TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 61. SCHOOL DISTRICTS

SUBCHAPTER BB. COMMISSIONER'S RULES ON REPORTING REQUIREMENTS

19 TAC §61.1023

The Texas Education Agency (TEA) adopts an amendment to §61.1023, concerning community and student engagement. The amendment is adopted with changes to the proposed text as published in the March 31, 2017, issue of the Texas Register (42 TexReg 1699). The adopted amendment addresses the inclusion of community and student engagement ratings in the state academic accountability system as required by the Texas Education Code (TEC), §39.0546, added by House Bill (HB) 2804, 84th Texas Legislature, 2015.

REASONED JUSTIFICATION. HB 5, 83rd Texas Legislature, 2013, added the TEC, §39.0545, which establishes community and student engagement ratings and requires districts to report to TEA self-assigned district and campus ratings in eight specific categories. The TEA adopted 19 TAC §61.1023 effective June 25, 2014, to provide instructions for reporting these ratings and the record of compliance with statutory reporting and policy to the TEA.

HB 2804, 84th Texas Legislature, 2015, added the TEC, §39.0546, which requires that community and student engagement ratings be part of the state academic accountability system. The adopted amendment to 19 TAC §61.1023 implements the requirements of the TEC, §39.0546, by adding new subsections (j) and (k) to provide guidance to districts regarding including community and student engagement ratings in the state academic accountability system. Other technical edits have also been made throughout the section.

In response to public comment, new subsection (l) was added at adoption to clarify that the community and student engagement reporting requirements specified in subsections (j) and (k) do not apply to districts and campuses with certain characteristics because they would not have applicable data.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began March 31, 2017, and ended May 1, 2017. Following is a summary of the public comments received and corresponding agency responses.

Comment: Two district personnel asked if the overall rating applied to the eight Community and Student Engagement (CaSE) categories, to the three CaSE categories for accountability, or to both.

Agency Response: The agency provides the following clarification. The overall rating of A, B, C, D, or F applies to only the three CaSE categories discussed in the TEC, §39.0546. The overall rating of Exemplary, Recognized, Acceptable, and Unacceptable applies to the entire set of eight CaSE categories discussed in the TEC, §39.0545.

Comment: An individual expressed concern about the additional work the CaSE ratings for accountability would create for district staff.

Agency Response: The agency disagrees that the development of locally determined CaSE ratings required in the amendment adds significant additional time and effort by district and campus staff. While the TEA cannot prescribe the method and criteria that districts and campuses use to determine CaSE ratings, it is within the law for districts and campuses to use the same criteria for assigning ratings of A, B, C, D, or F that is used currently to assign ratings of Exemplary, Recognized, Acceptable, and Unacceptable.

Comment: The Texas School Alliance (TSA) expressed concern that the additional data collection and staff time for committee meetings may create additional costs for districts. TSA proposed acknowledging and appropriating funds to districts and the agency to process and issue ratings for two sets of data. An individual submitted a similar concern.

Agency Response: The agency disagrees that the development of locally determined CaSE ratings required in the amendment adds significant additional time and effort by district and campus staff. While the TEA cannot prescribe the method and criteria that districts and campuses use to determine CaSE ratings, it is within the law for districts and campuses to use the same criteria for assigning ratings of A, B, C, D, or F that is used currently to assign ratings of Exemplary, Recognized, Acceptable, and Unacceptable.

Comment: The TSA expressed concern about the duplication of effort required under the TEC, §39.0546 and §39.0545, and the lack of statutory guidance distinguishing D's and F's. TSA proposed the agency seek clarification from the legislature about whether the "translation" provided in the TEC, §39.0546(b), was intended to supersede, rather than to compound, the ratings/labels contained in the TEC, §39.0545. An education service center personnel and Sabinal Independent School District (ISD) submitted similar concerns.

Agency Response: The agency disagrees that further clarification is needed from the Texas Legislature. When the 84th Texas Legislature passed House Bill 2804 (adding CaSE ratings to academic accountability), it did not strike the TEC, §39.0545. While the TEA cannot prescribe the method and criteria that districts and campuses use to determine CaSE ratings, it is within the law for districts and campuses to use the same criteria for assigning ratings of A, B, C, D, or F that are used currently to assign ratings of Exemplary, Recognized, Acceptable, and Unacceptable.

Comment: One district staff member expressed concern that CaSE criteria are dependent on end-of-year data. The commenter stated that if districts are to submit evaluation results in May, they will not have data for programs such as dropout prevention unless it is a lagging indicator.

Agency Response: The agency agrees that the reporting timeline for the locally assigned CaSE ratings of A, B, C, D, or F for use in the current year in the accountability system is problematic for indicators based on current year data that are not available until the end of the school year. However, the timeline is necessary to ensure that the locally assigned CaSE ratings are available for use in the state accountability ratings that must be assigned by the statutory deadline of August 15. While the TEA cannot prescribe the method and criteria that districts and campuses use to determine CaSE ratings, there is nothing in law or administrative rule that would prevent a district from using a lagging indicator. The TEA uses several lagging indicators to assign academic accountability ratings.

Comment: Two district personnel sought clarification on whether the district assigns performance ratings or whether the campuses assign performance ratings for CaSE. The commenters cited the discrepancy in wording between the TEC, §39.0545(b), where the district assigns ratings and the TEC, §39.0546(a)(2), where each campus assigns ratings. One commenter proposed a change to the TEC, §39.0545, to align the assignment of ratings.

Agency Response: The agency provides the following clarification. There is no discrepancy in statute; the statutes refer to two separate programs with two separate purposes. The TEC, §39.0545, requires each district to assign a rating of Exemplary, Recognized, Acceptable, and Unacceptable to itself and each of its campuses for each of the eight categories in community and student engagement. This requirement is addressed in §61.1023(a) - (i). The TEC, §39.0546, requires each district to choose three CaSE categories for the purpose of academic accountability and assign itself an overall rating and a rating for each category. It also requires each campus to do the same. This requirement is addressed in §61.1023(j) - (k). The language of statute has districts assigning Exemplary, Recognized, Acceptable, and Unacceptable ratings and district and campuses assigning A, B, C, D, and F ratings. While the TEA cannot prescribe the method and criteria that districts and campuses use to determine CaSE ratings, it is within the law for districts and campuses to use the same criteria for assigning ratings of A, B, C, D, or F that is used currently to assign ratings of Exemplary, Recognized, Acceptable, and Unacceptable.

Comment: Sabinal ISD inquired how to upload a link for the CaSE criteria.

Agency Response: The agency provides the following clarification. The link will be submitted through the Texas Student Data System Public Education Information Management System (TSDS PEIMS) Element ID E1578. Appendix K of the 2017-2018 Texas Education Data Standards describes this information as well as other reporting details associated with CaSE ratings.

Comment: Sabinal ISD expressed concern that it had not been provided recent guidance prior to the April 18, 2017, To the Administrator Addressed letter notifying districts of the upcoming CaSE collections.

Agency Response: The agency disagrees that notification of CaSE requirements was not provided prior to April 18, 2017. TEA staff have made several presentations over the past several months that included a discussion of the new CaSE reporting requirements. These include several presentations on the Texas Education Telecommunications Network (TETN), an accountability presentation for education service center (ESC) staff, and an accountability presentation at the Texas Assessment Conference. In addition, the TSDS PEIMS staff at TEA have provided training and notifications on this data collection to ESC staff responsible for TSDS PEIMS data submissions for their respective regions. The April 18, 2017, letter, however, was the first written notification in the form of a To The Administrator Addressed letter to districts and campuses regarding the new reporting requirements for CaSE ratings.

Comment: Sabinal ISD asked if districts start a new evaluation process for the three CaSE categories to be used in accountability.

Agency Response: The agency provides the following clarification. It is a local decision whether to use a new evaluation process for CaSE ratings. While the TEA cannot prescribe the method and criteria that districts and campuses use to determine CaSE ratings, it is within the law for districts and campuses to use the same criteria for assigning ratings of A, B, C, D, or F that is used currently to assign ratings of Exemplary, Recognized, Acceptable, and Unacceptable.

