TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 62. COMMISSIONER'S RULES CONCERNING THE EQUALIZED WEALTH LEVEL

19 TAC §62.1072

(Editor's note: In accordance with Texas Government Code, §2002.014, which permits the omission of material which is "cumbersome, expensive, or otherwise inexpedient," the figures in 19 TAC §62.1072 are not included in the print version of the Texas Register. The figures are available in the on-line version of the January 26, 2018, issue of the Texas Register.)

The Texas Education Agency (TEA) adopts new §62.1072, concerning the equalized wealth level. The new section is adopted without changes to the proposed text as published in the October 20, 2017, issue of the Texas Register (42 TexReg 5825) and will not be republished. The new section adopts as a part of the Texas Administrative Code (TAC) the Manual for Districts Subject to Wealth Equalization 2017-2018 School Year and the Manual for Districts Subject to Wealth Equalization 2018-2019 School Year.

REASONED JUSTIFICATION. The TEA has adopted the procedures contained in each yearly manual for districts subject to wealth equalization as part of the TAC since 2011.

Each school year's manual for districts subject to wealth equalization explains how districts subject to wealth equalization are identified; the fiscal, procedural, and administrative requirements those districts must meet; and the consequences for not meeting requirements. The manual also provides information on using the online Foundation School Program (FSP) System to fulfill certain requirements.

The adopted new 19 TAC §62.1072, Manual for Districts Subject to Wealth Equalization, adopts in rule the official TEA publications Manual for Districts Subject to Wealth Equalization 2017-2018 School Year as Figure: 19 TAC §62.1072(a) and Manual for Districts Subject to Wealth Equalization 2018-2019 School Year as Figure: 19 TAC §62.1072(b). The intent is to update 19 TAC §62.1072 every two years to refer to the most recently published manual and the manual that will be used the following school year. Manuals adopted for previous school years will remain in effect with respect to those school years.

One significant change to the Manual for Districts Subject to Wealth Equalization 2017-2018 School Year from the Manual for Districts Subject to Wealth Equalization 2016-2017 School Year is as follows.

The Chapter 41 Contract is automated via the Chapter 41 subsystem of the online FSP System. Beginning with the 2017-2018 school year, the letter approving the contract is located in a link at the bottom of the Contract Detail in the Chapter 41 subsystem of the online FSP System. The sections of the manual affected by this change are the Chapter 41 Calendar for School Year 2017-2018 and the question "What actions must our district take following official notification of its Chapter 41 status in the summer?" under Section 2: Administrative Procedures.

There are no significant changes to the Manual for Districts Subject to Wealth Equalization 2018-2019 School Year from the Manual for Districts Subject to Wealth Equalization 2017-2018 School Year.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began October 20, 2017, and ended November 20, 2017. No public comments were received.

STATUTORY AUTHORITY. The new section is adopted under the Texas Education Code, §41.006, which authorizes the commissioner of education to adopt rules necessary for the implementation of the TEC, Chapter 41, Equalized Wealth Level.

CROSS REFERENCE TO STATUTE. The new section implements the Texas Education Code, §41.006.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 11, 2018.

TRD-201800090

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: January 31, 2018

Proposal publication date: October 20, 2017

For further information, please call: (512) 475-1497


CHAPTER 97. PLANNING AND ACCOUNTABILITY

SUBCHAPTER EE. ACCREDITATION

DIVISION 1. STATUS, STANDARDS, AND SANCTIONS

19 TAC §§97.1051, 97.1053, 97.1057, 97.1059, 97.1065, 97.1073

The Texas Education Agency (TEA) adopts amendments to §§97.1051, 97.1053, 97.1057, 97.1059, 97.1065, and 97.1073, concerning accreditation status, standards, and sanctions. The amendments to §97.1051 and §97.1065 are adopted with changes to the proposed text as published in the September 29, 2017 issue of the Texas Register (42 TexReg 5201). The amendments to §§97.1053, 97.1057, 97.1059, and 97.1073 are adopted without changes to the proposed text as published in the September 29, 2017 issue of the Texas Register (42 TexReg 5201) and will not be republished. The adopted amendments provide additional clarity regarding who may qualify as a professional service provider; outline the standards used by the commissioner to determine the imposition of sanctions and add clarity regarding when conservators, management teams, and boards of managers will be appointed; and update the process for transitioning from a board of managers to the board of trustees. The adopted amendments also update references to the Texas Education Code (TEC) based on recodification legislation from the 85th Texas Legislature, Regular Session, 2017.

REASONED JUSTIFICATION.

§97.1051, Definitions

TEC, §39A.902, authorizes the commissioner to require a campus or district to acquire professional services to address certain deficiencies. The statute does not define what type of entity may provide the professional services. The proposed amendment to §97.1051 as proposed would have expanded the current definition of professional service provider to include any partner, not just educators.

In response to public comments, the definition was modified at adoption to include any approved service provider, rather than simply educators or partners. The intention of the change is to ensure that high quality applicants, who meet specific qualifications or requirements and satisfy the agency vetting process provide the services, thereby increasing the quality and availability of professional services providers.

§97.1057, Interventions and Sanctions; Lowered Rating or Accreditation Status, and §97.1059, Standards for All Accreditation Sanction Determinations

TEC, Chapter 39A, authorizes the commissioner to impose sanctions and interventions on districts and campuses that do not satisfy applicable standards.

The adopted amendment to §97.1057(d) places into rule the statutory authorization to appoint a board of managers found in TEC, §39A.006, when, for two consecutive school years, including the current school year, the district has had a conservator or management team assigned. The adopted amendment defines a school year as starting on the first day of instruction and including any portion of the school year. Since school years can vary between districts, the adopted language uses the first day of instruction as a common starting point between districts. By defining school year as any portion of the school year, the language clarifies that the current school year need not be the entire school year. If the current school year were required to be the full school year, one could never satisfy the standard because once the current school year was completed, it would no longer be the current school year. The adopted amendment implements past practice by the agency.

The adopted amendments to §97.1057(f) and §97.1059 establish an additional standard that the commissioner may consider when making determinations to impose sanctions and interventions. Section 97.1057 establishes the primary consideration to be the best interest of the district's students. The adopted amendment to §97.1057(f) makes clear that an inability to implement effective change to improve student performance at the district or campus is contrary to the best interest of the district's students. Additionally, §97.1059 establishes what constitutes a material deficiency for which sanctions shall be imposed. The adopted amendment to §97.1059 makes explicit that an inability to implement effective change to improve student performance at the district or campus is considered a material deficiency for which sanctions on a district or campus shall be imposed. The statutory framework establishes a system to ensure that public schools improve student performance. The adopted amendments make clear that an inability to initiate change focused on improving student performance acts against students' best interest and will initiate intervention processes.

§97.1065, Commissioner Determinations for Decisions Preceding Alternative Management, Campus Closure, or Board of Managers

TEC, §39A.001, requires the commissioner to take actions for districts under TEC, Chapter 39A, Subchapter A, Accountability Interventions and Sanctions, to the extent the commissioner determines necessary. TEC, §39A.002, allows the commissioner to take several actions if a district does not satisfy one of several standards, including the appointment of monitors, conservators, and management teams. TEC, §39A.102, allows the commissioner to appoint a monitor, conservator, management team, or board of managers to the school district to ensure support of low-performing campuses and implementation of the targeted improvement plan.

Adopted new §97.1065(b) makes explicit that actions taken against campuses under TEC, §39A.107, are subject to commissioner rules adopted in 19 TAC Chapter 157, Hearings and Appeals, for challenging interventions. The rules in 19 TAC Chapter 157 comply with the statutory requirements established under TEC, §39A.301. Clarification of the challenge process ensures uniformity in applying interventions and recourse to interventions.

TEC, §39A.112, authorizes the commissioner to establish the time and manner for a parent petition to direct the sanction imposed based on five consecutive years of unacceptable campus performance. The adopted amendment to §97.1065(d) updates the requirements for a parent petition, making it clear that the superintendent is responsible for certifying a valid petition and that parent signatures collected after the issuance of preliminary ratings for the fourth consecutive year of unacceptable performance are part of the petition. The adopted amendment should facilitate the processing and delivery of a valid petition. The adopted amendment also makes clear that the sanction will be implemented for the current year or, if necessary, for the subsequent school year regardless of performance rating. This change recognizes the difference in timing between the appointment of a board of managers, which can be done relatively quickly, or the closure of the campus, which would displace students if done immediately. The change ensures that a campus would not be required to close in the middle of a school year.

