                                     February      6, 1975


The Honorable     M. L. Brockette                            Opinion    No.   H-    518
Commissioner      of Education
Texas   Education    Agency                                  Re: Interpretations     of Section
210 East Eleventh     Street                                 16.16 of the Education     Code
Austin,  Texas     78701                                     with reference     to comprehenrive
                                                             special  education.

Dear   Dr.   Brockette:

           You have requested         an opinion from this office      concerning      the
provisions     of section     16.16 of the Texas      Education   Code,    which authorizes
a comprehensive          special    education  program     for exceptional     children    in
Texas.      Speci~fically,       your request   raises   three issues:

                        (1) Between    what ages are children        who are
                   “mentally    retarded”    or both “mentally       retarded”
                   and “physically     handicapped”     eligible   t.o partici-
                   pat:c in special   education   programs       under section
                   16.16?

                         (2) Is the legislative      intent of section       16.16
                   to impose      a mandatory      duty upon each Texas school
                   district    to furnish   directly     or indirectly      special
                   education     programs      to “exceptional       children”      residing
                   in the district     who are either       “mentally      ret.arded”      or
                   both “physically       handicapped”       and “mentally         reta,rded”?

                         (3) If so, does sect:ion 16.16 authorize           the State
                   Board of Educatjon,       acting through        the Commissioner        of
                   Education      and his staff,   to permit      all Texas school
                   districts    to operate   or provide       “Plan B” programs         and
                   servi~ccs    unt,il the beginning     of the 1976-77      school
                   year.     and to require    all dist,ricts    to operate     or pro-
                   vide “Plan A” programs           and services       thereafter?




                                             p. 2334
.    .




    The Honorable       M. L.         Brockctte        page     2       (H-518)




              1. AGE    LIMITATIONS               FOR    “MENTALLY                RETARDED”      AND
    "PHYSICALLY            HANDICA~ED/ME~TALL~                            RETARDED"          CHILDREN.

              Subsection      (b) (1) of section        16.16       defines   “exceptional     children”
    as:

                              .   .    . children    brtwecn         the ages of 3 and 21,
                       inclusi,ve,         wi.t.h rducational         handicaps  (physical,
                       retarded,    emotionaUy      disturbed,      and/or    children
                       width language   and/or    learni.ng    disabilities)    as
                       hereinafter    more specifically        defi,ned; autistic
                       children;   and children     leaving    and not attending
                       public schools     for a time because         of pregnancy      --
                       which disabilities     render    regular      services   and classes
                       of the public   schools   inconsistent       with their educational
                       nrods.

               “Physically     handicapped      children”   and “mentally      retarded     children”
    arc more specifically          clefi,ncd in subdivision    (b)(2) and (b)(3) of section        16.16.
    Since “physically        handicapped”      children   and “mentally     retarded     and/or
    physically     handicapped”       children   are within the definition       of “exceptional
    <.hildr<,n. ” su,.h <hil(lrcn       not younger    than 3 nor older than 21 are entitled
    !:o whai~cvcr    special    programs      may be authori,zed      or required     under
    se,:vf.on 16. 16.

            2. DUTY
               -       OF SCHOOL
                  -I_---~-----~-_~--                DISTRICTS         TO 1,MPLEMENT           SPECIAL
    EDUCATION
    -_~-__-      PROGRAMS.
                  _---          -_

              Your scc,oncl question        is whcthcr    section   16. 16 is mandatory      or
    permissive,       i. e., whether     it requires    each distri,ct    to provide   the
    described      special   cducal:ion   program     to its resident     “exceptional
    children”     or nl<:rely makes       stat? aid available     to those district,s    which
    clccl~ to opc>rat-c- such programs.           The statute itself does not expressly
    respond     to this qu,:st;on.      In our opinix,      however,     the statute should
    be construed     as mandatory.

              Socr:;on ii). 01 of thck Education               Code outlines    the purpose   of the
    Foundrltion     School   Program    of whi,ch             the section   16.16 special   education
    program     is a part.




                                                      pe 2335
The Honorable            M.   L.    Brockette,        page    3    (H-518)




              The purpose        of the Foundation     School   Program
         is to guarantee      to each child of school        age in Texas
         the availability      of a Minimum      Foundation     School
         Program       for nine full months      of the year and to
         establish     the eligibility   requirements      for the public
         school    districts    of Texas    in connection     therewith.

The language    of the statute is clear:        its purpose    is to guarantee    each school
age child in Texas the availability          of a Minimum       Foundation   School   Program.
Therefore,   under    the statute “excepti,onal”        children    should be guaranteed
the same opportunity      for education       as any other school      age child in Texas.,
To allow local    school    districts    receiving    Foundation     School funding to operate
educati.on programs      only at their option would not be making available              Minimum
Foundation   School   Programs        to the child.