Comment: One district staff member asked if it was acceptable to extrapolate the A - F rating from staff, student, and community surveys.

Agency Response: The agency provides the following clarification. While the TEA cannot prescribe the method and criteria that districts and campuses use to determine CaSE ratings, it is within the law for districts and campuses to use the same criteria for assigning ratings of A, B, C, D, or F that is used currently to assign ratings of Exemplary, Recognized, Acceptable, and Unacceptable.

Comment: One district staff member asked if districts were to assign letter grades in the summer of 2017 or just to report the three CaSE areas and evaluation criteria.

Agency Response: The agency provides the following clarification. In June, 2017 districts will submit the three chosen CaSE categories to be included in 2018 accountability as well as the evaluation criteria. Districts must also submit CaSE ratings (Exemplary, Recognized, Acceptable, and Unacceptable) for all eight categories as required in prior years. Letter grades for the three chosen CaSE categories and the overall Domain V grade will be collected in May, 2018.

Comment: One district staff member inquired why districts must submit performance using two different systems to measure the same indicators when the TSDS PEIMS reporting does not distinguish between Exemplary and A, Recognized and B, etc.

Agency Response: The agency provides the following clarification. Section 61.1023 addresses two separate statutory requirements. The TEC, §39.0545, requires districts to report all eight categories, and the TEC, §39.0546, requires reporting three categories for each district and campus for use in academic accountability.

Comment: One district staff member asked whether the new CaSE reporting requirements apply to charter schools.

Agency Response: The agency provides the following clarification. Yes, the CaSE reporting requirements apply to charter schools. However, the CaSE reporting requirements do not apply to districts and campuses with certain characteristics because they would not have applicable data. The agency has added new subsection (l) to the rule at adoption for clarification.

Comment: Sabinal ISD inquired if the CaSE components described in the April 18, 2017, To the Administrator addressed letter were a new description for the CaSE rating categories.

Agency Response. The agency provides the following clarification. No, the term components as used in the April 18, 2017, letter refers to the existing CaSE categories.

Comment: An individual proposed amendments to the rule that would require districts to use research-based surveys to measure CaSE. The commenter stated that the surveys would be transparent and understandable and would ensure parents and families are active members in determining CaSE indicators for their campuses and districts.

Agency Response: The agency disagrees. Statute does not give the TEA authority to provide policy guidance to districts regarding the criteria that are used for CaSE evaluations.

Comment: An individual commented that academic accountability places too much weight on the State of Texas Assessments of Academic Readiness (STAAR®) examination but stated support for the inclusion of other indicators. The individual asked whether the CaSE rating would be based on the school's plan and action or parent attendance and participation. The individual also added that an A - F rating scale carries a negative connotation and that an alternative rating scale is needed. Hudson ISD also objected to the A-F rating scale.

Agency Response: The agency disagrees. The CaSE ratings will be based on locally determined criteria. Whether it is based on a school's plan and action or parent participation is a local decision. The A - F rating scale is required by the TEC, §39.0546, and the TEA does not have the legal authority to develop an alternative rating scale.

STATUTORY AUTHORITY. The amendment is adopted under the Texas Education Code (TEC), §39.0545, which requires each school district to annually evaluate its performance and the performance of each of its campuses in the area of community and student engagement using eight specific categories and also requires each district to report to the TEA the rating of Exemplary, Recognized, Acceptable, or Unacceptable that it has assigned to itself and to each of its campuses for overall performance in community and student engagement and for each of the eight categories; and TEC, §39.0546, which requires each school district and campus to annually select three of the eight categories in community and student engagement on which it will rate itself for the purpose of academic accountability ratings and also requires each district and campus to report to TEA the rating of A, B, C, D, or F that it has assigned to itself for overall performance in community and student engagement and for each of the three categories.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code, §39.0545 and §39.0546.

§61.1023.Community and Student Engagement.

(a) Each school district shall assign performance ratings to itself and to each of its campuses for community and student engagement (CaSE) indicators based on locally determined criteria.

(b) Each school district shall designate a local committee(s) to determine criteria that districts shall use to evaluate and assign a rating of Exemplary, Recognized, Acceptable, or Unacceptable for the following programs or specific categories of performance for the district and each campus:

(1) fine arts;

(2) wellness and physical education;

(3) community and parental involvement;

(4) the 21st Century Workforce Development program;

(5) the second language acquisition program;

(6) the digital learning environment;

(7) dropout prevention strategies; and

(8) educational programs for gifted and talented students.

(c) A school district may assign a rating of Not Applicable to a program or performance category in subsection (b) of this section only if it determines that the program or performance category is not applicable to the district or a campus. A district may not assign a rating of Not Applicable to all of the program or performance categories in subsection (b) of this section for the district or any campus.

(d) Each school district shall require the local committee(s) to determine the criteria that the district shall use to evaluate and assign an overall performance rating of Exemplary, Recognized, Acceptable, or Unacceptable to each campus and the district. A district may not assign a rating of Not Applicable for this indicator for the district or any campus.

(e) Each school district shall require the local committee(s) to determine the criteria that the district shall use to evaluate and assign a status of "Yes" or "No" on the record of the district and each campus regarding compliance with statutory reporting and policy requirements under the Texas Education Code, §39.0545. A district may not assign a rating of Not Applicable to this indicator for the district or for any campus.

(f) Each school district shall assign performance ratings for the CaSE indicators and compliance status as defined in subsections (b)-(e) of this section to the district and to each campus in the district, except for budgeted campuses, disciplinary alternative education program campuses, and juvenile justice alternative education program campuses. Districts are not required to assign performance ratings for the CaSE indicators and compliance status to facilities operated by the Texas Juvenile Justice Department.

(g) Each school district shall report the locally determined performance ratings and compliance status to the Texas Education Agency (TEA) in accordance with the reporting requirements and timelines specified in the Texas Student Data System Public Education Information Management System (TSDS PEIMS) Texas Education Data Standards (TEDS) applicable for that school year.

(h) Each school district shall post the locally determined performance ratings and compliance status for the district and each campus on the school district internet website no later than August 8 of each year. Districts shall post the locally determined performance ratings and compliance status for campuses that operate on a year-round calendar on the school district internet website no later than the last day of August of each year.

(i) The TEA shall report the performance ratings and compliance status for CaSE indicators reported by school districts on the TEA website no later than October 1.

(j) For the purpose of including CaSE ratings in the state academic accountability system, each school district must report to the TEA, in accordance with reporting requirements and timelines specified in subsection (g) of this section:

(1) the three CaSE indicators it has selected to be used in the state academic accountability system;

(2) the criteria that it will use to evaluate and assign ratings for its performance in the three indicators reported in paragraph (1) of this subsection and post these criteria on the district internet website;

(3) the three CaSE indicators selected by each campus to be used in the state academic accountability system;

(4) the criteria that it will use to evaluate and assign ratings for its performance in the three indicators reported in paragraph (3) of this subsection and post these criteria on each campus internet website;

(5) the rating of A, B, C, D, or F that the district has assigned to itself for both overall performance and for each of the three indicators reported in paragraph (1) of this subsection; and

(6) the rating of A, B, C, D, or F that each campus has assigned to itself for both overall performance and for each of the three indicators reported in paragraph (3) of this subsection.

(k) For the purpose of including CaSE ratings in the state academic accountability system, a school district or campus shall not assign to itself a rating of Not Applicable for any of the three indicators reported in subsection (j) of this section.

(l) A school district or campus with the following characteristics is not subject to subsections (j) and (k) of this section.

(1) The district or campus serves only students enrolled in early education.

(2) The district or campus has no data in the accountability subset.

(3) The district or campus has insufficient data to assign a CaSE rating.

(4) The district or campus is a residential facility or operates only residential facilities.

(5) The district or campus is a juvenile justice alternative education program.

(6) The district or campus is a disciplinary alternative education program.

(7) The district or campus is operated by the Texas Juvenile Justice Department.

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 May 19, 2017.