In response to public comments, §97.1065(d)(2)(B) was modified at adoption to clarify that a parent petition could only request a sanction pursuant to §97.1065(a)(2). This change aligns with statute as education code allows a petition for appointment of a board of managers or closure of the campus but does not allow a petition for alternative management.

§97.1073, Appointment of Monitor, Conservator, or Board of Managers

The adopted amendment to §97.1073(b) makes explicit that a monitor may be appointed when a district is assigned an accreditation status of warned or probated. This will ensure that the commissioner may be kept apprised of actions of the district to enact change. The adopted amendment implements TEC, §39A.102, which authorizes the assignment of a monitor to ensure support of low-performing campuses and implementation of a targeted improvement plan.

The adopted amendment to §97.1073(c) makes explicit that a conservator or management team may be appointed when a district is assigned an accreditation status of probation. The adopted amendment also implements TEC, §39A.102, which authorizes the assignment of a conservator or management team when necessary to ensure district-level support of low-performing campuses or implementation of a targeted improvement plan. This change will ensure that actions may be required of the district to initiate necessary changes to improve performance.

The adopted amendment to §97.1073(d) makes clear that the appointment of additional conservators to establish or add to a management team is not an additional sanction subject to additional review. The imposition of a conservator or management team is driven by performance, and the district has a review opportunity at that time. The use of multiple conservators or a single conservator is a decision of efficiency and efficacy of the intervention tool, not a question of whether the district is subject to the intervention.

TEC, §39A.111, requires the commissioner to either close a campus or appoint a board of managers if a campus reaches five consecutive years of unacceptable performance. TEC, §39A.115, authorizes the commissioner to adopt rules to implement TEC, Chapter 39A, Subchapter C, Campus Turnaround Plan. The adopted amendment to §97.1073(e) makes clear that the commissioner may appoint a board of managers to ensure and oversee district-level support to low-performing campuses and the implementation of the targeted improvement plan, when closure of a campus is not ordered and a campus meets the standards under TEC, §39A.111, when deficiencies identified in a special accreditation investigation warrant the appointment of a board of managers, or a failure in governance results in the inability to carry out the powers and duties of the board of trustees. The adopted amendment implements TEC, §39A.102, which authorizes the assignment of a board of managers when necessary to ensure district-level support of low-performing campuses or implementation of a targeted improvement plan. The adopted amendment makes clear that a board of managers may be placed based on deficiencies identified in a special accreditation investigation. The adopted changes incorporate the explicit statutory authorizations.

TEC, §39A.208, requires that a board of managers transition back to a board of trustees over the last three years of the board of managers appointment, as close to one-third of the members at a time as possible. The statute also requires the board of managers to continue to call for elections of board of trustees although the board of trustees's authority is suspended. The statute further requires that a board of trustees may only be restored if the members were elected under an election called by the board of managers. The adopted amendment to §97.1073(g) clarifies that the commissioner may determine the order of the trustee positions restored to authority during a board of managers transition. The adopted amendment also states that in the absence of a designation, the default transition established in §97.1073 will be maintained. As districts have multiple configurations of trustee positions, providing for commissioner determination of transition will allow the commissioner to adjust for unique circumstances and ensure the transition occurs in an orderly fashion.

Several sections of the TEC authorize the commissioner to appoint a board of managers. TEC, Chapter 39A, Subchapter E, establishes parameters and requirements of a board of managers. Decisions of number of the board of managers and terms of the board of managers are not statutorily defined. TEC, §39A.207, provides explicit authorization of the commissioner to replace members of the board of managers when placed due to campus-based interventions. The adopted amendment to §97.1073(g) makes clear that the commissioner may expand or reduce the number of members on a board of managers and may remove a member as needed. This change will ensure that as circumstances change, the board of managers will remain an effective intervention to improve performance of the district.

§§97.1051, 97.1053, 97.1057, 97.1065, and 97.1073

SB 1488, 85th Texas Legislature, Regular Session, 2017, recodified TEC, Chapter 39, Subchapter E, into TEC, Chapter 39A. Sections 97.1051, 97.1053, 97.1057, 97.1065, and 97.1073 were amended to update cross references affected by the recodification.

Additionally, the subchapter was reorganized at adoption to implement the division structure. Sections 97.1051, 97.1053, 97.1057, 97.1065, and 97.1073 will be organized under Subchapter EE, Accreditation, Division 1, Status, Standards, and Sanctions, along with §§97.1055, 97.1059, 97.1061, 97.1063, 97.1064, 97.1066, 97.1067, 97.1069, 97.1071, and 97.1072, which were not amended as part this adoption.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began September 29, 2017, and ended October 30, 2017. Following is a summary of public comments received and corresponding agency responses regarding the proposal.

Comment. The Texas Association of School Administrators (TASA) and the Texas Association of School Boards (TASB), the Texas School Alliance (TSA), and Houston Independent School District (ISD) stated that using the term, "partner" in 19 TAC §97.1051(10) is without clarity.

TSA and Houston ISD proposed that the educator credentials be mandatory for a professional service provider; TASA/TASB proposed the term "an educator or a non-profit entity" be used. Houston ISD supported the use of the term "institution of higher education or an educator who has been vetted." The Texas State Teachers Association (TSTA) urged the commissioner to maintain the current language (educator).

Agency Response. The agency agrees that more specificity is needed regarding PSP credentials. The agency took action in response to these comments to amend at adoption §97.1051(10) to read "(10) Professional service provider (PSP)--An approved service provider who has been vetted through an application or a request for qualifications (RFQ) process to provide on-site technical assistance for underperforming schools and districts either by the Texas Education Agency (TEA) or the TEA's technical assistance provider."

Comment. Houston ISD noted that proposed changes to §97.1051(10) would expand state government regulation and should be reflected in the Government Growth Impact Statement.

Agency Response. The agency disagrees. The proposed change would allow districts more flexibility and would therefore contract, rather than expand, government regulation.

Comment. TSA suggested that, pursuant to §97.1053(b), if the state assessment programs and accountability system rules are sufficiently changed for the state to not calculate year-over-year improvements, then the earlier ratings cannot be considered material to current results or ratings.

Agency Response. This comment is outside the scope of the current rule proposal.

Comment. TASA/TASB stated that in §97.1057(d), the definition of "school year" as meaning "any portion of the school year" is very subjective.

Agency Response. The agency disagrees that the proposed definition of "school year" is subjective. The definition provides specificity and clarity regarding what constitutes a "school year" for the purposes of this subsection.

Comment. TASA/TASB stated that in §97.1057(d), the definition of "school year" as meaning "even for a single day" appears to exceed the intent of statute; TSA asked, is this change within the commissioner's rulemaking authority. TASA/TASB recommended that the definition of "school year" include a longer, more reasonable period, such as six months, which would better meet the intent of statute and not exceed the commissioner's authority.

Agency Response. The agency disagrees that this amendment to §97.1057(d) is unreasonable or outside of the commissioner's rulemaking authority. The definition provides specificity and clarity regarding what constitutes a "school year" for the purposes of this subsection, and is therefore within the commissioner's authority. Additionally, there is no statutory definition of "school year" as utilized in this subsection. No additional changes were made as a result of this comment.

Comment. TSA asked the reasoning behind §97.1057(d), and what circumstances might trigger appointment of a board of managers after a district has demonstrated acceptable performance.

Agency Response. The agency provides the following clarification. The agency proposed new §97.1057(d) to allow for the elevation of sanctions in cases where a school district is not adequately addressing issues, outside of accreditation issues, with the assistance of a conservator or management team. The appointment of a board of managers in a district that has demonstrated acceptable performance could be triggered if a conservator or management team has been assigned to the district for two consecutive school years. This will allow the commissioner flexibility to help improve a district's performance.

Comment. TASA/TASB argued that §97.1057(d) exceeds statute by stating that the commissioner may appoint a board of managers, "a majority of whom must be residents of the district." TASA/TASB further recommended that language in the proposed rules be changed to require all appointees be district residents unless the agency can show that there are no qualified individuals within the district.

Agency Response. The agency disagrees. This rule aligns with Texas Education Code, §39A.006(c) (formerly §39.102(b)), which states, "the majority of a board of managers appointed under this section must be residents of the school district."

Comment. TSA proposed that rather than a "majority" of the board, as referenced in §97.1057(d), "all members (if possible)" of an appointed board of managers reside in the district.

