Part 1. TEXAS HIGHER EDUCATION COORDINATING BOARD

Chapter 21. STUDENT SERVICES

Subchapter CC. EARLY HIGH SCHOOL GRADUATION SCHOLARSHIP PROGRAM

19 TAC §21.953, §21.956

The Texas Higher Education Coordinating Board proposes amendments to §21.953 and §21.956 concerning the Early High School Graduation Scholarship Program. The proposed changes are based on new legislation passed by the 80th Texas Legislature and, in particular, House Bill 2383, which changed the eligibility for scholarships for students graduating on or after September 1, 2007, the effective date of the bill. Specifically, the amendment to §21.953(b) indicates the provisions of that paragraph only apply to students graduating between September 1, 2005, and August 31, 2007. The amendments to §21.953(c) indicate that although they must meet other program requirements, students who graduate on or after September 1, 2007: (1) do not have to be Texas residents at the time they use their awards but must be United States citizens or otherwise lawfully authorized to be present in the United States, (2) must complete the majority (not all) of their high school attendance in Texas, and (3) if they graduate in more than 41 months, they may receive scholarships if they graduate in less than 46 (not 45) months. The amendments to §21.956 clarify that the award amount that can be received by a student graduating in more than 41 but less than 46 months will equal $1,000 if the student meets other program eligibility requirements.

Ms. Lois Hollis, Assistant Commissioner for Student Services, in keeping with the Legislative Budget Board's fiscal note for Senate Bill 201, has determined that for each year of the first five years the amendments are in effect, there will be no significant fiscal implications to state or local government as a result of enforcing or administering the rules.

Ms. Hollis has also determined that for each year of the first five years the amendments are in effect the public benefit anticipated as a result of administering the sections will be that more students graduating from high school with a significant number of college credits will be able to receive financial assistance to continue their studies on a college level. There is no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment.

Comments on the proposal may be submitted to Lois Hollis, P.O. Box 12788, Austin, Texas 78711, (512) 427-6465, Lois.Hollis@thecb.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The amendments are proposed under the Texas Education Code, §56.209, which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, Chapter 56, Subchapter K, relating to the Early High School Graduation Scholarship Program.

The amendments affect Texas Education Code, §§56.201 - 56.210.

§21.953.Eligible Students.

(a) (No change.)

(b) To receive an award through the Early High School Graduation Scholarship Program, a student who graduated from high school on or after September 1, 2005, but prior to September 1, 2007 , must:

(1) - (4) (No change.)

(c) To receive an award through the Early High School Graduation Scholarship Program, a student who graduated from high school on or after September 1, 2007, must:

(1) be a citizen of the United States or otherwise lawfully authorized to be present in the United States;

(2) have attended one or more public high schools in Texas for the majority of time the person attended high school;

(3) have successfully completed the Recommended or Distinguished Achievement Program-Advanced High School Program established under Texas Education Code, §28.025, unless the principal or other authorized representative of the student's high school provides a written explanation along with the student's transcript and exemption program application that the courses in the Recommended or Advanced High School Program which the student did not complete were unavailable to the student at the appropriate time in his or her high school career because of:

(A) shortage of qualified teachers;

(B) lack of enrollment capacity; or

(C) another cause not within the person's control, an explanation for which is provided on the transcript by the official;

(4) have graduated:

(A) in not more than 41 consecutive months; or

(B) in not more than 46 consecutive months, if the student graduated with at least 30 hours of college credit.

(d) [ (c) ] A student's eligibility to receive a tuition credit under the Early High School Graduation Scholarship Program begins with the first regular semester or term following the student's graduation, exclusive of summer sessions that immediately follow the student's graduation. A student's eligibility to receive a tuition credit under the program ends six years after it begins, unless the student seeks and is granted an extension under §21.960 of this title (relating to Hardship Extensions).

§21.956.Award Amounts and Processing Cycle.

(a) (No change.)

(b) For students whose graduation date is on or after September 1, 2005:

(1) the aggregate amount of state credit that may be awarded to a student through this program is:

(A) - (B) (No change.)

(C) $1,000 to apply toward tuition and mandatory fees if the student completed the Recommended or Distinguished Achievement Program-Advanced High School Program and , either:

(i) graduated prior to September 1, 2007, from high school in more than 41 consecutive months but not more than 45 consecutive months with at least 30 hours of college credit ; or [ . ]

(ii) graduated on or after September 1, 2007, from high school in more than 41 consecutive months but not more than 46 consecutive months with at least 30 hours of college credit.

(2) - (3) (No change.)

(c) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 4, 2007.

TRD-200702211

Bill Franz

General Counsel

Texas Higher Education Coordinating Board

Proposed date of adoption: July 19, 2007

For further information, please call: (512) 427-6114

Chapter 97. PLANNING AND ACCOUNTABILITY

Subchapter DD. INVESTIGATIVE REPORTS, SANCTIONS, AND RECORD REVIEWS

19 TAC §§97.1031, 97.1033, 97.1035, 97.1037

The Texas Education Agency (TEA) proposes amendments to §§97.1031, 97.1033, and 97.1035, concerning investigative reports and sanctions, and new §97.1037, concerning record review of certain decisions. The existing sections define the procedures for on-site investigations and reports as required by Texas Education Code (TEC), §39.076, and procedures for accreditation sanctions under TEC, §39.131, resulting from such reports. The proposed amendments would update and clarify these procedures. The proposed new rule would establish procedures for creating an administrative record for review by the State Office of Administrative Hearings (SOAH). The proposed rule actions would reflect changes in the TEC, Chapter 39, required by House Bill (HB) 1, 79th Texas Legislature, Third Called Session, 2006.

TEC, §39.302, added by HB 1, requires that an opportunity for challenging the decision of the commissioner of education on certain accreditation sanctions be available in specified circumstances and provided by the SOAH. In addition to enacting new TEC, §39.302, HB 1 enacted numerous changes to the TEC, Chapter 39, requiring that existing rules be revised and updated.

Currently, the rules in 19 TAC Chapter 97, Planning and Accountability, Subchapter DD, Procedures for Investigative Reports and Sanctions, define the procedures for on-site investigations and reports as required by TEC, §39.076, and procedures for accreditation sanctions under TEC, §39.131, resulting from such reports. The rules provide for notice to any person whom the report finds to have committed a violation of law, rule, or policy, and provide for an informal review of such findings before they may become final.

The proposed revisions to 19 TAC Chapter 97, Subchapter DD, would update and clarify existing rules in light of HB 1. In addition, the proposal would add a new rule establishing procedures for creating an administrative record for review by the SOAH under new TEC, §39.302. Specifically, the proposed revisions would establish the following.

Section 97.1031, Preliminary Investigative Report, would be amended by adding language in subsection (a) to clarify that an academic accountability rating, a financial accountability rating, and a determination of adequate yearly progress are not considered findings resulting from an investigation under the TEC, Chapter 39, Subchapter D, and do not need to be presented in a preliminary investigative report. The proposal would also address a rating or determination that may be lowered or changed as a result of such an investigation.

Section 97.1033, Informal Review of Preliminary Investigative Report; Final Investigative Report, would be amended in subsection (c) to clarify discussion of findings and/or acceptance of additional written information. Additional minor technical corrections would be made throughout the section.

Section 97.1035, Procedures for Accreditation Sanctions, would be revised to reference proposed new 19 TAC Chapter 97, Subchapter EE, Accreditation Status, Standards, and Sanctions. Existing subsections (a) - (c), which reference outdated TEC provisions, would be deleted. Re-lettered subsections (a) - (d) would address notification to the district, compliance with proposed revisions in §97.1031 and §97.1033, and annual and quarterly review of sanctions and assignments of conservators or management teams.

Proposed new §97.1037, Record Review of Certain Decisions, would be added to establish procedures for creating an administrative record for review by the SOAH for certain decisions. This proposed new rule would apply only to: a notice relating to accreditation sanctions, an assignment of an accreditation status of Accredited-Warned or Accredited-Probation, an assignment of a board of managers, and a request for review of an audit recovery from an open-enrollment charter school. The proposed new rule would address the required notice, request for record review, preliminary matters, record review, final order, no request for record review, and other law.

In addition, the subchapter name would be changed from "Procedures for Investigative Reports and Sanctions" to "Investigative Reports, Sanctions, and Record Reviews" to reflect the new provisions relating to record reviews of certain decisions.

David Anderson, general counsel, has determined that for the first five-year period the amendments and new section are in effect there will be no fiscal implications for state and local government as a result of enforcing or administering the amendments or new section. The proposed rule actions would add clarification of law to the required assignment of investigative reports and sanctions under HB 1, 79th Texas Legislature, Third Called Session, 2006. The proposed rule actions would assign no additional fiscal burden beyond what already is imposed by law. The TEA division responsible for program monitoring and interventions received personnel resources to implement the sanction requirements in HB 1.

Mr. Anderson has determined that for each year of the first five years the amendments are in effect the public benefit anticipated as a result of enforcing the amendments would be to update and clarify procedures for on-site investigations and reports and for accreditation sanctions resulting from such reports in light of HB 1. The public benefit anticipated as a result of enforcing the new section would be to ensure that entities are afforded appropriate administrative review of certain accreditation sanctions and to provide guidelines for the agency for the conduct of such reviews. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the amendments and new section.

The public comment period on the proposal begins June 15, 2007, and ends July 15, 2007. Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination Division, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 463-0028. All requests for a public hearing on the proposed amendments and new section submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register.

The amendments and new section are proposed under the Texas Education Code (TEC), §39.076, which authorizes the agency to adopt written procedures for conducting on-site investigations under TEC, Chapter 39, Subchapter D; and TEC, §39.302, which authorizes the agency to establish procedures for creating an administrative record for review by the State Office of Administrative Hearings for certain decisions.

The amendments and new section implement the Texas Education Code, §39.076 and §39.302.

§97.1031.Preliminary Investigative Report.

(a) Findings resulting from an investigation under Texas Education Code (TEC), Chapter 39, Subchapter D, [ §39.074 and §39.075, ] must be presented in a preliminary investigative report.

(1) The following are not findings resulting from an investigation under TEC, Chapter 39, Subchapter D, and need not be presented in a preliminary investigative report:

(A) an academic accountability rating assigned under §97.1001 of this title (relating to Accountability Rating System);

(B) a financial accountability rating assigned under §109.1002 of this title (relating to Financial Accountability Ratings); or

(C) a determination of adequate yearly progress under §97.1004 of this title (relating to Adequate Yearly Progress).

(2) A rating or determination initially issued under paragraph (1) of this subsection may be lowered or changed as a result of an investigation under TEC, Chapter 39, Subchapter D. In this event, the new rating or determination is a finding resulting from an investigation and must be presented in a preliminary investigative report.

(b) Before issuing a final investigative report, the Texas Education Agency (TEA) must notify the person whom the TEA proposes to find has violated a law, rule, or policy. The notice must be in writing and must:

(1) include a copy of a preliminary investigative report finding that the person has violated a law, rule, or policy;

(2) state the procedures for obtaining an informal review of the findings in the preliminary investigative report under TEC, §39.076(b), including the name and department of the person to whom the request may be addressed; and

(3) set a deadline, which shall not be less than ten calendar days from the date of mailing of the preliminary investigative report, for requesting an informal review of such findings.

§97.1033.Informal Review of Preliminary Investigative Report; Final Investigative Report.

(a) A person who is found in a preliminary investigative report to have violated a law, rule, or policy may request, in writing, an informal review under this section.

(b) A written request for informal review of the preliminary investigative report must be addressed to the Texas Education Agency (TEA) representative identified in the notice under §97.1031(b)(2) of this title (relating to Preliminary Investigative Report). The written request must be received by the TEA representative on or before the deadline specified in §97.1031(b)(3) of this title .

(c) The person requesting the informal review of the preliminary investigative report may submit written information to the TEA representative identified in the notice under §97.1031(b)(2) of this title . In addition, the TEA representative may meet with the person at TEA headquarters in Austin, Texas , to discuss the findings and/or [ and ] accept additional written information for review.

(d) Following the informal review of the preliminary investigative report by the TEA representative identified in the notice under §97.1031(b)(2) of this title , a final investigative report will be issued. The final report may include changes or additions to the preliminary investigative report and such modifications are not subject to another informal review procedure.

(e) If no informal review of the preliminary investigative report is requested by the deadline specified in §97.1031 of this title , or if no violation of law, rule, or policy is found in the report, a final investigative report may be issued without informal review.

(f) An informal review of the preliminary investigative report is not governed by Texas Education Code, §7.057, or by Government Code, Chapter 2001.

§97.1035.Procedures for Accreditation Sanctions.

[ (a) If the commissioner of education finds that a district, campus, or open-enrollment charter school does not satisfy applicable accreditation criteria, the commissioner may lower its accreditation rating and take appropriate action under Texas Education Code (TEC), §39.131.]

