Part 2.
TEXAS EDUCATION AGENCY
Chapter 100.
CHARTERS
Subchapter A. OPEN-ENROLLMENT CHARTER SCHOOLS
19 TAC §§100.1, 100.101, 100.103
The Texas Education Agency (TEA) proposes an amendment to §100.1
and new §100.101 and §100.103, concerning open-enrollment charter
schools. Section 100.1 specifies provisions relating to application and selection
procedures and criteria. The proposed amendment to §100.1 incorporates
changes related to the processing of applications and clarification relating
to contracts. The new sections establish requirements for an annual report
on open-enrollment charter governance and provisions for optional contracting
and purchasing, in accordance with House Bill 6, 77th Texas Legislature, 2001.
The proposed amendment to 19 TAC §100.1 incorporates: (1) a requirement
for applicant conferences and training prerequisites; (2) a provision for
the TEA to return an application without further processing under certain
circumstances; and (3) a clarification that an open-enrollment charter is
not a contract for goods or services within the meaning of Texas Government
Code, Chapter 2260.
Proposed new 19 TAC §100.101 incorporates requirements in Texas Education
Code (TEC), §12.111, that each charter specify the powers or duties of
the governing body and TEC, §12.119, that the State Board of Education
(SBOE) prescribe the period and manner of submission of an annual charter
governance report, including articles of incorporation and bylaws. Proposed
new 19 TAC §100.103 incorporates the requirement in TEC, §12.1053,
that charter schools must have purchasing and contracting procedures approved
by the SBOE if their procedures differ from those specified by the commissioner.
Susan Barnes, assistant commissioner for charter schools, has determined
that for the first five-year period the amendment and new sections are in
effect there will be no fiscal implications for state or local government
as a result of enforcing or administering the amendment or new sections. There
are fiscal implications anticipated for charter schools as a result of enforcing
proposed new §100.103. Proposed new §100.103 allows for an option
that would reduce the requirements otherwise imposed by TEC, §12.1053,
potentially resulting in a reduced cost to charter schools. The alternative
option is TEC, Chapter 44, Subchapter B, to which school districts are subject.
Any potential cost savings that might result from operating under the less
restrictive requirements allowed by rule cannot accurately be quantified since
there is no reliable means by which to predict the number of charter schools
that will choose the optional requirements.
Ms. Barnes has determined that for each year of the first five years the
amendment and new sections are in effect the public benefit anticipated as
a result of enforcing the amendment and new sections will be that the open-
enrollment charter school system is strengthened by refining the application,
reporting, and operating processes. There will not be an effect on small businesses.
There is no anticipated economic cost to persons who are required to comply
with the proposed amendment and new sections.
Comments on the proposal may be submitted to Cristina De La Fuente-Valadez,
Accountability Reporting and Research, 1701 North Congress Avenue, Austin,
Texas 78701, (512) 463-9701. Comments may also be submitted electronically
to
rules@tea.state.tx.us
or faxed to (512)
475-3499. All requests for a public hearing on the proposed amendment and
new sections submitted under the Administrative Procedure Act must be received
by the commissioner of education not more than 15 calendar days after notice
of the proposal has been published in the
Texas Register
.
The amendment and new sections are proposed under the Texas Education
Code (TEC), §§12.101, 12.1053, 12.110, 12.111, and 12.119, as amended
and added by HB 6, 77th Texas Legislature, 2001, which authorizes the State
Board of Education to: adopt an application form and a procedure that must
be used to apply for a charter for an open-enrollment charter school and criteria
to use in selecting a program for which to grant a charter; grant a charter
on the application of an eligible entity for an open-enrollment charter school;
and approve procedures for purchasing and contracting of an open-enrollment
charter school. TEC, §12.111 and §12.119, also specifies that a
charter holder shall file with the SBOE a copy of its articles of incorporation
and bylaws and that each charter contain specific content, including the specification
and description of certain powers and duties.
The amendment and new sections implement the Texas Education Code, §§12.101,
12.1053, 12.110, 12.111, and 12.119, as amended and added by HB 6, 77th Texas
Legislature, 2001.
§100.1.Application and Selection Procedures and Criteria.
(a)
Prior to each selection cycle, the State Board of Education
(SBOE) shall adopt an application form for submission by applicants seeking
a charter to operate an open-enrollment charter school. The application form
shall address the content requirements specified in Texas Education Code (TEC), §12.111,
and contain the following:
(1)
the timeline for selection;
(2)
required applicant conferences and training
prerequisites;
(3)
[
(4)
[
(5)
[
(b)
The Texas Education Agency (TEA) shall review applications
submitted under this section. If an application does not contain all required
information and documentation, the TEA
shall return the application without
further processing
[
(c)
Upon written notice to the TEA, an applicant may withdraw
an application.
(d)
Eligible applications shall be reviewed and scored by an
appointed review panel. Two-thirds of the panel members shall be appointed
by the SBOE. One-third of the panel members shall be appointed by the commissioner
of education. The panel shall review and score applications in accordance
with the procedures and criteria established in the application form. Review
panel members shall not discuss applications with or accept meals, entertainment,
gifts, or gratuities in any form from any person or organization with an interest
in the results of the selection process for open-enrollment charters. Members
of the review panel shall disclose to the TEA immediately upon discovery any
past or present relationship with an open-enrollment charter applicant, including
any current or prospective employee, agent, officer, or director of the sponsoring
entity, an affiliated entity, or other party with an interest in the selection
of the application.
(e)
Applications that are not scored at or above the minimum
score established in the application form are not eligible for SBOE selection
during that cycle. The SBOE may at its sole discretion decline to grant an
open-enrollment charter to an applicant whose application was scored at or
above the minimum score. No recommendation, ranking, or other type of endorsement
by a member or members of the review panel is binding on the SBOE, except
as provided in this section.
(f)
The SBOE or its designee(s) shall interview applicants
whose applications received the minimum score established in the application
form. The SBOE may specify individuals required to attend the interview and
may require the submission of additional information and documentation prior
or subsequent to an interview.
(g)
The SBOE may consider criteria that include, but are not
limited to, the following when determining whether to grant an open-enrollment
charter:
(1)
indications that the charter school will improve student
performance;
(2)
innovation evident in the program(s) proposed for the charter
school;
(3)
impact statements from any school district whose enrollment
is likely to be affected by the proposed charter school, including information
relating to any financial difficulty that a loss in enrollment may have on
a district;
(4)
evidence of parental and community support for the proposed
charter school;
(5)
the qualifications, backgrounds, and histories of individuals
and entities who will be involved in the management and educational leadership
of the proposed charter school;
(6)
the history of the sponsoring entity of the proposed charter
school, as defined in the application form;
(7)
indications that the governance structure proposed for
the charter school is conducive to sound fiscal and administrative practices;
and
(8)
indications that the proposed charter school would expand
the variety of charter schools in operation with respect to the following:
(A)
representation in urban, suburban, and rural communities;
(B)
instructional settings;
(C)
types of eligible entities;
(D)
types of innovative programs;
(E)
student populations and programs; and
(F)
geographic regions.
(h)
An applicant for an open-enrollment charter shall not communicate
with a member of an external application review panel appointed by the SBOE
concerning a charter school application beginning on the date the panel member
is notified of appointment to serve on a specific review cycle and ending
when the SBOE takes final action awarding charters under that application.
On finding a material violation of the no- contact period, the SBOE shall
reject the application or applications affected.
(i)
The SBOE may consider minimum enrollment criteria.
(1)
Each application for an open-enrollment charter shall state
a minimum student enrollment of no fewer than 50 students. The SBOE may grant
a lower minimum student enrollment only on majority recommendation of members
voting from the committee with jurisdiction over charters.
(2)
The SBOE may grant a lower minimum student enrollment in
accordance with paragraph (1) of this subsection upon finding that either
the nature of the charter warrants a minimum enrollment lower than 50 students.
(j)
The SBOE may grant an open-enrollment charter subject to
additional conditions not contained in the application and may require fulfillment
of such conditions before the charter school is permitted to operate.
(k)
An open-enrollment charter shall be in the form and substance
of a written contract signed by the chair of the SBOE and the chief operating
officer of the school
, but is not a contract for goods or services within
the meaning of Texas Government Code, Chapter 2260
. The chief operating
officer of the school shall mean the chief executive officer of the open enrollment
charter holder under TEC, §12.101.
§100.101.Annual Report on Open-Enrollment Charter Governance.
(a)
No later than November 1 of each year, each open-enrollment
charter holder shall file under §100.1013 of this title (relating to
Filing of Documents), the following information on a charter school governance
reporting form approved by the State Board of Education:
(1)
identifying information for and compensation of each officer
and member of the governing body of the open-enrollment charter holder;
(2)
identifying information for and compensation of each officer
of the charter school; and
(3)
identifying information for and compensation of each member
of the governing body of the charter school, if the charter holder has established
a governing body for the charter school.
(b)
The identifying information required for an individual
under subsection (a) of this section may include facsimile numbers and electronic
mail addresses and shall include:
(1)
the title of each position held or function performed by
the individual;
(2)
the specific powers and duties that the governing body
of the charter holder or charter school have delegated to the individual,
as described by the powers and duties listed in the charter;
(3)
the legal name of the individual;
(4)
any aliases or names formerly used by the individual, including
maiden name;
(5)
a mailing address for the individual, if an officer; and
the street address of the individual's primary residence, if a governing body
member; and
(6)
telephone numbers for the individual.
(c)
The compensation information required for an individual
under subsection (a) of this section shall include all compensation, remuneration,
and benefits received by the individual in any capacity from the charter holder
or the charter school, or from any contractor or management company doing
business with the charter holder or charter school. The compensation reported
shall include without limitation:
(1)
all salary, bonuses, benefits, or other compensation received
pursuant to an employment relationship;
(2)
all compensation received for goods or services under contract,
agreement, informal arrangement, or otherwise;
(3)
all payment of or reimbursement for personal expenses;
(4)
all credit extended to the individual by the charter holder
or charter school;
(5)
the fair market value of all personal use of property paid
for by the charter holder or charter school;
(6)
the fair market value of all in-kind transfers of property;
(7)
all compensation for goods or services provided to the
charter holder through transactions unrelated to the charter school; and
(8)
all other forms of compensation or remuneration received
by the individual from the charter holder or charter school.
(d)
No later than November 1 of each year, each open-enrollment
charter holder shall file under §100.1013 of this title (relating to
Filing of Documents) a copy of its articles of incorporation and bylaws, or
comparable documents if the charter holder does not have articles of incorporation
or bylaws.
§100.103.Optional Open-Enrollment Charter Provisions for Contracting and Purchasing.
Improvements to real property. Section 100.1073 of this title (relating
to Improvements to Real Property) applies to a charter holder unless the charter
holder amends its open-enrollment charter to include a statement expressly
adopting the provisions of Texas Education Code (TEC), Chapter 44, Subchapter
B, as the charter holder's process for awarding a contract for the construction,
repair, or renovation of a structure, road, highway, or other improvement
or addition to real property. If such a statement is included in the open-enrollment
charter, then the provisions of TEC, Chapter 44, Subchapter B, control in
lieu of §100.1073. Nothing in this section shall require a charter holder
to comply with TEC, Chapter 44, Subchapter B, except when awarding a contract
for the construction, repair, or renovation of a structure, road, highway,
or other improvement or addition to real property.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 4, 2002.
TRD-200200692
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Earliest possible date of adoption: March 17, 2002
For further information, please call: (512) 463-9701
The Texas Education Agency (TEA) proposes the repeal of §100.1011
and §100.1061; new §§100.1011, 100.1013, 100.1015, 100.1027,
100.1029, 100.1031, 100.1033, 100.1035, 100.1037, 100.1043, 100.1045, 100.1047,
100.1049, 100.1051, 100.1071, 100.1073, 100.1101, 100.1111-100.1116, 100.1131-100.1135,
100.1151, 100.1153, 100.1155, 100.1157, 100.1159, 100.1201, 100.1203, 100.1205,
100.1207, 100.1209, 100.1211, 100.1213, 100.1215, and 100.1217; and amendments
to §100.1041 and §100.1063, concerning open- enrollment charter
schools. Section 100.1011 and §100.1061 specify provisions relating to
charter renewals and definitions. The repeal of these sections is proposed
in order to incorporate these provisions into other amended and new sections
included in this proposal. Section 100.1041 and §100.1063 specify provisions
relating to state funding and use of public property by a charter holder.
The new sections and the amendments are proposed in order to incorporate revisions
and new provisions to conform to changes enacted by House Bill (HB) 6, 77th
Texas Legislature, 2001.
HB 6, 77th Texas Legislature, 2001, directed the commissioner of education
to adopt rules for a wide range of issues related to open-enrollment charter
schools. While much of the proposed amendments and additions to 19 TAC Chapter
100, Charters, Subchapter AA, Commissioner's Rules Concerning Open-Enrollment
Charter Schools, result from new statutory requirements, some of the proposed
changes are the result of a shift in authority from the State Board of Education
(SBOE) to the commissioner of education. Still other portions of the proposed
rules come from provisions originally in the charter contract.
Initially adopted to be effective November 6, 2001, 19 TAC Chapter 100,
Subchapter AA, was organized under the following divisions: Division 1. Amendment
and Renewal Procedures and Criteria; Division 2. Adverse Action and Intervention;
Division 3. Charter School Funding; and Division 4. Property of Open-Enrollment
Charter Schools. The proposed repeals, new sections, and amendments restructure
the subchapter into the following divisions: Division 1. General Provisions;
Division 2. Commissioner Action and Intervention; Division 3. Charter School
Funding and Financial Operations; Division 4. Property of Open-Enrollment
Charter Schools; Division 5. Charter School Governance; and Division 6. Charter
School Operations.