Agency Response. The agency disagrees. This rule aligns with Texas Education Code, §39A.006(c) (formerly §39.102(b)), which states, "the majority of a board of managers appointed under this section must be residents of the school district."

Comment. Houston ISD expressed concern with the provision of §97.1057(d), as it appears Houston ISD could get a board of managers soon because of the conservator in place at Kashmere High School. Houston ISD also stated that the conservator's role has expanded over the last two school years to include more districtwide responsibilities.

Agency Response. The agency disagrees with this comment. The statute allows the commissioner to appoint a board of managers when the district has needed agency intervention for two consecutive school years.

Comment. Houston ISD and TSTA recognized that the provision in §97.1057(d) that a majority of the board of managers should live in the school district of their appointment, is based on education code, but expressed their disagreement with someone outside of the community supplanting elected board members.

Agency Response. This comment, insofar as it pertains to the contents of education code, is outside of the scope of the proposed rulemaking.

Comment. TASA/TASB and Houston ISD stated that the proposed new language "effective change" found in §97.1057(f)(4) and §97.1059(b)(l)(G) is subjective and should be defined. The commenters asked how "effective change" would be measured objectively.

Agency Response. The agency provides the following clarification: The inability to implement effective change in a school district does not lend itself to a finite set of circumstance. Rather, the amendment, as written, gives the commissioner flexibility and discretion to consider reforms and initiatives considered or implemented by the district, without relying on a formula that does not consider the diverse and qualitative factors that occur outside of a prescriptive formula.

Comment. TSA asked, pursuant to §97.1057(f), how the state "reasonably calculate[s]" whether a given sanction will address a given deficiency; how the state intends to identify the "inability to implement effective change"; whether the "inability" rests exclusively with the district or campus; how the state intends to determine whether "effective change" has taken place to "improve performance of students"; and how much change, on which indicators and calculated by what methods, will be sufficient.

Agency Response. This comment, insofar as it pertains to §97.1057(f)(1), (2), and (3), is outside of the scope of the proposed rulemaking. The agency provides the following clarification with respect to §97.1057(f)(4). The inability to implement effective change in a school district, or in a specific school, does not lend itself to a finite set of circumstance. Rather, the amendment, as written, gives the commissioner flexibility and discretion to consider reforms and initiatives considered or implemented by the district, without relying on a formula that does not consider the diverse, and qualitative factors that occur outside of a prescriptive formula.

Comment. The Texas Classroom Teachers Association (TCTA) and TASA/TASB noted that "effective change" is not referenced in the Texas Education Code, and therefore TASA/TASB recommended that the language be removed from §97.1057(f)(4) and §97.1059(b)(l)(G).

Agency Response. The agency agrees that the term "effective change" is not found in TEC, Chapter 39 or 39A. However, the agency disagrees that the language needs to be revised. This rule, as drafted, allows the commissioner to target interventions to school districts that both fail in the accountability system and fail to implement effective change. It also gives flexibility to the commissioner to allow districts who fail in the accountability system, but who have implemented effective change, the time necessary for outcomes to improve.

Comment. The TCTA recommended that the phrase "student outcomes" be substituted for "student performance" in §97.1057(f)(4) and §97.1059(b)(l)(G).

Agency Response. The agency disagrees. The term "student performance" aligns with existing language found in administrative and education code.

Comment. Houston ISD noted that the legislature has not adopted the terminology "effective change," as used in §97.1057(f)(4) and §97.1059(b)(l)(G). Houston ISD notes that Chapter 39 is one of the more detailed chapters and directs the commissioner's actions on sanctions and interventions for campus performance to be "in accordance with this subchapter" (TEC, §39.103).

Agency Response. The agency agrees that the term "effective change" is not found in TEC, Chapter 39 or 39A. However, the agency disagrees that the absence of this term in education code is sufficient evidence to prohibit the use or adoption of it in rule. Further, this rule, as drafted, allows the commissioner to target interventions to school districts that both fail in the accountability system and fail to implement effective change. It also gives flexibility to the commissioner to allow districts who fail in the accountability system, but who have implemented effective change, the time necessary for outcomes to improve.

Comment. TSTA cited §97.1057(f)(4) and §97.1059(b)(l)(G) as examples of accountability measures linked primarily to tested scores that fail to tell the whole story of persistently struggling schools. TSTA further stated their opposition to sanctions or interventions that remove the authority of a duly-elected local school board and replace it with a board of managers that is not accountable to the local community, or that emphasizes its bottom line as education decision makers should be accountable to stakeholders not stockholders.

Agency Response. The agency disagrees. This rule allows the commissioner to target interventions to school districts that both fail in the accountability system and fail to implement effective change. It also gives flexibility to the commissioner to allow districts who fail in the accountability system, but who have implemented effective change, the time necessary for outcomes to improve.

Comment. TASA/TASB and Houston ISD stated that §97.1065(d) is not within statutory authority. The commenters stated that statute allows a petition for appointment of a board of managers or closure of the campus but does not allow a petition for alternative management. Therefore, TASA/TASB and Houston ISD recommended the agency comport the existing and proposed rules to statute.

Agency Response. The agency agrees and amended §97.1065(d)(2)(B) at adoption to clarify that the petition must state which sanction under §97.1065(a)(2) is being requested by the parents. This clarification will align with the applicable statutory provisions related to parent petitions contained in TEC, §39A.112.

Comment. TASA/TASB inquired as to what prompted the change to §97.1065(d)(5) and requested information regarding what circumstances would be necessary to implement sanctions during a current school year.

Agency Response. The agency provides the following clarification. The example was struck from §97.1065(d)(5) because it did not provide additional clarity and is not applicable in all situations. Regarding circumstances in which sanctions would be required in the same year, the agency provides the following clarification. The appointment of a board of managers could, for example, be implemented during the school year in which a parent petition is timely filed.

Comment. TSA and Houston ISD asked why the agency removed the language requiring the school board to approve a parent petition in §97.1065(d). Houston ISD noted that this is not a statutory requirement, but parents are the constituents of the elected school board. Houston ISD stated that the language allows the superintendent, not the district or the board, to validate the parents' petition.

Agency Response. The agency provides the following clarification. There is no requirement that a board approve the parent petition. The amendment dispenses with the necessity of calling a formal board meeting. The approval of the parent petition is a ministerial act and does not need the input of policy makers.

Comment. TASA/TASB stated that §97.1073(e)(8) creates a new circumstance under which the commissioner may appoint a board of managers: when "a failure in governance" results in an inability to carry out the powers and duties of the board of trustees as outlined in TEC, §11.151 and §11.1511." TASA/TASB suggested that this oversteps the commissioner's rulemaking authority, as it is not an authorized reason in statute to appoint a board of managers. Therefore, TASA/TASB recommended that the proposed language be removed.

Agency Response. The agency disagrees. As reflected in the amendment, the authority to appoint a board of managers is contained in TEC, §§39A.006, 39A.102, 39A.107, 39A.111, 39A.256, and 12.116(d)(1). Therefore, the commissioner is within his authority when exercising the statutory right to appoint a board of managers. No changes were made as a result of this comment.

Comments. TSTA stated opposition, in §97.1073, to the appointment of a board of managers to supplant the authority of a duly-elected local school board and the expansion of the commissioner's authority to appoint a board of managers; specifically, appointments based on a single campus that is subject to TEC, §39A.111. Furthermore, TSTA expressed opposition to the concept of school closures.

Agency Response. The agency disagrees. The agency has statutory authority to appoint a board of managers or order closure of a campus described in the section, and is required to take such action in certain circumstances.

Comment. TSA and Houston ISD requested that, "a failure of governance," in §97.1073(e)(8), be defined and examples be provided.

Agency Response. The agency disagrees. The term, "failure of governance" does not lend itself to an objective measurement.

Comment. TASA/TASB stated that the proposed language in §97.1073(g)(8) permitting the commissioner to determine the order of the trustee positions appears to overstep the bound of reasonable rulemaking; therefore, TASA/TASB recommended this language be removed from the rules or the agency should provide the factors that will be applied in the decision-making process.

Agency Response. The agency disagrees. The applicable statutory provision, TEC, §39A.208, does not specify a method by which the elected board of trustee members will transition back onto the board. The amendment to the rule provides clarity regarding the order in which the board of trustee members will return to their elected positions in order to implement the statute.