[ (b) Regardless of whether the commissioner lowers the accreditation rating under subsection (a) of this section, the commissioner may take action under TEC, §39.131(a)(1) - (8), if the commissioner determines that the action is necessary to improve any area of performance by the district or open-enrollment charter school.]

[ (c) Subject to subsection (f) of this section, once the commissioner takes action under TEC, §39.131, the commissioner may take any other action under that section to the extent the commissioner determines necessary.]

(a) [ (d) ] The commissioner of education shall notify the school district or open-enrollment charter school in writing of a sanction imposed under Subchapter EE of this chapter (relating to Accreditation Status, Standards, and Sanctions) and this section. The notice must state the basis for finding [ finding(s) indicating ] that the district or open-enrollment charter school does not satisfy the applicable accreditation criteria as indicated in Subchapter EE of this chapter . The finding(s) may [ must ] be made in the notice or in a final investigative report , or based on a final investigative report.

(b) If a finding is made for the first time in the notice required by subsection (a) of this section, the Texas Education Agency shall comply with §97.1031(b) of this title (relating to Preliminary Investigative Report) and §97.1033 of this title (relating to Informal Review of Preliminary Investigative Report; Final Investigative Report) with respect to the new finding.

(c) [ (e) ] A determination under §97.1057 of this title (relating to Accreditation Sanctions) [ subsections (b) and (c) of this section ] must be made in writing and may [ must ] be included in a written notice under subsection (a) [ (d) ] of this section. The determination may [ must ] be made in the notice or in a final investigative report , or based on a final investigative report. A determination under §97.1057 of this title [ subsection (c) of this section ] may be based on a report on the progress of a prior action under Subchapter EE of this chapter [ TEC, §39.131 ].

(d) [ (f) ] The commissioner shall annually review a sanction imposed under subsection (a) of this section and shall increase the sanction, as required by TEC, §39.133 [ §39.131(c) ]. The commissioner shall quarterly review the need for a conservator [ master ] or a management team imposed under Subchapter EE of this chapter [ subsections (a) or (b) of this section ], as required by TEC, §39.135 [ §39.131(e) ]. If reviews are required under both TEC, §39.133 and §39.135 [ §39.131(c) and (e) , a quarterly review under TEC, §39.135, [ §39.131(e) ] may satisfy the annual review under TEC, §39.133 [ §39.131(c) ]. An annual or quarterly review is not subject to the requirements of [ subsections (a) through (e) of ] this section or §97.1057 of this title .

§97.1037.Record Review of Certain Decisions.

(a) Applicability. This section applies only to:

(1) a notice under §97.1035 of this title (relating to Procedures for Accreditation Sanctions) proposing to order:

(A) alternative management of a school district campus or a charter school campus under TEC, §39.1327;

(B) closure of a school district or an open-enrollment charter school under TEC, §§39.071(c), 39.131(a), or 39.1321(c); or

(C) closure of a school district campus or charter school campus under TEC, §39.1324 or §39.1327;

(2) assignment under §97.1055 of this title (relating to Accreditation Status) of an accreditation status of Accredited-Warned or Accredited-Probation;

(3) assignment of a board of managers under TEC, §39.136 and §39.131(a)(9), or TEC, §39.1324(c); or

(4) request for review of an audit recovery from an open-enrollment charter school granted by the commissioner of education under §100.1041(e)(5) of this title (relating to State Funding).

(b) Notice. Notice of a proposed order subject to this section shall be made as provided by §97.1035(d) of this title and this section.

(1) The notice shall attach or make reference to any Texas Education Agency (TEA) reports, final investigative reports, or other information on which the proposed order is based.

(A) Information maintained on the TEA website may be referenced by providing a general citation to the information.

(B) TEA reports previously sent to the district, charter, or campus may be referenced by providing the title and date of the report.

(C) On request, the TEA shall provide copies of, or reasonable access to, information referenced in the notice.

(2) The notice shall state the procedures for requesting a record review of the proposed order under this section, including the name and department of the TEA representative to whom a request for record review may be addressed.

(3) The notice shall set a deadline for requesting a record review, which shall not be less than ten calendar days from the date of mailing of the notice.

(c) Request. The superintendent of the district or chief operating officer of the open-enrollment charter school may request, in writing, a record review under this section.

(1) The request must be properly addressed to the TEA representative identified in the notice under subsection (b)(2) of this section, and must be received by the TEA representative on or before the deadline specified in subsection (b)(3) of this section.

(2) A timely and sufficient request for record review is a prerequisite for an appeal of the proposed order under Chapter 157, Subchapter EE, of this title (relating to Review By State Office of Administrative Hearings: Certain Accreditation Sanctions).

(d) Preliminary matters.

(1) In response to a request under subsection (c) of this section, the TEA representative shall provide written notice to the district or charter of the date, time, and place for the record review.

(A) In this written notice, the TEA representative may:

(i) set time limits for presentations on the record;

(ii) set deadlines for exchanging documents prior to the record review;

(iii) set deadlines for identifying participants who may present information or ask questions during the review; and

(iv) provide any other instructions on the conduct of the record review.

(B) The TEA representative may consider reasonable requests to reschedule the record review and associated deadlines, but shall give primary importance to the need for a speedy resolution of the matter under review.

(C) The record review should in all instances be completed on or before the expiration of 30 calendar days following receipt of the request under subsection (c) of this section.

(D) Timely completion of the record review under subsection (c) of this section is a prerequisite for an appeal of the proposed order under Chapter 157, Subchapter EE, of this title.

(2) The district or charter shall submit any written information to the TEA representative in advance of the record review. To be considered part of the record, such information must also be presented during the review.

(3) In its request for record review, or within a reasonable time thereafter, the district or charter may request that specific TEA staff members attend the record review to assist the TEA representative in reviewing the information presented.

(A) Such request shall be limited to staff directly involved in the development of the information identified in the notice under subsection (b) of this section.

(B) If reasonable and practicable, the TEA representative shall schedule the record review so as to allow the requested staff to attend.

(4) At all times prior to the record review, the district or charter is encouraged to contact the office of the TEA representative to discuss the process and to facilitate preliminary matters. However, such communications will not be recorded and will not be considered part of the record.

(5) The county-district or campus identification number of the affected entity must be included in all written correspondence on the record review, as well as the date the notice was issued under subsection (b) of this section. Correspondence relating to the review may be made part of the record.

(6) All deadlines under this section shall be calculated from the date of actual receipt. No mailbox rule applies.

(e) Record review.

(1) The TEA representative shall meet with the superintendent and/or representatives of the district or charter at the TEA headquarters in Austin, Texas, to receive oral and written information on the proposed order.

(2) The proceedings shall be recorded by audiotape or similar means. The audiotape and all written information presented during the review shall comprise the official record of the proceedings.

(3) The district or charter may have legal counsel present during the proceedings.

(4) The district or charter may present information verbally and in writing, and may rebut information presented by the TEA staff.

(5) The rules of evidence do not apply. Presentations need not follow question-and-answer format.

(6) The district or charter may ask questions of the TEA staff. The TEA representative may designate a specific portion of the meeting for this purpose.

(7) The TEA representative may ask questions of any participant directly or through the TEA staff.

(8) The TEA representative shall strictly confine presentations and questions to the matters set forth in the notice, and shall exclude information that is irrelevant, immaterial, or unduly repetitious.

(9) On request, the TEA representative shall include in the record a brief written proffer describing any information excluded under paragraph (8) of this subsection. In lieu of a written proffer, an oral statement may be recorded on a separate audiotape. If the excluded information is in writing, the document shall be identified as excluded and preserved with the record.

(10) The TEA representative may take official notice of generally recognized information within the TEA's area of specialized knowledge.

(A) Each party shall be notified either before or during the record review, or by reference in a preliminary report or otherwise, of the material officially noticed, including staff memoranda or information.

(B) Any participant may present information to rebut information that is officially noticed.

(11) The special skills and knowledge of the TEA representative and staff shall be used in evaluating all information presented during the record review.

(12) At the request of the district or charter, a record review may be conducted by telephone or similar means.

(13) A participant may present information via telephone or similar means during any record review.

(f) Final order. Following the record review, a final order will be issued. The final order may include changes or additions to the proposed order and such modifications are not subject to another record review procedure. This order may be appealed only as provided by Chapter 157, Subchapter EE, of this title.

(g) No request. If no record review is requested by the deadline specified in subsection (b)(3) of this section, a final order may be issued without record review. An order issued without record review may not be appealed under Chapter 157, Subchapter EE, of this title, or otherwise.

(1) The charter of an open-enrollment charter school is automatically:

(A) revoked, void, and of no further force or effect on the effective date of a final decision by the commissioner of education ordering the school district or charter school closed under this subsection; and

(B) modified to remove authorization for an individual campus on the effective date of a final decision by the commissioner ordering the campus closed under this subsection.

(2) If sanctions are imposed on an open-enrollment charter school under the procedures provided by this subsection, a charter school is not entitled to an additional hearing relating to the modification, placement on probation, revocation, or denial of renewal of a charter as provided by TEC, Chapter 12, Subchapter D.

(h) Other law. Government Code, Chapter 2001, and TEC, §7.057, do not apply to a record review under this section.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 4, 2007.

TRD-200702222

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: July 15, 2007

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

19 TAC §§97.1051, 97.1053, 97.1055, 97.1057, 97.1059, 97.1061, 97.1063, 97.1065, 97.1067, 97.1069, 97.1071, 97.1073

The Texas Education Agency (TEA) proposes new §§97.1051, 97.1053. 97.1055, 97.1057, 97.1059, 97.1061, 97.1063, 97.1065, 97.1067, 97.1069, 97.1071, and 97.1073, concerning accreditation statuses, standards, and sanctions. The proposed new sections would define the accreditation statuses of Accredited, Accredited-Warned, Accredited-Probation, and Not Accredited-Revoked and would state how accreditation statuses would be determined and assigned to school districts. The proposal would also establish accreditation standards and sanctions, including definitions, purpose, technical assistance teams, campus intervention teams, reconstitution, campus closure, alternative management, intervention stages, and oversight appointments. The proposal reflects changes required by House Bill (HB) 1, 79th Texas Legislature, Third Called Session, 2006.

B 1 amended the Texas Education Code (TEC), Chapter 39, Public School System Accountability, and, as a result of these changes, new rules must be proposed to implement the changes. The proposed new 19 TAC Chapter 97, Planning and Accountability, Subchapter EE, Accreditation Status, Standards, and Sanctions, would establish new rules to ensure compliance with HB 1, as follows.

Proposed new 19 TAC §97.1051, Definitions, would define by rule, for the purposes of the subchapter, a number of terms, including "campus," "campus closure," and "reconstitution."

Proposed new 19 TAC §97.1053, Purpose, would specify that the requirements of the TEC, Chapter 39, and the proposed new subchapter would apply to an open-enrollment charter school in the same manner as to a district. The proposed new rule would state in rule the statutory purposes of accreditation statuses and sanctions. The proposal would also explain that the accreditation status assigned to a district under this new subchapter would reflect performance beginning with the district's 2007 ratings; however, performance for earlier years would be considered for the purposes of accreditation sanctions.

Proposed new 19 TAC §97.1055, Accreditation Status, would define the requirements a school district must meet each school year to receive the status of Accredited and would state how the accreditation statuses of Accredited-Warned, Accredited-Probation, and Not Accredited-Revoked would be determined, in accordance with the TEC, §39.071. The proposed rule would also provide the process the commissioner and district must follow when the commissioner determines a district's accreditation status to be Accredited-Warned or Accredited-Probation, including required notification of such status to parents of students enrolled in the district and property owners in the district.

Proposed new 19 TAC §97.1057, Accreditation Sanctions, would establish that if a district or campus does not satisfy the accreditation criteria, the commissioner may lower its accreditation status, academic accountability rating, or financial accountability rating or take any other action under the subchapter to the extent the commissioner determines is reasonably required.

Proposed new 19 TAC §97.1059, Standards for All Accreditation Sanction Determinations, would reflect certain standards to be used by the commissioner in determining sanctions. The rule would state that the commissioner shall impose sanctions individually or in combination as determined necessary to achieve the purposes of the sanctions and shall consider the seriousness, number, extent, and duration of deficiencies identified by the TEA in determining sanctions.

Proposed new 19 TAC §97.1061, Technical Assistance Team Campuses, would reference the annual assignment of a technical assistance team to a campus rated Academically Acceptable if that campus would be rated Academically Unacceptable using the accountability standards for the subsequent year. The proposed new rule would address the waiver of this requirement under standards adopted in the applicable annual accountability manual. The section also would define the composition and discuss the activities of the technical assistance team.

