                           QWice of tip I?lttornep Qhneral
                                   .&ate of Qexarr
DAN MORALES
 ATTORNEY
      GENERAL                             January 22,1993



     Mr. Lionel R Meno                               Opiion No. DM- 196
     commissioner
     Texas Education Agency                          Rez Whether the prekindergarten program
     1701 North Congress Avenue                      established by section 21.136 of the
     Austin, Texas 78701-1494                        Education Code is part of elementaty
                                                     education under Texas Law, and related
                                                     questions (RQ-436)

     Jkar CommissionerMeno:

             You have asked us to answer several questions posed by the United States
     Department of Education (the department) regarding the prekindergarten program
     established by section 21.136 of the Education Code. The department wants answers to
     these questions so that it can determine whether the school districts in Texas are eligibleto
     receive impact-aid assistance for children enrolled in prekindergarten classes.

            The impact-aid statute is designed to give local educational agencies (LEAS)
    federal tinancial assistance when federal activities at&t the revenue available to the LEAs
    or the number of children they serve. 20 U.S.C. Q236. Under section three of the statute,
    an LEA may claim payments for federally-connected childrent who are receiving “6ee
    public education” &om the LEA. Id. 0 238. The regulations enacted under the statute
    iinther provide that, to be eligible for impact aid, an LEA must be responsible under the
    applicable state or federal law for providing free public education to the children for whom
    the aid is claimed and must actually be providing the free public education to those
    children. In addition, the state must provide timds for the education of the children for
    whom the aid is claimed on the same basis as all other children attending public school in
    the state. 34 C.F.R. 8 222.80. The statute defines free public education as “education
    which is provided at public expense, under public supervision and direction, and without
    tuition charge, and which is provided as elementary or secondary school education in the
    applicable State.” 20 U.S.C. 6 244(4).




                                                p.     1035
Mr. Lionel R Meno - Page 2                  (DM-196)




      The department’sfirst three questions concern the status of the prehinder~en
program under Texas law and are as follows:
          1) Is the Terms prekindergarten program considered to be part of
          elementary education under Texas State law? Ifso, how and by what
          authority?
          2) Section 21.03 1 of the Texas @Iducation]Code indicates that
          eveq child who is a citizen of the United States or a legal alien and is
          ovatheageoffiveonthefirstdayofseptrmbashallbeentitkdto
          the benefits of the Available School Fund for that year. The statute
          fbrther provides that every child over the age of five is permitted to
          attend the public free schools of the district in wbicb he resides. In
          addressing question 1, please address the possible implication of
          these provisions that education for four ywr olds is not elementary or
          free public education under Texas law.
          3) Similarly, section 21.13 1 of the Texas ~ucation] Code states
          thateachschoo]districtinTacasshsllestsblimand~asa
          part of the “public 6ee schools”one or more kindergartens for the
          train@ of five year olds. Section 21.136, which authorizes the
          establishment of a prekindergarten program for four year olds, does
          not indicate that the prekindergarten program is considered to be a
          part of the public free schools. In addressing question 1, please
          address the meaning of this omission.
        We conclude that the Texas prekindergarkn program is part of the public 8ee
schools under Texas law. Section 21.03 1(a) of the Education Code specitically provides
that children enrolled in prekindergarten classes are entitled to the bate&s of the available
school timd. Under article VII, section 5 of the Texas Consthution, however, the
available school timd may be used only for the support of public free schools. Therefore,
either the prekindergarten program is a part of the public frse schools under Texas law or
section 21.03 l(a) of the Education Code is unconstitutionalunder the Texas Constitution.
We must presume that a statute is constitutional. County of Gamerun v. Wih, 326
S.W.2d 162, 165 (Tex. 1959). Furthermore, ail reasonable doubts about the validity of a
statute must be resolved in favor of its validity. Greene v. Robison, 8 S.W.2d 655,656
(Tex. 1928). Because nothing in either the constitution or the statutes of Texas suggest
that the prekindergarten program cannot be part of the public free schools, we believe the
phrase “public &ee schools” must be interpreted to encompass the prekindergarten
program.