TRD-201702030

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: June 8, 2017

Proposal publication date: March 31, 2017

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


CHAPTER 100. CHARTERS

SUBCHAPTER AA. COMMISSIONER'S RULES CONCERNING OPEN-ENROLLMENT CHARTER SCHOOLS

DIVISION 2. COMMISSIONER ACTION AND INTERVENTION

19 TAC §100.1033

The Texas Education Agency (TEA) adopts an amendment to §100.1033, concerning open-enrollment charter schools. The amendment is adopted with changes to the proposed text as published in the November 25, 2016, issue of the Texas Register (41 TexReg 9220). The adopted amendment modifies the rule to comply with statutory provisions implemented as a result of House Bill (HB) 1842, 84th Texas Legislature, 2015, and to more closely match other existing statutory provisions, including the reauthorization of the No Child Left Behind Act as the Every Student Succeeds Act (ESSA).

REASONED JUSTIFICATION. Section 100.1033 was established to allow for changes to a charter holder's contract, including the growth or expansion of an existing charter school. The rule was last amended effective September 18, 2014, to make changes to the charter amendment process and the types of amendments available.

The adopted amendment to 19 TAC §100.1033 provides clarity and aligns the section with provisions in the Texas Education Code (TEC) as well as ESSA. The changes provide clarity around the consideration of three distinct categories of charter school expansions and their corresponding criteria: regular expansions, expedited expansions, and high-quality campus designations.

The amendment was modified at adoption as follows.

In response to public comment, §100.1033(b)(9)(A)(ii) was amended to provide that an additional year for implementation of an expansion may be granted if the requestor demonstrates a need for the additional year.

In response to public comment, §100.1033(b)(9)(A)(vi) was deleted.

In response to public comment, §100.1033(b)(9)(A)(vii), renumbered as subsection (b)(9)(A)(vi), was amended to clarify the meaning of "prudent" as used in the section. Subclause (XI) under clause (vi) was also amended to clarify the meaning of "prudent" and to clarify that the statement described by the subclause is a required component of a charter school's business plan.

Section 100.1033(b)(10)(C) was amended to remove the requirement for mailing the letters of notification of impact. Evidence of letters of notification to the relevant districts may be electronic.

In response to public comment, §100.1033(b)(10)(D)(ii) was amended to clarify that the charter school under which a proposed new campus would be assigned must currently have at least 50% of students in tested grades.

In response to public comment, §100.1033(b)(10)(D)(ii) and (E)(i) were amended to provide for special consideration for charter schools serving students in prekindergarten.

Section 100.1033(b)(10)(D)(iii) was amended to add language requiring charter holders seeking to expand to provide notification to affected school districts.

In response to public comment, §100.1033(b)(11)(A)(ii)(II) was amended to provide that an additional year for implementation of an expedited expansion may be granted if the requestor demonstrates a need for the additional year.

In response to public comment, §100.1033(b)(11)(A)(ii)(III)(-a-) was amended to remove language requiring charter holders seeking an expedited expansion to notify superintendents of school districts affected by the expedited expansion.

In response to public comment, §100.1033(b)(11)(A)(ii)(IV) was amended to clarify the meaning of "prudent" as used in the section.

In response to public comment, §100.1033(b)(12) was amended to restore "new school designation" as an expansion amendment under the rule and align current alternative education accountability thresholds.

Due to the restoration of "new school designation" as §100.1033(b)(12), high-quality campus designation provisions were adopted as new §100.1033(b)(13). In response to public comment, new §100.1033(b)(13)(B)(ii) was amended to replace the phrase "new facility" with "separate facility."

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began November 25, 2016, and ended December 27, 2016. Following is a summary of public comments received and corresponding agency responses.

Comment: Concerning §100.1033(b)(6), Texas Charter School Association (TCSA) commented that the limitation to relocate a campus within 25 miles of the existing campus is arbitrary and inconsistent with TEC, Chapter 12, and 19 TAC Chapter 100, citing that there is no statutory language limiting relocation except that the charter must be within the charter school's approved geographic boundary.

Agency Response: The agency disagrees. The rule's stated purpose for a relocation amendment is to serve "the same students and grade levels without a significant disruption to the delivery of the educational services." Therefore, a limitation to relocate a campus within 25 miles of the existing campus is not arbitrary. A revision to a charter is made solely through the approval of the commissioner of education. Allowing a campus to relocate beyond a distance of 25 miles may not ensure the opportunity for currently enrolled students to attend the campus at its new location. The consequence of a relocation where a majority of students in tested grades changes would be an accountability rating that is no longer reflective of the students in attendance at that campus. A distance beyond 25 miles is prohibitive to families and may not be in the best interest of students electing to go to the original campus location. Any inconsistency in 19 TAC §100.1001(3)(D) will be addressed and aligned to reflect the change.

Comment: Concerning §100.1033(b)(6), Ki Charter commented that any rule setting a limit on how far a charter may expand would stifle charters who serve underrepresented populations and would hinder residential treatment facilities from soliciting a charter school that they determine would best fit their needs.

Agency Response: The agency disagrees and provides the following clarification. Section 100.1033(b)(6) refers solely to the relocation of a campus and not the expansion of a campus. As such, the limitation to relocate a campus within 25 miles of the existing campus is not arbitrary. A revision to a charter is made solely through the approval of the commissioner of education. Allowing a campus to relocate beyond a distance of 25 miles may not ensure the opportunity for currently enrolled students to attend the campus at its new location. The consequence of a relocation where a majority of students in tested grades changes would be an accountability rating that is no longer reflective of the students in attendance at that campus. A distance beyond 25 miles is prohibitive to families and may not be in the best interest of students electing to go to the original campus location.

Comment: Concerning §100.1033(b)(6), ResponsiveEd Solutions (RES) stated that a 25-mile limit on relocation would be inconsistent with the TEC, Chapter 12, because there is no statutory limit on relocation. RES recommended that the geographic limit for relocation be removed. RES also suggested that the 25-mile limit on site expansion in §100.1033(b)(6) should be replaced with 50 miles.

Agency Response: The agency disagrees and provides the following clarification. The explicit purpose of §100.1033(b)(6) is to ensure that relocated charter schools serve "the same students and grade levels without a significant disruption to the delivery of the educational services." A 25-mile limitation on relocation of a campus is consistent with that purpose as well as the TEC, Chapter 12. Further, §100.1033(b)(6) is concerned with relocation, not site expansion, so the commenter's recommendation regarding extending site expansion to 50 miles is not applicable to this section.

Comment: Concerning §100.1033(b)(6), Texas College Preparatory Academies (TCPA) stated that §100.1033(b)(6) restricts a campus relocation to 25 miles from the existing campus and that the proposed limitation is inconsistent with the TEC, Chapter 12. TCPA stated that other than the requirement that a charter school be within the geographic boundary approved by the open-enrollment charter, there is no statutory limit on the relocation of a charter campus. TCPA recommended that TEA remove the 25-mile limitation for relocating a charter school campus. TCPA also recommended that in order to be consistent with the current rule, the proposed standard for a site expansion in §100.1033(b)(6) be replaced with 50 miles to be consistent with the TEC, Chapter 12, and 19 TAC §100.1001(3)(D).

Agency Response: The agency disagrees. The limitation to relocate a campus within 25 miles of the existing campus is not arbitrary. A revision to a charter is made solely through the approval of the commissioner of education. Allowing a campus to relocate beyond a distance of 25 miles may not ensure the opportunity for currently enrolled students to attend the campus at its new location. The consequence of a relocation where a majority of students in tested grades changes would be an accountability rating that is no longer reflective of the students in attendance at that campus. A distance beyond 25 miles is prohibitive to families and may not be in the best interest of students electing to go to the original campus location. Any inconsistency in 19 TAC §100.1001(3)(D) will be addressed and aligned to reflect the change.

Comment: Concerning §100.1033(b)(9)(A)(ii), IDEA Public Schools; Uplift Education; RES; Texas League of Community Charter Schools; Austin Achieve; International Leadership of Texas; KIPP Houston; Schulman, Lopez & Hoffer; and TCSA commented that limiting the expansion amendment approval period to the year preceding the school year in which the expansion will be effective is inadequate given the timeline needed to locate appropriate facilities for a school campus, complete renovation, or construct a suitable facility.

Agency Response: The agency agrees and has amended the language at adoption to allow for an additional year (if requested) for charter schools applying to add additional campuses.

