Adopted Rules Title 19

TITLE 19. EDUCATION

Part 2. TEXAS EDUCATION AGENCY

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) adopts 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 amendments to §§97.1031, 97.1033, and 97.1035 are adopted without changes to the proposed text as published in the June 15, 2007, issue of the Texas Register (32 TexReg 3440) and will not be republished. New §97.1037 is adopted with changes to the proposed text as published in the June 15, 2007, issue.

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 adopted amendments update and clarify these procedures. The adopted new rule establishes procedures for creating an administrative record for review by the State Office of Administrative Hearings (SOAH). The adopted rule actions 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 adopted revisions to 19 TAC Chapter 97, Subchapter DD, update and clarify existing rules in light of HB 1. In addition, a new rule is added establishing procedures for creating an administrative record for review by the SOAH under new TEC, §39.302. Specifically, the adopted revisions establish the following.

Section 97.1031, Preliminary Investigative Report, was amended by adding new 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 adopted amendment addresses a rating or determination that may be lowered or changed as a result of such an investigation. No changes were made to this section since published as proposed.

Section 97.1033, Informal Review of Preliminary Investigative Report; Final Investigative Report, was amended in subsection (c) to clarify discussion of findings and/or acceptance of additional written information. Additional minor technical corrections were made throughout the section. No changes were made to this section since published as proposed.

Section 97.1035, Procedures for Accreditation Sanctions, was revised to reference new 19 TAC Chapter 97, Subchapter EE, Accreditation Status, Standards, and Sanctions. Existing subsections (a) - (c), which reference outdated TEC provisions, were deleted. Re-lettered subsections (a) - (d) address notification to the district, compliance with revisions in §97.1031 and §97.1033, and annual and quarterly review of sanctions and assignments of conservators or management teams. No changes were made to this section since published as proposed.

New 19 TAC §97.1037, Record Review of Certain Decisions, was added to establish procedures for creating an administrative record for review by the SOAH for certain decisions. This new rule as adopted applies 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 over-allocation of funds from an open-enrollment charter school. The new rule also addresses the required notice, request for record review, preliminary matters, record review, final order, no request for record review, and other law.

In response to public comment, the language in 19 TAC §97.1037(a)(4) was revised to reflect that the section applies to a request for review of an over-allocation, as opposed to an audit recovery, from an open-enrollment charter school. Also, the TAC citation referencing the commissioner of education's determination to grant the request for review was updated.

The subchapter name was 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.

The public comment period on the proposal began June 15, 2007, and ended July 15, 2007. The comment period was extended through August 20, 2007. Following is a summary of public comments received and corresponding agency responses regarding the proposed amendments and new section.

§97.1031, Preliminary Investigative Report

Comment. Concerning §97.1031(b)(3), a representative of Association of Charter Educators (ACE) requested a change to the deadline for requesting an informal review of the findings of a preliminary investigative report. The commenter recommended setting a deadline of not less than ten business or school days from the date of receipt of the preliminary investigative report.

Agency Response. The agency disagrees. The comment addresses rule language that was not included for change in the proposed amendment. In addition, it should be noted that the language currently in effect was adopted effective November 6, 2001, and has functioned as intended. See 26 TexReg 8820.

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

Comment. Concerning §97.1033(a), a representative of the Association of Texas Professional Educators (ATPE) requested clarification whether failure to exhaust this administrative means of addressing a concern might waive or impair other valuable rights.

Agency Response. The agency cannot respond to this comment because it is not authorized to give legal advice through the rulemaking process. Further, the comment addresses rule language that was not included for change in the proposed amendment.

Comment. Concerning §97.1033(a), two attorneys requested clarification about the rights of "persons" as opposed to those of "districts," as used in the proposed rules implementing Texas Education Code (TEC), Chapter 39. The commenters added that the rules establish different procedures applicable to persons and districts.

Agency Response. The agency disagrees. In all instances, the current and proposed rules use the term "person" to include a district, and the term "district" to include a charter holder. The interpretation of the word "person," as found in TEC, §39.076, is governed by the Code Construction Act. That Act defines the term "person" as follows: "Person" includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity. See Government Code, §311.005(2).

When the Legislature used the term "person" in TEC, Chapter 39, without assigning it a different meaning, it assigned the term the meaning found in the Code Construction Act.

No further definitional rule is required for the term "person" to acquire the meaning assigned by law. Nevertheless, since readability and ease of use is an important goal in the agency's rulemaking, 19 TAC Chapter 97, Subchapter EE, §97.1051, was modified to include a definition for "person." Clarification was also added to §97.1051 that the definitions found in that subchapter also apply to Chapter 97, Subchapter DD.

Comment. Concerning §97.1033(c), a representative of the ACE asked if all written information needs to be attached to the request for review. The commenter stated ten days is not sufficient time to submit written data to support the school's review request.

Comment. Concerning §97.1033(f), two attorneys asked for clarification of the apparent ban on appeal of preliminary investigation reports. The commenter stated this does not seem consistent with other provisions of the proposed rules.

Agency Response. The agency disagrees. The comment addresses rule language that was not included for change in the proposed amendment. It should be noted that the language currently in effect was adopted effective November 6, 2001, and has functioned as intended. See 26 TexReg 8820. In addition, judicial case law governs the circumstances under which there may be a judicial cause of action for review of any agency decision. However, TEC, §7.057(a)(1), does not provide for the appeal of an investigation report issued under TEC, §39.076(b). That section provides a forum for persons "aggrieved by . . . the school laws of this state," which are defined as Titles 1 and 2 of the TEC and rules adopted under those statutes. See TEC, §7.057(f)(2). An investigative report is not a school law of this state, and is not governed by TEC, §7.057(a)(1). TEC, §39.076(b), requires the findings from an investigation authorized by TEC, Chapter 39, Subchapter D, to be presented in preliminary form before being finally released. This informal review enables the agency to correct any errors before releasing its final report. An informal review is not an adjudicative hearing, and so the Administrative Procedure Act does not apply to it. See Government Code, §2001.003(1). Section 97.1033 provides for the procedural elements that are necessary and conducive to insuring that any errors contained in a preliminary investigative report are corrected before it is released in final form. That is its intended function.

§97.1035, Procedures for Accreditation Sanctions

Comment. Concerning §97.1035(d), a representative of ACE requested that the proposed rule be revised to include certain language contained in TEC, §39.133.

Agency Response. The agency disagrees. The language currently in effect was adopted effective November 6, 2001. See 26 TexReg 8820. Since that time, the TEC was amended to reorganize the language formerly found in TEC, §39.131. Certain subsections of former TEC, §39.131, were broken out as independent statutory sections, and the proposed amendment to §97.1035 simply insures that the correct statutory provisions are referenced in the rule. No substantive change in the meaning of the existing rule is made or intended. The agency was required by former law to conduct its review in the same manner as by current law. The agency is required by TEC, §39.133, to follow its requirements in implementing §97.1035(d).

§97.1037, Record Review of Certain Decisions

Comment. Concerning proposed §97.1037, two attorneys advocated a "de novo" standard of review for the decisions required by proposed §97.1037.

Agency Response. The agency disagrees. TEC, §39.302, provides that a "challenge to a decision under this section is under the substantial evidence rule as provided by Subchapter G, Chapter 2001, Government Code." Subchapter G of the Administrative Procedure Act governs a judicial appeal from a decision under that Act. Within that subchapter, §2001.173, Trial De Novo Review, governs those cases where the "manner of review authorized by law for the decision in a contested case that is the subject of complaint is by trial de novo." The manner of review authorized by TEC, §39.302, is not by trial de novo, but under "the substantial evidence rule." Accordingly, Government Code, §2001.173, does not apply to this review.

The commissioner of education is a public office established to make decisions in the field of public education, and TEC, Chapter 39, requires the commissioner to make all accreditation decisions. The commissioner may not assign this function to SOAH. Yet under HB 1, the decision of SOAH on a number of the most significant accreditation matters "is final and may not be appealed." See TEC, §39.302(c)(3). This vests an exceptional amount of authority over accreditation matters in an agency without jurisdiction or expertise in public education. The agency must interpret the statute so as to preserve all discretion over accreditation policy in the commissioner, while deferring to SOAH's authority to accomplish the purposes of the statute. Because SOAH's review is final and not appealable, all components of a complete accreditation decision must be accomplished by the commissioner in order for it to receive proper review.

Comment. Concerning proposed §97.1037, a representative of the Texas Chapter of the American Federation of Teachers (Texas AFT) stated if the record review is a prerequisite to an appeal, then deadlines should be stated in every document.

Agency Response. The agency disagrees. The comment does not directly address rule language that was included in the proposed new rule. Rather, the comment suggests a mode of practice under the rule. While the point is sound that the agency should provide clear notice in its official correspondence of the requirements under the rule, it is not appropriate to append language to this effect to every subsection of the rule. Subsection (g) of new §97.1037 clearly states the effect of failing to prosecute an appeal under the rule. Other parts of the rule deal with the requirements for prosecuting that appeal.

Comment. Concerning proposed §97.1037, five administrators and an individual suggested that the decision of the commissioner to assign an academic accountability rating under TEC, Chapter 39, should be reviewed under proposed §97.1037(a).

Agency Response. The agency disagrees. The procedures in §97.1037 do not meet the requirements of TEC, §39.301. Section 97.1037 is designed to meet the requirements of TEC, §39.302, which applies to different decisions under TEC, Chapter 39, and imposes different requirements. The rule applicable to an appeal under TEC, §39.301, has previously been adopted under 19 TAC Chapter 97, Subchapter AA, §97.1001.

Comment. Concerning proposed §97.1037, five administrators and an individual asked why charter amendment denials are not reviewable under the process of §97.1037(a).

Agency Response. The comments suggest that the decision of the commissioner under TEC, §12.114, whether to agree to amend a contract for charter should be reviewable via the process for appealing an accreditation decision to SOAH. The agency disagrees for the following reasons.

An open-enrollment charter is required by TEC, §12.112, to take the form of a written contract. Like all contracts, the charter is an agreement between the charter authorizer and the charter holder. It cannot exist without the agreement of both parties. While this agreement is initially negotiated at the moment of its creation, TEC, §12.114, provides a mechanism for negotiating amendments after its creation. Under contract law, an amendment of an existing contract requires the consent of both parties. Where one party does not agree to alter the existing contract, the prior agreement remains in effect and the proposed changes fail to become part of the agreement. For this reason, it is not possible for a revision of the charter contract to occur without the approval of the commissioner.

As stated in TEC, §12.114, "A revision of a charter of an open-enrollment charter school may be made only with the approval of the commissioner." Giving this approval must be a voluntary act. If the commissioner's agreement is not voluntary, the coercive nature of the approval renders the resulting agreement void under contract law. Thus, there can be no appeal from the commissioner to SOAH.

Comment. Concerning proposed §97.1037(a), a superintendent stated when accountability ratings are not reviewable it is unfair.

Agency Response. The agency disagrees. Under the provisions of TEC, §39.301, the commissioner is required to provide a process by which a school district or open-enrollment charter school can challenge agency decisions related to the academic or financial accountability systems, and provision for such challenge is made in both the academic accountability manual and the financial accountability manual, which are adopted annually. Language in §97.1037 does not deny a school access to this appeal process.

Comment. Concerning proposed §97.1037(a)(4), a board of trustees member requested clarification of the language of proposed §97.1037(a)(4) and the rule to which it refers, proposed §100.1041(e)(5).

Agency Response. The agency agrees with the need for clarification. The comment identifies a discrepancy between proposed §97.1037(a)(4) and the rule to which it refers, proposed §100.1041(e). The over-allocated funds to be recovered under TEC, §42.258, include both audit recoveries and other types of over-allocations, such as those recognized during the settle-up process. It was not the agency's intent to limit review of over-allocations under proposed §97.1037(a)(4) to those arising only from audits. Rather, the broader term "over-allocation" should replace the narrower, "audit recovery," in subsection (a)(4). In response to public comment, §97.1037(a)(4) was modified to address an over-allocation rather than an audit recovery. This subsection was also modified to make a technical correction.

Comment. Concerning proposed §97.1037(b)(2), a representative of ACE advocated an objective, non-biased agency representative and a process and qualifications for selecting the representative. Two attorneys advocated substituting an independent hearing officer in lieu of the commissioner for purposes of making the decisions required by §97.1037.

Agency Response. The agency disagrees for the following reasons. The commissioner's decision cannot be rendered by a person independent of the commissioner because TEC, Chapter 39, requires the commissioner to make all accreditation decisions. TEC, §7.055(b)(5), permits this function to be delegated within the agency only. TEC, §39.302, authorizes substantial evidence review of the commissioner's decision by another state agency, but the commissioner may not assign the authority to make the accreditation decision to SOAH or to an independent hearing officer.

Agency staff who is most familiar with each district's performance should advise the commissioner on accreditation decisions respecting that district. The office of the commissioner of education was established by the Texas Legislature to make decisions in the field of public education. Like all executive agencies, the commissioner has jurisdiction over a highly specialized, complex, and technical area of governmental decision making. Absent the need for specialized expertise and experience, decisions that are made by the commissioner would be made either by the legislature through statutes or by the judiciary through individual case adjudication. The commissioner must bring to bear all the knowledge and skills available when making decisions committed to the commissioner by statute. Particular expertise resides in the senior staff responsible for administering the programs of the agency on a daily basis. Those are the individuals who will normally be designated to serve as the agency representative for purposes of the record review under §97.1037.

SOAH is a specialized agency whose expertise lies in the processes for administrative adjudication of any decision. It has great skill and knowledge concerning the procedural requirements for making a vast array of decisions, but it has no subject matter expertise in any field of knowledge that is the subject of these decisions. In particular, SOAH has no specialized knowledge that makes it an appropriate body to make substantive decisions respecting the accreditation of Texas public school districts.

Under HB 1, the decision of SOAH on a number of the most significant public education matters "is final and may not be appealed." See TEC, §39.302(c)(3). This vests an exceptional amount of authority over public education matters in an agency without jurisdiction or expertise in public education. The agency must interpret the statute so as to preserve all discretion over public education policy in the commissioner, while deferring to SOAH's authority to accomplish the purposes of the statute. The purpose of the review in §97.1037 is to make a record of the commissioner's decision. The purpose of the review established in new Chapter 157, Subchapter EE, is to provide an objective, non-biased appeal from this decision. The two processes serve entirely different functions and require decision-makers best suited to each task.

The agency finds it is inappropriate to preclude a TEA representative from serving on the grounds that the representative was involved in or is knowledgeable about the facts of the particular case. Rather, the TEA representative should have such knowledge in order to provide the best recommendation to the commissioner. If the TEA representative cannot provide objective professional advice to the commissioner in a given case, the commissioner will of course appoint a different representative.

Comment. Concerning proposed §97.1037(b)(3), a representative of ACE suggested that "ten calendar days" be extended to ten business or school days and suggested that the time allotted begin on actual receipt.

Agency Response. The agency disagrees. The language is based on existing §97.1031(b)(3) and serves a similar function. This language has been used extensively by the agency since its effective date on November 6, 2001. The language has functioned as intended and has not prevented extensions of time where appropriate.

Comment. Concerning proposed §97.1037(d)(1)(C), a representative of ACE requested that the specified time period be stated in terms of business days in lieu of calendar days.

Agency Response. The agency disagrees. This is inconsistent with the intent of the proposed rule, which is to insure that all sanctions appeals be completed in time for the affected school district to plan and implement the sanction by the start of the next succeeding school year. Section 97.1037 is not the procedure for appealing the commissioner's action under the relevant standards; it is the process by which the commissioner will take the appropriate action. Following this step, an appeal to SOAH may lie under new 19 TAC Chapter 157, Subchapter EE. The timelines established in §97.1037(d)(1)(C) are necessary in order to insure the timely completion of all such appeals for the coming school year, and to provide the district and campus administrative staff sufficient time to plan and implement any changes that may be required following the appeal.

Comment. Concerning proposed §97.1037(d)(1)(D), a representative of ACE requested that safeguards be included to insure that the agency complies with its own deadlines.

Agency Response. The agency disagrees for the following reasons. First, §97.1037(d)(1)(C) states a goal and not an absolute deadline for completion of the appeal. The purpose of stating the goal of 30 days for completion is to give appropriate guidance to the agency representative and the parties on the expected pace of the record review phase of the process. It does not preclude reasonable extensions of time for extenuating circumstances. Second, the purpose of the process established by §97.1037 is to create a record which may be reviewed by SOAH. Under the substantial evidence rule, the consequence for the agency's failure to present a sufficient record is that its intended decision will be reversed. This is a severe consequence, and more than sufficient to insure the agency will endeavor to present all the information necessary to support its decision. The agency must also, however, present this information in time for its intended sanction to be effectuated in the following school year. If the agency fails to make the record in time for the appeal to be concluded at SOAH, the consequence may be that its intended sanction cannot be implemented by the start of the next school year. Again, this consequence is more than sufficient to insure the agency will endeavor to make the record of its decision with all due speed.

