TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 74. CURRICULUM REQUIREMENTS

SUBCHAPTER AA. COMMISSIONER'S RULES ON COLLEGE AND CAREER READINESS

19 TAC §74.1007

The Texas Education Agency (TEA) proposes an amendment to §74.1007, concerning college and career readiness. The amendment would modify the guidelines for the annual calculation of the College, Career, or Military Readiness (CCMR) Outcomes Bonus to implement House Bill (HB) 1147 and HB 1525, 87th Texas Legislature, Regular Session, 2021.

BACKGROUND INFORMATION AND JUSTIFICATION: HB 3, 86th Texas Legislature, 2019, established the CCMR Outcomes Bonus. The CCMR Outcomes Bonus allows TEA to annually award districts funds based on a district's number of annual graduates in excess of the statewide 25th percentile for CCMR, disaggregated by economically disadvantaged status and by enrollment in a special education program under Texas Education Code (TEC), Subchapter A, Chapter 29.

HB 1147, 87th Texas Legislature, Regular Session, 2021, amended TEC, §48.110, by adding enlistment in the Texas National Guard as an additional way for graduates to earn CCMR credit.

HB 1525, 87th Texas Legislature, Regular Session, 2021, also amended TEC, §48.110, by adding earning an associate degree as an additional way for graduates to earn CCMR credit.

The proposed amendment to §74.1007 would include the two additional CCMR indicators for graduates as required by HB 1147 and HB 1525.

FISCAL IMPACT: Jeff Cottrill, deputy commissioner for governance and accountability, has determined that for the first five-year period the proposal is in effect there are no additional costs to state or local government, including school districts and open-enrollment charter schools, required to comply with the proposal.

LOCAL EMPLOYMENT IMPACT: The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.

SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

COST INCREASE TO REGULATED PERSONS: The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045.

TAKINGS IMPACT ASSESSMENT: The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

GOVERNMENT GROWTH IMPACT: TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would expand an existing regulation by adding two new CCMR Outcomes Bonus indicators to implement the requirements of HB 1147 and HB 1525, 87th Texas Legislature, Regular Session, 2021.

The proposed rulemaking would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not create a new regulation; would not limit or repeal an existing regulation; would not increase or decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.

PUBLIC BENEFIT AND COST TO PERSONS: Dr. Cottrill has determined that for each year of the first five years the proposal is in effect, the public benefit anticipated as a result of enforcing the proposal would be implementing statute by rewarding districts for their work in furthering the goal set under the state's master plan for higher education developed under TEC, §61.051, for at least 60% of all adults aged 25 to 34 in Texas to achieve a postsecondary degree or workforce credential by 2030. There is no anticipated economic cost to persons who are required to comply with the proposal.

DATA AND REPORTING IMPACT: The proposal would have no data and reporting impact.

PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: TEA has determined that the proposal would not require a written report or other paperwork to be completed by a principal or classroom teacher.

PUBLIC COMMENTS: The public comment period on the proposal begins October 22, 2021, and ends November 22, 2021. A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register on October 22, 2021. A form for submitting public comments is available on the TEA website at https://tea.texas.gov/About_TEA/Laws_and_Rules/Commissioner_Rules_(TAC)/Proposed_Commissioner_of_Education_Rules/.

STATUTORY AUTHORITY. The amendment is proposed under Texas Education Code (TEC), §48.110(b)(1), (2), and (3), which require the commissioner to determine the threshold percentage for college, career, or military readiness for annual graduates who are educationally disadvantaged, not educationally disadvantaged, and annual graduates who are enrolled in a special education program under TEC, Subchapter A, Chapter 29; TEC, §48.110(c), which requires the commissioner to annually determine the minimum number of annual graduates in each cohort as described in subsection (b) who would have to demonstrate college, career, or military readiness as described in Subsection (f) in order for the district to achieve a percentage of college, career, or military readiness for that cohort equal to the threshold percentage established for that cohort under subsection (b); TEC, §48.110(f)(1)(A), as amended by House Bill (HB) 1525, 87th Texas Legislature, Regular Session, 2021, which requires the commissioner to establish by rule the time period by which an annual graduate must enroll at a postsecondary educational institution or earn an associate degree in order to demonstrate college readiness; TEC, §48.110(f)(1)(B), as added by HB 1525, 87th Texas Legislature, Regular Session, 2021, which requires the commissioner to establish by rule the time period by which an annual graduate must earn an associate degree from a postsecondary educational institution in order to demonstrate college readiness; TEC, §48.110(f)(2)(B), which requires the commissioner to establish by rule the time period by which an annual graduate must earn an industry-accepted certification in order to demonstrate career readiness; TEC, §48.110(f)(3)(B), as amended by HB 1147, 87th Texas Legislature, Regular Session, 2021, which requires the commissioner to establish by rule the time period by which an annual graduate must enlist in the armed forces of the United States or the Texas National Guard in order to demonstrate military readiness; and TEC, §48.110(g), which requires the commissioner to establish threshold percentages under Subsection (b) using the 25th percentile of statewide college, career, or military readiness as described in Subsection (f) for the cohort of annual graduates during the 2016-2017 school year.

CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §48.110.

§74.1007.College, Career, or Military Readiness Outcomes Bonus.

(a) The standards and thresholds established by the commissioner of education under Texas Education Code (TEC), §48.110(b)(1)-(3); (c); (f)(1)(A) and (B), (2)(A) and (B), and (3)(A) and (B); and (g), shall be used to calculate annual college, career, or military readiness outcomes bonuses for school districts and open-enrollment charter schools.

(b) The threshold percentages of annual graduates who demonstrate college, career, or military readiness as provided in subsection (c) of this section for each of the following cohorts are as follows:

(1) 11% of annual graduates who are educationally disadvantaged;

(2) 24% of annual graduates who are not educationally disadvantaged; and

(3) 0% of annual graduates who are enrolled in a special education program under TEC, Chapter 29, Subchapter A, regardless of whether the annual graduates are educationally disadvantaged.

(c) An annual graduate demonstrates:

(1) college readiness if the annual graduate:

(A) both:

(i) [(A)] achieves college readiness standards used for accountability purposes under TEC, Chapter 39, on the ACT, the SAT, or an assessment instrument designated by the Texas Higher Education Coordinating Board (THECB) under TEC, §51.334; and

(ii) enrolls at a postsecondary educational institution by the tenth instructional day of the fall semester immediately following high school graduation; or

(B) [meets one of the following requirements:]

[(i)] earns an associate degree by August 31 immediately following high school graduation; [or]

[(ii) enrolls at a postsecondary educational institution by the tenth instructional day of the fall semester immediately following high school graduation;]

(2) career readiness if the annual graduate:

(A) achieves college readiness standards used for accountability purposes under TEC, Chapter 39, on the ACT, the SAT, or an assessment instrument designated by THECB under TEC, §51.334; and

(B) earns an industry-based certification or a level I or level II certificate by August 31 immediately following high school graduation; and

(3) military readiness if the annual graduate enlists in the armed forces of the United States or the Texas National Guard by December 31 immediately following high school graduation.

(d) Each year, the commissioner shall determine for each school district and open-enrollment charter school the minimum number of annual graduates in each cohort described by subsection (b) of this section who would have to demonstrate college, career, or military readiness as described by subsection (c) of this section in order for the district or charter school to achieve a percentage of college, career, or military readiness for that cohort equal to the threshold percentage established for that cohort under subsection (b) of this section. Each year, the number of annual graduates in excess of the threshold percentage for each cohort provided in subsection (b)(1)-(3) of this section will be used to calculate college, career, or military readiness outcomes bonus funding for the applicable fiscal year.

(e) Each June, beginning in June 2021, the Texas Education Agency (TEA) shall supply school districts and open-enrollment charter schools with a preliminary College, Career, or Military Readiness Outcomes Bonus Student Listing that provides the data used by TEA to calculate preliminary funding for the upcoming school year.

(1) Upon release of the preliminary listing, school districts and open-enrollment charter schools have 30 days to file an appeal of student-level data. School districts and open-enrollment charter schools must file an appeal and submit all supporting documentation within 30 days of the release of the preliminary listing.

(2) An appeal must be filed by following the instructions provided with the release of the student listing. The basis for appeals should be a data or calculation error attributable to TEA or a testing contractor.

(3) The appeals process is not a permissible method to correct data that were inaccurately reported to TEA by the school district or open-enrollment charter school. A school district or open-enrollment charter school that submits inaccurate data must follow the procedures and timelines for resubmitting data as specified in the Texas Education Data Standards. Appeals from school districts and open-enrollment charter schools that missed data resubmission window opportunities will be denied.

(4) Decisions regarding appeals are final and not subject to further appeal.

(5) Due to the delay in data availability for enrollment in institutions of higher education (IHEs), preliminary College, Career, or Military Readiness Outcomes Bonus Student Listings will not include IHE enrollment. For 2019 annual graduates, TEA will use a two-year IHE enrollment average for each school district. Beginning with 2020 annual graduates, TEA will use a three-year IHE enrollment average for each school district.

(6) Each year, upon receipt of IHE enrollment data, TEA will reconcile College, Career, or Military Readiness Outcomes Bonus Student Listings with actual enrollment data for the applicable graduating class. Upon reconciliation, the college, career, or military readiness outcomes bonus funding will be updated for the applicable fiscal year.

(f) Due to discrepancies between annual enlistment counts for Texas military enlistees aged 17-19 released by the United States Department of Defense and Texas Student Data System Public Education Information Management System military enlistment data for 2017 and 2018 annual graduates, TEA will exclude military enlistment data from College, Career, or Military Readiness Outcomes Bonus Student Listings as provided in subsection (e) of this section until such data can be obtained directly from the United States Armed Forces. Upon receipt of such data, previously released final College, Career, or Military Readiness Outcomes Bonus Student Listings will be updated to include military enlistment data. When the final College, Career, or Military Readiness Outcomes Bonus Student Listings are updated, as provided in this subsection, the number of annual graduates in excess of the threshold percentage for each cohort provided in subsection (b)(1)-(3) of this section will be updated and used to recalculate college, career, or military readiness outcomes bonus funding for the 2019-2020 fiscal year and applicable future fiscal years.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 11, 2021.

TRD-202104011

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Earliest possible date of adoption: November 21, 2021

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


CHAPTER 129. STUDENT ATTENDANCE

SUBCHAPTER AA. COMMISSIONER'S RULES

19 TAC §129.1025

The Texas Education Agency (TEA) proposes an amendment to §129.1025, concerning student attendance accounting. The proposed amendment would adopt by reference the 2021-2022 Student Attendance Accounting Handbook. The handbook provides student attendance accounting rules for school districts and charter schools.

BACKGROUND INFORMATION AND JUSTIFICATION: TEA has adopted its student attendance accounting handbook in rule since 2000. Attendance accounting evolves from year to year, so the intention is to annually update §129.1025 to refer to the most recently published student attendance accounting handbook.

Each annual student attendance accounting handbook provides school districts and charter schools with the Foundation School Program (FSP) eligibility requirements of all students, prescribes the minimum requirements of all student attendance accounting systems, lists the documentation requirements for attendance audit purposes, and details the responsibilities of all district personnel involved in student attendance accounting. TEA distributes FSP resources under the procedures specified in each current student attendance accounting handbook. The final version of the student attendance accounting handbook is published on the TEA website. A supplement, if necessary, is also published on the TEA website.

The proposed amendment to §129.1025 would adopt by reference the student attendance accounting handbook for the 2021-2022 school year.

Significant changes to the 2021-2022 Student Attendance Accounting Handbook would include the following.

Section 1, Overview

Texas Education Code (TEC), Chapter 48, specifically §48.008, establishes the requirements for adopting an attendance accounting system and reporting attendance accounting data through Texas Student Data System (TSDS) Public Education Information Management System (PEIMS). The following changes implement reporting requirements for attendance and funding.

Language would be revised to state that a school district may serve any student in any capacity or setting as long as serving the student does not interfere with the education of funding-eligible students.

Language would be revised to update the statutory authority amended by House Bill 3, 86th Texas Legislature, 2019, from TEC, Chapter 42, to TEC, Chapter 48, throughout the handbook.

Section 2, Audit Requirements

TEC, Chapter 48, specifically §48.270, establishes the requirements for violation of presenting reports that contain false information. TEC, §44.008, authorizes the commissioner to require audit reports to be submitted for review and analysis. TEC, §44.010, allows for the review of budget, fiscal, and audit reports to determine whether all legal requirements have been met. The following changes implement reporting for audit requirements to account for attendance and funding.

Language would be revised to state that if the district uses a system that is almost entirely functional without the use of paper documents, it must meet the additional standards established in the subsection addressing the Paperless Attendance Accounting Systems or the district must generate and retain paper copies of attendance reports and records.

Language would be revised to exclude the career and technical education (CTE) code from the subsection addressing student detail reports.

Language would be added to state that board-approved local policy that defines the instruction methods (i.e., synchronous, asynchronous, or a combination of both) should include the official attendance times for synchronous instruction. Additionally, if the board policy indicates approval for asynchronous method, the local educational agency (LEA) must create an asynchronous instructional plan.

Language would be added to state that documentation of a student's instructional schedule, whether synchronous or asynchronous, that includes the minimum amount of instructional time to meet the two-through-four rule

Section 3, General Attendance Requirements

TEC, §25.081, and Chapter 48, specifically §48.005, establish the general parameters for attendance and school operation. The following changes would implement reporting requirements for attendance and funding.

Language would be deleted to remove the requirement of charter schools to serve students in the geographic boundary authorized in the charter school's charter agreement.