Comment: Concerning §100.1033(b)(9)(A)(iii), Raise Your Hand Texas (RYHT) expressed support for maintaining the language that allows the commissioner to approve an expansion amendment if 90% of the campuses for a given charter school are rated academically acceptable or higher for the most recent year of ratings. RYHT stated that it supports this standard as an important control on the quality of charter programs. However, RYHT expressed concern that only considering campuses and not the number of students at those campuses could mask a performance issue that should be addressed prior to expansion. RYHT recommended that the current 90% standard be supplemented by a requirement that campuses enrolling 90% of the charter's students also have an acceptable rating to qualify for expansion.

Agency Response: The agency appreciates the support of RYHT's efforts to ensure the educational quality offered to students in charter schools and agrees on the priority of providing high-quality education. The agency disagrees that the supplemental requirement is needed. The 90% provision ensures the academic ratings for charter schools seeking to expand and allows for growth without placing an undue burden on charter operators and agency staff.

Comment: Concerning §100.1033(b)(9)(A)(iii), RES commented that requiring 90% of the campuses operated under the charter school to be academically acceptable in order to expand restricts innovation and discourages charters from serving challenging populations. RES suggested applying the 90% standard to campuses that have been in operation for more than three years to allow charter holders to continue expanding without being penalized for opening new campuses in harder-to-serve communities.

Agency Response: The agency disagrees. Focusing on providing quality education for all students requires the campuses to reflect an acceptable rating on an annual basis whether the campus is a new campus or an established campus.

Comment: Concerning §100.1033(b)(9)(A)(vi), RES suggested that TEA remove the requirement for charter holders to notify the superintendent separate from the board of trustees of a school district. RES stated that this requirement is additional to the statutory requirement and is an unnecessary requirement as the TEC, §12.1101, already requires a charter holder to notify the board of trustees for each school district and each member of the legislature that represents the geographic area to be served by the proposed campus.

Agency Response: The agency agrees that there is no requirement to notify both the boards of trustees and superintendents and has removed the requirement that affected school districts be notified. The agency recommends that the boards of trustees and superintendents be notified collectively and will reflect that recommendation in the instructions for notification and associated templates.

Comment: Concerning proposed §100.1033(b)(9)(A)(vii), TCSA and Texas League of Community Charter Schools stated that the proposed amendment requires the governing board of a charter school to provide a statement that the growth proposed is prudent. TCSA stated that the proposed "prudent" standard is vague, not supported by statute or law, and unnecessary. TCSA suggested that if the "prudent" standard is adopted, language should be added to clarify how a board of directors demonstrates satisfaction of this subjective standard other than by board action and vote. TCSA provided similar comments regarding §100.1033(b)(9)(A)(vii)(XI).

Agency Response: The agency partially agrees. The term "prudent" may be confusing for charter schools seeking to comply with the rule. By requiring a charter school's governing board to determine that an expansion amendment request is prudent, the agency is requiring the governing board to determine the appropriateness of the expansion request in light of that charter school's business plan. To clarify this point, the agency has amended the language in §100.1033(b)(9)(A)(vi) and §100.1033(b)(9)(A)(vi)(XI) at adoption. The agency has also amended similar language in §100.1033(b)(11)(A)(ii)(IV).

Comment: Concerning §100.1033(b)(10)(D)(ii) and (E)(i), TCSA expressed approval of the addition of subparagraph (E) outlining additional site expansions. However, TCSA recommended adding "currently" to §100.1033(b)(10)(D)(ii) so that it reads "the charter school currently has at least 50% of the student population in tested grades," to be consistent with §100.1033(b)(10)(E)(i) and §100.1033(b)(11)(A)(i)(I).

Agency Response: The agency agrees and has added "currently" in §100.1033(b)(10)(D)(ii).

Comment: Concerning §100.1033(b)(10)(D)(ii) and (E)(i), TCSA recommended that language be amended to include the phrase, "or has had at least 50% of the students in the grades assessed enrolled in the school for at least three years." TCSA supported its recommendation by comparing expansion amendments described in §100.1033(b)(10)(D)(ii) and (E)(i) to requirements for expedited expansion pursuant to §100.1033(b)(11)(A)(i) and TEC, §12.101(b-4). Addition of such language, TCSA maintained, would enable early childhood education charter schools entering their fourth year to serve more students in need in the lower grades and prekindergarten.

Agency Response: The agency partially agrees. Neither §100.1033(b)(11)(A)(i) nor TEC, §12.101(b-4), are applicable because they relate to special rules reserved for campuses that qualify for the streamlined process contemplated for expedited expansion. Nevertheless, the agency does agree that special consideration may be made for schools serving students in prekindergarten. To that end, the agency may permit campus and site expansion under §100.1033(b)(10)(D)(ii) and (E)(i) when a prekindergarten charter school has demonstrated acceptable performance on a commissioner-approved prekindergarten monitoring tool as determined under 19 TAC §102.1003, High-Quality Prekindergarten Grant Program. The agency has amended §100.1033(b)(10)(D)(ii) and (E)(i) at adoption to include such language.

Comment: Concerning §100.1033(b)(10)(D) and (E), Wayside Schools commented that clarifying language was needed to indicate that campus expansions and site expansions may be permitted only under pre-existing campuses with pre-existing campus district numbers.

Agency Response: The agency disagrees and provides the following clarification. A charter school campus, as used in §100.1033(b)(10)(D), refers to an organizational unit administered by a charter school and is assigned a county district campus number (CDCN). A charter school site, as used in §100.1033(b)(10)(E), refers to an organizational unit tied to or associated with a pre-existing campus. The site is assigned a site number under the campus, with administrative personnel and street address that are separate from, but associated with, the particular campus.

Comment: Concerning §100.1033(b)(10)(E)(i), TCSA commented in support of the addition of subparagraph (E) but recommended subparagraph (E)(i) be amended to read, "the charter school campus under which the proposed new site will be assigned currently has at least 50% of the student population in tested grades, or has had at least 50% of the students in the grades assessed enrolled in the school for at least three years." TCSA further stated that by adding the same requirements as currently stated for quality expansion under §100.1033(b)(11)(A)(i) and in TEC, §12.101(b-4), early childhood education charter schools entering at least their fourth year will be able to serve more students in need in the lower grades and prekindergarten through a site expansion amendment.

Agency Response: The agency partially agrees. The use of sites permits a charter school that has enrollment increases beyond current facility capacity to accommodate students. This type of expansion is limited and not the same as expedited expansion. As such, the language is not similar.

Comment: Concerning §100.1033(b)(10)(E)(ii), TCSA noted that the 25-mile limitation is arbitrary and inconsistent with the TEC, Chapter 12, and 19 TAC Chapter 100. TCSA stated that 19 TAC §100.1001(3)(D) also defines a charter site as "an organizational unit of a charter school with administrative personnel identified by a separate street address within 50 miles of the campus with which it is associated and fully described in the open-enrollment charter." TCSA further stated that the 25-mile limitation for a new site bars charter schools operating at residential treatment centers from expanding to a new site since residential treatment centers are often separated by more than 25 miles. TCSA recommended that TEA replace the 25-mile limitation for a site expansion with 50 miles to be consistent with the TEC, Chapter 12, and 19 TAC §100.1001(3)(D). Finally, TCSA recommended that charters operating at residential treatment centers be exempt from the 50-mile limitation for relocation and site expansion amendments to ensure they can access site expansions.

Agency Response: The agency disagrees. The 25-mile limitation is necessary to ensure adequate administrative support and management. An additional consideration is that it allows for parents with students at two locations more accessibility. Any inconsistency in 19 TAC §100.1001(3)(D) will be addressed and aligned to reflect the change.

Comment: Concerning §100.1033(b)(10)(E)(ii), Uplift Education noted confusion on the limitation of an expansion amendment for a new site to a site located within 25 miles of the campus with which it is associated. Uplift Education asked if the 25 miles would be measured from the central office or the nearest campus. Uplift Education stated that the reason for the change is not entirely clear and further stated that 19 TAC §100.1001(3)(D) refers to a site as an organizational unit of a charter school with administrative personnel within 50 miles of the campus with which it is associated. Uplift Education supported the comments made by TCSA to the proposed changes.