Comment. Concerning proposed §97.1037(d)(3)(B), a representative of ACE requested that safeguards be included to insure that the district has reasonable opportunity to question all relevant witnesses and establish a complete record.

Agency Response. The agency disagrees. Section 97.1037(e)(13) allows for the participation of witnesses by telephone, and §97.1037(e)(12) permits the entire record review to be conducted by telephone. Section 97.1037(d)(3)(B) allows for the record review to be scheduled at a time that might accommodate a request that certain staff be physically present, but the interests of the district and the agency require that a record review be completed in a timely fashion. If, in extraordinary circumstances, the district believes the physical presence of certain staff was necessary for a fair decision to be reached, then §157.1159(b) permits this to be presented in the form of additional evidence on appeal.

Comment. Concerning proposed §97.1037(e)(11), a representative of ACE suggested that the district be allowed to determine the special skills and knowledge of the TEA representative during the record review.

Agency Response. The agency disagrees. Section 97.1037(e)(11) is taken from Government Code, §2001.090, which provides that the "special skills or knowledge of the state agency and its staff may be used in evaluating the evidence." This language takes note of the fact that the TEA was created by the legislature to make decisions in the field of public education. It is not a fact to be determined by the district but a legislative presumption stemming from the purpose for which the agency was established and the nature of the decisions it makes on a routine basis.

Comment. Concerning proposed §97.1037(g)(2), a school board member asked the meaning of proposed §97.1037(g)(2) and suggested that the agency should expressly state whether it interprets TEC, §39.1321(d), as modifying the right to a hearing under TEC, §12.115 and §12.116.

Agency Response. The agency disagrees. The 79th Texas Legislature passed HB 1 in its Third Called Special Session, on May 15, 2006. HB 1 made a significant change to the law governing a charter contract under TEC, §12.112. Not only must the procedures provided by TEC, §39.301 and §39.302, govern actions under TEC, Chapter 39; but once specific accreditation sanctions have been duly imposed under TEC, Chapter 39, specific adverse action under TEC, §12.115, is both mandatory and automatic. There is no further hearing provided or permitted. To the extent that it modifies or limits a procedural right that may have existed under prior law, HB 1 has amended TEC, §12.115. Under TEC, §12.1071(a), a charter holder that did not agree to be bound by this change was required to decline further funding of its charter program after HB 1 was enacted.

HB 1 enacted a comprehensive system of procedures for determining each district's performance under state accreditation standards and the sanctions and other actions required by that performance. Before HB 1, it might have been argued that a charter school, by reason of its contract with the state, had two opportunities to overturn the commissioner's accreditation decision, similar to all of the procedures available to a similarly situated school district. In addition, if that process did not change the outcome, it could demand a hearing under TEC, §12.115. TEC, §39.1321(d), clarifies that a contract under TEC, §12.112, does not shield its holder from appropriate action under the state accreditation system. The agency interprets subsections (c) and (d) of TEC, §39.1321, as intended to effectuate the policy stated in subsection (a), that the sanctions under TEC, Chapter 39, that apply to a school district or campus "apply in the same manner to an open-enrollment charter school."

Comment. Concerning proposed §97.1037(g), a representative of ACE commented that the timing of an automatic revocation under proposed §97.1037(g)(1)(A) could be disruptive to students, parents, and teachers of the district and suggested that a uniform timeline be set to avoid this.

Agency Response. The agency disagrees. The timing and effective date must be considered by the commissioner on a case-by-case basis as part of issuing a final order under §97.1037(f). It is not possible to fix a general rule that will address every imaginable set of circumstances that comes for decision, so the effective date of the decision should be established through the record review process.

Comment. Concerning proposed §97.1037, a legislator, a representative of ACE, an individual, five administrators, a charter school founder, a charter school superintendent, and a charter school chief executive officer and founder suggested that proposed §97.1037 implements a bill that failed to pass the Texas Legislature.

Agency Response. The agency disagrees. The 79th Texas Legislature passed HB 1 in its Third Called Special Session, on May 15, 2006. HB 1 enacted TEC, §39.1321, which is the basis for proposed §97.1037. This statute clearly states that once specific accreditation sanctions have been duly imposed under TEC, Chapter 39, specific adverse action under TEC, §12.115, is both mandatory and automatic. There is no further hearing provided or permitted. TEC, §39.1321(c) and (d), expressly direct the commissioner to adopt rule text as specified in §97.1037(g). TEC, §39.1321(c), added by HB 1, directs the commissioner to establish specific requirements for automatic revocation or modification of the charter of an open-enrollment charter school if closure of the charter school is ordered. The corresponding language in §97.1037(g)(1) provides for revocation or modification of the charter on the effective date of a final decision ordering a charter school closure. TEC, §39.1321(d), added by HB 1, further specifies that an open-enrollment charter school is not entitled to an additional hearing for sanctions imposed under procedures provided by TEC, Chapter 12, Subchapter D. The corresponding language in §97.1037(g)(2) implements this statutory specification. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1037, a CEO and founder of a charter school stated that the proposed rule will have a negative impact on drop-out recovery charter schools, handcuffing the agency in its mandated sanction requirements and then denying the schools their full measure of constitutional due process protection. These rules include §97.1037, which establishes a record review process that gives the commissioner total discretion in deciding accountability appeals and then insulates those decisions from both judicial and administrative appeal.

Agency Response. To the extent this comment deals with the process mandated by TEC, §39.301, for the appeal of an accountability rating, the agency cannot respond. The rules promulgated under TEC, §39.301, are not proposed for adoption or modification. To the extent this comment deals with the process mandated by TEC, §39.302, for the appeal of an accreditation sanction or other action, the agency finds that new §97.1037 is required by TEC, §39.302, which provides that a "challenge to a decision under this section is under the substantial evidence rule as provided by Subchapter G, Chapter 2001, Government Code." A substantial evidence review of the commissioner's decision requires two steps: a decision by the commissioner under the relevant provision of TEC, Chapter 39, and a review of that decision by SOAH. Section 97.1037 is not the appeals process required by TEC, §39.302. It is the process by which the commissioner makes the decision that is subject to appeal. Because the manner of review is by substantial evidence on the record, the agency must make a record which may be reviewed under the substantial evidence rule. Section 97.1037 is simply the process by which the record of the commissioner's decision is created. Under TEC, §39.302(c)(3), SOAH's determination of the appeal of the commissioner's decision "is final and may not be appealed."

General Comment

Comment. A CEO and founder of a charter school asked that the agency carefully consider the negative impact that the proposed rules under TEC, Chapter 39, will have on drop-out recovery charter schools. The commenter stated the best and most experienced minds remind us of the need to overhaul the state accountability system to recognize and reward these special schools, and the proposed rules as a group ignore the promise that adverse action against the charter contract will consider the "best interest of the students" under TEC, §12.115(b). None of the proposed rules for adoption under Title 19, Texas Administrative Code Chapter 97, Subchapter DD, or Chapter 157, Subchapter EE, give any weight to this interest; it is not even mentioned. TEC, Chapter 12, specifically mandates consideration of this factor when applying accountability sanctions to charters under TEC, Chapter 12. The commenter strongly urged that these errors and oversights be corrected, and that the adoption of the rules be delayed until the next legislative session to permit the legislature the opportunity to correct accountability to reflect learning growth.

Agency Response. TEC, §39.1321, provides that TEC, §12.115(b), has no applicability to an accountability sanction under Chapter 39. However, the accountability standards established by the commissioner under TEC, Chapter 39, do take into consideration the best interests of the students. It is in the best interests of its students that each public school meet the minimum state standards. These substantive standards are not found in either Chapter 97, Subchapter DD, or Chapter 157, Subchapter EE, because those provisions deal exclusively with the process. The substantive standards are adopted at Chapter 97, Subchapter EE, which comprises the commissioner's determination on the best interest of the state's students with respect to each of the criteria set or authorized to be set by statute. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Two attorneys requested that the comment period be expanded to allow for additional time and input.

Agency Response. The agency agrees. The public comment period was extended through August 20, 2007.

The amendments and new section are adopted 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.

§97.1037.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

(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 over-allocation from an open-enrollment charter school granted by the commissioner of education under §100.1041(e) 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.

(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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 17, 2007.

TRD-200706403

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Effective date: January 6, 2008

Proposal publication date: June 15, 2007

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

Subchapter EE. ACCREDITATION STATUS, STANDARDS, AND SANCTIONS

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) adopts 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. New §§97.1051, 97.1053, 97.1055, 97.1057, 97.1061, 97.1063, and 97.1067, are adopted with changes to the proposed text as published in the June 15, 2007, issue of the Texas Register (32 TexReg 3443). New §§97.1059, 97.1065, 97.1069, 97.1071, and 97.1073 are adopted without changes to the proposed text as published in the June 15, 2007, issue and will not be republished.

The adopted new sections define the accreditation statuses of Accredited, Accredited-Warned, Accredited-Probation, and Not Accredited-Revoked and state how accreditation statuses would be determined and assigned to school districts. The adoption also establishes accreditation standards and sanctions, including definitions, purpose, technical assistance teams, campus intervention teams, reconstitution, campus closure, alternative management, intervention stages, and oversight appointments. The adoption reflects changes required by House Bill (HB) 1, 79th Texas Legislature, Third Called Session, 2006.

HB 1, 79th Texas Legislature, Third Called Session, 2006, amended the TEC, Chapter 39, Public School System Accountability, and, as a result of these changes, new rules must be adopted to implement the changes. The new 19 TAC Chapter 97, Planning and Accountability, Subchapter EE, Accreditation Status, Standards, and Sanctions, establishes new rules to ensure compliance with HB 1, as follows.

New 19 TAC §97.1051, Definitions, defines by rule a number of terms, including "campus," "campus closure," and "reconstitution."

In response to public comment, 19 TAC §97.1051 is modified to incorporate a definition of "person" and to revise the definitions of "campus closure" and "reconstitution." Additionally, a previous reference to the application of these definitions to this subchapter has been revised to reference their applicability to Subchapter DD of this chapter as well as Subchapter EE. Also, in response to comments, terms dealing with charter schools have been removed, leaving those matters to be governed by statute.

New 19 TAC §97.1053, Purpose, states the statutory purposes of accreditation statuses and sanctions. The adoption also explains that the accreditation status assigned to a district under this new subchapter reflects performance beginning with the district's 2006 ratings; however, performance for earlier years would be considered for the purposes of accreditation sanctions.

In response to public comment, 19 TAC §97.1053(b) is modified to indicate that the accreditation status assigned to a district under this new subchapter generally reflects performance beginning with the district's 2006, as opposed to 2007, ratings. Subsection (b) is also modified to clarify that both accreditation statuses and sanctions assigned under the subchapter shall take into consideration the performance of districts for earlier years. In response to comments, references to charter schools have been removed, leaving those matters to be determined by statute.

New 19 TAC §97.1055, Accreditation Status, defines the requirements a school district must meet each school year to receive the status of Accredited and states how the accreditation statuses of Accredited-Warned, Accredited-Probation, and Not Accredited-Revoked are determined, in accordance with the TEC, §39.071. The adopted rule also provides 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.

In response to public comment, 19 TAC §97.1055(a)(1)(A) is modified to revise the language describing the meaning of the Accredited status to ensure clarity regarding the timing of status assignment. Additionally, 19 TAC §97.1055(a)(6) is added to address a circumstance in which it may be necessary to leave a district's accreditation status pending during the course of certain investigative activities. Also, 19 TAC §97.1055(b)(1), (c)(1), and (d)(1) are modified to indicate that the accreditation status assigned to a district under this new subchapter reflects performance beginning with the district's 2006, as opposed to 2007, ratings. A technical correction was made to 19 TAC §97.1055(a)(4) to substitute a citation to a new rule for a citation to the TEC to provide additional specificity.

New 19 TAC §97.1057, Accreditation Sanctions, establishes 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.

In response to public comment, 19 TAC §97.1057(d) is modified to reflect that the sanctions referenced in the subsection may be applied to a district or campus, as applicable. Additionally, the language of 19 TAC §97.1057(e)(3) is modified to revise the language regarding sanction determinations resulting from receipt of a substantial over-allocation of funds.

New 19 TAC §97.1059, Standards for All Accreditation Sanction Determinations, reflects certain standards to be used by the commissioner in determining sanctions. The new rule states 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. No changes were made to this section since published as proposed.

New 19 TAC §97.1061, Technical Assistance Team Campuses, references 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 adopted new rule addresses the waiver of this requirement under standards adopted in the applicable annual accountability manual. The section also defines the composition and discusses the activities of the technical assistance team.

In response to public comment, 19 TAC §97.1061 is modified by the addition of subsection (f) related to circumstances in which a campus that otherwise would be assigned a technical assistance team already has a campus intervention team (CIT) in place.

New 19 TAC §97.1063, Campus Intervention Team; Reconstitution, implements the provisions of HB 1 related to campuses rated Academically Unacceptable under the state academic accountability rating system and the assignment of a CIT to those campuses. Additionally, the section outlines the obligation of certain principals to participate in the school leadership pilot program required under the TEC, §11.203, and the district's responsibility for covering costs associated with the program. The section also defines the timeline under which a campus can and/or will be ordered to undergo reconstitution. In addition, the adopted new rule describes 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 adopted 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.

In response to public comment, 19 TAC §97.1063(a)(2) is modified to clarify the reference to a campus', as opposed to a district's, failure to implement a school improvement plan or the recommendations of a CIT. In addition, a change was made to 19 TAC §97.1063(b) to specify that the school leadership pilot program is statutorily required. The change also references the program generally in the event the program name changes in the future. Additionally, the language of 19 TAC §97.1063(c)(3) and (e) is modified to better describe when the commissioner will order alternative management or campus closure when a campus has failed to implement recommendations of the CIT or terms of the school improvement or school improvement and reconstitution plan.

New 19 TAC §97.1065, Campus Closure or Alternative Management, implements 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 adopted new rule clarifies that the commissioner may take other actions in combination with actions taken under this section. The rule also clarifies 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 adopted new rule provides parameters to be considered by the commissioner in determining whether to order alternative management or closure of a campus. No changes were made to this section since published as proposed.

New 19 TAC §97.1067, Alternative Management of Campuses, implements the provisions of HB 1 related to the assignment of alternative management entities to certain campuses. The adopted rule specifies the timelines and requirements for district implementation of an alternative management contract and discusses the roles that will be played by the alternative management entity. The adopted rule also specifies a district's obligation to a campus for which alternative management has been ordered.

In response to public comment, 19 TAC §97.1067(c)(2) is modified to clarify the references to statute and rule regarding ways in which the commissioner may respond to reports received from an alternative management service provider.

New 19 TAC §97.1069, Providers of Alternative Campus Management, provides 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 also specifies 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. No changes were made to this section since published as proposed.

New 19 TAC §97.1071, Special Program Performance; Intervention Stages, codifies intervention and sanction processes in place under the Performance-Based Monitoring (PBM) system. The adopted rule describes intervention activities, notification processes for PBM intervention staging, and possible interventions and/or sanctions that may be implemented under the PBM system. No changes were made to this section since published as proposed.

New 19 TAC §97.1073, Appointment of Monitor, Conservator, or Board of Managers, is added to establish criteria for the appointment of a monitor, conservator, management team, or board of managers by the commissioner. No changes were made to this section since published as proposed.

§97.1051, Definitions

Comment. Concerning proposed §97.1051, a representative of Texas State Teachers Association (TSTA) requested that definitions of campus intervention team (CIT), technical assistance team (TAT), manager conservator, and any other term of art used in the rules be included in the definitions section.

Agency Response. The agency disagrees. These terms are defined in statute under Texas Education Code (TEC), §§39.131, 39.132, 39.1322, and 39.1323, and the agency is using those definitions.

Comment. Concerning proposed §97.1051(3), two school district administrators and a representative of Texas Association of School Administrators (TASA) stated that requiring completely different instructional programs at grade levels not previously served would make the cost of the retrofit of the building and contents quite high.

Agency Response. The agency disagrees. While the agency agrees that the cost of retrofitting a high school to serve elementary students could be quite high in unique circumstances, closure is only ordered when a campus has exhibited persistently low performance over four ratings cycles.