Language would be revised to state that if a student repeats a course for which the student has already received credit, the time that the student spends taking the course for a subsequent time does not count toward the accumulation of attendance hours for FSP funding purposes unless the course is being repeated due to a student's parent electing for the student to repeat a course from the 2020-2021 school year. This provision will expire on September 1, 2022.

Language would be revised to state that students can generate ADA funding if they are eligible to graduate but continue their education to meet the requirements of a higher high school diploma standard or are enrolled in a TEA-designated Pathways in Technology Early College High School (P-TECH) and coded in TSDS PEIMS (E1612).

Language would be deleted to remove the provision that a charter school may enroll a child of an employee's regardless of geographic boundary.

Language would be revised to provide parents with contact information to apply for a school certificate that can be used for school purposes but is not a legal substitute for a certified copy of a birth certificate.

Language would be added to state that a student may be considered present for FSP purposes if the student is absent as the result of a serious or life-threatening illness or related treatment that makes the student's attendance infeasible. Documentation from a health care professional licensed, certified, or registered to practice in Texas must be provided that specifies the student's illness and the anticipated period of the student's absence relating to the illness or related treatment.

Language would be revised to state that a student may be considered present for FSP purposes if the student misses school for the purpose of visiting a driver's license office.

Language would be revised to state that demographic and special program information for all students served in the district should be reported through the TSDS PEIMS Fall submission.

Language would be revised to state that for General Education Homebound (GEH), a student must have a medical condition that is documented by a physician licensed to practice in the United States. Except in cases of medically fragile students, potential medical conditions or concerns that student may develop medical conditions do not constitute grounds for GEH program eligibility. In cases where students are medically able to receive more than the required minimum four hours of face-to-face instruction, LEAs must provide additional remote instruction. Please note that concurrent instruction is not allowed.

Language would be revised to state that supplementing in-person homebound instruction with virtual instruction is encouraged for students in GEH programs where medically appropriate. Virtual instruction provided to students in GEH programs could not be provided by a teacher concurrently instructing students in person.

Language would be added to include tutorial time that occurs before or after school in the operational minute calculation. If transportation is provided, the district must ensure that before- and/or after-school transportation options are available to students who wish to participate in the tutorial instruction.

Language would be revised to state that school districts and charter schools that do not, as part of the TSDS PEIMS Summer submission, report their calendars to TEA until after the school year is complete must ensure that they have the required number of minutes/days built into their school board-approved calendars.

Language would be added to note that prior year documentation from the 2019-2020 or 2020-2021 school year may be used in the following manner. If the 2019-2020 school year attendance report is selected, use only the average of the first four six-weeks attendance reporting periods due to the closures during the fifth and sixth six weeks of the 2019-2020 school year. Use the TSDS PEIMS Superintendent's Report of Student Attendance 2019-2020 Summer Collection report (PDM3-130-001). If the 2020-2021 school year attendance report is selected, show the overall average attendance rate for the year for the district or applicable campus.

Language would be revised with reference to time in situational instances shown in the table regarding closure for bad weather or other issue of health and safety. Also, language would be revised in agency policy in the same table.

Language would be revised to state that one program that allows for state funding of school days beyond the 75,600 minutes that make up the state funding year provides extended school year (ESY) services for certain students receiving special education services.

Language would be revised to state that beginning in the 2020-2021 school year, an additional instructional-days incentive became available to district or charter school campuses that offer up to an additional 30 days of half-day instruction for students enrolled in prekindergarten (Pre-K) through Grade 5.

Language would be revised to state that participating campuses receive half-day funding for students attending each additional day and that additional days funding started on September 1, 2020.

Language would be revised to state the Additional Days School Year (ADSY) program allows for additional half-day funding for each school day beyond the 180 days, up to 210 days. Also, language would be revised to show that no public school will be funded in excess of a 180-day calendar except for the schools that meet all the criteria for the additional days incentive funding that became available starting in the 2020-2021 school year.

Language would be revised to state that districts with tracks ending after June 16, 2022, which is the due date for initial TSDS PEIMS Summer submission, must still submit their initial TSDS PEIMS Summer submissions by that due date. Resubmissions can be delayed; however, resubmissions will not be processed after August 18, 2022.

Section 4, Special Education

TEC, Chapter 48, specifically §48.102, authorizes funding for special education in certain circumstances. TEC, §48.004, authorizes the commissioner to require reports that may be necessary to implement and administer the FSP. The following changes would implement reporting for special education to account for attendance and funding.

Language would be revised to cite 19 TAC §89.1070 in the Special Education section, including the foot notes.

Language would be revised to state that a full individual and initial evaluation must be completed, and the district must meet the requirements in 34 CFR, §300.323 (f)(2), if appropriate, within 30 days of the evaluation report.

Language would be revised to state that, once an admission, review, and dismissal (ARD) committee determines that a student is no longer a child with a disability, the student is dismissed from special education and related services, which also occurs when a parent revokes consent in writing for a student's receipt of special education services.

Language would be revised to state that the ARD committee must provide the effective date of dismissal of special education and related services to the district, and the district must record this date in the attendance accounting system.

Language would be revised to state that to be placed in the special education homebound setting, a student must have a current medical condition that is documented by a physician except in cases of severely immuno-compromised students. The language would clarify that potential medical conditions or concerns that students may develop medical conditions would not constitute grounds for special education homebound program eligibility.

Language would be revised to state that supplementing in-person homebound instruction with virtual instruction is encouraged for students in special education homebound programs where medically appropriate and to the extent that such instruction is consistent with students' individualized education programs (IEPs). Virtual instruction provided to students in special education homebound programs could not be provided by a teacher concurrently instructing students in person.

Language would be added to show that a student who is not eligible for Pre-K may be served in the Pre-K classroom if the ARD committee determines that this is the appropriate setting based on the student's IEP.

Language would be revised in the coding chart to state that ineligible Pre-K students may be served in the Pre-K classroom if the ARD committee deems it appropriate and space is available. However, eligible Pre-K students should not be denied enrollment due to an ineligible Pre-K student's enrollment.

Language would be revised to state that as a result of Senate Bill (SB) 2066, 87th Texas Legislature, Regular Session, 2021, the term "emergent bilingual student" replaces the term "limited English proficient (LEP) student" used in TEC, Chapter 29, Subchapter B. This also resulted in a change to the term "English learner (EL)" used in 19 TAC Chapter 89, Subchapter B. These terms describe the same group of Texas students. An emergent bilingual student is in the process of acquiring English and has another language as the student's primary or home language. As PEIMS is revised to reflect these changes, the terms "emergent bilingual (EB)" and "English learner (EL)" may be bridged as EB/EL, and the data element names may still indicate the use of LEP during the transition. It is important to note that "English learner" is still used in federal regulations and guidance.

Section 5, Career and Technical Education (CTE)

TEC, Chapter 48, including §48.106, authorizes funding for CTE in certain circumstances. TEC, Chapter 29, Subchapter F, establishes general parameters for CTE programs. TEC, §48.004, authorizes the commissioner to require reports as may be necessary to implement and administer the FSP. The following change would implement reporting for CTE to account for attendance and funding.

Language would be deleted to remove eligibility of a district to remove funding in the amount of $50 for students enrolled in two or more CTE courses.

Language would be revised regarding computing contact hours for CTE weighted funding and the tiers.

Section 6, Bilingual/English as a Second Language (ESL)

TEC, Chapter 48, specifically §48.105, authorizes funding for bilingual or special language programs in certain circumstances. TEC, Chapter 29, Subchapter B, establishes general parameters for bilingual and special language programs. TEC, §48.004, authorizes the commissioner to require reports as may be necessary to implement and administer the FSP. The following changes would implement reporting for bilingual and special language programs to account for attendance and funding.

Language would be revised to state that when parents indicate the use of more than one language in response to question 1 and/or question 2 of the home language survey, it is the district's responsibility to contact the parent to determine which language is used most of the time.

Language would be revised to state that if a language other than English is indicated on any of the required questions on the survey, the district must assess the student for English language proficiency.

Language would be deleted to remove the term "limited English proficiency."

Language would be added to state that as a result of SB 2066, 87th Texas Legislature, Regular Session, 2021, the term "emergent bilingual student" replaces the term "LEP student" used in TEC, Chapter 29, Subchapter B. See the previous description of changes to Section 4 for an explanation of these changes.

Language would be revised to state that the date of the student's enrollment from another Texas public school is the start date for continued program services if the student has been previously identified and served in Texas.

Language would be revised to provide the link where the appropriate codes are available.

Language would be revised to state that to be eligible for participation in the bilingual or English as a second language (ESL) education program, a student must meet the requirements that are listed.

Language would be revised to show students who may participate in a district's bilingual or ESL education program but are not eligible for bilingual education allotment (BEA) funding. This includes students participating or continuing in a one-way dual language immersion, transitional bilingual education, or an ESL program.

The section would be revised to include a fact sheet with information on weighted BEA funding.

Language would be revised to state that English learners served through an alternative language program generate BEA funds.

Language would be added to include Program Model Fact Sheet and Certification Fact Sheet under teacher certification requirements.

Language would be revised to revise to state the language proficiency assessment committee (LPAC) will determine if a student can be classified as English proficient and has demonstrated readiness to participate equitably in grade level instruction.

Language would be revised to state that the LPAC may recommend that an English proficient student continue in the dual language immersion program with parental approval.

Language would be revised to state that as PEIMS is revised to reflect changes as a result of SB 2066, 87th Texas Legislature, Regular Session, 2021, the data element names may still use LEP or EL during the transition.

Language would be revised to state that once a reclassified student has completed all four years of state and federal monitoring, he or she will be coded as Former Limited English Proficient/English Learner, code 5 in the Limited English Proficient/English Learner indicator for the duration of his or her schooling in Texas.

Language would be revised to provide the link for the English Learning Portal that gives additional resources for program implementation.

Language would be revised to provide the link to access additional resources for program implementation.

Section 7, Prekindergarten (Pre-K)

TEC, Chapter 29, Subchapter E, establishes special general parameters for Pre-K programs. TEC, Chapter 48, including §48.005, establishes ADA requirements and authorizes funding for certain circumstances. TEC, §48.004, authorizes the commissioner to require reports that may be necessary to implement and administer the FSP. The following changes would implement reporting for pre-K to account for attendance and funding.

Language would be revised to include eligibility for students in foster care in another state or territory who now reside in Texas.

Language would be revised to state that a student is eligible for Pre-K if the student was eligible to enroll in Pre-K but did not attend during the previous school year under TEC, §29.153 (b), and the child has not yet enrolled in kindergarten or if the child's parent or guardian elects for the child to repeat Pre-K in accordance with TEC, §28.02124.

Language would be revised to state that a child's parent or guardian can elect for the child to repeat Pre-K in accordance with TEC, §28.02124, or if the child would have been eligible to enroll in Pre-K during the previous school year under TEC §29.153(b), and the child has not yet enrolled in kindergarten.

Language would be revised to state that as a result of SB 2066, 87th Texas Legislature, Regular Session, 2021, the term "emergent bilingual student" replaced the term "LEP student" used in TEC, Chapter 29, Subchapter B. The term "English learner (EL)," as used in 19 TAC Chapter 89, Subchapter BB, changes as well. See the previous description of changes in Section 4 for an explanation of these changes.

Language would be revised to show that the home language survey will question what language is used in the child's home.

Language would be revised to state that a child who is a member of a household receiving benefits from the Supplemental Nutrition Assistance Program, Temporary Assistance for Needy Families program, State Medicaid program, or Food Distribution Program on Indian Reservations is eligible for the National School Lunch Program.

Language would be revised to state that students who are in or who have ever been in the conservatorship of the Texas Department of Family Protective Services (DFPS) (that is, in foster care) following an adversary hearing or were in foster care in another state or territory but now reside in Texas are eligible for free Pre-K.

Language would be revised to state that if an individual has a Pre-K-age child and has been nominated but not notified as an honoree prior to the current school year, that individual may request that the Early Childhood Education Division determine eligibility based on the nomination submitted for review to the Criminal Justice Division.

Language would be revised to state that proof is required to ensure a student is three or four years old as of September 1 of the school year unless the child's parent or guardian elects for the child to repeat Pre-K in accordance with TEC, §28.02124, or if the child would have been eligible to enroll in Pre-K during the previous school year under TEC, §29.153(b), and has not yet enrolled in kindergarten.

Language would be revised to state that Pre-K classes for eligible students four years old and older must operate on a full-day basis unless the district has applied for and received a waiver. Pre-K classes for eligible three-year-old children and ineligible three- and four-year-old children may be operated as a half-day program.

Language would be revised in the Eligible Days Present and ADA Eligibility table to show Early Childhood Special Education Services (ECSE) served in Pre-K classroom.

Section 8, Gifted/Talented

TEC, Chapter 29, Subchapter A, establishes parameters for nontraditional programs. TEC, Chapter 48, including §48.005, establishes ADA requirements and authorizes funding for certain circumstances. TEC, §48.004, authorizes the commissioner to require reports that may be necessary to implement and administer the FSP. The following changes would implement reporting for gifted/talented to account for attendance and funding.

Language would be added to state that districts must code a furloughed student who is taking leave from receiving services through a state-approved gifted/talented program with a gifted/talented indicator code of 0 in the Student Detail Report.

Section 10, Alternative Education Programs (AEPs) and Disciplinary Removals

TEC, §37.008, establishes the general parameters for disciplinary alternative education programs, including placement of students in alternative settings. The following changes implement reporting for alternative settings.

Language would be revised to show mandatory expulsion in the disciplinary removals and programs table.

