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DAN MORALES
 ATTORNEY
       GENERAL                             March 21,199s

      Honorable Warren Chisum                        Opinion No. DM-335
      Chair
      Committee on Enviromnental Regulation          Re: Whether an entity that contracts with
      Texas of House of Representatives              an independent school district to provide
      P.O. Box 2061                                  educational services to the district under
      Pampa, Texas 790662061                         section 23.34 of the Education Code must
                                                     comply with various statutory requirements
                                                     imposed on school districts (RQ-722)

      Dear Representative Chisum:

              You arik whether an entity that contracts with an independent school district to
      provide educational services to the district under section 23.34 of the Education Code
      must comply with various statutory requirements imposed on school districts. You ask
      about the following sections of the Education Code:

                  l Section   16.052, requiring that, in order to receive thumcial
                support from the foundation school tImd, a “school district must
                provide for not less than 180 days of instruction for students and not
                less than three days of preparation for teachers for each school year”
                and “must provide for not less than 20 hours of staff development
                training,” except when the commissioner of education approves
                0thenvise”;

                 l  Section 16.054(b), requiring that, in order to receive tinancial
                support from the foundation school fund, a “school district may not
                enroll more than 22 students in a kindergarten, tirst, second, third, or
                fourth grade class”;

                  l Section 13.909, requiring that “each teacher actively engaged in

                the instruction and supervision of students in public schools is
                entitled to at least a 30-minute lunch period free from all duties and
                responsibilities connected with the instruction and supervision of
                students”;
                 l Section 21.920(b), requiring that “[a] student enrolled in a school

                district in this state shall be suspended from participation in any
                extracurricular activity sponsored or sanctioned by the school district
                during the grade reporting period after a grade reporting period in
Honorable Warren Chisum - Page 2             (DM-335)




           which the student received a grade lower than the equivalent of 70
           on a scale of 100 in any academic class”;

            l Section 35043(a), requiring that “[elach school year, the Central

           Education Agency shall prepare and distribute to each school district
           a report card for each campus”;

             0 Section 35023(a), requiring that “‘nonexempt pupils in grades
           three through eight” shall be assessed annually in mathematics and
           reading andperiodicaliy in other subjects; and

            l Section 21.793(a), requiring that “[a] school district with 500 or

           more students enrolled in elementary school grades shall employ a
           counselor.“1

        Section 23.34 of the Education Code provides as follows: “‘The board of trustees
of an independent school district may contract with a public or private entity for that entity
to provide educational services for the district.” It was enacted by the legislature in 1993
as part of Senate Bill 7, a lengthy education reform measure. See Act of May 28, 1993,
73d Leg., ch. 347, $4.02, 1993 Tex. Sess. Law Serv. 1481, 1524. It was added to Senate
Bill 7 as a floor amendment on second reading of the bill in the house.2

         Obviously, the foregoing statutory provisions apply to school districts, not to other
entities. This is not dispositive of your inquiry, however. Section 23.34 does not relieve
school districts that contract with other entities to provide educational services from
complying with any of the foregoing requirements. Thus, for example, a school district
that receives foundation school funds and contracts with another entity to provide
educational services must still ensure that students enrolled in the school district receive
not less than 180 days of instruction and that class sizes are limited, in compliance with
sections 16.052 and 16.054(b). In other words, school districts must ensure compliance



         ‘You also ask about sections 13.101 through 13.117 of the Education Coda, which authorize
school districtsto offer teachersprobationaryor continuingcontracts. We note that section 23.28 of the
EducationCode authorizesschool districtsto offer teacherstams contracts. Gii that sections 13.101
through13.117annotmandatoryinthesamesenseasthcothersstionswhichyouhave~usabout,
weannotsurrwhyyouhanincludedthescprovisionrinyourqueryanddowtaddrrssthem.                      Wedo
wtc, however, that WCarc aware of no provision providing school districtsan exemption from state
atatutcsregardingcdueatiooalemployeetights and bcmfit. See Edac. Coda 0 11.273(e), 01); see a/m
infa p. 3. Section 13.914 of the EducationCode authorizesa school districtto enter into an agreemant
with a business to accept an employeeof the business for special employmentas a classroomteacher
aohjcctto certdn wmIitions, hot dots not in my way a&t the wntrwhtal relationshipbetween school
districtsand theirtcachcrs.