Agency Response: The agency offers the following clarification. Sites are educational units associated with a charter campus. The provision for sites had previously been removed and is being reintroduced based on demonstrated need. Any inconsistency in 19 TAC §100.1001(3)(D) will be addressed and aligned to reflect the change.

Comment: Concerning §100.1033(b)(10)(E), RYHT commented that the agency should take care to ensure that the addition of sites not be used as a mechanism to circumvent the charter amendment process or to avoid accountability. RYHT stated that for sites to be considered part of the same campus, they should be within close enough proximity to allow the sites to share administrative staff and serve as feeder schools for one another. RYHT suggested amending 19 TAC §100.1033(B)(10)(E) to require that new sites be within 10 miles of the campus with which they are associated rather than 25 miles because a common administrative staff cannot be expected to deal with sudden issues at a location 25 miles from their office.

Agency Response: The agency agrees that the closer the site is to its associated campus, the more likely adequate administrative support would be available, the student demographics would be similar or the same, and parents would have greater accessibility. The provision for sites is not for stand-alone educational units but rather a need to address facility restrictions. The 25-mile limitation is a median distance.

Comment: Concerning §100.1033(b)(10)(E)(ii), RES stated that the provision restricts a campus site expansion to 25 miles from the existing campus and that the proposed limitation is inconsistent with the TEC, Chapter 12. RES recommended that the proposed standard for a site expansion be replaced with 50 miles to be consistent with the TEC, Chapter 12, and 19 TAC §100.1001(3)(D).

Agency Response: The agency disagrees. The 25-mile limitation is a median distance. Allowing a campus to add a new site beyond a distance of 25 miles may not ensure the opportunity for currently enrolled students to attend the new site. The consequence of a new site where a majority of students in tested grades changes would be an accountability rating that is no longer reflective of the students in attendance at that campus overall. A distance beyond 25 miles is prohibitive to families and may not be in the best interest of students who had elected to go to the original campus location. Any inconsistency in 19 TAC §100.1001(3)(D) will be addressed and aligned to reflect this change.

Comment: Concerning §100.1033(b)(11)(A)(ii)(II), RES and TCSA commented that under the proposed changes that limit the expedited expansion amendment approval period to the year preceding the school year in which the expansion will be effective is inadequate given the timeline needed to locate appropriate facilities for a school campus, complete renovation, or construct a suitable facility.

Agency Response: The agency agrees and has amended the language at adoption to allow for an additional year (if requested) for charter schools applying to add additional campuses.

Comment: Concerning §100.1033(b)(11)(A)(ii)(III), TCSA suggested that TEA remove the requirement for charter holders seeking an expedited expansion to notify the superintendent separate from the board of trustees of a school district. TCSA stated that this requirement is additional to the statutory requirement and is unnecessary as the TEC, §12.1101, already requires a charter holder to notify the board of trustees for each school district and each member of the legislature that represents the geographic area to be served by the proposed campus.

Agency Response: The agency agrees that the provisions in statute for notification apply to charter applicants (TEC, §12.1101) and notice to the commissioner for expedited charter amendments (TEC, §12.101(b-4)). The statutory requirements do not apply to notice to district superintendents pursuant to expedited charter amendments. The agency has removed the language at adoption requiring charter schools to notify superintendents as it is not statutorily required.

Comment: Concerning §100.1033(b)(11)(A)(ii), RYHT suggested requiring charter schools seeking an expansion amendment to submit evidence that they notified all affected school districts no later than one year prior to the proposed opening of a new campus. RYHT further stated that notice to the school district should include the name of the charter operator requesting expansion; street map indicating a radius no greater than 10 miles inside which the new campus will be located; the grade levels to be served; the anticipated maximum enrollment of the new campus; the anticipated opening date for the new campus; and a statement of the educational mission of the new campus. RYHT further requested that upon receipt of a charter amendment, TEA notify affected school districts that they have the opportunity to provide the commissioner with written feedback about the potential impact of the proposed expansion and that TEA should also promptly notify all affected school districts when it approves an expansion amendment and provide a copy of the amendment, including the street address of any additional campus or site.

Agency Response: The agency disagrees. The measures proposed by RYHT are not required by statute. However, the agency will examine the current impact statement template to ensure notification is more transparent.

Comment: Concerning §100.1033(b)(11)(B), the TCSA recommended the language be changed to read, "Not later than the 60th day after the date the charter holder completes an expedited expansion amendment, the commissioner will provide written notice to the charter holder if the charter holder does not satisfy the requirements of TEC, §12.104(b-4)."

Agency Response: The agency disagrees. The rule contemplates that charter schools applying for an expedited expansion amendment must affirmatively prove they have met each criterion for the amendment, and §100.1033(b)(11)(B) is written to reflect this requirement.

Comment: Concerning §100.1033(b)(12), TCSA, KIPP Houston, RES, and Ki Charter commented that the proposed language eliminates the availability of the charter school program (CSP) grant to schools evaluated under the alternative education accountability (AEA) procedures and are not in line with the ESSA requirements. TCSA also asserted that the proposed language changes §100.1033(b)(12)(A)(ii) to require a charter holder to receive the highest or second highest district rating for three of the last five years with all of the campuses instead of 75% of the campuses operated under the charter receiving the highest or second highest rating. TCSA commented that this change is inconsistent with the language requiring charter holders to meet all requirements applicable to an expansion amendment, as the expansion amendment only requires at least 90% of the campuses operated under the charter school to be academically acceptable.

Agency Response: The agency provides the following clarification. The existing Charter School Start-Up grant was issued under the No Child Left Behind Act. At adoption, the agency has reinstated the language relating to new school designation with one change, reflected in the AEA threshold. The state's threshold for AEA is currently at 35%, and the amended language reflects this minimum threshold. A new subsection (b)(13) relating to high-quality campus designation addresses the changes to the federal law under ESSA and the new Expanding Opportunity through Quality Charter Schools provision.

Comment: Concerning proposed §100.1033(b)(12)(B)(ii), TCSA recommended that TEA remove the phrase "new facility." TCSA stated that with charter schools not receiving facilities funding, it is not appropriate to expect charter schools to build or obtain new facilities in order to qualify for the high-quality campus designation. Additionally, TCSA commented that a "new facility" is an unnecessary requirement since §100.1033(b)(12)(D) outlines what the commissioner will consider to determine whether a separate and distinct campus exists.

Agency Response: The agency partially agrees. The expectation for charter schools receiving the CSP grant is for separate and distinct campuses. The collocation of two campuses presents challenges for the maintenance of "separate and distinct." At adoption, the agency has replaced the term "new facility" with "separate facility" and will continue to use the outline requirements in §100.1033(b)(12)(D) to make determinations. This language is necessary and included in the rule to require a separate and distinct campus, tracking the ESSA's definition of what it means to "replicate" an existing high-quality charter school: "… a new charter school, or a new campus of a high-quality charter school, based on the educational model of an existing high-quality charter school, under an existing charter or an additional charter, if permitted or required by State law." (ESSA §4305(c)(9).)

Comment: Concerning §100.1033(b)(12), Texas League of Community Charter Schools stated that if the rule is adopted as proposed, it will increase the annual audit costs for all charter holders seeking a high-quality campus designation, as additional services will be required of a charter's independent auditor. To the degree that the audit requirement is attributable to a federal requirement, the commenter suggested that the proposed rule be amended to note that the separate school campus audit should be paid from federal grant funds. If the separate campus audit is not to be paid from federal grant funds, the commenter suggested that the proposed rule be amended to require only a separate financial statement in the charter holder's annual audit report for each campus seeking a high-quality campus designation and that the requirement for a separate financial audit of the school campus be removed. The commenter stated this would allow for the charter holder to better spend its funding in furtherance of the school's educational mission.

Agency Response: The agency disagrees. This language is necessary and included in the rule to require a separate and distinct performance agreement for each high-quality campus. This is consistent with the requirements of ESSA, §4304(h), concerning financial audits of grant-receiving entities, as well as allowable costs associated with this federal funding.