Section 11, Nontraditional Programs

TEC, Chapter 29, Subchapter A, establishes special general parameters for nontraditional programs. TEC, Chapter 48, including §48.005, establishes ADA requirements and authorizes funding for certain circumstances. TEC, §48.004, authorizes the commissioner to require reports that may be necessary to implement and administer the FSP. The following changes implement reporting for nontraditional programs to account for attendance and funding.

Language would be revised to state that students are sometimes educated during nontraditional hours or days of the week or in nontraditional programs within the district, such as in optional flexible school day programs (OFSDPs), or off-campus by providers other than the district, such as colleges or universities.

Language would be revised to state that districts must not use the AP trademark or AP PEIMS Code (service IDs) unless an audit has been performed.

Language would be revised to state that districts must not use the IB trademark or IB PEIMS Code (service IDs) unless authorized by the International Baccalaureate Organization.

Language would be revised to state that the Texas Higher Education Coordinating Board shall develop and implement a pilot program under which a licensed hospital may offer dual credit courses to high school students enrolled in a school district in partnership with the district.

Language would be revised to state that students must meet requirements for one of the listed assessments to meet Texas Success Initiative Assessment criteria, and requirements to qualify for English courses and revisions would be made in the chart showing student eligibility for dual credit courses.

Language would be deleted in a requirement for student eligibility to enroll in dual courses with regards to content area of the course and an exemption limited to an institution of higher education partnering with the school district.

Language would be deleted to remove the funding of Optional Extended Year Program for the 2021-2022 school year.

Language would be added to elaborate on ADSY, ADSY program design, ADSY reporting and funding, and additional ADSY information.

Section 12, Virtual, Remote, and Electronic Instruction

TEC, Chapter 30A, establishes the general parameters for the Texas Virtual School Network (TXVSN). TEC, §30A.153, authorizes funding for the TXVSN from the FSP under certain circumstances. TEC, §48.004, authorizes the commissioner to adopt reports that may be necessary to implement and administer the FSP. The following change would implement reporting for the TXVSN to account for attendance and funding.

Language would be revised to state that the state virtual school network includes the TXVSN catalog of supplemental online courses for Grades 9 through 12. Courses first became available through the TXVSN course catalog in January 2009 and may be provided through the TXVSN course catalog by a TXVSN course provider.

Language would be revised to include eligibility criteria for a student's full-time enrollment in TXVSN courses and state that these courses are offered through the TXVSN course catalog.

Language would be added to state that a student taking a course offered through the TXVSN course catalog or an officially recognized TXVSN Online School (OLS) program is considered to be enrolled in a TXVSN course or OLS program when he or she begins receiving instruction and actively engages in instructional activities in a TXVSN subject area or course.

Language would be added to show that a student taking a course offered through the TXVSN course catalog or an officially recognized TXVSN OLS program is considered to be, and must be reported as, withdrawn from the TXVSN course or OLS program when the student is no longer actively participating in the TXVSN course or program.

Language would be revised to state that the section on remote instruction that is not delivered through the TXVSN will describe procedures for submitting requests for waivers of those rules and policies and information on how the agency will evaluate those requests.

Language would be revised to include that remote instruction not delivered through TXVSN cannot be concurrent, which means remote students must not be taught by a teacher who is also teaching in-person students at the same time.

Language would be revised to state that remote conferencing means remote instruction in which a student at an off-campus location is able to virtually participate in classes provided by a teacher on the student's campus.

Language would be revised to state that remote conferencing students will receive funding provided that certain requirements are met, such as the total amount of remote conferencing instruction must not exceed more than 20 instructional days over the entirety of the school year.

Language would be further revised to state that in addition to other conditions, documentation from a physician must include a statement that the student is to remain confined to their home or to a hospital; the student has a positive test result for a communicable condition listed in 25 TAC §97.7; or the student has been identified as having been in close contact with COVID-19.

Language would be revised to state that if the documented temporary medical condition persists longer than 20 instructional days over the entirety of the school year or a 504 committee determines that remote instruction is needed for more than 20 days, a waiver request must be submitted for an extension of remote conferencing beyond the allowable cumulative 20 instructional day period. An example is provided of a child being in close contact with COVID-19 more than twice over the course of the year, and the family opted to follow the stay-at-home recommendations each time.

Language would be revised to state that remote conferencing would generate attendance if students in Pre-K through Grade 5 receive the equivalent of four hours of instruction with at least two hours of synchronous instruction each school day and students in Grades 6 through 12 receive at least four hours of instruction through synchronous instruction each school day. The instruction does not need to be consecutive.

Language would be revised to state that for students participating through remote conferencing, instruction must be provided synchronously, which means two-way, real-time/live virtual instruction between teachers and students. The instruction cannot be concurrent, which means remote students must not be taught by a teacher who is also teaching in-person students at the same time.

Language would be revised to state that, in submitting a waiver request to extend remote conferencing instruction beyond the allowable 20 instructional days over the entirety of the school year, districts must state how program requirements will be satisfied to claim weighted funding.

Language would be revised to state that for remote conferencing special education students, the instruction cannot be concurrent, which means remote students must not be taught by a teacher who is also teaching in-person students at the same time.

Language would be revised to state that to receive funding for remote conferencing special education students, the student's ARD committee must have determined, in a manner consistent with state and federal law, that the remote instruction to be provided is required for the provision of a free and appropriate public education (FAPE). A placement change for a student served by special education requires the ARD committee to meet to address the change in placement and document it in the student's IEP, generally within 10 school days.

Language would be revised to state that the if the ARD committee determines that remote conferencing should be needed for longer than 20 instructional days over the entirety of the school year, a waiver request must be submitted for an extension of remote conferencing beyond the allowable cumulative 20 instructional day period. Waivers will be granted on a case-by-case basis and a waiver will not be granted if the student is unable to attend school for a reason other than a medical condition, such as confinement at home for disciplinary reasons. Any waiver request must include an explanation of the circumstances giving rise to the waiver request.

Language would be revised to state that special education students participating by remote conferencing will generate attendance if students in Pre-K through Grade 5 receive the equivalent of four hours of instruction with at least two hours of synchronous instruction each school day. Students in Grades 6 through 12 must receive at least four hours of instruction through synchronous instruction each school day in order to generate attendance. This instruction does not need to be consecutive.

Language would be revised to state that for remote conferencing special education, both on-campus instructional time and remote conferencing instructional time can be included when calculating two-through-four-hour rule eligibility provided the remote instruction is provided synchronously, which means two-way, real-time/live virtual instruction between teachers and students, not concurrent instruction.

Language would be added to state that a student served through remote conferencing may be eligible to generate weighted funding for programs such as CTE or bilingual/ESL education, provided that requirements for the applicable program(s) are met. In submitting a waiver request to extend remote conferencing instruction beyond the allowable 20 instructional days over the entirety of the school year, an explanation must be provided as to how program requirements will be satisfied in order to claim weighted funding.

Language would be revised to state that for remote homebound instruction for regular education students and special education students, waivers will only be granted in extremely severe medical circumstances, and a waiver must be submitted for each individual student.

Language would be revised to state that CTE courses provided on campus and self-paced computer courses may be considered for contact hours provided all conditions are met.

Language would be revised to state that the requirement that a teacher be appropriately qualified/certified does not apply to an open-enrollment charter school unless the school's charter states that a CTE course must be taught by a qualified/certified CTE or technology applications teacher.

Language would be revised regarding information on CTE weights and the use of multipliers.

Language would be revised regarding weights for the gifted/talented category of students.

Language would be added to elaborate on methods of virtual instruction, students' eligibility for ADA funding, eligibility based on current school year, limits on total remote participation ADA, attendance taking and minutes requirement, remote synchronous instructions, and remote asynchronous instruction.

Glossary

Language would be deleted from the glossary regarding at-risk students, and language would be added to include criteria to meet the at-risk student's classification.

FISCAL IMPACT: Leo Lopez, associate commissioner for school finance, has determined that the proposed changes to the 2021-2022 Student Attendance Accounting Handbook would have no additional costs to local government. However, there would be additional costs to state government. Modifications to existing Section 12.3.1 would allow for students to participate in remote conferencing without a waiver for up to 20 instructional days over the course of the entire school year. Assuming 55,136 students, representing one percent of all students, would take advantage of these provisions in the 2021-2022 school year, and further assuming an average number of 15 remote conferencing instructional days for those students, and further assuming these provisions would result in a one percentage point increase in average attendance rates for those students on those remote conferencing days, TEA estimates an annual fiscal impact to the FSP of $422,066, totaling $2,110,330 through the 2025-2026 school year.

LOCAL EMPLOYMENT IMPACT: The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.

SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

COST INCREASE TO REGULATED PERSONS: The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045.

TAKINGS IMPACT ASSESSMENT: The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

GOVERNMENT GROWTH IMPACT: TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would expand and limit an existing regulation. The proposed changes to the 2021-2022 Student Attendance Accounting Handbook would amend requirements and provide clarity regarding student attendance accounting procedures. In some instances, the proposed changes would add information, and in some instances, information would be removed.

The proposed rulemaking would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not create a new regulation; would not repeal an existing regulation; would not increase or decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.

PUBLIC BENEFIT AND COST TO PERSONS: Mr. Lopez has determined that for each year of the first five years the proposal is in effect, the public benefit anticipated as a result of enforcing the proposal would be continuing to inform the public of the existence of annual publications specifying attendance accounting procedures for school districts and charter schools. There is no anticipated economic cost to persons who are required to comply with the proposal.

DATA AND REPORTING IMPACT: The proposal would have no data and reporting impact.

PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: TEA has determined that the proposal would not require a written report or other paperwork to be completed by a principal or classroom teacher.

PUBLIC COMMENTS: The public comment period on the proposal begins October 22, 2021, and ends November 22, 2021. A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register on October 22, 2021. A form for submitting public comments is available on the TEA website at https://tea.texas.gov/About_TEA/Laws_and_Rules/Commissioner_Rules_(TAC)/Proposed_Commissioner_of_Education_Rules/.

STATUTORY AUTHORITY. The amendment is proposed under Texas Education Code (TEC), §7.055(b)(35), which states that the commissioner shall perform duties in connection with the Foundation School Program (FSP) as prescribed by TEC, Chapter 48; TEC, §25.081, which states that for each school year, each school district must operate so that the district provides for at least 75,600 minutes, including time allocated for instruction, intermissions, and recesses, for students. TEC, §25.081(d), authorizes the commissioner to adopt rules to implement the section. TEC, §25.081(g), states that a school district may not provide student instruction on Memorial Day but that if a school district would be required to provide student instruction on Memorial Day to compensate for minutes of instruction lost because of school closures caused by disaster, flood, extreme weather conditions, fuel curtailment, or another calamity, the commissioner shall approve the instruction of students for fewer than the number of minutes required under TEC, §25.081(a); TEC, §25.0812, which states that school districts may not schedule the last day of school for students before May 15; TEC, §25.087, as amended by Senate Bill (SB) 289 and House Bill (HB) 699, 87th Texas Legislature, Regular Session, 2021, which provides purposes for which a school district shall excuse a student from attending school, including excusing a high school student 15 years of age or older for the purpose of visiting a driver's license office to obtain a driver's license or a learning permit; TEC, §29.0822, which enables a school district to provide a program under this section that meets the needs of students described by TEC, §29.0822(a), for a school district that meets application requirements, including allowing a student to enroll in a dropout recovery program in which courses are conducted online. TEC, §29.0822, authorizes the commissioner to adopt rules for the administration of the section; TEC, §30A.153, which states that, subject to the limitation imposed under TEC, §30A.153(a-1), a school district or open-enrollment charter school in which a student is enrolled is entitled to funding under TEC, Chapter 48, or in accordance with the terms of a charter granted under TEC, §12.101, for the student's enrollment in an electronic course offered through the state virtual school network in the same manner that the district or school is entitled to funding for the student's enrollment in courses provided in a traditional classroom setting, provided that the student successfully completes the electronic course. TEC, §30A.153(d), authorizes the commissioner to adopt rules necessary to implement the section, including rules regarding student attendance accounting; TEC, §48.004, which states that the commissioner shall adopt rules, take action, and require reports consistent with TEC, Chapter 48, as necessary to implement and administer the FSP; TEC, §48.005, as amended by SB 15, 87th Texas Legislature, Second Called Session, 2021, and SB 1615, SB 1697, and HB 1525, 87th Texas Legislature, Regular Session, 2021, which states that average daily attendance (ADA) is the quotient of the sum of attendance for each day of the minimum number of days of instruction as described under TEC, §25.081(a), divided by the minimum number of days of instruction. TEC, §48.005(m), authorizes the commissioner to adopt rules necessary to implement the section; TEC, §48.102, which states that for each student in average daily attendance in a special education program under TEC, Chapter 29, Subchapter A, in a mainstream instructional arrangement, a school district is entitled to an annual allotment equal to the adjusted basic allotment multiplied by 1.15. For each full-time equivalent student in average daily attendance in a special education program under TEC, Chapter 29, Subchapter A, in an instructional arrangement other than a mainstream instructional arrangement, a district is entitled to an annual allotment equal to the adjusted basic allotment multiplied by a weight determined according to its instructional arrangement; TEC, §48.103, which states that for each student that a district serves who has been identified as having dyslexia or a related disorder, the district is entitled to an annual allotment equal to the basic allotment multiplied by 0.1 or a greater amount provided by appropriation; TEC, §48.104, as amended by HB 1525, 87th Texas Legislature, Regular Session, 2021, which states that for each student who does not have a disability and resides in a residential placement facility in a district in which the student's parent or legal guardian does not reside, a district is entitled to an annual allotment equal to the basic allotment multiplied by 0.2 or, if the student is educationally disadvantaged, 0.275. For each full-time equivalent student who is in a remedial and support program under TEC, §29.081, because the student is pregnant, a district is entitled to an annual allotment equal to the basic allotment multiplied 2.41; TEC, §48.105, as amended by SB 2066, 87th Texas Legislature, Regular Session, 2021, which states that for each student in average daily attendance in a bilingual education or special language program under TEC, Chapter 29, Subchapter B, a district is entitled to an annual allotment equal to the adjusted basic allotment multiplied by 0.1 or 0.15 if the student is in a bilingual education program using a dual language immersion/one-way or two-way program model, and for students not described in subdivision (1), 0.05 if the student is in bilingual education program using a dual language immersion/two-way program model; TEC, §48.106, as amended by HB 1525, 87th Texas Legislature, Regular Session, 2021, which states that for each full-time equivalent student in average daily attendance in an approved career and technology education program in Grades 7-12 or in career and technology education programs, a district is entitled to an annual allotment equal to the basic allotment multiplied by a weight of 1.35 and $50 for each student that is enrolled in two or more advanced career and technology classes for a total of three or more credits; a campus designated as a P-TECH school under TEC, §29.556; or a campus that is a member of the New Tech Network and that focuses on project-based learning and work-based education; TEC, §48.108, as amended by SB 2066, 87th Texas Legislature, Regular Session, 2021, which states that for each student in average daily attendance in kindergarten through third grade, a district is entitled to an annual allotment equal to the basic allotment multiplied by 0.1 if the student is educationally disadvantaged or a student of limited English proficiency, as defined by TEC, §29.052, and in bilingual education or special language program under TEC, Chapter 29, Subchapter B; TEC §48.109, as added by HB 1525, 87th Texas Legislature, Regular Session, 2021, which states that for each student in the gifted and talented category, the district is entitled to an annual allotment equal to the basic allotment multiplied by 0.07 for each school year or a greater amount provided by appropriation. If by the end of the 12th month after receiving an allotment for developing a program a district has failed to implement a program, the district must refund the amount of the allotment to the agency within 30 days. Not more than five percent of a district's students in average daily attendance are eligible for funding under this section. If the state funds exceed amount of state funds appropriated in any year for the programs, the commissioner shall reduce the districts tier one allotment. If funds are less than the total amount appropriated for the school year, the commissioner shall transfer the remainder to any program. After each district has received allotted funds for this program, the State Board of Education may use up to $500,000 of the funds allocated under this section for other programs; and TEC, §48.270, which states that when, in the opinion of the agency's director of school audits, audits or reviews of accounting, enrollment, or other records of a school district reveal deliberate falsification of the records, or violation of the provisions of TEC, Chapter 48, through which the district's share of state funds allocated under the authority of this chapter would be, or has been, illegally increased, the director shall promptly and fully report the fact to the State Board of Education, the state auditor, and the appropriate county attorney, district attorney, or criminal district attorney.

CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §§7.055(b)(35); 25.081; 25.0812; 25.087, as amended by Senate Bill (SB) 289 and House Bill (HB) 699, 87th Texas Legislature, Regular Session, 2021; 29.0822; 30A.153; 48.004; 48.005, as amended by SB 15, 87th Texas Legislature, Second Called Session, 2021, and SB 1615, SB 1697, and HB 1525, 87th Texas Legislature, Regular Session, 2021; 48.102; 48.103; 48.104, as amended by HB 1525, 87th Texas Legislature, Regular Session, 2021; 48.105, as amended by SB 2066, 87th Texas Legislature, Regular Session, 2021; 48.106, as amended by HB 1525, 87th Texas Legislature, Regular Session, 2021; 48.108, as amended by SB 2066, 87th Texas Legislature, Regular Session, 2021; 48.109, as added by HB 1525, 87th Texas Legislature, Regular Session, 2021; and 48.270.

§129.1025.Adoption by Reference: Student Attendance Accounting Handbook.

(a) The student attendance accounting guidelines and procedures established by the commissioner of education under §129.21 of this title (relating to Requirements for Student Attendance Accounting for State Funding Purposes) and the Texas Education Code, §48.004, to be used by school districts and charter schools to maintain records and make reports on student attendance and student participation in special programs will be published annually.

(b) The standard procedures that school districts and charter schools must use to maintain records and make reports on student attendance and student participation in special programs for school year 2020-2021 are described in the official Texas Education Agency (TEA) publication 2021-2022 [2020-2021] Student Attendance Accounting Handbook, dated October 2021 [August 2020], which is adopted by this reference as the agency's official rule. A copy of the 2021-2022 [2020-2021] Student Attendance Accounting Handbook, dated October 2021 [August 2020], is available on the TEA website with information related to financial compliance. [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. In addition, the publication can be accessed from the TEA official website.] The commissioner will amend the 2021-2022 [2020-2021] Student Attendance Accounting Handbook, dated October 2021 [August 2020], and this subsection adopting it by reference, as needed.

(c) Data from previous school years will continue to be subject to the student attendance accounting handbook as the handbook existed in those years.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 11, 2021.

TRD-202104012

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Earliest possible date of adoption: November 21, 2021

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


PART 7. STATE BOARD FOR EDUCATOR CERTIFICATION

CHAPTER 230. PROFESSIONAL EDUCATOR PREPARATION AND CERTIFICATION

SUBCHAPTER B. GENERAL CERTIFICATION REQUIREMENTS

19 TAC §230.11

The State Board for Educator Certification (SBEC) proposes an amendment to 19 Texas Administrative Code (TAC) §230.11, concerning general certification requirements. The proposed amendment would update the list of countries that permit individuals who have obtained the equivalent of a United States bachelor's or master's degree to be exempt from the Test of English as a Foreign Language internet-Based Test (TOEFL iBT) to demonstrate English language proficiency; would clarify that individuals who have already demonstrated English language proficiency to receive an SBEC-issued Texas certificate would not have to demonstrate English language proficiency again for purposes of admission into an educator preparation program (EPP) to obtain an additional Texas educator certificate; and would provide technical and grammatical edits.

BACKGROUND INFORMATION AND JUSTIFICATION: At the August 2017 SBEC meeting, the SBEC adopted changes to 19 TAC Chapter 230 to remove the provision that required candidates to demonstrate English language proficiency by providing evidence that the primary language of instruction at an institution of higher education that the candidate attended outside of the United States was English. The SBEC adopted a list of countries in which English is the official language and allowed candidates from these countries to be exempt from the requirement to take the TOEFL iBT. The SBEC derived its list of English-speaking countries from the lists the colleges and universities of the University of Texas and Texas A&M University systems use to determine exemptions from English language proficiency requirements for student admissions.

At the July 2021 SBEC meeting, the SBEC directed Texas Education Agency (TEA) staff to draft amendments to 19 TAC Chapter 230 to update the list of qualifying countries to include any new additions to the lists used by the colleges and universities of the University of Texas and Texas A&M University systems.

Following is a description of the proposed amendment that would add the additional countries to the approved list as outlined in Figure: 19 TAC §230.11(b)(5)(C).

§230.11. General Provisions.

The proposed amendment would update Figure: 19 TAC §230.11(b)(5)(C) to add, "Federated States of Micronesia," "India," "Ireland," "New Zealand," and "Singapore" to the list of qualifying countries where English is the primary or predominant language. These are countries that the colleges and universities of the University of Texas and Texas A&M University systems have identified as English-speaking for the purposes of determining exemptions to English language proficiency requirements. This proposed amendment would permit individuals who have obtained the equivalent of a United States bachelor's or master's degree from colleges or universities in the Federated States of Micronesia, India, Ireland, New Zealand, and Singapore to be exempt from the English language proficiency requirement for educator certification. The proposed amendment to Figure: 19 TAC §230.11(b)(5)(C) would also provide grammatical and technical edits to the list of countries to properly place "Canada" and the "Cayman Islands" alphabetically and to add "Islands" to Turks and Caicos.

Proposed new 19 TAC §230.11(c) would clarify that individuals who have previously demonstrated English language proficiency to receive an SBEC-issued certificate would not be required to demonstrate English language proficiency again if they seek admission into an approved Texas EPP at a later time to pursue an additional area of certification. This would prevent redundant, inefficient, and unnecessary paperwork for both educators and TEA staff.

FISCAL IMPACT: Emily Garcia, associate commissioner for educator preparation, certification, and enforcement, has determined that for the first five-year period the proposal is in effect, there is no additional fiscal impact on state or local governments and there are no additional costs to entities required to comply with the proposal. The state and entities deemed as local government do not pay for or receive any funds from administration of the English language proficiency examination requirement (i.e., TOEFL iBT) in rule for issuance of Texas certification.

The TEA staff has determined, however, that the proposal would create an anticipated economic benefit for individuals. The TEA estimates that the proposal will cause a cost savings of $2,350 per fiscal year for each of the next five fiscal years (FYs), FYs 2022-2027, for individuals who will not be required to take the TOEFL iBT test to demonstrate English language proficiency. TOEFL iBT test fees vary in cost, but TEA staff is using $235 (the fee to test in several Texas cities as that is often the location where these candidates for certification will test) to calculate the anticipated savings to individuals. TEA staff estimates that approximately five individuals per year will apply from the five new countries that the proposal would add to the SBEC-approved list of English-speaking countries, and that when multiplied by the $235 test fee, the result is a cost savings of $1,175 per fiscal year. Additionally, TEA staff anticipates a minimum of five individuals who have already demonstrated English language proficiency would return to a Texas-approved EPP to seek an additional certification per fiscal year. For these five returning candidates, the cost savings would be $1,175 per fiscal year when multiplied by the $235 test fee. In total, the estimated cost savings per fiscal year would be $2,350.

LOCAL EMPLOYMENT IMPACT: The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code (TGC), §2001.022.

SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in TGC, §2006.002, is required.

COST INCREASE TO REGULATED PERSONS: The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to TGC, §2001.0045.

TAKINGS IMPACT ASSESSMENT: The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under TGC, §2007.043.

GOVERNMENT GROWTH IMPACT: The TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would limit an existing regulation by adding countries to the list that individuals from those countries would no longer be required to take and pass an English language proficiency examination for Texas certification and by allowing individuals who have previously proven their English proficiency to attain a Texas certification to be exempt from having to prove it again when they seek another Texas certification.

The proposed rulemaking would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not create a new regulation; would not expand or repeal an existing regulation; would not increase or decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.

PUBLIC BENEFIT AND COST TO PERSONS: The public benefit anticipated as a result of the proposal would be ensuring that educator certification applicants demonstrate the level of English language proficiency needed to instruct and to support all learners and to communicate effectively with parents, colleagues, and other stakeholders upon certification, while avoiding unnecessarily burdensome testing and paperwork for applicants who are from English-speaking countries or have already proven their English proficiency to attain a prior Texas educator certificate. There is no anticipated cost to persons who are required to comply with the proposal.

DATA AND REPORTING IMPACT: The proposal would have no new data and reporting impact.

PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: The TEA staff has determined that the proposal would not require a written report or other paperwork to be completed by a principal or classroom teacher.

PUBLIC COMMENTS: The public comment period on the proposal begins October 22, 2021, and ends November 22, 2021. A form for submitting public comments is available on the TEA website at https://tea.texas.gov/About_TEA/Laws_and_Rules/SBEC_Rules_(TAC)/Proposed_State_Board_for_Educator_Certification_Rules/. The SBEC will take registered oral and written comments on the proposal at the December 10, 2021 meeting in accordance with the SBEC board operating policies and procedures. All requests for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the Department of Educator Preparation, Certification, and Enforcement, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, Attention: Ms. Emily Garcia, associate commissioner for educator preparation, certification, and enforcement, not more than 14 calendar days after notice of the proposal has been published in the Texas Register on October 22, 2021.

STATUTORY AUTHORITY. The amendment is proposed under Texas Education Code (TEC), §21.003(a), which states that a person may not be employed as a teacher, teacher intern or teacher trainee, librarian, educational aide, administrator, educational diagnostician, or school counselor by a school district unless the person holds an appropriate certificate or permit issued as provided by the TEC, Chapter 21, Subchapter B; TEC, §21.031, which authorizes the SBEC to regulate and oversee all aspects of the certification, continuing education, and standards of conduct of public school educators; TEC, §21.041(b)(1), which requires the SBEC to propose rules that provide for the regulation of educators and the general administration of the TEC, Chapter 21, Subchapter B, in a manner consistent with the TEC, Chapter 21, Subchapter B; TEC, §21.041(b)(4), which requires the SBEC to propose rules that specify the requirements for the issuance and renewal of an educator certificate; and TEC, §21.041(b)(5), which requires the SBEC to propose rules that specify the requirements for the issuance of an educator certificate to a person who holds a similar certificate issued by another state or foreign country, subject to TEC, §21.052.

CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §§21.003(a); 21.031; and 21.041(b)(1), (4), and (5).

§230.11.General Requirements.

(a) The only credits and degrees acceptable for certification of educators are those earned from and conferred by accredited institutions of higher education. All credit hour requirements for certification are semester credit hours or their equivalent.