        Tbe Srst sentence of section 21.031(a) suggests that only children between age
five and age twenty-one are entitled to the benefb of the available school 8md. However,
the second sentence of section 21.031(a) explicitlybrings prekindergarten children within



                                          p.   1036
Mr. Lionel R Meno - Page 3                   (DM-196)




the group of children entitled to the benefits of the available school fund. This section, in
itsedrety,reads:

              All children who are citizens of the United States or legally
          admitted aliens and who are five years of age or older and under the
          age of 21 years on the first day of September of any scholastic year
          shall be entitled to the be&its of the Available School Fund for that
          year. All other chik&enem-o&d in a prekhhgarten ckzss u&r
          Section 21.136 of this conk are eniiiled to the betq’its of the
          Awikzble SchoolFund.
Rduc. Code 8 21.031(a) (emphasis added). Therefow this section cxpnmdy and
unequivocdly supports the conchtsion that the prekindergarkn program is part of the
public fkee schools.

       Furthermore, we do not believe that the omission of the phrase “public free
school”from section 21.136 is signi6cant. If a program is eligiile for the be&to of the
available school timd, then it must be a part of the public @eeschools; whether the statute
creating the program explicitlyrefers to it as a part of the public f+eeschools is irrelevant.

       You also ask whether the prekindergarten program is “dememary education”
under Texas law. “Elementary education”is not a term of art under Texas law and is not
given a consistent defkition in the Texas statutess We note, however, that the
prekindergarten program is part of elementaty education in some signi6cant contexts. For
example, article VIII, sections l-b(c) and l-b(d) of the Texas Consdtution deal with tax
exemptions and refer to “ad valorem taxation for general elementary and secondary public
school purposes.” In this context, “elementary. . . public school purposes” must include
prekindergarten. School districts clearly have the authority to use ad valorem tax revenue
to support prekindergartm programs, and the tax exemptions must apply to the taxes used
to support those programs. Because prekindergarten is not a secondary school purpose, it
must be part of elementary education for the purposes of these sections. Siiy,         the
section of the Texas Administrative Code dealing with dememary&tool curricuhun
includes the provisions regarding prekindergarten programs. 19 TAC 8 75.141(g); see
also Educ. Code 55 1501(c), 20.09; Tax Code 0 11.13(m)(2).


        The fourth question has two parts, which we will address separately. Fii the
department asks whether the state provides firnding for the education of federally-
connected prekindergarten children on the same basis as for all other prekindergarkn
public-school children in the state. We conclude that it does. The state provides fiuding
for local school districts through the Foundation School Program, and section 16.003(b)
Mr. Lionel R. Meno - Page 4                (DM-196)




of the Education Code specitically states that all prekinderSarten children are entitled to
the bene6ts of the Foundation School Program. Under the current school-financiq
scheme,) the Foundation School ProSram has two timdinS tiers. In the Srst tier, each
school district receives a specitic allotment for each student in average daily attendancef
This allotment comes from three sources: (1) the school district’s share of the revenue
collected by the county education district;s (2) the state available school lImds distributed
to the school district; and (3) a Srant from the commissioner of education equal to the
difference between the district’s tier-one entitlement and the amount the district receives
from the other two sources. Rduc. Code 5 16.251(b). The Texas Consthution and the
Education Code both require that the available school lund be distriiuted to the counties
accordinS to their scholastic population. Tex. Con& art. VII, 4 5; Educ. Code
0 15.01(b). Similarly, the amount of the grant fkom the commissioner of education will
depend on the number of students in the school district and the tax base in the county
education district. See Rduc. Code 5 16.254(b). In the second tier, the state guarantees
each school district a certain amount of money per weiShted student for each penny of tax
etTortup to 45 centh6 m&less of the value of the property in the school district. See
Educ. Code $5 16.302(a), 16.303. If a school district cannot raise the gtaranteed amount
fiomitstexbase,thestatemakesupthediffaence.7Thus,inthistier,asintheiirsttier,
the state’s contribution to each school district depends on the weighted avaage daily
attendance in the district and the value of the property in the district. We are not aware of
anythiq in Texas law tbat permits the state to make distinctions between f’ederally-

       %i~6~h~~b~h~~b~~~dtd~dMconstihdional~0d~th~T~~~C01~tit~ti0~byth~T~8~
Sup~anehut; howmr, il will maatnin cfkcl untilJoru1993.See GarmllIon-Fannera Branch Indep.
Sch. DIeI. v. aE+wood Indep. Sch. DM.. 826 S.W.M 489, 522-23 (Tcs 1992). Thusfar, theTexas
Legibhmharnota&ptcdasl-~rcbrmcloreplaatbcaumllsc~.