Comment: Concerning §100.1033(b)(13)(C)(vi) and (D), renumbered as subsection (b)(14)(C)(vi) and (D), TCSA stated that "the additional language referring to the superintendent or, as applicable, the administrator serving as the educational leader and" chief executive officer creates confusion regarding which position or positions the board of directors of the charter holder must retain for initial or final authority regarding employment decisions. TCSA recommended that for clarification the language be limited to "chief executive officer as defined by §100.1001(17) of this title" in order to simplify the rule and make clear who the board oversees and what powers and duties must be retained by the board and superintendent.

Agency Response: The agency disagrees. 19 TAC §100.1001(17) addresses the term "chief executive officer" but is deliberately expansive to include other personnel that might occupy a similar role, such as a superintendent or the administrator serving as the educational leader of a charter school. The language of §100.1033(b)(14)(C)(vi) and (D) is consistent with that rule.

STATUTORY AUTHORITY. The amendment is adopted under the Texas Education Code (TEC), §12.101(b-4), as amended by House Bill 1842, 84th Texas Legislature, 2015, which provides autonomy for a charter holder to establish an expedited campus if the charter school meets the criteria outlined in the statute and the commissioner of education does not determine the charter school does not satisfy the requirements; and TEC, §12.114, which provides for the growth or revision of a charter through the amendment process and stipulates that a revision or amendment to the charter school contract may only be made with the approval of the commissioner of education not later than 60 days following the request.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code, §12.101(b-4) and §12.114.

§100.1033.Charter Amendment.

(a) Amendments in writing. Subject to the requirements of this section, the terms of an open-enrollment charter may be revised with the consent of the charter holder by written amendment approved by the commissioner of education in writing.

(b) Types of amendments. An amendment includes any change to the terms of an open-enrollment charter, including the following: maximum enrollment, grade levels, geographic boundaries, approved campus(es), approved sites, relocation of campus, charter holder name, charter school (district) name, charter campus name, charter holder governance, articles of incorporation, corporate bylaws, management company, admission policy, or the educational program of the school. An amendment must be approved by the commissioner under this subsection. Expanding prior to receiving the commissioner's approval will have financial consequences as outlined in §100.1041(d)(1) of this title (relating to State Funding).

(1) Charter amendment request. Prior to implementation, the charter holder shall file a request, in the form prescribed, with the Texas Education Agency (TEA) division responsible for charter schools. As applicable, the request shall set forth the text and page references, or a photocopy, of the current open-enrollment charter language to be changed, and the text proposed as the new open-enrollment charter language. The request must be attached to a written resolution adopted by the governing body of the charter holder and signed by a majority of the members indicating approval of the requested amendment.

(2) Timeline. All charter amendment requests, with the exception of expansion amendments, may be filed with the commissioner at any time.

(3) Relevant information considered. As directed by the commissioner, a charter holder requesting a substantive amendment shall submit current information required by the prescribed amendment form, as well as any other information requested by the commissioner. In considering the amendment request, the commissioner may consider any relevant information concerning the charter holder, including its student and other performance; compliance, staff, financial, and organizational data; and other information.

(4) Best interest of students. The commissioner may approve an amendment only if the charter holder meets all applicable requirements, and only if the commissioner determines that the amendment is in the best interest of the students enrolled in the charter school. The commissioner may consider the performance of all charters operated by the same charter holder in the decision to finally grant or deny an amendment.

(5) Conditional approval. The commissioner may grant the amendment without condition, or may require compliance with such conditions and/or requirements as may be in the best interest of the students enrolled in the charter school. An amendment receiving conditional approval shall not be effective until a written resolution accepting all conditions and/or requirements, adopted by the governing body of the charter holder and signed by the members voting in favor, is filed with the TEA division responsible for charter schools.

(6) Relocation amendment. An amendment to relocate an existing campus or site with the same administration and staff while still serving the same students and grade levels is not an expansion amendment subject to paragraphs (9)(A) and (10)(D) of this subsection. An amendment to relocate solely permits a charter holder to relocate an existing campus or site to an alternate address while serving the same students and grade levels without a significant disruption to the delivery of the educational services. The alternate address in the relocation request shall not be in excess of 25 miles from the existing campus address.

(7) Ineligibility. The commissioner will not consider any amendment that is submitted by a charter holder that has been notified by the commissioner of the intent to revoke or nonrenew the charter. Nothing in this subsection limits the commissioner's authority to accept the surrender of a charter.

(8) Amendment determination. The commissioner's decision on an amendment request shall be final and may not be appealed. The same amendment request may not be submitted prior to the first anniversary of the original submitted amendment.

(9) Expansion amendment standards. An expansion amendment is an amendment that permits a charter school to increase its maximum allowable enrollment, extend the grade levels it serves, change its geographic boundaries, or add a campus or site.

(A) In addition to the requirements of this subsection, the commissioner may approve an expansion amendment only if:

(i) the expansion will be effective no earlier than the start of the fourth full school year at the affected charter school. This restriction does not apply if the affected charter school has a rating of "academically acceptable" as defined by §100.1001(26) of this title (relating to Definitions) as its most recent rating and is operated by a charter holder that operates multiple charter campuses and all of that charter holder's most recent campus ratings are "academically acceptable" as defined by §100.1001(26) of this title;

(ii) the amendment request under paragraph (1) of this subsection is received no earlier than the first day of February and no later than the first day of April preceding the school year in which the expansion will be effective. An additional year to implement the expansion may be granted if the expansion amendment requestor demonstrates a need for the additional year;

(iii) the most recent district rating for the charter school is "academically acceptable" and the most recent campus rating for at least 90% of the campuses operated under the charter school is "academically acceptable" as defined by §100.1001(26) of this title;

(iv) the most recent district financial accountability rating for the charter school in the Financial Integrity Rating System of Texas (FIRST) for Charter Schools is "satisfactory" as defined by §100.1001(27) of this title;

(v) the charter school has an accreditation status of Accredited;

(vi) before voting to request an expansion amendment, the charter holder governing board has considered a business plan, has determined by majority vote of the board that the growth proposed is financially prudent relative to the financial and operational strength of the charter school, and includes such a statement in the board resolution. Upon request by the TEA, the business plan must be filed within ten business days. The business plan must be comprised of the following components:

(I) a statement discussing the need for the expansion;

(II) a statement discussing the current and projected financial condition of the charter holder and charter school;

(III) an unaudited statement of financial position for the current fiscal year;

(IV) an unaudited statement of financial activities for the current fiscal year;

(V) an unaudited statement of cash flows for the current fiscal year;

(VI) a pro forma budget that includes the costs of operating the charter school, including the implementation of the expansion amendment;

(VII) a statement or schedule that identifies the assumptions used to calculate the charter school's estimated Foundation School Program revenues;

(VIII) a statement discussing the use of debt instruments to finance part or all of the charter school's incremental costs;

(IX) a statement discussing the incremental cost of acquiring additional facilities, furniture, and equipment to accommodate the anticipated increase in student enrollment;

(X) a statement discussing the incremental cost of additional on-site personnel and identifying the additional number of full-time equivalents that will be employed; and

(XI) the required statement that the growth proposed is financially prudent relative to the financial and operational strength of the charter school;

(vii) the charter holder submits, for the most recent year of operation, copies of the compliance information relating to §100.1035 of this title (relating to Compliance Records on Nepotism, Conflicts of Interest, and Restrictions on Serving) to include documents such as affidavits identifying a board member's substantial interest in a business entity or in real property, documentation of a board member's abstention from voting in the case of potential conflicts of interest, and affidavits or other documents identifying other family members within the third degree of affinity or consanguinity who serve as board members and/or employees;

(viii) the commissioner determines that the amendment is in the best interest of the students of Texas; and

(ix) the charter holder meets all other requirements applicable to expansion amendment requests and other amendments.

(B) Notice of the approval or disapproval of expansion amendments will be made by the commissioner within 60 days of the date the charter holder submits a completed expansion amendment request. The commissioner may provide notice electronically. The commissioner shall specify the earliest effective date for implementation of the expansion. In addition, the commissioner may require compliance with such conditions and/or requirements that may be in the best interest of the students of Texas.