(b) An applicant for a Texas educator certificate must:

(1) be at least 18 years of age;

(2) submit to the criminal history review required by the Texas Education Code (TEC), §22.0831, not be disqualified by the TEC, §21.058, §21.060, or other Texas statute, and not be subject to administrative denial pursuant to §249.12 of this title (relating to Administrative Denial; Appeal) or a pending proceeding under Chapter 249 of this title (relating to Disciplinary Proceedings, Sanctions, and Contested Cases);

(3) not be disqualified by federal law;

(4) be willing to support and defend the constitutions of the United States and Texas;

(5) be able to communicate, listen, read, write, and comprehend the English language sufficiently to use it easily and readily in daily communication and teaching. English language proficiency shall be evidenced by one of the following:

(A) completion of an undergraduate or graduate degree at an accredited institution of higher education in the United States; or

(B) verification of minimum scaled scores on the Test of English as a Foreign Language internet-Based Test (TOEFL iBT) of 24 for speaking, 22 for listening, 22 for reading, and 21 for writing; or

(C) [if] an undergraduate or graduate degree that was earned at an institution of higher education in a country outside of the United States listed in the figure provided in this subparagraph.

Figure: 19 TAC §230.11(b)(5)(C) (.pdf)

[Figure: 19 TAC §230.11(b)(5)(C)]

(6) successfully complete appropriate examinations prescribed in §230.21 of this title (relating to Educator Assessment) for the educator certificate sought; and

(7) satisfy one or more of the following requirements:

(A) complete the requirements for certification specified in this chapter, Chapter 233 of this title (relating to Categories of Classroom Teaching Certificates), Chapter 239 of this title (relating to Student Services Certificates), Chapter 241 of this title (relating to Certification as Principal [Certificate]), or Chapter 242 of this title (relating to Superintendent Certificate), and be recommended for certification by an approved educator preparation program (EPP);

(B) qualify under Subchapter H of this chapter (relating to Texas Educator Certificates Based on Certification and College Credentials from Other States or Territories of the United States);

(C) qualify under §230.105 of this title (relating to Issuance of Additional Certificates Based on Examination);

(D) qualify for a career and technical education certificate based on skill and experience specified in §233.14 of this title (relating to Career and Technical Education (Certificates requiring experience and preparation in a skill area)); or

(E) qualify under Chapter 245 of this title (relating to Certification of Educators from Other Countries).

(c) An educator who has received a State Board for Educator Certification (SBEC)-issued standard certificate shall not be required to demonstrate English language proficiency as prescribed in subsection (b)(5)(B) and (C) of this section for purposes of admission into an EPP to obtain additional SBEC-issued certifications.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 11, 2021.

TRD-202104016

Cristina De La Fuente-Valadez

Director, Rulemaking

State Board for Educator Certification

Earliest possible date of adoption: November 21, 2021

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


CHAPTER 234. MILITARY SERVICE MEMBERS, MILITARY SPOUSES, AND MILITARY VETERANS

19 TAC §234.3, §234.5

The State Board for Educator Certification (SBEC) proposes amendments to 19 Texas Administrative Code (TAC) §234.3 and §234.5, concerning military service members, military spouses, and military veterans. The proposed amendments would implement House Bill (HB) 139, 87th Texas Legislature, Regular Session, 2021. The proposed amendments would add the space force to the list of branches of the United States Armed Forces and would allow service members, spouses, and veterans to get credit toward educator certification requirements for clinical and professional experience.

BACKGROUND INFORMATION AND JUSTIFICATION: All military-related provisions for educator certification have been consolidated into 19 TAC Chapter 234. The proposed amendments to 19 TAC Chapter 234 would implement HB 139, 87th Texas Legislature, Regular Session, 2021. Following is a description of the proposed amendments.

§234.3. Definitions.

The proposed amendment to §234.3(5) would implement HB 139, 87th Texas Legislature, Regular Session, 2021, by adding "space force" to update the list of branches of the United States Armed Forces.

§234.5. Certification of Military Service Members, Military Spouses, and Military Veterans.

The proposed amendment to §234.5(f) would implement HB 139, 87th Texas Legislature, Regular Session, 2021, by adding "clinical and professional experience" training to the list of appropriate credit toward certification requirements. HB 139 allows state licensing agencies to give military service members, spouses, and veterans credit toward certification requirements for clinical and professional experience.

The proposed amendment would also include a technical edit to further define a cross reference to 19 TAC §152.1001 in §234.5(h).

FISCAL IMPACT: Emily Garcia, associate commissioner for educator preparation, certification, and enforcement, has determined that for the first five-year period the proposal is in effect, there is no additional fiscal impact on state or local governments and that there are no additional costs to entities required to comply with the proposal.

LOCAL EMPLOYMENT IMPACT: The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code (TGC), §2001.022.

SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in TGC, §2006.002, is required.

COST INCREASE TO REGULATED PERSONS: The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to TGC, §2001.0045.

TAKINGS IMPACT ASSESSMENT: The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under TGC, §2007.043.

GOVERNMENT GROWTH IMPACT: The TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would increase the number of individuals subject to the rule's applicability because it adds individuals in the space force branch of the United States Armed Forces as military community members and adds military service members, veterans, and spouses who have clinical and professional experience to those persons eligible for credit toward certification requirements.

The proposed rulemaking would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not create a new regulation; would not expand, limit, or repeal an existing regulation; would not decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.

PUBLIC BENEFIT AND COST TO PERSONS: The public benefit anticipated as a result of the proposal would be continued support to members of the military community who seek to become educators in Texas. There is no anticipated cost to persons who are required to comply with the proposal.

DATA AND REPORTING IMPACT: The proposal would have no new data and reporting impact.

PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: The TEA staff has determined that the proposal would not require a written report or other paperwork to be completed by a principal or classroom teacher.

PUBLIC COMMENTS: The public comment period on the proposal begins October 22, 2021, and ends November 22, 2021. A form for submitting public comments is available on the TEA website at https://tea.texas.gov/About_TEA/Laws_and_Rules/SBEC_Rules_(TAC)/Proposed_State_Board_for_Educator_Certification_Rules/. The SBEC will take registered oral and written comments on the proposal at the December 10, 2021 meeting in accordance with the SBEC board operating policies and procedures. All requests for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the Department of Educator Preparation, Certification, and Enforcement, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, Attention: Ms. Emily Garcia, associate commissioner for educator preparation, certification, and enforcement, not more than 14 calendar days after notice of the proposal has been published in the Texas Register on October 22, 2021.

STATUTORY AUTHORITY. The amendments are proposed under Texas Education Code (TEC), §21.041(b)(2), which requires the SBEC to propose rules that specify the classes of educator certificates to be issued, including emergency certificates; TEC, §21.041(b)(4), which requires the SBEC to propose rules that specify the requirements for the issuance and renewal of an educator certificate; TEC, §21.044(a), as amended by HB 159, 87th Texas Legislature, Regular Session, 2021, which requires the SBEC to propose rules establishing training requirements a person must accomplish to obtain a certificate, enter an internship, or enter an induction-year program; TEC, §21.052(b-1), as amended by HB 139, 87th Texas Legislature, Regular Session, 2021, which requires the SBEC to establish procedures to accurately identify military spouses and expedite processing of certification applications that they submit; TEC, §21.052(c), which specifies the SBEC can specify the term of a temporary certificate issued under this subsection; TEC, §21.052(d-1), which requires the SBEC to issue a three-year temporary certificate to eligible military spouses of active-duty service members; TEC, §21.052(f), as amended by HB 139, 87th Texas Legislature, Regular Session, 2021, which provides definitions for terms used in the rest of TEC, §21.052; TEC, §21.052(i), as added by HB 139, 87th Texas Legislature, Regular Session, 2021, which defines active-duty service, lists the branches of the United States Armed Forces, and confirms the members of the military community eligible for processes established to certify educators from outside the state; Texas Occupations Code (TOC), §55.001, as amended by HB 139, 87th Texas Legislature, Regular Session, 2021, which defines key terms and identifies the individuals relevant to the processing and support of members of the military community; TOC, §55.002, which provides clarification and guidelines for implementing fee exemptions for members of the military community; TOC, §55.003, which states military service members are eligible to receive a two-year extension of time to complete requirements for license renewal; TOC, §55.004, as amended and added by HB 139, 87th Texas Legislature, Regular Session, 2021, which requires state agencies to adopt rules for issuance of licensure to members of the military community and provides alternatives to become eligible for licensure; TOC, §55.0041, as amended by HB 139, 87th Texas Legislature, Regular Session, 2021, which requires state agencies to adopt rules to allow military spouses licensed in other states and in good standing to practice in their occupation of expertise with the license issued in another state; TOC, §55.005, which requires state agencies to establish a process to expedite applications for licensure submitted by members of the military community; TOC, §55.006, which requires state agencies to determine renewal requirements for expedited licenses issued to members of the military community; TOC, §55.007, which provides state agencies authority to credit verified military service, training, or education toward licensing requirements; TOC, §55.008, which authorizes state agencies to credit verified relevant military service, training, or education relevant to the occupation toward the apprenticeship requirements for licensure; TOC, §55.009, which confirms state agencies that issue licensure shall waive license application and examination fees paid to the state for applicable members of the military community; and TOC, §55.010, which requires state agencies to prominently post notification of licensure provisions for military service members, military veterans, and military spouses on the home page of the agency's website.

CROSS REFERENCE TO STATUTE. The amendments implement Texas Education Code, §§21.041(b)(2) and (4); 21.044(a), as amended by House Bill (HB) 159, 87th Texas Legislature, Regular Session, 2021; and 21.052(b-1), as amended by HB 139, 87th Texas Legislature, Regular Session, 2021, (c), (d-1), (f), as amended by HB 139, 87th Texas Legislature, Regular Session, 2021, and (i), as added by HB 139, 87th Texas Legislature, Regular Session, 2021; and Texas Occupations Code, §§55.001, as amended by HB 139, 87th Texas Legislature, Regular Session, 2021; 55.002; 55.003; 55.004, as amended and added by HB 139, 87th Texas Legislature, Regular Session, 2021, 55.0041, as amended and added by HB 139, 87th Texas Legislature, Regular Session, 2021; and 55.005-55.010.

§234.3.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Military service member--A person who is on active duty.

(2) Military spouse--A person who is married to a military service member.

(3) Military veteran--A person who has served on active duty and who was discharged or released from active duty.

(4) Active duty--Current full-time military service in the armed forces of the United States or active duty military service as a member of the Texas military forces, as defined by the Texas Government Code, §437.001, or similar military service of another state.

(5) Armed forces of the United States--The army, navy, air force, space force, coast guard, or marine corps of the United States or a reserve unit of one of those branches of the armed forces.

§234.5.Certification of Military Service Members, Military Spouses, and Military Veterans.

(a) The application for certification of a military service member, military veteran, or military spouse, including an application based upon certification by a jurisdiction other than Texas that has certification requirements substantially similar to the Texas certification requirements, shall be processed as soon as practicable.

(b) As soon as practicable after the issuance of a one-year certificate, Texas Education Agency (TEA) staff shall notify, in writing or by email, a military spouse of the requirements for obtaining a standard Texas certificate.

(c) A military spouse who has been issued a one-year certificate prior to September 1, 2017, under the provisions of this chapter, is eligible for two additional years from the date of issuance, not to exceed a total of three years maximum, to align with provisions for a military spouse referenced in subsection (d) of this section.

(d) Effective September 1, 2017, a military spouse shall be issued a three-year temporary certificate upon completion of the review of credentials.

(e) Effective December 1, 2019, prior to beginning employment, a military spouse must declare his or her intent to teach in Texas with a license issued by another state department of education, by submitting an application and required documents for a review of credentials to the TEA and completing the criminal background check. TEA staff must provide approval for the military spouse to teach in Texas a maximum of three years with credentials issued by another state.

(f) A military service member or a military veteran shall be entitled to credit verified military service, training, clinical and professional experience, or education toward the training, education, work experience, or related requirements (other than certification examinations) for educator certification. TEA staff and educator preparation programs (EPPs) shall use information from the U.S. Department of Veterans Affairs or other reliable sources to assist in crediting applicable military service, training, or education to certification requirements.

(g) A military service member pursuing certification in career and technical education must meet requirements for the certificate, but for career and technical education certificate areas requiring experience and licensure, the military service member shall be entitled to substitute military experience in the trade for the required license or professional credential for the specific trade.

(h) A military service member, military spouse, and military veteran shall complete educator examination requirements for certificate issuance as outlined in Texas Education Code, Chapter 21, Subchapter B, and rules in the Texas Administrative Code, Title 19, Part 7, or qualify for an exemption from required Texas examinations through provisions in §152.1001 of Part 2 of this title (relating to Exceptions to Examination Requirements for Individuals Certified Outside the State).

(i) Military service members and military veterans are exempt from certification application fees that are paid to the state that lead to initial certification. These members of the military community are exempt from paying the portion of the examination registration fee that is paid to the TEA.

(j) Military service members and military veterans are exempt from certification application fees that are paid to the state that lead to initial certification resulting from a review of credentials, one-year certificate, or out-of-state standard certificate. These members of the military community are exempt from paying the portion of the examination registration fee that is paid to the TEA.

(k) Military spouses are exempt from certification application fees that are paid to the state that lead to initial certification resulting from a review of credentials, three-year temporary certificate, or out-of-state standard certificate. These members of the military community are exempt from paying the portion of the examination registration fee that is paid to the TEA.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 11, 2021.

