PART 2. TEXAS EDUCATION AGENCY
SUBCHAPTER A. STATE BOARD OF EDUCATION: GENERAL PROVISIONS
The State Board of Education (SBOE) adopts an amendment to §30.1, concerning petitioning for adoption of rule changes. The amendment is adopted without changes to the proposed text as published in the February 13, 2009, issue of the Texas Register (34 TexReg 926) and will not be republished. The section establishes the SBOE process for petitioning the adoption of changes to SBOE rules, as required by Texas Government Code, §2001.021. The amendment adopts in rule the form to be used when an individual elects to petition adoption of SBOE rule changes in the Texas Administrative Code.
Texas Government Code, §2001.021, requires that procedures to petition for the adoption of rule changes be adopted by rule. To comply with statute, the SBOE adopted 19 TAC Chapter 30, Administration, Subchapter A, State Board of Education: General Provisions, §30.1, Petition for Adoption of Rule Changes, effective December 5, 2004. Prior to the adoption of 19 TAC §30.1, procedures to petition for the adoption of changes to SBOE rules were included as part of the SBOE's operating rules.
In conjunction with the adoption of the review of SBOE rules in 19 TAC Chapter 30, Subchapter A, during its January 2009 meeting, the SBOE approved for first reading and filing authorization the proposed amendment to 19 TAC §30.1. As advised by Texas Education Agency (TEA) legal counsel, the amendment adopts in rule as a figure the form used to petition for the adoption of rule changes to ensure compliance with statute and increase public awareness. The form has been posted on the TEA rules website since initial adoption of 19 TAC §30.1 in December 2004. Technical updates are also incorporated throughout the rule, including adding new subsection (d) to clarify that the SBOE may propose language that differs from the language proposed by the petitioner.
The TEA determined that the amendment will have no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
In accordance with the Texas Education Code, §7.102(f), the SBOE approved this rule action for adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2009-2010 school year in order to implement the latest policy in a timely manner. The effective date is 20 days after filing as adopted.
No comments were received regarding the proposed amendment.
The amendment is adopted under the Texas Government Code, §2001.021, which authorizes a state agency to by rule prescribe the form for a petition and the procedure for the submission, consideration, and disposition.
The amendment implements the Texas Government Code, §2001.021.
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 April 6, 2009.
TRD-200901340
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: April 26, 2009
Proposal publication date: February 13, 2009
For further information, please call: (512) 475-1497
The State Board of Education (SBOE) adopts an amendment to §30.21, concerning the historically underutilized business (HUB) program. The amendment is adopted without changes to the proposed text as published in the February 20, 2009, issue of the Texas Register (34 TexReg 1169) and will not be republished. The section addresses the HUB program, as required by statute. The amendment updates the rule to reflect the transfer of HUB rules from the Texas Building and Procurement Commission (TBPC) to the Comptroller of Public Accounts.
Texas Government Code, §2161.003, directed each state agency to adopt the state's HUB rules as its own rules. Those rules applied to state agency construction projects and purchases of goods and services paid for with appropriated money. To comply with statute and on the advice of Texas Education Agency (TEA) legal counsel, the SBOE adopted effective December 5, 2004, 19 TAC §30.21, Historically Underutilized Business (HUB) Program, which adopted by reference the TBPC rules concerning the HUB program.
House Bill 3560, 80th Texas Legislature, 2007, transferred certain procurement duties and powers, and the rules related to those duties and powers, from the TBPC to the Comptroller of Public Accounts. The rules concerning the HUB program were transferred and codified as new 34 TAC §§20.11-20.28 effective September 1, 2007. In conjunction with the adoption of the review of SBOE rules in 19 TAC Chapter 30, Subchapter B, during its January 2009, meeting, the SBOE approved for first reading and filing authorization the proposed amendment to 19 TAC §30.21. The adopted amendment updates the SBOE's rule to reflect the transfer of HUB rules from the TBPC to the Comptroller of Public Accounts.