Proposed revisions to Divisions 1-4 address: (1) general provisions, including
relevant definitions, filing of documents with the TEA, and requirements of
charter applicants; (2) commissioner action and intervention, including adverse
action taken by the commissioner on an open-enrollment charter school; agency
audits of open- enrollment charter schools; charter renewal; charter amendment;
compliance records on nepotism, conflict of interest, and restrictions on
serving as an officer or on the governing body of an open-enrollment charter
school; and the notification of appropriate school districts and legislators
of charter application; (3) charter school funding and financial operations,
including state funding and its uses; disclosure of campaign contributions;
and the financial audit of funds used for charter school operations; and (4)
property of open-enrollment charter schools, including property acquired with
state funds received before September 1, 2001; possession and control of the
public property of a former charter holder; and real property.
Proposed new Division 5 addresses charter school governance, including
the delegation of powers and duties by the charter holder to any other entity;
issues related to nepotism and conflicts of interest among officers or governing
body members of a charter school; criminal history of employees, officers,
or governing body members of a charter school; and issues related to management
companies.
Proposed new Division 6 discusses charter school operations, including
voluntary participation in state programs; records management; procurement
of professional services; student admission; municipal ordinances; and a variety
of issues related to students, failure of a charter school to operate, instructional
facilities, and changes in the status of entities eligible to hold charters.
New reporting requirements for charter schools resulting from adoption
of the proposed rules would include: (1) each year, the submission of a depository
contract to the school financial audits division; (2) disclosure, in its annual
audit, of all employees, officers, and governing body members having a substantial
interest in a management company that has a contract with the charter school;
(3) filing for review with the legal services division of TEA a copy of any
contract for management services and any amendment, renewal, or extension
of the contract; (4) reporting of child abuse or neglect to an appropriate
entity; (5) notification of the appropriate school district of any expulsion
or withdrawal of a student; (6) submission of a certificate of occupancy or
equivalent document to the charter schools division of TEA before commencing
operations at a charter school site; and (7) immediate notification of the
commissioner of education of any change in status that would render the charter
holder ineligible to hold the charter. The charter schools division of TEA
would be required to notify legislators and school district boards of trustees
of any charter application before the application is sent to the SBOE.
Susan Barnes, assistant commissioner for charter schools, has determined
that for the first five-year period the repeals, new sections, and amendments
are in effect there will be no fiscal implications for state or local government
as a result of enforcing or administering the repeals, new sections, and amendments.
There are fiscal implications anticipated for charter schools as a result
of enforcing these proposed rule actions. The proposed amendments and new
sections that reiterate statutory requirements do not create additional costs
or savings; however, there are provisions that could result in cost for some
charter schools. Provisions that prohibit the delegation of certain powers
and duties could result in additional costs for charter schools that are currently
delegating a high proportion of such activities. If a charter school governing
body is currently delegating these powers and duties, costs associated with
the need for more frequent or extended meetings could be incurred. However,
unless most such powers and duties are currently delegated, it is not likely
that such costs would rise significantly.
Provisions requiring specific audit disclosure of substantial interest
in a management company and loans, credits, or indebtedness could result in
somewhat higher audit-related costs for affected charter schools. Because
the independent audit currently includes review and disclosure of loans, credits,
and indebtedness in general, costs related to the specific disclosure required
in this proposal would likely be minimal. The proposal requires the separate
disclosure in the annual audit report of certain persons with a substantial
interest in a management company. If such persons are identified, costs associated
with the independent auditor's preparation of the disclosure would be incurred.
Ms. Barnes has determined that for each year of the first five years the
repeals, new sections, and amendments are in effect the public benefit anticipated
as a result of enforcing the repeals, new sections, and amendments will be
that open-enrollment charter schools provide the public with choices among
public schools and innovation in education programs throughout the state.
The proposed rule actions offer a new level of charter school accountability.
There will not be an effect on small businesses. There is no anticipated economic
cost to persons who are required to comply with the proposed repeals, new
sections, and amendments.
Comments on the proposal may be submitted to Cristina De La Fuente-Valadez,
Accountability Reporting and Research, 1701 North Congress Avenue, Austin,
Texas 78701, (512) 463-9701. Comments may also be submitted electronically
to
rules@tea.state.tx.us
or faxed to (512)
475-3499. All requests for a public hearing on the proposed repeals, amendments,
and new sections submitted under the Administrative Procedure Act must be
received by the commissioner of education not more than 15 calendar days after
notice of the proposal has been published in the
Texas Register
.
1.
AMENDMENT AND RENEWAL PROCEDURES AND CRITERIA
19 TAC §100.1011
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Education Agency or in the Texas Register office, Room 245, James
Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Texas Education
Code (TEC), §§12.101(b), 12.106(c), 12.107, 12.116, 12.1162, 12.123,
and 12.128, added and amended by HB 6, 77th Texas Legislature, 2001, which
authorizes the commissioner of education to adopt rules and procedures related
to the implementation of open-enrollment charter schools; including operational,
financial, and governing standards for charter schools; providing state funds
to charter schools and accounting for such funds; status and use of funds;
procedures for adverse actions against charter schools, additional charter
school sanctions; mandatory training; and charter school property acquired
or leased with state funds.
The repeal implements the TEC, §§12.101(b), 12.106(c), 12.107,
12.116, 12.1162, 12.123, and 12.128, added and amended by HB 6, 77th Texas
Legislature, 2001.
§100.1011.Effect of Application for Charter Renewal.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on February 4, 2002.
TRD-200200693
Cristina De LaFuente-Valadez
Manager, Policy Planning
Texas Education Agency
Earliest possible date of adoption: March 17, 2002
For further information, please call: (512) 463-9701
19 TAC §§100.1011, 100.1013, 100.1015
The new sections are proposed under the Texas Education Code
(TEC), §§12.101(b), 12.106(c), 12.116, 12.1162, 12.123, 12.128,
added and amended by HB 6, 77th Texas Legislature, 2001, which authorizes
the commissioner of education to adopt rules and procedures related to the
implementation of open-enrollment charter schools; including operational,
financial, and governing standards for charter schools; providing state funds
to charter schools and accounting for such funds; procedures for adverse actions
against charter schools; additional charter school sanctions; mandatory training;
and charter school property acquired or leased with state funds.
The new sections implement the TEC, §§12.101(b), 12.106(c), 12.116,
12.1162, 12.123, 12.128, added and amended by HB 6, 77th Texas Legislature,
2001.
§100.1011.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meaning, unless the context clearly indicates otherwise.
(1)
Charter holder, governing body of a charter holder, governing
body of a charter school, and officer of a charter school--The definitions
of these terms are assigned in Texas Education Code (TEC), §12.1012.
(2)
Former charter holder--An entity that is or was a charter
holder, but that has ceased to operate a charter school because its open-enrollment
charter has been revoked, surrendered, or denied renewal, or because all programs
have been ordered closed under TEC, §39.131(a)(10).
(A)
A charter holder whose authority to operate has been suspended
under TEC, §12.1162, is not a former charter holder.
(B)
A charter holder with more than one open-enrollment charter
is a former charter holder only with respect to the open-enrollment charter
that authorizes a charter school that has ceased to operate. The charter holder
is not a former charter holder with respect to an open-enrollment charter
that authorizes a charter school that continues to operate.
(3)
Charter school--A Texas public school operated by a charter
holder under an open-enrollment charter granted by the State Board of Education
(SBOE) pursuant to TEC, §12.101.
(4)
Real estate--An interest, including a lease interest, in
real property recognized by Texas law, or in improvements such as buildings,
fixtures, utilities, landscaping, construction in progress, or other improvements.
(5)
Lease interest--The legal rights obtained under a capital
or operating lease. These include the right to occupy, use, and enjoy the
real estate given by the property owner in exchange for rental payments or
other consideration specified in the lease, together with any associated rights
that the lease confers on the tenant under the lease or other law.
(6)
Personal property--An interest in personal property recognized
by Texas law, including:
(A)
furniture, equipment, supplies, and other goods;
(B)
computer hardware and software;
(C)
contract rights, intellectual property such as patents,
and other intangible property;
(D)
cash, currency, funds, bank accounts, securities and other
investment instruments;
(E)
the right to repayment of a loan, advance, or prepayment,
or to the payment of other receivables; and
(F)
any other form of personal property recognized by Texas
law.
(7)
Capitalized personal property, fixed assets, ownership
interest, cost basis, accumulated depreciation, loan, debt, credit, and fair
market valuation--The definitions of these terms are as assigned either by §109.41
of this title (relating to Financial Accountability System Resource Guide)
and/or by generally accepted accounting principles.
(8)
State funds--Funds received by the charter holder under
TEC, §12.106, and any grant or discretionary funds received through or
administered by the Texas Education Agency (TEA), including all federal funds.
The rules in this division shall apply to property acquired, improved, or
maintained with federal funds to the extent that such application is consistent
with applicable federal law or regulations.
(9)
State funds received on or after September 1, 2001--State
funds are received on or after September 1, 2001, if the Texas Comptroller
of Public Accounts issues a warrant for such funds on or after that date,
or if an electronic transfer of such funds is made on or after that date.
(10)
State funds received before September 1, 2001--State funds
are received before September 1, 2001, if the Texas Comptroller of Public
Accounts issues a warrant for such funds before that date, or if an electronic
transfer of such funds is made before that date.
(11)
Property acquired, improved, or maintained using state
funds--Property for which the title, control over the property, use of the
property, or benefit from the property is obtained directly or indirectly
through expenditure of or control over state funds. This includes property
acquired, improved, or maintained through a management company under a contract
for management services, and includes the proceeds of loans, credit, or other
financing that:
(A)
is secured with state funds, or with property acquired,
improved, or maintained using state funds; or
(B)
is extended, in whole or part, based on the charter holder's
control over state funds.
(12)
Misuse of funds or property--A use of state funds or public
property that is contrary to:
(A)
the open-enrollment charter under which a charter holder
holds the funds or property;
(B)
an agreement under which an employee or contractor holds
the funds or property;
(C)
a law, regulation, or rule that prescribes the manner of
custody or disposition of the funds or property;
(D)
a limited purpose for which the funds or property is delivered
or received; or
(E)
the use authorized by the governing body of the charter
holder.
(13)
Misapplication of funds or property--An improper, illegal,
wrongful, or corrupt use or application of state funds or public property,
including gifts and uses not authorized by the governing body of the charter
holder.
(14)
Management services--Services related to the management
or operation of a charter school. Management services include any of the following:
(A)
planning, operating, supervising, or evaluating a charter
school's educational programs, services, or facilities;
(B)
making recommendations to the governing body of a charter
holder or charter school relating to the selection of school personnel;
(C)
managing a charter school's day-to-day operations as its
administrative manager;
(D)
preparing a proposed budget or submitting it to the governing
body of a charter holder or charter school;
(E)
recommending policies to be adopted by the governing body
of a charter holder or charter school, except that legal services provided
by an attorney licensed to practice law in this state are not management services,
notwithstanding that such legal services may include recommending policies
to be adopted by the governing body of a charter holder or charter school;
(F)
developing procedures or practices to implement policies
adopted by the governing body of a charter holder or charter school, except
that legal services by an attorney licensed to practice law in this state
are not management services, notwithstanding that such legal services may
include developing procedures or practices to implement policies adopted by
the governing body of a charter holder or charter school;
(G)
overseeing the implementation of policies adopted by the
governing body of a charter holder or charter school; or
(H)
providing leadership for the attainment of student performance
at a charter school based on the indicators adopted under TEC, §39.051,
or adopted by the governing body of a charter holder or charter school.
(15)
Management company--A natural person or a corporation,
partnership, sole proprietor, association, agency, or other legal entity that
provides any management services to a charter holder or charter school, except
that:
(A)
a charter holder and its employees may provide management
services to a charter school that is under the charter holder's supervision
and control pursuant to the open-enrollment charter, and such charter holder
is not thereby a management company; and
(B)
a non-profit corporation that is exempt from taxation under
28 United States Code §501(c)(3) may donate management services to a
charter holder, and the donor corporation is not thereby a management company
if the donee charter holder is a subsidiary corporation controlled by the
donor corporation under the articles of incorporation and bylaws of the donee
charter holder.
(16)
Open-enrollment charter--A charter holder's authorization
to operate a publicly funded charter school consistent with TEC, §12.102
(Authority Under Charter). The terms of an open- enrollment charter include:
(A)
the applicable contract for charter between the charter
holder and the SBOE;
(B)
all applicable state and federal laws, rules, and regulations;
(C)
the request for application issued by the TEA to which
the charter holder's application for open-enrollment charter responds;
(D)
any condition, amendment, modification, revision, or other
change to the open- enrollment charter adopted or ratified by the SBOE or
the commissioner of education; and
(E)
to the extent they are consistent with subparagraphs (A)-(D)
of this paragraph, all statements, assurances, commitments, and/or representations
made by the charter holder in its application for charter, attachments, or
related documents.
(17)
Officer of a charter school--A person charged with the
duties of, or acting as, a chief executive officer, a central administration
officer, a campus administration officer, or a business manager, regardless
whether the person is:
(A)
an employee or contractor of a charter holder, charter
school, or management company; or
(B)
a volunteer working under the direction of a charter holder,
charter school, or management company.