Proposed new 19 TAC §97.1063, Campus Intervention Team; Reconstitution, would implement the provisions of HB 1 related to campuses rated Academically Unacceptable under the state academic accountability rating system and the assignment of a campus intervention team (CIT) to those campuses. Additionally, the section would outline the obligation of certain principals to participate in the School Leadership Pilot Program and the district's responsibility for covering costs associated with the program. The section also would define the timeline under which a campus can and/or would be ordered to undergo reconstitution. In addition, the proposed new rule would describe the activities in which the district, campus, and the CIT must engage to facilitate the reconstitution, including timelines and activities related to the retention or removal of campus educators, including the principal. The proposed new rule also discusses circumstances under which the TEA may assign a monitor, conservator, management team, or board of managers to the campus to ensure the implementation of its school improvement/reconstitution plan and when the TEA may order alternative management or closure of the campus.

Proposed new 19 TAC §97.1065, Campus Closure or Alternative Management, would implement the provisions of HB 1 related to circumstances under which the commissioner orders and/or is required to order alternative management or closure of a campus. The proposed new rule would clarify that the commissioner may take other actions in combination with actions taken under this section. The rule also would clarify that, when the commissioner's order requires the district or campus to select a specific professional service provider, the district is not required to follow competitive bidding procedures. The proposed new rule would provide parameters to be considered by the commissioner in determining whether to order alternative management or closure of a campus.

Proposed new 19 TAC §97.1067, Alternative Management of Campuses, would implement the provisions of HB 1 related to the assignment of alternative management entities to certain campuses. The proposed rule would specify the timelines and requirements for district implementation of an alternative management contract and discuss the roles that would be played by the alternative management entity. The proposed rule also would specify a district's obligation to a campus for which alternative management has been ordered.

Proposed new 19 TAC §97.1069, Providers of Alternative Campus Management, would provide for a request for qualifications (RFQ) to solicit proposals from qualified non-profit management entities to assume the alternative management of a campus. The rule would also specify that the commissioner may appoint a school district in the same education service center region to provide services as the alternative management of the campus in the same manner as a non-profit entity.

Proposed new 19 TAC §97.1071, Special Program Performance; Intervention Stages, would codify intervention and sanction processes in place under the Performance-Based Monitoring (PBM) system. The proposed rule would describe intervention activities, notification processes for PBM intervention staging, and possible interventions and/or sanctions that may be implemented under the PBM system.

Proposed new 19 TAC §97.1073, Appointment of Monitor, Conservator, or Board of Managers, would be added to establish criteria for the appointment of a monitor, conservator, management team, or board of managers by the commissioner.

Susan Barnes, associate commissioner for standards and programs, has determined that for the first five-year period the new sections are in effect there will be no fiscal implications for state and local government as a result of enforcing or administering the new sections. The proposed rule actions would add clarification of law to the required assignment of an accreditation status and implementation of sanctions and interventions under HB 1, 79th Texas Legislature, Third Called Session, 2006. The rules would assign no additional fiscal burden beyond what already is imposed by law. The TEA division responsible for program monitoring and interventions received personnel resources to implement the accreditation status and sanction requirements of HB 1.

Dr. Barnes has determined that for each year of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections would be standards and procedures for determining district and charter school accreditation status. The public would be notified of the accreditation status and may assist the district in its efforts to improve its performance by addressing areas of deficiency identified by the commissioner. In addition, the proposed new rules would provide for the implementation of sanctions and interventions to improve district and campus performance that falls below minimum state standards. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed new sections.

The public comment period on the proposal begins June 15, 2007, and ends July 15, 2007. Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination Division, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 463-0028. All requests for a public hearing on the proposed new sections submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register.

The new sections are proposed under the Texas Education Code, §39.071, which authorizes the commissioner to define accreditation statuses and to determine the accreditation status of each school district; TEC, §39.131, which authorizes the commissioner to determine sanctions for a district that does not satisfy accreditation criteria under TEC, §39.071, the academic performance standards under TEC, §39.072, or any financial accountability standard as determined by the commissioner; TEC, §§39.132, 39.1322-39.1324, 39.1326, and 39.1327, which authorizes the commissioner to determine sanctions for an under-performing campus; TEC, §39.1331, which authorizes the commissioner to order certain districts or campuses to acquire professional services; and TEC, §§39.134-39.136, which authorizes the commissioner to address provisions relating to powers, duties, and costs for the assignment of a monitor, conservator, management team, campus intervention team, technical assistance team, managing entity under TEC, §39.1327, or board of managers.

The new sections implement the Texas Education Code, §§39.071, 39.131, 39.132, 39.1322-39.1324, 39.1326, 39.1327, 39.133, 39.1331, and 39.134 - 39.136.

§97.1051.Definitions.

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

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

(2) Campus--An organizational unit operated by the school district that is eligible to receive a campus rating in the state accountability rating system under §97.1001 of this title (relating to Accountability Rating System), including a rating of Not Rated--Other or Not Rated--Data Integrity Issues. The definition of this term includes a charter school campus as defined by §100.1011(3)(C) of this title (relating to Definitions).

(3) Campus closure--Cessation of all instructional activity on the campus.

(A) A district ordered to close a campus may apply to the commissioner of education for approval to repurpose a building or facility formerly housing the closed campus.

(B) A building or facility that is approved for repurposing under subparagraph (A) of this paragraph must house a completely different instructional program, bear a new name, and be assigned a new campus identification number.

(C) The commissioner shall not approve the repurposing of a building or facility under subparagraph (A) of this paragraph unless:

(i) all instructional activity under the programs operated at the repurposed building or facility occurs at grade levels not previously served by the closed campus; or

(ii) at least 75% of the students previously served by the closed campus are reassigned to other campuses, the campus administrator is removed or reassigned to other campuses, and at least 75% of the instructional staff employed on the campus are removed or reassigned to other campuses.

(4) Charter school--The definition of this term has the meaning assigned by §100.1011(3) of this title. References to a charter school in TEC, Chapter 39, and rules adopted under it, shall mean either the board of trustees or the school district, as appropriate.

(5) Charter school site--The definition of this term has the meaning assigned by §100.1011(3)(D) of this title.

(6) Reconstitution--

(A) The removal or reassignment of some or all campus administrative and/or instructional personnel in accordance with at least the minimum requirements of TEC, §39.1324(b); and

(B) the implementation of a campus redesign, approved by the commissioner of education, that:

(i) provides a rigorous and relevant academic program;

(ii) provides personal attention and guidance;

(iii) promotes high expectations for all students; and

(iv) addresses comprehensive school-wide improvements that cover all aspects of a school's operations, including, but not limited to, curriculum and instruction changes, structural and managerial innovations, sustained professional development, financial commitment, and enhanced involvement of parents and the community.

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

§97.1053.Purpose.

(a) The provisions of Texas Education Code (TEC), Chapter 39, and this subchapter apply in the same manner to an open-enrollment charter school as to a district.

(b) The provisions of TEC, Chapter 39, and this subchapter shall be construed and applied to achieve the purposes of accreditation statuses assigned under TEC, §39.071, and the purposes of accreditation sanctions, which are to:

(1) inform the parents of students enrolled in the district, property owners in the district, general public, and policymakers of the academic, fiscal, and compliance performance of each district or campus on the standards adopted by the commissioner of education under TEC, §39.071(b) and (c), and/or listed in §97.1059 of this title (relating to Standards for All Sanction Determinations);

(2) encourage the district or campus to improve its academic, fiscal, and/or compliance performance by addressing each area of deficiency identified by the commissioner of education;

(3) enable the parents of students enrolled in the district, property owners in the district, general public, and policymakers to assist the district or campus in improving the district or campus performance by addressing each area of deficiency identified by the commissioner;

(4) encourage other districts or campuses to improve their performance so as to avoid similar action and to retain their accreditation; and

(5) improve the Texas public school system by eliminating poor academic, fiscal, and compliance performance by districts and campuses on the standards listed in §97.1059 of this title.

(c) The accreditation status assigned a district under §97.1055 of this title (relating to Accreditation Status) reflects performance under the state academic accountability rating system and financial accountability rating system beginning with the district's 2007 ratings. However, performance under these systems for earlier years shall be considered for purposes of accreditation sanctions under this subchapter. Accordingly:

(1) consideration of or failure to consider any rating of the district under §97.1055 of this title does not preclude consideration of that rating when determining accreditation sanctions under this subchapter; and

(2) except as provided by TEC, §39.1326, when determining accreditation sanctions under this subchapter, the commissioner shall consider the entire ratings history of the district and its campuses to the extent it is material.

§97.1055.Accreditation Status.

(a) General provisions.

(1) Each year, the commissioner of education shall assign to each school district an accreditation status under Texas Education Code (TEC), §39.071(b) and (c). Each district shall be assigned a status defined as follows.

(A) Accredited. Accredited means the Texas Education Agency (TEA) recognizes the district as a public school of this state that:

(i) has met the standards determined by the commissioner under TEC, §39.071(b) and (c), and specified in §97.1059 of this title (relating to Standards for All Sanction Determinations); and

(ii) has not been assigned an accreditation status of Accredited-Warned or Accredited-Probation.

(B) Accredited-Warned. Accredited-Warned means the district exhibits deficiencies in performance, as specified in subsection (b) of this section, that, if not addressed, will lead to probation or revocation of its accreditation status.

(C) Accredited-Probation. Accredited-Probation means the district exhibits deficiencies in performance, as specified in subsection (c) of this section, that must be addressed to avoid revocation of its accreditation status.

(D) Not Accredited-Revoked. Not Accredited-Revoked means the TEA does not recognize the district as a Texas public school because the district's performance has failed to meet standards adopted by the commissioner under TEC, §39.071(b) and (c), and specified in subsection (d) of this section.

(2) The commissioner shall assign the accreditation status, as defined by this section, based on the performance of each school district. This section shall be construed and applied to achieve the purposes of TEC, §39.071, which are specified in §97.1053(b) of this title (relating to Purpose).

(3) The commissioner shall revoke the accreditation status of a district that fails to meet the standards specified in this section. In the event of revocation, the purposes of the TEC, §39.071, are to:

(A) inform the parents of students enrolled in the district, property owners in the district, general public, and policymakers that the TEA does not recognize the district as a Texas public school because the district's performance has failed to meet standards adopted by the commissioner under TEC, §39.071(b) and (c), and specified in subsection (d) of this section; and

(B) encourage other districts to improve their performance so as to retain their accreditation.

(4) Unless revised as a result of investigative activities by the commissioner as authorized under TEC, Chapter 39, or other law, an accreditation status remains in effect until replaced by an accreditation status assigned for the next school year. An accreditation status shall be revised within the school year when circumstances require such revision in order to achieve the purposes of TEC, §39.071.

(5) An accreditation status will be withheld pending completion of any appeal or review of an academic accountability rating, a financial accountability rating, or other determination by the commissioner, but only if such appeal or review is:

(A) specifically authorized by commissioner rule;

(B) timely requested under and in compliance with such rule; and

(C) applicable to the accreditation status under review.

(b) Determination of Accredited-Warned status.

(1) A district shall be assigned Accredited-Warned status if, beginning with its 2007 rating, the district is assigned:

(A) for two consecutive school years, an academic accountability rating of Academically Unacceptable under §97.1001 of this title (relating to Accountability Rating System);

(B) for two consecutive school years, a financial accountability rating of Substandard Achievement or Suspended--Data Quality under §109.1002 of this title (relating to Financial Accountability Ratings);

(C) for two consecutive school years, any one of the ratings referenced in subparagraphs (A) and (B) of this paragraph; or

(D) for one school year, a combination of ratings referenced in both subparagraphs (A) and (B) of this paragraph.

(2) Notwithstanding the district's performance under paragraph (1) of this subsection, a district shall be assigned Accredited-Warned status if the commissioner determines this action is reasonably necessary to achieve the purposes of TEC, §39.071. Such action is generally required by the following circumstances:

(A) to an extent established under subsection (e) of this section, the district has failed to comply with requirements related to:

(i) the integrity of assessment or financial data used to measure performance under TEC, Chapter 39 or 42, and rules implementing those chapters;

(ii) the reporting of data under TEC, §42.006, and §61.1025 of this title (relating to Public Education Information Management System (PEIMS) Data and Reporting Standards);

(iii) other reports required by state or federal law or court order;

(iv) awarding high school graduation under TEC, §28.025; or

(v) any applicable requirement under TEC, §7.056(e)(3)(C)-(I); or

(B) after investigation under TEC, §39.074 or §39.075, the commissioner finds:

(i) the district's programs monitored under §97.1005 of this title (relating to Performance-Based Monitoring Analysis System) exhibit serious or persistent deficiencies that, if not addressed, may lead to probation or revocation of the district's accreditation; or

(ii) the district otherwise exhibits serious or persistent deficiencies that, if not addressed, may lead to probation or revocation of the district's accreditation.

