TITLE 19.EDUCATION

Part 2. TEXAS EDUCATION AGENCY

Chapter 66. STATE ADOPTION AND DISTRIBUTION OF INSTRUCTIONAL MATERIALS

Subchapter A. GENERAL PROVISIONS

19 TAC §66.10

The State Board of Education (SBOE) proposes an amendment to §66.10, concerning procedures governing violations of statutes and administrative penalties relating to the state adoption and distribution of instructional materials. The rule establishes procedures addressing complaints; administrative and first- and second-year penalties; categories of factual errors; penalties for failure to correct factual errors, for selling textbooks with factual errors, and for failure to deliver adopted instructional materials in a timely manner; SBOE discretion regarding penalties; and payment of fines. The proposed amendment would clarify existing provisions and add language to address failure to deliver teacher components and failure to maintain websites in state-adopted products.

In subsection (c), the proposed amendment would establish penalties for errors identified after instructional materials are distributed to schools that are comparable to the penalties assessed for errors identified prior to distribution. This proposed amendment would also remove the $3,000 penalty cap for errors and clarify that factual errors submitted by a publisher should not be considered "editorial corrections."

In subsection (f), the proposed amendment would clarify that the second-year penalties provision includes reference to the first-year penalties provisions described in subsection (e).

In subsection (g), a change recommended by the Texas Coordinators Association of Texas (TCAT) would clarify that back-order penalties include penalties for failure to deliver adopted teacher components in a timely manner or in the quantities which the school district or open-enrollment charter school is eligible to receive.

In subsection (h), language would be removed to clarify that it is impossible to determine whether a publisher "knowingly" sold textbooks with factual errors.

New subsection (i) would be added and subsequent subsections relettered accordingly. New subsection (i) would address penalties for failure to maintain websites in state-adopted products. In recent years, a number of Internet-based programs have been adopted. In most cases, the publisher manages web pages used for the Texas Essential Knowledge and Skills (TEKS) coverage. In the 2003 adoption, however, the board determined that publishers could cover TEKS by providing a link to another web page whether or not it was managed by the publisher. New subsection (i) would require that the publisher be responsible for ensuring that the web page used for TEKS coverage is available throughout the contract period.

Susan Barnes, Associate Commissioner for Standards and Programs, has determined that for the first five-year period the amendment is in effect there will be fiscal implications for state government as a result of enforcing or administering the amendment. The proposed amendment to §66.10(i) creates new penalties for publishers who fail to maintain websites in state-adopted products. Historically, fines are paid by the issuance of credit to the Texas Education Agency (for instructional materials) in the amount of the penalty. It is not possible to determine the frequency and amount of penalties that will be incurred; however, payment of fines will result in an overall cost savings to the state. There will be no fiscal implications for local government.

Dr. Barnes has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the amendment will be a more up-to-date rule with changes that can improve the textbook adoption and distribution process. There will be no effect on small businesses. There is anticipated economic cost to persons who are required to comply with the amendment. Adoption of the proposed amendment to §66.10(i) creates potential costs to publishers of instructional materials.

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

The amendment is proposed under the Texas Education Code, §7.102(c), which authorizes the SBOE to adopt rules required by TEC, Chapter 31; and under TEC, §31.003, which authorizes the SBOE to adopt rules for the adoption, requisition, distribution, care, use, and disposal of textbooks.

The proposed amendment implements the Texas Education Code, §7.102(c) and Chapter 31.

§66.10.Procedures Governing Violations of Statutes--Administrative Penalties.

(a) - (b) (No change.)

(c) Penalties for failure to correct factual errors.

(1) - (2) (No change.)

(3) A penalty may be assessed for failure to correct a factual error identified in the list of [ editorial ] corrections submitted by a publisher under §66.54(g) of this title (relating to Samples) , [ or ] for failure to correct a factual error identified in the report of the commissioner of education under §66.63(d) of this title (relating to Report of the Commissioner of Education) and required by the SBOE , or for any errors that are identified after the textbooks have been distributed to school districts and open-enrollment charter schools . The publisher shall provide an errata sheet approved by the commissioner of education with each teacher component of an adopted title.

[(4) A penalty not to exceed $3,000 may be assessed for each factual error identified after the deadline established in the proclamation by which publishers must have submitted corrected samples of adopted instructional materials.]

(d) - (e) (No change.)

(f) Second-year penalties. The base and per-book penalties shall be assessed as follows if a publisher, after being penalized for failure to correct factual errors described in subsections (c) - (e) [ and (d) ] of this section, repeats the violation in the subsequent adoption.

(1) - (3) (No change.)

(g) Penalties for failure to deliver adopted instructional materials , including teacher components, in a timely manner or in the quantities the school district or open-enrollment charter school is eligible to receive . The SBOE may assess [ administrative ] penalties as allowed by law against publishers who fail to deliver adopted instructional materials , including teacher components specified by §66.51(a)(3) of this title (relating to Instructional Materials Purchased by the State), in accordance with provisions in the contracts.

(h) Penalties for selling textbooks with factual errors. The SBOE may assess administrative penalties in accordance with the Texas Education Code, §31.151, against a seller of textbooks who [ knowingly ] sells textbooks with factual errors.

(i) Penalties for failure to maintain websites in state-adopted products. The SBOE may assess administrative penalties against a publisher who fails to maintain a website or provide a suitable alternative for conveying the information in the website, or who otherwise fails to meet the requirements of this subsection. Where applicable, the publisher shall monitor, update, and maintain any in-house and third party electronic, web-based, or online products furnished as part of the instructional materials specified in State of Texas Official Publisher Contract for the period determined by the SBOE. If, at any time during the contract period, the commissioner of education determines that electronic, web-based, or online instructional materials furnished and supplied under the terms of a contract have faulty manufacturing characteristics or display dated or inferior information, the instructional materials or information shall be replaced with complying materials or information by the publishers without cost to the state. The publisher further agrees that electronic, web-based or online instructional materials listed in a State of Texas Official Publishers Contract will not be altered in any way that would remove content from the curriculum. The publisher will not allow advertising of any type to be placed in or associated with the materials. The publisher will not add any Internet links to the materials without the approval of the commissioner of education, will not redirect any user accessing the web-based or online instructional materials to other Internet or electronic sites, and will not collect any information about the user or computer accessing the materials that would allow determination of personal information, including email addresses. This section applies only to a website that is a component used to address Texas Essential Knowledge and Skills as part of a state-adopted product.

