to request submissions from the public and to evaluate submitted materials for compliance with the
requirements set out in section 38.0 13. See 27 Tex. Reg. 10469-70 (2002) (Request for Information
Concerning Coordinated Health Programs) (Tex. Educ. Agency). Under sections 3 8 .O13 and 3 8 .O14,
TEA may make a coordinated health program available to each school district by reviewing
educational materials prepared by outside providers, determining which sets of educational materials
comply with the standards set out in section 38.013, and notifying the school districts that they may
use any of the approved sets of materials to implement the coordinated health program in each
The Honorable Kevin Bailey - Page 4           (GA-0038)




elementary school in the district. See TEX. EDUC. CODEANN. 8 38.014(a) (Vernon Supp. 2003). In
summary, while section 3 8.013 establishes the general standards for one coordinated health program,
TEA may make the program available to school districts in the form of one or more sets of
educational materials that implement the statutory requirements.
The Honorable   Kevin Bailey - Page 5         (GA-0038)




                                        SUMMARY

                        Pursuant to section 3 8.013 of the Education Code, the Texas
                Education Agency may provide “a coordinated health program
                designed to prevent obesity, cardiovascular disease, and Type II
                diabetes in elementary school students” to school districts by
                approving one or more sets of educational materials prepared by
                outside providers that fulfill the requirements of the coordinated
                health program described in the statute. TEX. EDUC. CODE ANN. 9
                38.013 (Vernon Supp. 2003); see TEX. GOV’T CODE ANN.
                6 311.012(a) (Vernon 1998).

                                              Very truly yours,




                                                          neral of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