Comment. Concerning proposed §97.1051(3), a school district administrator stated that the elected school board of the district should decide if a school building is to be repurposed, but the commissioner could determine the factors that would govern the repurposing, and suggested possible factors for consideration. The commenter predicted the greatest impact of a closure determination by the agency would be on high schools, and that crowded conditions in other high schools and distance between high schools would result in long commutes. The commenter proposed that the agency set a date for campus closure that is minimally disruptive.

Agency Response. The agency disagrees in part and agrees in part. The intent of the TEC, §39.1324, is to impose mandatory sanctions on those campuses that exhibit low performance persisting over four or more ratings cycles, and the law gives authority to the commissioner to determine when a campus must be closed. A campus subject to mandatory sanctions under TEC, §39.1324, has exhibited patterns of persistent low performance, and the agency finds that the definition aligns with the intent of HB 1, 79th Texas Legislature, Third Called Session. The governing board of a district or charter school has multiple opportunities to make changes to the campus in prior years, based on criteria it sets. The agency agrees that consideration should be given to disruptions, but also recognizes the need to balance this consideration against the educational needs of students served by the campus. At such time that a campus closure would be ordered, the agency will set a date that provides reasonable opportunity for the district to prepare.

Comment. Concerning proposed §97.1051(3), two school district administrators; two individuals from the Texas Institute for Education Reform; and representatives of TASA, TSTA, Texas School Alliance (TSA), and Texas Association of School Boards (TASB) stated that the proposed rule limits the options for use of a repurposed building by requiring that the repurposed campus not serve students at the same grade levels as the closed campus because this would exclude using the repurposed building to serve students of one gender at the same grade levels, or entering into an agreement with charter school operators to operate a campus with the same grade levels. The TASB representative stated that this appears inconsistent with the TEA's high school redesign initiative.

Agency Response. The agency disagrees. A district ordered to close a campus may apply to the commissioner to repurpose the facility. Under the provisions of TEC, §39.1324, closure occurs after the campus has exhibited patterns of persistent low performance. The agency finds that the definition aligns with the intent of HB 1, 79th Texas Legislature, Third Called Session.

Comment. Concerning proposed §97.1051(3), a representative of TASB stated that the proposed rule regarding repurposing a building are overly restrictive and could impose significant hardships on districts that only have one or two schools serving the same grade levels. The representative commented that small districts may not have the facilities to comply. The commenter recommended that the agency require the submission of a plan describing how the facility will be used to promote high achievement.

Agency Response. The agency disagrees. Under the provisions of TEC, §39.1324, closure occurs after the campus has exhibited patterns of persistent low performance. The agency finds that the definition aligns with the intent of HB 1, 79th Texas Legislature, Third Called Session.

Comment. Concerning proposed §97.1051(3), a representative of TASB recommended allowing local school boards to determine how best to use their facilities under circumstances in which closure is ordered.

Agency Response. The agency disagrees. The intent of the TEC, §39.1324, is to impose mandatory sanctions on those campuses that exhibit low performance persisting over four or more ratings cycles, and the law gives authority to the commissioner to determine when a campus must be closed. A campus subject to mandatory sanctions under TEC, §39.1324, has exhibited patterns of persistent low performance, and the agency finds that the definition aligns with the intent of HB 1, 79th Texas Legislature, Third Called Session. The governing board of a district or charter school has multiple opportunities to make changes to the campus in prior years, based on criteria it sets.

Comment. Concerning proposed §97.1051(3)(C), two individuals from the Texas Institute for Education Reform questioned the need to change the name of the school building in order to comply with the definition of closure and commented that this discourages the use of legislative options.

Agency Response. The agency disagrees. The intent of the TEC, §39.1324, is to impose mandatory sanctions on those campuses that exhibit low performance persisting over four or more ratings cycles, and the law gives authority to the commissioner to determine when a campus must be closed. A campus subject to mandatory sanctions under TEC, §39.1324, has exhibited patterns of persistent low performance, and the agency finds that the definition aligns with the intent of HB 1, 79th Texas Legislature, Third Called Session. Requiring the assignment of a different name for the facility is one of the steps the district must take to assure the agency and the public that the multiple-year Academically Unacceptable facility is closed.

Comment. Concerning proposed §97.1051(3)(C)(ii), two school district administrators, a representative of the Texas Chapter of the American Federation of Teachers (Texas AFT), a representative of TSTA, and a representative of TASA objected to the requirements that at least 75% of the students and 75% of the faculty of a closed campus be removed or reassigned and questioned how the 75% figure was determined.

Agency Response. The agency disagrees in part and agrees in part. HB 1, 79th Texas Legislature, Third Called Session, establishes requirements for the closure of campuses that have exhibited patterns of persistent low performance over four or more years. Repurposing of a building occurs within the context of closure, and the agency has allowed a degree of flexibility for the repurposing of a building for which closure has been ordered. Given the purpose of this section, which is to impose mandatory sanctions in accordance with the requirements of HB 1 and TEC, §39.1324, the percentages were established to ensure that repurposing of a building meets the statutory requirements for closure of the campus. However, in response to public comment, the definition for campus closure was modified in paragraph (2)(C)(ii) to change to 50% the percentage of students who must be removed or reassigned to other campuses.

Comment. Concerning proposed §97.1051(3)(C)(ii), a representative of TSA and two school district administrators stated that the restrictions on repurposing would limit the district's ability to repurpose the campus, commented that the criterion for repurposing campuses that have been closed by the commissioner may prohibit the effective and efficient use of facilities, and proposed that the agency should instead examine a number of criterion holistically in order to provide flexibility to the commissioner in repurposing a building.

Agency Response. The agency disagrees. The rule language provides sufficient flexibility to the commissioner while providing direction to school districts for planning repurposing of a campus resulting from a closure determination.

Comment. Concerning proposed §97.1051(3)(C), a representative of TASA stated such prescriptive requirements may lead to the inefficient use of facilities by school districts, recommended less prescriptive and more flexible criteria be developed, and suggested such criteria. The commenter stated many facilities are built to suit the needs of certain student populations and may not be able to meet the needs of a different population without considerable expense. The commenter recommended that the commissioner be granted additional authority to determine how the students will be best served by changes to the campus.

Agency Response. The agency disagrees. The intent of the TEC, §39.1324, is to impose mandatory sanctions on those campuses that exhibit low performance persisting over four or more ratings cycles, and the law gives authority to the commissioner to determine when a campus must be closed. A campus subject to mandatory sanctions under TEC, §39.1324, has exhibited patterns of persistent low performance, and the agency finds that the definition aligns with the intent of HB 1, 79th Texas Legislature, Third Called Session. The governing board of a district has multiple opportunities to make changes to the campus in prior years, based on criteria it sets.

Comment. Concerning proposed §97.1051(3)(C)(ii), a representative of TSA stated concern about the effect of closing a school on the neighborhood, the surrounding community, and the future academic performance of the students. The commenter stated the proposed rule appears to bar the commissioner from considering such factors.

Agency Response. The agency agrees that closing a school has an effect on a neighborhood and community; however, this section of the proposed rule addresses a campus that exhibits a pattern of consistently low performance. Closure of a campus under the requirements of §97.1051(2)(C) occurs after the campus exhibits low performance persisting over four or more ratings cycles. TEC, §39.1324, provides in subsection (e) that the commissioner may order closure or pursue alternative management, and in subsection (f) the statute requires that the commissioner order closure or pursue alternative management. The option of alternative management allows the commissioner to consider the effects of closing a school as factors in the decision.

Comment. Concerning proposed §97.1051(3)(C)(i), a representative of TSTA stated its contention that facilities are configured for specific age groups of students, and suggested this section be deleted. The commenter recommended that management teams be assigned to improve student performance and make decisions regarding reassignment of students and faculty and regarding operations. The commenter also suggested that rotating students at grade levels would allow the district to continue to keep age-appropriate buildings in use until the recommendations of the intervention team are fully implemented.

Agency Response. The agency disagrees. The intent of the TEC, §39.1324, is to impose mandatory sanctions on those campuses that exhibit low performance persisting over four or more ratings cycles, and the law gives limited authority to the commissioner to determine when a campus must be closed. A campus subject to mandatory sanctions under TEC, §39.1324, has exhibited patterns of persistent low performance, and the agency finds that the definition aligns with the intent of HB 1, 79th Texas Legislature, Third Called Session.

Comment. Concerning proposed §97.1051(6)(A), a representative of Association of Texas Professional Educators (ATPE) requested removal of the words "some or all" because this wording limits the discretion of the CIT by effectively requiring the removal of educators from the campus, and in so doing goes beyond the statutory requirements.

Agency Response. The agency disagrees in part and agrees in part. The words "some or all" will remain in the rule in alignment with the intent of HB 1, 79th Texas Legislature, Third Called Session. However, the definition for reconstitution is modified to clarify that the CIT shall take into consideration any proactive measures the school or district has already taken regarding campus personnel. The definition for reconstitution is renumbered as paragraph (4) due to the revision of definitions under this section.

Comment. A legislator, a charter school chief executive officer (CEO) and founder, five administrators, a charter school founder, a representative of ACE, a superintendent of a charter school, and an individual suggested that the agency's proposed rules under TEC, Chapter 39, exceed its statutory authority. A legislator, charter CEO and founder, five administrators, a charter school founder, a representative of ACE, a superintendent of a school, and an individual suggested that the agency's proposed rules under TEC, Chapter 39, implement a bill that failed to pass the Texas Legislature. A legislator, a charter CEO and founder, five administrators, and a charter school founder suggested that the agency's proposed rules under TEC, Chapter 39, violate the procedural due process rights of charter holders.

Agency Response. In response to these comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. A CEO and founder of a charter school asked that the agency carefully consider the negative impact that the proposed rules under TEC, Chapter 39, will have on drop-out recovery charter schools. The commenter stated the best and most experienced minds remind us of the need to overhaul the state accountability system to recognize and reward these special schools, and the proposed rules as a group ignore the promise that adverse action against the charter contract will consider the "best interest of the students" under TEC, §12.115(b). The commenter strongly urged that these errors and oversights be corrected, and that the adoption of the rules be delayed until the next legislative session to permit the Legislature the opportunity to correct accountability to reflect learning growth.

Agency Response. In response to this comment, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

§97.1053, Purpose

Comment. Concerning proposed §97.1053(b)(4), a representative of Texas AFT stated that the proposed language suggests that schools may be penalized to serve as an example to others without strictly focusing on the facts and the best interest of the school's students.

Agency Response. The agency disagrees. Any system of sanctions is intended to change behavior by providing motivation for improvement. A sanction is distinct from an intervention, although both are intended to induce change. A sanction includes the element of deterrence. Closure of a district is inherently harsh, yet this is required by TEC, §§39.071(c), 39.131(a), and 39.1321(c). Similarly, closure of a campus is inherently harsh but is required by TEC, §39.1324 and §39.1327. One benefit to the school children in attendance at the affected campus or district may be that the low-performing school is closed, causing the students to attend a school that is better able to serve them. However, this is not the primary benefit to those students. The primary benefit of providing credibly for district and campus closure is that, because these consequences are the only alternative, the great majority of districts will choose to make improvements needed to effectively address their accreditation weaknesses. Section 97.1053 does not make general deterrence the sole or even the primary purpose of sanctions under these rules. However, it is an essential purpose and should be identified as such.

Comment. Concerning proposed §97.1053(b), a representative of a board of trustees stated that the proposed rule addresses the purposes for accreditation statuses and sanctions, but proposed paragraphs (1) and (5) address only the standards for sanctions. The commenter questioned whether the purposes listed are limited to sanctions, or also cover accreditation statuses.

Agency Response. The agency disagrees. Paragraphs (1) and (5) are both related to the purposes of accreditation statuses and sanctions, as stated in subsection (a).

Comment. Concerning proposed §97.1053(c), a representative of Association of Charter Educators (ACE) stated that the proposed language indicates that accreditation status commences with the 2007 ratings, but that sanctions can be applied based on earlier years' performance. The commenter stated that because the legislature made charter schools subject to TEC, Chapter 39, sanctions in HB 1, 79th Texas Legislature, Third Called Session, the only relevant sanctions for charter schools would be for performance that occurred after the effective date of HB 1.

Agency Response. The agency disagrees. Since the inception of the charter program, charter schools have been subject to accreditation sanctions under TEC, Chapter 39. See TEC, §12.104(b)(2)(L). Since 1995, the legislature has amended Chapter 39 many times. Each time it did so, charter schools were bound by the new law. HB 1 is no different in this regard. However, HB 1 is unique in two respects. In HB 1, the legislature provides the manner in which the changes to Chapter 39 were to be applied to charter schools. See TEC, §39.1321. Also in HB 1 the legislature provides that the commissioner must impose a sanction on a campus on the basis of academic performance ratings earned for academic years prior to the enactment of the changes. See TEC, §39.1326. Charter operators were required by TEC, §12.1071, to repudiate these changes by declining further funding after HB 1 if they did not agree to be bound by it.

§97.1053, Purpose, and §97.1055, Accreditation Status

Comment. Two individuals from the Texas Institute for Education Reform questioned whether proposed §97.1053(c) and §97.1055(b)(1), (c)(1), and (d)(1) mean the initial accreditation assigned a district will exclude any consideration of their performance ratings prior to 2007, and if a district with exemplary ratings since the beginning of the ratings system will receive the same accreditation status as a district that was rated Academically Unacceptable every year until 2007. The commenters contended that there is no reason not to consider prior ratings in making decisions about the initial accreditation status, stated that a district that has received consecutive Academically Unacceptable ratings that would warrant a lowered status should be assigned that status, and asked that this limitation be deleted from the proposed rules.

Agency Response. The agency agrees in part. In response to public comments regarding districts with a history of low performance, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of accountability ratings used for determination of accreditation status from 2007 to 2006. This reflects the date of passage of HB 1, 79th Texas Legislature, Third Called Session, in 2006. Although ratings from 2006 forward will generally be considered for purposes of counting the number of years of performance identified in §97.1055, ratings and other performance indicators from earlier years are a relevant consideration. For example, under §97.1055(b)(3), (c)(3), and (d)(3), the commissioner may consider the ratings history of the district in addition to the factors identified by §97.1055(b)(1), (c)(1), and (d)(1). In addition, §97.1055(a) was modified to add new paragraph (6) to establish that when necessary to achieve the purposes of §97.1053, the commissioner may withhold the release of an accreditation status pending investigation. This may be especially important in transitioning to the new system.

§97.1055, Accreditation Status

Comment. Concerning proposed §97.1055, a representative of TASB expressed concern that subsections (b)(3), (c)(3), and (d)(3) exceed the statutory authority given the commissioner and could serve as the legal basis for a challenge for the TEA's accreditation ratings. The commenter suggested elimination of subsections (b)(3), (c)(3), and (d)(3).

Agency Response. The agency disagrees. HB 1 gives the commissioner broad discretion to define the accreditation statuses listed in TEC, §39.071(a), and to determine each accreditation status annually under TEC, §39.071(b). The commissioner is authorized and directed to consider the factors identified by TEC, §39.071(b)(1). Section 97.1055(b)(3), (c)(3), and (d)(3) provides the commissioner the flexibility to take into account the unique circumstances of each case. Strict application of the general standards set forth in §97.1055(b)(1), (c)(1), or (d)(1) could lead to outcomes that are inconsistent with the purposes of the statutory framework or contrary to sound public school administration.

Comment. Concerning proposed §97.1055, an individual stated the proposed rules are acceptable, but may not be sufficient for institutions that have illegally tried to avoid negative accountability ratings. The commenter stated that more stringent rules may be needed for districts that have misrepresented facts and data, or broken laws.

Agency Response. The agency agrees that if a school district has knowingly misrepresented information or broken laws more stringent action may be required. Section 97.1055(b)(2)(B), (c)(2)(B), (d)(2)(B), and (e) provide the possibility that sanctions may be accelerated and accreditation status lowered as the result of an investigation into possible illegality.

Comment. Concerning proposed §97.1055, an individual stated if a district or campus is in noncompliance with state and federal statutes there should be no probationary or warning periods.

Agency Response. The agency agrees that the district and campus must be in compliance with state and federal statute, and has implemented monitoring and accountability systems to ensure compliance. The rules as written address the ability of the agency to accelerate sanctions and to order a change to a district's accreditation status or revoke accreditation. Section 97.1055(b)(2)(B), (c)(2)(B), (d)(2)(B), and (e) provide the possibility that sanctions may be accelerated and accreditation status lowered as the result of an investigation into possible illegality. Section 97.1055(b)(3), (c)(3), and (d)(3) permit the commissioner to take appropriate action without first resorting to action that would be inappropriately lenient under the circumstances.