(18)
Chief executive officer--A person (or persons) directly
responsible to the governing body of the charter holder for supervising one
or more central administration officers, campus administration officers, and/or
business managers.
(19)
Central administration officer--A person charged with
the duties of, or acting as, a chief operating officer, director, or assistant
director of a charter holder or charter school, including one or more of the
following functions:
(A)
assuming administrative responsibility and leadership for
the planning, operation, supervision, or evaluation of the education programs,
services, or facilities of a charter holder or charter school, or for appraising
the performance of the charter holder's or charter school's staff;
(B)
assuming administrative authority or responsibility for
the assignment or evaluation of any of the personnel of the charter holder
or charter school, including those employed by a management company;
(C)
making recommendations to the governing body of the charter
holder or the charter school regarding the selection of personnel of the charter
holder or charter school, including those employed by a management company;
(D)
initiating the termination, non-renewal, or suspension
of an employee or officer of the charter holder or charter school, including
those employed by a management company; or initiating the termination, non-renewal,
suspension, or other action affecting a management contract;
(E)
managing the day-to-day operations of the charter holder
or charter school as its administrative manager;
(F)
preparing or submitting a proposed budget to the governing
body of the charter holder or charter school (except for developing budgets
for a charter school campus, if this is a function performed by a campus administration
officer under the terms of the open- enrollment charter);
(G)
preparing recommendations for policies to be adopted by
the governing body of the charter holder or charter school, or overseeing
the implementation of adopted policies;
(H)
developing or causing to be developed appropriate administrative
regulations to implement policies established by the governing body of the
charter holder or charter school;
(I)
providing leadership for the attainment of student performance
in a charter school operated by the charter holder, based on the indicators
adopted under TEC, §39.051, or other indicators adopted by the charter
holder in its open-enrollment charter;
(J)
organizing the central administration of the charter holder
or charter school; or
(K)
assisting another person in performing a function listed
in subparagraphs (A)-(J) of this paragraph.
(20)
Campus administration officer--A person charged with the
duties of, or acting as, a principal or assistant principal of a charter school
campus, including one or more of the following functions:
(A)
approving teacher or staff appointments for a charter school
campus, unless this function is performed by a central administration officer
under the terms of the open-enrollment charter;
(B)
setting specific education objectives for a charter school
campus, unless this function is performed by a central administration officer
under the terms of the open-enrollment charter;
(C)
developing budgets for a charter school campus, unless
this function is performed by a central administration officer under the terms
of the open-enrollment charter;
(D)
assuming the administrative responsibility or instructional
leadership, under the supervision of a central administration officer, for
discipline at a charter school campus;
(E)
assigning, evaluating, or promoting personnel assigned
to a charter school campus, unless this function is performed by a central
administration officer under the terms of the open- enrollment charter;
(F)
recommending to a central administration officer the termination
or suspension of an employee assigned to a charter school campus, or recommending
the non-renewal of a term contract of such an employee; or
(G)
assisting another person in performing a function listed
in subparagraphs (A)-(F) of this paragraph.
(21)
Business manager--A person charged with managing the finances
of a charter holder or charter school.
(22)
Donate--Services are donated if:
(A)
given free of any charge, cost, fee, compensation, reimbursement,
remuneration, or any other thing of value or consideration, whether direct
or indirect, from the donee to the donor, or from any other person or entity
to the donor on behalf of the donee;
(B)
given free of any condition, stipulation, promise, requirement,
or any other obligation, whether direct or indirect, enforceable by the donor
or by any other person or entity; and
(C)
separately and clearly recorded in the accounting, auditing,
budgeting, reporting, and recordkeeping systems for the management and operation
of the charter school.
(23)
Material charter violation--An action or failure to act
by a charter holder that is contrary to the terms of its open-enrollment charter,
and constitutes sufficient grounds for action against the charter holder under §100.1021
of this title (relating to Adverse Action on an Open-Enrollment Charter) and/or §100.1023
of this title (relating to Intervention Based on Charter Violations). Where
a provision in this subchapter uses this term, such use is for clarity and
emphasis only, and does not:
(A)
establish that any breach of a duty occurred in a given
case or what sanction is appropriate under the facts of that case; or
(B)
imply that any other provision where the term is not used
is not material or less important, or that the breach of a duty imposed by
the provision is not grounds for action against the charter holder.
(24)
Management company breach--An action or failure to act
by a management company that is contrary to a duty owed under a management
contract, a rule adopted under TEC, Chapter 12, Subchapter D, or any other
legal obligation, and constitutes sufficient grounds for action against the
management company under TEC, §12.127 (Liability of Management Company),
and/or §100.1155 of this title (relating to Procedures for Prohibiting
a Management Contract). Where a provision in this subchapter uses this term,
such use is for clarity and emphasis only, and does not:
(A)
establish that any breach of a duty occurred in a given
case or what sanction is appropriate under the facts of that case; or
(B)
imply that any other provision where the term is not used
is not material or less important, or that the breach of a duty imposed by
the provision is not grounds for action against the management company.
§100.1013.Filing of Documents.
The following provisions apply to a document filed with the Texas Education
Agency (TEA) under a provision of this subchapter. Grant applications and
other documents filed with the TEA under provisions other than this subchapter
are governed by the filing rules specific to those documents.
(1)
Hand delivery. A document shall be deemed filed only when
stamped received by the receiving division of the TEA. A document stamped
received after 5:00 p.m. Central Standard Time (CST) shall be deemed filed
on the following business day.
(2)
Mail or courier. A document may be filed by mail if sent
by certified United States mail, return receipt requested, or by an overnight
courier service. A document shall be deemed timely filed if it is mailed on
the filing deadline, as evidenced by a legible postmark placed on the envelope
by the United States Postal Service, and the document is stamped received
by the receiving division by 5:00 p.m. CST on the fifth business day following
the filing deadline.
(3)
Facsimile transmission. Where facsimile transmission is
permitted by the receiving division, the following provisions apply:
(A)
Facsimile transmission of a document via telecopier to
the receiving division constitutes filing if received in legible form. Filing
by facsimile completed after 5:00 p.m. CST shall be deemed filed on the following
business day.
(B)
If the document requires an original signature or must
be an original under applicable rules, then facsimile transmission constitutes
filing only if, by 5:00 p.m. on the tenth calendar day following the filing
deadline, the original is stamped received by the receiving division.
(4)
Receiving division. The receiving division is the division
of the TEA specified by any rule in 19 TAC, Part II, requiring that a document
be filed with the TEA. If a rule does not specify a division, the receiving
division is the TEA division responsible for charter schools.
(5)
Misdirected filing. A document sent to a division other
than the receiving division shall not be deemed filed unless and until received
by the receiving division. It shall not be the responsibility of any division
to timely redirect a document sent to a division other than the receiving
division.
§100.1015.Applicants for an Open-Enrollment Charter.
Applicants for an open-enrollment charter shall demonstrate compliance,
or the capacity to operate in compliance, with the provisions of this subchapter.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 4, 2002.
TRD-200200694
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Earliest possible date of adoption: March 17, 2002
For further information, please call: (512) 463-9701
19 TAC §§100.1027, 100.1029, 100.1031, 100.1033, 100.1035, 100.1037
The new sections are proposed under the Texas Education Code
(TEC), §§12.101(b), 12.1052, 12.1054, 12.1055, 12.106(c), 12.1101,
12.111(9), 12.113, 12.114, 12.115, 12.116, 12.1162, 12.1163, 12.120, 12.121,
39.074, 39.075, 39.076, and 39.131, added and amended by HB 6, 77th Texas
Legislature, 2001, which authorizes the commissioner of education to adopt
rules and procedures related to the implementation of open-enrollment charter
schools; including operational, financial, and governing standards for charter
schools; applicability of laws relating to local government records; applicability
of laws relating to conflict of interest; applicability of nepotism laws;
providing state funds to charter schools and accounting for such funds; notification
of applications for new open- enrollment charters; charter content; charter
granted; charter revision; procedures for adverse actions against charter
schools; additional charter school sanctions; audit by commissioner; restrictions
to serving as member of governing body of charter holder or open-enrollment
charter school or as office or employee; responsibility for open- enrollment
charter school; on-site investigations; special accreditations investigations;
conduct of investigations, and sanctions.
The new sections implement the TEC, §§12.101(b), 12.1052, 12.1054,
12.1055, 12.106(c), 12.1101, 12.111(9), 12.113, 12.114, 12.115, 12.116, 12.1162,
12.1163, 12.120, 12.121, 39.074, 39.075, 39.076, and 39.131, added and amended
by HB 6, 77th Texas Legislature, 2001.
§100.1027.Accreditation Sanctions.
(a)
Commissioner authority. The commissioner may take any action
relating to the charter school authorized by Texas Education Code (TEC), §39.131.
(b)
Charter holder cooperation. A charter holder and its employees
and agents shall fully cooperate with an action under subsection (a) of this
section, and shall take all actions necessary to secure the cooperation of
a management company. Failure to cooperate with an action under subsection
(a) constitutes a material charter violation.
(c)
Management company cooperation. A management company and
its employees and agents shall fully cooperate with an action under subsection
(a) of this section. Failure to cooperate with an action under subsection
(a) constitutes a management company breach.
§100.1029.Agency Audits, Monitoring, and Investigations.
(a)
Agency authority. The Texas Education Agency (TEA) may
conduct routine audits, monitoring, and other investigations of the charter
school or charter holder to determine compliance with the terms of the open-
enrollment charter, with the terms of federal or state grants, or as authorized
in the Texas Education Code (TEC) or other law.
(b)
Charter holder cooperation. A charter holder and its employees
and agents shall fully cooperate with audits, monitoring, and investigations
under subsection (a) of this section, and shall take all actions necessary
to secure the cooperation of a management company. Failure to cooperate under
subsection (a) constitutes a material charter violation.
(c)
Management company cooperation. A management company and
its employees and agents shall fully cooperate with audits, monitoring, and
investigations under subsection (a) of this section. Failure to cooperate
under subsection (a) constitutes a management company breach.
§100.1031.Charter Renewal.
(a)
If a charter holder makes timely and sufficient application
for renewal of an open-enrollment charter, the existing open-enrollment charter
does not expire until the commissioner of education has finally granted or
denied the application.
(b)
A contract term that conflicts with any rule in 19 TAC,
Part II, is superseded by the rule to the extent that the rule differs from
the contract term. Upon renewal of an open-enrollment charter, the charter
holder generally need not execute an amendment to or renewal of a contract
under Texas Education Code (TEC), §12.112.
(c)
Notwithstanding subsection (b) of this section, the commissioner
may require, as a condition of renewal, that the charter holder amend a contract
under TEC, §12.112, to correct any ambiguities, defects, or other infirmities.
(d)
A decision of the commissioner granting an application
for renewal shall be communicated to the charter holder in writing, together
with any conditions, amendments, modifications, or other requirements made
with the consent of the charter holder. An adverse decision on an application
for renewal shall be communicated to the charter holder as provided by §100.1021
of this title (relating to Adverse Action on an Open-Enrollment Charter).
§100.1033.Charter Amendment.
(a)
Amendments in writing. Subject to the requirements of this
section, the terms of an open-enrollment charter may be revised with the consent
of the charter holder by written amendment approved by the commissioner of
education in writing.
(b)
Non-substantive amendment. The commissioner may designate
from time to time a list of non-substantive amendments for which the charter
holder may generally gain approval by filing a notice of non-substantive amendment
under this subsection.
(1)
Before implementing a non-substantive amendment, the charter
holder shall file with the Texas Education Agency (TEA) division responsible
for charter schools a notice, clearly labeled "notice of non-substantive amendment,"
setting forth the text and page reference, or a photocopy, of the current
open-enrollment charter language to be changed, and the text proposed as the
new open- enrollment charter language. A notice of non-substantive amendment
must be filed separately from any other type of amendment request.
(2)
Within ten business days of receiving the notice of non-substantive
amendment, the commissioner of education may in the commissioner's sole discretion
determine that the amendment will be processed under subsection (c) of this
section (governing substantive amendments), and, in such event, subsection
(c) shall govern the amendment.
(3)
Absent action by the commissioner under subsection (b)(2)
of this section, the notice of non- substantive amendment shall be effective
after the expiration of ten business days following receipt of the notice
by the TEA division responsible for charter schools.
(c)
Substantive amendment. A substantive amendment is any change
to the terms of an open-enrollment charter that is not a non-substantive amendment.
A substantive amendment must be approved by the commissioner under this subsection.
(1)
Charter amendment request. Before implementing a substantive
amendment, the charter holder shall file with the TEA division responsible
for charter schools a request, clearly labeled "charter amendment request,"
setting forth the text and page reference, or a photocopy, of the current
open- enrollment charter language to be changed, and the text proposed as
the new open-enrollment charter language.
(2)
Relevant information considered. As directed by the commissioner,
a charter holder requesting a substantive amendment shall submit current information
required by relevant portions of the last application form approved by the
State Board of Education (SBOE), as well as any other information requested
by the commissioner. In considering the amendment request, the commissioner
may consider any relevant information concerning the charter holder, including
its student and other performance, compliance, Public Education Information
Management System (PEIMS) data, and other information.
(3)
Best interest of students. The commissioner may approve
a substantive amendment only if the charter holder meets all applicable requirements,
and only if the commissioner determines that the amendment is in the best
interest of the students enrolled in the charter school.
