The Texas Education Agency (TEA) proposes amendments to 19 TAC §§66.10, 66.48, 66.72, and 66.75, concerning State Adoption and Distribution of Instructional Materials. The sections implement definitions, requirements, and procedures related to administrative penalties, statements of intent to bid instructional materials, contract preparation and completion, and revised editions of state-adopted instructional materials.

The proposed amendment to §66.10 addresses administrative penalties assessed against publishers for failure to correct factual errors in instructional materials adopted by the State Board of Education (SBOE). The proposed amendment adds language specifying categories of factual errors, first-year penalties, and second-year penalties. Publishers who fail to correct factual errors will be assessed a base penalty plus one percent of sales.

The proposed amendment to §66.48 reflects changes in textbook adoption activities that permit publishers to add new content to cover Texas Essential Knowledge and Skills (TEKS) that were not addressed in their original submissions. The proposed amendment to §66.72 updates contract procedures for consistency with statute. Language in §66.75 has been amended to allow the commissioner of education to approve substituting a state- adopted electronic product with a revised edition prior to the end of the first year of contract. This change is significant because electronic products are often updated in the months between the adoption and distribution to school districts. Language has also been added to §66.75 that would require SBOE approval of revised editions that differed in its coverage of the TEKS from the original submission adopted by the SBOE.

Felipe T. Alanis, Deputy Commissioner for Programs and Instruction, has determined that for the first five-year period the sections are in effect there will be fiscal implications for state government and the publishing industry as a result of enforcing or administering the sections. Savings to the TEA cannot be determined at this time. The amount is dependent upon any future penalties that would be assessed due to publishers' failure to correct adopted instructional materials. The penalties will be determined by the number of uncorrected errors multiplied by a formula established by the SBOE with this proposed rule action. Each penalized publisher will be required to issue credit to the TEA in an amount equal to the penalty. The credits are applied to future payments to affected publishers. There will be no fiscal implications for local government.

Mr. Alanis and Criss Cloudt, Associate Commissioner for Policy Planning and Research, have determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to ensure that students throughout the state have access to quality instructional materials. Modifications to the methodology used to assess penalties for uncorrected errors and penalties may reduce the incidence of failure to make required corrections. There may be an effect on small businesses if an affected publisher is a small business. The amount of a recommended penalty based upon the percentage of sales, as proposed, could be a lower penalty if a smaller publisher has fewer sales. There is anticipated economic cost to persons who are required to comply with the sections as proposed. Publishers are already currently assessed penalties for failure to correct factual errors. The proposed amendments recommend modifications to the methodology used to assess penalties that would significantly increase the amount of the penalties. The proposed increased penalty is an effort to reduce the incidence of failure to make required corrections. Economic costs to persons (publishers) will vary and are dependent upon any future penalties that would be assessed. Each penalized publisher will be required to issue credit to the TEA in an amount equal to the penalty. The credits are applied to future payments to affected publishers.

Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and Research, 1701 North Congress Avenue, Austin, Texas, 78701, (512) 463-9701. Comments may also be submitted electronically to rules@tmail.tea.state.tx.us or faxed to (512) 475-3499. All requests for a public hearing on the proposed sections submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the sections has been published in the Texas Register .

Subchapter A. General Provisions

19 TAC §66.10

The amendment is proposed under the Texas Education Code, §31.003, which authorizes the State Board of Education to adopt rules for the adoption, requisition, distribution, care, use, and disposal of textbooks; and Texas Education Code, §31.151, which authorizes the board to impose a reasonable administrative penalty against publishers or manufacturers.

The proposed amendment implements the Texas Education Code, §31.003 and §31.151.

§66.10.Procedures Governing Violations of Statutes--Administrative Penalties.

(a)

Complaints. An official complaint alleging a violation of the Texas Education Code, §31.151, must be filed with the commissioner of education. The commissioner may hold a formal or informal hearing in the case of an apparent violation of statute. Upon determining that a violation has occurred, the commissioner shall report his or her findings to the State Board of Education (SBOE).

(b)

Administrative penalties. Under the Texas Education Code, §31.151(b), the SBOE may impose a reasonable administrative penalty against a publisher or manufacturer found in violation of a provision of §31.151(a). An administrative penalty shall be assessed only after the SBOE has granted the publisher or manufacturer a hearing in accordance with the Texas Education Code, §31.151, and the Administrative Procedure Act.

(c)

Penalties for failure to correct factual errors.

(1)