Comment. An individual recommended immediate revocation of State Board for Educator Certification (SBEC) certification for accountable individuals who have not followed statute.

Agency Response. The agency disagrees. The purpose of this rule is not to address individual educator accountability nor SBEC requirements. In circumstances in which an educator fails to abide by statute there may be a need for sanctions, and §97.1055(b)(2)(B) and (c)(2)(B) provide that additional district sanctions may result from an investigation.

Comment. An individual stated when the law is broken one should pay restitution for infringements.

Agency Response. The agency disagrees. The agency lacks statutory authority to impose restitution as a penal sanction. Similarly, the agency lacks statutory authority to impose restitution in the form of a civil penalty. Accordingly, the agency is without statutory authority to comply with the requested change.

Comment. Concerning proposed §97.1055(a)(1)(A)(ii), a representative of Texas Classroom Teachers Association (TCTA) commented that the proposed language could be interpreted to indicate that a school district that has been Accredited-Warned or Accredited-Probation in the past cannot receive accredited status in the current year.

Agency Response. The agency agrees that the proposed language could be misconstrued to reflect past tense. In response to public comment, §97.1055(a)(1)(A)(i) and (ii) was modified to clarify the timing of status assignment.

Comment. A representative of TASB stated there is a lack of alignment between the state and federal accountability systems and sanctions, and cited the lack of explicit acknowledgement in the proposed rules of the sanctions related to the No Child Left Behind (NCLB) Act. The commenter recommended that the rules include an explanation of federal as well as state sanctions that may apply under the circumstances, citing proposed §97.1055(b), (c), and (d).

Agency Response. The agency disagrees. These rules implement HB 1. The identification procedures for adequate yearly progress under the NCLB are adopted in rule under 19 TAC Chapter 97, Subchapter AA, §97.1004, Adequate Yearly Progress. The State of Texas is in full compliance with the accountability provisions required by federal law. The agency has an independent obligation to implement HB 1. A single set of rules cannot be adopted that fully implements the spirit and intent of both Congress and the Texas Legislature.

Comment. An administrator commented that under provisions of proposed §97.1055(b)(2)(B)(i), determination of accreditation status may be based on the district's performance in the Performance-Based Monitoring Analysis System (PBMAS), expressed concern about the use of comparative data in the structure of the PBMAS, and stated that inclusion of the PBMAS could result in accreditation sanctions based on a measure that may not be a meaningful indicator of a district's effectiveness in serving special populations.

Agency Response. The agency disagrees. Under §97.1055(b)(2)(B), (c)(2)(B), and (d)(2)(B), the agency must make findings after a special accreditation or other investigation that the district's programs for special populations are ineffective. No accreditation sanction may be imposed under these rules based exclusively on data analyzed through PBMAS.

Comment. A representative of TSTA stated that there is an unintended inconsistency in the use of the PEIMS as the performance evaluation tool for proposed §97.1055(b)(2)(A)(ii) and the use of the PBMAS in proposed §97.1071(a).

Agency Response. The agency disagrees. The use of the PEIMS in §97.1055(b)(2)(A)(ii) and the use of data for performance-based monitoring (PBM) staging in §97.1071(a) are not contradictory. The first is intended to meet the requirements of TEC, §39.071(b)(2)(A)(i). The second is intended to meet the requirements of TEC, §39.071(b)(2)(B) and (C). These are entirely different functions. Section 97.1055(b)(2)(A)(ii) holds the district accountable for the accuracy of its data reporting. Section 97.1071(a) holds the district accountable for the effectiveness of its programs for special populations and career and technical education.

Comment. Concerning proposed §97.1055(b)(2)(A), a representative of TCTA stated subparagraph (A) does not mention some items required in statutory language such as special populations and career and technology programs, and maintained that the agency is exercising its statutory authority to add or subtract factors from the statutory list. The commenter requested that the agency expand on the factor regarding "any applicable requirements under TEC, Section 7.056(e)(3)(C) - (I)" and add TEC, §7.056(e)(3)(J), to the list of factors that result in an assignment of Accredited-Warned status. Furthermore the organization asked the proposed language in §97.1055(b)(2)(A)(v) be changed as follows: "any applicable requirement under TEC, Section 7.056(e)(3)(C-I, J)."

Agency Response. The agency disagrees. The reference to TEC, §7.056(e)(3)(C) - (I), in the rule is in alignment with the statute. Additionally, the statute references the effectiveness of special populations at TEC, §39.071(b)(2)(B), and the effectiveness of career and technical programs at TEC, §39.071(b)(2)(C). TEC, §39.071(b)(2)(A)(iii), limits the agency to "an item listed under Sections 7.056(e)(3)(C) - (I) that applies to the district." The legislature specifically excluded TEC, §7.056(e)(3)(J), from consideration.

Comment. Concerning proposed §97.1055(b)(1), a representative of ACE asked if the rating assigned for the 2007 school year is "year one" for the two consecutive years discussed and expressed concern that former year ratings will be used for accreditation determinations. The commenter stated that HB 1 does not mandate an accreditation status based on a retroactive application of accountability or financial ratings and requested that the 2007 school year rating be considered the base line year for evaluating new accreditation standards.

Agency Response. The agency disagrees. The rating assigned a district in August 2006 counts toward the consecutive years mentioned in §97.1055(b)(1), (c)(1), and (d)(1). In response to public comments regarding districts with a history of low performance, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of ratings used for the determination of an accreditation status from 2007 to 2006. In addition, although ratings from 2006 forward will generally be considered for purposes of counting the number of years of performance identified in §97.1055, ratings and other performance indicators from earlier years are a relevant consideration. See §97.1053(b). For example, under §97.1055(b)(3), (c)(3), and (d)(3), the commissioner may consider the ratings history of the district in addition to the factors identified by §97.1055(b)(1), (c)(1), and (d)(1). In addition, §97.1055(a) was modified to add new paragraph (6) to establish that when necessary to achieve the purposes of §97.1053, the commissioner may withhold the release of an accreditation status pending investigation. This may be especially important in transitioning to the new system. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(b)(1)(A), two individuals from the Texas Institute for Education Reform stated that the proposed rule allows a district to receive Academically Unacceptable ratings for two more consecutive years after 2007 before being awarded an Accreditation-Warned status. The commenters requested the rule be changed to warn the district the first year that accreditation statuses are assigned.

Agency Response. The agency agrees and has modified the proposed rules in several respects. In response to public comments, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of ratings used for the determination of an accreditation status from 2007 to 2006. Ratings assigned a district in August 2006 count toward the two consecutive years mentioned in §97.1055(b)(1), (c)(1), and (d)(1). Although ratings from 2006 forward will generally be considered for purposes of counting the number of years of performance identified in §97.1055, ratings and other performance indicators from earlier years are expressly made a relevant consideration under §97.1053(b). Under §97.1055(b)(3), (c)(3), and (d)(3), the commissioner may consider the ratings history of the district in addition to (or in lieu of) the factors identified by §97.1055(b)(1), (c)(1), and (d)(1). In addition, §97.1055(a) was modified to add new paragraph (6) to establish that when necessary to achieve the purposes of §97.1053, the commissioner may also withhold the release of an accreditation status pending investigation.

Comment. Concerning proposed §97.1055(b)(1)(A) and (B), an individual asked that financial and academic performance be separately considered when determining an accreditation status.

Agency Response. The agency disagrees. TEC, §39.071(b)(1), requires evaluation of both the academic and the financial performance of the district in determination of its accreditation status.

Comment. Concerning proposed §97.1055(b)(2), related to the assignment of Accredited-Warned status, a representative of ACE suggested "shall be assigned" should be changed to "may be assigned." The commenter stated mandatory language for consideration of an accreditation status relates to financial and academic performance, and consideration of the list of items in proposed §97.1055(c)(2)(A) and (B) is optional. The commenter requested that the rules be written to reflect that these are options that a commissioner may consider. Should the commissioner decide that accreditation sanctions are appropriate under this section the commenter requested that a phase-in process be followed for Accreditation-Warned, Accreditation-Probation, and Accreditation-Revoked statuses.

Agency Response. The agency disagrees. The adopted rules provide notice that the commissioner intends to exercise authority to consider other issues identified in statute, and a phased timeline is built into the rules. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(b)(3), a representative of ACE requested "shall be assigned" be changed to "may be assigned," stating that the only mandatory language for accreditation rating relates to financial and academic performance. The commenter expressed concern with the list of items in proposed §97.1055(b)(2)(A) and (B) and requested the rule be written to allow discretionary consideration by the commissioner.

Agency Response. The agency disagrees. The adopted rule provides notice that the commissioner intends to exercise authority to consider other issues identified in statute. These rules provide a framework for commissioner consideration when determining sanctions and the wording of §97.1055(b)(3) includes language stating ". . . shall be assigned Accredited-Warned status if the commissioner determines this action is reasonably necessary to achieve the purposes of TEC, §39.071." However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(b) - (d), a board of trustees representative questioned the reasoning behind an accreditation status decision being based solely on the number of years a rating has been assigned and suggested the use of other qualitative factors, including the margin by which the district missed the criterion, the number and repetitive nature of the standards not met, the continuing pattern of low performance, and whether the district is improving relative to the standards. The commenter suggested that subsections (b) - (d) be deleted and replaced with other factors that accurately reflect the differences between districts that do and do not show promise of success in the future.

Agency Response. The agency disagrees. The purpose of the adopted rule is to implement the required assignment of accreditation statuses in accordance with state statutes. Other issues regarding qualitative factors addressed in the comment are related to the accountability rating system, which is not addressed in the adoption of 19 TAC Chapter 97, Subchapter EE.

Comment. Concerning proposed §97.1055(c)(1), a representative of ACE is unclear whether the rating assigned for the 2007 school year is "year one" for three consecutive years or whether the agency is applying former year ratings. Also the commenter stated that accreditation determination is reasonable if the 2007 school year rating is the base line year for evaluating accreditation.

Agency Response. The agency offers the following clarification. The rating assigned a district in August 2006 counts toward the consecutive years mentioned in §97.1055(b)(1), (c)(1), and (d)(1). As initially proposed, the rules package reflected a start date of 2007 as it relates to the initial year of ratings to be considered in the assignment of an accreditation status to a district; however, in response to public comments regarding districts with a history of low performance, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of ratings used for determination of accreditation status from 2007 to 2006. This change is in alignment with the date of passage of HB 1, 79th Texas Legislature, Third Called Session, in 2006. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. A representative of the Texas Association of Business stated his concern that the proposed rules would not consider accountability ratings issued before 2007 and requested the agency consider performance in past school years when evaluating a school district's performance, maintaining that this would create a sense of urgency to improve rather than to procrastinate. The commenter suggested TEA reconsider revisions for 19 TAC Chapter 97, Subchapter EE.

Agency Response. The agency agrees. In response to public comments regarding districts with a history of low performance, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of accountability ratings used for determination of accreditation status from 2007 to 2006. This reflects the date of passage of HB 1, 79th Texas Legislature, Third Called Session, in 2006.

Comment. A CEO and founder of a charter school asked why the State Board of Education (SBOE) charter drop out recovery high schools are required to use the TAKS test at the socially promoted grade at the same grade level on the student's transcript if a student is functioning below that grade level. The commenter requested that the eighth grade TAKS release test be administered to every student entering a charter drop out recovery high school.

Agency Response. The agency cannot address this comment. The comment addresses topics that are not part of this adoption. The SBOE has not adopted the designation referenced by the commenter, but in 1997 the legislature did enact TEC, §12.1011. This provision created a type of charter school promising that at least 75% of its student population would be at risk of dropping out of school as defined by TEC, §29.081. The legislature abolished this distinction in 2001, but some charter schools operating now were granted under TEC, §12.1011. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. A CEO and founder of a charter school asked why charter schools are paid less than other public schools per average daily attendance, why schools chartered to recover dropouts are not given additional resources, and what plans the agency has to create facility funding for all public charter schools and special funding for the SBOE schools authorized to recover school dropouts.

Agency Response. The agency cannot address this comment. The comment addresses topics that are not part of this adoption. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(d)(1)(D), a representative of ACE stated that the proposed rule revoking a school's accreditation on the basis of three years of financial or academic performance, or a combination of the two, does not provide a fair opportunity to correct a problem and proposed the use of a "growth model." The commenter stated that an accreditation system should provide consideration for schools serving a majority of at-risk students, that academic and financial accountability systems are quite different and should not be considered together, and that proposed §97.1055(d)(1)(D), related to the assignment of Accredited-Warned status, is harsh because it does not provide adequate time for improvement. The commenter stated that unacceptable ratings for two separate categories in the same year do not mean a school has a pattern of unacceptability in either of the standards.

Agency Response. The agency disagrees. The purpose of the adopted rule is to implement the accreditation process required under TEC, §39.071, which mandates consideration of both academic and financial accountability ratings. The agency finds that, because the timeline for determination of accreditation status requires multiple years of unacceptable performance, it provides sufficient time for districts to exhibit improvement, and the timeline is appropriate within the context of the intent of HB 1, 79th Texas Legislature, Third Called Session. The other issues raised by the commenter are related to the determination of accountability ratings, which these rules do not address. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(c)(1), related to the determination of Accredited-Probation status, a representative of ACE stated that the three-year approach in proposed §97.1055(c)(1)(A) and (B) allows schools to improve or demonstrate that the first two years of low ratings were not an aberration. The commenter further stated that basing a school's Accredited-Probation status on two years of financial or academic performance as is referenced in proposed §97.1055(c)(1)(C) or a combination of the two as is referenced in proposed §97.1055(c)(1)(D) is not fair because there is a limited opportunity to correct a problem if two separate categories occur during the same years and may not mean a school has a pattern of unacceptability in either of the standards.

Agency Response. The agency agrees in part and disagrees in part. The agency agrees that the three-year approach referenced in §97.1055(c)(1)(A) and (B) provides sufficient time for improvement before the assignment of an Accredited-Probation status. However, the agency finds that the timeline for accreditation status determinations under §97.1055(c)(1)(C) and (D) is appropriate within the context of the intent of HB 1, 79th Texas Legislature, Third Called Session. The agency has considered the fact that the accumulation of several unrelated performance failures does not demonstrate the persistence of a particular performance weakness over time. However, the accumulation of several unrelated performance failures may demonstrate a management weakness that is an appropriate consideration when determining the accreditation status. For example, a district with severe academic deficits in student performance that also demonstrates severe financial deficits may require a lowered accreditation status. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(c), two individuals from the Texas Institute for Education Reform stated the district may have Academically Unacceptable ratings for three consecutive years after 2007 before probation, noting that HB 1 was enacted in 2006. The commenters stated probation may not occur until the August 2010 ratings and under proposed §97.1055(a)(5), ratings appeals will delay the probationary status until January 2011. The commenters stated that this is not what the legislature intended and requested the rule be changed to assign probation status to districts in the first year accreditation statuses are assigned.

Agency Response. The agency agrees in part and has modified the proposed rules in several respects. In response to public comments, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of ratings used for the determination of an accreditation status from 2007 to 2006. Ratings assigned a district in August 2006 count toward the two consecutive years mentioned in §97.1055(b)(1), (c)(1), and (d)(1). Although ratings from 2006 forward will generally be considered for purposes of counting the number of years of performance identified in §97.1055, ratings and other performance indicators from earlier years are expressly made a relevant consideration under §97.1053(b). Under §97.1055(b)(3), (c)(3), and (d)(3), the commissioner may consider the ratings history of the district in addition to (or in lieu of) the factors identified by §97.1055(b)(1), (c)(1), and (d)(1). In addition, §97.1055(a) was modified to add new paragraph (6) to establish that when necessary to achieve the purposes of §97.1053, the commissioner may also withhold the release of an accreditation status pending investigation.

Comment. Concerning proposed §97.1055(d)(1), a representative of ACE asked if the rating assigned for the 2007 school year is "year one" for the three consecutive years and recommended that the 2007 school year rating be considered the base line year for evaluating accreditation.

Agency Response. The agency disagrees with the recommendation. The rating assigned a district in August 2006 counts toward the consecutive years mentioned in §97.1055(b)(1), (c)(1), and (d)(1). In response to public comments regarding districts with a history of low performance, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of accountability ratings used for the determination of accreditation status from 2007 to 2006. This change is in alignment with the date of passage of HB 1, 79th Texas Legislature, Third Called Session, in 2006. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(d), two individuals from the Texas Institute of Education Reform stated that, under the proposed rules, the earliest a district could be closed under HB 1 is the school year following the August 2011 ratings. The commenters further stated that proposed §97.1055(a)(5), regarding the withholding of an accreditation status pending the completion of certain appeals or reviews, would delay closure and noted that the timeline would again be impacted by an appeal to SOAH of the closure decision under proposed §157.1151. The commenters stated that the legislature did not intend to delay the potential closing of a district until 2011-2012 and a school may start that school year before a decision was reached. The commenters recommended the rule be changed so that a district that has consistently failed its students could be closed the first year accreditation statuses are assigned.