Comment. TSA argued that TEC, §39.109 and §39.110, require that districts bear costs associated with state-mandated interventions, including service providers, monitors, conservators, management team, and campus intervention teams. Therefore, TSA argued that it was inaccurate to state that "there are no additional costs […] to comply with the proposed amendments." Further, TSA proposed that funds be appropriated to offset actual costs to districts to comply with state-mandated interventions and sanctions.

Agency Response. The agency disagrees. The amendments did not require additional interventions under TEC, §39A.111, rather they only provided clarity regarding existing interventions and, therefore, additional costs are not anticipated.

STATUTORY AUTHORITY. The amendments are adopted under the Texas Education Code (TEC), §39.051, which requires the commissioner to determine accreditation statuses; TEC, §39.057, as amended by SB 7 and SB 1488, 85th Texas Legislature, Regular Session, 2017, which authorizes the commissioner to take intervention actions based on a special accreditation investigation, which includes interventions under TEC, Chapter 39A, lowering the accreditation status, or both; TEC, §39.102(a)(9), as amended by House Bill (HB) 1553 and SB 1566, 85th Texas Legislature, Regular Session, 2017, which expands the commissioner intervention tools when districts fail to meet accreditation, academic accountability, or financial accountability standards to include authorizing a district to enter into a memorandum of understanding with an institution of higher education to improve the district's performance; TEC, §39.102(a)(12), which expands the commissioner intervention tools when districts fail to meet accreditation, academic accountability, or financial accountability standards to include requiring the use of a board improvement and evaluation tool as provided by TEC, §11.182; TEC, §39A.001, which requires the commissioner to take actions for districts under the TEC, Chapter 39A, Subchapter A, Interventions and Sanctions for School Districts, to the extent the commissioner determines necessary, including any action the commissioner determines is appropriate on the basis of a special accreditation investigation; TEC, §39A.002, which allows the commissioner to take several actions if a district does not satisfy one of several standards, including the appointment of monitors, conservators, and management teams; TEC, §39A.003, which establishes the powers, duties, and limitations on the authority of a conservator or management team; TEC, §39A.004, which allows the commissioner to appoint a board of managers upon the satisfaction of certain conditions; TEC, §39A.005, which allows the commissioner to revoke the accreditation of a district upon the satisfaction of certain conditions; TEC, §39A.006, which allows the commissioner to appoint a board of managers after the assignment of a conservator or management team for two consecutive years; TEC, §39A.007, which allows the commissioner to impose additional sanctions designed to improve high school completion rates if the district fails any standard because of a district's dropout rate; TEC, §39A.051, which allows the commissioner to take actions as provided by TEC, Chapter 39A, as the commissioner determines necessary when a campus fails to meet the standard on any accountability indicator; TEC, §39A.052, which allows the commissioner to include certain educational personnel on a campus intervention team; TEC, §39A.053, which establishes the requirements for onsite needs assessments performed by a campus intervention team; TEC, §39A.054, which establishes the parameters for the recommendations that a campus intervention team provides; TEC, §39A.055, which requires a campus intervention team to assist in developing and monitoring the implementation of a targeted improvement plan.; TEC, §39A.056, which establishes public notice requirements for a targeted improvement plan; TEC, §39A.057, which establishes hearing requirements for a targeted improvement plan; TEC, §39A.058, which requires submission of a targeted improvement plan to the commissioner for approval; TEC, §39A.059, which allows a campus intervention team, if appropriate, to take certain actions in executing a targeted improvement plan; TEC, §39A.060, recodified from TEC, §39.106, as amended by HB 2263, 85th Texas Legislature, Regular Session, 2017, which establishes continuing duty requirements for a campus intervention team; TEC, §39A.061, allows the commissioner to authorize certain intervention mechanisms to substitute for certain committees and planning requirements at a campus; TEC, §39A.062, which authorizes the commissioner to require campus- and district-level committees to revise campus improvement plans in certain circumstances; TEC, §39A.063, which authorizes the commissioner to accept a substantially similar federal intervention in place of imposing a state intervention; TEC, §39A.101, which requires the commissioner to order a campus to develop a campus turnaround plan after two consecutive years of unacceptable performance, requires the campus intervention team to assist in developing the plans, and requires the plan to include all necessary details to implement without further action by the board of trustees; TEC, §39A.102, which allows the commissioner to appoint a monitor, conservator, management team, or board of managers to the school district to ensure support of low-performing campuses and implementation of the targeted improvement plan; TEC, §39A.103, which requires public notices and requests for assistance in developing the campus turnaround plan prior to submitting the plan to the board of trustees; TEC, §39A.104, which requires the school district to prepare the campus turnaround plan and allow review prior to submitting to the board of trustees and requires that the plan assist in satisfying all accountability standards; TEC, §39A.105, which establishes the requirements of a campus turnaround plan; TEC, §39A.106, which requires the campus turnaround plan to take effect no later than the school year after the third consecutive school year of unacceptable performance; TEC, §39A.107, which allows the commissioner to approve a turnaround plan only if the commissioner determines implementing the plan will result in satisfaction of performance standards by the conclusion of the second year after implementation. In the absence of approving a turnaround plan, the commissioner must order alternative management of the campus or closure of the campus or appoint of a board of managers for the district; TEC, §39A.108, which authorizes the school district to take actions to implement the turnaround plan once approved by the commissioner; TEC, §39A.109, which authorizes a school district to receive assistance from a regional education service center or an institution of higher education in developing and implementing a campus turnaround plan; TEC, §39A.110, which provides options regarding the use of a campus turnaround plan if the campus receives an acceptable rating for the school year following the school year that required the development of the plan; TEC, §39A.111, which requires the commissioner to either close a campus or appoint a board of managers if a campus reaches five consecutive years of unacceptable performance; TEC, §39A.112, which authorizes the commissioner to establish the time and manner for a parent petition to direct the sanction imposed based on five consecutive years of unacceptable campus performance and allows the commissioner to order the sanction requested by a board of trustees submitted in rebuttal to a parent-submitted sanction directive; TEC, §39A.113, which establishes parameters around repurposing a campus site when the campus was ordered closed; TEC, §39A.114, which allows the commissioner to require a district to contract for targeted technical assistance at a campus under certain circumstances; TEC, §39A.115, which authorizes the commissioner to adopt rules to implement TEC, Chapter 39A, Subchapter C, Campus Turnaround Plan; TEC, §39A.151, which establishes process and eligible entities for alternative management; TEC, §39A.152, which establishes qualifications for a managing entity for alternative management; TEC, §39A.153, which establishes terms of the contract with the managing entity for alternative management; TEC, §39A.154, which authorizes the commissioner to extend an alternative management contract and to approve terms of the contract; TEC, §39A.155, which establishes the evaluation of a managing entity for alternative management; TEC, §39A.156, which establishes when an alternative management contract must be cancelled; TEC, §39A.157, which establishes when management of a campus returns to the school district; TEC, §39A.158, which requires accountability to apply to a campus managed under alternative management; TEC, §39A.159, which requires certain minimum funding for a campus under alternative management; TEC, §39A.160, which applies open meeting and public record requirements to a managing entity; TEC, §39A.161, which authorizes commissioner to adopt rules to implement TEC, Chapter 39A, Subchapter D, Alternative Management; TEC, §39A.201, which authorizes a board of managers to exercise all duties of a board of trustees; TEC, §39A.202, which suspends the powers of a board of trustees when a board of managers is appointed by the commissioner, authorizes the commissioner to appoint a superintendent, makes explicit that a board of managers may amend the budget, and applies TEC, Chapter 39A, to a district governed by a board of managers; TEC, §39A.203, which suspends the powers of a board of trustees regarding a campus when a board of managers for the campus is appointed by the commissioner, authorizes the commissioner to appoint a principal, and authorizes the commissioner to approve a campus board of managers's request for budget amendments; TEC, §39A.204, which requires, if possible, for a board of managers to include community leaders, business representatives, and experts in the field of education; TEC, §39A.205, which requires the commissioner to provide training for a board of managers; TEC, §39A.206, which authorizes compensation for a board of managers in certain circumstances; TEC, §39A.207, which authorizes the commissioner to replace a member of the board of managers when appointed under TEC, Chapter 39, Subchapter C, Accreditation; TEC, §39A.208, which requires that a board of managers transition back to a board of trustees over the last three years of the board of managers appointment, as close to one-third of the members at a time as possible; requires the board of managers to continue to call for elections of board of trustees although the board of trustees's authority is suspended; and requires that a board of trustees may only be restored if the members were elected under an election called by the board of managers; TEC, §39A.209, which allows a board of managers to be removed only after the campus has two consecutive years of acceptable performance; authorizes replacement of an appointed board of managers; and authorizes a conservator or monitor once the board of managers is removed; TEC, §39A.251, which imposes interventions and sanctions on open-enrollment charter schools the same as on school districts; TEC, §39A.252, which requires the commissioner to adopt rules for imposing interventions and sanctions on open-enrollment charter schools; TEC, §39A.253, which grants charter school hearings only under TEC, Chapter 39 or Chapter 12, not both; TEC, §39A.254, which authorizes the commissioner to require the development of a campus improvement plan in certain circumstances; TEC, §39A.255, which authorizes the commissioner to develop rules regarding the application of turnaround plans to open-enrollment charter schools; TEC, §39A.256, which authorizes the appointment of a board of managers for an open-enrollment charter school; TEC, §39A.257, which authorizes the appointment of a superintendent for an open-enrollment charter school; TEC, §39A.258, which authorizes the commissioner to remove a person from a charter board of managers at any time; TEC, §39A.259, which authorizes the commissioner to provide compensation to a charter board of managers or appointed superintendent; TEC, §39A.260, which establishes immunity for charter boards of managers and appointed superintendents; TEC, §39A.301, which establishes the exclusive challenge process for a decision by the commissioner to order closure of a district or campus or alternative management of a campus; TEC, §39A.901, which requires annual review of performance by the commissioner and increasing severity of intervention for lack of progress; TEC, §39A.902, which allows the commissioner to require a campus or district to acquire professional services to address certain deficiencies, including requiring board of trustees members to participate in professional services to address governance deficiencies; TEC, §39A.903, which requires districts to pay for the costs of certain interventions; TEC, §39A.904, which establishes immunity for those acting on behalf of the commissioner in implementing interventions and sanctions; TEC, §39A.905, which prohibits the commissioner from requiring a campus name change during certain interventions; TEC, §39A.906, which is a transitional provision that establishes which years to count for imposing certain interventions; and TEC, §39A.907, which establishes a special student recovery program that may be required of certain districts.