(10) Expansion amendments.

(A) Maximum enrollment. In addition to the requirements of paragraph (9)(A) of this subsection, the commissioner may approve an expansion amendment request seeking to increase maximum allowable enrollment only if within the calendar year preceding the request, the charter holder has not requested another expansion amendment seeking to increase maximum allowable enrollment.

(B) Grade span. In addition to the requirements of paragraph (9)(A) of this subsection, the commissioner may approve an expansion amendment request seeking to extend the grade levels it serves only if it is accompanied by appropriate educational plans for the additional grade levels in accordance with Chapter 74, Subchapter A, of this title (relating to Required Curriculum), and such plan has been reviewed and approved by the charter governing board.

(C) Geographic boundary. In addition to the requirements of paragraph (9)(A) of this subsection, the commissioner may approve an expansion amendment request seeking to expand the geographic boundaries of the charter school only if it is accompanied by evidence of notification, electronic or otherwise, to the relevant district(s).

(D) Additional campus. In addition to the requirements of paragraph (9)(A) of this subsection, the commissioner may approve an expansion amendment request seeking to add a new campus only if it meets the following criteria:

(i) the charter holder has operated at least one charter school campus in Texas for a minimum of three consecutive years;

(ii) the charter school under which the proposed new campus will be assigned currently has at least 50% of the student population in tested grades. For charter schools serving students in prekindergarten, the charter school may include the students in prekindergarten to count toward the 50% requirement if the charter school can demonstrate acceptable performance on a commissioner-approved prekindergarten assessment or monitoring tool as determined under §102.1003 of this title (relating to High-Quality Prekindergarten Grant Program) and the addition of the prekindergarten students meets the 50% threshold; and

(iii) the charter holder has provided evidence, via certified mail documented by return receipt, that each school district affected by the expansion was sent a notice to the district's central office of the proposed location and address of any new campuses or sites, including proposed grade levels and likely maximum enrollment.

(E) Additional site. In addition to the requirements of paragraph (9)(A) of this subsection, the commissioner may approve an expansion amendment request seeking to add a new site only if it meets the following criteria:

(i) the charter school campus under which the proposed new site will be assigned currently has at least 50% of the student population in tested grades. For charter school campuses serving students in prekindergarten, the charter school may include the students in prekindergarten to count toward the 50% requirement if the charter school can demonstrate acceptable performance on a commissioner-approved prekindergarten assessment or monitoring tool as determined under §102.1003 of this title and the addition of the prekindergarten students meets the 50% threshold; and

(ii) the site will be located within 25 miles of the campus with which it is associated.

(11) Expedited expansion. An expedited expansion amendment allows for the establishment of a new charter campus under TEC, §12.101(b-4).

(A) In order to submit an expedited expansion amendment, the charter school must meet the following requirements.

(i) The charter school must have an accreditation status of Accredited and meet the following criteria:

(I) currently has at least 50% of its student population in grades assessed under TEC, Chapter 39, Subchapter B, or has had at least 50% of the students in the grades assessed enrolled in the school for at least three years; and

(II) is currently evaluated under the standard accountability procedures for evaluation under TEC, Chapter 39, and received a district rating in the highest or second highest performance rating category under TEC, Chapter 39, Subchapter C, for three of the last five years with:

(-a-) at least 75% of the campuses rated under the charter school also receiving a rating in the highest or second highest performance rating category in the most recent ratings; and

(-b-) no campus receiving a rating in the lowest performance rating category in the most recent ratings.

(ii) The charter holder must submit an expedited expansion amendment request in the time, manner, and form prescribed to the TEA division responsible for charter schools. The expansion amendment request will be:

(I) effective no earlier than the start of the fourth full school year at the affected charter school;

(II) received no earlier than the first day of February and no later than the first day of April preceding the school year in which the expansion will be effective. An additional year to implement the expansion may be granted if the expansion amendment requestor demonstrates a need for the additional year;

(III) communicated via certified mail with a return receipt to the following entities:

(-a-) the board of trustees of each school district affected by the expedited expansion as described in the amendment request form; and

(-b-) the members of the legislature who represent the geographic area affected by the expedited expansion as described in the amendment request form, noting that each entity has an opportunity to submit a statement regarding the impact of the amendment to the TEA division responsible for charter schools;

(IV) voted on by the charter holder governing body after consideration of a business plan determined by majority vote of the board affirming the growth proposed in the business plan is financially prudent relative to the financial and operational strength of the charter school. Such a statement must be included in the board resolution. Upon request by the TEA, the business plan must be filed within ten business days; and

(V) submitted with copies of the most recent compliance information relating to §100.1035 of this title to include documents such as affidavits identifying a board member's substantial interest in a business entity or in real property, documentation of a board member's abstention from voting in the case of potential conflicts of interest, and affidavits or other documents identifying other family members within the third degree of affinity or consanguinity who serve as board members and/or employees.

(B) Notice of eligibility to establish an expedited campus under this section will be made by the commissioner within 60 days of the date the charter holder submits a completed expedited expansion amendment.

(12) New school designation. A new school designation is an expansion amendment that permits a charter holder to establish an additional charter school campus under an existing open-enrollment charter school pursuant to federal non-regulatory guidance in the Elementary and Secondary Education Act (ESEA), Section 5202(d)(1), as amended. Charter holders of charter schools that receive new school designations from the commissioner will be eligible to participate in the charter school program competitive grant process when federal funding for the Texas charter school program is available.

(A) The commissioner may approve a new school designation for a charter only if:

(i) the charter holder meets all requirements applicable to an expansion amendment set forth in this section and has operated at least one charter school campus in Texas for a minimum of five consecutive years;

(ii) the charter school has been evaluated under the accountability rating system established in §97.1001 of this title (relating to Accountability Rating System) currently with at least 50% of the student population in grades assessed by the state accountability system, has an accreditation status of Accredited, and meets the following:

(I) is currently evaluated under the standard accountability procedures and received the highest or second highest district rating for three of the last five years with at least 75% of the campuses operated under the charter also receiving the highest or second highest rating and no campus with an "academically unacceptable" rating, as defined by §100.1001(26) of this title, in the most recent state accountability ratings. A rating that does not meet the criteria for "academically acceptable" as defined in §100.1001(26) of this title shall not be considered the highest or second highest academic performance rating for purposes of this section; or

(II) is currently evaluated under the alternative education accountability (AEA) procedures and received the highest or second highest AEA district rating for five of the last five years with:

(-a-) in the most recent applicable state accountability ratings, all rated campuses under the charter receiving an "academically acceptable" or higher rating, as defined by §100.1001(26) of this title; and

(-b-) if evaluated using AEA procedures, the district-level assessment data corresponding to the most recent accountability ratings demonstrate that at least 35% of the students in each of the following student groups (if evaluated) met the standard as reported by the sum of all grades tested on the standard accountability indicator in each subject area assessed: African American, Hispanic, white, special education, economically disadvantaged, limited English proficient, and at risk;

(iii) no charter campus has been identified for federal interventions in the most current report;

(iv) the charter school is not under any sanction imposed by TEA authorized under TEC, Chapter 39; Chapter 97, Subchapter EE, of this title (relating to Accreditation Status, Standards, and Sanctions); or federal requirements;

(v) the charter holder completes an application approved by the commissioner;

(vi) the new charter school campus will serve at least 100 students in its first year of operation;

(vii) the amendment complies with all requirements of this paragraph; and

(viii) the commissioner determines that the designation is in the best interest of the students of Texas.

(B) In addition to the requirements of subparagraph (A) of this paragraph, the commissioner may approve a new school designation only on making the following written findings:

(i) the proposed school satisfies each element of the definition of a public charter school as set forth in federal law;

(ii) the proposed school is not merely an extension of an existing charter school;

(iii) the proposed school campus is separate and distinct from the existing charter school campus(es) established under the open-enrollment charter school with a new facility and county-district-campus number; and

(iv) the open-enrollment charter school, as amended, includes a separate written performance agreement for the proposed school campus that meets the requirements of federal law and TEC, §12.111(a)(3) and (4).