Agency Response. The agency agrees and has modified the proposed rules in several respects. In response to public comments regarding districts with a history of low performance, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of ratings used for the determination of an accreditation status from 2007 to 2006. Ratings assigned a district in August 2006 count toward the two consecutive years mentioned in §97.1055(b)(1), (c)(1), and (d)(1). Although ratings from 2006 forward will generally be considered for purposes of counting the number of years of performance identified in §97.1055, ratings and other performance indicators from earlier years are expressly made a relevant consideration under §97.1053(b). Under §97.1055(b)(3), (c)(3), and (d)(3), the commissioner may consider the ratings history of the district in addition to (or in lieu of) the factors identified by §97.1055(b)(1), (c)(1) and (d)(1). In addition, §97.1055(a) was modified to add new paragraph (6) to establish that when necessary to achieve the purposes of §97.1053, the commissioner may also withhold the release of an accreditation status pending investigation.

Comment. Concerning proposed §97.1055(e), related to legal compliance, a representative of ACE stated that if the commissioner decides that accreditation sanctions are appropriate to address issues related to legal compliance, those sanctions should follow a similar phase in process as that for assignment of Accreditation-Warned, Accreditation-Probation, and Accreditation-Revoked, allowing two or three years for corrective actions to be effective.

Agency Response. The agency disagrees. It is inappropriate to allow continued noncompliance with legal requirements for any period of time. In some instances, corrective action may require some time to have full effect, but in many instances compliance may be achieved without delay. The agency has limited authority to allow continued noncompliance with the law. The adopted rules allow the commissioner to address legal noncompliance in accordance with state and federal requirements. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §97.1055(b)(2), (c)(2), and (d)(2), a representative of TCTA requested a change to add TEC, §7.056(e)(3)(J), to the list of factors that result in an assignment of Accredited-Warned status and Accredited-Probation status.

Agency Response. The agency disagrees. TEC, §39.071(b)(2)(A)(iii), limits the agency to "an item listed under TEC, §7.056(e)(3)(C) - (I), that applies to the district." The legislature specifically excluded TEC, §7.056(e)(3)(J), from consideration. The adopted rules are in alignment with the language of the statute.

Comment. Concerning proposed §97.1055(f)(3)(C), a representative of ACE stated charter schools are not taxing entities and have no property owners in their district, and requested proposed §97.1055(f)(3)(C) be revised so charters are only required to provide notice to parents.

Agency Response. The agency disagrees. Notification of parents and taxpayers is required by TEC, §39.071(d). Section 97.1055(f)(3) provides options for public notification of parents and taxpayers, including posting on its website and publishing notice in newspapers. Section 97.1055(f)(3)(C), mailing the notices by first class mail, is the final option. Should this method be chosen, the charter school can access tax rolls for contact information for taxpayers residing within its approved boundaries. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

§97.1055, Accreditation Status, and §97.1059, Standards for All Accreditation Sanction Determinations

Comment. Concerning proposed §97.1055 and §97.1059, a representative of ATPE suggested that the rapid timeline and severe consequences of the proposed rules call for a review of procedures for identifying Academically Unacceptable campuses for sanctions. The commenter stated that identification must focus on specific persistent deficiencies and provide timelines that allow interventions to demonstrate success.

Agency Response. The agency disagrees. To the extent that this comment is about identification procedures for ratings, those standards and procedures are adopted in rule under 19 TAC Chapter 97, Planning and Accountability, Subchapter AA, Accountability and Performance Monitoring, §97.1001, Accountability Rating System, and are not a part of this adoption. To the extent that this comment is about selecting districts and campuses for accreditation sanctions, the new rules adopted in 19 TAC Chapter 97, Subchapter EE, focus on the factors suggested by the commenter, among others. See §97.1059(b) and §97.1057.

§97.1057, Accreditation Sanctions

Comment. Concerning proposed §97.1057, the superintendent of a school stated proposed §97.1057 provides significant power to the commissioner and that the proposed rules should provide more direction regarding what the commissioner may do in any and all circumstances.

Agency Response. The agency disagrees. The language of HB 1, 79th Texas Legislature, Third Called Session, as codified in TEC, Chapter 39, Subchapter G, Accreditation Sanctions, provides broad discretion to the commissioner in the determination of sanctions. The adopted rules provide a framework for decision-making by the commissioner but are not intended to limit the discretion of the commissioner to fashion appropriate interventions and sanctions in the interest of achieving the purposes stated in §97.1053.

Comment. Concerning proposed §97.1057, a superintendent of a school asked whether the accreditation system would replace any other accountability system.

Agency Response. No. The system for assigning accreditation statuses is established by the provisions of HB 1, 79th Texas Legislature, Third Called Session, but this legislation does not amend any other accountability provisions in state statute.

Comment. Concerning proposed §97.1057(d), a member of a board of trustees commented that the rule states that the commissioner may impose "on the district" any other sanction and asked for clarification regarding whether the commissioner can impose sanctions on a campus as well as a district.

Agency Response. The agency agrees. In response to public comment, §97.1057(d) was modified to clarify that the commissioner can impose sanctions on a campus as well as a district.

Comment. Concerning proposed §97.1057(e)(3), a member of a board of trustees requested clarification of whether the TEA could impose a monitor, require technical assistance, or otherwise impose an accreditation sanction in response to a severe problem in student attendance accounting unless it finds deliberate falsification in the attendance data. The commenter stated that this is a change in agency policy.

Agency Response. The agency agrees. The commissioner is directed by statute to impose accreditation sanctions as necessary to achieve the purposes listed in §97.1053. It is inconsistent with this statute to adopt a rule that would limit appropriate corrective action to those rare cases in which intentional misconduct has been identified as causing the accreditation deficiency. This was not the intent of the proposed rule. In response to public comment, §97.1057(e)(3) was modified to clarify that the commissioner can impose sanctions as necessary to achieve the purposes listed in §97.1053.

Comment. Concerning proposed §97.1057(e)(3), a representative of ACE requested that the agency clarify that "false" information relates to incorrect information submitted in bad faith or with the intent to mislead.

Agency Response. The agency disagrees. The commissioner is directed by statute to impose accreditation sanctions as necessary to achieve the purposes listed in §97.1053. It is inconsistent with this statute to adopt a rule that would limit appropriate corrective action to those rare cases in which intentional misconduct has been identified as causing the accreditation deficiency. This was not the intent of the proposed rule. In response to public comment, §97.1057(e)(3) was modified to clarify that the commissioner can impose sanctions as necessary to achieve the purposes listed in §97.1053.

§97.1059, Standards for All Accreditation Sanction Determinations

Comment. Concerning proposed §97.1059(b)(1)(A), two individuals from the Texas Institute for Education Reform stated the rule implementation should be underway and the timing of Academically Unacceptable district and campus statuses should be implemented in the "current year" as the law requires.

Agency Response. The agency agrees. Even while it has been working on formal rules, the agency has already implemented many of the provisions enacted in HB 1. An accreditation status will be issued to each school district for the first time in 2007, but in other respects the implementation of the statute began shortly after passage of the bill.

§97.1059, Standards for All Accreditation Sanction Determinations, and §97.1063, Campus Intervention Team; Reconstitution

Comment. Concerning proposed §97.1059 and §97.1063(c), a representative of ATPE suggested that sanctioning a school and requiring reconstitution because the school failed to meet different standards in different content areas over two years does not serve the purpose of encouraging schools to improve performance and address specific deficiencies.

Agency Response. The agency disagrees. To the extent that this comment is about identification procedures for ratings, those standards and procedures are adopted in rule under 19 TAC Chapter 97, Subchapter AA, §97.1001, Accountability Rating System, and is not part of this adoption. To the extent that this comment is about selecting districts and campuses for accreditation sanctions, the new rules adopted in 19 TAC Chapter 97, Subchapter EE, do indeed serve the purpose of encouraging schools to improve performance and addressing specific deficiencies. See §97.1059(b) and §97.1057. The commissioner will implement sanctions to achieve the purposes identified in §97.1053.

Comment. Concerning proposed §97.1059 and §97.1063(c), a representative of ATPE stated that the Accountability Manual acknowledges the primary concern of persistent failure in its treatment of exceptions, and the federal adequate yearly progress calculations adhere to the "same measure" standard. The commenter stated that aligning the two systems would provide greater consistency and allow educators and communities adequate opportunities and sufficient flexibility to address specific accountability measures before accelerating implementation of sanctions.

Agency Response. The agency disagrees. To the extent that this comment is about identification procedures for ratings or adequate yearly progress, those standards and procedures are adopted in rule under 19 TAC Chapter 97, Subchapter AA, §97.1001, Accountability Rating System, and §97.1004, Adequate Yearly Progress, and are not a part of this adoption. To the extent that this comment is about selecting districts and campuses for accreditation sanctions, the new rules adopted in 19 TAC Chapter 97, Subchapter EE, provide adequate opportunities and sufficient flexibility to address specific accountability measures before accelerating implementation of sanctions. See §97.1059(b) and §97.1057. The commissioner will implement sanctions to achieve the purposes identified in §97.1053. The State of Texas has adopted and is in full compliance with the accountability provisions required by federal law; however, the agency has an independent obligation to implement rules in compliance with HB 1, enacted by the Texas Legislature. Where feasible, the two systems may be harmonized, but they are sufficiently distinct that a single set of rules cannot be adopted that fully implements the spirit and intent of both legislative bodies.

§97.1061, Technical Assistance Team Campuses

Comment. Concerning proposed §97.1061, a representative of ACE requested that language be revised for charters to allow participation from other sources because charter schools are not mandated to have site-based decision-making committees.

Agency Response. The agency agrees in part and disagrees in part. While the agency agrees that charter schools are not required to have site-based decision-making committees, language in subsection (d) specifies the minimum foundation for members but does not preclude participation from other sources.

Comment. Concerning proposed §97.1061, an individual commented on fraudulent activities on a campus and suggested types of members for the technical assistance teams.

Agency Response. The agency disagrees. Under TEC, §39.1322(a), Technical Assistance Team and Campus Intervention, technical assistance teams are assigned due to student performance concerns and do not investigate fraud. The comment does not apply to this rule.

Comment. An individual who serves as an external member of five campus intervention teams (CIT) commented that the proposed §97.1061 states that the commissioner will annually assign a technical assistance team (TAT) if that campus would be rated Academically Unacceptable by using the accountability standards for the subsequent year. The commenter noted that TEC, §39.1322, states that the commissioner shall appoint a CIT if a campus is rated Academically Unacceptable, and under TEC, §39.1323(e), the CIT will continue to serve until the campus has been rated Academically Acceptable for a two-year period. The commenter suggested that a campus assigned a CIT could also have a TAT assigned under proposed new §97.1061(a) and suggested this would be confusing and needlessly duplicative. The commenter requested this section of the rules be clarified.

Agency Response. The agency agrees. In response to public comment, §97.1061 was modified by adding subsection (f) to clarify that a CIT will serve the required term, and a TAT will not be assigned under certain circumstances in which a CIT continues to play a role on the campus. The campus would still be included on the list of campuses that require a TAT, but the CIT would meet this requirement.

Comment. Concerning proposed §97.1061(c), a representative of TCTA expressed concern that members of the campus and district planning committees would be members of the TAT; requested other alternatives for the additional member of the TAT, including possibly personnel from a regional education service center; and suggested deleting the provision of the proposed rules that campus and district planning team members be included.

Agency Response. The agency disagrees. Campuses that are assigned a TAT are rated Academically Acceptable. The proposed rules provide for the involvement of key campus and district personnel in the improvement planning process and require the inclusion of a member not assigned to the campus who has the knowledge and ability to provide technical assistance in the problem area(s). The adopted rules do not preclude a district or campus adding other members to the TAT.

§97.1063, Campus Intervention Team; Reconstitution

Comment. Concerning proposed §97.1063, an administrator stated that the rule allows the commissioner to assign members of the CIT if the district recommendations are rejected and also to order reconstitution if the school district does not implement the school improvement plan. The commenter recommended that the rule allow the district to appeal the commissioner's decision or allow for the submission of a second recommendation of CIT members. The commenter recommended a minimum timeline that clearly states how long a school has to develop the school improvement plan before the commissioner can call for the reconstitution of the campus. The commenter requested clarification of the referenced two-year period that governs the removal of a principal in an Academically Unacceptable school.

Agency Response. The agency disagrees. TEC, §39.1322(b), states that the commissioner shall appoint a CIT when a campus is rated Academically Unacceptable. Section 97.1063 allows the district to recommend CIT members, but states that the commissioner shall assign a CIT should the district fail to make recommendations or recommend persons that are not approved. The rule provides guidance as to the necessary qualifications of CIT members and permits the district to propose members with the necessary qualifications. Agency practice is to allow a campus to make a second proposal should a proposed member not be approved. Regarding the recommendation that a minimum timeline be established defining how long the school has to develop and implement a school improvement plan before the commissioner can call for reconstitution, the agency takes into account the progress of the campus in implementing the improvement plan and recommendations over the course of the year. Regarding clarification of the two-year period that governs the removal of a principal from an Academically Unacceptable school, the amended language at TEC, §39.116, from the 80th legislature requires the district to make the decision regarding retention of the principal.

Comment. Concerning proposed §97.1063(d) and (e), two individuals from the Texas Institute Education Reform referenced TEC, §39.1324(b), regarding the retention of a principal on a campus that has been rated Academically Unacceptable for two consecutive years. The commenters stated this is in reference to campus closure and indicated the legislature intended campus closure to begin under HB 1 with the 2006-2007 school year. The commenters requested the rule be changed to ensure campus closure be effective immediately upon rule adoption.

Agency Response. The agency agrees in part and disagrees in part. The language of TEC, §39.1324(b), is in reference to campus reconstitution, not campus closure. The agency has been implementing sanctions related to campus performance issues since before the passage of HB 1. While the intent of the legislation may have been to begin closure in 2006-2007, there were no eligible campuses that were not also eligible for other sanctions or interventions required under HB 1.

Comment. Concerning proposed §97.1063, a representative of TCTA commented there may have been an error in proposed §97.1063(a)(2), in that it refers to districts implementing the school improvement plan or the recommendation of the CIT, instead of campuses. The commenter stated the language goes beyond what is required by law making it mandatory for the commissioner to order reconstitution of the campus under TEC, §39.1322(b), if the commissioner determines that CIT recommendations or a school improvement plan is not fully implemented. The commenter recommended tracking statutory language and leaving it within the commissioner's discretion whether to order reconstitution by changing "shall" to "may."

Agency Response. The agency agrees that the reference in §97.1063(a)(2) should be changed to campuses. In response to public comment, §97.1063(a)(2) has been modified to change "district" to "campus." In regard to campus reconstitution the agency agrees that the commissioner has discretion as to whether to order the reconstitution of the campus; however, the adopted rule puts districts on notice that the commissioner will exercise the authority to order the reconstitution of the campus under the circumstances described.

Comment. Concerning proposed §97.1063(a), a representative of TASB stated the requirements of proposed §97.1063(a)(1) allow the district to recommend CIT members; however, the rule does not specify any procedure if the commissioner refuses the district's recommendation. The commenter stated the rule does not specify that any district personnel must serve on the CIT, but NCLB requires the district to provide technical assistance to a campus that has been identified for school improvement. The commenter recommended if the commissioner refuses the district's recommendation of CIT members, the rule should be amended to state the district's recommendation of CIT members must include district personnel in accordance with federal law.

Agency Response. The agency disagrees. The rule addresses the requirements of HB 1, 79th Texas Legislature, Third Called Session. The accountability system and interventions associated with NCLB are a federal mandate and not the subject of these adopted rules.

Comment. Concerning proposed §97.1063(a)(2), a representative of TASB expressed their concern that the term "recommendation" is used throughout the rules, but the consequence for not accepting the recommendation is a stiffer penalty, citing examples in proposed §97.1063(a)(2) and (e) and proposed §97.1067(c)(1). The commenter recommended replacing "recommendation" with "mandate" or "order."

Agency Response. The agency disagrees. The adopted rules track the language of the applicable statute, TEC, §39.1324.

Comment. Concerning proposed §97.1063(a), a representative of ATPE stated the qualifications, training, and expectations for CIT members is absent from the proposed rules. The commenter stated the proposed rules fail to deal directly with all of the uncertainties surrounding qualifications and accountability for the CIT. The commenter stated guidance materials provided by TEA for the CIT are helpful yet insufficient and recommended current guidelines be more detailed regarding expectations and accountability and that those guidelines be provided through administrative rule.