CROSS REFERENCE TO STATUTE. The amendments implement the Texas Education Code (TEC), §§39.051, 39.057, as amended by Senate Bill (SB) 7 and SB 1488, 85th Texas Legislature, Regular Session, 2017; 39.102, as amended by House Bill (HB) 1553 and SB 1566, 85th Texas Legislature, Regular Session, 2017; 39A.001-39A.007; 39A.051-39A.059; 39A.060, recodified from TEC, §39.106, as amended by HB 2263, 85th Texas Legislature, Regular Session, 2017; 39A.061-39A.063; 39A.101-39A.115; 39A.151-39A.161; 39A.201-39A.209; 39A.251-39A.260; 39A.301; and 39A.901-39A.907.

§97.1051.Definitions.

For purposes under Texas Education Code (TEC), Chapters 39 and 39A, and this subchapter, the following words and terms shall have the following meaning, unless the context clearly indicates otherwise:

(1) Board of managers--A board appointed by the commissioner of education to serve as a governing body that must, if possible, include:

(A) community leaders;

(B) business representatives who have expertise in leadership; and

(C) individuals who have knowledge or expertise in the field of education.

(2) Board of trustees--The definition of this term includes a governing body of a charter holder as defined by TEC, §12.1012.

(3) Campus--An organizational unit operated by the school district that is eligible to receive a campus performance rating in the state accountability rating system under §97.1001 of this title (relating to Accountability Rating System), including a rating of Not Rated or Not Rated: Data Integrity Issues. The definition of this term includes a charter school campus as defined by §100.1001(3)(C) of this title (relating to Definitions).

(4) Campus turnaround--A comprehensive change in an academically unacceptable campus that produces significant and sustainable gains in achievement within two years. For the purposes of this chapter, the term "academically unacceptable" performance means a rating of Academically Unacceptable, AEA: Academically Unacceptable, Improvement Required, or Unacceptable Performance or as otherwise indicated in the applicable year's academic accountability manual.

(5) Charter school--This term has the meaning assigned by §100.1001(3) of this title. References to a charter school in TEC, Chapters 39 and 39A, and rules adopted under it, shall mean either the board of trustees or the school district, as appropriate.

(6) Charter school site--This term has the meaning assigned by §100.1001(3)(D) of this title.

(7) District coordinator of school improvement (DCSI)--An employee of a school district in a leadership position in school improvement, in curriculum and instruction, or in another position with responsibility for student performance.

(8) Newspaper of general circulation--A newspaper, as defined in Texas Government Code, §2051.044, that has more than a minimum number of subscribers among a particular geographic region, that has a diverse subscribership, and that publishes some news items of general interest to the community.

(9) Person--This term has the meaning assigned by the Code Construction Act, Government Code, §311.005(2), and includes a school district.

(10) Professional service provider (PSP)-- An approved service provider who has been vetted through an application or a request for qualifications (RFQ) process to provide on-site technical assistance for underperforming schools and districts either by the Texas Education Agency (TEA) or the TEA's technical assistance provider.

(11) Root cause--The education-related factors resulting in a campus's low performance and lack of progress.

(12) School district and district--The definition of these terms includes a charter operator, which is the same as a charter holder as defined by TEC, §12.1012.

§97.1065.Commissioner Determinations for Decisions Preceding Alternative Management, Campus Closure, or Board of Managers.

(a) Action required. The commissioner of education shall order:

(1) alternative management or closure of a campus or appoint a board of managers to govern the district if the campus turnaround plan is not approved as outlined in §97.1064 of this title (relating to Campus Turnaround Plan); and

(2) closure of a campus or appoint a board of managers to govern the district if the campus is assigned an unacceptable performance rating under the state academic accountability system for three consecutive school years after the campus is ordered to submit a campus turnaround plan as outlined in §97.1064 of this title.

(b) Review. An action ordered under subsection (a) of this section is subject to the applicable review procedures provided in Chapter 157 of this title (relating to Hearings and Appeals).

(c) Other actions permitted. In combination with action under this section, the commissioner may impose on the district or campus any other sanction under Texas Education Code (TEC), Chapter 39 or 39A, or this subchapter, singly or in combination, to the extent the commissioner determines is reasonably required to achieve the purposes specified in §97.1053 of this title (relating to Purpose). In particular, the commissioner may assign a monitor, conservator, management team, or board of managers in order to ensure and oversee district-level support to low-performing campuses and the implementation of the updated targeted improvement plan and the campus turnaround plan.

(d) Petition allowed. In accordance with TEC, §39A.112, for a campus subject to an order of closure or appointment of a board of managers to govern the district under subsection (a) of this section, if a written petition, signed by the parents of a majority of the students enrolled at the campus and specifying the action requested under subsection (a) of this section, is presented to the commissioner in accordance with this section and related procedures adopted by the Texas Education Agency (TEA), the commissioner shall, except as otherwise authorized by this section, order the specific action requested. If the board of trustees of the school district in which the campus is located presents to the commissioner, in accordance with this section and related procedures adopted by the TEA, a written request that the commissioner order a specific action under subsection (a) of this section other than the action requested by the parents in a valid petition, along with a written explanation of the basis for the board's request, the commissioner may order the action requested by the board of trustees.

(1) A written petition under this subsection must be:

(A) finalized and submitted to the district superintendent no later than October 15 for purposes of validation;

(B) certified by the superintendent as a valid petition in accordance with paragraph (2) of this subsection; and

(C) if determined to be a valid petition, submitted by the district superintendent to the commissioner no later than December 1.

(2) Only a written petition determined to be valid in accordance with this section and TEA procedures may be submitted to the commissioner. At a minimum, the following criteria must be met for a petition to be determined valid.

(A) The petition must include all information required by the TEA as reflected in TEA model forms and related procedures and must be submitted to the district superintendent in accordance with the deadline established in paragraph (1)(A) of this subsection.

(B) The petition must clearly state the sanction action under subsection (a)(2) of this section being requested by the parents.

(C) In accordance with this subparagraph, the parent(s) of more than 50% of the students enrolled at the campus must provide the handwritten or typed name and an original signature on the petition.

(i) For the purposes of the petition, a parent means the parent who is indicated on the student registration form at the campus.

(ii) A student will be considered enrolled at the campus for the purposes of the petition if the student is enrolled and in membership at the campus on a TEA-determined enrollment snapshot date, as reflected in TEA procedures.