(j) [ (i) ] State Board of Education discretion regarding penalties. The SBOE may, if circumstances warrant, waive or vary penalties contained in this section for first or subsequent violations based on the seriousness of the violation, any history of a previous violation or violations, the amount necessary to deter a future violation, any effort to correct the violation, and any other matter justice requires.

(k) [ (j) ] Payment of fines. Each affected publisher shall issue credit to the Texas Education Agency (TEA) in the amount of any penalty imposed under the provisions of this section. When circumstances warrant it, TEA is authorized to require payment of penalties in cash within ten days. Each affected publisher who pays a fine for failure to deliver adopted instructional materials in a timely manner will not be subject to the liquidated damages provision in the publisher's contract for the same failure to deliver adopted instructional materials in a timely manner.

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 March 13, 2006.

TRD-200601581

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: April 23, 2006

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


Subchapter B. STATE ADOPTION OF INSTRUCTIONAL MATERIALS

19 TAC §§66.27, 66.28, 66.33, 66.36, 66.48, 66.51, 66.54, 66.60, 66.66, 66.69, 66.75

The State Board of Education (SBOE) proposes amendments to §§66.27, 66.28, 66.33, 66.36, 66.48, 66.51, 66.54, 66.60, 66.66, 66.69, and 66.75, concerning the state adoption of instructional materials. The rules establish procedures addressing the proclamation, public notice, and schedule for adopting instructional materials; adoption by reference; appointment, duties, and conduct of state review panels; statement of intent to bid instructional materials, instructional materials purchased by the state; samples; public comment on instructional materials; consideration and adoption of instructional materials by the SBOE; ancillary materials; and revised editions. The proposed amendments would update and clarify these rules, as follows.

In §66.27, Proclamation, Public Notice, and Schedule for Adopting Instructional Materials, the proposed amendment would modify subsection (a) to clarify that publishers are not required to register to receive notice of the proclamation. Subsection (c) would also be revised to allow use of the Internet for notification of proclamations and for soliciting input from the publishing industry concerning maximum costs.

In §66.28, Adoption by Reference, the proposed amendment would update reference to current proclamations. To comply with Texas Education Code (TEC), §28.002(c), each year the SBOE adopts by reference the Texas Essential Knowledge and Skills (TEKS) that are to be used for evaluating instructional materials submitted for consideration under a proclamation. The proposed amendment would remove the reference to TEKS in Proclamations 2001 and 2002 since the products were reviewed and adopted in 2003 and 2004, respectively. The proposed amendment would add the reference to the TEKS in Proclamations 2004 and 2005 that will be used to evaluate new products submitted in 2006 and 2007. The proposed amendment would also add reference to the Texas Education Agency (TEA) website for viewing proclamations.

In §66.33, State Review Panels: Appointment, the proposed amendment would add language to subsection (a) requiring that the commissioner of education ensure that each state textbook review panel includes academic experts in the content area for which the new instructional materials have been submitted. This proposed amendment considers a recommendation made by the Sunset Advisory Commission in 2005 and subsequent clarification by the SBOE. Academic expert was defined so as to include not only university professors but also classroom teachers with strong academic backgrounds.

In §66.36, State Review Panels: Duties and Conduct, the proposed amendment would add language to subsection (a) to include clarification that panel members must use the SBOE-approved definition of TEKS coverage included in the SBOE-approved question and answer document that becomes a formal part of the review and adoption process.

The proposed amendment to 19 TAC §66.36 is proposed in the context of a pending Attorney General's opinion request (RQ-0430-GA). The SBOE will be guided by the resulting Attorney General's opinion in adopting a final rule.

In §66.48, Statement of Intent To Bid Instructional Materials, the proposed amendment would add language to subsection (a) to require publishers to provide preliminary price information at the time statements of intent to bid are submitted. This proposed amendment would provide publishers and staff additional time to review and compile pricing information and resolve issues on pricing and maximum costs that publishers might have.

In §66.51, Instructional Materials Purchased by the State, the proposed amendment would delete language in subsection (a)(2) that prohibits a publisher from submitting a final bid price for the program that exceeds the preliminary price. The preliminary price would be submitted with the state of intent to bid information. Subsection (a)(5) would be modified to coincide with the proposal that publishers submit price information with the statement of intent to bid rather than with the official samples. Subsection (a)(6) would be modified to clarify that individual component prices are replacement costs for school districts and are not bid prices that should be offered by the publishers.

Subsection (a)(8) would be modified, as recommended by the Texas Coordinators Association of Texas (TCAT), to require publishers to mark their nonconsumable products to indicate that they are nonconsumable. In addition, the revision to subsection (a)(8) would eliminate the requirement that the publisher's price for consumable material not exceed the state maximum cost. This requirement is inconsistent with state law that allows publishers to exceed the maximum cost with school districts paying the difference.

Subsection (a)(9) would be added to provide clarification to publishers as to when the state would pay for consumable materials and when the consumable materials must be provided to school districts for the life of the contract. Currently, some publishers do not understand that consumable materials must be provided to districts each year for new students. If the state calls for consumables, the state budgets for this and pays for them each year. Some publishers provide consumables for one year, even though the state does not call for them and then expect the districts to pay for them in the following years. Publishers that desire year-to-year flexibility in offering any materials other than those specifically called for should offer these as ancillary or "free with order" materials.

Subsection (a)(11) would be added to include the Texas Sunset Commission finding that the current "textbook process does not maximize the use of the State's textbook funds." Currently, the state pays up to the approved maximum cost for all adopted textbooks, including those that do not fully cover the TEKS. This proposed change would enable the state to save funds by reducing the maximum cost that could be paid for nonconforming textbooks.

In §66.54, Samples, the proposed amendment would change language in subsection (a) to generalize the requirement for printed samples to be complete as to content so as to extend the requirement to electronic media. The current rule refers to publishers' submissions of instructional materials with "finished-format binding." The proposed amendment would address Internet-based or electronic products and require that programs of these types be submitted in final form and completely functional.