Agency Response. The agency appreciates the comments regarding the guidance materials but disagrees that administrative rules are needed. The agency will continue to expand its guidance materials as the rule is implemented and this will allow for further development as the agency learns from those experiences.

Comment. Concerning proposed §97.1063(c)(1)(A) and (D), a representative of TCTA requested language be added to clarify that the CIT does not have the authority to decide whether an educator is retained as an employee of the district, nor the authority to decide the new assignment of any educator not retained at the reconstituted campus. The commenter cited relevant sections of the TEC assigning employment decisions to the board of trustees and requested proposed §97.1063(c)(1) be revised by rearranging it so the provision in subparagraph (D) immediately follows subparagraph (A), which would clarify that reassignment within the district is an option if the CIT does not recommend retention of an educator.

Agency Response. The agency disagrees. The adopted rule mirrors the language of the statute, TEC, §39.1324. Section 97.1063(c)(1)(A), (C), and (D) track the law.

Comment. Concerning proposed §97.1063, a representative of TASB stated proposed §97.1063(c)(3) and (e) authorize the commissioner to impose stiffer sanctions if a campus fails to implement the school improvement and reconstitution plan. The commenter stated the proposed rule provides no timeline and fails to reference any timeline in the plan. The commenter recommended the rule should require a school improvement and reconstitution plan to specify a timeline for full implementation and should state "within the timeline specified in the plan."

Agency Response. The agency disagrees in part and agrees in part. The language mirrors the statute at TEC, §39.1323(f) and §39.1324(d), which authorize the sanctions described in the rule; however, in response to public comment, §97.1063(e) was modified to clarify that the commissioner will order alternative management when such order is needed to achieve the purposes listed in §97.1053.

Comment. Concerning proposed §97.1063(c)(1)(B), a representative of ATPE stated the rule does little to clarify how language such as a "pattern of significant academic improvement" will be determined by the CIT, which may likely result in inconsistent or unfair application of the reconstitution. The commenter stated the proposed §97.1063(c)(1)(B) is a mere recitation of TEC, §39.1324(b), and asked for additional guidance to ensure equitable implementation. The commenter recommended the proposed rule and accompanying guidance materials be modified to include at minimum standards for determination of removal or reassignment.

Agency Response. The agency disagrees. Section 97.1063(c)(1)(B) requires the district to make the determination as to whether to retain the principal, in accordance with the requirements of TEC, §39.116.

§97.1063, Campus Intervention Team; Reconstitution, and §97.1065, Campus Closure or Alternative Management

Comment. Concerning proposed §97.1063(e) and §97.1065(a)(2), a representative of TCTA stated the proposed language goes beyond what is required by law by making it mandatory for the commissioner to order alternative management or campus closure when the campus has failed to implement recommendations of the CIT or terms of the school improvement and reconstitution plan. The commenter stated the law only requires the commissioner to order the closure of a campus or pursue alternative management if the campus is considered Academically Unacceptable for two consecutive school years after the campus is reconstituted under TEC, §39.1324(f). The commenter stated both alternative management and closure are drastic measures and recommended tracking statutory language and leaving these decisions within the commissioner's discretion by changing "shall" to "may" and deleting proposed §97.1065(a)(2).

Agency Response. The agency agrees in part. The adopted rules provide notice that the commissioner has exercised the authority to order closure or pursue alternative management when a campus fails to implement the improvement plan or recommendations of the CIT. However, in response to public comment, §97.1063(e) was modified to clarify that the commissioner shall issue such order only if it is needed to achieve the purposes listed in §97.1053.

Comment. Concerning proposed §97.1063 and §97.1065, two individuals from the Texas Institute for Education Reform stated that proposed §97.1063 requires the first campus to be reconstituted after the second consecutive Academically Unacceptable rating following the August 2007 ratings, or January 2010 after a ratings appeal. Proposed §97.1063(c)(1) permits the district to plan its campus reconstitution that year, so reconstitution actually occurs in fall 2010. The commenters concluded that proposed §97.1065(a)(1) requires the first order of alternative management only after the campus receives two consecutive Academically Unacceptable ratings after reconstitution, or fall 2010. Such order can be imposed only after an appeal of the second Academically Unacceptable rating, which would be issued in August 2012. This means that, at the earliest, the commissioner can order alternative management in January 2012. The commenters ask whether it is reasonable, at that late date, for the commissioner to wait another three years, as referenced in proposed §97.1065(c)(1), until 2015 for a reasonable expectation that the campus will achieve acceptable ratings performance.

Agency Response. The agency disagrees. Campuses may be assigned alternative management in the first year of the new rules. Ratings and accreditation sanctions from years prior to 2006 are to be considered under §97.1053(b). A campus that was reconstituted by commissioner action in 2005 or 2006, and that has subsequently received two consecutive Academically Unacceptable ratings, must be alternatively managed or closed. The commissioner may waive this requirement under §97.1065(d), but is bound by TEC, §39.1324(f), with respect to such campus.

Rating and sanction appeals are provided by TEC, §39.301 and §39.302, but the rules require all decisions to be final and effective well before the start of the following school year. The district is required to negotiate a contract with its alternative management service provider while the sanction is on substantial evidence review at SOAH. This enables the sanction to be implemented in a timely fashion.

The agency has carefully considered the criteria for selecting between the statutorily imposed options of closure and alternative management. A campus in need of intervention under §97.1065 has a history of intractable performance deficiencies. In TEC, §39.1327(h), the legislature set the expectation that an alternative management service provider demonstrate progress in each of its first two years of service. The contractor must demonstrate improvement "as negotiated under the contract" in the first year. The performance measures negotiated in the contract "must be consistent with the priorities of" TEC, Chapter 39. By the second anniversary the contractor is required to demonstrate "significant improvement, as determined by the commissioner." In both the first and second year of contract performance, TEC, §39.1327(h), requires improvement but expressly contemplates improved performance that might still fall below state standards. In most instances, the standards applied by the commissioner under TEC, §39.1327(h), should be those in the applicable Accountability Manual . However, within three rating cycles of assignment, the alternative management service provide must meet all standards in the Manual. If the commissioner does not have a reasonable expectation that ordering alternative management will produce this result, the commissioner must order the campus closed.

§97.1065, Campus Closure or Alternative Management

Comment. Concerning proposed §97.1065(b), a representative of a school district expressed concern that the proposed rules may impose financial hardships on school districts due to their limited ability to raise additional funds to pay for professional services and recommended a "cap" be set on the cost of professional services ordered by the commissioner.

Agency Response. The agency disagrees. TEC, §39.1331, does not authorize the proposed cap. Rather, TEC, §39.134, provides that the cost of professional services shall be paid by the district. As indicated by §97.1057(e), the commissioner will consider the costs and logistical concerns of the district when ordering professional services under §97.1065(b), but shall give primary consideration to the best interest of the district's students.

Comment. Concerning proposed §97.1065, two individuals from the Texas Institute for Education Reform stated the rule implementation should be underway. The timing of Academically Unacceptable district and campus statuses should be implemented in the "current year" as the law requires.

Comment. Concerning proposed §97.1065(c)(1), a member of a board of trustees stated the proposed rule fails to state how the commissioner will determine whether to close a campus or order alternative management. The commenter requested the rule be changed to define the factors the commissioner will use to determine whether alternative management has a "reasonable expectation" of producing an Academically Acceptable rating. The commenter also requested the rule spell out the factors that will lead to the closure of the campus and the factors that will permit a second chance.

Agency Response. The agency disagrees. The adopted rule provides a framework for consideration of the commissioner in making determinations regarding campus closure or alternative management, in accordance with the requirements of TEC, §39.1324.

Comment. Concerning proposed §97.1065(e), a member of a board of trustees stated that proposed §97.1065(e)(1) is not clear and asked for an explanation.

Agency Response. The agency disagrees and finds that the language is sufficiently clear if §97.1065(e)(1) is read in the context of §97.1065 as a whole. If the commissioner is required to act under §97.1065(a), but may not choose alternative management under §97.1065(c) (and thus may not waive alternative management under §97.1065(d)), then the commissioner must close the campus under §97.1065(e)(1).

Comment. Concerning proposed §97.1065(e), five charter school administrators expressed concern that the proposed rules do not provide fair opportunity nor constitutionally adequate due process to charter holders when the action under consideration is the closing of a campus or school due to the rating or financial status.

Agency Response. The agency disagrees. TEC, §39.302, provides both a fair opportunity and procedural due process to charter holders when the action under consideration is the closing of a campus or school due to its ratings or financial performance history. The requirements of procedural due process with respect to legislative enactments are quite different from those that apply to case-by-case application of the law to individual circumstances. A charter holder that did not agree to be bound by the change to its contract made by the 79th Texas Legislature was required to repudiate that contract by refusing to accept additional funding under the new law. See TEC, §12.1071(a). The agency must implement the statute enacted by the Texas Legislature.

Comment. Concerning proposed §97.1065(f), a representative of TCTA questioned statutory authority for this provision requiring the commissioner to order closure of a campus when alternative management of the campus was ordered, the district resumed operation of the campus, and the campus is rated Academically Unacceptable in the subsequent year. The commenter requested that the provision be deleted in subsection (f), or, if statutory authority exists, that the "shall" be changed to "may."

Agency Response. The agency disagrees. TEC, §39.1327(h), requires an alternative management service provider to demonstrate improvement in the performance of the campus it manages and directs the commissioner to evaluate the service provider's performance. This evaluation does not replace the commissioner's evaluation of the district and campus. It is in addition to that evaluation. If the commissioner's evaluation of the service provider's performance fails to show the improvement promised by the service provider contract, TEC, §39.1327(h), specifies consequences for the service provider. After the first year, the district has the option to terminate the contract with the commissioner's consent. After the second year, the district must terminate the contract. In that event, the district may resume operation of the campus with the approval of the commissioner.

Section 97.1065(f) relates to a campus that has already been subject to sanction under §97.1067. By definition, the performance of the campus required closure or alternative management and at least two additional years have passed without adequate improvement. By definition, the sanction initially chosen by the commissioner was alternative management, not campus closure. And by definition, the sanction chosen by the commissioner failed to achieve the purposes listed in §97.1053. At this juncture, the commissioner must close the campus. No other course is reasonable under the circumstances and §97.1065(f) so provides.

§97.1067, Alternative Management of Campuses

Comment. Concerning proposed §97.1067(e), a school administrator stated that, under the proposed rule, the educators and staff assigned to work at the campus under alternative management are district employees, questioned how the pay scale and benefits would be administered, and asked if the alternative management entity would be able to determine who to hire and fire. The administrator requested that the reporting structure, management, and human resources operations between the district and the alternative management entity be clarified in rule and recommended that the employees of a school under alternative management be employees of that organization rather than the district. A representative of ATPE raised questions concerning the provision of employment grievances under proposed §97.1067 and TEC, §39.1324. The ATPE representative stated an educator must exhaust the grievance process in order to retain the right to seek redress, so the procedures need to be clear and consistent. The ATPE representative asked how the district will consider grievances relating to the service provider when it does not have authority over that service provider other than what may be provided in the contract and asked for clarification of the responsibilities and liabilities of the service provider so that appropriate procedures for filing grievances remain available. The ATPE representative noted that a service provider is a governmental body only for purposes of Government Code, Chapters 551 and 552. The ATPE representative asked if the service provider must make available a separate grievance policy in its position as a separate, quasi-governmental body. The ATPE representative noted that proposed §97.1067(b)(4) requires the service provider contract to address certain liabilities but does not address the responsibility to provide a grievance procedure. The ATPE representative asked whether the contract could relieve the district board of its responsibility to consider employment grievances. The ATPE representative asked whether, if the service provider is required to hear grievances, it will enjoy the immunities of the school district. The ATPE representative requested further guidance in the rule by providing appropriate procedures for employment grievances. If the service provider contract is to provide for grievance procedures, the ATPE representative requested that model contract language be provided in the rules.

Agency Response. The agency disagrees. Section 97.1067(e) clearly provides that the educators and staff assigned to work at a campus operated by a service provider are "district employees for all purposes." Any other interpretation would render the educators assigned to work at the campus ineligible for participation in the Teacher Retirement System of Texas. There is no evidence the legislature intended this result. Because the educators and staff assigned to work at a campus operated by a service provider are district employees for all purposes, all the rights conferred by Government Code, §617.005; Texas Constitution, Article I, Section 27; and other law apply with equal force before and after the service provider begins operating the campus. By contrast, a contract for educational services under TEC, §11.157, permits the district's contractor to employ its own educators and campus staff. Under §97.1067, the campus educators and staff retain their rights and obligations as employees of the district. The district has rights respecting the service provider as specified by TEC, §39.1327, §97.1067, and the service provider contract.

Section 97.1067(c) is clear that the service provider has 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. These duties include not only those assigned by statute, such as TEC, §11.163(a)(2) and §11.202, but also those that are assigned by the board of trustees in its general policies and procedures. For example, under TEC, §26.011, the board must adopt a grievance procedure for hearing complaints under TEC, Chapter 26. Similarly, the board must hear grievances under Government Code, §617.005. If the policies and procedures of the district assign a duty to the principal of a campus, then a service provider under §97.1069 would have that duty under §97.1067(c).

The role of the service provider in the district's grievance procedures is determined by application of §97.1067(c) to the particular facts of each campus and district. While the service provider contract may not alter the requirements of the rule, it will be a crucial instrument for the parties to work out the details of their cooperation in this area, as in many others. It would be inappropriate for the agency to impose a single solution or to deprive the parties of solutions they find most useful.

A district employee assigned to work at a campus operated by a service provider clearly meets the definition of "professional employees of a school district" within the meaning of TEC, §22.051. A service provider should determine for itself whether this or other immunities may be applicable to its own employees.

Comment. Concerning proposed §97.1067, a representative of TSA stated the language in proposed §97.1067 regarding expenditures on campuses under alternative management may be difficult to implement. The commenter stated in proposed subsection (d) the language requires that the funding for the campus must not be less than the funding of other campuses operated in the district on a per-student basis so the service provider receives at least as much funding as the campus would otherwise have received. It stated student need varies from campus to campus and requiring an absolute equity standard may be unworkable. It requested striking the language requiring that funding for a campus under alternative management not be less than funding for other campuses on a per student basis while maintaining language requiring that the campus receive at least as much funding as it would otherwise have received.

Agency Response. The agency disagrees. Section 97.1067(d) is based on the language of HB 1 that provides: "Notwithstanding any other provision of this code, the funding for a campus operated by a managing entity must be not less than the funding of the other campuses in the district on a per student basis so that the managing entity receives at least the same funding the campus would otherwise have received." See TEC, §39.1327(i). This requirement has been implemented by the agency in §97.1067(d).

Regarding §97.1067(d), the legislature imposed a two-part standard. The funding of the campus must not be less than funding for other campuses on a per-student basis, and it must be at least as much as the campus would otherwise have received. The commenter proposed the agency adopt a rule that includes one but not the other of these statutory requirements. The agency lacks authority to adopt such a change.

Comment. Concerning proposed §97.1067, a representative of a school district stated the proposed rule states that funding for the campus cannot be less than the funding per pupil other campuses receive and the district must continue to support food services, transportation, extracurricular activities, and similar operational expenses of the campus. The commenter stated the proposed language does not take into consideration that some school districts have a decentralized finance system and a weighted per-pupil formula.

Comment. Concerning proposed §97.1067(d), a representative of TSTA stated this requires a district to provide at least the same funding to the campus as the previous year when it is assigned a service provider to provide alternative management. The commenter stated the funding will be lessened by the amount taken by the alternative management entity and this drops the per-student expenditure thus requiring more funds to be funneled to that campus from the district. The commenter recommended guidelines be developed to ensure that districts finance alternative management contracts with separate funds, leaving the per-student expenditures the same from year to year.

Comment. Concerning proposed §97.1067(d), a representative of TASA stated that guidelines for student funding vary from campus to campus and such a prescriptive rule could prevent districts from allocating appropriate funds to a campus based on their unique student needs.

Comment. Concerning proposed §97.1067, a member of a board of trustees requested clarification of the proposed language in §97.1067(c)(2).

Agency Response. The agency agrees that clarification is needed. As proposed, §97.1067(c) provided that the commissioner may implement additional sanctions and consider reports in accordance with §97.1065 but this reference is incomplete. The commissioner may consider reports under §97.1067(c)(1) when evaluating the need for additional sanctions under §97.1065(b). In addition, the commissioner will consider these reports in the course of the annual performance review of the school district and campus under TEC, §39.133. Such reports will also be considered in the course of the annual review of an alternative management service provider under TEC, §39.1327(h). In response to public comment, §97.1067(c)(2) was modified to include these two statutory references.