     Section     16. 16 of the Education   Code also                  contains    an indication    of legis-
lative   inten?.     Subdivision  (a) of that section                 provides:

                    It is the i,ntention of this section      to provide
          for       a comprehensive        special  education    program
          for       exceptional    children    in Texas.

     Webster’s   Third             New International           Dictionary    (unabridged     Ed.   1966).
defines  the adjective             “comprehensive”            as:

           .    . cwvc ring a matter
                     .                  und+ r conside ration
          completely     or nearly completely:     accounting    for
          or comprehending       all or virtual~ly all pertinent
          considerations     ma . .

      In our opinion,       the inter.t of section         16. 16 is to provide    a “comprehensive”
special    education      program         - comprehensive        in that it is available    to all
eligible   children.        Legislators        involved     in the drafting   and passage     of section
16. I6 have c~~.firmed           that it was intended         that the statute provide     special
education      programs       t-o every e1,igibl.e child in Texas.           The statute itself is
designed      to facilitate     implementation           of a mandatory     comprehensive      program
with a maximum           of flexibility      allowed     to provide   for the needs of smaller
school    districts.       Selztion 16. lb(g) contemplates            cooperative    operation     of a
program      by two or more           school     dislricts    when they are unable to efficiently
operate    programs        indivitilally:




                                                 p.    2336
The Honorable       M.   L.   Brockette,     page    4     (~-518)




               (g) Special      education      unit personnel        may be
         employed       and/or    utilized     on a full-time,        part-
         time,    or upon a consultative            basis,     or may be
         allotted    by the commissioner             of education,       pur-
         suant to cooperative           districts’     agreement,       jointly
         to serve two or more             school    districts.       Two or
         more     school    district,s    may operate        jointly   their
         special    education      program       and any school        district
         may contmct         where      feasible     with any other school
         district    for al.1 or any part of the program                of
         special    educat;.on     for the children         of either district.
         under rules and regulations               establi,shed     by the com-
         missioner       of education.

Section  16. lb(m) allows    school        districts to contract        with public or private
agencies   approocd   by !~Ile State       Board of Education         to provide   the neces-
sary sper.ial education    services:

               (WI) IJndrr rules and regulations             of the State
         Board cf Education,          eligible    school   districts    may
         crntract    with ncnprofit        community      mental     health
         and/or     mental    retardation      centers,    public or
         pi+.,-ate,   or any other nonprofit          organization,
         l~nstimtion,    or agency      approved      by the State
         H<mrd of Education,          ior thr provision        of services
         to exceptional      childron     as defined     by this section,
         who reside      with thei~r parents        or guardians.

      The conclusion      that section    I,(,. I,6 is mandatory         is reinforced    by the
legislative    history    of state-supported          special     education    programs     in Texas.
Prior     to 1969, state-supported        special       education      classes    in local districts
were mandatory         only upon a petition         to the local board of trustees           by the
requisite     number    c)f pa rents of exceptional.          children.      V. T. C. S. art. 2922-13.
In 1969, article      2922-13    was amended          in substantial~ly      its present   form,




                                              pe 2337
The Honorable          M.    L.   Hrockettr,        page    5    (H-518)




eliminating      the local   option feature.       Acts 1969, 6lst Leg.,          ch. 863.
pp. 2602-06.        In 1971, the amended        article    2922-13 was included          in the
recodification      of the Education      Code,    as section     16.16.    Acts 1971,
62nd Leg.,       ch. 405, pp. 1491-94.       Thus,      the 1971 version      of section
16.16 under consideration          here,   while it, did not substitute         provisions
clearly    imposing     a mandatory      duty on districts      to provide      special
education     programs,      did eliminate     earlier     language    allowing     districts
to decline     implementation       of the program        in the absence       of parental
petitions.

      FinaHy,     there is authority            for the view that a district            operating
under and receiving           state funds from the Foundation                   School    Program
must offer the benefits            of the program          to any child who meets its age
and residence        requirements.             Attorney     General      Opinion M-552         (1970)
has so held in respect           to the kindergarten            program       established      under
article    2922-Ha,       V. T. C. S.,       ( now section       16.04).    citing Anderson         v.
Canyon Independent            School. District,         412 S. W. 2d 287 (Tex. Civ. App.
--Amarillo       1967, no writ) and Alvin Independent                    School     District     v. Cooper,
JO4 S. W. 2d 76 (Tes. Civ. App. --Houston                      1.966, no writ).          These cases
hold invalid      local    school     rules barring        married       students     from     attendance.
Section    16.16, which is an integral               part of the Minimum            Foundation       Pro-
grsm,     [s,.c,
            -      subdi!.-isions      (I.) and (o)],     simil.arly     prescribes       a program       of
specialized      educational       assistance        for a designated         class    of persons.
Ir. our opinion      a school. district          should likewise        be precluded       from electing
nof to provide       it.s be.1iefi.t s to members          of the el.igible      class    residing     in
tht district.