(3) Notwithstanding paragraph (2) of this subsection, a district shall be assigned Accredited-Warned status if the commissioner determines this action is reasonably necessary to achieve the purposes of TEC, §39.071.

(c) Determination of Accredited-Probation status.

(1) A district shall be assigned Accredited-Probation status if, beginning with its 2007 rating, the district is assigned:

(A) for three consecutive school years, an academic accountability rating of Academically Unacceptable under §97.1001 of this title;

(B) for three consecutive school years, a financial accountability rating of Substandard Achievement or Suspended--Data Quality under §109.1002 of this title;

(C) for three consecutive school years, any one of the ratings referenced in subparagraphs (A) and (B) of this paragraph; or

(D) for two consecutive school years, a combination of ratings referenced in both subparagraphs (A) and (B) of this paragraph.

(2) Notwithstanding the district's performance under paragraph (1) of this subsection, a district shall be assigned Accredited-Probation status if the commissioner determines this action is reasonably necessary to achieve the purposes of TEC, §39.071. Such action is generally required by the following circumstances:

(A) to an extent established under subsection (e) of this section, the district has failed to comply with requirements related to:

(i) the integrity of assessment or financial data used to measure performance under TEC, Chapter 39 or 42, and rules implementing those chapters;

(ii) the reporting of data under TEC, §42.006, and §61.1025 of this title;

(iii) other reports required by state or federal law or court order;

(iv) awarding high school graduation under TEC, §28.025; or

(v) any applicable requirement under TEC, §7.056(e)(3)(C) - (I); or

(B) after investigation under TEC, §39.074 or §39.075, the commissioner finds:

(i) the district's programs monitored under §97.1005 of this title exhibit serious or persistent deficiencies that, if not addressed, may lead to revocation of the district's accreditation; or

(ii) the district otherwise exhibits serious or persistent deficiencies that, if not addressed, may lead to revocation of the district's accreditation.

(3) Notwithstanding paragraph (2) of this subsection, a district shall be assigned Accredited-Probation status if the commissioner determines this action is reasonably necessary to achieve the purposes of TEC, §39.071.

(d) Determination of Not Accredited-Revoked status; Revocation of accreditation.

(1) The accreditation of a district shall be revoked if, beginning with its 2007 rating, the district is assigned:

(A) for four consecutive school years, an academic accountability rating of Academically Unacceptable under §97.1001 of this title;

(B) for four consecutive school years, a financial accountability rating of Substandard Achievement or Suspended--Data Quality under §109.1002 of this title;

(C) for four consecutive school years, any one of the ratings referenced in subparagraphs (A) and (B) of this paragraph; or

(D) for three consecutive school years, a combination of ratings referenced in both subparagraphs (A) and (B) of this paragraph.

(2) A district shall have its accreditation revoked if, notwithstanding its performance under paragraph (1) of this subsection, the commissioner determines this action is reasonably necessary to achieve the purposes of TEC, §39.071. Such action is generally required by the following circumstances:

(A) to an extent established under subsection (e) of this section, the district has failed to comply with requirements related to:

(i) the integrity of assessment or financial data used to measure performance under TEC, Chapter 39 or 42, and rules implementing those chapters;

(ii) the reporting of data under TEC, §42.006, and §61.1025 of this title;

(iii) other reports required by state or federal law or court order;

(iv) awarding high school graduation under TEC, §28.025; or

(v) any applicable requirement under TEC, §7.056(e)(3)(C) - (I); or

(B) after investigation under TEC, §39.074 or §39.075, the commissioner finds:

(i) the district's programs monitored under §97.1005 of this title exhibit serious or persistent deficiencies that require revocation of the district's accreditation; or

(ii) the district otherwise exhibits serious or persistent deficiencies that require revocation of the district's accreditation.

(3) Notwithstanding paragraph (2) of this subsection, a district's accreditation shall be revoked if the commissioner determines this action is reasonably necessary to achieve the purposes of TEC, §39.071.

(4) The commissioner's decision to revoke a district's accreditation may be appealed under §97.1037 of this title (relating to Record Review of Certain Decisions). If the decision is sustained on appeal, the commissioner shall appoint a management team or board of managers to bring to closure the district's operation of the public school.

(e) Legal compliance. In addition to the district's performance as measured by ratings under §97.1001 and §109.1002 of this title, the accreditation status of a district is determined by its compliance with the statutes and rules specified in TEC, §39.071(b)(2). Notwithstanding satisfactory or above satisfactory performance on other measures, a district's accreditation status may be assigned based on its legal compliance alone, to the extent the commissioner determines necessary. In making this determination, the commissioner:

(1) shall assign the accreditation status that is reasonably calculated to accomplish the applicable provisions specified in §97.1053(b) of this title;

(2) may impose, but is not required to impose, an accreditation sanction under this subchapter in addition to assigning a status under paragraph (1) of this subsection; and

(3) shall lower the status assigned and/or impose additional accreditation sanctions as necessary to achieve compliance with the statutes and rules specified in TEC, §39.071(b)(2).

(f) Required notification of Accredited-Warned or Accredited-Probation status.

(1) A district assigned an accreditation status of Accredited-Warned or Accredited-Probation shall notify the parents of students enrolled in the district and property owners in the district as specified by this subsection.

(2) The district's notice must contain information about the accreditation status, the implications of such status, and the steps the district is taking to address the areas of deficiency identified by the commissioner. The district's notice shall use the format and language determined by the commissioner.

(3) Notice under this subsection must:

(A) not later than 30 calendar days after the accreditation status is assigned, appear on the home page of the district's website, with a link to the notification required by paragraph (2) of this subsection, and remain until the district is assigned the Accredited status; and

(B) appear in the newspaper with the greatest circulation in the district for three consecutive days as follows:

(i) from Sunday through Tuesday of the second week following assignment of the status; or

(ii) if the newspaper is not published from Sunday through Tuesday, then for three consecutive issues of the newspaper beginning the second week following assignment of the status; or

(C) not later than 30 calendar days after the status is assigned, be sent by first class mail addressed individually to each parent of a student enrolled in the district and each property owner in the district.

(4) A district required to act under this subsection shall send the following to the TEA via certified mail, return receipt requested:

(A) the universal resource locator (URL) for the link required by paragraph (3)(A) of this subsection; and

(B) copies of the notice required by paragraph (3)(B) of this subsection showing dates of publication, or a paid invoice showing the notice content and its dates of publication; or

(C) copies of the notice required by paragraph (3)(C) of this subsection and copies of all mailing lists and postage receipts.

§97.1057.Accreditation Sanctions.

(a) The provisions of Texas Education Code (TEC), Chapter 39, and this subchapter shall be construed and applied to achieve the purposes of accreditation sanctions, which are specified in §97.1053 of this title (relating to Purpose).

(b) If the commissioner of education finds that a district or campus does not satisfy the accreditation criteria under TEC, §39.071, the academic performance standards under TEC, §39.072 or §39.073, or any financial accountability standard as determined by the commissioner, the commissioner may lower the district's accreditation status, academic accountability rating, or financial accountability rating, as applicable, and take appropriate action under this subchapter.

(c) Regardless of whether the commissioner lowers a district's status or rating under subsection (b) of this section, the commissioner may take action under this section if the commissioner determines that the action is necessary to improve any area of performance by the district or campus.

(d) Subject to §97.1035 of this title (relating to Procedures for Accreditation Sanctions), once the commissioner takes action under this subchapter, the commissioner may impose on the district any other sanction under this subchapter, singly or in combination, to the extent the commissioner determines is reasonably required to achieve the purposes specified in §97.1053 of this title.

(e) In determining whether to impose a particular sanction under this subchapter, the commissioner may consider the costs and logistical concerns of the district, but shall give primary consideration to the best interest of the district's students. The sanction selected shall be reasonably calculated to address the district's or campus' deficiencies immediately or within a reasonable time, in the best interest of its present and future students. The following shall be considered as being contrary to the best interests of the district's students:

(1) inefficient or ineffectual use of district funds or property;

(2) failure to adequately account for funds; and

(3) receipt of a substantial over-allocation of funds based on false or misleading information from the district as it relates to recovery under TEC, §42.258.

§97.1059.Standards for All Accreditation Sanction Determinations.

(a) The commissioner of education shall impose district and campus accreditation sanctions under this subchapter individually or in combination as the commissioner determines necessary to achieve the purposes identified in §97.1053 of this title (relating to Purpose).

(b) In making a determination under subsection (a) of this section, the commissioner shall consider the seriousness, number, extent, and duration of deficiencies identified by the Texas Education Agency (TEA), and shall impose one or more accreditation sanctions on a district as needed to address:

(1) each material deficiency identified by the TEA through its systems for district and campus accountability, including:

(A) an accreditation status under §97.1055 of this title (relating to Accreditation Status);

(B) an academic accountability rating under §97.1001 of this title (relating to Accountability Rating System);

(C) a financial accountability rating under §109.1002 of this title (relating to Financial Accountability Ratings) or a financial audit or investigation;

(D) program effectiveness under §97.1071 of this title (relating to Special Program Performance; Intervention Stages) or other law;

(E) the results of a special accreditation investigation under Texas Education Code, §39.075;

(F) the results of an investigative report under §97.1033 of this title (relating to Informal Review of Preliminary Investigative Report; Final Investigative Report); complaint investigation; special education due process hearing; or data integrity investigation, including an investigation of assessment or financial data; or

(G) other information related to subparagraphs (A) - (F) of this paragraph.

(2) any ongoing failures to address deficiencies previously identified or patterns of recurring deficiencies;

(3) any lack of district responsiveness to, or compliance with, current or prior interventions or sanctions; and

(4) any substantial or imminent harm presented by the deficiencies of the district or campus to the welfare of its students or to the public interest.

(c) If the commissioner identifies a district and one or more of its campuses for accreditation sanction under subsection (a) of this section, the commissioner may elect to combine activities to be undertaken at the district and campus levels as needed to achieve the purposes of each sanction.

(d) When making any campus-level determination under this subchapter, the commissioner shall also consider the district-level performance of the district on applicable academic, fiscal, and compliance standards.

§97.1061.Technical Assistance Team Campuses.

(a) The commissioner of education will annually assign a technical assistance team to a campus rated Academically Acceptable in the state academic accountability rating system if that campus would be rated Academically Unacceptable using the accountability standards for the subsequent year. The commissioner may waive this requirement to assign a technical assistance team under standards adopted in the applicable annual accountability manual in §97.1001 of this title (relating to Accountability Rating System).

(b) The technical assistance team assigned pursuant to subsection (a) of this section will assist the campus in executing a school improvement plan and any other school improvement strategies the commissioner determines appropriate.

(c) For those campuses subject to the requirements of Texas Education Code (TEC), §11.253, the technical assistance team shall be composed of the members of the campus-level planning and decision-making committee required under TEC, §11.251 and §11.253, and shall include an additional member with the knowledge and ability to provide technical assistance in the area(s) subject to improvement planning. The additional member may be a member of the district-level planning and decision-making committee required under TEC, §11.251 and §11.252, who is not assigned to the campus or may be another individual with the requisite knowledge necessary to promote campus improvement.

(d) For those campuses not subject to TEC, §11.253, a technical assistance team shall include representative professional staff from the campus, parents of students enrolled in the campus, a business representative, community members, and an additional member with the knowledge and ability to provide technical assistance in the area(s) subject to improvement planning.

(e) The commissioner may review and approve the final membership of a technical assistance team assigned under TEC, §39.1322, and this section.

§97.1063.Campus Intervention Team; Reconstitution.

(a) If a campus is rated Academically Unacceptable in the state academic accountability rating system for the current school year, the commissioner of education shall assign a campus intervention team (CIT) under Texas Education Code (TEC), §39.1322 and §39.1323. The duties and responsibilities of the CIT will be based on the reasons for the campus' Academically Unacceptable rating.

(1) In assigning a CIT, the commissioner will offer the school district an opportunity to recommend CIT members under procedures established by the Texas Education Agency (TEA).

(A) If the district does not recommend CIT members under TEA procedures, the commissioner will assign a CIT without such input.

(B) If the commissioner does not approve the CIT membership recommendation by the district, the commissioner will assign the CIT members.

(2) If the district does not implement the school improvement plan or the recommendations of the CIT, the commissioner shall order the reconstitution of the campus in accordance with TEC, §39.1324.

(b) The principal of a campus assigned a CIT under subsection (a) of this section, or any person employed to replace that principal, shall participate in and complete the program requirements of the School Leadership Pilot Program (SLPP). The district shall be responsible for any costs associated with participation in the SLPP, such as travel, lodging, or extra duty pay.