(4)
Conditional approval. The commissioner may grant the amendment
without condition, or may require compliance with such conditions and/or requirements
as may be in the best interest of the students enrolled in the charter school.
(5)
Expansion amendment. An expansion amendment is a substantive
amendment that permits a charter school to extend the grade levels it serves,
add or change the site of an instructional facility, change its geographic
boundaries, or increase its maximum allowable enrollment.
(A)
The commissioner may approve an expansion amendment only
if:
(i)
the expansion will be effective no earlier than the start
of the third full school year at the affected charter school;
(ii)
the amendment is approved no later than the first day
of June preceding the school year in which the expansion will be effective;
(iii)
the amendment will not result in a student enrollment
of fewer than 50 students, unless the nature of the charter warrants a minimum
enrollment lower than 50 students or the charter is making acceptable progress
toward a minimum enrollment of 50 students;
(iv)
the charter holder has provided evidence that each school
district affected by the expansion has received a notice of the expansion
amendment and has been given an opportunity to submit a statement regarding
the impact of the amendment on the district;
(v)
the commissioner determines that the amendment is in the
best interest of the students of Texas; and
(vi)
the charter holder meets all other requirements applicable
to expansion amendment requests and substantive amendments generally.
(B)
The commissioner shall specify the earliest effective date
for implementation of the expansion. In addition, the commissioner may require
compliance with such conditions and/or requirements as may be in the best
interest of the students of Texas.
(6)
Delegation amendment. A delegation amendment is a substantive
amendment that permits a charter holder to delegate, pursuant to §100.1101(c)
of this title (relating to Delegation of Powers and Duties), the powers or
duties of the governing body of the charter holder to any other person or
entity.
(A)
The commissioner may approve a delegation amendment only
if:
(i)
the charter holder meets all requirements applicable to
delegation amendments and substantive amendments generally;
(ii)
the amendment complies with all requirements of Division
5 of this title (relating to Charter School Governance); and
(iii)
the commissioner determines that the amendment is in
the best interest of the students enrolled in the charter school.
(B)
The commissioner may grant the amendment without condition
or may require compliance with such conditions and/or requirements as may
be in the best interest of the students enrolled in the charter school.
(d)
Required forms and formats. The TEA division responsible
for charter schools may develop and promulgate, from time to time, forms or
formats for requesting charter amendments under this section. If a form or
format is promulgated for a particular type of amendment, it must be used
to request an amendment of that type.
§100.1035.Compliance Records on Nepotism, Conflicts of Interest, and Restrictions on Serving.
(a)
A charter holder shall collect, maintain, and make available
on request for inspection under this division, the following information on
a form or in a format approved by the commissioner of education:
(1)
information identifying each officer and member of the
governing body of the charter holder and related compliance information as
required by subsection (b) of this section;
(2)
information identifying each officer of the charter school
and related compliance information as required by subsection (b) of this section;
(3)
information identifying each member of the governing body
of the charter school, if the charter holder has established a governing body
for the charter school, and related compliance information as required by
subsection (b) of this section; and
(4)
information identifying each employee of the charter school
and related compliance information as required by subsection (b) of this section.
(b)
The compliance information recorded for each individual
identified under subsection (a) of this section shall include:
(1)
the title of each position held or function performed by
the individual;
(2)
the specific powers and duties that the governing body
of the charter holder or charter school have delegated to the individual,
if any, as described by the powers and duties listed in the charter pursuant
to §100.1101 of this title (relating to Delegation of Powers and Duties);
(3)
the legal name of the individual;
(4)
any aliases or names formerly used by the individual, including
maiden name;
(5)
a complete criminal history record for the individual,
issued by the Texas Department of Public Safety within six months of the date
of the compliance record;
(6)
a list of all relatives of the individual, within the third
degree of consanguinity or affinity, under Government Code, Chapter 573, that:
(A)
are employed by the charter holder or the charter school;
(B)
conduct business transactions with the charter holder or
the charter school;
(C)
serve on the governing body of the charter holder or the
charter school; or
(D)
have a substantial interest in a management company under
Texas Education Code, §12.120; and
(7)
a full and complete list of the individual's business interests
in, or transactions with, any charter holder, charter school, or management
company.
(c)
Not later than 30 days following any change in the information
recorded under this section, a charter holder shall make corrections to its
most recent charter school compliance record.
§100.1037.Notification of Charter Application.
(a)
Prior to the State Board of Education (SBOE) receiving
an application for an open-enrollment charter, the Texas Education Agency
(TEA) division responsible for charter schools shall provide notification
as described in subsection (b) of this section.
(b)
If an application has not been withdrawn by the applicant
or returned by the TEA for insufficiency or for substantive deviations from
state or federal law, and if the application has received the minimum score
eligible for selection by the SBOE, then, before the application is sent to
the SBOE for consideration, the TEA division responsible for charter schools
shall notify the following persons via electronic mail, if possible, or else
via interagency mail or United States mail:
(1)
the board of trustees of each school district from which
the proposed open-enrollment charter school is likely to draw students, as
described in the open-enrollment charter; and
(2)
each member of the legislature that represents the geographic
area to be served by the proposed charter school, as determined by the TEA
division responsible for charter schools.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 4, 2002.
TRD-200200695
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Earliest possible date of adoption: March, 17, 2002
For further information, please call: (512) 463-9701
19 TAC §§100.1041, 100.1043, 100.1045, 100.1047, 100.1049, 100.1051
The amendment and new sections are proposed under the Texas
Education Code (TEC), §§12.101(b), 12.1053, 12.106(c), 12.107, 12.1163,
amended by HB 6, 77th Texas Legislature, 2001, which authorizes the commissioner
of education to adopt rules and procedures related to the implementation of
open-enrollment charter schools; including operational, financial, and governing
standards for charter schools; applicability of laws relating to public purchasing
and contracting; providing state funds to charter schools and accounting for
such funds; status and use of funds; and audit by commissioner.
The amendment and new sections implement the TEC, §§12.101(b),
12.1053, 12.106(c), 12.107, 12.1163, amended by HB 6, 77th Texas Legislature,
2001.
§100.1041.State Funding.
(a)
Funding formula elements.
A
[
(1)
Tier I program allocations are determined by substituting
the statewide average adjusted allotment in place of the district's calculated
adjusted allotment. The state average adjusted allotment takes into account
the cost of education index and the small, mid-size, and sparsity adjustments
specified in TEC, §§42.102, 42.103, 42.104, and 42.105. It is computed
by dividing the state total cost for the regular education program by the
number of students in the state counted in attendance in a regular education
program in accordance with TEC, §42.101.
(2)
An allocation for the guaranteed yield allotment for Tier
II of the FSP is determined by substituting a statewide average enrichment
tax rate in place of the district's calculated enrichment tax rate (DTR) pursuant
to TEC, §42.302. The state average tax rate is computed by first summing
the Maintenance and Operations tax collections up to its DTR maximum limit
for each district in the state and then dividing that result by the sum of
all district property values as defined in TEC, §42.252.
[(3)
The new formula elements described in
this subsection will take effect for open-enrollment charter schools that
begin operation in the 2001-2002 school year or later. Open-enrollment charter
schools that report attendance that occurs prior to September 2, 2001, are
considered to be in operation on September 1, 2001, and will be funded as
described in House Bill 6, Section 40(b), 77th Texas Legislature, 2001. Open-enrollment
charter schools that report no attendance that occurs prior to September 2,
2001, are considered to begin operation in the 2001-2002 school year or later,
and will be funded according to this subsection and TEC, §12.106.]
(b)
Implementation schedule. The new formula
elements described in subsection (a) of this section will take effect for
charter schools that begin operation in the 2001-2002 school year or later.
Charter schools that report attendance that occurs prior to September 2, 2001,
are considered to be in operation on September 1, 2001, and will be funded
as described in House Bill 6, Section 40(b), 77th Texas Legislature, 2001.
Charter schools that report no attendance that occurs prior to September 2,
2001, are considered to begin operation in the 2001-2002 school year or later,
and will be funded according to subsection (a) of this section and TEC, §12.106.
[(b)
Status and use of state funds.]
[(1)
State funds received by a charter holder are public funds
for all purposes under state law, and may be used only for a purpose for which
a school district may use local funds under TEC, §45.105(c). Any other
use or application of such funds constitutes misuse and misapplication of
public funds and is subject to the civil and criminal laws governing misuse
or misapplication of Texas public funds.]
[(2)
State funds received by a charter holder are held by the
charter holder in trust for the benefit of the students of the open-enrollment
charter school. In their use of public funds, the governing body of a charter
holder, and the governing body and officers of an open-enrollment charter
school, shall be held to the standard of care and fiduciary duties that a
trustee owes a beneficiary under Texas law.]
(c)
Tuition and fees. A charter school shall
not charge tuition and shall not charge a fee except:
(1)
a charter school may charge a fee listed in TEC, §11.158(a);
and
(2)
if authorized under §100.1201(6) of this title (relating
to Voluntary Participation in State Programs), a charter holder may charge
tuition for certain prekindergarten classes in compliance with TEC, §29.1531
and §29.1532.
[(c)
Depository contract. Pending their use,
state funds received by a charter holder must be deposited into a bank with
which the charter holder has entered into a depository contract. Each year
within the period prescribed for the information required by TEC, §12.119(b),
the charter holder must file a copy of the depository contract with the agency.]
[(1)
State funds received by a charter holder must be deposited
into an account owned and controlled by the charter holder pending their use.
Once properly deposited, the charter holder may immediately use the funds
for any purpose described in subsection (b)(1) of this section, subject to
the standard of care and fiduciary duties described in subsection (b)(2) of
this section.]
[(2)
A "bank" is defined by TEC, §45.201. Although the
term excludes a bank the deposits of which are not insured by the Federal
Deposit Insurance Corporation (FDIC), deposits exceeding FDIC- insured amounts
need not be collateralized for the institution to constitute a "bank" under
this subsection.]
(d)
Eligibility for state funding. A charter
holder is not eligible to receive state funds, including grant funds, prior
to execution of its contract by the chair of the State Board of Education.
(1)
If a charter holder, before or without approval for an
expansion amendment under §100.1033(d) of this title (relating to Charter
Amendment), extends the grade levels it serves, adds or changes the site of
an instructional facility, expands its geographic boundaries, or exceeds its
maximum allowable enrollment, then the charter holder is not eligible to receive
state funds for the activities of the unapproved expansion of its charter
school operations.
(2)
A former charter holder is not eligible to receive state
funds.
(e)
Return of over-allocated funds. Within
30 days of receiving notice of an over-allocation and a request for refund
under TEC, §42.258, a charter holder shall transmit to the agency an
amount equal to the requested refund. Failure to comply with a request for
refund under this subsection is a material charter violation and a management
company breach. If the charter holder fails to make the requested refund,
the agency may recover the over-allocation by any means permitted by law,
including but not limited to the process set forth in TEC, §42.258. Funds
allocated for student attendance in a program affected by an unapproved expansion
under subsection (d)(1) of this section are over-allocated within the meaning
of this subsection.
§100.1043.Status and Use of State Funds; Depository Contract.
(a)
Status and use of state funds.
(1)
State funds received by a charter holder are public funds
for all purposes under state law, and may be used only for a purpose for which
a school district may use local funds under Texas Education Code (TEC), §45.105(c).
Any other use or application of such funds constitutes misuse and misapplication
of public funds and is subject to the civil and criminal laws governing misuse
or misapplication of Texas public funds.
(2)
State funds received by a charter holder are held by the
charter holder in trust for the benefit of the students of the charter school.
In their use of public funds, the governing body of a charter holder, and
the governing body and officers of a charter school, shall be held to the
standard of care and fiduciary duties that a trustee owes a beneficiary under
Texas law.
(b)
Depository contract. Pending their use, state funds received
by a charter holder must be deposited into a bank with which the charter holder
has entered into a depository contract. Each year within the period prescribed
by §100.101 of this title (relating to Annual Report on Open-Enrollment
Charter Governance) for filing articles of incorporation, the charter holder
must file a copy of the depository contract with the Texas Education Agency
division responsible for school financial audits.
(1)
State funds received by a charter holder must be deposited
into an account owned and controlled by the charter holder pending their use.
Once properly deposited, the charter holder may immediately use the funds
for any purpose described in subsection (a)(1) of this section, subject to
the standard of care and fiduciary duties described in subsection (a)(2) of
this section.
(2)
A "bank" is defined by TEC, §45.201. Although the
term excludes a bank the deposits of which are not insured by the Federal
Deposit Insurance Corporation (FDIC), deposits exceeding FDIC- insured amounts
need not be collateralized for the institution to constitute a "bank" under
this subsection.
(3)
Notwithstanding this subsection, if required by a contract
executed prior to September 1, 2001, state funds may be deposited into an
account managed by a bond trustee acting on behalf of a charter holder for
the sole purpose of complying with debt service obligations of the charter
holder on a bond issued under TEC, Chapter 53.
§100.1045.Investment of State Funds.
(a)
This section applies to a charter holder unless alternative
requirements for investing state funds have been approved by the State Board
of Education under §100.103 of this title (relating to Optional Open-
Enrollment Charter Provisions for Contracting and Purchasing), and the open-enrollment
charter has been amended by the commissioner of education to adopt the approved
procedures.
(b)
A charter holder shall invest state funds in accordance
with Government Code, §§2256.009-2256.016.