Subsections (d) and (h) would be modified to reduce the number of samples to be filed with the agency prior to and after state adoption. Subsection (d) would also eliminate the requirement that preliminary price information be submitted with the sample. This change would coincide with the proposal that price information be submitted with the statement of intent to bid.

Subsection (e) would be revised to address delivery of samples for review by state review panels. Most samples are now submitted by publishers directly to the meeting location. The proposed amendment would also address specifications regarding correlations, supplementary materials, and the definition of instructional materials. Correlations include location of TEKS in products being reviewed and are used primarily as resources for staff. Deleting "supplementary materials" is consistent with the practice of allowing a wide range of materials to be submitted for adoption.

In §66.60, Public Comment on Instructional Materials, the proposed amendment would provide for public hearing testimony by non-Texas residents with priority given to Texas residents. In 2003, a number of requests to speak at public hearings were submitted by non-Texas residents. The SBOE proposes to allow residents of other states to participate in public hearings instead of continuing the current practice of allowing only residents of Texas to provide official testimony.

In §66.66, Consideration and Adoption of Instructional Materials by the State Board of Education, the proposed amendment would revise subsection (a) to eliminate the need for publishers to provide proof of authority to do business in Texas. This document is no longer required for participation in the adoption process. In subsection (c), the proposed amendment would clarify that each student expectation in the TEKS must be addressed in order for a program to be considered conforming. Current rule refers to performance descriptions rather than student expectations.

The proposed amendment to 19 TAC §66.66 is proposed in the context of a pending Attorney General's opinion request (RQ-0430-GA). The SBOE will be guided by the resulting Attorney General's opinion in adopting a final rule.

In §66.69, Ancillary Materials, the proposed amendment would add a definition of ancillary materials to ensure that all publishers have a common understanding of what constitutes an ancillary. Currently, different publishers use the term in different ways. Also for clarification, language would be added to reference open-enrollment charter schools along with reference to school districts.

In §66.75, the proposed amendment would change the title to "Revisions, Updates, and Substitutions" from "Revised Editions." Subsections (a) and (c) would be modified to add language to address electronic textbooks and Internet products. Ease of revision should not exempt electronic textbooks and Internet products, as instructional materials, from equal compliance with this rule. When school districts upgrade to a newer version of a computer operating system and the publisher has a corresponding software product available, it should be made available without regard to the one-year-policy. A new subsection (d) would be added to include the provision that publishers must certify in writing that the new materials meets the applicable TEKS and is free from factual errors. Relettered subsection (e) would be modified to include reference to revisions and updates and well as substitution requests. Relettered subsection (f) would be modified to specify the requirement for SBOE approval of all requests for revisions, updates, or substitutions involving content prior to their introduction into state-adopted instructional materials. The proposed amendment would also establish that the SBOE may assess penalties against publishers that fail to obtain the necessary prior approval. The SBOE has statutory responsibility to monitor all revisions in all approved instructional materials for conformity to the TEKS and freedom from factual errors.

New subsection (g) would be added to specify that publishers must request approval from the commissioner of education for electronic design changes and/or updates that do not include changes to TEKS coverage or new content. It would be more efficient if technological changes such as performance (programming upgrades), increased speed, user friendly design features (navigation, improved functionality), and technology upgrades (maintenance, changes in operating systems) are approved by the commissioner. The time needed for SBOE review and approval for changes not related to content could delay classroom use of the electronic instructional materials already adopted.

New subsection (h) would be added, as recommended by the TCAT, to address the availability of the previous version of state adopted textbooks for school districts that choose to continue using the previous version.

New subsections (i) - (m) would be added to address alternate formats of SBOE-approved products that may be provided by publishers. If a school district prefers a newer version of a program or an alternative format for the same content, the product should be available without further SBOE review. If the TEA agrees that the alternate format includes the same SBOE-approved content, school districts would be made aware that it is available and publishers would work with districts to supply the appropriate format.

Susan Barnes, Associate Commissioner for Standards and Programs, has determined that for the first five-year period the amendments are in effect there will be fiscal implications for state government as a result of enforcing or administering the amendments. The proposed amendment to §66.51(a)(11) presents additional potential cost savings to the state by basing the maximum cost of nonconforming instructional materials on the percentage of TEKS elements contained therein. Because it is not possible to project how many publishers will submit nonconforming materials or what percentage would be applied, it is impossible to estimate the savings. There will be no fiscal implications for local government.

Dr. Barnes has determined that for each year of the first five years the amendments are in effect the public benefit anticipated as a result of enforcing the amendments will be a more up-to-date rule with changes that can improve the textbook adoption and distribution process. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the amendments.

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

The amendments are proposed under the Texas Education Code, §7.102(c), which authorizes the SBOE to adopt rules required by TEC, Chapter 31; and under TEC, §31.003, which authorizes the SBOE to adopt rules for the adoption, requisition, distribution, care, use, and disposal of textbooks.

The amendment implements the Texas Education Code, §7.102(c) and Chapter 31.

§66.27.Proclamation, Public Notice, and Schedule for Adopting Instructional Materials.

(a) The State Board of Education (SBOE) shall issue a proclamation calling for new instructional materials according to the review and adoption cycles for foundation and enrichment subjects adopted by the SBOE. The proclamation shall serve as notice to all [ registered ] publishers and to the public that bids to furnish new materials to the state are being invited. The proclamation shall be issued at least 24 months before the scheduled adoption of the new instructional materials by the SBOE.

(b) (No change.)

(c) A draft copy of the proclamation shall be provided to each member of the SBOE and to designated representatives of the publishing industry to solicit input on maximum costs before the SBOE considers the proclamation. In addition, the Texas Education Agency (TEA) shall solicit input from the publishing industry [ hold a public meeting ] regarding the draft proclamation , including maximum costs, [ with representatives of the publishing industry 60-90 days ] prior to the scheduled adoption [ of the proclamation ] by the SBOE. The TEA may use the Internet to facilitate this process. Any revisions recommended as a result of input from [ the meeting with ] publishers shall be presented to the SBOE along with the subsequent draft of the proclamation.

(d) (No change.)

§66.28.Adoption by Reference.

