19 TAC §100.1015, §100.1017
The Texas Education Agency (TEA) adopts an amendment to §100.1015
and new §100.1017, concerning open-enrollment charter schools. Section
100.1015 specifies provisions relating to applicants for an open-enrollment
charter. The amendment to §100.1015 was adopted without changes to the
proposed text as published in the September 20, 2002, issue of the
Texas Register
(27 TexReg 8864) and will not be republished. New §100.1017,
regarding the applicability of existing rule and statute to public senior
college or university charter schools, was adopted with changes to the proposed
text as published in the September 20, 2002, issue of the
Texas Register
.
House Bill (HB) 6, 77th Texas Legislature, 2001, allows the State Board
of Education to grant open-enrollment charters to public senior colleges or
universities under conditions different from those of other open-enrollment
charters. The adopted amendment to 19 TAC §100.1015 and the adopted new
19 TAC §100.1017 clarify the applicability of existing rule and statute
to this new category of open-enrollment charter schools.
In response to public comment, proposed new 19 TAC §100.1017 was modified
to provide that, to the extent that public senior colleges and universities
are already subject to state laws or rules that are similar to the provisions
in 19 TAC Chapter 100, Subchapter AA, such state laws or rules shall prevail
and these rules shall not apply. Language in §100.1017 was revised to
indicate that the following provisions of 19 TAC Chapter 100, Subchapter AA,
do not apply to a public senior college or university charter school: §100.1033(c)(6)
and §100.1101, relating to delegation of powers and duties; §100.1035,
relating to compliance records; §100.1073, relating to improvements to
real property; §§100.1111 - 100.1116, relating to nepotism; §§100.1131
- 100.1135, relating to conflicts of interest; §100.1203(a), relating
to retention of government records; and §100.1205, relating to procurement
of professional services.
The following comments were received regarding adoption of the amendment
and new section.
§100.1015. Applicants for an Open-Enrollment Charter or Public Senior
College or University Charter.
No comments were received on the proposed amendment to this section.
§100.1017. Application to Public Senior College or University Charters.
Comment. The University of Texas System (UT System) made the following
series of comments relating to proposed new 19 TAC §100.1017:
The UT System commented that under proposed 19 TAC §100.1017, the
governance provisions in the Commissioner's Rules for Open Enrollment Charters
would be applicable to University Charters. 19 TAC §100.1033 states that
the governing body of the charter holder may not delegate certain powers and
duties such as hearing or deciding employee grievances and selecting, employing,
and setting compensation for the chief executive officer of the school. This
rule conflicts with the unique governance structure of a Texas public university
system such as the UT System.
The UT System is composed of multiple institutions and entities as set
forth in Texas Education Code (TEC), §65.02. The government of the UT
System is vested in the Board of Regents. The Board of Regents is charged
with providing for the administration, organization, and names of institutions
and entities in the UT System in such a way as will achieve the maximum operating
efficiency of such institutions and entities. In accordance with its authority
as set forth in TEC, §65.031(c), the Board of Regents has adopted Regents'
Rules and Regulations. Each of the component institutions in the UT System
is subject to the Rules and Regulations.
The University of Texas at Austin (UT Austin) is an institution of higher
education. It is one of the institutions under the management of the UT System
Board of Regents (TEC, §67.02). The Board of Regents has vested the general
authority and responsibility for the administration of UT Austin in the President
of UT Austin. The President's authority and responsibilities include the development
and administration of plans and policies for the program, organization, and
operation of the institution; interpreting policy to staff and interpreting
the institution's programs and needs to the System Administration and to the
public; recommending appropriate operating budgets and supervising expenditures
under approved budgets; nominating all members of the faculty and staff; developing
and administering policies relating to students; and preparing for appropriate
approval the rules and regulations for the governance of the institution.
Under established university policies, employee grievances, citizen complaints
and student complaints are resolved at the UT System institution at which
they arise. Further, the authority to adopt policies regarding institution
operations, after appropriate UT System administration review, is vested in
the President of the UT System institution.
More specifically, the Board of Regents has delegated the oversight and
supervision of a charter school to the President of the operating institution,
with a report to the Board each year, detailing activities and performance
of the charter school (Regents' Rules and Regulations Part Two, Chapter I,
Section 5). The proposed Commissioner's Rule would make applicable to University
charters 19 TAC §100.1033 which does not authorize such delegation by
the Board of Regents to the UT institution.
Given the broad responsibilities of the Board as outlined by the legislature
for all the UT System institutions, the number of institutions under its direction,
the time constraints of quarterly Board meetings, as well as the many legislative
checks on public institution accountability and the ultimate accountability
of the institution's president to the Board of Regents, The University of
Texas System requests consideration of a relaxation of the prohibitions against
delegation with respect to University Charters.
Agency Response. The agency agrees with the comment. The proposed rule
has been modified to provide that, to the extent that public senior colleges
and universities are already subject to state laws or rules that are similar
to the provisions in these rules, such state laws or rules shall prevail and
these rules shall not apply.
Comment. The UT System commented further that many of the rules for open-enrollment
charters were adopted to address open government and the accountability of
non-profit charter holders with respect to the use of state funds. A public
university, as a governmental entity of the State of Texas supported by state
funds, is subject to a host of laws and regulations related to maintaining
public records, conducting open meetings, ethics of government officials and
the use of such funds. Thus, many of the open-enrollment charter rules are
duplicative and in some cases have the potential to conflict with state laws
applicable to public universities and public university officers and employees.
To the extent that UT Austin, a public university, is subject to statutes
and laws for state entities regarding similar provisions, including provisions
on nepotism, ethics, and records retention under the Texas Government Code,
the law applicable to the state entity should prevail with respect to the
UT charter school operations. The UT System requests consideration of rules
to that effect.
Agency Response. The agency agrees with the comment. The proposed rule
has been modified to provide that, to the extent that public senior colleges
and universities are already subject to state laws or rules that are similar
to the provisions in these rules, such state laws or rules shall prevail and
these rules shall not apply.
The amendment and new section are adopted under the Texas Education
Code (TEC), §12.153, added by HB 6, 77th Texas Legislature, 2001, which
authorizes the commissioner to adopt rules to implement TEC, Chapter 12, Charters,
Subchapter E, College or University Charter School.
§100.1017.Application to Public Senior College or University Charters.
(a)
Except as expressly provided in the rules in this subchapter,
or where required by Texas Education Code (TEC), Chapter 12, Subchapter E
(College or University Charter School), a provision of the rules in this subchapter
applies to a public senior college or university charter school as though
the public senior college or university charter school were granted a charter
under TEC, Chapter 12, Subchapter D (Open-Enrollment Charter School).
(b)
The following provisions of this subchapter do not apply
to a public senior college or university charter school:
(1)
§100.1033(c)(6) and §100.1101, relating to delegation
of powers and duties;
(2)
§100.1035, relating to compliance records;
(3)
§100.1073, relating to improvements to real property;
(4)
§§100.1111 - 100.1116, relating to nepotism;
(5)
§§100.1131 - 100.1135, relating to conflicts
of interest;
(6)
§100.1203(a), relating to retention of government
records; and
(7)
§100.1205, relating to procurement of professional
services.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on March 12, 2003.
TRD-200301713
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Effective date: April 1, 2003
Proposal publication date: September 20, 2002
For further information, please call: (512) 463-9701