(1)
A requirement in those sections that applies to a school
district or the board of trustees of a school district applies to a charter
school, the governing body of a charter holder, or the governing body of a
charter school.
(2)
State funds invested by a charter holder shall be maintained
in a discrete charter investment account, separate and distinct from the operating
accounts for the charter school and separate and distinct from any investment
accounts related to non-charter activities.
(3)
A charter holder shall invest state funds in accordance
with any applicable provision or covenant contained in a debt instrument,
bond indenture, or similar agreement.
(4)
Nothing in this subsection shall authorize the investment
of state or federal grant funds, unless investment of such funds is expressly
authorized under the terms of the grant.
(c)
Investment of state funds shall be made with judgment and
care, under prevailing circumstances, that a person of prudence, discretion,
and intelligence would exercise in the management of the person's own affairs,
not for speculation, but for investment, considering the probable safety of
capital and the probable income to be derived.
(1)
Investment of state funds shall be governed by the following
investment objectives, in order of priority:
(A)
preservation and safety of principal;
(B)
liquidity; and
(C)
yield.
(2)
In determining whether a charter holder, or its employee
or agent, has exercised prudence with respect to an investment decision respecting
state funds, the determination shall be made taking into consideration:
(A)
the investment of all funds, or funds under the entity's
control, over which the officer had responsibility rather than a consideration
as to the prudence of a single investment; and
(B)
whether the investment decision was consistent with the
written investment policy of the entity.
§100.1047.Accounting for State Funds.
(a)
Fiscal year. A charter holder shall adopt a fiscal year
consistent with Texas Education Code (TEC), §44.0011.
(b)
Financial accounting. A charter holder shall comply fully
with:
(1)
generally accepted accounting principles (GAAP);
(2)
the Financial Accountability System Resource Guide, as
adopted by reference in §109.41 of this title (relating to Financial
Accountability System Resource Guide); and
(3)
the federal standards for financial management systems,
34 Code of Federal Regulations §80.20, and/or other applicable federal
standards.
(c)
Annual audit. A charter holder shall at its own expense
have the financial and programmatic operations of the charter school audited
annually by a certified public accountant licensed by the Texas State Board
of Public Accountancy and registered as a provider of public accounting services.
(1)
The charter holder shall file a copy of the annual audit
report, approved by a charter holder, with the Texas Education Agency (TEA)
division responsible for school financial audits not later than the deadline
specified by TEC, §44.008.
(2)
The audit must comply with Generally Accepted Auditing
Standards and must include an audit of the accuracy of the fiscal information
provided by the charter school through the Public Education Information Management
System (PEIMS).
(3)
Financial statements in the audit must comply with Government
Auditing Standards and the Office of Management and Budget Circular A-133
or its successor.
(d)
Attendance accounting. A charter holder shall comply with
the Student Attendance Accounting Handbook, as adopted by reference in §129.1025
of this title (relating to Adoption By Reference: Student Attendance Accounting
Handbook), and with Chapter 129 of this title (relating to Student Attendance);
except that:
(1)
a charter holder is not required to comply with §129.22
of this title (relating to Court-Related Students); and
(2)
a charter school shall report its actual student attendance
data to the agency at six-week intervals, or as directed by the agency.
(e)
Non-charter activities. A charter holder shall keep separate
and distinct accounting, auditing, budgeting, reporting, and recordkeeping
systems for the management and operation of the charter school.
(1)
Any business activities of a charter holder not directly
related to the management and operation of the program described in the open-enrollment
charter shall be kept in separate and distinct accounting, auditing, budgeting,
reporting, and recordkeeping systems from those recording the business activities
of the charter school.
(2)
Any commingling of charter and non-charter business in
the accounting, auditing, budgeting, reporting, and recordkeeping systems
of the charter school shall be a material charter violation.
(f)
Interested transactions. A charter holder shall comply
with Local Government Code, Chapter 171, in the manner provided by the conflict
of interest provisions described in §§100.1131-100.1135 of this
subchapter. In addition, the following shall be discretely and clearly recorded
in the accounting, auditing, budgeting, reporting, and recordkeeping systems
for the management and operation of the charter school:
(1)
financial transactions between the charter school and the
non-charter activities of the charter holder;
(2)
financial transactions between the charter school and an
officer or employee of the charter holder or the charter school;
(3)
financial transactions between the charter school and a
member of the governing body of the charter holder or the charter school;
(4)
financial transactions between the charter school and a
management company charged with managing the finances of a charter school;
and
(5)
financial transactions between the charter school and any
other person or entity in a position of influence over the charter holder
or the charter school.
§100.1049.Disclosure of Campaign Contributions.
(a)
The governing body of a charter holder shall adopt policies
implementing the disclosure requirements of State Board of Education Operating
Rule, §4.3 (Disclosure of Campaign Contributions and Gifts), or its successor,
and shall insure compliance by:
(1)
the members of the governing body of the charter holder
and charter school;
(2)
the employees and agents of the charter holder and charter
school; and
(3)
any management company under contract with the charter
holder or charter school.
(b)
The governing body of a charter holder shall insure that
no state funds are expended by the charter holder, the charter school, or
its management company for any political advertising within the meaning of
Election Code, §251.001(16), as interpreted by the advisory opinions
of the Texas Ethics Commission.
§100.1051.Audit by Commissioner; Records in the Possession of a Management Company.
(a)
Commissioner authority. To the extent consistent with subsection
(b) of this section, the commissioner of education may audit the records of:
(1)
a charter school;
(2)
a charter holder; or
(3)
a management company that has provided management services
to a charter school or a charter holder.
(b)
Scope of audit. An audit under subsection (a) of this section
must be limited to matters directly related to the management or operation
of a charter school, including the allocation of costs shared between the
charter school and any non-charter business activity. The audit may examine
any financial or administrative records related to the charter school that
are in the possession of a management company or a former management company,
including records related to the allocation of shared costs.
(c)
Charter holder cooperation. A charter holder and its employees
and agents shall fully cooperate with an audit under subsection (a) of this
section, and shall take all actions necessary to secure the cooperation of
a management company. Failure to comply timely with a request for access to
records or other cooperation from the charter holder constitutes a material
charter violation.
(d)
Management company cooperation. A management company and
its employees and agents shall fully cooperate with an audit under subsection
(a) of this section. Failure to timely comply with a request for access to
records or other cooperation from the management company constitutes a management
company breach.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 4, 2002.
TRD-200200696
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Earliest possible date of adoption: March 17, 2002
For further information, please call: (512) 463-9701
19 TAC §100.1061
(Editor's note: The text of the following section proposed
for repeal will not be published. The section may be examined in the offices
of the Texas Education Agency or in the Texas Register office, Room 245, James
Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Texas Education Code (TEC), §§12.101(b),
12.1053, 12.106(c), 12.107, 12.1163, and 12.128, added and amended by HB 6,
77th Texas Legislature, 2001, which authorizes the commissioner of education
to adopt rules and procedures related to the implementation of open-enrollment
charter schools; including operational, financial, and governing standards
for charter schools; applicability of laws relating to public purchasing and
contracting; providing state funds to charter schools and accounting for such
funds; status of use of funds; audit by commissioner; and charter school property
acquired or leased with state funds.
The repeal implements the TEC, §§12.101(b), 12.1053, 12.106(c),
12.107, 12.1163, and 12.128, added and amended by HB 6, 77th Texas Legislature,
2001.
§100.1061.Definitions.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on February 4, 2002.
TRD-200200697
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Earliest possible date of adoption: March 17, 2002
For further information, please call: (512) 463-9701
19 TAC §§100.1063, 100.1071, 100.1073
The amendment and new sections are proposed under the Texas
Education Code (TEC), §§12.101(b), 12.1053, 12.106(c), 12.107, 12.1163,
and 12.128, added and amended by HB 6, 77th Texas Legislature, 2001, which
authorizes the commissioner of education to adopt rules and procedures related
to the implementation of open- enrollment charter schools; including operational,
financial, and governing standards for charter schools; applicability of laws
relating to public purchasing and contracting; providing state funds to charter
schools and accounting for such funds; status of use of funds; audit by commissioner;
and charter school property acquired or leased with state funds.
The amendment and new sections implement the Texas Education Code, §§12.101(b),
12.1053, 12.106(c), 12.107, 12.1163, and 12.128, added and amended by HB 6,
77th Texas Legislature, 2001.
§100.1063.Use of Public Property by a Charter Holder.
(a)
Public property. An interest in real estate or personal
property acquired, improved, or maintained using state funds that were received
by the charter holder on or after September 1, 2001, is public property for
all purposes under state law. The date on which the property was acquired,
improved, or maintained is not determinative. An interest in real estate acquired,
improved, or maintained using state funds that were received by the charter
holder before September 1, 2001, is public property only to the extent specified
by §100.1065 of this title (relating to Property Acquired with State
Funds Received Before September 1, 2001--Special Rules).
Where the property
is acquired with federal funds, federal law may preempt this section in whole
or part.
(b)
Fiduciary duty respecting public property. Public property
is held by the charter holder in trust for the benefit of the students of
the [
(c)
Use of public property. Public property may be used only
for a purpose for which a school district may use school district property
and only to implement a program
that is
described in the
open- enrollment
charter
and is consistent with Texas Education
Code (TEC), §12.102
.
(1)
Any use or application of public property for a purpose
other than implementing a program
that is
described in the
open-enrollment
charter
and is consistent with TEC, §12.102,
constitutes misuse and misapplication of such property, and is subject
to
Texas Law
[
(2)
The governing body of a charter
holder shall adopt and enforce local policies governing the use and application
of public property by its employees, agents, contractors, and management companies.
The policies shall prohibit the use or application of public property for
any purpose but a program described in the open-enrollment charter, except
that the policies may authorize charter holder employees to use local telephone
service, cellular phones, electronic mail, Internet connections, and similar
public property for incidental personal use, if the policies:
(A)
do not result in any direct cost paid with state
funds, or the charter holder is reimbursed for any direct cost incurred;
(B)
do not impede charter school functions;
(C)
do not authorize incidental personal use of
public property for private commercial purposes; and
(D)
authorize only incidental amounts of employee
time--time periods comparable to reasonable coffee breaks during the day--for
personal matters.
(3)
The governing body of a charter
holder shall by separate vote approve any joint use of real property for charter
and non-charter activities. In the minutes of the vote approving the joint
use, the governing body of a charter holder shall set forth the methodology
used to allocate shared costs and the percentage allocation basis between
charter and non-charter activities.
(4)
[
(5)
[
(d)
Ownership of public property. Public property is owned
by the charter holder, regardless of the funds used to acquire it. Subject
to the requirements of §100.1067 of this title (relating to Possession
and Control of the Public Property of a Former Charter Holder) and this section,
a charter holder retains all title to the property, exercises complete control
over the property, and is entitled to all use and benefit from the property.
(e)
Public property mixed with private property. Property acquired,
improved, or maintained partly using state funds and partly using other funds
is mixed public and private property, and is subject to all requirements of
this section.
(f)
Accounting for public property. Each charter holder shall
include in its annual audit report an exhibit identifying the fixed assets
of the charter holder and the ownership interest of all parties for all real
estate and capitalized personal property presently held by the charter holder
or acquired, improved, or maintained by the charter holder during the term
of the
open-enrollment
charter.
(1)
Pursuant to the requirements in §109.41 of this title
(relating to Financial Accountability System Resource Guide), the annual audit
report must separately disclose the cost basis and accumulated depreciation
of all public property as determined by this division, and all other property
held, acquired, improved, or maintained by the charter holder.
(2)
Alternatively, the charter holder may omit the exhibit
required by paragraph (1) of this subsection and substitute a statement, in
accordance with the requirements in §109.41, that all property acquired,
improved, or maintained during the term of the
open-enrollment
charter, and all property presently held by the charter holder, is public
property under this division.
(3)
All property held, acquired, improved, or maintained by
the charter holder is subject to this subsection regardless whether it is
public or private property.
§100.1071.Real Property Held in Trust.
(a)
This section applies to a charter holder unless alternative
procedures for purchasing and selling real property held in trust have been
approved by the State Board of Education under §100.103 (relating to
Optional Open-Enrollment Charter Provisions for Contracting and Purchasing),
and the open-enrollment charter has been amended by the commissioner of education
to adopt the approved procedures.
(b)
A requirement in Government Code, Chapter 2252, Subchapter
D, that applies to a school district or the board of trustees of a school
district applies to a charter school, the governing body of a charter holder,
or the governing body of a charter school.
(1)
A charter holder may not purchase real property held in
trust until the trustee submits to the governing body of the charter holder
a copy of the trust agreement identifying the true owner of the property.
The trustee shall identify the true owner of the property to the charter holder.
(2)
A charter holder may not sell real property to a trustee
until the charter holder receives from the trustee a copy of the trust agreement
identifying the person who will be the true owner of the property. The trustee
shall identify the person who will be the true owner of the property to the
charter holder.
(3)
A conveyance of property subject to this section is void
if a charter holder fails to comply with this section.
(4)
A trust agreement submitted to the governing body of the
charter holder is confidential information excepted from the requirements
of Government Code, §552.021, but must be disclosed to the Texas Education
Agency under §100.1029 (relating to Agency Audits, Monitoring, and Investigations).
§100.1073.Improvements to Real Property.