(1) Participation in the SLPP shall begin not later than October 1 of the current school year.

(2) All program requirements of the SLPP shall be completed within one year of enrolling in the program.

(c) If a campus is rated Academically Unacceptable under the state academic accountability rating system for two consecutive school years, including the current school year, the campus shall be reconstituted under procedures developed by the TEA, and the CIT will continue to be assigned under TEC, §39.1324.

(1) A campus ordered to reconstitute shall use the current school year to plan the reconstitution, with the assistance of the district and CIT, and shall open the subsequent school year as a reconstituted campus regardless of the academic accountability rating assigned to the campus in that school year.

(A) The CIT shall decide which educators may be retained at the campus when it opens for the subsequent school year.

(B) A principal who has been employed by the campus in that capacity during the full two-year period described by this subsection may not be retained at the campus when it opens for the subsequent school year unless, in accordance with TEC, §39.116, the school district decides to retain the principal based on a demonstrated pattern of significant academic improvement by students enrolled at the campus.

(C) A teacher of a subject assessed by an assessment instrument under TEC, §39.023, may be retained for the subsequent school year only if the CIT determines that a pattern exists of significant academic improvement by students taught by the teacher.

(D) If an educator is not retained, the educator may be assigned to another position in the district when the district opens for the subsequent school year.

(2) The TEA may assign a monitor, conservator, management team, or board of managers to the campus in order to ensure the implementation of its school improvement and reconstitution plan.

(3) If the campus does not implement the school improvement and reconstitution plan or the recommendations of the CIT, the TEA may order alternative management or campus closure under §97.1065 of this title (relating to Campus Closure or Alternative Management).

(d) If a campus is rated Academically Unacceptable under the state academic accountability rating system for the school year after reconstitution is required to be implemented under subsection (c) of this section, the commissioner:

(1) shall review the district's implementation of the school improvement and reconstitution plan in accordance with TEC, §39.1324; and

(2) may order alternative management or campus closure under §97.1065 of this title based on this review and on any other relevant information.

(e) The commissioner shall order alternative management or campus closure under §97.1065 of this title when the campus has failed to implement recommendations of the CIT or terms of the school improvement and reconstitution plan.

§97.1065.Campus Closure or Alternative Management.

(a) The commissioner of education shall order alternative management or closure of a campus as provided in this section, if:

(1) the campus is rated Academically Unacceptable under the state academic accountability rating system for the second consecutive school year after reconstitution is required to be implemented under §97.1063 of this title (relating to Campus Intervention Team; Reconstitution); or

(2) such action is required under §97.1063(e) of this title.

(b) In combination with action under this section, the commissioner may:

(1) impose a campus accreditation sanction under Texas Education Code (TEC), §39.132;

(2) take action under any provision of TEC, Chapters 12 or 39; and/or

(3) require the district to purchase professional services under TEC, §39.1331.

(A) The commissioner's order may require the district or campus to:

(i) select an external auditor, data quality expert, professional authorized to monitor district assessment instrument administration, or curriculum or program expert; or

(ii) provide for the appropriate training of district staff or board of trustees members in the case of a district, or campus staff in the case of a campus.

(B) If the commissioner's order requires the district or campus to select a specific professional service provider, the district is exempt from following competitive bidding procedures before executing the contract.

(c) The commissioner shall order alternative management of a campus under this section and shall require the campus to remain open, when:

(1) the commissioner determines that alternative management has a reasonable expectation of producing an Academically Acceptable or better campus rating in the academic accountability rating system within three rating cycles of assignment of the alternative management service provider under §97.1067 of this title (relating to Alternative Management of Campuses); and

(2) an alternative management service provider with the necessary skills and required expertise is available under §97.1069 of this title (relating to Providers of Alternative Campus Management).

(d) The commissioner shall grant the campus a one-year waiver of alternative management under this section and instead require the district to contract for appropriate technical assistance under TEC, §39.1327(c)(2), if the commissioner:

(1) determines that the basis for assigning a rating of Academically Unacceptable under the state academic accountability rating system is limited to a specific condition that may be remedied with targeted technical assistance;

(2) finds that the targeted technical assistance proposed by the district has significant potential for success in remedying the deficiencies of the district; and

(3) approves the contract for targeted technical assistance.

(e) The commissioner shall order closure of the campus when action is required under this section and:

(1) subsection (c) or (d) of this section does not apply;

(2) the district fails to enter into a contract for alternative management under §97.1067 of this title as required by §97.1067 of this title; or

(3) the commissioner does not approve the contract for alternative management under §97.1067 of this title.

(f) The commissioner shall order closure of a campus when alternative management of the campus was ordered under this section and:

(1) the district resumed operation of the campus under TEC, §39.1327(h); and

(2) for the school year immediately following resumption of operations, the campus is rated Academically Unacceptable under the state academic accountability rating system.

(g) An order proposing action under this section may be appealed only as provided by §97.1037 of this title (relating to Record Review of Certain Decisions).

§97.1067.Alternative Management of Campuses.

(a) By January 1 of the school year in which alternative management of a campus is ordered under §97.1065 of this title (relating to Campus Closure or Alternative Management), the school district shall:

(1) execute a contract in compliance with this section; and

(2) relinquish control over the campus to a service provider approved under §97.1069 of this title (relating to Providers of Alternative Campus Management).

(b) A contract under this section must be executed by the district and the service provider and must:

(1) relinquish all authority to perform the duties and responsibilities of a principal under Texas Education Code (TEC), §11.202(b)(1) - (6), with respect to the campus;

(2) comply with TEC, §39.1327(g) - (i); this section; and the requirements and performance measures established by the Texas Education Agency (TEA) under §97.1069 of this title;

(3) provide for the creation, maintenance, retention, and transfer of all public records concerning the campus;

(4) include provisions governing liability for damages, costs, and other penalties for acts or omissions by the service provider, including failure to comply with federal or state laws;

(5) provide for termination of the contract if:

(A) the campus is rated Academically Acceptable under the state academic accountability rating system for two consecutive school years; or

(B) the commissioner of education orders campus closure under §97.1065(f) of this title;

(6) specify additional roles or responsibilities assumed by the service provider, if any;

(7) be approved by written resolution of the district's board of trustees; and

(8) be approved in writing by the commissioner.

(c) The service provider may perform the duties and responsibilities of a principal, and in addition may make requests and recommendations to the district concerning all aspects of campus administration, including personnel and budget decisions.

(1) If a request is denied or a recommendation is not implemented by the district, the service provider shall report to the TEA both its request or recommendation and the district's action in response.

(2) The commissioner may implement additional sanctions under this subchapter and consider such reports under §97.1065 of this title.

(d) The funding for the campus must be not less than the funding of the other campuses operated by the district on a per-student basis so that the service provider receives at least as much funding as the campus would otherwise have received. The district must continue to support:

(1) campus maintenance and operations;

(2) transportation;

(3) food services;

(4) extracurricular activities;

(5) central office support services;

(6) state assessment administration; and

(7) similar operational expenses of the campus.

(e) A campus operated by a service provider under this section remains a campus of the district. Educators and staff assigned to work at the campus are district employees for all purposes. The campus is not subject to TEC, §11.253.

(f) A district subject to this section shall comply fully with TEA requests for information for the purpose of evaluating implementation of the contract, student performance, and management of the campus.

(g) A district that violates the terms of its contract under this section is subject to further sanctions under this subchapter.

§97.1069.Providers of Alternative Campus Management.

(a) Each school year, the Texas Education Agency (TEA) will issue a request for qualifications (RFQ) to solicit proposals from qualified non-profit management entities to assume the management of campuses identified for sanction under §97.1067 of this title (relating to Alternative Management of Campuses).

(1) To be approved as a provider of alternative campus management services, a non-profit entity must meet the requirements of Texas Education Code (TEC), §39.1327, and any additional qualifications and procedural requirements specified by the TEA in the RFQ.

(2) The commissioner of education may appoint a school district in the same education service center region as the campus to provide alternative management services under this section. A district appointed under this subsection shall assume management of the campus in the same manner as a non-profit entity.

(b) Contact information for each approved provider of alternative campus management services will be posted to the TEA website. The TEA will notify approved providers before posting the providers' information to the website.

(c) In addition to any action by the district on the contract, a service provider failing to comply with the terms of a contract under this section, or to perform services as specified in the RFQ, shall be removed from the TEA list of approved service providers.

(d) A service provider shall comply fully and promptly with TEA requests for information for the purpose of evaluating implementation of the contract, student performance, and management of the campus.

§97.1071.Special Program Performance; Intervention Stages.

(a) The commissioner of education shall assign a school district to an intervention stage based on performance levels under §97.1005 of this title (relating to Performance-Based Monitoring Analysis System) according to the following general criteria:

(1) the degree to which the district's performance reflects a need for intervention, as indicated by the seriousness, number, extent, and duration of the student performance, program effectiveness, and/or program compliance deficiencies identified by the Texas Education Agency (TEA);

(2) a comparison of the district's performance to aggregated state performance and to the performance of other districts;

(3) the availability of state and regional resources to intervene in all districts exhibiting a comparable need for intervention; and

(4) the length of time the performance standard has been in place and the length of time the district has exhibited deficiencies under the standard.

(b) In addition to performance levels determined under §97.1005 of this title, the commissioner may consider any other applicable information, such as:

(1) complaints investigation results;

(2) special education due process hearing decisions;

(3) data validation activities;

(4) integrity of assessment or financial data; and

(5) longitudinal intervention history.

(c) The standards used to assign districts to specific intervention stages under this section are established annually by the commissioner and communicated to all school districts.

(d) The commissioner may use graduated stages of intervention to address student performance, program effectiveness, and/or data quality deficiencies referenced in §97.1005 of this title. In addition to any sanction authorized by Texas Education Code (TEC), Chapter 39, Subchapter G, such intervention may require a district to implement and/or participate in:

(1) focused analysis of district data;

(2) required district review of program effectiveness;

(3) required public meetings;

(4) focused compliance reviews conducted by review teams established by the TEA;

(5) on-site reviews; and/or

(6) continuous improvement planning.

(e) The commissioner shall notify each district selected for intervention under this section via the Intervention Stage and Activity Manager (ISAM) on the TEA secure website.

(1) The TEA shall notify districts that intervention stages have been posted to ISAM by:

(A) posting a "To the Administrator Addressed" letter on the TEA web page for correspondence; or

(B) sending a "To the Administrator Addressed" letter via electronic mail or first-class mail.

(2) It is the district's obligation to access the correspondence by:

(A) subscribing to the listserv for "To the Administrator Addressed Correspondence;" and

(B) accessing the ISAM system as directed to retrieve intervention instructions and information.

(f) Intervention actions taken under this section are intended to assist the district in raising its performance and/or achieving compliance under §97.1005 of this title and do not preclude or substitute for a sanction under another provision of this subchapter.

(1) The level of intervention selected under this section does not reflect any decision on, or consideration of, the need for other sanctions.

(2) A decision to impose other sanctions shall be based on the accreditation and compliance performance of the district, as determined under §97.1035 of this title (relating to Procedures for Accreditation Sanctions) and this subchapter, and not on the level of intervention chosen under this section.

(g) Intervention actions taken under this section do not preclude or substitute for other responses to or consequences of program ineffectiveness or noncompliance identified by the TEA, such as:

(1) required fiscal audit of specific program(s) and/or of the district, paid for by the district;

(2) required submission of improvement and/or corrective action plan(s), including the provision of compensatory services as appropriate, paid for by the district;

(3) expanded oversight including, but not limited to, frequent follow-up contacts with the district, submission of documentation verifying implementation of intervention activities and/or an improvement plan; and submission of district/program data;

(4) public release of monitoring review findings;

(5) denial of requests under TEC, §7.056 and/or §12.114;

(6) reduction, suspension, redirection, or withholding of program funds;

(7) lowering of the special education monitoring status of the district; and/or

(8) lowering of the district's accreditation status, academic accountability rating, and/or financial accountability rating.

(h) As a system safeguard, the TEA will conduct desk review or on-site data verification activities through a random or other means of selection to verify system effectiveness and/or district implementation of monitoring requirements, including, but not limited to, accuracy of data reporting, implementation of intervention activities, implementation of plans for improvement or correction, and accuracy of findings made through the performance-based monitoring system process.

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

(a) The commissioner of education shall appoint a monitor, conservator, management team, or board of managers whenever such action is required, as determined by this section. Action under any other section of this subchapter is not a prerequisite to acting under this section.