        ~lllotmmtforcachdiari*coodas~~baricallommtwitbanyrpplicsblcedjurtmentsplus
specialall-.       For tk Ml-1992 schoolyear, tbcbasic rdblnmt was $2,200;for tbc 1992-1993
scl~dyear,tkbasicaUotmcntwiUbc.S2,4M.E4k.C!ak~16.101. Tbcbasicallommtis~to
rdkt gwgJaphicvariationsio lesouKccc6l6andthcco6t6ofuhKadonductofpdolEhcyondulc
diatria’scontml. Id. 8 16.102.The basicallotnxntis also adjustalfor padaddy smallor spmely
pop&d     die&i& Id. $0 16.103,16.104.Loaddition
                                               tolb lwic allotment,  eachsclud diarictraxivrs
spcdalaUotmentsfowariousprogramEnrhasrpedplaiucation.      Id. 55 16.151-.160.




                                            p.   1038
Mr. Lionel R Meno - Page 5                  (DM-196)




co~ected   children and other children with regards to providiig funds for any public-
school programs.

        The second part of the fourth question asks this office to indicate whether each
LEA’s portion of the state funding was reduced for the 1990 and 1991 fiscal years and, if
so, at whose expense. The opinion process is not designed to respond to questions
regarding facts; therefore, we cannot answer this question t%omour own knowledge.
However, we are informed by the General Counsel of the Texas Education Agency that
the state did reduce each LEA’s allocation proportionally for the 1989-1990 and
1990-1991 school years. The reduction was accomplished by a percentage proration
across the state. During the 1989-1990 school year, each school district’s allocation was
reduced by 4.2 percent. During the 1990-1991 school year, each school district’s
allocation was reduced by approximately23 percent.

       Fiiy, the department asks: “[O]n what basis do Texas school districts offer
prekindergarten classes? For example, are they permitted to educate any four year olds
that may wish to attend or is attendance strictly limited to children who are either limited
English proficient or t?om a family whose income is at or below subsistence level.” We
conclude that section 21.136 of the Education Code permits school districts to offer
prekindergarten classes to aJl four-year-old children who wish to attend. Section 21.136
provides, in pertinent part:
               (a) Any school district may offer prekindergarten classes, but a
          district shah offer prekindergarten classes if the district identifies 15
          or more eligible children who are at least four years of age. A school
          district may offer prekindergarten classes if the district identifies 15
          or more eligible children who are at least three years of age.
               (b) To be eligible for enrollment in a prekindergarten class a
          child must be at least three years of age and must be:
                  (1) unable to speak and comprehend the English language; or
                  (2) from a family whose income, accordiig to standards set
             by the State Board of Education, is at or below subsistence level.
Although this language is susceptible to two interpretations, the legislative history
indicates that any four year old may attend prekindergarten classes. During the hearings
regarding this legislation in the House Committee on Public Education, it was explained
tbat this section permits any school district to provide prekindergarten classes if it so
desires and requires school districts to offer prekindergarten classes when they identity 15
or more “eligiblechildren,”as that term is defined in section 21.136(b). Hearings on H.B.
72 Before the House Comm. on Public Education, 68th Leg. (June 14. 1984) (tape
available from House Committee Coordinator). Thus, school districts are permitted to
educate all four year-old children, not just four year-old children who meet the criteria in



                                             p.   1039
Mr. Lionel R Meno - Page 6                  (DM-196)




section 2 1.136@). However, districts are required to offer prekindergarten classes only to
children who meet the criteria in section 21.136(b) and only when a district identities 15 or
more of these children.
                                   SUMMARY

               The prelrindergarten program created by section 21.136 of the
          Education Code must be a part of the *public fke schools” under
          Texas law because prekindergarten students are entitled to the
          bene6ts of the available school fund; under article VII, section 5 of
          the Texas Constitution, the availableschool fbnd can be used only for
          the support of the public ti schools..

              The state bases the timding it provides to local school districts
          on the district’sweighted average daily attendance and its tsx base;
          we can 6nd nothing in Texas law that permits the state to make
          disUnctionsbetween federaUy-connectedchildren and other children
          with regards to funding for the prekindergartenprogram.

               Texas school districts are permitted to enroll any four year old in
          prekindergarten classes. However, the statute requires the districts
          to establish a prekindergartenprogram when they identity 15 or more
          children who meet the criteria in section 21.136(b) of the Education
          Code.




                                                      DAN      MORALES
                                                      Attorney General of Texas




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Mr. Lionel R Meno - PaSe 7




WILL PRYOR
First Ass&ant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opiion Committee

Prepared by Margaret A. Roll
Assistant Attorney General