     We are aware      that the case of Love v. City of Dallas?        40 S. W. 2d 20
(Tcx.    Sup. 19.31) could br c,onsI:rued     to support a contrary    conclusion.
However,     it is our view that such a construction       is unlikely,    and even if
that construction     were adoptt.d,    the case would be distinguished        from this
situation   on several    different  grounds.

       3. --VALIDITY        OF-----__--
                                   TEA    REGULATIONS

       Your thi~rd quesi:ion        asks if section  16.1,6 imposes            a mandatory    duty
upon    all school  districts        to provi,de a comprehensive               program   of special




                                               p.    2338
The Honorable      M. L.   Brockette        page   6   (H-518)




education,     do  the State Board of Education      and the Commissioner      of
Education    have the regulatory   authority   to defer the mandatory    require-
ment for comprehensive       programs    until the beginning  of the 1976-77
school   year?

          The policies   of the State Board of Education,         administrative
procedures     of the Commissioner      of Education,     and operational      guide-
lines of the TEA Divi,si,on of Special     Education     are set out in TEA
Bulletin   711, Administtrative    Guide and Handbook       for Special     Education
(March    1973).   The policies   and regulations     in question    concern     the
implementation      of a comprehensive     special   education     program.

                      3.1 Comprehensive            Special   Education    For
                  Exceptional Children          (Plan A)

                       All accredited     local school      districts     operating
                  approved    special    education     programs       for exceptional
                  children   under the Foundation          School     Program      shall
                  provide   comprehensive         special   education      programs
                  and services     for handicapped        pupils between        the ages
                  of 3 and 21 years,      inclusive,      by the school      year start-
                  ing Scpt:cmbcr      1, 1?76. [TEA Bulletin            711 at 391.

                       3. 2 Pro~m          Based   on Identified   Handicapped
                  Pupi,ls (I-‘
                           --.--lan B)--

                       Until such time as such local school           districts
                  can develop    a comprehensive       special     education     pro-
                  gram and bc approved        for suc,h a program         or unti,l
                  Sept~ember 1, 1976, any accredited           school   district
                  may make application       for allocation      for special
                  education   programs     based on identifi,ed      handicapped
                  pupils botwcrn     thr ages of 3 and 21, inclusive,           by
                  disability  categories    (Plan B).     [TEA Bulletin          711
                  at 441.




                                           p.   2339
The Honorable        M. L.     Brockette        page   7    (H-518)




                           2.17 Implementation          of Comprehensive          Programs
                     for   Exceptional  Children

                            ‘Comprehensive        Programs     for Exceptional      Children’
                     (Plan A) shall be available          on a state wide basis by
                     September      1, 1976.     A selected    number     of school
                     districts    each year will be approved          to develop    “Com-
                     prehensive      Programs      for Exceptional      Children’     (Plan A).
                     Other school      districts    shall be approved       to operate
                     special    education     programs     based on ‘Allocations        Based
                     on Identified     Handicapped      Pupils’    (Plan B) until September
                     1, 1976.     [TEA Bulletin        711 at 381.

           Apart from programatic              differences,      there appear        to be two basic
procedural       differences      between     “Plan A” and “Plan B. ” First,                Plan A
is mandatory         for all districts     after September         1, 1976, while Plan B is
available     for those districts        desiring      to implement      it until September        1,
1976.     Second,      the formula     for allocatinginstructional           units under Plan
A is based on a distri~ct’s          total average        daily attendance        (ADA) for
pupils from 6 through           21 years     of age for the preceding           school    year,   while
the Plan B formula           is based on the actual number             of handicapped        pupils
identified     by type of di,sability      for whom the school           district     plans to
provide     special     education    services.        See
                                                      -       TEA Bulletin         711 at 39, 44.