(a)
This section applies to a charter holder unless alternative
procedures for awarding a contract for the construction, repair, or renovation
of a structure, road, highway, or other improvement or addition to real property
have been approved by the State Board of Education under §100.103 (relating
to Optional Open-Enrollment Charter Provisions for Contracting and Purchasing)
and the open-enrollment charter has been amended by the commissioner of education
to adopt the approved procedures.
(b)
A charter holder shall comply with Local Government Code,
Chapter 271, Subchapter B, in awarding any contract for the construction,
repair, or renovation of a structure, road, highway, or other improvement
or addition to real property if the contract requires the expenditure of public
funds in the amount specified by Local Government Code, §271.024. A requirement
in that subchapter applies to a school district or the board of trustees of
a school district applies to a charter school, the governing body of a charter
holder, or the governing body of a charter school.
(c)
Local Government Code, Chapter 271, Subchapter B, does
not apply to a contract executed prior to September 1, 2001.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with
the Office of the Secretary of State on February 4, 2002.
TRD-200200698
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Earliest possible date of adoption: March 17, 2002
For further information, please call: (512) 463-9701
19 TAC §§100.1101, 100.1111 - 100.1116, 100.1131 - 100.1135, 100.1151, 100.1153, 100.1155, 100.1157, 100.1159
The new sections are proposed under the Texas Education Code
(TEC), §§12.101(b), 12.1054, 12.1055, 12.106(c), 12.111(9), 12.1163,
12.120, 12.121, 12.124, 12.125, and 12.126, added and amended by HB 6, 77th
Texas Legislature, 2001, which authorizes the commissioner of education to
adopt rules and procedures related to the implementation of open-enrollment
charter schools; including operational, financial, and governing standards
for charter schools; applicability of laws relating to conflict of interest;
applicability of nepotism laws; providing state funds to charter schools and
accounting for such funds; charter content; audit by commissioner; restrictions
on serving as member of governing body of charter holder or open-enrollment
charter school or as officer or employee; responsibility for open-enrollment
charter school; loans from management company prohibited; contract for management
services; and certain management services contracts prohibited.
The new sections implement the TEC, §§12.101(b), 12.1054, 12.1055,
12.106(c), 12.111(9), 12.1163, 12.120, 12.121, 12.124, 12.125, and 12.126,
added and amended by HB 6, 77th Texas Legislature, 2001.
§100.1101.Delegation of Powers and Duties.
(a)
Primary responsibility. The governing body of a charter
holder has the primary responsibility for implementing the public school program
authorized by the open-enrollment charter and ensuring the performance of
the students enrolled in its charter schools in accordance with the Texas
Education Code (TEC).
(b)
Alienation of open-enrollment charter. An open-enrollment
charter grants to the governing body of a charter holder the authority to
operate a charter school.
(1)
The governing body of the charter holder shall, acting
as a body corporate in meetings posted in compliance with Government Code,
Chapter 551, oversee the management of the charter school.
(2)
Except as provided by this section, the governing body's
powers and duties to operate the charter school shall not be delegated, transferred,
assigned, encumbered, pledged, subcontracted, or in any way alienated by the
governing body of the charter holder. Any attempt to do so shall be:
(A)
null and void and of no force or effect; and
(B)
a material charter violation.
(c)
Exclusive method for delegating charter powers and duties.
An open-enrollment charter must specify the powers or duties of the governing
body of the charter holder that the governing body may delegate to an officer,
employee, contractor, management company, creditor, or any other person. The
exclusive method for making such a delegation shall be to file a request for
a delegation amendment with the Texas Education Agency (TEA) division responsible
for charter schools under §100.1033 of this title (relating to Charter
Amendment), specifying the power or duty delegated and the particular person
or entity to which it is delegated.
(d)
Accountability for delegated powers and duties retained.
The governing body of a charter holder remains responsible for the management,
operation, and accountability of the charter school operated by the charter
holder, regardless of whether the governing body delegates any of its powers
or duties.
(e)
Non-delegable powers and duties. The following powers and
duties are essential governmental functions respecting the operation of a
charter school. These powers and duties must be exercised by the governing
body of the charter holder itself, acting as a body corporate in meetings
posted in compliance with Government Code, Chapter 551, and not by delegation
to any person or entity through a contract for management services or otherwise.
(1)
The governing body of the charter holder shall not delegate
final authority to hear or decide employee grievances, citizen complaints,
or parental concerns.
(2)
The governing body of the charter holder shall not delegate
final authority to organize the charter school's central administration.
(3)
The governing body of the charter holder shall not delegate
final authority to adopt or amend the budget of the charter holder or the
charter school, or to authorize the expenditure or obligation of state funds
or the use of public property.
(4)
The governing body of the charter holder shall not delegate
final authority to direct the disposition or safekeeping of public records.
(5)
The governing body of the charter holder shall not delegate
final authority to approve reports or data submissions required by law.
(6)
The governing body of the charter holder shall not delegate
final authority to select charter school employees or officers.
(7)
The governing body of the charter holder shall not delegate
final authority to adopt policies governing charter school operations.
(8)
The governing body of the charter holder shall not delegate
final authority to approve audit reports under TEC, §44.008(d).
(9)
The governing body of the charter holder shall not delegate
initial or final authority to select, employ, direct, evaluate, renew, non-renew,
terminate, or set compensation for a chief executive officer.
§100.1111.Applicability of Nepotism Provisions; Exception for Acceptable Performance.
(a)
Nepotism laws generally apply. Except as provided by this
section, a member of the governing body of a charter holder, a member of the
governing body of a charter school, and an officer of a charter school shall
comply with Government Code, Chapter 573, in the manner provided by the nepotism
provisions, prohibitions, and exceptions described in §§100.1111-100.1116
of this division.
(b)
Where rated acceptable or above. If each charter school
operated by a charter holder has received a rating, for at least two of the
preceding three school years, of "Acceptable," "Recognized," or "Exemplary"
under the relevant Accountability Manual, or a rating of "Acceptable" or "Commended"
under the relevant Alternative Education Accountability Manual, then that
charter holder may comply with subsection (d) of this section in lieu of complying
with §§100.1111-100.1116 of this division.
(c)
Existing charter holders partly grandfathered. If a charter
holder has operated at least one charter school which reported attendance
that occurred prior to September 2, 2001, but no charter school operated by
the charter holder has received a sufficient number of substantive ratings
to determine whether it has received an "Acceptable" or higher rating for
at least two of the preceding three school years, then the charter holder
may comply with subsection (d) of this section in lieu of compliance with §§100.1111-100.1116
of this division.
(1)
For purposes of this subsection, a "substantive rating"
means any rating under the Alternative Education Accountability Manual, or
any rating under the Accountability Manual other than "Not Rated: Charter."
(2)
For purposes of this subsection, a charter school has received
a sufficient number of substantive ratings to determine whether it has received
an "Acceptable" or higher rating for at least two of the preceding three school
years if:
(A)
the charter school has received two consecutive substantive
ratings, and neither rating meets the criteria set forth in subsection (b)
of this section; or
(B)
the charter school has received three substantive ratings.
(3)
If a charter holder operates charter schools that have
received a sufficient number of substantive ratings to determine whether it
has received an "Acceptable" or higher rating for at least two of the preceding
three school years, but also operates charter schools that have not received
a sufficient number of substantive ratings, then its eligibility to comply
with subsection (d) of this section is determined by applying the criteria
in subsection (b) of this section only to those schools with a sufficient
number of substantive ratings.
(d)
No annual ratings assigned. For purposes of this section,
two substantive ratings are "consecutive" if they are not separated by a rating
period in which the Texas Education Agency (TEA) assigned accreditation ratings
to charter schools generally. For example, if the TEA does not assign accreditation
ratings to charter schools for the 2003 school year or assigns district/campus
accountability classifications unique to the 2003 school year, then ratings
for the 2002 and 2004 school years are consecutive within the meaning of this
section.
(e)
Exception to nepotism. A member of the governing body of
a charter holder subject to this subsection, and a member of the governing
body or officer of each charter school operated by such charter holder, shall
comply with §100.1133 of this title (relating to Conflicts Requiring
Affidavit and Abstention From Voting) and §100.1134 of this title (relating
to Conflicts Requiring Separate Vote on Budget), with respect to a personnel
matter concerning a person related to the member or officer within the third
degree by consanguinity or within the second degree by affinity, as if the
personnel matter were a transaction with a business entity requiring compliance
with §100.1133 and §100.1134.
(f)
No quorum of relatives. Notwithstanding any other provision
of this section, persons related to one another within the third degree by
consanguinity or within the second degree by affinity, as determined under §100.1113
of this title (relating to Relationships by Consanguinity or by Affinity),
shall not constitute a quorum of the governing body or any committee of the
governing body of the charter holder or charter school.
§100.1112.General Nepotism Provisions.
(a)
Definitions. The following words and terms, when used in
this division, shall have the following meaning, unless the context clearly
indicates otherwise.
(1)
Public official--a member of the governing body of a charter
holder, a member of the governing body of a charter school, or an officer
of a charter school.
(2)
Candidate--a person who applies for, seeks, is nominated
for, or is considered for selection, appointment, employment or in any other
manner to be made a member of the governing body of a charter holder, a member
of the governing body of a charter school, or an officer of an open- enrollment
charter school.
(3)
Charter Position:
(A)
an office, employment, function, or duty that is to be
directly or indirectly compensated from state funds received by a charter
holder after September 1, 2001; or
(B)
a member of the governing body of a charter holder that
receives state funds after September 1, 2001, or a member of the governing
body or an officer of a charter school operated by such charter holder.
(b)
Degrees of relationship. Except as specifically provided
by these rules, §§100.1111-100.1116 of this division apply to relationships
within the third degree by consanguinity or within the second degree by affinity.
§100.1113.Relationships By Consanguinity or By Affinity.
The method of computing degree of relationship, determination of consanguinity
or affinity, and computation of degree of consanguinity or affinity, for a
member of the governing body of a charter holder, a member of the governing
body of a charter school, and an officer of a charter school shall be the
method provided by Government Code, §§573.021-573.025.
§100.1114.Nepotism Prohibitions.
(a)
Prohibition applicable to public official. A public official
may not hire, select, appoint, confirm the appointment of, or vote for the
hiring, selection, appointment, or confirmation of an individual to a charter
position if, within a degree described by Government Code, §§573.021-573.025,
and §100.1113 of this title (relating to Relationships By Consanguinity
or By Affinity):
(1)
the individual is related to the public official; or
(2)
the public official holds the authority to hire, select,
appoint, confirm the appointment of, or vote for the hiring, selection, appointment,
or confirmation as a member of a governing body, and the individual is related
to another member of that governing body.
(b)
Prohibition applicable to candidate. Except for a candidate's
actions taken regarding a bona fide class or category of employees or prospective
employees, a candidate may not take an affirmative action to influence the
following individuals regarding the appointment, reappointment, confirmation
of the appointment or reappointment, employment, reemployment, change in status,
compensation, or dismissal of another individual related to the candidate
within a degree described by Government Code, §§573.021-573.025,
and §100.1113:
(1)
an employee of the office that the candidate seeks, applies
for, is nominated for, or is considered for; or
(2)
an employee or officer under the direction or control of
a governing body, if the candidate seeks, applies for, is nominated for, or
is considered for membership on that governmental body.
(c)
Prohibition applicable to trading. A public official may
not hire, select, appoint, confirm the appointment of, or vote for the hiring,
selection, appointment, or confirmation of an individual to a charter position
in which the individual's services are under the public official's direction
or control if, within a degree described by Government Code, §§573.021-573.025,
and §100.1113:
(1)
the individual is related to another public official; or
(2)
the hiring, selection, appointment, confirmation, or vote
would be carried out in whole or partial consideration for the other public
official hiring, selecting, appointing, confirming, or voting for an individual
who is related to the first public official.
§100.1115.Nepotism Exceptions.
(a)
General. Section 100.1114(a) of this title (relating to
Nepotism Prohibitions) does not apply to:
(1)
an appointment or employment of a bus driver by a charter
school if:
(A)
the charter school is located wholly in a county with a
population of less than 35,000; or
(B)
the charter school is located in more than one county and
the county in which the largest part of the charter school is located has
a population of less than 35,000;
(2)
an appointment or employment of a personal attendant by
a public official for attendance on the public official who, because of physical
infirmities, is required to have a personal attendant; or
(3)
an appointment or employment of a substitute teacher.
(b)
Continuous employment. A nepotism prohibition prescribed
by §100.1114(a) does not apply to the hiring, selection, appointment,
confirmation, or vote for the hiring, selection, appointment, or confirmation
of an individual to a charter position if:
(1)
the individual was employed in the position immediately
before the public official to whom the individual is related in a prohibited
degree became a public official, by whatever means; and
(2)
that prior employment of the individual was continuous
for at least:
(A)
30 days, if the public official is an officer of a charter
school;
(B)
six months, if the public official is a member of the governing
body of a charter school; or
(C)
one year, if the public official is a member of the governing
body of a charter holder.
(c)
Prohibition against deliberation or voting on continued
relative. If an individual continues in a position under subsection (b) of
this section, the public official to whom the individual is related in a prohibited
degree may not participate in any deliberation or voting on the appointment,
reappointment, confirmation of the appointment or reappointment, employment,
reemployment, change in status, compensation, or dismissal of the individual
if that action applies only to the individual and is not taken regarding a
bona fide class or category of employees.
§100.1116.Enforcement of Nepotism Prohibitions.