(b) The commissioner shall appoint a monitor under Texas Education Code (TEC), §39.131(a)(6) when:

(1) the deficiencies identified under §97.1059 of this title (relating to Standards for All Accreditation Sanction Determinations) require a monitor to participate in and report to the commissioner on the activities of the district's board of trustees and superintendent;

(2) the deficiencies identified under §97.1059 of this title are not of such severity or duration as to require direct Texas Education Agency (TEA) oversight of district operations;

(3) the district has been responsive to and generally compliant with previous commissioner sanctions and TEA interventions; and

(4) stronger intervention is not required to prevent substantial or imminent harm to the welfare of the district's students or to the public interest.

(c) The commissioner shall appoint a conservator under TEC, §39.131(a)(7) and §39.135, or a management team under TEC, §39.131(a)(8) and §39.135, when:

(1) the nature or duration of the deficiencies require that the TEA directly oversee the operations of the district in the area(s) of deficiency;

(2) the district has not been responsive to or compliant with TEA intervention requirements; or

(3) such intervention is needed to prevent substantial or imminent harm to the welfare of the district's students or to the public interest.

(d) The decision whether to appoint a conservator or management team under subsection (c) of this section shall be based solely on logistical concerns, including the competencies required and the volume of work involved. Selecting a management team rather than a conservator does not reflect on the severity of the deficiencies to be addressed.

(e) The commissioner shall appoint a board of managers under TEC, §39.136 and §39.131(a)(9) or §39.1324(c), as applicable, when:

(1) sanctions under subsection (b) or (c) of this section have been ineffective to achieve the purposes identified in §97.1035 of this title (relating to Procedures for Accreditation Sanctions);

(2) the commissioner has initiated proceedings under §97.1037 of this title (relating to Record Review of Certain Decisions) to close or annex the district;

(3) the commissioner has initiated proceedings under §97.1037 of this title to close a campus, and such intervention is needed to cease operations of the campus; or

(4) such intervention is needed to prevent substantial or imminent harm to the welfare of the district's students or to the public interest.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 4, 2007.

TRD-200702223

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: July 15, 2007

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

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

Division 3. CHARTER SCHOOL FUNDING AND FINANCIAL OPERATIONS

19 TAC §100.1041

The Texas Education Agency (TEA) proposes an amendment to §100.1041, concerning open-enrollment charter schools. The section addresses charter school funding. The proposed amendment would establish criteria for review of a request for a charter holder to return over-allocated funds.

Current 19 TAC §100.1041(e) requires an open-enrollment charter holder to return an over-allocation of funds within 30 days of a request by the commissioner. In some instances, such a request could potentially result in financial closure of the open-enrollment charter school.

The proposed amendment to 19 TAC §100.1041 would add new language in subsection (e) to establish criteria for determining whether a request to return over-allocated funds would cause financial closure of an open-enrollment charter school. The proposed amendment would require the commissioner to initiate proceedings to revoke the charter under 19 TAC §100.1022, Standards for Adverse Action on an Open-Enrollment Charter, if the charter holder cannot continue operating the open-enrollment charter school due to complying with the request to return the over-allocation.

David Anderson, general counsel, has determined that for the first five-year period the amendment is in effect there will be no fiscal implications for state and local government as a result of enforcing or administering the amendment. The proposed amendment would add clarification related to certain procedural due process activities available to an open-enrollment charter school related to a record review of a request to return over-allocated funds. The proposal is in alignment with requirements in current law and does not create any additional, significant financial burden to the TEA. Funds were provided to the TEA by HB 1.

Mr. Anderson has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the amendment will be that a charter holder is afforded appropriate review of a request to return an over-allocation of funds and would establish criteria and procedures for conducting such reviews. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed amendment.

The public comment period on the proposal begins June 15, 2007, and ends July 15, 2007. Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination Division, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 463-0028. All requests for a public hearing on the proposed amendment submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register.

The amendment is proposed under the Texas Education Code, §12.106, which authorizes the commissioner to adopt rules to provide and account for state funding of open-enrollment charter schools; TEC, §12.115 and §12.116, which authorizes the commissioner to adopt procedures and to modify, place on probation, revoke, or deny renewal of the charter of an open-enrollment charter school under certain circumstances; TEC, §39.076, which authorizes the agency to adopt written procedures for conducting on-site investigations; and TEC, §42.258, which authorizes the agency to recover overallocated funds received by a school district or open-enrollment charter school.

The amendment implements the Texas Education Code, §§12.106, 12.115, 12.116, 39.076, and 42.258.

§100.1041.State Funding.

(a) Funding formula elements. A charter school is entitled to funding from both tiers of the Foundation School Program (FSP) in accordance with the funding formulas for school districts pursuant to Texas Education Code (TEC), Chapter 42.

(1) Tier I program allocations are determined by substituting the statewide average adjusted allotment in place of the district's calculated adjusted allotment. The state average adjusted allotment takes into account the cost of education index and the small, mid-size, and sparsity adjustments specified in TEC, §§42.102, 42.103, 42.104, and 42.105. It is computed by dividing the state total cost for the regular education program by the number of students in the state counted in attendance in a regular education program in accordance with TEC, §42.101.

(2) An allocation for the guaranteed yield allotment for Tier II of the FSP is determined by substituting a statewide average enrichment tax rate in place of the district's calculated enrichment tax rate (DTR) pursuant to TEC, §42.302. The state average tax rate is computed by first summing the Maintenance and Operations tax collections up to its DTR maximum limit for each district in the state and then dividing that result by the sum of all district property values as defined in TEC, §42.252.

(b) Implementation schedule. The new formula elements described in subsection (a) of this section will take effect for charter schools that begin operation in the 2001-2002 school year or later. Charter schools that report attendance that occurs prior to September 2, 2001, are considered to be in operation on September 1, 2001, and will be funded as described in House Bill 6, Section 40(b), 77th Texas Legislature, 2001. Charter schools that report no attendance that occurs prior to September 2, 2001, are considered to begin operation in the 2001-2002 school year or later, and will be funded according to subsection (a) of this section and TEC, §12.106.

(c) Tuition and fees. A charter school shall not charge tuition and shall not charge a fee except:

(1) a charter school may charge a fee listed in TEC, §11.158(a); and

(2) if authorized under §100.1201(6) of this title (relating to Voluntary Participation in State Programs), a charter holder may charge tuition for certain prekindergarten classes in compliance with TEC, §29.1531 and §29.1532.

(d) Eligibility for state funding. A charter holder is not eligible to receive state funds, including grant funds, prior to execution of its contract by the chair of the State Board of Education.

(1) If a charter holder, before or without approval for an expansion amendment under §100.1033(d) of this title (relating to Charter Amendment), extends the grade levels it serves, adds or changes the site of an instructional facility, expands its geographic boundaries, or exceeds its maximum allowable enrollment, then the charter holder is not eligible to receive state funds for the activities of the unapproved expansion of its charter school operations.

(2) A former charter holder is not eligible to receive state funds.

(e) Return of over-allocated funds.

(1) Within 30 days of receiving notice of an over-allocation and a request for refund under TEC, §42.258, a charter holder shall transmit to the Texas Education Agency (TEA) an amount equal to the requested refund. Failure to comply with a request for refund under this subsection is a material charter violation and a management company breach. Funds allocated for student attendance in a program affected by an unapproved expansion under subsection (d)(1) of this section are over allocated within the meaning of this subsection.

(2) If the charter holder fails to make the requested refund, the TEA may recover the over allocation by any means permitted by law, including, but not limited to, the process set forth in TEC, §42.258.

(3) Notwithstanding paragraph (2) of this subsection, the TEA may not garnish or otherwise recover funds actually paid to and received by a charter holder under TEC, §12.106, if:

(A) the basis of the garnishment or recovery is that:

(i) the number of students enrolled in the school during a school year exceeded the student enrollment described by the school's charter during that period; and

(ii) the school received the funds under TEC, §12.106, based on an accurate report of the school's actual student enrollment; and

(B) the school:

(i) submits to the commissioner a timely request to revise the maximum student enrollment described by the school's charter and the commissioner does not notify the school in writing of an objection to the proposed revision before the 90th day after the date on which the commissioner received the request, provided that the number of students enrolled at the school does not exceed the enrollment described by the school's request; or

(ii) exceeds the maximum student enrollment described by the school's charter only because a court mandated that a specific child enroll in that school; and

(iii) used all funds received under TEC, §12.106, to provide education services to students;

(4) Nothing in paragraph (3) of this subsection requires the agency to fund activities that are ineligible for state funding under subsection (d)(1) of this section.

(5) The charter holder may request review under §97.1037 of this title (relating to Record Review of Certain Decisions) of a request to return over-allocated funds under paragraph (1) of this subsection as follows:

(A) Within the time provided by paragraph (1) of this subsection, the charter holder shall file a request for such review accompanied by:

(i) an opinion issued by a certified public accountant (CPA) licensed by the Texas State Board of Public Accountancy, and registered as a provider of public accounting services, that complying with the request to return over-allocated funds would require the CPA to include a "going concern" notation in the annual audit report of the charter holder under Texas Education Code (TEC), §44.008, if that audit report were issued at the time the CPA's opinion letter is issued; or

(ii) a request for the TEA to determine whether complying with the request to return over-allocated funds would likely require inclusion of such a "going concern" notation.

(B) A request under subparagraph (A)(i) of this paragraph shall transmit all financial schedules, reports, or other information used by the CPA to determine that complying with the request to return over-allocated funds would likely require inclusion of a "going concern" notation.

(C) A request under subparagraph (A)(ii) of this paragraph shall transmit or tender complete access to all financial schedules, reports, and information relevant or requested to determine whether complying with the request to return over-allocated funds would likely require inclusion of a "going concern" notation as described in subparagraph (A)(i) of this paragraph.

(D) By submitting a request under subparagraph (A)(ii) of this paragraph, the charter holder agrees to the commissioner's decision whether to grant review under §97.1037 of this title.

(6) If granted by the commissioner under paragraph (5) of this subsection, a review under §97.1037 of this title of a request to return over-allocated funds under paragraph (1) of this subsection shall determine the following:

(A) whether funds have been over-allocated to the charter holder, and by what amount;

(B) whether the over-allocation was based on false or misleading information from the charter holder; and

(C) whether recovering the full amount as required would leave the charter holder sufficient revenue and net assets to appropriately serve its current and future students. In determining sufficient revenue and net assets:

(i) the over-allocation determined under subparagraph (A) of this paragraph must be fully recovered within 24 months from the date on which the determination in subparagraph (A) of this paragraph is made; and

(ii) revenue and net assets shall be insufficient if more than 20 percent of funds allocated for the education of the charter school's current or future students will be used to recover or repay the over-allocation instead of funding educational services to those students.

(7) Following a review under paragraph (6) of this subsection, the TEA shall:

(A) recover the over-allocation, if any, under paragraph (6)(A) of this subsection by any means permitted by law, including, but not limited to, the process set forth in TEC, §42.258; and

(B) if the commissioner has determined under paragraph (6)(B) of this subsection that the over-allocation was based on false or misleading information from the charter holder and under paragraph (6)(C) that recovering the full amount as required would leave the charter holder insufficient revenue and net assets to appropriately serve its current and future students, initiate proceedings to revoke the charter under §100.1022 of this title (relating to Standards for Adverse Action on an Open-Enrollment Charter).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 4, 2007.

TRD-200702224

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: July 15, 2007

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

Subchapter EE. REVIEW BY STATE OFFICE OF ADMINISTRATIVE HEARINGS: CERTAIN ACCREDITATION SANCTIONS

19 TAC §§157.1151, 157.1153, 157.1155, 157.1157, 157.1159, 157.1161, 115.1163, 157.1165, 157.1167, 157.1169, 157.1171, 157.1173

The Texas Education Agency (TEA) proposes new §§157.1151, 157.1153, 157.1155, 157.1157, 157.1159, 157.1161, 157.1163, 157.1165, 157.1167, 157.1169, 157.1171, and 157.1173, concerning hearings and appeals. The proposed new sections would establish provisions relating to the review of certain accreditation sanctions by the State Office of Administrative Hearings (SOAH). The proposal reflects requirements mandated by House Bill (HB) 1, 79th Texas Legislature, Third Called Session, 2006.

HB 1 requires that an opportunity for challenging the record review of accreditation sanctions be available in specified circumstances and provided by the SOAH. Proposed new 19 TAC Chapter 157, Hearings and Appeals, Subchapter EE, Review by State Office of Administrative Hearings: Certain Accreditation Sanctions, would implement these requirements as follows.

Proposed new 19 TAC §157.1151, Applicability, would establish that the subchapter is applicable to final orders issued for alternative management, closure of a school district or an open-enrollment charter school, or closure of a campus. The proposed new section would also specify final orders to which the subchapter does not apply.

Proposed new 19 TAC §157.1153, Applicability of Other Law, would provide guidance for the applicability of other laws in relation to the conduct of hearings.