(a) The sections titled "Content Requirements" in the Proclamation 2004 of the State Board of Education Advertising for Bids on Instructional Materials are adopted by this reference as the State Board of Education's official rule governing essential knowledge and skills that shall be used to evaluate instructional materials submitted for consideration under Proclamation 2004. A copy of the Proclamation 2004 of the State Board of Education Advertising for Bids on Instructional Materials is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. Proclamation 2004 of the State Board of Education Advertising for Bids on Instructional Materials can be accessed from the Texas Education Agency official website.

(b) The sections titled "Content Requirements" in the Proclamation 2005 of the State Board of Education Advertising for Bids on Instructional Materials are adopted by this reference as the State Board of Education's official rule governing essential knowledge and skills that shall be used to evaluate instructional materials submitted for consideration under Proclamation 2005. A copy of the Proclamation 2005 of the State Board of Education Advertising for Bids on Instructional Materials is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. Proclamation 2005 of the State Board of Education Advertising for Bids on Instructional Materials may be accessed from the Texas Education Agency official website.

[(a) The sections titled "Content Requirements" in the 2001 Proclamation of the State Board of Education Advertising for Bids on Instructional Materials are adopted by this reference as the State Board of Education's official rule governing essential knowledge and skills that shall be used to evaluate instructional materials submitted for consideration under Proclamation 2001. A copy of the 2001 Proclamation of the State Board of Education Advertising for Bids on Instructional Materials is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701.]

[(b) The sections titled "Content Requirements" in the 2002 Proclamation of the State Board of Education Advertising for Bids on Instructional Materials are adopted by this reference as the State Board of Education's official rule governing essential knowledge and skills that shall be used to evaluate instructional materials submitted for consideration under Proclamation 2002. A copy of the 2002 Proclamation of the State Board of Education Advertising for Bids on Instructional Materials is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701.]

§66.33.State Review Panels: Appointment.

(a) The commissioner of education shall: determine the number of review panels needed to review instructional materials under consideration for adoption, determine the number of persons to serve on each panel, and determine the criteria for selecting panel members. Each appointment to a state review panel shall be made by the commissioner of education with the advice and consent of the State Board of Education (SBOE) member whose district is to be represented. The commissioner of education shall make appointments to state textbook review panels that ensure participation by academic experts in each subject area for which instructional materials are being considered. The term academic expert includes not only university professors but also public school teachers with a strong background in a particular discipline.

(b) - (d) (No change.)

§66.36.State Review Panels: Duties and Conduct.

(a) The duties of each member of a state review panel are to:

(1) evaluate all instructional materials submitted for adoption in each subject assigned to the panel to determine if essential knowledge and skills are covered . Panel members will use State Board of Education-approved procedures for evaluating coverage of the essential knowledge and skills ;

(2) - (4) (No change.)

(b) - (d) (No change.)

(e) Members of each state review panel may be required to be present at the State Board of Education [ (SBOE) ] meeting at which instructional materials are adopted.

§66.48.Statement of Intent to [ To ] Bid Instructional Materials.

(a) Each publisher who intends to offer instructional materials for adoption shall submit a statement of intent to bid and preliminary price information on or before the date specified in the schedule for the adoption process. The statement of intent with preliminary price information shall be accompanied by publisher's data submitted in a form approved by the commissioner of education.

(b) - (e) (No change.)

§66.51.Instructional Materials Purchased by the State.

(a) Instructional materials offered for adoption by the State Board of Education (SBOE).

(1) (No change.)

(2) The official bid price of an instructional material submission may [ shall not ] exceed the price included with the statement of intent to bid [ official sample ] filed under §66.48 of this title (relating to Statement of Intent to Bid Instructional Materials) [ §66.54 of this title (relating to Samples) ].

(3) - (4) (No change.)

(5) Any discounts offered for volume purchases of adopted instructional materials shall be included in price information submitted with statement of intent to bid [ official samples ] and in the official bid.

(6) The official bid filed by a publisher shall include separate prices for each item included in an instructional material submission. The publisher shall guarantee that individual items included in the student and/or teacher component shall be available for local purchase at the individual prices listed for the entire contract period. (Individual component prices are listed to show school districts the replacement costs of components and not to reflect publisher's bid prices for these components.)

(7) (No change.)

(8) Instructional materials submitted for adoption shall be self-sufficient for the period of adoption. Nonconsumable components shall be clearly marked as nonconsumable and replaced by the publisher during the warranty period. Consumable materials included in a student or teacher component of a submission shall be clearly marked as consumable. The cost of such consumables to the state for the entire contract period may [ shall not ] exceed the maximum cost established in the proclamation. School districts may be required to pay the difference between the state maximum cost and the actual cost of the materials.

(9) Student packages of instructional materials offered for adoption shall not include consumable components unless the consumable material is specifically called for by the TEA at a specified maximum cost.

(10) [ (9) ] On or before the deadline established in the schedule of adoption procedures, publishers shall submit correlations of instructional materials submitted for adoption with essential knowledge and skills required by the proclamation. Correlations shall be submitted in a format approved by the commissioner of education.

(11) The SBOE shall reduce the approved maximum cost for each nonconforming instructional material. The reduced maximum cost for each adopted nonconforming instructional material shall be equal to the original maximum cost for that instructional material times a certain percentage. This percentage shall be the same as the percentage of elements of the essential knowledge and skills covered by the instructional material and that was used by the SBOE to determine whether the instructional material should be designated as conforming, nonconforming, or rejected per the Texas Education Code. Each performance description shall count as an independent element of the essential knowledge and skills of the subject. For those courses where a student expectation is not identified, the knowledge and skill will replace the student expectation to determine the percentage of student expectations addressed. The reduced maximum cost for nonconforming instructional materials will apply to both foundation and enrichment courses. For nonconforming instructional materials, the state shall be responsible for payment to the publisher in an amount only equal to the reduced maximum cost. A school district ordering nonconforming instructional materials is responsible for the portion of the cost that exceeds the reduced state maximum cost.

(b) (No change.)

§66.54.Samples.

(a) Samples of student and teacher components of instructional materials submitted for adoption shall be complete as to content and representative of finished[ - ]format [ binding ]. Electronic textbooks submitted for adoption, including Internet-based products, must be representative of the final product and completely functional.