           Under section        16.16,     the State Board of Education            is empowered
to adopt rules,        regulations       and formulae       for the allotment        of “exceptional
children     teacher     units,     in addit,i.on to other professional           and paraprofessional
unit allotments”        [subdivision        (c)] , for the establishment           of quantitative
bases for the allotment             of “all special     education     unit personnel”         [sub-
division    (f)] , and for the contracts            under which “eligible          school     districts”
may arrange        for special        services    from public or private           non-profit
organizations,        inst:itutions,      or agencies     [subdivision       (m)] . The Commis-
sioner    of Education        may make rules establi,shing             the qualifications         and
mi,nimum       salary    levels     of paraprofessi~onal       personnel       [subdivision      (e) 1,
prescribe      the terms and conditions             under which two or more school
districts     may ope’ratc       joint programs        [subdivision      (g) 1, determine
amounts      of “special      service      allowances”     [.subdivision      (h) ] and approve




                                              p* 2340
.   .




        The llonorabl~c:    M.     I,.   1srockett.e.        page    8   (H-518)




        9. 10, 11, or 12 month special     education    programs                    and prescribe      qualifica-
        tions for special  education   teachers,     counselors                    and supervisors      [sub-
        divisions  (j) and (k)].

            It is a well settled rule of statutory                    construction,    stated   in   Terre11
        V. Sparks,   135 S. W. 519. 521 (Tex.Sup.                       1911), that:

                      Whenever     a power is given by statute,              every-
                 t.hing necessary     Taomake it effectual         or requisite
                 to attain the end is implied.           It is a well-established
                 principle   that statutes     containing      grants     of power
                 are to be construed       so as to include        the authority       to
                 do all things necessary        to accomplish         the object     of
                 the grant.     The grant of an express           power carries
                 with it by necessary       implication       every     other power
                 necessary     and proper     to the execution         of the power
                 expressly    grant:nd.    Where the law commands                 any-
                 thing to be done,      it aut.horizes      the performance         of
                 whatever    may be nc-cessary         for executing        its com-
                 ma, nds . (Citing Sutherland        on Statutory        Construction,
                 5 341).

            Seem
            ---  .t!.so Attornr?         Gzncral    Opi,nio~         C-265   (1964).

             In ou: opi~r.ion, lhc- alithority          granted      the State Board of Education
        and the Commissiont?r             of Educal:ion      by section     16.16 to adopt rules
        and regulations        outlined     abuve includes         the power to prescribe        a
        rcascna’b!,e     periodof      time for districts         to achieve    compliance     with the
        mandatr      of section     l-6.16 to provide       comprehensive          special  education
        programs.         That the Legislature           intended     the program       Taobe phased
        in over ir period of time. is evidenced                 by the method       by which the program
        was 10 1.x in.~!ially I\lllded.          Ral.anccs     rcmsining     in the Foundation      School
        Fund were to be apprcpriated                at the end of each fiscal          year of the initial
        birrnnium ti, pay for the ape&l1              education      program.        Acts 1969, 6lst Leg.,
        ch. 863,      p. 2bO2 at 2CO5.         Ilowevcr,       since the sums available         were of an
        uncertain     amount,      it is clear that the Legislature              did not intend that all
        programs       be ful.ly operated        and funded at the same date.

             Giv<,.n the apparent    complr>xity   of est.abl.ishing   a state-wide   program   of
        specia.1, e:ciixation, incl~uding the t:rai.ning of qual.i.fied teachers     and other          ,
        personna:l~ to administer      the program,     it. i,s our opinion   that September   1, 1976,




                                                        p.    2341
.       .   .   I



    -




                    The Honorable         M.   L.   Brockette,         page    9   (H-518)




                    is a reasonable    deadline.      The power to prescribe    a reasonable   dead-
                    line for compliance      also necessarily    includes  the power to prescribe
                    reasonable   alternative     plans,   such as “Plan   B,” to ease the transition
                    from no special     education    programs   to the “Plan A” comprehensive
                    programs    required     under the statute.

                                                     SUMMARY

                                    1. In the case of either “mentally             retarded”       or
                               both “physically        handicapped”      and “mentally         retarded”
                               persons,    eligibility      for special   education     programs
                               under section      16.16 is governed        by the age limitations
                               for “exceptional        children”    in subdivision     (b)(l).

                                    2. Section     16. 16 entitles    “exceptional     children”
                               residing   in a district    operating     under the Foundation
                               School   Program      to receive,     and imposes      on the
                               district  a corresponding        mandatory       duty to furnish
                               special   education     programs      as outlined    in the statute.

                                    3. It is within the authority         conferred      by section
                               1.6.16 for t.he State Board of Education            to establish
                               September      I., 1976, as the date by which          all districts
                               must implement          a comprehensive       program      of special
                               education    for resident      exceptional     children,     and to
                               permit    school    distri,cts  to operate    alternative      “Plan
                               B” programs        until, such date,

                                                                   A      Very     truly     yours,




                                                                          Attorney         General    of Texas




                                                     First   Assistant




                    Opip.ion    Committee

                                                                  p.    2342