(iii) For the purposes of determining whether parents of more than 50% of the students enrolled at the campus have signed the petition, only one parent signature per enrolled student can be counted by the district in its calculation assuring validity of the petition.

(iv) A signature is valid if the person signed the petition on or after the date on which a preliminary rating indicating four or more consecutive years of unacceptable performance at the campus was issued.

(3) If the board of trustees of the school district requests that the TEA consider a specific action under subsection (a) of this section other than the action requested by the parents in a valid petition and submitted to the TEA in accordance with this subsection, the board must submit a written request to the commissioner and include a written explanation of the basis for the board's request for an action other than the one reflected in a valid parent petition. Any written request must be:

(A) approved by a majority of the board members in an action taken in a public meeting conducted in compliance with the Texas Open Meetings Act; and

(B) submitted to the commissioner no later than December 15 in accordance with procedures established by the TEA.

(4) If a valid parent petition under paragraph (1) of this subsection or board of trustees submission under paragraph (3) of this subsection requests that the commissioner order campus closure, the district must submit, no later than January 30, a comprehensive plan for campus closure that meets the requirements of the TEC, §39A.113, and §97.1066 of this title (relating to Campus Closure).

(5) Following the submission to the TEA of a valid petition and any subsequent board request under this section, the commissioner will order, no later than February 15, a sanction in compliance with the TEC, §39A.111, and this section. The sanction shall be implemented for the current year or, if necessary, for the subsequent school year regardless of the state academic accountability rating assigned to the campus in that school year.

(6) Notwithstanding this subsection, in the case of a charter school granted under the TEC, Chapter 12, Subchapter D or E, the commissioner shall retain authority under the TEC and Chapter 100, Subchapter AA, Division 2, of this title (relating to Commissioner Action and Intervention) to take any adverse action allowed by statute and rule and to approve or disapprove any proposed change in campus or charter structure resulting from a petition or board request under this subsection.

(e) Targeted technical assistance. In addition to the grounds specified in TEC, §39A.114, if the commissioner determines that the basis for the unsatisfactory performance of a campus for more than two consecutive school years is limited to a specific condition that may be remedied with targeted technical assistance, the commissioner may require the district to contract for the appropriate technical assistance, including, but not limited to, the district's regional education service center and/or an institution of higher education.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 8, 2018.

TRD-201800059

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: January 28, 2018

Proposal publication date: September 29, 2017

For further information, please call: (512) 475-1497


CHAPTER 101. ASSESSMENT

SUBCHAPTER CC. COMMISSIONER'S RULES CONCERNING IMPLEMENTATION OF THE ACADEMIC CONTENT AREAS TESTING PROGRAM

DIVISION 3. SECURITY OF ASSESSMENTS, REQUIRED TEST ADMINISTRATION PROCEDURES AND TRAINING ACTIVITIES

19 TAC §101.3031

(Editor's note: In accordance with Texas Government Code, §2002.014, which permits the omission of material which is "cumbersome, expensive, or otherwise inexpedient," the figure in 19 TAC §101.3031 is not included in the print version of the Texas Register. The figure is available in the on-line version of the January 26, 2018, issue of the Texas Register.)

The Texas Education Agency adopts an amendment to §101.3031, concerning required test administration procedures and training activities to ensure validity, reliability, and security of assessments. The amendment is adopted with changes to the proposed text as published in the October 27, 2017, issue of the Texas Register (42 TexReg 5977). The amendment adopts the 2018 Test Security Supplement as part of the Texas Administrative Code. The changes at adoption are to the 2018 Test Security Supplement.

REASONED JUSTIFICATION. Through the adoption of 19 TAC §101.3031, effective March 26, 2012, the commissioner exercised rulemaking authority relating to the administration of assessment instruments adopted or developed under TEC, §39.023, including procedures designed to ensure the security of the assessment instruments. The rule addresses purpose, administrative procedures, training activities, and records retention. As part of the administrative procedures, school districts and charter schools are required to comply with test security and confidentiality requirements delineated annually in test administration materials.

The adopted amendment to 19 TAC §101.3031, Required Test Administration Procedures and Training Activities to Ensure Validity, Reliability, and Security of Assessments, updates the rule by adopting the 2018 Test Security Supplement as Figure: 19 TAC §101.3031(b)(2). The 2018 Test Security Supplement describes the security procedures and guidelines that school districts and charter schools shall be required to follow to ensure the security and validity of the Texas assessment system.

Adopted within the 2018 Test Security Supplement are five substantive changes for the administration of the 2018 assessments.

The first policy change applies to Texas English Language Proficiency Assessment System (TELPAS). TELPAS listening and speaking domains for Grades 2-12 will be assessed online instead of holistically rated. Districts will be required to issue headphones for the listening and speaking tests due to the new online format. The listening and speaking domains are transitioning from being holistically rated to being assessed online to standardize and improve the validity and reliability of these assessments and lessen the burden on districts to train and task staff to administer these assessments holistically. This policy change can be found in the 2018 Test Security Supplement under Policy and Procedure Highlights.

The second policy change also applies to TELPAS. A new security oath was introduced for use by individuals proctoring the TELPAS Rater Training Calibration Activity. The security oath will ensure proctors are appropriately trained, understand their responsibilities, and are aware of any penalties that may result from violating test security. This policy change can be found in the 2018 Test Security Supplement under Policy and Procedure Highlights.

The third change pertains to the dictionary and calculator requirement for the State of Texas Assessments of Academic Readiness (STAAR®) program. The STAAR® dictionary policy will be extended to Grades 3-5 to include the Grades 3-5 reading and Grade 4 writing assessments. Districts will now be required to provide students access to a calculator with four-function, scientific, or graphing capability for the STAAR® Grade 8 science assessment. These changes are based on educator input to increase accessibility to these tools. This policy change can be found in the 2018 Test Security Supplement under Policy and Procedure Highlights.

Fourth, in response to requests from district personnel for additional flexibility and based on changes to technology, the Texas assessment program has updated its technology guidelines. The new guidelines are provided for districts to determine whether software or a device is appropriate for use on a state assessment. Districts are required to review any allowed or approved technology, including technology-based accommodations (i.e., accessibility features, designated supports) prior to its use during state testing to ensure it does not jeopardize the security or validity of an assessment. This policy change can be found in the 2018 Test Security Supplement under Policy and Procedure Highlights.

Last, references to testing "accommodations" have been updated to use the term "designated supports." As a result of increased accessibility, the term "designated supports" has been incorporated to cover a larger group of affected individuals versus certain populations of students with disabilities. This policy change can be found throughout the 2018 Test Security Supplement where appropriate.

In response to public comment, the 2018 Test Security Supplement was updated at adoption to remove references to test booklet seals. Also in response to public comment, references were added at adoption to notify districts of the responsibility to keep the contents of the test item image cards secure.

Additional clarification was added to the 2018 Test Security Supplement at adoption to guide districts regarding the types of instructional displays that must be covered during certain subject-area administrations.

The earlier versions of the security supplement will remain in effect with respect to the year for which they were developed.

The adopted amendment also includes a change in subsection (d) that clarifies the time frame for retaining records related to the security of assessment instruments. Records are required to be retained for five years rather than a minimum of five years.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began October 27, 2017, and ended November 27, 2017. Following is a summary of public comments received and corresponding agency responses regarding the proposed amendment to 19 TAC Chapter 101, Assessment, Subchapter CC, Commissioner's Rules Concerning Implementation of the Academic Content Areas Testing Program, Division 3, Security of Assessments, Required Test Administration Procedures and Training Activities, §101.3031, Required Test Administration Procedures and Training Activities to Ensure Validity, Reliability, and Security of Assessments.

Comment: Employees from two school districts noted that although test booklets will no longer have seals to prevent students from continuing into the next subject-area test, references to test booklet seals remain in the 2018 Test Security Supplement.

Agency Response: The agency agrees. The 2018 Test Security Supplement has been updated to remove references to test booklet seals.

Comment: An employee from a school district noted that the new test item image cards included with STAAR® Alternate 2 student test booklets create a new security concern and suggested that they be addressed in the 2018 Test Security Supplement.

Agency Response: The agency agrees. Because the new test item image cards included with STAAR® Alternate 2 student test booklets contain secure content, references were added to the 2018 Test Security Supplement to notify districts of the responsibility to keep the contents of the test item image cards secure.