TRD-202104020

Cristina De La Fuente-Valadez

Director, Rulemaking

State Board for Educator Certification

Earliest possible date of adoption: November 21, 2021

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


CHAPTER 249. DISCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED CASES

The State Board for Educator Certification (SBEC) proposes amendments to 19 Texas Administrative Code (TAC) §§249.15, 249.17, and 249.42, concerning disciplinary proceedings, sanctions, and contested cases. The proposed amendments would implement House Bill (HB) 2519, 87th Texas Legislature, Regular Session, 2021, by amending the SBEC's rules to allow the SBEC to put conditions on a certificate without any additional sanction; to reduce the minimum sanction for contract abandonment that occurs 30-44 days in advance of the first day of instruction for the next school year; to clarify that sanctions for contract abandonment are subject to all mitigating factors and that mitigating factors can reduce a sanction to the point that the SBEC takes no disciplinary action against an educator; and to clarify the notice that the Texas Education Agency (TEA) sends sanctioned educators regarding the necessity of filing a motion for rehearing if the respondent wants to appeal the decision. The proposed amendments also reflect the results of the SBEC's July work session on contract abandonment and October meeting by expanding the definition of good cause for contract abandonment to include instances when an educator resigns after receiving written permission from school administration and by adding new mitigating factors that allow lower sanctions for contract abandonment when an educator gets a promotion, is assigned to another campus, has their salary reduced, or faces a threat of immediate physical harm.

BACKGROUND INFORMATION AND JUSTIFICATION: Chapter 249 covers educator discipline, including investigations, sanction guidelines, and procedures for contested cases. Texas Education Code (TEC), §§21.105, 21.160, and 21.210, give educators the right to resign without penalty at the end of a school year, up to 45 days before the first day of instruction for the following school year. Contract abandonment occurs when an educator resigns from a teaching contract less than 45 days before the first day of instruction for the following school year. The SBEC engaged in discussions during the July 22, 2021 work session and July 23, 2021 SBEC meeting regarding contract abandonment rules and procedures. Proposed rule changes would implement the results of those discussions and recent legislation regarding contract abandonment.

House Bill 2519

HB 2519, 87th Texas Legislature, Regular Session, 2021, created new requirements and limitations for the SBEC in educator discipline cases involving either contract abandonment or a suspension sanction.

HB 2519 amended TEC, §§21.105(e), 21.160(e), and 21.210(e), to state that the SBEC in considering contract abandonment cases "may consider alternatives to sanctions, including additional continuing education or training." The SBEC has historically interpreted "additional" in 19 TAC §249.15(a)(5) to mean that the SBEC had to impose another sanction, such as a non-inscribed reprimand, before it could put other conditions or restrictions on a certificate, such as requiring continuing education. To allow the SBEC to require training without having to issue any other sanction in accordance with the intent of HB 2519, the proposed amendment would remove the word "additional" from 19 TAC §249.15(a)(5).

Through changes to TEC, §§21.105, 21.160, and 21.210, HB 2519 forbids the SBEC from issuing a sanction of suspension or revocation for educators who abandon their contracts with school districts 30 days or more before the first day of instruction for the next school year. The proposed amendment would therefore change the sanction guidance for contract abandonment in 19 TAC §249.17(d)(3) to make an inscribed reprimand the standard sanction when an educator abandons a contract 30-44 days prior to the first day of instruction and no mitigating factors apply. HB 2519 made no changes to the deadline for educator resignations; an educator can still resign without penalty 45 days prior to the first day of instruction. Thus, under the proposed rule, an educator who resigns 45 days prior to the first day of instruction is not subject to sanction by the SBEC, an educator who resigns 44-30 days prior to the first day of instruction is subject to an inscribed reprimand if no mitigating factors apply, and an educator who resigns fewer than 30 days before the first day of instruction or at any point during the school year is subject to at least a one-year suspension if no mitigating factors apply. In a case where the educator resigned 44-30 days prior to the first day of instruction and mitigating factors applied, under the proposed rule, the educator would receive a sanction of less than an inscribed reprimand--a non-inscribed reprimand, a requirement to complete continuing education with no reprimand, or no reprimand at all--depending on the strength of the mitigating factors and at the SBEC's discretion. Similarly, in a case where the educator resigns fewer than 30 days prior to the first day of instruction or during the school year and mitigating factors apply, under the proposed rule, the educator would receive a sanction of less than a one-year suspension--a shorter suspension, an inscribed reprimand, a non-inscribed reprimand, a requirement to complete continuing education with no reprimand, or no reprimand at all--depending on the strength of the mitigating factors and at the SBEC's discretion. In any case where the educator had good cause for contract abandonment as defined in 19 TAC §249.17(d)(1), the educator would not be subject to sanction by the SBEC regardless of when the educator resigned.

HB 2519 amended TEC, §§21.105(e), 21.160(e), and 21.210(e) to require that the SBEC consider "any mitigating factors relevant to the teacher's conduct" prior to imposing a sanction for contract abandonment. The proposed amendment to 19 TAC §249.17(d)(2) would change "may" to "shall" to reflect this new statutory requirement by removing the SBEC's discretion on whether to review mitigating factors in contract abandonment cases. The proposed amendment to 19 TAC §249.17(d)(2) would also include technical edits that would add "the educator" as a lead in and would make corresponding technical edits to subparagraphs (A)-(F). The proposed amendment to 19 TAC §249.17(d)(3) would add new §249.17(d)(3)(A) and (B) to include specific cross-references to the factors the SBEC considers under 19 TAC §249.17(c), among which would include a broad catch-all factor, "any other relevant circumstances or facts," to make it clear that the SBEC will consider all mitigating factors in contract abandonment cases.

The proposed amendment to 19 TAC §249.17(d)(3)(B) would also provide a technical edit to reorganize subparagraphs (A)-(C) to clauses (i)-(iii).

The proposed amendment would also include new 19 TAC §249.17(d)(3)(C), which would clarify that mitigating factors can reduce an educator's sanction to such an extent that the SBEC takes no disciplinary action against the educator. This change is proposed to reduce confusion among SBEC members and stakeholders regarding the limits of the SBEC's discretion in considering mitigating factors. The SBEC cannot be arbitrary or capricious in determining the value of a mitigating factor or a sanction, but the SBEC can decide that the unique mitigating facts in a specific case are so extreme and compelling that they necessitate reducing the educator's sanction to the point that an educator subject to discipline receives no sanction.

In TEC, §21.065(b), HB 2519 imposes requirements on the SBEC to give notice to an educator whose certificate has been suspended of "the basis for the suspension" and "information regarding the method in which the teacher may respond to the suspension." The SBEC already sends sanctioned educators such notices with the final order, informing the educators that they must file a Motion for Rehearing with the SBEC if they do not agree with the SBEC's decision and if they want to appeal in keeping with Texas Government Code (TGC), §2001.145. The proposed amendment would add language to 19 TAC §249.42(a) that would reflect and clarify this procedure and the language used in the letters to educators.

This proposal would include technical edits to further define a cross reference to 19 TAC Chapter 101 in §249.15(b)(8).

SBEC Work Session and Board Meeting

On July 22, 2021, the SBEC conducted a work session to examine ways to improve its contract abandonment sanctioning guidelines. The results of the work session and July 23 and October 1, 2021 SBEC meetings are reflected in the proposed amendment to 19 TAC §249.17(d)(1) and (2), which adds to the definition of good cause for contract abandonment and to the mitigating factors that apply specifically to contract abandonment cases. These provisions offer guidance and predictability to educators, TEA staff, State Office of Administrative Hearings judges, and the SBEC regarding in what situations the SBEC will take no action against an educator due to good cause and in what situations the SBEC will issue reduced sanctions against an educator for contract abandonment based on applicable mitigating factors.

The proposed amendment to 19 TAC §249.17(d)(1) would expand the definition of good cause for contract abandonment. Proposed new §249.17(d)(1)(D) would make written permission from school district administration good cause for contract abandonment. The proposed amendment would cause the SBEC to take no disciplinary action against an educator who abandoned a contract under those specific conditions because an educator should be able to resign without penalty when the educator reasonably understands that he or she has received written permission from the school administration to resign.

The proposed amendment to 19 TAC §249.17(d)(2) would add mitigating factors that reduce an educator's sanction for contract abandonment. Proposed new §249.17(d)(2)(G) would reduce an educator's sanction if the educator had resigned in order to take a position that amounted to a career change from one certification class to another or to a more advanced position within the principal certificate class. For example, the proposed amendment would reduce the sanction for an educator who resigned in order to become a librarian, a counselor, an assistant principal, a principal, or a superintendent. The proposed amendment also would reduce the sanction for an assistant principal who resigned to become a principal, a superintendent, or another more senior administration position that requires a principal or superintendent certificate. This proposed amendment would give teachers more flexibility to advance their careers within education without fear of long suspension sanctions from SBEC due to contract abandonment.

Proposed new 19 TAC §249.17(d)(2)(H) would allow a reduced sanction when an educator resigns due to a decrease in the educator's base pay, excluding stipends, as compared to the prior year at the same school district. Due to school district board meeting schedules, some educators do not learn what their salary will be for the school year until after the 45th day before the first day of instruction, when educators can no longer resign without penalty. The commissioner of education has held that an educator's contract remains valid even if the educator's salary is set at a later school district board meeting, so long as the educator's final salary is within the salary range that the educator was offered when the educator signed the contract. An educator can thus find themselves in a year-long contract for a salary that is less than the educator had earned the year before and be unable to resign without penalty. Under proposed new 19 TAC §249.17(d)(2)(H), an educator who resigned in such circumstances would still be subject to discipline for contract abandonment but would receive a lesser sanction than the default one-year suspension.

Proposed new 19 TAC §249.17(d)(2)(I) would allow a reduced contract abandonment sanction when an educator resigns following a change in the educator's campus assignment that causes a significant adverse impact on the educator's family needs or health condition. In geographically large school districts, a change in campus assignment can cause an educator to have a commute that is much longer than the educator had expected, which can cause the educator to be unable to pick up his or her children on time or can adversely affect the educator's health. This proposed change would give educators confronted with a change in campus assignment and contemplating resignation some predictability that the SBEC will reduce the penalty for contract abandonment to reflect the severity of the impact the change in assignment had on the educator's health or family needs.

Proposed new 19 TAC §249.17(d)(2)(J) would allow lower sanctions for contract abandonment when an educator resigns a contract due to working conditions that reasonably posed an immediate threat of physical harm to the educator. This proposed change would allow the SBEC to reduce the penalty in a contract abandonment case to reflect the severity of the risk of physical harm an educator faced before resigning. It would give educators some comfort and predictability that they would not face a long suspension for contract abandonment if they resign due to physically dangerous working conditions.

While TEA staff may make sanction recommendations, the SBEC would retain discretion to determine the final sanction and the amount of reduction in penalty allowed for each mitigating factor prescribed in 19 TAC §249.17(d)(2).

FISCAL IMPACT: Emily Garcia, associate commissioner for educator preparation, certification, and enforcement, has determined that for the first five-year period the proposal is in effect, there is no additional fiscal impact on state or local governments and that there are no additional costs to entities required to comply with the proposal.

LOCAL EMPLOYMENT IMPACT: The proposal has no effect on local economy; therefore, no local employment impact statement is required under TGC, §2001.022.

SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in TGC, §2006.002, is required.

COST INCREASE TO REGULATED PERSONS: The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to TGC, §2001.0045.

TAKINGS IMPACT ASSESSMENT: The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under TGC, §2007.043.

GOVERNMENT GROWTH IMPACT: The TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would limit an existing regulation by reducing the minimum sanction for contract abandonment 30 days prior to the first day of instruction when no mitigating factors apply from a one-year suspension to an inscribed reprimand. It would further limit an existing regulation by creating more mitigating factors and ways that a respondent can meet the definition of good cause, reducing the number of respondents who will be subject to sanction.

The proposed rulemaking would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not create a new regulation; would not expand or repeal an existing regulation; would not increase or decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.

PUBLIC BENEFIT AND COST TO PERSONS: The public benefit anticipated as a result of the proposal would be predictability and transparency in contract abandonment sanctioning by the SBEC. There is no anticipated cost to persons who are required to comply with the proposal.

DATA AND REPORTING IMPACT: The proposal would have no new data and reporting impact.

PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: The TEA staff has determined that the proposal would not require a written report or other paperwork to be completed by a principal or classroom teacher.

PUBLIC COMMENTS: The public comment period on the proposal begins October 22, 2021, and ends November 22, 2021. A form for submitting public comments is available on the TEA website at https://tea.texas.gov/About_TEA/Laws_and_Rules/SBEC_Rules_(TAC)/Proposed_State_Board_for_Educator_Certification_Rules/. The SBEC will take registered oral and written comments on the proposal at the December 10, 2021 meeting in accordance with the SBEC board operating policies and procedures. All requests for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the Department of Educator Preparation, Certification, and Enforcement, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, Attention: Ms. Emily Garcia, associate commissioner for educator preparation, certification, and enforcement, not more than 14 calendar days after notice of the proposal has been published in the Texas Register on October 22,2021.