The TEA determined that the amendment will have no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
In accordance with the Texas Education Code, §7.102(f), the SBOE approved this rule action for adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2009-2010 school year in order to implement the latest policy in a timely manner. The effective date is 20 days after filing as adopted.
No comments were received regarding the proposed amendment.
The amendment is adopted under the Texas Government Code, §2161.003, which authorizes the State Board of Education to adopt the HUB rules of the state as its own rules.
The amendment implements the Texas Government Code, §2161.003.
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 April 6, 2009.
TRD-200901341
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: April 26, 2009
Proposal publication date: February 20, 2009
For further information, please call: (512) 475-1497
SUBCHAPTER AA. COMMISSIONER'S RULES ON SCHOOL FINANCE
The Texas Education Agency (TEA) adopts new §61.1019, concerning additional state aid for ad valorem tax credits under the Texas Economic Development Act. The new section is adopted with changes to the proposed text as published in the December 19, 2008, issue of the Texas Register (33 TexReg 10266). The adopted new rule allows the commissioner of education to implement and administer the provisions of the Texas Education Code (TEC), §42.2515, which authorizes an eligible school district to receive state aid equal to the amount of all qualified economic development tax credits credited against the district's ad valorem taxes in a school year under the Texas Tax Code, Chapter 313, Subchapter D.
Pursuant to the Texas Tax Code, Chapter 313 (the Texas Economic Development Act), school districts may offer appraised value limitations on property and tax credits to certain capital-intensive industries that meet dollar and job creation requirements in order to encourage large-scale capital investments in Texas.
The TEC, §42.2515, authorizes the commissioner to adopt rules to implement and administer the provision of additional state aid, including aid for school districts otherwise ineligible for state aid, in order to offset tax credits issued by school districts under the Texas Economic Development Act.
Adopted new 19 TAC §61.1019, Additional State Aid for Ad Valorem Tax Credits under the Texas Economic Development Act, implements the provisions of the TEC, §42.2515. Specifically, the adopted new rule addresses general provisions; provides definitions, eligibility criteria, and the procedures for filing a request for aid; describes the forms to be used to make a request for aid; and establishes limitations on state aid, the reasons for which and method by which erroneous tax credits will be recovered, the timeline for submission of application requests, and the method of payment of state aid.
In response to public comment, a new subsection (f), describing limitations of tax credits, was added at adoption. Subsections (f) through (i), as filed as proposed, were relettered accordingly, and subsection (c)(2) was amended to correct a cross reference to a relettered subsection.
In addition, a technical edit was made in newly relettered subsection (g). The word given was replaced with the word due to ensure that a school district could not receive state aid for an amount of tax credit the district gave a taxpayer in excess of what the taxpayer was actually due.
To take advantage of the ad valorem tax credit and receive an adjustment to its state aid, a school district must submit a Request for Additional State Aid for Ad Valorem Tax Credit form to the TEA.
The Request for Additional State Aid for Ad Valorem Tax Credit form requires information on the school district's tax rates, the taxpayer receiving tax credits, the amount of state aid being sought and the year for which it is being sought, and documents dealing with the provision of the tax credits. The form also requires the applicant school district to attach a completed TEA-provided electronic spreadsheet that allows the applicant school district to calculate the amount of the tax credit to be provided to the taxpayer and details the plans for the period the school district will be subject to the value limitation agreement.
The locally maintained paperwork requirements resulting from the adopted new rule correspond with and support the stated procedural and reporting implications.
The TEA determined that the new rule will have no adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
The public comment period began December 19, 2008, and ended January 20, 2009. Following is a summary of public comments received and corresponding agency responses regarding the proposed new 19 TAC Chapter 61, School Districts, Subchapter AA, Commissioner's Rules on School Finance, §61.1019, Additional State Aid for Ad Valorem Tax Credits under the Texas Economic Development Act.
Comment. A partner at Moak, Casey & Associates commented that the rule's provisions may need to be clarified to indicate whether certain credit limitations would apply only to maintenance and operations (M&O) taxes paid by a taxpayer or to the total taxes paid by the taxpayer, including both M&O and interest and sinking fund taxes.