§97.1069, Providers of Alternative Campus Management

Comment. Concerning proposed §97.1069, a representative of TSTA requested revisions to the rule stating that as written it is somewhat ambiguous as to the authority granted to the commissioner in appointing a school district to provide alternative management services and as to whether the district must also agree to the appointment. The commenter requested that the rule be revised to make it clear that a district must actually submit a request for qualifications (RFQ) in order to be appointed in this manner and districts should not be unilaterally required to provide alternative campus management.

Agency Response. The agency disagrees. The language of the rule tracks the language of TEC, §39.1327(b). Although the statute does not require the agreement of the district assigned to provide alternative management, the commissioner will, in practice, consult with a district prior to making such an appointment. Districts are not required to submit an RFQ because the statute only requires the solicitation of proposals from qualified non-profit entities.

§97.1071, Special Program Performance; Intervention Stages

Comment. Concerning proposed §97.1071(a)(4), a representative of ACE stated that the commissioner should take into consideration that the PBMAS was first implemented in the 2004-2005 school year and performance standards have gone through many changes. The commenter stated that the PBMAS is not yet a precise art or a settled product.

Agency Response. The agency disagrees. The PBM system was developed in response to HB 3459 of the 78th Legislature, Regular Session, 2003, and the guiding principles of the system as described by the agency include responsiveness to change, as reflected in system evolution, and the ability to address the maximum inclusion of local education agencies in the system. The PBM system was piloted in 2003-2004 and implemented in 2004-2005. While changes to the system have been implemented over time, these are to be expected in a performance-based system with a stated goal of producing continuous improvement in student performance and program effectiveness. Therefore, while the agency disagrees with the suggestion that the PBM system is not yet a fully established system, the commissioner does take into account specific circumstances and changes that impact identification and intervention determinations as the system evolves across years of implementation.

Comment. Concerning proposed §97.1071(a)(1), a representative of ACE expressed concern that, as written, proposed §97.1071 does not reflect that using a system based on statistical analysis may raise concerns that do not necessarily demonstrate that a school is ineffectively implementing a program covered by PBMAS, or that a school needs intervention. The commenter cited examples related to statistical analysis of small numbers and the identification of special education students. The commenter stated that such anomalies could possibly be explained, but there is no system for appeal of an intervention level. The commenter stated the rule should provide, at a minimum, that after any local analysis is completed, a school should have an opportunity to explain its findings and have the intervention level removed where appropriate. The commenter stated this could be done through an appeal or informal review process.

Agency Response. The agency disagrees. The interventions activities as implemented under the PBM system promote actions such as those referenced by the commenter in that a local education agency can review its data, determine causes for the data results, and provide findings and explanations to the agency for consideration. To the extent that this comment is about PBMAS identification procedures, those procedures are adopted in rule under 19 TAC Chapter 97, Subchapter AA, §97.1005, Performance-Based Monitoring Analysis System, and is not a part of this adoption.

Comment. Concerning proposed §97.1071(a)(2), a representative of ACE stated the rule states that an intervention level can be assigned based on a comparison of a district's performance to performance of other districts. The commenter requested that the rule require the comparison of similarly situated schools with regard to school size and populations served when assigning intervention stages.

Agency Response. The agency disagrees. The PBM interventions process as it currently is implemented is applied appropriately to all local education agencies and operates within the guiding principles of the system. Its application to all districts equally mirrors the interventions approach used in other state and federal monitoring and evaluation systems.

Comment. Concerning proposed §97.1071(a), a representative of ACE suggested the proposed rule should take into consideration that assignment to an intervention level, and escalation from one interval to a higher interval in subsequent years, should allow schools ample time to implement any improvement plan submitted by the school and approved by the agency. The commenter stated that if PBMAS is designed to help a school improve its programs then a school operating in good faith under an approved improvement plan should be given the time necessary to implement that plan before assigning the school to a level that indicates less satisfactory performance.

Agency Response. While the agency agrees that the concept of continuous improvement is a critical aspect of the PBM system, it disagrees that the current system as it is implemented provides inadequate time for a local education agency (LEA) to respond. The agency is currently piloting a process which allows certain selected LEAs to continue to implement a previously-developed campus improvement plan while forgoing more formal intervention activity requirements. While the agency believes that the intervention system, as implemented, aligns intervention requirements to activities that naturally would be undertaken by LEAs striving to improve performance, the agency will continue to review whether other strategies may prove to be effective in addressing LEA performance concerns.

Comment. Concerning proposed §97.1071(e), a representative of TSTA expressed the belief that this rule provides districts with little or no notice and places responsibility on districts to monitor a website to determine whether they are about to be sanctioned. The commenter requested that notices under this section should also be served to both the superintendent and the school board president by registered mail, return receipt requested.

Agency Response. The agency disagrees. The agency provides multiple notifications to LEAs related to PBM intervention staging, including posting notification correspondence to the To The Administrator Addressed correspondence listserv for Texas school administrators and posting intervention information to the web-based Intervention Stage and Activity Manager application available through the Texas Education Agency Secure Environment (TEASE), as well as through notifications provided to education service centers. It would be an unnecessary and burdensome expense to the agency and taxpayers for registered mail to be used as the method for sharing routine intervention information with numerous local education agencies. The system referenced in the rule provides adequate notice to LEAs.

Comment. Concerning proposed §97.1071(f)(1) and (2), a representative of ACE stated agreement with the proposed rule and provided rationale for the support.

Agency Response. The agency agrees.

General Comment

Comment. Six administrators commented that some issues addressed in the rules were dealt with in previous legislative sessions. The commenters stated that the 80th Texas Legislature, 2007, did not pass proposed legislation as laid out in part as a component to Senate Bill 4 during that session, and questioned why the agency would create similar rules. One of the commenters also suggested that the proposed rules constitute an attempt to subvert the legislative process.

Agency Response. The agency disagrees. The 79th Texas Legislature passed HB 1 in its Third Called Special Session, on May 15, 2006. HB 1 is codified at TEC, §39.1321, which is the basis for adopting new §157.1173 and §97.1037(g). This statute clearly states that once specific accreditation sanctions have been duly imposed under TEC, Chapter 39, specific adverse action under TEC, §12.115, is both mandatory and automatic. There is no further hearing provided or permitted. TEC, §39.1321(c) and (d), expressly direct the commissioner to adopt the rule text as provided in §157.1173.

Comment. A legislator stated that Senate Bill 4, 80th Texas Legislature, 2007, was met with opposition due to provisions that would have limited due process related to the revocation of charter school contracts and expressed concern that the proposed rules would limit due process for charter schools.

Agency Response. The agency disagrees. HB 1 provides that once specific accreditation sanctions have been duly imposed under TEC, Chapter 39, specific adverse action under TEC, §12.115, is both mandatory and automatic. There is no further hearing provided or permitted. The requirements of procedural due process with respect to legislative enactments are quite different from those that apply to case-by-case application of the law to individual circumstances. A charter holder that did not agree to be bound by the change to its contract made by the 79th Texas Legislature was required to repudiate that contract by refusing to accept additional funding under the new law. See TEC, §12.1071(a). The agency must implement the statute enacted by the Texas Legislature. TEC, §39.1321, is clear.

Comment. Two attorneys requested that the comment period be expanded to allow for additional time and input.

Agency Response. The agency agrees. The public comment period was extended through August 20, 2007.

The new sections are adopted 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; Subchapter DD of this chapter (relating to Investigative Reports, Sanctions, and Record Reviews); and this subchapter, the following words and terms shall have the following meaning, unless the context clearly indicates otherwise:

(1) 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.

(2) 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 50% 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.

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

(4) 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), taking into consideration proactive measures the district or campus has taken regarding campus personnel; 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.

§97.1053.Purpose.

(a) 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.

(b) The accreditation status assigned a district under §97.1055 of this title (relating to Accreditation Status) generally reflects performance under the state academic accountability rating system and financial accountability rating system beginning with the district's 2006 ratings. However, performance under these systems for earlier years shall be considered for purposes of accreditation statuses and 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) meets 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) is not currently 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(a) 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 specified in §97.1053(a) of this title.

(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

(6) An accreditation status may be withheld pending completion of on-site or other investigative activities in order to achieve the purposes specified in §97.1053(a) of this title.

(b) Determination of Accredited-Warned status.

(1) A district shall be assigned Accredited-Warned status if, beginning with its 2006 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.

(1) A district shall be assigned Accredited-Probation status if, beginning with its 2006 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 2006 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(a) 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 or campus 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 for which the district has failed to plan prudently in light of its obligation to repay the funds under TEC, §42.258.

§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.

(f) Notwithstanding the provisions of subsections (a) - (e) of this section, a technical assistance team will not be assigned under TEC, §39.1322(a), if a campus intervention team has been assigned to the campus under the provisions of TEC, §39.1322(b).

§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 campus 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) implemented in accordance with TEC, §11.203. 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) The commissioner shall order alternative management or campus closure under §97.1065 of this title (relating to Campus Closure or Alternative Management) when the campus has failed to implement recommendations of the CIT or terms of the school improvement and reconstitution plan and such order is needed to achieve the purposes listed in §97.1053 of this title (relating to Purpose).

(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 and such order is needed to achieve the purposes listed in §97.1053 of this title.

§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 TEC, §39.133 and §39.1327(h), as well as §97.1065(b) 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 17, 2007.

TRD-200706404

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Effective date: January 6, 2008

Proposal publication date: June 15, 2007

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

Chapter 157. HEARINGS AND APPEALS

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, 157.1163, 157.1165, 157.1167, 157.1169, 157.1171, 157.1173

The Texas Education Agency (TEA) adopts 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. New §§157.1151, 157.1153, 157.1155, 157.1159, 157.1161, 157.1163, 157.1165, 157.1167, 157.1169, 157.1171, and 157.1173 are adopted without changes to the proposed text as published in the June 15, 2007, issue of the Texas Register (32 TexReg 3455) and will not be republished. New §157.1157 is adopted with changes to the proposed text as published in the June 15, 2007, issue.

The adopted new sections establish provisions relating to the review of certain accreditation sanctions by the State Office of Administrative Hearings (SOAH). The adoption reflects requirements mandated by House Bill (HB) 1, 79th Texas Legislature, Third Called Session, 2006.

HB 1, 79th Texas Legislature, Third Called Session, 2006, requires that an opportunity for challenging the record review of accreditation sanctions be available in specified circumstances and provided by the SOAH. The new 19 TAC Chapter 157, Hearings and Appeals, Subchapter EE, Review by State Office of Administrative Hearings: Certain Accreditation Sanctions, establishes new rules to ensure compliance with HB 1, as follows.

New 19 TAC §157.1151, Applicability, establishes 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 new rule also specifies final orders to which the subchapter does not apply. No changes were made to this section since published as proposed.

New 19 TAC §157.1153, Applicability of Other Law, provides guidance for the applicability of other laws in relation to the conduct of hearings. No changes were made to this section since published as proposed.

New 19 TAC §157.1155, Petition for Review, details the requirements for an entity to file a petition for review. The new rule describes the timelines and required content of the petition for review, including allegations and statement of requested relief. The new rule also addresses failure to comply with petition review requirements and addresses TEA responsibilities related to the petition. No changes were made to this section since published as proposed.

New 19 TAC §157.1157, Standard of Review, establishes procedures for standards for review by the SOAH in relation to decisions made by the commissioner. The new rule details the reasons that the SOAH could reverse the decision by the commissioner.

In response to public comment, 19 TAC §157.1157(b) was expanded to provide further description of the types of questions that are committed by law to the commissioner's discretion. Additionally, the language of subsection (e) of this section was revised to provide a procedural mechanism for accommodating the statutory authority of the commissioner in the event an error is found in an order under this section, and subsections (f) - (h) were added to supply a process and associated criteria governing remand for further proceedings on questions committed by law to commissioner discretion.

New 19 TAC §157.1159, Scope of Review; Additional Evidence, describes the type of additional evidence that can and cannot be submitted to the administrative law judge in addition to the agency record. No changes were made to this section since published as proposed.

New 19 TAC §157.1161, Components of Agency Record, details the components of what should be included in the agency record of proceedings. These components correspond to provisions specified in new 19 TAC §97.1037, Record Review of Certain Decisions. No changes were made to this section since published as proposed.

New 19 TAC §157.1163, Proceedings Regarding Agency Record, establishes agency procedures for filing the proceedings of the agency record, including timelines and cost. No changes were made to this section since published as proposed.

New 19 TAC §157.1165, Enforcement of Decision Pending Review, provides the procedures for the timely implementation of the commissioner's decision. No changes were made to this section since published as proposed.

New 19 TAC §157.1167, Expedited Review, provides the process for conducting the review in an expedited manner, including timelines for possible pre-hearings, continuances, and dispute resolution. The new rule also requires 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. No changes were made to this section since published as proposed.

New 19 TAC §157.1169, Conduct of Review During a Ratings Appeal, provides 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. No changes were made to this section since published as proposed.

New 19 TAC §157.1171, Final Decision, provides for final resolution of the appeal and states that the decision of the administrative law judge is final and may not be appealed. The rule specifies that an administrative law judge may not change an accreditation status or an academic or a financial accountability rating. No changes were made to this section since published as proposed.

New 19 TAC §157.1173, Application to Charter Schools, provides for the application of new 19 TAC Chapter 157, Subchapter EE, to open-enrollment charter schools. No changes were made to this section since published as proposed.

§157.1155, Petition for Review

Comment. Concerning proposed §157.1155, four administrators, a charter school founder, and an individual suggested that subsection (b) be changed to permit amendments to the petition at any time.

Agency Response. The agency disagrees. Texas Education Code (TEC), §39.302(c)(1), mandates an expedited review of the commissioner's decision. The rule does not prohibit the SOAH administrative law judge from accepting amendments to the petition, but imposes a deadline for doing so. Any amendment must be filed within 30 days of the decision. TEC, §39.302(c)(2), requires the administrative law judge (ALJ) to issue a final decision within 30 days of closing the record. These deadlines are necessary in order to provide a final resolution of the districts' accreditation sanctions and statuses well in advance of the start of school the following year.

Comment. Concerning proposed §157.1155(b), a representative of Association of Charter Educators (ACE) stated the rule, as proposed, calls for dismissal of a petition for failing to meet technical pleading requirements and suggested that dismissing a petition for review for failing to meet technical pleading requirements could prevent a fair review of meritorious claims. The commenter questioned the sufficiency of the pleading rule and suggested this should be left to the purview of the ALJ.

Agency Response. The agency disagrees. TEC, §39.302(c)(1), mandates an expedited review of the commissioner's decision. The rule does not prohibit the SOAH ALJ from granting exceptions to the rule, but provides a standard of practice for the ordinary case. The ALJ has discretion to apply the rule as justice requires. The expedited process in the rule is needed in order to provide a final resolution of the district's accreditation sanction and status well in advance of the start of school the following year.

§157.1157, Standard of Review

Comment. Concerning proposed §157.1157(a), four administrators, an individual, two attorneys, a representative of Texas Association of School Boards (TASB), and a charter school founder advocated a "de novo" standard of review for the decisions required by proposed §97.1037.

The commissioner of education is a public office established to make decisions in the field of public education, and TEC, Chapter 39, requires the commissioner to make all accreditation decisions. The commissioner may not assign this function to SOAH. Yet under House Bill (HB) 1, the decision of SOAH on a number of the most significant accreditation matters "is final and may not be appealed." See TEC, §39.302(c)(3). This vests an exceptional amount of authority over accreditation matters in an agency without jurisdiction or expertise in public education. The agency must interpret the statute so as to preserve all discretion over accreditation policy in the commissioner, while vesting SOAH with the authority needed to accomplish the purpose of the statute. Because SOAH's review is final and not appealable, all components of a complete accreditation decision must be accomplished by the commissioner in order for it to receive proper review.

Comment. Concerning proposed §157.1157(b), a board of trustees member asked for clarification in the rule concerning the questions that are committed to the commissioner's discretion by TEC, §39.302.

Agency Response. The agency agrees that the questions committed by law to commissioner discretion require further description. As indicated in response to the previous comment, SOAH does not have authority to accredit school districts or impose accreditation sanctions. Section 157.1157(b) reflected this but lacked criteria for distinguishing questions committed to the commissioner's discretion. Because TEC, §39.302, makes the SOAH review final and because such review might otherwise exercise a function assigned to the commissioner, the questions committed to each agency must be clearly stated. In response to public comment, §157.1157(b) was modified to include, but not be limited to, a description of questions committed by law to commissioner discretion.