SUBCHAPTER B. ENFORCEMENT ACTIONS AND GUIDELINES

19 TAC §249.15, §249.17

STATUTORY AUTHORITY. The amendments are proposed under Texas Education Code (TEC), §21.006(a)-(c-2), (f)-(g-1), and (i), which require the superintendent or director of a school district, district of innovation, open-enrollment charter school, other charter entity, regional education service center or shared services arrangement to report to the State Board for Educator Certification (SBEC) within seven business days of when the superintendent knew or received a report from a principal that an educator has resigned or is terminated and there is evidence that the educator has engaged in certain misconduct, unless the superintendent or director completes an investigation before the educator resigns or is terminated and determines that the educator did not commit the alleged misconduct. It also requires principals to report to superintendents within seven business days of when the superintendent knew or received a report from a principal that an educator has resigned or is terminated and when there is evidence that the educator has engaged in certain misconduct. It further authorizes the SBEC to impose sanctions on educators who fail to report as required by the statute, including authority to impose monetary administrative penalties, gives the SBEC rulemaking authority as necessary to implement the statute, requires the SBEC to create an internet portal to facilitate confidential and secure reporting, and gives the SBEC authority to impose administrative penalties on principals and superintendents who fail to fulfill their reporting obligations to the SBEC under TEC, §21.006; TEC, §21.007, which gives the SBEC authority to place a notice that an educator is under investigation for alleged misconduct on the educator's public certification records, which requires the SBEC to give the educator notice and an opportunity to show cause, which requires that the SBEC limit the amount of time the notice can appear on the educator's certification, and which gives the SBEC rulemaking authority as necessary to implement the provision; TEC, §21.009(e), which states that the SBEC may revoke the certificate of an administrator if the board determines it is reasonable to believe that the administrator employed an applicant despite being aware that the applicant had been adjudicated for or convicted of having an inappropriate relationship with a student or minor; TEC, §21.031(a), which charges the SBEC with regulating and overseeing all aspects of the certification, continuing education, and standards of conduct for public school educators; TEC, §21.035, which states that TEA staff provide administrative functions and services for SBEC and gives SBEC the authority to delegate to either the commissioner of education or to Texas Education Agency (TEA) staff the authority to settle or otherwise informally dispose of contested cases involving educator certification; TEC, §21.040(4), which requires the SBEC to develop policies that delineate the respective responsibilities of the SBEC and TEA staff; TEC, §21.041, which authorizes the SBEC to adopt rules as necessary for its own procedures, to regulate educators, specify the requirements for issuance or renewal of educator certificates, administer statutory requirements, provide for educator disciplinary proceedings, and for enforcement of the Educator's Code of Ethics; TEC, §21.058, which requires the SBEC to revoke the certification of an educator convicted or placed on deferred adjudication community supervision for certain offenses; TEC, §21.0581, which allows the SBEC to suspend, revoke, or sanction an educator's certificate, or refuse to issue a certificate, if the person has assisted another person in obtaining employment at a school district, private school, or open-enrollment charter school, other than by the routine transmission of administrative and personnel files when the person knew the other person had engaged in sexual misconduct with a student or minor in violation of the law; TEC, §21.060, which sets out crimes that relate to the education profession and authorizes the SBEC to sanction or to refuse to issue a certificate to any person who has been convicted of one of these offenses; TEC, §21.065, as added by HB 2519, 87th Texas Legislature, Regular Session, 2021, which sets requirements for the notice SBEC must send when it suspends an educator's certificate; TEC, §21.105(c), as amended by HB 2519, 87th Texas Legislature, Regular Session, 2021, which allows the SBEC to impose sanctions against an educator who abandons a probationary contract; TEC, §21.105(e), as added by House Bill (HB) 2519, 87th Texas Legislature, Regular Session, 2021, which requires the SBEC to consider any mitigating factors relevant to the teacher's conduct and allows the SBEC to consider alternatives to sanctions, including additional continuing education or training; TEC, §21.105(f), as added by HB 2519, 87th Texas Legislature, Regular Session, 2021, which forbids the SBEC from issuing a sanction of suspension or revocation for educators who abandon their contracts with school districts more than 30 days prior to the first day of instruction for the next school year; TEC, §21.160(c), as amended by HB 2519, 87th Texas Legislature, Regular Session, 2021, which allows the SBEC to impose sanctions against an educator who abandons a continuing contract; TEC, §21.160(e), as added by HB 2519, 87th Texas Legislature, Regular Session, 2021, which requires the SBEC to consider any mitigating factors relevant to the teacher's conduct and allows the SBEC to consider alternatives to sanctions, including additional continuing education or training; TEC, §21.160(f), as added by HB 2519, 87th Texas Legislature, Regular Session, 2021, which forbids the SBEC from issuing a sanction of suspension or revocation for educators who abandon their contracts with school districts more than 30 days prior to the first day of instruction for the next school year; TEC, §21.210(c), as amended by HB 2519, 87th Texas Legislature, Regular Session, 2021, which allows the SBEC to impose sanctions against an educator who abandons a term contract; TEC, §21.210(e), as added by HB 2519, 87th Texas Legislature, Regular Session, 2021, which requires the SBEC to consider any mitigating factors relevant to the teacher's conduct and allows the SBEC to consider alternatives to sanctions, including additional continuing education or training; TEC, §21.210(f), as added by HB 2519, 87th Texas Legislature, Regular Session, 2021, which forbids the SBEC from issuing a sanction of suspension or revocation for educators who abandon their contracts with school districts more than 30 days prior to the first day of instruction for the next school year; TEC, §22.082, which requires the SBEC to subscribe to the criminal history clearinghouse and allows the SBEC to obtain any criminal history from any closed case file; TEC, §22.0831, which requires the SBEC to review the criminal history of certified educators and applicants for certification; TEC, §22.085, which requires school districts, charter schools, and shared services arrangements to conduct fingerprint criminal background checks on employees and to refuse to hire those who have certain criminal history; TEC, §22.087, which requires superintendents and directors of school districts, charter schools, private schools, regional education service centers, and shared services arrangement to notify the SBEC if an applicant for a certification has criminal history that is not in the criminal history clearinghouse; TEC, §22.092, which requires school districts, charter schools, districts of innovation, regional education service centers, and shared services arrangements to discharge or to refuse to hire any person listed on the registry of persons not eligible for employment in Texas public schools; TEC, §22.093(a)-(f), which requires superintendents or directors of school districts, districts of innovation, charter schools, regional education service centers, or shared services arrangements to notify the commissioner of education if an employee resigned or was terminated and there is evidence that the employee abused or otherwise committed an unlawful act with a student or minor, or was involved in a romantic relationship with a student or minor; Texas Government Code (TGC), §411.090, which allows the SBEC to get from the Texas Department of Public Safety all criminal history record information about any applicant for licensure as an educator; TGC, §2001.058(e), which sets out the requirements for when the SBEC can make changes to a proposal for decision from an administrative law judge; TGC, §2001.142(a), which requires all Texas state licensing agencies to notify parties to contested cases of orders or decisions of the agency by personal service, electronic means, if the parties have agreed to it, first class, certified or registered mail, or by any method required under the agency's rules for a party to serve copies of pleadings in a contested case; Texas Family Code (TFC), §261.308(d) and (e), which requires the Texas Department of Family and Protective Services to release information regarding a person alleged to have committed abuse or neglect to the SBEC; TFC, §261.406(a) and (b), which requires the Texas Department of Family and Protective Services to send a copy of a completed investigation report involving allegations of abuse or neglect of a child in a public or private school to the TEA; and Texas Occupations Code (TOC), §53.021(a), 53.022-53.025, 53.051, and 53.052, which allow the SBEC to suspend or revoke an educator's certificate or refuse to issue a certificate if a person is convicted of certain offenses; which set out factors for the SBEC to determine whether a particular criminal offense relates to the occupation of education; which set out additional factors for the SBEC to consider when deciding whether to allow a person convicted of a crime to serve as an educator; which set out information the SBEC must give an applicant when it denies a license and requires that the SBEC allow 30 days for the applicant to submit any relevant information to the SBEC; which state that proceedings to deny or sanction an educator's certification are covered by the Texas Administrative Procedure Act, Chapter 2001, TGC; which give the SBEC rulemaking authority to issue guidelines to define which crimes relate to the profession of education; which require that the SBEC notify a license holder or applicant after denying, suspending, or revoking the certification; and which allow a person who has been denied an educator certification or had an educator certification revoked or suspended to file a petition for review in state district court after exhausting all administrative remedies; TOC, §56.003, which prohibits state agencies from taking disciplinary action against licensees for student loan non-payment or default; and Every Student Succeeds Act, 20 United States Code, §7926, which requires state educational agencies to make rules forbidding educators from aiding other school employees, contractors, or agents in getting jobs when the educator knows the job-seeker has committed sexual misconduct with a student or minor in violation of the law.

CROSS REFERENCE TO STATUTE. The amendments implement Texas Education Code, §§21.006(a)-(c-2), (f)-(g-1), and (i); 21.007; 21.009(e); 21.031(a); 21.035; 21.041; 21.058; 21.0581; 21.060; 21.065, as added by House Bill (HB) 2519, 87th Texas Legislature, Regular Session, 2021; 21.105(c), (e), and (f), as amended and added by HB 2519, 87th Texas Legislature, Regular Session, 2021; 21.160(c), (e), and (f), as amended and added by HB 2519, 87th Texas Legislature, Regular Session, 2021; 21.210(c), (e), and (f), as amended and added by HB 2519, 87th Texas Legislature, Regular Session, 2021; 22.082; 22.0831; 22.085; 22.087; 22.092; and 22.093(a)-(f); Texas Government Code, §§411.090, 2001.058(e), and 2001.142(a); Texas Family Code, §261.308(d) and (e) and §261.406(a) and (b); Texas Occupations Code, §§53.021(a), 53.022-53.025, 53.051, 53.052, and 56.003; and the Every Student Succeeds Act, 20 United States Code, §7926.

§249.15.Disciplinary Action by State Board for Educator Certification.

(a) Pursuant to this chapter, the State Board for Educator Certification (SBEC) may take any of the following actions:

(1) place restrictions on the issuance, renewal, or holding of a certificate, either indefinitely or for a set term;

(2) issue an inscribed or non-inscribed reprimand;

(3) suspend a certificate for a set term or issue a probated suspension for a set term;

(4) revoke or cancel, which includes accepting the surrender of, a certificate without opportunity for reapplication for a set term or permanently;

(5) impose any [additional] conditions or restrictions upon a certificate that the SBEC deems necessary to facilitate the rehabilitation and professional development of the educator or to protect students, parents of students, school personnel, or school officials; or

(6) impose an administrative penalty of $500-$10,000 on a superintendent or director who fails to file timely a report required under §249.14(d) of this title (relating to Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition) or on a principal who fails to timely notify a superintendent or director as required under §249.14(e) of this title under the circumstances and in the manner required by the Texas Education Code (TEC), §21.006.

(b) The SBEC may take any of the actions listed in subsection (a) of this section based on satisfactory evidence that:

(1) the person has conducted school or education activities in violation of law;

(2) the person is unworthy to instruct or to supervise the youth of this state;

(3) the person has violated a provision of the Educators' Code of Ethics;

(4) the person has failed to report or has hindered the reporting of child abuse pursuant to the Texas Family Code, §261.001, or has failed to notify the SBEC, the commissioner of education, or the school superintendent or director under the circumstances and in the manner required by the TEC, §21.006, §21.0062, §22.093, and §249.14(d)-(f) of this title;

(5) the person has abandoned a contract in violation of the TEC, §§21.105(c), 21.160(c), or 21.210(c);

(6) the person has failed to cooperate with the Texas Education Agency (TEA) in an investigation;

(7) the person has failed to provide information required to be provided by §229.3 of this title (relating to Required Submissions of Information, Surveys, and Other Data);

(8) the person has violated the security or integrity of any assessment required by the TEC, Chapter 39, Subchapter B, as described in subsection (g) of this section or has committed an act that is a departure from the test administration procedures established by the commissioner of education in Chapter 101 of Part 2 of this title (relating to Assessment);

(9) the person has committed an act described in §249.14(k)(1) of this title, which constitutes sanctionable Priority 1 conduct, as follows:

(A) any conduct constituting a felony criminal offense;

(B) indecent exposure;

(C) public lewdness;

(D) child abuse and/or neglect;

(E) possession of a weapon on school property;

(F) drug offenses occurring on school property;

(G) sale to or making alcohol or other drugs available to a student or minor;

(H) sale, distribution, or display of harmful material to a student or minor;

(I) certificate fraud;

(J) state assessment testing violations;

(K) deadly conduct; or

(L) conduct that involves inappropriate communication with a student as described in §247.2(3)(I) of this title (relating to Code of Ethics and Standard Practices for Texas Educators), inappropriate professional educator-student relationships and boundaries as described in §247.2(3)(H) of this title, or otherwise soliciting or engaging in sexual conduct or a romantic relationship with a student or minor;

(10) the person has committed an act that would constitute an offense (without regard to whether there has been a criminal conviction) that is considered to relate directly to the duties and responsibilities of the education profession, as described in §249.16(c) of this title (relating to Eligibility of Persons with Criminal History for a Certificate under Texas Occupations Code, Chapter 53, and Texas Education Code, Chapter 21). Such offenses indicate a threat to the health, safety, or welfare of a student or minor, parent of a student, fellow employee, or professional colleague; interfere with the orderly, efficient, or safe operation of a school district, campus, or activity; or indicate impaired ability or misrepresentation of qualifications to perform the functions of an educator and include, but are not limited to:

(A) offenses involving moral turpitude;

(B) offenses involving any form of sexual or physical abuse or neglect of a student or minor or other illegal conduct with a student or minor;

(C) offenses involving any felony possession or conspiracy to possess, or any misdemeanor or felony transfer, sale, distribution, or conspiracy to transfer, sell, or distribute any controlled substance defined in the Texas Health and Safety Code, Chapter 481;

(D) offenses involving school property or funds;

(E) offenses involving any attempt by fraudulent or unauthorized means to obtain or alter any certificate or permit that would entitle any person to hold or obtain a position as an educator;

(F) offenses occurring wholly or in part on school property or at a school-sponsored activity; or

(G) felony offenses involving driving while intoxicated (DWI);

(11) the person has intentionally failed to comply with the reporting, notification, and confidentiality requirements specified in the Texas Code of Criminal Procedure, §15.27(a), relating to student arrests, detentions, and juvenile referrals for certain offenses;

(12) the person has failed to discharge an employee or to refuse to hire an applicant when the employee or applicant was employed in a public school and on the registry of persons who are not eligible to be employed under TEC, §22.092, when the person knew that the employee or applicant had been adjudicated for or convicted of having an inappropriate relationship with a minor in accordance with the TEC, §21.009(e), or when the person knew or should have known through a criminal history record information review that the employee or applicant had been placed on community supervision or convicted of an offense in accordance with the TEC, §22.085;

(13) the person assisted another educator, school employee, contractor, or agent in obtaining a new job as an educator or in a school, apart from the routine transmission of administrative and personnel files, when the educator knew or had probable cause to believe that such person engaged in an inappropriate relationship with a minor or student;

(14) the person is a superintendent of a school district or the chief operating officer of an open-enrollment charter school who falsely or inaccurately certified to the commissioner of education that the district or charter school had complied with the TEC, §22.085; or

(15) the person has failed to comply with an order or decision of the SBEC.