(C) In making the findings required by subparagraph (B)(i) and (iii) of this paragraph, the commissioner shall consider:

(i) the terms of the open-enrollment charter school as a whole, as modified by the new school designation; and

(ii) whether the proposed school campus shall be established and recognized as a separate school under Texas law.

(D) In making the findings required by subparagraph (B)(ii) and (iii) of this paragraph, the commissioner shall consider whether the proposed school campus and the existing charter school campus(es) have separate sites, employees, student populations, and governing bodies and whether their day-to-day operations are carried out by different officers. The presence or absence of any one of these elements, by itself, does not determine whether the proposed school campus will be found to be separate or part of an existing school. However, the presence or absence of several elements will inform the commissioner's decision.

(E) In making the finding required by subparagraph (B)(iv) of this paragraph, the commissioner shall consider:

(i) whether the proposed school campus and the existing charter school campus(es) have distinctly different requirements in their respective written performance agreements; and

(ii) the extent to which the performance agreement for the proposed school campus imposes higher standards than those imposed by TEC, §12.104(b)(2)(L).

(F) Failure to meet any standard or requirement outlined in this paragraph or agreed to in a performance agreement under subparagraph (B)(iv) of this paragraph shall mean the immediate termination of any federal charter school program grant and/or any waiver exempting a charter from some of the expansion amendment requirements that may have been granted to a charter holder as a result of the new school designation.

(13) High-Quality Campus Designation. A High-Quality Campus Designation is a separate designation and must be paired with an expansion amendment. If approved by the commissioner, this designation permits a charter holder to establish an additional charter school campus under an existing open-enrollment charter school pursuant to federal non-regulatory guidance. Charter holders of charter schools that receive High-Quality Campus Designation from the commissioner will be eligible to participate in the charter school program competitive grant process when federal funding for the Texas charter school program is available.

(A) The commissioner may approve a High-Quality Campus Designation for a charter only if:

(i) the charter holder meets all requirements applicable to an expansion amendment set forth in this section and has operated at least one charter school campus in Texas for a minimum of five consecutive years;

(ii) the charter school has been evaluated under the accountability rating system established in §97.1001 of this title currently with at least 50% of the student population in grades assessed by the state accountability system, has an accreditation status of Accredited, and is currently evaluated under the standard accountability procedures and received the highest or second highest district rating for three of the last five years with all of the campuses operated under the charter also receiving the highest or second highest rating as defined by §100.1001(26) of this title in the most recent state accountability ratings;

(iii) no charter campus has been identified for federal interventions in the most current report;

(iv) the charter school is not under any sanction imposed by TEA authorized under TEC, Chapter 39; Chapter 97, Subchapter EE, of this title (relating to Accreditation Status, Standards, and Sanctions); or federal requirements;

(v) the charter holder completes an application approved by the commissioner;

(vi) the new charter school campus will serve at least 100 students in its first year of operation;

(vii) the amendment complies with all requirements of this paragraph; and

(viii) the commissioner determines that the designation is in the best interest of the students of Texas.

(B) In addition to the requirements of subparagraph (A) of this paragraph, the commissioner may approve a High-Quality Campus Designation only on making the following written findings:

(i) the proposed school satisfies each element of the definition of a public charter school as set forth in federal law;

(ii) the proposed school campus is separate and distinct from the existing charter school campus(es) established under the open-enrollment charter school with a separate facility and county-district-campus number; and

(iii) the open-enrollment charter school, as amended, includes a separate written performance agreement for the proposed school campus that meets the requirements of federal law and TEC, §12.111(a)(3) and (4).

(C) In making the findings required by subparagraph (B)(i) and (iii) of this paragraph, the commissioner shall consider:

(i) the terms of the open-enrollment charter school as a whole, as modified by the High-Quality Campus Designation; and

(ii) whether the proposed school campus shall be established and recognized as a separate school under Texas law.

(D) In making the findings required by subparagraph (B)(ii) of this paragraph, the commissioner shall consider whether the proposed school campus and the existing charter school campus(es) have separate sites, employees, student populations, and governing bodies and whether their day-to-day operations are carried out by different officers. The presence or absence of any one of these elements, by itself, does not determine whether the proposed school campus will be found to be separate or part of an existing school. However, the presence or absence of several elements will inform the commissioner's decision.

(E) In making the finding required by subparagraph (B)(iii) of this paragraph, the commissioner shall consider:

(i) whether the proposed school campus and the existing charter school campus(es) have distinctly different requirements in their respective written performance agreements;

(ii) whether an annual independent financial audit of the proposed school campus is to be conducted. The high-quality campus must have a plan for a separate audit schedule apart from the open-enrollment charter school audit; and

(iii) the extent to which the performance agreement for the proposed school campus imposes higher standards than those imposed by TEC, §12.104(b)(2)(L).

(F) Failure to meet any standard or requirement outlined in this paragraph or agreed to in a performance agreement under subparagraph (B)(iii) of this paragraph shall mean the immediate termination of any federal charter school program grant and/or any waiver exempting a charter from some of the expansion amendment requirements that may have been granted to a charter holder as a result of the High-Quality Campus Designation.

(14) Delegation amendment. A delegation amendment is an amendment that permits a charter holder to delegate, pursuant to §100.1101(c) of this title (relating to Delegation of Powers and Duties), the powers or duties of the governing body of the charter holder to any other person or entity.

(A) The commissioner may approve a delegation amendment only if:

(i) the charter holder meets all requirements applicable to delegation amendments and amendments generally;

(ii) the amendment complies with all requirements of Chapter 100, Subchapter AA, Division 5, of this title (relating to Charter School Governance); and

(iii) the commissioner determines that the amendment is in the best interest of the students enrolled in the charter school.

(B) The commissioner may grant the amendment without condition or may require compliance with such conditions and/or requirements as may be in the best interest of the students enrolled in the charter school.

(C) The following powers and duties must generally be exercised by the governing body of the charter holder itself, acting as a body corporate in meetings posted in compliance with Texas Government Code, Chapter 551. Absent a specific written exception of this subparagraph, setting forth good cause why a specific function listed in clauses (i)-(vi) of this subparagraph cannot reasonably be carried out by the charter holder governing body, the commissioner may not grant an amendment delegating such functions to any person or entity through a contract for management services or otherwise. An amendment that is not authorized by such a specific written exception is not effective for any purpose. Absent such exception, the governing body of the charter holder shall not delegate:

(i) final authority to hear or decide employee grievances, citizen complaints, or parental concerns;

(ii) final authority to adopt or amend the budget of the charter holder or the charter school, or to authorize the expenditure or obligation of state funds or the use of public property;

(iii) final authority to direct the disposition or safekeeping of public records, except that the governing body may delegate this function to any person, subject to the governing body's superior right of immediate access to, control over, and possession of such records;

(iv) final authority to adopt policies governing charter school operations;

(v) final authority to approve audit reports under TEC, §44.008(d); or

(vi) initial or final authority to select, employ, direct, evaluate, renew, non-renew, terminate, or set compensation for the superintendent or, as applicable, the administrator serving as the educational leader and chief executive officer.

(D) The following powers and duties must be exercised by the superintendent or, as applicable, the administrator serving as the educational leader and chief executive officer of the charter school. Absent a specific written exception of this subparagraph, setting forth good cause why a specific function listed in clauses (i)-(iii) of this subparagraph cannot reasonably be carried out by the superintendent or, as applicable, the administrator serving as the educational leader and chief executive officer of the charter school, the commissioner may not grant an amendment permitting the superintendent/chief executive officer to delegate such function through a contract for management services or otherwise. An amendment that is not authorized by such a specific written exception is not effective for any purpose. Absent such exception, the superintendent/chief executive officer of the charter school shall not delegate final authority:

(i) to organize the charter school's central administration;

(ii) to approve reports or data submissions required by law; or

(iii) to select and terminate charter school employees or officers.

(c) Required forms and formats. The TEA division responsible for charter schools may develop and promulgate, from time to time, forms or formats for requesting charter amendments under this section. If a form or format is promulgated for a particular type of amendment, it must be used to request an amendment of that type.

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 May 19, 2017.

TRD-201702032

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: June 8, 2017

Proposal publication date: November 25, 2016

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