(b) - (c) (No change.)

(d) Two [ Three ] official sample copies of each student and teacher component of an instructional materials submission shall be filed with the TEA on or before the date specified in the schedule for the adoption process. The TEA may request additional samples if they are needed. [ Price information required by the commissioner of education shall be included in each sample. ] In addition, the publisher shall provide a complete description of all items included in a student and teacher component of an instructional materials submission.

(e) One sample copy of each student and teacher component of an instructional materials submission shall be filed with each member of the appropriate state review panel in accordance with instructions provided by the TEA [ on or before the date specified in the schedule for the adoption process ]. To ensure that the evaluations of state review panel members are limited to student and teacher components submitted for adoption, publishers shall not provide correlations, ancillary materials, [ supplementary materials, ] or descriptions of ancillary [ or supplementary ] materials to state review panel members. Texas Education Code, §31.002(3), defines a textbook as a book, a system of instructional materials, a combination of a book and supplementary instructional materials that conveys information to the student or otherwise contributes to the learning process, or an electronic textbook.

(f) - (g) (No change.)

(h) Two [ Three ] complete sample copies of each student and teacher component of adopted instructional materials that incorporate all corrections required by the SBOE shall be filed with the commissioner of education on or before the date specified in the schedule for the adoption process. In addition, each publisher shall file an affidavit signed by an official of the company verifying that all corrections required by the commissioner of education and SBOE have been made. Corrected samples shall be identical to materials that will be provided to school districts after purchase.

(i) (No change.)

§66.60.Public Comment on Instructional Materials.

(a) (No change.)

(b) Public hearing before the SBOE. On a date specified in the schedule for the adoption process, the SBOE shall hold a hearing on instructional materials submitted for adoption that may, at the discretion of the SBOE chair, be designated an official meeting of the SBOE.

(1) Testimony at the hearing shall be accepted from Texas residents and non-residents with priority given to Texas residents [ only from residents of Texas ]. Copies of speeches made at the hearing may be distributed to SBOE members. No other written material may be distributed during the hearings. Persons who wish to testify must notify the commissioner of education on or before the date specified in the schedule for the adoption process. The notice must identify the subject areas and titles about which testimony will be presented. The SBOE may limit the time available for each person to testify.

(2) - (4) (No change.)

(c) Public comment on instructional materials not adopted on schedule. Public comment on instructional materials not adopted by the SBOE on the date specified in the schedule for the adoption process shall be accepted according to the SBOE Operating Rules, §2.10 ( relating to [ concerning ] Public Testimony).

§66.66.Consideration and Adoption of Instructional Materials by the State Board of Education.

(a) Publishers shall file three copies of the official bid form [ the following documents ] with the commissioner of education according to the schedule for the adoption process . [ : ]

[(1) three copies of the official bid form; and]

[(2) appropriate proof of authority to do business in the State of Texas.]

(b) (No change.)

(c) By a vote of a majority of the SBOE, the SBOE shall adopt a list of conforming instructional materials and a list of nonconforming instructional materials under the Texas Education Code, §31.023 and §31.024. Instructional materials may be rejected for:

(1) failure to meet essential knowledge and skills specified in the proclamation. In determining the percentage of elements of the essential knowledge and skill covered by instructional materials, each student expectation [ performance description ] shall count as an independent element of the essential knowledge and skills of the subject;

(2) - (4) (No change.)

(d) (No change.)

§66.69.Ancillary Materials.

"Ancillary materials" are defined by the Texas Education Agency (TEA) as materials that are not listed on the publisher's intent to bid statement but which the publisher plans to provide to districts and open-enrollment charter schools free with their order. A publisher of adopted instructional materials shall provide any ancillary item free of charge or at the same price discount to the same extent that the publisher provides the item free of charge or at a price discount to any state, public school, or school district in the United States. Free or discounted price ancillary items will be distributed equitably to all school districts and open-enrollment [ open enrollment ] charter schools regardless of size. The title of each ancillary item that a publisher will make available to school districts and open-enrollment charter schools at no charge and the ratio at which each item shall be supplied shall be filed with the TEA [ Texas Education Agency (TEA) ] according to the schedule contained in the proclamation. A publisher must notify TEA of any ancillaries provided to school districts and open-enrollment charter schools that are not listed with TEA. All packages of ancillary materials shipped to school districts and open-enrollment charter schools shall be labeled, "Ancillary Materials--Not Reviewed by the State Board of Education."

§66.75. Revisions, Updates, and Substitutions [ Revised Editions ].

(a) A publisher may submit a request to the commissioner of education for approval to substitute a revision, an update, or a later edition of state-adopted instructional materials. A publisher requesting a substitution shall provide the request in writing, along with two copies of the revision, update, or later edition, and one copy of the corresponding state-adopted instructional material. This section includes electronic textbooks and Internet products for which all users receive the same updates or revisions.

(b) (No change.)

(c) Requests [ Except for electronic instructional materials, requests ] for approval of revisions, updates, or substitutions shall not be approved during the first year of the original contract unless the commissioner of education determines that changes in technology, curriculum, or other reasons warrant the revisions, updates, or substitutions .

(d) Publishers submitting requests for approval of revisions, updates, or substitutions must certify in writing that the new material meets the applicable essential knowledge and skills and is free from factual errors.

(e) [ (d) ] Responses from the commissioner of education to revisions, updates, or substitution requests shall be provided within 30 days after receipt of the request.

(f) [ (e) ] All requests [ Requests ] for revisions, updates, or substitutions involving content in [ of ] state-adopted instructional materials [ with revised editions ] must be approved by the State Board of Education (SBOE) prior to their introduction into state-adopted instructional materials. The SBOE may assess penalties as allowed by law against publishers who fail to obtain approval for revisions, updates, or substitutions to content in state-adopted instructional materials prior to delivery of the materials to school districts. [ if the revised edition differs in its coverage of the Texas essential knowledge and skills from the original submission adopted by the SBOE. ]

(g) Publishers shall request approval from the commissioner of education for electronic design changes and/or updates that improve performance, design, and technology capabilities that enhance the operation and usage for students and teachers but do not include changes to Texas essential knowledge and skills coverage or new content.