(a)
Removal by charter holder. An individual who violates §100.1114
of this title (relating to Nepotism Prohibitions) or §100.1115(c) of
this title (relating to Nepotism Exceptions) shall be removed from the individual's
position by the charter holder. Failure to comply with this subsection is
a material charter violation.
(1)
The removal must be made in accordance with the removal
provisions in the articles of incorporation and bylaws of the corporation,
if applicable, the terms of the open-enrollment charter, any applicable local
policies, and state and federal law.
(2)
A public official may not approve an account or draw or
authorize the drawing of a warrant or order to pay the compensation of an
ineligible individual if the official knows the individual is ineligible.
(b)
Removal by Attorney General. An individual who violates §100.1114
or §100.1115(c) may be removed from the individual's position by suit
brought by the Texas Attorney General under Government Code, §573.082.
(c)
Criminal penalties. An individual who violates Government
Code, Chapter 573, Subchapter C, or §573.062(b) or §573.083, as
applied by these rules, may be subject to criminal penalties under Government
Code, §573.084.
(1)
On final conviction of an offense under Government Code, §573.084,
an individual shall immediately and summarily be removed from the individual's
position by the charter holder.
(2)
If the removal under paragraph (1) of this subsection is
not made within 30 days after the date the conviction becomes final, the individual
holding the position may be removed by the commissioner of education or by
suit brought by the Texas Attorney General under Government Code, §573.082.
§100.1131.Conflicts of Interest and Board Member Compensation; Exception.
(a)
Process governing conflicts of interest. A member of the
governing body of a charter holder, a member of the governing body of a charter
school, and an officer of a charter school shall comply with Local Government
Code, Chapter 171, in the manner provided by the conflict of interest provisions
described in §§100.1131-100.1135 of this division.
(b)
Compensated board members generally prohibited. Except
as provided by this section, a person who receives compensation or remuneration
from a nonprofit corporation holding an open-enrollment charter may not serve
on the governing body of the charter holder. As used in this subsection, compensation
or remuneration includes, without limitation:
(1)
salary, bonuses, benefits, or other compensation received
by the local public official pursuant to an employment relationship;
(2)
compensation for goods or services provided by the local
public official to the charter school;
(3)
payment of or reimbursement for personal expenses of the
local public official, excluding reimbursement for allowable travel expenses;
(4)
credit extended to the local public official by the charter
holder or charter school;
(5)
the local public official's personal use of property paid
for by the charter holder or charter school;
(6)
in-kind transfers of property to the local public official;
(7)
compensation for goods or services provided by the local
public official to the charter holder in a transaction unrelated to the charter
school; and
(8)
all other forms of compensation or remuneration to the
local public official.
(c)
Where rated acceptable or above. If any charter school
operated by a charter holder has received a rating, for at least two of the
preceding three school years, of "Acceptable," "Recognized," or "Exemplary"
under the relevant Accountability Manual, or a rating of "Acceptable" or "Commended"
under the relevant Alternative Education Accountability Manual, then employees
of that charter school may serve on the governing body of the charter holder
in accordance with subsection (e) of this section.
(d)
Existing charter holders partly grandfathered. If a charter
holder has operated at least one charter school which reported attendance
that occurred prior to September 2, 2001, but a particular charter school
operated by the charter holder has not received a sufficient number of substantive
ratings to determine whether it has received an "Acceptable" or higher rating
for at least two of the preceding three school years, then employees of that
charter school may serve on the governing body of the charter holder in accordance
with subsection (e) of this section.
(1)
For purposes of this subsection, a "substantive rating"
means any rating under the Alternative Education Accountability Manual, or
any rating under the Accountability Manual other than "Not Rated: Charter."
(2)
For purposes of this subsection, a charter school has a
sufficient number of substantive ratings to determine whether it has received
an "Acceptable" or higher rating for at least two of the preceding three school
years if:
(A)
the charter school has received two consecutive substantive
ratings, and neither rating meets the criteria set forth in subsection (c)
of this section; or
(B)
the charter school has received three substantive ratings.
(e)
No annual ratings assigned. For purposes of this section,
two substantive ratings are "consecutive" if they are not separated by a rating
period in which the Texas Education Agency (TEA) assigned accreditation ratings
to charter schools generally. For example, if the TEA does not assign accreditation
ratings to charter schools for the 2003 school year or assigns district/campus
accountability classifications unique to the 2003 school year, then ratings
for the 2002 and 2004 school years are consecutive within the meaning of this
section.
(f)
Exception to prohibition on compensated board members.
Notwithstanding subsection (c) of this section, an employee of a charter school
subject to this subsection may serve as a member of the governing body of
the charter holder if:
(1)
only employees of the charter school, and not employees
of the charter holder, serve on the governing body of the charter holder;
(2)
the only compensation or remuneration received by the board
member is salary, bonuses, benefits, or other compensation received pursuant
to the employment relationship with the charter school;
(3)
charter school employees do not constitute a quorum of
the governing body or any committee of the governing body; and
(4)
all charter school employees serving on the governing body
comply with all conflict of interest provisions referenced in subsection (a)
of this section.
(g)
Accounting for interested transactions. Notwithstanding
compliance with this section, a charter holder shall comply fully with the
requirements of §100.1047(f) of this title (relating to Accounting for
State Funds).
§100.1132.General Conflict of Interest Provisions.
(a)
Definitions. The following words and terms, when used in
this division, shall have the following meaning, unless the context clearly
indicates otherwise.
(1)
Local public official--a member of the governing body of
a charter holder, a member of the governing body of a charter school, or an
officer of a charter school who exercises responsibilities beyond those that
are advisory in nature.
(2)
Business entity--a sole proprietorship, partnership, firm,
corporation, holding company, joint-stock company, receivership, trust, agency,
political subdivision, or any other entity recognized by law.
(b)
Substantial interest in business entity. For purposes of
this chapter, a person has a substantial interest in a business entity if:
(1)
the person owns 10% or more of the voting stock or shares
of the business entity or owns either 10% or more or $15,000 or more of the
fair market value of the business entity; or
(2)
funds received by the person from the business entity exceed
10% of the person's gross income for the previous year.
(c)
Substantial interest in real estate. A person has a substantial
interest in real estate if the interest is an equitable or legal ownership
with a fair market value of $2,500 or more.
(d)
Substantial interest through a relative. A local public
official is considered to have a substantial interest under this section if
a person related to the official in the third degree by consanguinity or affinity,
as determined under Government Code, §§573.021-573.025, and §100.1113
of this title (relating to Relationships By Consanguinity or By Affinity),
has a substantial interest under this section.
§100.1133.Conflicts Requiring Affidavit and Abstention From Voting.
(a)
Affidavit and abstention required. If a local public official
has a substantial interest in a business entity or in real property, the official
shall file, before a vote, decision, or other action on any matter involving
the business entity or the real property, an affidavit stating the nature
and extent of the interest and shall abstain from further participation in
the matter if:
(1)
in the case of a substantial interest in a business entity,
the vote, decision, or other action on the matter will have a special economic
effect on the business entity that is distinguishable from the effect on the
public; or
(2)
in the case of a substantial interest in real property,
it is reasonably foreseeable that a vote, decision, or other action on the
matter will have a special economic effect on the value of the property, distinguishable
from its effect on the public.
(b)
Affidavit filed. The affidavit described in subsection
(a) of this section must be filed with the official recordkeeper of the charter
holder.
(c)
Abstention excused. If a local public official is required
to file and does file an affidavit under subsection (a) of this section, the
local public official is not required to abstain from further participation
in the matter requiring the affidavit if:
(1)
the local public official is a member of the governing
body of the charter holder or the charter school, and
(2)
a majority of the members of the governing body of which
the local public official is a member is composed of persons who are likewise
required to file and who do file affidavits of similar interests on the same
official action.
§100.1134.Conflicts Requiring Separate Vote on Budget.
(a)
Separate vote required. The governing body of a charter
holder shall take a separate vote on any budget item specifically dedicated
to a contract with a business entity in which a member of the governing body
of the charter holder has a substantial interest.
(b)
Abstention required. Except as provided by §100.1133(c)
of this title (relating to Conflicts Requiring Affidavit and Abstention From
Voting), the affected member may not participate in that separate vote. The
member may vote on a final budget if:
(1)
the member has complied with this chapter; and
(2)
the matter in which the member is concerned has been resolved.
§100.1135.Acting as Surety and other Conflicts; Criminal Penalties.
(a)
Acting as surety. A local public official commits a criminal
offense if the official knowingly:
(1)
acts as surety for a business entity that has work, business,
or a contract with the charter holder; or
(2)
acts as surety on any official bond required of a member
of the governing body or charter school, or of an officer of the charter school.
(b)
Knowing violation of requirements. A local public official
commits a criminal offense if the official knowingly violates Local Government
Code, §171.004, as applied by these rules.
§100.1151.Criminal History; Restrictions on Serving.
(a)
Restrictions on serving. A person may not serve as an employee,
an officer, or a member of the governing body of a charter school, or as a
member of the governing body of a charter holder, if the person has been convicted
of:
(1)
a misdemeanor involving moral turpitude or any felony;
(2)
an offense listed in Texas Education Code (TEC), §37.007(a);
or
(3)
an offense listed in Code of Criminal Procedure, Article
62.01(5).
(b)
Required criminal history checks--generally. Before the
person begins service, and twice a year thereafter, a charter holder shall
obtain from the Texas Department of Public Safety (DPS) all criminal history
record information that relates to:
(1)
an employee or a person whom the charter holder intends
to employ in any capacity;
(2)
a member of the governing body of the charter holder or
charter school or a person who has agreed to serve as a member of the governing
body of the charter holder or charter school; and
(3)
a person who files, in writing, an intention to serve as
a volunteer at the charter school, if the duties are or will be performed
on school property or at another location where students are regularly present.
(c)
Required criminal history checks--transportation. Except
as provided by paragraphs (3) and (4) of this subsection, a charter holder
that contracts with a person for transportation services shall obtain from
the DPS all criminal history record information that relates to a person employed
by the person as a bus driver or a person the person intends to employ as
a bus driver.
(1)
Except as provided by paragraphs (3) and (4) of this subsection,
a person or management company that contracts with a charter holder to provide
transportation services shall submit to the charter holder the name and other
identification data required to obtain criminal history record information
of each person described by this section.
(2)
If the charter holder obtains information that a person
described by this section has been convicted of a felony or a misdemeanor
involving moral turpitude, the charter holder shall inform the chief personnel
officer of the person or management company with whom the charter holder has
contracted, and the person or management company may not employ that person
to drive a bus on which students are transported without the permission of
the governing body of the charter holder.
(3)
A commercial transportation company that contracts with
a charter holder to provide transportation services may obtain from any law
enforcement or criminal justice agency all criminal history record information
that relates to a person employed by the commercial transportation company,
or to a person it intends to employ, as a bus driver, bus monitor, or bus
aide.
(4)
If the commercial transportation company obtains information
that a person employed or to be employed by the company has been convicted
of a felony or a misdemeanor involving moral turpitude, the company may not
employ that person to drive or to serve as a bus monitor or bus aide on a
bus on which students are transported without the permission of the governing
body of the charter holder. Paragraphs (1) and (2) of this subsection do not
apply if information is obtained as provided by paragraph (3) of this subsection.
(d)
Permissive criminal history checks. A charter holder may
obtain from any law enforcement or criminal justice agency, including the
DPS, all criminal history record information that relates to:
(1)
a volunteer, employee, or member of a governing body under
subsection (b) of this section;
(2)
an employee of or an applicant for employment with a public
or commercial transportation company that contracts with the charter holder
to provide transportation services if the employee drives or the applicant
will drive a bus in which students are transported or is employed or is seeking
employment as a bus monitor or bus aide on a bus in which students are transported,
under subsection (c) of this section; and
(3)
an employee of or applicant for employment by a management
company or other person that contracts with the charter school to provide
management services or other services, if:
(A)
the employee or applicant has or will have continuing duties
related to the contracted services; and
(B)
the duties are or will be performed on school property
or at another location where students are regularly present.
(e)
Entitlement to criminal history checks. A charter holder
is entitled to obtain, no more than twice each year, from the DPS all criminal
history record information maintained by the DPS that the charter holder is
required or authorized to obtain under this section.
(f)
Reduced fees for criminal history checks. In accordance
with Government Code, §411.097, if a regional education service center
or commercial transportation company that receives criminal history record
information from the DPS under this section requests the information by providing
to the DPS a list, including the name, date of birth, and any other personal
descriptive information required by the DPS for each person, through electronic
means, magnetic tape, or disk, as specified by the DPS, the DPS may not charge
the service center or commercial transportation company more than the lesser
of:
(1)
the DPS's cost for providing the information; or
(2)
the amount prescribed by another law.
(g)
Disclosure prohibited. Criminal history record information
obtained by a charter holder under this section may not be released or disclosed
to any person, other than the individual who is the subject of the information,
the Texas Education Agency, the State Board for Educator Certification (SBEC),
or the chief personnel officer of the transportation company, if the information
is obtained under subsection (c) of this section.
(h)
Removal by charter holder. If a person is prohibited by
this section from serving as an employee, an officer, or a member of the governing
body of a charter school, or as a member of the governing body of a charter
holder, the charter holder shall remove the individual from such position
immediately.
(1)
The removal must be made in accordance with the removal
provisions in the articles of incorporation and bylaws of the corporation,
if applicable, the terms of the open-enrollment charter, any applicable local
policies, and state and federal law.