Agency response. The agency agrees. A new subsection (f) has been added to clarify that the credit limitations would apply to the total taxes paid.
Comment. A partner at Moak, Casey & Associates commented that a school district should be permitted to submit other evidence of a tax refund paid when an initial tax credit is not reflected in a taxpayer's tax statement.
Agency response. The agency agrees. Subsections (d)(2)(D) and (d)(3)(B) explicitly permit a school district to submit as evidence of a tax refund paid either a copy of the tax bill sent to the taxpayer or "other proof that the school district has reimbursed the tax credit to the taxpayer."
Comment. A partner at Moak, Casey & Associates inquired whether the application and accompanying spreadsheet specified in rule were available online.
Agency response. The application form, including the necessary template, will be updated as needed and made available online on the TEA state funding webpage.
The new rule is adopted under the TEC, §42.2515, which authorizes the commissioner of education to adopt rules to implement and administer additional state aid for ad valorem tax credits under the Texas Economic Development Act.
The adopted new rule implements the TEC, §42.2515.
§61.1019.Additional State Aid for Ad Valorem Tax Credits under the Texas Economic Development Act.
(a) General provisions. This section implements the Texas Education Code (TEC), §42.2515 (Additional State Aid for Ad Valorem Tax Credits Under Texas Economic Development Act). In accordance with the TEC, §42.2515, a school district, including a school district that is otherwise ineligible for state aid under the TEC, Chapter 42, is entitled to state aid in an amount equal to the amount of all tax credits applied against ad valorem taxes of the school district in each year that tax credits were applied pursuant to the Texas Tax Code, Chapter 313, also known as the Texas Economic Development Act. School districts eligible to receive additional state aid under the TEC, §42.2515, must apply to the commissioner of education in order to receive additional state aid equal to the qualifying ad valorem tax credits issued under the Texas Tax Code, Chapter 313, Subchapter D, subject to certain annual limitations.
(b) Definitions. The following phrases, words, and terms, when used in this section, will have the following meanings, unless the context clearly indicates otherwise.
(1) Eligible property--A term that has the meaning assigned in the Texas Tax Code, §313.024.
(2) Limitation on appraised value--A term that has the meaning assigned in the Texas Tax Code, Chapter 313. A school district may limit the appraised value on a qualified property for the purposes of ad valorem taxation for a period of eight tax years, beginning with the tax year that follows the applicable two-year qualifying time period. A limitation on appraised value applies only to the maintenance and operations portion of a school district's ad valorem tax rate. For each tax year in which the limitation on appraised value is in effect, the appraised value of the qualified property that is described in the written agreement between the school district and taxpayer for school district maintenance and operations ad valorem tax may not exceed the lesser of the market value of the property or the amount to which the school district has agreed, but the limited amount must be at least the minimum amount of limitation that is set for the applicable school district category in the Texas Tax Code, Chapter 313.
(3) Qualified property--A term that has the meaning assigned in the Texas Tax Code, §313.021(2).
(4) Tax credit--A credit that is made to a taxpayer who has applied for and received a limitation on appraised value under the Texas Tax Code, Chapter 313, from the school district that approved the limitation in an amount equal to the amount of ad valorem taxes paid to that school district that were imposed on the portion of the appraised value of the qualified property that exceeds the amount of the limitation agreed to by the governing body of the school district under the Texas Tax Code, §313.027(a)(2), in each year in the applicable qualifying time period.
(5) Tax year--The calendar year beginning January 1 in which the taxpayer incurred ad valorem taxes on the qualified property for which the taxpayer is entitled to a tax credit toward ad valorem taxes paid in that tax year.
(6) Texas Economic Development Act--The Texas Tax Code, Chapter 313.
(c) Eligibility for additional state aid.
(1) A school district may be eligible for additional state aid under the TEC, §42.2515, only pursuant to the provisions of the TEC, §42.2515, and the Texas Tax Code, Chapter 313.