(h) Publishers must agree to supply the previous version of state-adopted textbooks to school districts that choose to continue using the previous version during the duration of the original contract. This subsection does not apply to online instructional materials.

(i) A publisher of instructional materials may provide alternative formats for use by school districts if:

(1) the content is identical to SBOE-approved content;

(2) the alternative formats include the identical revisions and updates as the original product; and

(3) the cost to the state and school is equal to or less than the cost of the original product.

(j) Alternative formats may be developed and introduced at a time when the subject or grade level is not scheduled in the cycle to be considered for at least two years, in conformance with the procedures for adoption of other state-adopted materials.

(k) Publishers must notify the commissioner of education in writing if they are providing SBOE-approved products in alternative formats.

(l) Publishers are responsible for informing districts of the availability of the alternative formats and for accurate fulfillment of these orders.

(m) The commissioner of education may add alternative formats of SBOE-approved products to the list of available products disseminated to school districts.

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 March 13, 2006.

TRD-200601582

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: April 23, 2006

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


Subchapter C. LOCAL OPERATIONS

19 TAC §§66.104, 66.107, 66.110

The State Board of Education (SBOE) proposes amendments to §66.104 and §66.107 and new §66.110, concerning local operations relating to the state adoption and distribution of instructional materials. The proposed new rule would establish provisions relating to a pilot project created by Senate Bill (SB) 151, 79th Texas Legislature, Regular Session, 2005. The existing rules establish procedures addressing the selection of instructional materials by school districts and local accountability. The proposed amendments would update these rules, as follows.

In §66.104, Selection of Instructional Materials by School Districts, the proposed amendment would revise subsection (k) to delete reference to the state textbook depository. The Electronic Materials and Textbook ordering system, EMAT Online , will allow school districts to ship surplus instructional materials to other school districts.

In §66.107, Local Accountability, the proposed amendment would modify subsections (c) and (f) to reflect closure of the state textbook depository formerly used to redistribute surplus textbooks and the development of a statewide system for distributing surplus textbooks among school districts. Language would be added in subsection (c) to define surplus. Language would be added in subsection (d), as recommended by the TCAT, to emphasize the need to count students actually working at a particular grade level rather than relying solely on PEIMS counts. A cross reference correction would be made in subsection (f). New subsection (h) would be added to implement House Bill (HB) 2072, enacted by the 78th Texas Legislature, 2003. HB 2072 stipulates that school districts shall not require teachers to pay for lost instructional materials.

New §66.110, Pilot Project for Certain Students Enrolled in Courses for Concurrent High School and College Credit, would be added to reflect the requirements of SB 151, 79th Texas Legislature, Regular Session, 2005. The bill, which became effective June 18, 2005, creates a pilot program of dual credit in several junior colleges and waives tuition and fees for educationally disadvantaged high school students. It also entitles the students to free textbooks for the dual credit courses. The bill makes implementation conditional upon sufficient general revenue appropriations in an amount corresponding with the waived tuition and fees.

If funds are appropriated in the future, the proposed new rule would establish provisions relating to student eligibility and entitlement; the SBOE role in setting aside money for textbooks; and school district responsibilities for making payments, maintaining inventory, and reporting enrollment.

Susan Barnes, associate commissioner for standards and programs, has determined that for the first five-year period the amendments and new section are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments or new section.

Dr. Barnes has determined that for each year of the first five years the amendments and new section are in effect the public benefit anticipated as a result of enforcing the amendments and new section will be a more up-to-date rule with changes that can improve the textbook adoption and distribution process. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the amendments or new section.

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

The amendments and new section are proposed under the Texas Education Code, §7.102(c), which authorizes the SBOE to adopt rules required by TEC, Chapter 31; under TEC, §31.003, which authorizes the SBOE to adopt rules for the adoption, requisition, distribution, care, use, and disposal of textbooks; and under TEC, §31.031, which requires the SBOE to adopt rules in accordance with which a school district shall pay the costs of textbooks for students enrolled in junior college courses for concurrent high school and higher education academic credit under the pilot project.

The amendments and new section implement the Texas Education Code, §7.102(c) and Chapter 31.

§66.104.Selection of Instructional Materials by School Districts.

(a) Each local board of trustees of a school district or governing body of an open-enrollment charter school shall adopt a policy for selecting instructional materials. Final selections must be recorded in the minutes of the board of trustees or governing body.

(b) If instructional materials priced above the maximum cost to the state established in the proclamation are selected by a school district or open-enrollment charter school, the school district or open-enrollment charter school is responsible for paying to the publisher the portion of the cost above the state maximum.

(c) If instructional materials for subjects in the enrichment curriculum that are not on the conforming or nonconforming lists adopted by the State Board of Education (SBOE) are selected by a school district or open-enrollment charter school, the state shall be responsible for paying the district an amount equal to the lesser of:

(1) 70% of the cost to the district of the instructional materials. The applicable quota for adopted materials in the subject shall be the basis for determining instructional materials needed by the district; or

(2) 70% of the maximum cost to the state established for the subject. The applicable quota for adopted materials in the subject shall be the basis for determining instructional materials needed by the district.

(d) A school district or open-enrollment charter school that selects non-adopted instructional materials for enrichment subjects is responsible for the portion of the cost of the materials not eligible for payment by the state under subsection (c) of this section. The minutes of the board of trustees or governing body meeting at which such a selection is ratified shall reflect the agreement of the school district or open-enrollment charter school to bear responsibility for the portion of the cost not eligible for payment by the state. A school district or open-enrollment charter school that selects non-adopted instructional materials for enrichment subjects also bears responsibility for providing braille and/or large type versions of the non-adopted instructional materials.

(e) Funds paid by the state under subsection (c) of this section shall be used only for purchasing the non-adopted instructional materials selected and ratified by the board of trustees or governing body.

(f) Non-adopted instructional materials selected and purchased under subsection (c) of this section shall be used by the school district or open-enrollment charter school during the contract period for conforming and nonconforming instructional materials adopted by the SBOE in the subject area.

(g) A report listing instructional materials selected for use in a school district or open-enrollment charter school shall be transmitted to the Texas Education Agency (TEA) no later than April 1 each year.