          *We are net a-     of any specik testimonyor bill analyses which would shad light on the
 legislativeintentwith respectto section 23.34.



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Honorable Warren Chisum - Page 3           (DM-335)




with statutory requirements when contracting with other entities under section 23.34. We
believe this is the case for the following reasons.

        All of the foregoing statutes expressly apply to school disrricts. Section 23.34
does not abolish school districts. Thus, a school district will continue to exist even if it
contracts with another entity to provide educational services. Furthermore, students
receiving those services will continue to be students enrolled in the school district. The
language of section 23.34 in no way suggests that a school district that contracts with
another entity to provide educational services need not ensure that those services comply
with all statutory mandates applicable to school districts, or that the students who receive
such services are not to receive the benefit of those mandates.

        The legislative history of section 23.34 supports this conclusion. In enacting
Senate Bii 7, which included section 23.34, the legislature also amended section 11.273 of
the Education Code. That provision authorizes a school district to apply to the
commissioner of education for a waiver of a requirement or prohibition imposed by law
“that the campus or district determines inhibits student achievement.” Such a waiver must
be of limited duration. Educ. Code 8 11.273(c), (d). With certain exceptions, waivers
will not be granted for laws relating to curriculum essential elements restrictions on extra-
curricular activities, health and safety, competitive bidding, elementary school class size
limits, minimum graduation requirements, removal of a disruptive student 6om the class-
room, suspension or expulsion of a student, at risk programs, prekindergarten programs,
and special and bilingual education programs. Educ. Code 8 11.273(e)(l) - (lo), (12).
(h). In no case may an exception be made for a state law relating to “educational
employee and educational support employee rights and benefits.”                  Educ. Code
3 11.273(e)(l l), (h); see also supru note 1.

         In enacting Senate Bii 7, the legislature also amended section 11.27 of the
Education Code, which permits school districts to obtain waivers for innovative programs,
and enacted section 35.102 of the Education Code, which provides that a school district
“‘that is rated as exemplary is exempt from requirements and prohibitions imposed under
this code.” Section 35.102 contains a list of certain requirements that may not be waived
that is similar to the list in section 11.273. Cornpore Educ. Code 5 11.273(e) with id.
5 35.102(b).

        The legislature amended sections 11.27 and 11.273 and enacted section 35.102 in
the same legislation in which it enacted section 23.34. Sections 11.27, 11.273, and 35.102
appear intended to be the exclusive means by which school districts may obtain
exemptions from statutory requirements, except as specifically noted. We believe that if
the legislature had intended for section 23.34 to provide a mechanism for school districts
to bypass compliance with statutory requirements by contracting with other entities, it
would have done so expressly in Senate Bill 7 to make it clear that sections 11.27, 11.273,
and 35.102 are not the exclusive means by which school districts can avoid statutory
requirements.


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Honorable Warren Chisum - Page 4           (DM-335)




         Fiy,    we note that at least one brief submitted to this office argues that it would
defeat the purpose of section 23.34 for us to conclude that school districts must ensure
compliance with the statutory requirements when contracting with other entities. In this
regard, we note that a school district that contracts with an entity to provide educational
services may apply for a waiver under section $1.27, section 11.273, or section 35.102,
just like any other school district.

                                    SUMMARY

                 Section 23.34 of the Education Code, which permits school
           districts to wntract with public or private entities to provide
           educational serviws, does not relieve school districts that enter into
           such wntracts from complying with statutory requirements
           applicable to school districts.      School districts must ensure
           wmpliance with stamtoty requirements when contracting with other
           entities under section 23.34.




                                                       DAN MORALES
                                                       Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by Mary R Crouter
Assistant Attorney General




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