(2) A school district must file an application on a form prescribed by the commissioner in accordance with the applicable timeline as described in subsection (i) of this section. A separate application must be made for each tax year for which additional state aid is being requested. An application, including the required supporting documentation described in subsections (d)(2) and (d)(3) of this section, as applicable, must be complete in order for the Texas Education Agency (TEA) to process it.
(3) A school district must be in compliance with the reporting requirements set forth in 34 Texas Administrative Code Chapter 9, Subchapter F (relating to Limitation on Appraised Value and Tax Credits on Certain Qualified Property), to be eligible for additional state aid under the TEC, §42.2515.
(d) Procedures for filing request for additional state aid for ad valorem tax credits.
(1) Method of filing. All requests for additional state aid under the TEC, §42.2515, must be filed by mail with the TEA, 1701 North Congress Avenue, Austin, Texas 78701, in accordance with instructions on the application.
(2) Information required for first year of tax credit. A school district's initial request for additional state aid under the TEC, §42.2515, must include:
(A) a completed Request for Additional State Aid for Ad Valorem Tax Credit application form, including the template that comprises a component of the application showing requested and projected additional state aid for each agreement under the Texas Tax Code, Chapter 313;
(B) a copy of the taxpayer's application to the school district for the tax credit, together with all required attachments to the application;
(C) a copy of the school board's resolution or other proof that the school district has approved the taxpayer's application for the tax credit;
(D) a copy of the tax bill sent to the taxpayer (showing the credit) or other proof that the school district has reimbursed the tax credit to the taxpayer; and
(E) confirmation that, as of the date of the tax credit approval, the taxpayer has not relocated its business outside of the school district.
(3) Information required for subsequent years of tax credit. For each year subsequent to the year in which the initial request for the tax credit was approved, the request for additional state aid under the TEC, §42.2515, must include:
(A) a completed Request for Additional State Aid for Ad Valorem Tax Credit application form, including the template that comprises a component of the application showing requested and projected additional state aid for each agreement under the Texas Tax Code, Chapter 313;
(B) a copy of the tax bill sent to the taxpayer (showing the credit) or other proof that the school district has reimbursed the tax credit to the taxpayer; and
(C) confirmation that, as of the date of the tax credit approval, the taxpayer has not relocated its business outside of the school district.
(e) Forms. The division of the TEA responsible for state funding will make available the application form, including the template, required under subsections (d)(2) and (d)(3) of this section.
(f) Limitation of tax credit. In the fourth through the tenth years in which the agreement described in subsection (b)(2) of this section is in effect, the tax credit is limited to 50% of the total maintenance and operations and interest and sinking fund taxes imposed on the qualified property for the tax year for which the credit applies.
(g) Determination of additional state aid. For any tax year for which additional state aid authorized by the TEC, §42.2515, is approved, additional state aid will be limited to the amount of the tax credit due to the taxpayer for a qualified property that is receiving a limitation on appraised value for that year as determined in the Texas Tax Code, §313.104.
(h) Erroneous tax credits and recovery of state aid for erroneous tax credits. If the comptroller of public accounts or the governing body of the school district determines that an entity that received a tax credit was ineligible to have received it or received more credit than the entity should have received, the school district must provide a notification of the facts to the commissioner within 30 days of the official action. If the TEA determines that an entity that received a tax credit was ineligible to have received it or received more credit than the entity should have received, the commissioner will notify the school district within 30 days of the determination. Any overpayment of additional state aid provided to the school district based on issuance of an erroneous tax credit by the school district will be fully recovered by the TEA pursuant to the TEC, §42.258.
(i) Timeline for submission of application requests.
(1) For tax credits earned under the TEC, §42.2515, for taxes that became due and payable on January 31, 2009, or at any time before that date, the school district must submit its application for additional state aid for ad valorem tax credits on or before May 31, 2009.
(2) For tax credits earned under the TEC, §42.2515, for taxes that become due and payable on January 31, 2010, or at any time after that date, the school district must submit its application for additional state aid for ad valorem tax credits on or before May 31 each year for which the tax credit is due.