(h) Only instructional materials ratified by the board of trustees or governing body shall be furnished by the state for use in any school district or open-enrollment charter school. Selections certified to the TEA shall be final and, therefore, shall not be subject to reconsideration during the original contract period or readoption contract periods covering the instructional materials selected.

(i) Except as otherwise provided by statute, requisitions submitted before the first day of school shall be approved based on the maximum number of students enrolled in the district or open-enrollment charter school during the previous school year and/or registered to attend the district during the next school year. Requisitions submitted after the first day of school shall be approved based on the actual number of students enrolled in the district when the requisition is submitted. If two or more titles are selected in a subject, requisitions may be made for a combined total of the selected titles.

(j) Instructional materials requisitioned by, and delivered to, a school district or an open-enrollment charter school shall be continued in use during the contract period or periods of the materials. A school district may not return copies of one title to secure copies of another title in the same subject.

(k) If a school district or open-enrollment charter school does not have a sufficient number of copies of a textbook used by the district or school for use during the following school year, and a sufficient number of additional copies will not be available from the publisher's depository or the publisher within ten business days prior to the opening day of school, the school district or school is entitled to be reimbursed from the state textbook fund at a rate not to exceed the actual cost of the used textbook, or the state maximum cost, whichever is less, for the purchase of a sufficient number of used adopted textbooks. [ : ]

[ (1) be reimbursed from the state textbook fund at a rate not to exceed the actual cost of the used textbooks, or the state maximum cost, whichever is less, for the purchase of a sufficient number of used adopted textbooks; or ]

[ (2) return currently used textbooks to the commissioner of education in exchange for sufficient copies, if available from the state textbook depository, of other textbooks on the conforming or nonconforming list to be used during the following school year. ]

(l) In making a requisition, a school district or open-enrollment charter school may requisition textbooks on the conforming and nonconforming list for grades above the grade level in which the student is enrolled, except that the total quantity of textbooks requisitioned may not exceed a school district's eligibility quota for that subject.

(m) Adopted instructional materials shall be supplied to a pupil in special education classes as appropriate to the level of the pupil's ability and without regard to the grade for which the instructional material is adopted or the grade in which the pupil is enrolled.

(n) A school district or open-enrollment charter school may order replacements for textbooks that have been lost or damaged directly from the textbook depository or the textbook publisher or manufacturer if the textbook publisher or manufacturer does not have a designated textbook depository in this state, in accordance with §66.78(a) of this title (relating to Delivery of Adopted Instructional Materials).

(o) School districts or open-enrollment charter schools shall not be reimbursed from state funds for expenses incurred in local handling of textbooks.

(p) Selection and use of ancillary materials provided by publishers under §66.69 of this title (relating to Ancillary Materials) is at the discretion of each local board of trustees or governing body.

§66.107.Local Accountability.

(a) Each school district or open-enrollment charter school shall conduct an annual physical inventory of all currently adopted instructional materials that have been requisitioned by, and delivered to, the district. The results of the inventory shall be recorded in the district's files. Reimbursement and/or replacement shall be made for all instructional materials determined to be lost.

(b) Each textbook, other than an electronic textbook, must be covered by the student under the direction of the teacher.

(c) After the beginning of every school year, each school district or open-enrollment charter school shall determine if it has surplus instructional materials for any subject area/grade level, based on its current enrollment for the subject area/grade level. In accordance with the Educational Materials and Textbooks (EMAT) online ordering system, surplus is defined as follows. For courses that use textbooks that are in the first year of adoption, any textbook in excess of 110% of enrollment shall be considered surplus. For courses that use textbooks that are in the second or later years of adoption, any textbook in excess of 120% of enrollment shall be considered surplus. Overages that exceed these definitions should be entered into the EMAT Online Adjust Surplus Screen, except that instructional materials that are needed for the following school year are not considered surplus and should not be entered into the Adjust Surplus Screen. Instructional materials determined by the school district or open-enrollment charter school to be surplus-to-quota shall be reported to the Texas Education Agency (TEA) by October 1 of each year [ returned to the State Textbook Depository ] in accordance with instructions provided by the TEA [ Texas Education Agency ]. A school district or open-enrollment charter school is entitled to retain surplus-to-quota instructional materials only when data approved by the TEA [ Texas Education Agency ] indicate that students will be enrolled in the subject and a need for the surplus-to-quota instructional materials exists.

(d) When placing orders for instructional materials, school districts and open-enrollment charter schools shall report enrollments as follows:

(1) Annual orders for instructional materials. Enrollments shall be reported based on the maximum number of students enrolled in the district or open-enrollment charter school during the previous school year and/or registered to attend the district during the next school year; and

(2) Supplemental orders for instructional materials. Enrollments shall be reported based on the actual number of students enrolled in the district when the order is submitted , adjusted for students reported as working above or below grade level .

(e) The TEA [ Texas Education Agency ] assumes that enrollments reported by a school district or open-enrollment charter school at the time an order for instructional materials is placed are accurate.

(f) A school district or open-enrollment charter school that orders instructional materials in excess of its eligibility by reporting enrollments above enrollments described in subsection (d) [ (c) ](1) and (2) of this section enters into a contract with the state to purchase the instructional materials supplied that exceed the school district or open-enrollment charter school's eligibility for the subject area/grade level. A school district or open-enrollment charter school may cancel the contract to purchase instructional materials supplied in excess of its eligibility by immediately notifying the TEA of the surplus and posting the surplus in accordance with instructions provided by the TEA. [ returning the excess instructional materials to the State Textbook Depository. ] If prior approval is received, surplus [ excess ] instructional materials may [ also ] be returned to the publisher's approved depository or placed into statewide surplus inventory in accordance with instructions from the TEA . A school district or open-enrollment charter school that fails to notify the TEA of surplus [ retains excess ] instructional materials for more than six months after the beginning of the school year shall reimburse the state at the full price for the surplus [ excess ] instructional materials.

(g) All textbooks must be turned in at the end of the school year or when the student withdraws from school.

(h) The board of trustees of a school district may not require an employee of the district to pay for a textbook or instructional technology that is stolen, misplaced, or not returned by a student.

§66.110.Pilot Project for Certain Students Enrolled in Courses for Concurrent High School and College Credit.