§157.1157, Standard of Review, and §157.1159, Scope of Review; Additional Evidence

Comment. Concerning proposed §157.1157 and §157.1159, five administrators and an individual asked why the commissioner is rejecting a contested case process for the Chapter 157, Subchapter EE, appeals that permits issues of fact to be tried and decided by the SOAH ALJ. The commenters suggested the contested case proceeding under proposed Chapter 157, Subchapter EE, should permit issues of fact to be tried.

Agency Response. The agency disagrees. TEC, §39.302, provides that a "challenge to a decision under this section is under the substantial evidence rule as provided by Subchapter G, Chapter 2001, Government Code." The defining characteristic of this review is that the reviewing tribunal is prohibited from trying issues of fact. By permitting issues of fact to be tried by the SOAH ALJ, the rule would violate the plain meaning of TEC, §39.302.

The substantial evidence rule is defined by Government Code, Chapter 2001, Subchapter G, §2001.174, Review Under Substantial Evidence Rule or Undefined Scope of Review. This section provides the statutory requirement that if a decision in a contested case under the substantial evidence rule or if the law does not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion. Government Code, §2001.174, defines stipulations for this provision. This definition is the basis for new §157.1157.

Government Code, Chapter 2001, Subchapter G, §2001.175, Procedures for Review under Substantial Evidence Rule or Undefined Scope of Review, is the section that governs the process for conducting a substantial evidence review of agency decision-making. Government Code, §2001.174 and §2001.175, are primary sources for the language in the adopted rules governing SOAH's review of the commissioner's decision-making under TEC, §39.302. For example, §§157.1157, 157.1159, and 157.1163 are based on these provisions. Section 157.1165 is based on Government Code, §2001.176, Petition Initiating Judicial Review, which is also within Government Code, Chapter 2001, Subchapter G.

The agency finds that new §97.1037 is required by TEC, §39.302. A substantial evidence review of the commissioner's decision requires two steps: a decision by the commissioner under the relevant provision of TEC, Chapter 39, and a review of that decision by SOAH. Section 97.1037 is not the appeals process required by TEC, §39.302. It is the process by which the commissioner makes the decision that is subject to appeal. Because the manner of review is by substantial evidence on the record, the statute implies that the agency must make a record which may be reviewed under the substantial evidence rule. Section 97.1037 is simply the process by which the record of the commissioner's decision is created.

§157.1157, Standard of Review, and §157.1171, Final Decision

Comment. Concerning proposed §157.1157(b), a board of trustees member asked what procedure would apply, under the proposed §157.1157(b) and §157.1171(b), if the SOAH ALJ reverses the commissioner decision for one of the reasons listed in proposed §157.1157(e).

Agency Response. The agency agrees that clarification is needed. The SOAH ALJ does not have statutory authority to make discretionary decisions respecting the public school system. Contested case decisions are normally committed to an agency that has been created by the legislature to make decisions in a specialized, complex, or highly technical field of knowledge. Such decisions are ordinarily reviewed by a process calling, at most, for a proposed decision of the state agency to be recommended by SOAH. Under HB 1, however, the decision of SOAH on a number of highly significant accreditation matters "is final and may not be appealed." See TEC, §39.302(c)(3). But SOAH has no subject matter expertise in the field of knowledge that is the subject of these decisions and is not authorized to make substantive decisions respecting the accreditation of Texas public school districts. This is reflected in the legislative direction that the appeal to SOAH be by substantial evidence review.

The authority of the SOAH is limited to reviewing the facts and law on which the commissioner has based an accreditation decision subject to review. If those facts are in error, or the commissioner misapplied the law, the SOAH ALJ must remand the case back to the commissioner for entry of an appropriate accreditation status or sanction decision.

Section 157.1157(b), as proposed, reflected the fact that SOAH does not have authority to accredit school districts or impose accreditation sanctions. However, the proposed rule lacked a procedural mechanism for accommodating the statutory authority of the commissioner in the event that an error is found under proposed §157.1157(e). In the ordinary case, this interest is accommodated sufficiently by the procedures governing agency review of the proposal for decision, including Government Code, §2001.058. However, in view of the fact that §157.1171(b) makes the SOAH decision final, the agency agrees that a process is required for remanding questions committed by law to commissioner discretion. In response to public comment, §157.1157 was modified to supply a process and associated criteria governing remand for further proceedings on questions committed by law to commissioner discretion. Subsection (b) was modified to include, but not be limited to, a description of questions committed by law to commissioner's discretion. Additionally, the language of subsection (e) was revised to provide a procedural mechanism for accommodating the statutory authority of the commissioner in the event an error is found in an order under this section, and subsections (f) - (h) were added to supply a process and associated criteria governing remand for further proceedings on questions committed by law to commissioner discretion.

§157.1159, Scope of Review; Additional Evidence

Comment. Concerning proposed §157.1159(b), a representative of ACE suggested the ALJs are competent enough to decide the appropriateness of the record for review and this proposed rule unnecessarily invades the purview of the ALJ's authority.

Agency Response. The agency disagrees that the rule invades the ALJ's purview. Section 157.1159(b) and §157.1163 are based on Government Code, §2001.175. This is in obedience to TEC, §39.302, which specifically refers to Government Code, Chapter 2001, Subchapter G. Section 2001.175(e) provides that the reviewing tribunal is "confined to the agency record," and §2001.175(b) provides that the agency shall send to the reviewing tribunal "the entire record of the proceeding under review." Nothing in TEC, §39.302, or the Administrative Procedure Act makes it the prerogative of the reviewing tribunal to determine the makeup of the record it reviews. That is the responsibility of the agency from which a substantial evidence appeal is taken.

§157.1165, Enforcement of Decision Pending Review

Comment. Concerning proposed §157.1165, representatives of ACE, TASB, Texas Association of School Administrators (TASA), and Texas School Alliance; six administrators; and two charter school founders suggested that an appeal under proposed Chapter 157, Subchapter EE, should stay a decision by the commissioner regarding a district's accreditation status or sanction under proposed §97.1037. The commenters suggested that actions be postponed until a final appeals decision has been made.

Agency Response. The agency disagrees, for the following reasons.

Section 157.1165 is based on a provision within Government Code, Chapter 2001, Subchapter G, that governs review under the substantial evidence rule. Government Code, §2001.176(b)(3), provides that a petition seeking review under the substantial evidence standard "does not affect the enforcement of an agency decision." The same provision provides that "the filing of the petition vacates a state agency decision for which trial de novo is the manner of review authorized by law." Since TEC, §39.302(b), requires the substantial evidence standard of review, and precludes review by trial de novo, an appeal under that section does not stay or affect the enforcement of the decision under review.

Section 157.1165 is not only required by TEC, §39.302, it is required by the practical exigencies of the system established by HB 1. For example, TEC, §39.1327(d), provides, "The district must execute a contract with an approved provider and relinquish control of the campus before January 1 of the school year." Ratings appeals mandated by TEC, §39.301, may not be completed until early November. It is simply not possible for the district to negotiate a contract with an alternative management provider and take all the other necessary steps to plan its relinquishment of control by January 1, unless it does so in parallel with the appeal afforded by TEC, §39.302.

The agency presumes the legislature was aware that a ratings appeal under TEC, §39.301, and a sanctions appeal under TEC, §39.302, must run concurrently with the steps required by TEC, §39.1327, and other sanctions. The legislature intended an appealing district to take active and effective steps to implement the decision of the commissioner even while it pursues a substantial evidence review of it. This principle is reflected in §157.1165.

§157.1169, Conduct of Review During a Ratings Appeal

Comment. Concerning proposed §157.1169, four administrators, two charter school founders, and a representative of ACE suggested that an appeal of a rating under TEC, §39.301, should stay proceedings by the SOAH under TEC, §39.302. The commenters suggested a commissioner's decision should not be deemed final until all underpinnings for the decision are valid and uncontested.

Agency Response. The agency disagrees. Section 157.1169 permits the commissioner to move forward with accreditation and sanction decisions that must be determined so that the district may begin planning and implementation for the coming school year. Conducting the SOAH appeal of a proposed sanction is readily accomplished via a presumption that the rating will stay in place. Where this presumption is not valid, the rule provides for supplementing the record with new ratings information. After weighing the costs and benefits to the school children of Texas, the commissioner has determined that a system that permits the appeal to go forward using this procedure provides the greatest economy and efficiency in most cases. Where the circumstances of a particular case indicate otherwise, the rule provides that the commissioner may withdraw the decision or request that the appeal be abated.

§157.1171, Final Decision

Comment. Concerning proposed §157.1171(a)(3), a board of trustees member suggested that, where the appeal in question is one from a decision to close the district under proposed §157.1151(a)(3), the SOAH ALJ may have the authority to assign a different accreditation status, and asked for clarification on how the status can be changed.

Agency Response. The agency disagrees. The authority of the SOAH ALJ is limited to reviewing the facts and law on which the commissioner has based an accreditation-related decision. If those facts are in error, or the commissioner misapplied the law, the SOAH ALJ must remand the case back to the commissioner for entry of an appropriate accreditation status or sanction. The SOAH does not have authority to accredit school districts.

Comment. Concerning proposed §157.1171(b), four administrators, a charter school founder, and an individual asked why the commissioner is not allowing the normal judicial appeal under Government Code, §2001.171, from decisions of the ALJ under proposed §157.1171.

Agency Response. The agency disagrees. The commissioner is not authorized by TEC, §39.302, to adopt such a rule. TEC, §39.302(c)(3), specifically provides that the decision of the ALJ is final and "may not be appealed." This provision is more recent and more specific to these proceedings than Government Code, §2001.171, and so supersedes it.

§157.1173, Application to Charter Schools

Comment. Concerning proposed §157.1173(b), a legislator, a charter school chief executive officer (CEO) and founder, five administrators, a charter school founder, a representative of ACE, a superintendent of a charter school, and an individual suggested that proposed §157.1173(b) exceeds the agency's authority.

Agency Response. The agency disagrees. The 79th Texas Legislature passed HB 1 in its Third Called Special Session, on May 15, 2006. HB 1 expressly provides that once specific accreditation sanctions have been duly imposed under TEC, Chapter 39, specific adverse action under TEC, §12.115, is both mandatory and automatic. There is no further hearing provided or permitted. TEC, §39.1321(c), as added by HB 1, directs the commissioner to establish specific requirements for automatic revocation or modification of the charter of an open-enrollment charter school if closure of the charter school is ordered. The corresponding language in §157.1173(a) provides for automatic revocation or modification of the charter. TEC, §39.1321(d), as added by HB 1, further specifies that an open-enrollment charter school is not entitled to an additional hearing for sanctions imposed under procedures provided by TEC, Chapter 12, Subchapter D. The corresponding language in §157.1173(b) implements this statutory specification. Additionally, the response to comments on §97.1037(g)(2) also provides an analysis of statutory language and its alignment to the language included in commissioner's rules. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §157.1173(b), a legislator, charter CEO and founder, five administrators, a charter school founder, a representative of ACE, a superintendent of a school, and an individual suggested that proposed §157.1173(b) implements a bill that failed to pass the Texas Legislature.

Agency Response. The agency disagrees. The 79th Texas Legislature passed HB 1 in its Third Called Special Session, on May 15, 2006. HB 1 enacted new TEC, §39.1321, which is the basis for proposed §157.1173 and §97.1037(g). This statute clearly states that once specific accreditation sanctions have been duly imposed under TEC, Chapter 39, specific adverse action under TEC, §12.115, is both mandatory and automatic. There is no further hearing provided or permitted. TEC, §39.1321(c) and (d), expressly direct the commissioner to adopt the rule text as provided in §157.1173. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Concerning proposed §157.1173(a)(1) and (2), a representative of ACE noted that the timing of an automatic revocation or modification under proposed §157.1173(a)(1) or (2) could be disruptive to students, parents, and teachers of the district and suggested that a uniform timeline be set to avoid this.

Agency Response. The agency disagrees. The factors identified by the commenter must be considered by the commissioner in issuing a final order under §97.1037(f). It is not possible to fix a general rule that will meet the exigencies of every imaginable set of circumstances that comes for decision, so the effective date of the decision should be established through the record review process. The comment also suggests that §157.1173(a)(1) and (2) be amended to avoid possible misinterpretation. The agency finds the rule as proposed is clear. The effective date of a decision that is automatically effective is the date on which the decision of the commissioner is affirmed by SOAH. In the context of the subchapter as a whole, §157.1173(a) can be given no other reasonable construction.

Comment. Concerning proposed §157.1173(b), a legislator, a charter CEO and founder, five administrators, and a charter school founder suggested that proposed §157.1173(b) violates the procedural due process rights of charter holders.

Agency Response. The agency disagrees. The 79th Texas Legislature passed HB 1 in its Third Called Special Session, on May 15, 2006. HB 1 provides that once specific accreditation sanctions have been duly imposed under TEC, Chapter 39, specific adverse action under TEC, §12.115, is both mandatory and automatic. There is no further hearing provided or permitted. The requirements of procedural due process with respect to legislative enactments are quite different from those that apply to case-by-case application of the law to individual circumstances. A charter holder that did not agree to be bound by the change to its contract made by the 79th Texas Legislature was required to repudiate that contract by refusing to accept additional funding under the new law. See TEC, §12.1071(a). The agency must implement the statute enacted by the Texas Legislature. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

General Comments

Agency Response. TEC, §39.1321, provides that TEC, §12.115(b), has no applicability to an accountability sanction under Chapter 39. However, the accountability standards established by the commissioner under TEC, Chapter 39, do take into consideration the best interests of the students. It is in the best interests of its students that each public school meets the minimum state standards. These substantive standards are not found in either Chapter 97, Subchapter DD, or Chapter 157, Subchapter EE, because those provisions deal exclusively with the process. The substantive standards are adopted at Chapter 97, Subchapter EE, which comprises the commissioner's determination on the best interest of the state's students with respect to each of the criteria set or authorized to be set by statute. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. Two attorneys asked about the process regarding formal appeals as described in the Accountability Manual , and stated that the proposed rules do not appear to take into account the requirements described under TEC, §39.301, to develop rules pertaining to a review committee. The attorneys further stated that this review is in lieu of the formal appeals process via SOAH or the record review and would ideally be met through the development of rules at the same time as those described under TEC, §39.302. Additionally, the attorneys stated the rules called for by other provisions of TEC, Chapter 39, do not appear to have been developed. The attorneys suggested it would be helpful if all rules were developed at the same time in order for a comprehensive review to take place.

Agency Response. The agency disagrees. The rule applicable to an appeal under TEC, §39.301, has previously been adopted under 19 TAC Chapter 97, Subchapter AA, §97.1001, and is not a part of this adoption. Section 97.1037 is designed to meet the requirements of TEC, §39.302, which applies to different decisions under TEC, Chapter 39, and imposes different requirements.

Comment. Two attorneys stated that the distinctions between the review process for individuals accused of violating the rules or laws and the process for districts is confusing and appears to be duplicative.

Agency Response. The agency disagrees. In all instances, the current and proposed rules use the term "person" to include a district, and the term "district" to include a charter holder. The interpretation of the word "person," as found in TEC, §39.076, is governed by the Code Construction Act at Government Code, §311.005(2). That Act defines the term "person" as follows: "Person" includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity. When the Legislature used the term "person" in TEC, Chapter 39, without assigning it a different meaning, it assigned the term the meaning found in the Code Construction Act.

Comment. Two attorneys requested that the comment period be expanded to allow for additional time and input.

Agency Response. The agency agrees. The public comment period was extended through August 20, 2007.

The new sections are adopted 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.

§157.1157.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 the commissioner's discretion. Questions committed to the commissioner's discretion include but are not limited to the following:

(1) any questions arising under a statute, rule, or other legal standard that requires or permits the commissioner to make a decision within general legal guidelines that do not mandate a specific result under the circumstances; and

(2) the execution of any act authorized or required to be taken by the commissioner of education.

(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 and remand the decision for further proceedings 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.

(f) An order of remand may not direct or control the commissioner's exercise of discretion on a matter committed to the commissioner's discretion by §157.1171(b) of this title (relating to Final Decision) and TEC, Chapter 39.

(g) On remand, the commissioner shall apply the facts and law as determined by the SOAH to reach a new decision in light of all the circumstances of the case.

(h) The commissioner shall continue on remand to exercise discretion over the accreditation decision as required by §157.1171(b) of this title and TEC, Chapter 39.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 17, 2007.

TRD-200706405

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Effective date: January 6, 2008

Proposal publication date: June 15, 2007

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