(j) Payment to the school district. On approval of a school district's application for additional state aid for ad valorem tax credits by the commissioner, the amount of the credit will be applied to the entitlement due to the school district under the Foundation School Program as follows.
(1) State aid payments for tax credits on taxes that become due and payable after January 31, 2009, will be applied to the school district entitlement as prescribed by the TEC, §42.2516(b-2)(1). Payments for this credit will be incorporated into the payments made under the schedule prescribed by the TEC, §42.259.
(2) State aid payments for tax credits on taxes that were due and payable on January 31, 2009, or at any time before that date will be paid on or before August 31, 2009. This paragraph expires on September 1, 2009.
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 April 3, 2009.
TRD-200901307
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: April 23, 2009
Proposal publication date: December 19, 2008
For further information, please call: (512) 475-1497
SUBCHAPTER B. STUDENT ATTENDANCE ACCOUNTING
The State Board of Education (SBOE) adopts an amendment to §129.21, concerning student attendance accounting. The amendment is adopted without changes to the proposed text as published in the February 13, 2009, issue of the Texas Register (34 TexReg 961) and will not be republished. The section provides requirements for student attendance accounting for state funding purposes. The amendment updates the rule to reflect statutory changes and changes in other administrative rules that provide for an alternative attendance accounting program. The amendment modifies certain attendance accounting requirements that school districts must follow.
Section 129.21 provides the student attendance accounting requirements school districts must follow and describes the manner in which student attendance is earned. The rule also provides a list of conditions under which a student who is not actually on campus at the time attendance is taken may be considered in attendance. The adopted amendment updates the rule to reflect statutory changes and changes in other administrative rules that provide for an alternative attendance accounting program and modifies the rule in the following ways.
In subsection (i), exceptions to the stipulation that attendance for all grades must be determined by absences recorded at certain times of the school day were added.
In subsection (i)(1), an explanation of how students enrolled on a full-day basis earn attendance was added.
A new subsection (i)(2) was added to provide an explanation of how students who are enrolled in and participating in an alternative attendance accounting program earn attendance. Existing subsections (i)(2) and (i)(3) were renumbered accordingly.
In subsection (i)(4), renumbered from (i)(3), an exception to the stipulation that students absent at the time attendance is taken are to be counted absent for the entire day was added. Also, an exception to the stipulation that students present at the time attendance is taken are to be counted present for the entire day was added.
In subsection (j), an exception to the stipulation that a student who is not in school at the time attendance is taken must not be counted in attendance was added.
Subsection (k)(4) was modified to clarify that not only are days for travel to and from the site where a student will observe holy days or attend a required court appearance to be counted as excused absences, but so are the days when the student is actually observing the holy days or attending the required court appearance.
A new subsection (k)(5), excusing absences for sounding "Taps" at a military honors funeral held in Texas for a deceased veteran, was added. The existing subsection (k)(5) was renumbered accordingly.
Subsection (k)(6), renumbered from (k)(5), was modified to stipulate that an absence for a documented appointment with a health care professional may be counted as excused only if the student begins classes or returns to school on the same day of the appointment.
Throughout the rule, corrections to word usage were made. The adopted rule action also updates the name of a state agency referenced in the rule.
The Texas Education Agency determined that the amendment will have no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
In accordance with the Texas Education Code, §7.102(f), the SBOE approved this rule action for adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2009-2010 school year in order to implement the latest policy in a timely manner. The effective date is 20 days after filing as adopted.
No comments were received regarding the proposed amendment.
The amendment is adopted under the Texas Education Code, §42.004, which authorizes the commissioner of education, in accordance with the rules of the State Board of Education, to take such action and require such reports consistent with TEC, Chapter 42, as may be necessary to implement and administer the Foundation School Program.
The amendment implements the Texas Education Code, §42.004 and §25.087.
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 April 6, 2009.
TRD-200901342
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Effective date: April 26, 2009
Proposal publication date: February 13, 2009
For further information, please call: (512) 475-1497