STATUTORY AUTHORITY. The amendment is adopted under the Texas Education Code (TEC), §26.010, which prohibits a student from being removed from a class or school by a parent in order to avoid a test and prohibits a student from being exempted from satisfying grade-level or graduation requirements in a manner acceptable to both the school district and the agency; TEC, §39.023(a), which requires school districts to administer the Grades 3-8 state-developed assessments to all eligible students; TEC, §39.025(a), which requires a student to pass each end-of-course assessment listed in TEC, §39.023(c), only for a course in which the student is enrolled and for which an end-of-course assessment is administered in order to receive a Texas diploma; TEC, §39.030(a), which requires school districts to ensure the security of the state's assessment instruments and student answer documents in their preparation and administration; TEC, §39.0301, which requires the commissioner to establish procedures for the administration of the state's assessment instruments, including procedures designed to ensure the security of those assessments, specifies that the procedures the commissioner is required to establish must, to the extent possible, minimize disruptions to school operations and classroom environment, and stipulates that school districts must also minimize disruptions to school operations and the classroom environment when implementing the required assessment administration procedures; and TEC, §39.0304, which authorizes the commissioner to adopt rules to require training for school district employees involved in the administration of the state's assessments. This training may include qualifying components to ensure the school district personnel involved in an administration of the state's assessments possess the necessary knowledge and skills required to securely and reliably administer those assessments.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code, §26.010, 39.023(a), 39.025(a), 39.030(a), 39.0301, and 39.0304.

§101.3031.Required Test Administration Procedures and Training Activities to Ensure Validity, Reliability, and Security of Assessments.

(a) Purpose. To ensure that each assessment instrument is reliable and valid and meets applicable federal requirements for measurement of student progress, the commissioner of education shall establish test administration procedures and required training activities that support the standardization and security of the test administration process.

(b) Test administration procedures. These test administration procedures shall be delineated in the test administration materials provided to school districts and charter schools annually. Districts and charter schools must comply with all of the applicable requirements specified in the test administration materials. Test administration materials shall include, but are not limited to, the following:

(1) general testing program information;

(2) requirements for ensuring test security and confidentiality described in the 2018 Test Security Supplement provided in this paragraph;

Figure: 19 TAC §101.3031(b)(2) (.pdf)

(3) procedures for test administration;

(4) responsibilities of personnel involved in test administration; and

(5) procedures for materials control.

(c) Training activities. As part of the test administration procedures, the commissioner shall require training activities to ensure that testing personnel have the necessary skills and knowledge required to administer assessment instruments in a valid, standardized, and secure manner. The commissioner may require evidence of successful completion of training activities. Test coordinators and administrators must receive all applicable training as required in the test administration materials.

(d) Records retention. As part of test administration procedures, the commissioner shall require school districts and charter schools to maintain records related to the security of assessment instruments for five years.

(e) Applicability. The test administration procedures and required training activities established in the annual test security supplements for prior years remain in effect for all purposes with respect to the prior year to which it applies.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 11, 2018.

TRD-201800093

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: January 31, 2018

Proposal publication date: October 27, 2017

For further information, please call: (512) 475-1497


CHAPTER 102. EDUCATIONAL PROGRAMS

SUBCHAPTER GG. COMMISSIONER'S RULES CONCERNING COLLEGE AND CAREER READINESS SCHOOL MODELS

19 TAC §102.1095

The Texas Education Agency (TEA) adopts new §102.1095, concerning college and career readiness school models. The new section is adopted without changes to the proposed text as published in the November 10, 2017 issue of the Texas Register (42 TexReg 6294) and will not be republished. The adopted new rule establishes a grant program and designation process for the Pathways in Technology Early College High School (P-TECH) program established by Senate Bill (SB) 22, 85th Texas Legislature, Regular Session, 2017.

REASONED JUSTIFICATION. SB 22, 85th Texas Legislature, Regular Session, 2017, established the P-TECH program to provide students with opportunities for work-based education programs and to earn associate degrees and work credentials. SB 22 requires the commissioner to adopt rules as necessary to administer the P-TECH program, including rules to ensure that a student participating in the program is not considered for accountability purposes to have dropped out of high school or failed to complete the curriculum requirements for high school graduation until after the sixth anniversary of the date of the student's first day in high school.

In addition, SB 22 outlines requirements for articulation agreements with institutions of higher education to implement work-based education programs that lead to degrees or certificates and memoranda of understanding with regional industry or business partners to give students who receive work-based training or education from the partner under the P-TECH program priority in interviewing for any jobs for which the student is qualified that are available on the student's completion of the program.

SB 22 also establishes the basic requirements of a P-TECH program, specifies that the program must be provided at no cost to participating students, and creates an advisory council to provide recommendations to the commissioner on the establishment and administration of the P-TECH program and the criteria for a campus's designation as a P-TECH school. Finally, SB 22 specifies that a student in the P-TECH program is entitled to the benefits of the Foundation School Program in proportion to the amount of time spent by the student on high school courses while completing the course of study established by the applicable articulation agreement or memorandum of understanding.

Adopted new §102.1095 implements the requirements of SB 22 by establishing the basic requirements for designation of a P-TECH and providing for a grant program for school districts wanting to establish one or more P-TECH campuses. The agency anticipates addressing further requirements of SB 22 in future rulemaking.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began November 10, 2017, and ended December 11, 2017. No public comments were received.

STATUTORY AUTHORITY. The new section is adopted under the Texas Education Code (TEC), §29.551, which establishes definitions related to the P-TECH program; TEC, §29.552, which specifies the formation of the P-TECH advisory council, including the members who must compose the council, and the functions of the council; TEC, §29.553, which requires the commissioner to establish and administer the P-TECH program and specifies certain requirements of the program; TEC, §29.556, which requires the commissioner to establish criteria for a campus's designation as a P-TECH school and participation in the P-TECH grant program; and TEC, §29.557, which requires the commissioner to adopt rules as necessary to administer the P-TECH program, including rules to ensure a student participating in the program is not considered for accountability purposes to have dropped out of high school or failed to complete the curriculum requirements for high school graduation until after the sixth anniversary of the date of the student's first day in high school.

CROSS REFERENCE TO STATUTE. The new section implements the Texas Education Code, §§29.551-29.553, 29.556, and 29.557, as added by Senate Bill (SB) 22, 85th Texas Legislature, Regular Session, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 11, 2018.

TRD-201800092

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: January 31, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 475-1497


SUBCHAPTER JJ. COMMISSIONER'S RULES CONCERNING INNOVATION DISTRICT

19 TAC §102.1307, §102.1309

The Texas Education Agency (TEA) adopts amendments to §102.1307 and §102.1309, concerning innovation districts. The amendments are adopted without changes to the proposed text as published in the October 27, 2017 issue of the Texas Register (42 TexReg 5979) and will not be republished. The adopted amendments reflect changes made by Senate Bill (SB) 1566 and SB 463, 85th Texas Legislature, Regular Session, 2017.

REASONED JUSTIFICATION. Through 19 TAC Chapter 102, Subchapter JJ, adopted to be effective September 13, 2016, the commissioner exercised rulemaking authority relating to the applicable processes and procedures for innovation districts.

Section 102.1307, Adoption of Local Innovation Plan, addresses the requirements and procedures for a district's initial adoption of a local innovation plan. SB 1566, 85th Texas Legislature, Regular Session, 2017, added the TEC, §12A.0071, to require that a district of innovation post a copy of the innovation plan prominently on the district website and, within 15 days of adoption, amendment, or renewal, provide the TEA with a copy of the plan for posting on the agency website. The adopted amendment to §102.1307 adds new subsections (f) and (g) to address these requirements.

Section 102.1309, Prohibited Exemptions, specifies the statutory provisions from which districts of innovation may not exempt themselves. SB 463, 85th Texas Legislature, Regular Session, 2017, added the TEC, §28.02541, to provide alternative graduation requirements for certain students. Since the TEC, §12A.004, prohibits exemptions from graduation requirements, the adopted amendment to §102.1309 adds the TEC, §28.02541, to the list of prohibited exemptions in subsection (a)(1)(C).

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began October 27, 2017, and ended November 27, 2017. Following is a summary of public comments received and corresponding agency responses regarding the proposed amendments to 19 TAC Chapter 102, Educational Programs, Subchapter JJ, Commissioner's Rules Concerning Innovation District.

Comment. The Texas Classroom Teachers Association (TCTA) expressed appreciation and support for proposed §102.1307(f), which requires the innovation plan be posted on the district's website for the term of the district's designation as an innovation district.