Proposed new 19 TAC §157.1155, Petition for Review, would detail the requirements for an entity to file a petition for review. The proposed new section would describe the timelines and required content of the petition for review, including allegations and statement of requested relief. The proposed new section would also address failure to comply with petition review requirements and would address TEA responsibilities related to the petition.

Proposed new 19 TAC §157.1157, Standard of Review, would establish procedures for standards for review by the SOAH in relation to decisions made by the commissioner. This new section would also detail the reasons that the SOAH could reverse the decision by the commissioner.

Proposed new 19 TAC §157.1159, Scope of Review; Additional Evidence, would describe the type of additional evidence that can and cannot be submitted to the administrative law judge in addition to the agency record.

Proposed new 19 TAC §157.1161, Components of Agency Record, would detail the components of what should be included in the agency record of proceedings. These components correspond to provisions specified in proposed new 19 TAC §97.1037, Record Review of Certain Decisions.

Proposed new 19 TAC §157.1163, Proceedings Regarding Agency Record, would establish agency procedures for filing the proceedings of the agency record, including timelines and cost.

Proposed new 19 TAC §157.1165, Enforcement of Decision Pending Review, would provide the procedures for the timely implementation of the commissioner's decision.

Proposed new 19 TAC §157.1167, Expedited Review, would provide the process for conducting the review in an expedited manner, including timelines for possible pre-hearings, continuances, and dispute resolution. The proposed new section would also require the administrative law judge to issue a final order no later than the 30th calendar day after the date on which the record is finally closed.

Proposed new 19 TAC §157.1169, Conduct of Review During a Ratings Appeal, would provide procedures for the commissioner and administrative law judge for the conduct of the review during a ratings appeal under TEC, §39.301, and for submission of documents related to the ratings appeal.

Proposed new 19 TAC §157.1171, Final Decision, would provide for final resolution of the appeal and state that the decision of the administrative law judge is final and may not be appealed. The proposal would specify that an administrative law judge may not change an accreditation status or an academic or a financial accountability rating.

Proposed new 19 TAC §157.1173, Application to Charter Schools, would provide for the application of proposed new 19 TAC Chapter 157, Subchapter EE, to open-enrollment charter schools.

David Anderson, general counsel, has determined that for the first five-year period the new sections are in effect there will be no additional fiscal implications for state and local government as a result of enforcing or administering the proposed new sections. The proposed rule actions would add clarification of law related to HB 1, 79th Texas Legislature, Third Called Session, 2006, requirements. While there is no additional fiscal burden beyond what already is required by law, a district may incur costs if it elects to hire an attorney to represent them in a SOAH proceeding. The TEA may incur costs in contracting with the SOAH for these hearings.

Mr. Anderson has determined that for each year of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections would be to ensure that entities are afforded appropriate review of certain accreditation sanctions and to provide guidelines for the TEA and SOAH for the conduct of such reviews. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed new sections.

The public comment period on the proposal begins June 15, 2007, and ends July 15, 2007. Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination Division, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 463-0028. All requests for a public hearing on the proposed new sections submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register.

The new sections are proposed under the Texas Education Code, §39.302, which authorizes the agency to establish procedures for creating an administrative record for review by the State Office of Administrative Hearings for certain decisions.

The new sections implement the Texas Education Code, §39.302.

§157.1151.Applicability.

(a) This subchapter applies only to a final order issued under §97.1037(f) of this title (relating to Record Review of Certain Decisions) that orders:

(1) alternative management of a school district campus or a charter school campus under Texas Education Code (TEC), §39.1327;

(2) closure of a school district or an open-enrollment charter school under TEC, §§39.071(c), 39.131(a), or 39.1321(c); or

(3) closure of a school district campus or charter school campus under TEC, §39.1324 or §39.1327.

(b) This subchapter does not apply to:

(1) a final order issued under §97.1037(f) of this title that orders:

(A) assignment under §97.1055 of this title (relating to Accreditation Status) of an accreditation status of Accredited-Warned or Accredited-Probation;

(B) assignment of a board of managers under TEC, §39.136 and §39.131(a)(9) or §39.1324(c); or

(C) an audit recovery from an open-enrollment charter school under §97.1037(a)(4) of this title; or

(2) a final order issued pursuant to the no-request provision specified in §97.1037(g) of this title.

§157.1153.Applicability of Other Law.

(a) A challenge under this subchapter shall be governed by the contested case procedures provided by this subchapter and Government Code, Chapter 2001, as modified by Texas Education Code, §39.302.

(b) To the extent that a provision of this subchapter conflicts with a rule or practice of the State Office of Administrative Hearings, this subchapter shall prevail.

(c) The record review conducted under §97.1037 of this title (relating to Record Review of Certain Decisions) is not governed by Government Code, Chapter 2001.

§157.1155.Petition for Review.

(a) A school district or open-enrollment charter school subject to a decision defined by §157.1151 of this title (relating to Applicability) (petitioner) may file with the Texas Education Agency (TEA) division responsible for hearings and appeals a petition for review of the decision under this subchapter not later than the 30th calendar day after the date the decision complained of is first communicated to the school district or charter school.

(1) The petition for review shall include a copy of the challenged decision and any attachments or exhibits to the decision.

(2) The petition for review shall concisely state, in numbered paragraphs:

(A) if alleging the decision was made in violation of a statutory provision, the statutory provision violated and the specific facts supporting a conclusion that the statute was violated by the decision;

(B) if alleging the decision was made in excess of the TEA's statutory authority, the TEA's statutory authority and the specific facts supporting a conclusion that the decision was made in excess of this authority;

(C) if alleging the decision was made through unlawful procedure, the lawful procedure and the specific facts supporting a conclusion that the decision was made through unlawful procedure;

(D) if alleging the decision was affected by other error of law, the law violated and the specific facts supporting a conclusion that the decision violated that law;

(E) if alleging the decision was not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole, each finding, inference, conclusion, or decision that was unsupported by substantial evidence in the record;

(F) if alleging the decision was arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, each finding, inference, conclusion, or decision affected and the specific facts supporting a conclusion that each was so affected; and

(G) for each violation, error, or defect alleged under subparagraphs (A) - (F) of this paragraph, the substantial rights of the school district or charter school that were prejudiced by such violation, error, or defect.

(3) A petition for review shall further contain:

(A) a concise statement of the relief sought by the petitioner; and

(B) the name, mailing address, telephone number, and facsimile number of the petitioner's representative.

(4)A request for relief in a review under this subchapter may not be made orally or as part of the record at a prehearing conference or hearing.

(b) Failure to comply with the requirements of subsection (a) of this section shall result in dismissal of the petition for review. A petition for review may not be amended or supplemented after the deadline for filing a petition for review.

(c) The TEA division responsible for hearings and appeals shall transmit the petition for review to the State Office of Administrative Hearings with a request that it be docketed.

(d) If the TEA chooses to file an answer, the answer must be filed by the date the record is filed under §157.1163 of this title (relating to Proceedings Regarding Agency Record).

§157.1157.Standard of Review.

(a) A challenge under this subchapter shall be governed by the substantial evidence rule as provided by Government Code, §2001.174 and §2001.175, and judicial case precedents construing those provisions.

(b) The State Office of Administrative Hearings (SOAH) may not substitute its judgment for the judgment of the commissioner of education on questions committed to commissioner discretion.

(c) The SOAH may not substitute its judgment for the judgment of the commissioner on the weight to be assigned the evidence before the commissioner.

(d) The SOAH may affirm the commissioner decision in whole or in part.

(e) The SOAH shall reverse the decision if substantial rights of the school district or open-enrollment charter school have been prejudiced because the administrative findings, inferences, conclusions, or decisions of the commissioner are:

(1) in violation of a statutory provision;

(2) in excess of the commissioner's authority;

(3) made through unlawful procedure;

(4) affected by other error of law;

(5) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or

(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

§157.1159.Scope of Review; Additional Evidence.

(a) The administrative law judge is confined to the Texas Education Agency (TEA) record, except that the administrative law judge may receive evidence of procedural irregularities alleged to have occurred before the TEA that are not reflected in the record.

(b) A party may apply to the administrative law judge to present additional evidence of procedural irregularities alleged to have occurred before the TEA that are not reflected in the record.

(1) If the additional evidence is material to the outcome of the review, and if there were good reasons for the failure to present it in the proceeding before the TEA, the administrative law judge may order that the additional evidence be taken before the TEA on conditions determined by the administrative law judge.

(2) The commissioner of education may change the TEA findings and decision by reason of the additional evidence, and the TEA shall file the additional evidence and any changes, new findings, or decisions with the administrative law judge.

(c) The administrative law judge may not take testimony, question witnesses, administer oaths, rule on questions of evidence, or compel discovery or disclosure of evidence in any form.

§157.1161.Components of Agency Record.

The Texas Education Agency (TEA) record of proceedings shall include the following components, as specified under §97.1037 of this title (relating to Record Review of Certain Decisions):

(1) the notice of proposed order under §97.1037(b) of this title, including all information referenced in the notice under §97.1037(b)(1) of this title;

(2) the request for record review under §97.1037(c) of this title, including any request for the attendance of specific TEA staff under §97.1037(d)(3) of this title;

(3) any written correspondence made a part of the record by the TEA representative under §97.1037(d)(5) of this title;

(4) any audiotapes or similar recordings made a part of the record by the TEA representative under §97.1037(d) of this title;

(5) all audiotapes or similar recordings of the record review under §97.1037 of this title, and any recorded telephone conferences, proffers of excluded information, or other recorded proceedings before the TEA representative under §97.1037 of this title;

(6) all written information presented to the TEA representative during the record review;

(7) a description of all matters officially noticed; and

(8) the final order under §97.1037(f) of this title.

§157.1163.Proceedings Regarding Agency Record.

(a) The Texas Education Agency (TEA) shall file the original or a certified copy of the entire record of the proceeding under review not later than the 20th calendar day after the date the petition for review is filed, unless additional time is allowed by the administrative law judge.

(b) The record may be shortened by stipulation of all parties to the review proceedings. The administrative law judge may assess costs against a party who unreasonably refuses to stipulate to limit the record, unless that party is required to pay all costs of record preparation.

(c) The petitioner shall offer, and the administrative law judge shall admit, the TEA record into evidence as an exhibit.

(d) The administrative law judge may require or permit later corrections or additions to the record.

§157.1165.Enforcement of Decision Pending Review.

The pendency of a review under this subchapter does not stay or otherwise affect the enforcement of the commissioner of education decision challenged under this subchapter.

§157.1167.Expedited Review.

(a) The State Office of Administrative Hearings shall expedite its review of a challenge under this subchapter.

(b) The administrative law judge shall issue a pre-hearing order initially setting a date for closure of the record that is not later than the 30th calendar day after the date the petition for review is filed.

(c) The administrative law judge may grant a continuance of the date set in subsection (b) of this section only for good cause shown.

(d) The administrative law judge may not order a settlement conference, mediation, or other form of alternative dispute resolution.

(e) The administrative law judge shall issue a final order not later than the 30th calendar day after the date on which the record is finally closed.

§157.1169.Conduct of Review During a Ratings Appeal.

(a) A decision is final within the meaning of §157.1151(a) of this title (relating to Applicability) even if based, in part, on a rating that may yet be appealed under Texas Education Code (TEC), 39.301. In the commissioner of education's sole discretion, the decision may be delayed or withdrawn pending the outcome of a ratings appeal under TEC, §39.301, that is timely and sufficient under applicable rules.

(b) The administrative law judge shall proceed with an expedited review under this subchapter during any ratings appeal under TEC, §39.301, and shall presume for purposes of such review that the rating will not change by reason of the appeal, unless the commissioner:

(1) withdraws the decision under subsection (a) of this section; or

(2) requests that review of the final decision be abated pending the outcome of the ratings appeal.

(c) If a rating is adjusted by the commissioner following an appeal under TEC, §39.301, the administrative law judge shall order that the adjusted rating be treated as additional evidence to be taken before the Texas Education Agency (TEA) under §157.1163 of this title (relating to Proceedings Regarding Agency Record). The TEA may change its findings and/or decision by reason of the additional evidence and shall file the additional evidence and any changes, new findings, or decisions with the administrative law judge.

§157.1171.Final Decision.

(a) The decision of the administrative law judge:

(1) must rule on each mandatory sanction listed in Texas Education Code, §39.1324;

(2) may not order a sanction or relief that the commissioner of education is not authorized to order under applicable law;

(3) may not change an accreditation status; and

(4) may not change an academic or a financial accountability rating.

(b) The decision of the administrative law judge is final and may not be appealed.

§157.1173.Application to Charter Schools.

(a) The charter of an open-enrollment charter school is automatically:

(1) revoked, void, and of no further force or effect on the effective date of a final decision by the commissioner of education ordering the charter school closed under this subchapter; and

(2) modified to remove authorization for an individual campus on the effective date of a final decision by the commissioner ordering the campus closed under this subchapter.