(2)
The governing body of the charter holder may not approve
an account or draw or authorize the drawing of a warrant or order to pay the
compensation of a person if the person is prohibited by this section from
serving in the capacity for which compensation is due.
(i)
Teaching certificate applicant or holder. A charter holder
shall promptly notify the SBEC in writing if it obtains or has knowledge of
information showing that an applicant for or holder of a certificate issued
under TEC, Chapter 21, Subchapter B, has a reported criminal history.
(j)
Implementation schedule and transition. Notwithstanding
this section:
(1)
beginning September 1, 2001, a charter holder shall obtain,
in compliance with this section, criminal history record information relating
to each person identified in subsections (b) and (c) of this section; and
(2)
if a person is prohibited by this section from serving
as an employee, an officer, or a member of the governing body of a charter
school, or as a member of the governing body of a charter holder, and if removing
such person would violate an employment or other written contract that was
executed prior to September 1, 2001, then the employment or other contract
may continue in effect past September 1, 2001, if each of the following conditions
is met:
(A)
no state funds are used to pay any amounts due the person
under the employment or other contract, and all such amounts are paid from
a clearly identified source of non-state funds; and
(B)
the terms of the employment or other contract have not
been renewed, modified, or otherwise altered since September 1, 2001.
§100.1153.Substantial Interest in Management Company; Restrictions on Serving.
(a)
Restriction on serving. A person may not serve as an employee,
an officer, or a member of the governing body of a charter school, or as a
member of the governing body of a charter holder, if the person has a substantial
interest in a management company that has a contract for management services
with the charter holder or a charter school. A person has a substantial interest
in a management company if the person:
(1)
has a controlling interest in the company;
(2)
owns more than 10% of the voting interest in the company;
(3)
owns more than $25,000 of the fair market value of the
company;
(4)
has a direct or indirect participating interest by shares,
stock, or otherwise, regardless of whether voting rights are included, in
more than 10% of the profits, proceeds, or capital gains of the company;
(5)
is a member of the board of directors or other governing
body of the company;
(6)
serves as an elected officer of the company; or
(7)
is an employee of the company.
(b)
Management company as officer. Notwithstanding subsection
(a) of this section, a person who has a substantial interest in a management
company may provide management services that include the functions of a central
administration officer, campus administration officer, or business manager,
if:
(1)
the person provides all management services under a contract
for management services;
(2)
the person provides all management services as an agent
of the management company;
(3)
the person does not serve as an employee or volunteer of
the charter holder or charter school, and does not otherwise serve as a contractor
of the charter holder or charter school;
(4)
the person does not serve as a member of the governing
body of the charter school or charter holder; and
(5)
the management services provided by the person do not include
powers or duties that are non- delegable under §100.1101 of this title
(relating to Delegation of Powers and Duties).
(c)
Audit disclosure. A charter holder shall separately disclose,
in its annual audit report required by §100.1047(c) of this title (relating
to Accounting for State Funds), all persons listed in subsection (a) of this
section with a substantial interest in a management company as defined by
subsection (a).
(d)
Removal by charter holder. If a person is prohibited by
this section from serving as an employee, an officer, or a member of the governing
body of a charter school, or as a member of the governing body of a charter
holder, the charter holder shall remove the individual from such position
immediately.
(1)
The removal must be made in accordance with the removal
provisions in the articles of incorporation and bylaws of the corporation,
if applicable, the terms of the open-enrollment charter, any applicable local
policies, and state and federal law.
(2)
The governing body of the charter holder may not approve
an account or draw or authorize the drawing of a warrant or order to pay the
compensation of a person if the person is prohibited by this section from
serving in the capacity for which compensation is due.
(e)
Implementation schedule and transition. Notwithstanding
this section:
(1)
beginning with the fiscal year in which September 1, 2001,
falls, a charter holder shall separately disclose, in its annual audit report
required by §100.1047(c) of this title, all persons listed in subsection
(a) of this section with a substantial interest in a management company as
defined by subsection (a); and
(2)
if a person is prohibited by this section from serving
as an employee, an officer, or a member of the governing body of a charter
school, or as a member of the governing body of a charter holder, and if removing
such person would violate an employment or other written contract that was
executed prior to September 1, 2001, then the employment or other contract
may continue in effect past September 1, 2001, if each of the following conditions
is met:
(A)
no state funds are used to pay any amounts due the person
under the employment or other contract, and all such amounts are paid from
a clearly identified source of non-state funds; and
(B)
the terms of the employment or other contract have not
been renewed, modified, or otherwise altered since September 1, 2001.
§100.1155.Procedures for Prohibiting a Management Contract.
(a)
Action prohibiting management contract. The commissioner
of education may prohibit, deny renewal of, suspend, or revoke a contract
between an open-enrollment charter school and a management company providing
management services to the school if the commissioner determines that the
management company has:
(1)
failed to provide educational or related services in compliance
with the company's contractual or other legal obligation to any open-enrollment
charter school in Texas or to any other similar school in another state;
(2)
failed to protect the health, safety, or welfare of the
students enrolled at an open-enrollment charter school served by the company;
(3)
violated this subchapter or a rule adopted under this subchapter;
or
(4)
otherwise failed to comply with any contractual or other
legal obligation to provide services to the school.
(b)
Procedures for making determination. A determination under
subsection (a) of this section shall be made under Chapter 97, Subchapter
DD, of this title (relating to Procedures for Investigative Reports and Sanctions).
In making this determination:
(1)
the commissioner may rely on one or more of the following:
(A)
any finding or determination made by a court or other tribunal
of competent jurisdiction, whether in Texas or in any other state, or by the
United States, if the order or judgment is final under the rules governing
such proceedings;
(B)
any finding or determination made by the commissioner under §§100.1021
of this title (relating to Adverse Action on an Open-Enrollment Charter),
100.1023 of this title (relating to Intervention Based on Charter Violations),
100.1025 of this title (relating to Intervention Based on Health, Safety,
or Welfare of Students), 100.1027 of this title (relating to Accreditation
Sanctions), or 100.1031 of this title (relating to Charter Renewal), if the
finding or determination is final under the rules governing such proceedings;
or
(C)
any finding or determination made by a court in an action
for declaratory judgment or other action pertaining to the commissioner's
determination under this section, if the order or judgment is final under
the rules governing such proceedings; and
(2)
to the extent that a finding or determination under paragraph
(1) of this subsection pertains to a charter holder or charter school served
by a management company, but does not directly pertain to the management company,
the proceedings under Chapter 97, Subchapter DD, shall be limited to the question
whether the relevant contract for management services creates a legal duty
for the management company to provide services to the charter school in areas
of performance that are the subject of the finding or determination against
the charter holder or charter school.
(c)
Review of proposed management contract. At least 30 calendar
days prior to any performance or payments under the contract, a charter holder
must file a copy of each contract for management services, and each amendment,
renewal or extension thereto, with the Texas Education Agency (TEA) division
responsible for legal services for review under this section.
(1)
A contract for management services is unenforceable, void,
and of no force or effect until the expiration of 30 calendar days following
the date on which it is filed with the TEA division responsible for legal
services for review under this section. In addition, performance under the
contract prior to the expiration of 30 calendar days following the date on
which it is filed for review under this section is a material charter violation.
(2)
Following the expiration of 30 calendar days after it is
filed with the TEA division responsible for legal services for review under
this section, if the commissioner takes no action under Chapter 97, Subchapter
DD, within 30 days, then the parties may begin performance under the contract.
(3)
The absence of action by the commissioner under Chapter
97, Subchapter DD, does not constitute a finding of compliance under this
section, nor waive or in any other manner prevent the commissioner from acting
at a later time under this section.
(d)
Implementation schedule and transition.
(1)
Notwithstanding this section:
(A)
a copy of a contract for management services in effect
during school year 2001-2002 shall be filed with the TEA division responsible
for legal services on or before the expiration of 30 calendar days following
the effective date of this section; and
(B)
if a contract for management services is timely filed with
the TEA division responsible for legal services for review under subsection
(d)(1)(A) of this section, then the parties may continue or immediately begin
performance under the contract unless or until the commissioner takes action
under Chapter 97, Subchapter DD.
(2)
Notwithstanding this section, if an affected contract for
management services was executed prior to September 1, 2001, then the management
contract may continue in effect past September 1, 2001, if each of the following
conditions is met:
(A)
no state funds are used to pay any amounts due the management
company under the management contract, and all such amounts are paid from
a clearly identified source of non-state funds; and
(B)
the terms of the management contract have not been renewed,
modified, or otherwise altered since September 1, 2001.
§100.1157.Loan from Management Company Prohibited.
(a)
Loan prohibited. Neither a charter holder or a charter
school may accept any loan or credit from, or incur any debt to, a management
company that has a contract to provide management services to:
(1)
that charter school; or
(2)
another charter school that operates under a charter granted
to the charter holder.
(b)
Management contract prohibited. A charter holder or charter
school that accepts a loan or credit from, or incurs a debt to, a management
company, may not enter into a contract with that management company to provide
management services to the school.
(c)
Audit disclosure. A charter holder shall separately disclose,
in its annual audit report required by §100.1047(c) of this title (relating
to Accounting for State Funds), all loans or credit received or indebtedness
incurred by the charter holder or the charter school to any person or entity
providing management services to the charter school or another charter school
that operates under a charter granted to the charter holder.
(d)
Agency review. Compliance with this section shall be reviewed
in conjunction with the review required by §100.1155(c) of this title
(relating to Procedures for Prohibiting a Management Contract).
(e)
Implementation schedule and transition. Notwithstanding
this subsection, if the affected management contract was executed prior to
September 1, 2001, and the affected promissory note or other debt instrument
was also executed prior to September 1, 2001, then both the management contract
and the indebtedness may continue in effect past September 1, 2001, if each
of the following conditions is met:
(1)
no state funds are used to pay any amounts due the management
company under the management contract, and all such amounts are paid from
a clearly identified source of non-state funds;
(2)
no state funds are used to pay any amounts due the management
company under the promissory note or other debt instrument, and all such amounts
are paid from a clearly identified source of non-state funds; and
(3)
the terms of the management contract and the promissory
note or other debt instrument have not been renewed, modified, or otherwise
altered since September 1, 2001.
§100.1159.Public Records Maintained by Management Company; Contract Provision.
(a)
Maintenance of records. A management company that provides,
or did provide, any management services to a charter holder or charter school
shall maintain, as required by §100.1203 of this title (relating to Records
Management), all records related to its management services separately from
any other records of the management company.
(b)
Contract provision. Any contract, including a contract
renewal, between a charter holder or charter school and a management company
for management services to the charter school must contain a contract provision
expressly requiring the management company to comply with subsection (a) of
this section.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 4, 2002.
TRD-200200699
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Earliest possible date of adoption: March 17, 2002
For further information, please call: (512) 463-9701
(2)
] scoring criteria and procedures
for use by the review panel appointed under subsection (d) of this section;
(3)
] selection criteria, including
the minimum score necessary for an application to be eligible for selection;
and
(4)
] the earliest date an open-enrollment
charter school selected in the cycle may open.
may notify the applicant of deficiencies
].
Further, the TEA
shall return the application without further processing
if it finds
[
may notify the applicant of
] substantive deviations
from state and federal requirements affecting the operation of open-enrollment
charter schools or the applicant's eligibility to be granted a charter. The
TEA may establish procedures and schedules for
returning applications
without further processing under this subsection, including a process for
SBOE review of a determination of the TEA
[
responses to such notifications
]. Failure of the TEA to identify any deficiency or substantive deviation,
or notify an applicant thereof, does not constitute a waiver of the requirement
and does not bind the SBOE.
Subchapter AA. COMMISSIONER'S RULES CONCERNING OPEN-ENROLLMENT CHARTER SCHOOLS
1.
GENERAL PROVISIONS
2.
COMMISSIONER ACTION AND INTERVENTION
3.
CHARTER SCHOOL FUNDING AND FINANCIAL OPERATIONS
An open-enrollment
] charter school is entitled to funding from both tiers of the Foundation
School Program (FSP) in accordance with the funding formulas for school districts
pursuant to Texas Education Code (TEC), Chapter 42.
4.
PROPERTY OF OPEN-ENROLLMENT CHARTER SCHOOLS
open-enrollment
] charter school. With respect to the public
property they manage, the members of the governing body of a charter holder,
and the members of the governing body and officers of a [
an open-enrollment
] charter school, are trustees under Texas law; and the students enrolled
in the school are beneficiaries of a trust. Each trustee shall be held to
the standard of care and fiduciary duties that a trustee owes the beneficiary
of a trust under Texas law.
the civil and criminal laws
] governing
misuse or misapplication of [
Texas
] public property.
(2)
] The members of the governing
body of a charter holder, and the members of the governing body and officers
of
a
[
an open-enrollment
] charter school, shall authorize
all uses and applications of the public property under their control, and
shall not authorize any use or application that is
inconsistent with
the policy required by paragraph (2) of this subsection.
[
not for
a program described in the charter.
]
(3)
] If pursuant to
TEC
[
Texas Education Code
], §12.111(9), the daily management of
public property is delegated to any person, including a management company,
the members of the governing body of the charter holder, and the members of
the governing body and officers of the [
open-enrollment
] charter
school, shall remain fully responsible to authorize all uses and applications
of public property
and enforce the policy required by paragraph (2) of
this subsection
.
5.
CHARTER SCHOOL GOVERNANCE
6.
CHARTER SCHOOL OPERATIONS