Agency Response. No response is required.

Comment. TCTA noted that a component of the authorizing statute (TEC, §12A.0071) was not reflected in §102.1307(f); specifically, the portion that requires the district to post the innovation plan "in a prominent location" on the district website. TCTA believes this requirement must be emphasized to ensure transparency.

Agency Response. The agency disagrees that this requirement was not emphasized or found in the proposed rule. The agency cited the statutory requirement that a school district designated as a district of innovation shall ensure that a copy of the district's current local innovation plan is available to the public by posting and maintaining the plan in a prominent location on the district's Internet website in §102.1307(f). This requirement is reflected in subsection (f) where it states, "the local innovation plan is posted on the district's website in accordance with the TEC, §12A.0071."

Comment. TCTA noted that a component of the authorizing statute (TEC, §12A.0071) was not reflected in §102.1307(g); specifically, the portion that requires the agency to "promptly post the current local innovation plan" on their website. TCTA believes the inclusion of this language ("promptly") serves an important purpose in ensuring the agency fulfills its duty in this process.

Agency Response. The agency agrees that this requirement was not found in the proposed rule. However, the agency disagrees that the inclusion of this term serves an important purpose to ensure that the agency fulfills its duty. The agency is required to fulfill its statutory obligations, regardless of whether they are echoed in Texas Administrative Code. The agency implements rules with the intention of providing clarity to those they impact. Including the term "promptly" would not add additional clarity, beyond what is in statute. Therefore, the agency will defer to statute and continue to post the rules in a prompt manner, in accordance with the Texas Education Code.

STATUTORY AUTHORITY. The amendments are adopted under the Texas Education Code (TEC), §12A.0071, as added by Senate Bill 1566, 85th Texas Legislature, Regular Session, 2017, which requires a district of innovation to post a copy of the innovation plan prominently on the district website and, within 15 days of adoption, amendment, or renewal, provide the Texas Education Agency with a copy of the plan for posting on the agency website; and TEC, §12A.009, which authorizes the commissioner to adopt rules to implement the TEC, Chapter 12A, Districts of Innovation.

CROSS REFERENCE TO STATUTE. The amendments implement the Texas Education Code, §12A.0071, as added by Senate Bill 1566, 85th Texas Legislature, Regular Session, 2017, and §12A.009.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 11, 2018.

TRD-201800091

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: January 31, 2018

Proposal publication date: October 27, 2017

For further information, please call: (512) 475-1497


CHAPTER 112. TEXAS ESSENTIAL KNOWLEDGE AND SKILLS FOR SCIENCE

SUBCHAPTER D. OTHER SCIENCE COURSES

19 TAC §112.71, §112.72

The State Board of Education (SBOE) adopts the repeal of §112.71 and §112.72, concerning Texas Essential Knowledge and Skills (TEKS) for science. The repeal is adopted without changes to the proposed text as published in the October 6, 2017, issue of the Texas Register (42 TexReg 5329) and will not be republished. The adopted repeal removes rules that are duplicative of other SBOE rules and are no longer necessary.

REASONED JUSTIFICATION. Principles of Technology, a career and technical education (CTE) course, has been identified by the SBOE as a course that may satisfy science graduation requirements. The TEKS for Principles of Technology are currently included in both 19 TAC Chapter 130, Texas Essential Knowledge and Skills for Career and Technical Education, and 19 TAC Chapter 112, Texas Essential Knowledge and Skills for Science. In 2015, the SBOE approved new CTE TEKS, which were implemented beginning in the 2017-2018 school year. New 19 TAC §130.404, Principles of Technology (One Credit), Adopted 2015, includes revisions to the original TEKS in §112.71, and the two courses are no longer aligned.

Rules in 19 TAC Chapter 74, Curriculum Requirements, Subchapter B, Graduation Requirements, identify the courses that may satisfy specific graduation requirements. These rules currently identify 12 CTE courses that may satisfy science graduation requirements. As a result of recent changes to the graduation requirements, §112.72, Other Courses for Which Students May Receive Science Credit, is no longer aligned to the graduation requirements.

The adopted repeal eliminates §112.71 and §112.72 to remove rules that are outdated and duplicative of other SBOE rules.

The SBOE approved the repeal for first reading and filing authorization at its September 15, 2017 meeting and for second reading and final adoption at its November 10, 2017 meeting.

In accordance with the TEC, §7.102(f), the SBOE approved the amendment for adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2018-2019 school year. The earlier effective date will expedite the removal of outdated rules to avoid confusion.

SUMMARY OF COMMENTS AND RESPONSES. No public comments were received on the proposal.

STATUTORY AUTHORITY. The repeal is adopted under the Texas Education Code (TEC), §7.102(c)(4), which requires the State Board of Education (SBOE) to establish curriculum and graduation requirements; TEC, §28.002, which identifies the subjects of the required curriculum and requires the SBOE by rule to identify the essential knowledge and skills of each subject in the required curriculum that all students should be able to demonstrate and that will be used in evaluating instructional materials and addressed on the state assessment instruments; and TEC, §28.025, as amended by House Bill 3593 and Senate Bill 826, 85th Texas Legislature, Regular Session, 2017, which requires the SBOE by rule to determine the curriculum requirements for the foundation high school graduation program that are consistent with the required curriculum under the TEC, §28.002.

CROSS REFERENCE TO STATUTE. The repeal implements the Texas Education Code, §§7.102; 28.002; and 28.025, as amended by House Bill 3593 and Senate Bill 826, 85th Texas Legislature, Regular Session, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 11, 2018.

TRD-201800088

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: January 31, 2018

Proposal publication date: October 6, 2017

For further information, please call: (512) 475-1497


CHAPTER 130. TEXAS ESSENTIAL KNOWLEDGE AND SKILLS FOR CAREER AND TECHNICAL EDUCATION

SUBCHAPTER C. ARTS, AUDIO/VIDEO TECHNOLOGY, AND COMMUNICATIONS

19 TAC §130.121

The State Board of Education (SBOE) adopts an amendment to §130.121, concerning Texas Essential Knowledge and Skills (TEKS) for extended practicum in fashion design. The amendment is adopted without changes to the proposed text as published in the October 6, 2017 issue of the Texas Register (42 TexReg 5330) and will not be republished. The adopted amendment changes the amount of credit offered for the course to be consistent with other extended practicum courses.

REASONED JUSTIFICATION. In 2015, the SBOE adopted new career and technical education (CTE) TEKS, which were implemented beginning with the 2017-2018 school year. The new TEKS eliminated the range of credit for CTE courses and implemented a consistent amount of credit for each course. Additionally, the new TEKS provide a number of one-credit extended practicum courses. During a review of the new CTE TEKS, staff discovered an error in the amount of credit identified for the Extended Practicum in Fashion Design course. As adopted, the course includes a range of two to three credits, which is not consistent with all other extended practicum courses.

The adopted amendment corrects the amount of credit available for the course to one credit to be consistent with other extended practicum courses.

The SBOE approved the amendment for first reading and filing authorization at its September 15, 2017 meeting and for second reading and final adoption at its November 10, 2017 meeting.

In accordance with the TEC, §7.102(f), the SBOE approved the amendment for adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2018-2019 school year. The earlier effective date is necessary to align the amount of credit available for Extended Practicum in Fashion Design with all extended practicum courses in order to avoid confusion during the 2017-2018 school year.

SUMMARY OF COMMENTS AND RESPONSES. No public comments were received on the proposal.

STATUTORY AUTHORITY. The amendment is adopted under the Texas Education Code (TEC), §7.102(c)(4), which requires the State Board of Education (SBOE) to establish curriculum and graduation requirements; TEC, §28.002, which identifies the subjects of the required curriculum and requires the SBOE by rule to identify the essential knowledge and skills of each subject in the required curriculum that all students should be able to demonstrate and that will be used in evaluating instructional materials and addressed on the state assessment instruments; and TEC, §28.025, as amended by House Bill 3593 and Senate Bill 826, 85th Texas Legislature, Regular Session, 2017, which requires the SBOE by rule to determine the curriculum requirements for the foundation high school graduation program that are consistent with the required curriculum under the TEC, §28.002.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code, §§7.102, 28.00, and 28.025, as amended by House Bill 3593 and Senate Bill 826, 85th Texas Legislature, Regular Session, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 11, 2018.

TRD-201800089

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: January 31, 2018

Proposal publication date: October 6, 2017

For further information, please call: (512) 475-1497