(a) A student in Grade 11 or 12 who attends an institution of higher education and is enrolled in a dual credit course for which the student is entitled to simultaneously receive both high school and college credit under the pilot project established in Texas Education Code (TEC), §54.2161, is entitled to a free textbook for the dual credit course.

(b) The State Board of Education (SBOE) will annually set aside out of the available school fund an amount sufficient for each school district with one or more students entitled to free textbooks under this pilot project for the following school year. In accordance with TEC, §31.021, the commissioner of education will provide an estimate of costs to the SBOE.

(c) As provided in TEC, §54.2161(c) and §31.031(b)-(c), school districts will pay the costs of the textbooks for students participating in this pilot project. If an institution of higher education (IHE) provides a textbook to a student under TEC, §54.2161, the school district shall reimburse the IHE for the cost of the textbook. The amount of reimbursement applies to the actual textbook cost or state maximum cost, whichever is lower. The reimbursement amount is calculated at one textbook per student per course and does not include additional textbooks, workbooks, taxes, or teacher material.

(d) The board of trustees of the school district in which a student is enrolled is the legal custodian of a textbook provided under this pilot.

(e) A school district participating in this pilot project is required to report annually to the Texas Education Agency the enrollment in these dual credit courses. A district is also required to track and maintain an inventory of these textbooks, and students are required to return the textbooks to the district at the end of the concurrent college course.

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 March 13, 2006.

TRD-200601583

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: April 23, 2006

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


Subchapter D. SPECIAL INSTRUCTIONAL MATERIALS

19 TAC §66.121

The State Board of Education (SBOE) proposes amendment to §66.121, concerning special instructional materials. The rule establishes procedures addressing the distribution and control of braille and large type instructional materials. The proposed amendments would update the rule and add language to make educational materials available for blind or visually impaired parents.

In subsection (e), the proposed amendment would reflect the closing of the state textbook depository and implementation of a new process for redistributing braille and large type instructional materials.

New subsection (h) would add language to make educational materials available for blind or visually impaired parents in accessible formats such as braille and large type. In September 2005, the American Council of the Blind of Texas sent the commissioner of education a resolution emphasizing that "blind or visually impaired parents want to play an integral part in their sighted children's education" and requested that the Texas Education Agency (TEA) make educational materials available for blind or visually impaired parents in accessible formats such as braille and large type. Since the mid-1990s, the TEA has provided braille versions of state adopted textbooks to blind or visually impaired parents of sighted public school students, when requested. The number of requests has been very small and there have been no problems associated with providing these materials to parents who are blind or visually impaired. Staff has determined that the requested materials can be made available without a need for additional resources.

Susan Barnes, associate commissioner for standards and programs, has determined that for the first five-year period the amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendment.

Dr. Barnes has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the amendment will be establishing in rule the existing policy of making available to blind or visually impaired parents the educational materials used by their sighted children. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the amendment.

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

The amendment is proposed under the Texas Education Code, §7.102(c), which authorizes the SBOE to adopt rules required by TEC, Chapter 31; and under TEC, §31.003, which authorizes the SBOE to adopt rules for the adoption, requisition, distribution, care, use, and disposal of textbooks.

The amendment implements the Texas Education Code, §7.102(c) and Chapter 31.

§66.121.Special Instructional Materials.

(a) All laws and rules applying to instructional materials provided to sighted pupils that are not in conflict with the Texas Education Code, §31.028, or this section shall apply to the distribution and control of braille and large type instructional materials.

(b) Publishers shall grant permission to the state to have adopted instructional materials transcribed into braille, large type, and audiotape without penalty or royalty.

(c) On or before the deadline specified in the schedule for the adoption process, each publisher of newly adopted instructional materials shall provide computerized files as specified in the proclamation to be used for producing braille or other versions of materials to be used by students with disabilities. All information contained in adopted instructional materials shall be included on the computerized files. Computerized files may be copied and distributed to a school district, upon request, for instructional use with a student with disabilities who requires the use of computerized instructional materials, pursuant to an individualized plan developed for the student under the Rehabilitation Act, §504; the Americans with Disabilities Act; or the Individuals with Disabilities Education Act.

(d) The state shall make suitable student instructional materials available in large type. The commissioner of education shall develop specifications for large type instructional materials and notify publishers of student instructional materials suitable for production in large type. The publisher may elect to supply the large type materials, or the commissioner of education may enter into contracts for producing large type materials.

(e) Gifts of instructional materials for educating students who are blind or visually impaired tendered by individuals, groups, or school district officials may be accepted by the State Board of Education [ (SBOE) ] and shall become state property and subject to the same regulations as similar items purchased with state funds. Gift materials may be shipped by Free Matter for the Blind and Visually Handicapped to the Special Textbook Redistribution Center or other location designated by the Texas Education Agency (TEA) [ freight charges collect to the state depository ] .

(f) Copies of adopted instructional materials in braille and large type needed by a person who is blind or visually impaired to carry out the duties of a teacher in the public schools of this state shall be furnished without cost. The materials are to be loaned to the public school districts as long as needed and are to be returned to the state when they are no longer needed. Materials in the medium needed by the teacher may be requisitioned by a textbook coordinator after the superintendent of schools has certified to the commissioner of education:

(1) the name of the teacher;

(2) the grade or subject taught; and

(3) the fact of the teacher's visual impairment.

(g) Large type instructional materials shall meet or exceed the specifications in §66.7 of this title (relating to Manufacturing Standards and Specifications) and any additional specifications that may be prescribed.

(h) Copies of adopted instructional materials in braille, large type, or in an electronic file that are requested by a parent who is blind or visually impaired shall be furnished without cost. Materials in the medium needed by the parent may be requisitioned by a textbook coordinator. Requests for electronic files will be filled by the TEA after the parent signs and the TEA receives a statement, through the appropriate school district, promising that the parent will safeguard the security of the files and observe all current copyright laws including those that forbid reproduction of the files and their transfer to other parties. All braille and large type textbooks and electronic files with educational content that have been provided to parents who are blind or visually impaired must be returned to the local school district at the end of the school year for reuse.

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 March 13, 2006.

TRD-200601584

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Earliest possible date of adoption: April 23, 2006

For further information, please call: (512) 475-4595