(b) If sanctions are imposed on an open-enrollment charter school under the procedures provided by this subchapter, a charter school is not entitled to an additional hearing relating to the modification, placement on probation, revocation, or denial of renewal of a charter as provided by Texas Education Code, Chapter 12, Subchapter D.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 4, 2007.

TRD-200702225

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: July 15, 2007

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

Chapter 300. GENERAL PROVISIONS

19 TAC §300.1

The Windham School District (WSD) Board of Trustees (Board) proposes amendments to §300.1, Public Testimony and Comments to the Windham School District Board of Trustees. The proposed amendments are necessary to clarify procedures for public presentations and comments on topics under the jurisdiction of the WSD Board.

David McNutt, Chief Financial Officer for the Windham School District, has determined that for the first five (5) years the rule will be in effect, enforcing or administering the rule will not have foreseeable implications related to costs or revenues for state or local government.

Mr. McNutt has also determined, that for the first five (5) year period, there will not be an economic impact on persons required to comply with the rule. There will not be an effect on small or micro businesses. The anticipated public benefit, as a result of enforcing the rule, will be to provide the opportunity for public presentations and comments to the Board.

Comments should be directed to Michael P. Mondville, General Counsel, Windham School District, P.O. Box 40, Huntsville, Texas 77342, Michael.Mondville@wsdtx.org. Written comments from the general public should be received within 30 days of the publication of this rule.

The amendments are proposed under Texas Government Code, Chapter 551.

Cross Reference to Statutes: Texas Government Code, Chapter 551.

§300.1.Public Presentations [ Testimony ] and Comments to the Windham School District Board of Trustees.

(a) Policy. The Windham School District (WSD) Board of Trustees (Board) is committed to providing [ provide ] access and opportunity for public presentations and comments as provided for in this rule. [ testimony on items that are part of the Board's posted agenda as provided for in this subsection and in subsection (b) of this section. The Board also invites public comment on issues within the jurisdiction of the Board as provided for in this subsection and in subsection (c) of this section. ] Persons not employed by or under contract with [ outside ] the WSD [ agency ] who wish to have items placed on the Board's posted [ Board ] agenda , shall [ are invited to ] follow the procedures set forth [ procedure ] in subsection (h) [ (d) ] of this rule [ section ]. Public presentations [ testimony ] and [ public ] comments shall be:

(1) subject to the requirements and restrictions of subsections (b), (c), (d), (e), (f)[ , ] and (g) [ and (h) ] of this rule [ section ];

(2) pertinent to issues under the jurisdiction of the Board, as determined by the Board Chairman and the WSD Superintendent; and

(3) pertinent to [ WSD ] policies, procedures, standards[ , ] and rules of the WSD. Disputes [ , while actual disputes ] that are appropriately [ properly ] the subject of the appeals process for contract non-renewal or employee termination, the employee grievance system, the employee disciplinary system or comments regarding pending litigation shall be addressed through those processes.

(b) Definitions.

(1) Public presentations--presentations made by the public to the Board regarding topics posted on a Board meeting agenda that has been filed with and published by the Texas Register and as provided for in subsection (c) of this rule.

(2) Public comments--comments made by the public on non-posted Board agenda topics and as provided for in subsection (d) of this rule.

(c) [ (b) ] Public presentations. [ testimony on posted agenda topics. ] Persons who desire to make public presentations [ testimony ] to the Board on posted agenda topics shall [ must ] provide, on the date of the meeting, a completed registration card to onsite Board office [ the Board's support ] staff at least ten (10) minutes prior to the meeting's posted start time. Registration cards shall be made available at the entry to the room [ place ] where the Board's scheduled meeting is [ to be ] held . [ and shall include blanks in which all of the following information must be disclosed: ]

(1) Pre-registration is available for public presentations through first class mail (P.O. Box 13084, Austin Texas 78711) or email (tbcj@tdcj.state.tx.us). Pre-registration shall be received by the Board office staff no later than four (4) calendar days prior to the posted meeting date of the presentation. In addition to the information required in subsection (c)(2), pre-registration submissions shall include appropriate contact information (daytime phone number and/or email address) for the individual who is registering to speak.

(2) Registration cards and pre-registration submissions shall disclose:

(A) [ (1) ] the name of the person who will make the [ making a ] presentation;

(B) [ (2) ]a statement as to whether the person is being remunerated [ reimbursed ] for the presentation[ , ] and if so, by whom; and if applicable, the name of the person or entity on whose behalf the presentation will be [ is ] made;

(C) [ (3) ]a statement as to whether the presenter has registered as a lobbyist in relation [ relationship ] to the agenda topic being addressed [ matter in question ];

(D) [ (4) ]a reference to the agenda topic on which [ item, that ] the person wishes to present [ discuss before the Board ];

(E) [ (5) ]an indication as to whether the presenter will [ wishes to ] speak for or against the proposed agenda topic [ item ]; and

(F) [ (6) ]a statement verifying that all [ factual ] information that will [ to ] be presented is factual, [ shall be ] true and correct to the best of the speaker's knowledge [ of the speaker ].

(3) The Board Chairman shall have discretion in setting reasonable limits on the time allocated for public presentations on posted agenda topics. If several persons have registered to address the Board on the same agenda topic, it shall be within the discretion of the Board Chairman to request that those persons select a representative amongst themselves to express such remarks, or to limit their presentations to an expression of support for views previously articulated.

(4) The Board Chairman shall provide an opportunity for public presentations to occur prior to the Board taking action on the topic denoted on the presenter's registration card. If a person who is registered to speak on a posted agenda item is not present when called upon, that person's opportunity to speak prior to action being taken on such topic shall be forfeited.

(5) A presenter may submit documentation pertaining to the public presentation to the Board office staff no later than three (3) calendar days prior to the posted meeting date where the presentation is to occur. Such documentation shall then be distributed to the Board. Any documentation submitted after the above-referenced date will not be distributed to the Board until after the presentation. A minimum of 12 copies of any such documentation shall be submitted to the Board office staff or distribution will not occur.

(d) [ (c) ]Public comments [ on non-posted topics ].

(1) The Board defines its areas of jurisdiction in BP- [ Board Policies 1.00 and ] 2.00, which is available through [ at ] the Board office at the address listed in subsection (c) [ (d) ] of this rule [ section ], or on the Internet at http://www.windhamschooldistrict.org/csd/policy/. Twice a year at the second [ first ] and fourth regular [ regularly ] called meetings of the Board, [ which are typically held in January and July, ] an opportunity shall be provided for public comment on issues that are not part of the Board's posted agenda but are within the Board's jurisdiction [ of the Board ]. Special called meetings are not counted toward the requirement of this subsection.

(2) Persons who desire to make public comments to the Board at these meetings shall [ must ] provide, on the date of the meeting, a completed registration card to onsite Board office [ the Board's support ] staff at least ten (10) minutes prior to the meeting's posted start time. Registration cards shall be made available at the entry to the room [ place ] where the Board's scheduled meeting is [ to be ] held.

(3) Pre-registration is [ also ] available for public comments [ individuals interested in speaking at the bi-annual public comment periods. Pre-registration must be submitted to the Board office either ] through first class mail (P.O. Box 13084, Austin Texas 78711) or email (tbcj@tdcj.state.tx.us) . Pre-registration shall be received by Board office staff [ , and must take place ] no earlier than the first day of the [ even-numbered ] month preceding the Board meeting for which the registration is intended[ , ] and no later than four (4) calendar [ seven (7) ] days prior to the posted [ same ] meeting date where the comments are to occur. In addition to the information required in subsection (d)(4), pre-registration submissions shall include appropriate contact information (daytime phone number and/or email address) for the individual who is registering to speak .

(4) Registration cards and pre-registration submissions shall [ must ] disclose [ the following information ]:

(A) the name of the person who will make [ making ] the comments [ presentation ];

(B) a statement as to whether the person is being remunerated [ reimbursed ] for the comments [ presentation ], and if so, by whom; and, if applicable, the name of the person or entity on whose behalf the comments will be [ presentation is ] made;

(C) a statement as to whether the presenter has registered as a lobbyist in relation [ relationship ] to the topic being addressed [ matter in question ];

(D) the topic on which the person shall speak and whether the person will speak for or against the topic ; and

(E) a statement verifying that all [ factual ] information that will [ to ] be presented is factual, [ shall be ] true and correct to the best of the speaker's knowledge [ of the speaker ].

(5) [ (e) ] [ Presentation timing. ] The Board Chairman shall have discretion in setting reasonable limits on the time [ to be ] allocated for public comments [ testimony or public comment ]. If several persons have registered [ wish ] to address the Board on the same topic [ agenda item ], it shall be within the discretion of the Board Chairman to request that those persons select a representative amongst themselves to express such comments [ who wish to address the same side of the issue coordinate their comments ], or limit their comments to an expression of support for views previously articulated . [ by persons speaking on the same side of an issue. For public testimony on posted agenda topics, the Chairman shall provide an opportunity for said testimony by a person who has submitted a registration card to occur prior to the Board taking action on the item denoted on the registration card. ]

(6) Public comments shall be heard just prior to the conclusion of the Board meeting, with deviation from this practice within the discretion of the Board Chairman. If a person who is registered to speak on a non-posted topic is not present when called upon, that person shall be called once more following all other registered speakers. If that person is not present at that time, their opportunity to speak at that meeting shall be forfeited.

(7) Presenters may submit documentation pertaining to the public comments to the Board office staff no later than three (3) calendar days prior to the posted meeting date where the comments are to occur. Such documentation shall then be distributed to the Board. Any documentation submitted after the above-referenced date will not be distributed to the Board until after the comments. A minimum of 12 copies of any such documentation shall be submitted to the Board office staff or distribution will not occur.

[ (d) Requests that issues be placed on an agenda. Persons outside the agency who wish to have an agenda item posted for discussion shall address their request to the Chairman, Texas Board of Criminal Justice, P.O. Box 13084, Austin, Texas 78711. Such requests should be submitted by the first day of the even-numbered month preceding the Board meeting for which the request is intended and are subject to the requirements of the registration card in subsection (b) of this section. The decision whether to calendar a matter for discussion before the full Board, a Board committee, a Board liaison, or with a designated staff member, shall be within the discretion of the Chairman.]

(e) [ (f) ]Disability accommodations [ accommodation ]. Persons with disabilities who have special communication or accommodation needs and who plan to attend a meeting may contact the Board office at (512) 475-3250 [ in Austin ]. Requests for accommodation shall [ should ] be made at least two (2) calendar days prior to [ before ] a posted meeting. The Board shall [ will ] make every reasonable effort to accommodate these needs.

(f) [ (g) ]Conduct and decorum. The Board shall [ will ] receive public presentations [ testimony ] and [ public ] comments as authorized by this rule [ section ], subject to the following additional guidelines : [ . ]

(1) Due to requirements of the Open Meetings Act, questions [ Questioning of those making presentations ] shall only occur on public presentations as defined herein (not as to public comments as defined herein) that are [ testimony ] associated with posted agenda topics and they shall be reserved for [ to ] Board members and staff recognized by the Board Chairman;

(2) Presentations and comments shall remain pertinent to the issues [ issue ] denoted on the registration cards [ card ];

(3) A presenter [ person ] who is determined by the Board Chairman to be disrupting a meeting shall [ must ] immediately cease the disruptive activity or leave the meeting room if ordered to do so by the Board Chairman; and

(4) A presenter [ person ] may not assign a portion of his or her allotted presentation time to another speaker.

(g) [ (h) ]A presenter [ person ] may not carry or possess a prohibited weapon (as defined in Section 46.05, Texas Penal Code) , an illegal knife, a club[ , ] or a handgun , to include a licensed concealed handgun , during any [ at a ] meeting of the Board.

(h) Requests for issues to be placed on an agenda. Persons not employed by or under contract with the WSD who wish to propose an agenda item for discussion on a Board meeting shall address the request in writing to the Chairman, Windham School District Board of Trustees, P.O. Box 13084, Austin, Texas 78711. Such requests shall be titled, "Proposed Agenda Topic" and shall be submitted no later than the first day of the month preceding the Board meeting for which the request is intended. Such requests are subject to the requirements of the registration card in subsection (c) of this rule. The decision as to whether to calendar a matter for discussion before the Board, a Board committee, a Board liaison, or with a designated staff member shall be within the discretion of the Board Chairman. Public presentations on topics placed on a Board agenda, at the request of an individual, shall be in accordance with subsection (c) of this rule.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 25, 2007.

TRD-200702086

Melinda Hoyle Bozarth

General Counsel, Texas Department of Criminal Justice

Windham School District

Earliest possible date of adoption: July 15, 2007

For further information, please call: (512) 463-0422