(c) The TEA staff may commence a contested case to take any of the actions listed in subsection (a) of this section by serving a petition to the certificate holder in accordance with this chapter describing the SBEC's intent to issue a sanction and specifying the legal and factual reasons for the sanction. The certificate holder shall have 30 calendar days to file an answer as provided in §249.27 of this title (relating to Answer).

(d) Upon the failure of the certificate holder to file a written answer as required by this chapter, the TEA staff may file a request for the issuance of a default judgment from the SBEC imposing the proposed sanction in accordance with §249.35 of this title (relating to Disposition Prior to Hearing; Default).

(e) If the certificate holder files a timely answer as provided in this section, the case will be referred to the State Office of Administrative Hearings (SOAH) for hearing in accordance with the SOAH rules; the Texas Government Code, Chapter 2001; and this chapter.

(f) The provisions of this section are not exclusive and do not preclude consideration of other grounds or measures available by law to the SBEC or the TEA staff, including child support arrears. The SBEC may request the Office of the Attorney General to pursue available civil, equitable, or other legal remedies to enforce an order or decision of the SBEC under this chapter.

(g) The statewide assessment program as defined by the TEC, Chapter 39, Subchapter B, is a secure testing program.

(1) Procedures for maintaining security shall be specified in the appropriate test administration materials.

(2) Secure test materials must be accounted for before, during, and after each test administration. Only authorized personnel may have access to secure test materials.

(3) The contents of each test booklet and answer document are confidential in accordance with the Texas Government Code, Chapter 551, and the Family Educational Rights and Privacy Act of 1974. Individual student performance results are confidential as specified under the TEC, §39.030(b).

(4) Violation of security or confidential integrity of any test required by the TEC, Chapter 39, Subchapter B, shall be prohibited. A person who engages in conduct prohibited by this section may be subject to sanction of credentials, including any of the sanctions provided by subsection (a) of this section.

(5) Charter school test administrators are not required to be certified; however, any irregularity in the administration of any test required by the TEC, Chapter 39, Subchapter B, would cause the charter itself to come under review by the commissioner of education for possible sanctions or revocation, as provided under the TEC, §12.115(a)(4).

(6) Conduct that violates the security and confidential integrity of a test is evidenced by any departure from the test administration procedures established by the commissioner of education. Conduct of this nature may include, but is not limited to, the following acts and omissions:

(A) viewing a test before, during, or after an assessment unless specifically authorized to do so;

(B) duplicating secure examination materials;

(C) disclosing the contents of any portion of a secure test;

(D) providing, suggesting, or indicating to an examinee a response or answer to a secure test item or prompt;

(E) changing or altering a response or answer of an examinee to a secure test item or prompt;

(F) aiding or assisting an examinee with a response or answer to a secure test item or prompt;

(G) fraudulently exempting or preventing a student from the administration of a required state assessment;

(H) encouraging or assisting an individual to engage in the conduct described in paragraphs (1)-(7) of this subsection; or

(I) failing to report to an appropriate authority that an individual has engaged in conduct outlined in paragraphs (1)-(8) of this subsection.

(7) Any irregularities in test security or confidential integrity may also result in the invalidation of student results.

(8) The superintendent and campus principal of each school district and chief administrative officer of each charter school and any private school administering the tests as allowed under the TEC, §39.033, shall develop procedures to ensure the security and confidential integrity of the tests specified in the TEC, Chapter 39, Subchapter B, and shall be responsible for notifying the TEA in writing of conduct that violates the security or confidential integrity of a test administered under the TEC, Chapter 39, Subchapter B. A person who fails to report such conduct as required by this subsection may be subject to any of the sanctions provided by subsection (a) of this section.

§249.17.Decision-Making Guidelines.

(a) Purpose. The purpose of these guidelines is to achieve the following objectives:

(1) to provide a framework of analysis for the Texas Education Agency (TEA) staff, the presiding administrative law judge (ALJ), and the State Board for Educator Certification (SBEC) in considering matters under this chapter;

(2) to promote consistency in the exercise of sound discretion by the TEA staff, the presiding ALJ, and the SBEC in seeking, proposing, and making decisions under this chapter; and

(3) to provide guidance for the informal resolution of potentially contested matters.

(b) Construction and application. This section shall be construed and applied so as to preserve SBEC members' discretion in making final decisions under this chapter. This section shall be further construed and applied so as to be consistent with §249.5(b) of this title (relating to Purpose; Policy Governing Disciplinary Proceedings) and this chapter, the Texas Education Code (TEC), and other applicable law, including SBEC decisions and orders.

(c) Consideration. The following factors may be considered in seeking, proposing, or making a decision under this chapter:

(1) the seriousness of the violation;

(2) whether the misconduct was premeditated or intentional;

(3) attempted concealment of misconduct;

(4) prior misconduct and SBEC sanctions;

(5) the potential danger the conduct poses to the health and welfare of students;

(6) the effect of the prior conduct upon any victims of the conduct;

(7) whether sufficient time has passed and sufficient evidence is presented to demonstrate that the educator or applicant has been rehabilitated from the prior conduct;

(8) the effect of the conduct upon the educator's good moral character and ability to be a proper role model for students;

(9) whether the sanction will deter future violations; and

(10) any other relevant circumstances or facts.

(d) Contract abandonment.

(1) Good cause. The following factors may be considered good cause when an educator is reported to have abandoned a contract in violation of the TEC, §§21.105(c), 21.160(c), or 21.210(c):

(A) serious illness or health condition of the educator or close family member of the educator;

(B) relocation to a new city as a result of change in employer of the educator's spouse or partner who resides with the educator; [or]

(C) significant change in the educator's family needs that requires the educator to relocate or to devote more time than allowed by current employment; or [.]

(D) the educator's reasonable belief that the educator had written permission from the school district administration to resign.

(2) Mitigating factors. The following factors shall [may] be considered in seeking, proposing, or making a decision under this chapter regarding an educator who has abandoned a contract in violation of the TEC, §§21.105(c), 21.160(c), or 21.210(c). The educator:

(A) [educator] gave written notice to the school district 30 days or more in advance of the first day of instruction for which the educator will not be present;

(B) [educator] assisted the school district in finding a replacement educator to fill the position;

(C) [educator] continued to work until the school district hired a replacement educator;

(D) [educator] assisted in training the replacement educator;

(E) [educator] showed good faith in communications and negotiations with the school district; [or]

(F) [educator] provided lesson plans for classes following the educator's resignation; [.]

(G) changed careers within the field of education to a position that required a different class of educator certification as defined in §230.33(b) of this title (relating to Classes of Certificates) or to a position with a higher level of authority within the principal class of certificate;

(H) had a reduction in base pay, excluding stipends, as compared to the educator's base pay for the prior year at the same school district;

(I) had a change in the educator's campus assignment that caused a significant adverse impact on the educator's health condition or family needs; or

(J) resigned due to working conditions that reasonably posed an immediate threat of significant physical harm to the educator.

(3) Mandatory [minimum] sanction for contract abandonment. [An educator subject to sanction, who has abandoned a contract in violation of the TEC, §§21.105(c), 21.160(c), or 21.210(c) in a case where the factors listed in paragraph (1) or (2) of this subsection do not apply, may not receive a sanction of less than:]

(A) An educator subject to sanction, who has abandoned a contract 44-30 days prior to the first day of instruction for the following school year in violation of the TEC, §§21.105(c), 21.160(c), or 21.210(c), in a case where the factors listed in subsection (c) of this section or in paragraph (1) or (2) of this subsection do not mitigate or apply, shall receive a sanction of an inscribed reprimand.

(B) An educator subject to sanction, who has abandoned a contract less than 30 days prior to the first day of instruction for the following school year or at any point during the school year in violation of the TEC, §§21.105(c), 21.160(c), or 21.210(c), in a case where the factors listed in subsection (c) of this section or in paragraph (1) or (2) of this subsection do not mitigate or apply, may not receive a sanction of less than:

(i) [(A)] suspension for one year from the first day that, without district permission, the educator failed to appear for work under the contract, provided that the educator has not worked as an educator during that year and the case is resolved within that one year through an agreed final order; or

(ii) [(B)] suspension for one year from either the effective date of an agreed final order resolving the case or an agreed future date at the beginning of the following school year, if the educator has worked as an educator after abandoning the contract; or

(iii) [(C)] suspension for one year from the date that the SBEC adopts an order that becomes final following a default under §249.35 of this title (relating to Disposition Prior to Hearing; Default) or a contested case hearing at the State Office of Administrative Hearings (SOAH).

(C) The factors listed in subsection (c) of this section and in paragraphs (1) and (2) of this subsection may mitigate an educator's sanction so significantly that the SBEC takes no disciplinary action.

(e) Mandatory minimum sanction for felony-level conduct. An educator subject to sanction, who is court-ordered to complete a period of deferred adjudication or community supervision for a felony-level criminal offense under state or federal law, may not receive a sanction of less than:

(1) suspension for a period concurrent with the term of deferred adjudication or community supervision, if the case is resolved through an agreed final order prior to the educator completing deferred adjudication or community supervision and the educator has not been employed as an educator during the period of deferred adjudication or community supervision; or

(2) suspension beginning on the effective date of an agreed final order for a period extending beyond the end of the educator's deferred adjudication or community supervision but may be less than the initial court-ordered term of deferred adjudication or community supervision, if the case is resolved through an agreed final order prior to the educator completing deferred adjudication or community supervision and the educator has been employed as an educator during the period of deferred adjudication or community supervision; or

(3) suspension beginning on the effective date of an agreed final order for a period at least half as long as the initial court-ordered term of deferred adjudication or community supervision, if the case is resolved through an agreed final order after the educator has completed deferred adjudication or community supervision; or

(4) suspension for a period equal to the term of deferred adjudication or community supervision that the criminal court initially ordered but beginning from the date of the final board decision, if the case is resolved through a final board decision following a contested case hearing at the SOAH or a default under §249.35 of this title.

(f) Mandatory minimum sanction for misdemeanor-level conduct. If an educator is subject to sanction, and a court has ordered the educator to complete a period of deferred adjudication, community supervision, or pretrial diversion for a misdemeanor-level criminal offense under state or federal law, the educator may not receive a sanction of less than an inscribed reprimand.

(g) Mandatory minimum sanction for test security violation. An educator who intentionally manipulates the results or violates the security or confidential integrity of any test required by the TEC, Chapter 39, Subchapter B, may not receive a sanction of less than suspension for one year from the effective date of an agreed final order or a final board decision following a contested case hearing at the SOAH.

(h) Mandatory minimum sanction for drugs and alcohol on school campus. An educator who is subject to sanction because the educator has tested positive for drugs or alcohol while on school campus, was under the influence of drugs or alcohol on school campus, or was in possession of drugs or alcohol on school campus may not receive a sanction of less than a one-year suspension and required completion of a drug or alcohol treatment program.

(i) Mandatory permanent revocation or denial. Notwithstanding subsection (c) of this section, the SBEC shall permanently revoke the teaching certificate of any educator or permanently deny the application of any applicant if, after a contested case hearing or a default under §249.35 of this title, it is determined that the educator or applicant:

(1) engaged in any sexual contact or romantic relationship with a student or minor;

(2) solicited any sexual contact or romantic relationship with a student or minor;

(3) possessed or distributed child pornography;

(4) was registered as a sex offender;

(5) committed criminal homicide;

(6) transferred, sold, distributed, or conspired to possess, transfer, sell, or distribute any controlled substance, the possession of which would be at least a Class A misdemeanor under the Texas Health and Safety Code, Chapter 481, on school property;

(7) intentionally, knowingly, or recklessly causes bodily injury to a student or minor when the conduct of the educator or applicant is not immune from disciplinary proceedings by TEC, §22.0512; or

(8) committed any offense described in the TEC, §21.058.

(j) Mandatory minimum for failure to report. An educator subject to sanction, who fails to report educator misconduct under the circumstances and in the manner required by the TEC, §21.006, and §249.14(d)-(f) of this title (relating to Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition), when the case is resolved through an agreed final order, may not receive a sanction of less than:

(1) an inscribed reprimand and a $5,000 administrative penalty for a superintendent or director who fails to file timely a report to the SBEC; or

(2) an inscribed reprimand and a $500 administrative penalty for a principal who fails to timely notify a superintendent or director.

(k) Sanctioned misconduct in another state. The findings of fact contained in final orders from any other state jurisdiction may provide the factual basis for SBEC disciplinary action. If the underlying conduct for the administrative sanction of an educator's certificate or license issued in another state is a violation of SBEC rules, the SBEC may initiate a disciplinary action regarding the educator's Texas educator certificate and impose a sanction as provided under this chapter.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 11, 2021.

TRD-202104018

Cristina De La Fuente-Valadez

Director, Rulemaking

State Board for Educator Certification

Earliest possible date of adoption: November 21, 2021

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


SUBCHAPTER E. POST-HEARING MATTERS

19 TAC §249.42

STATUTORY AUTHORITY. The amendment is proposed under Texas Education Code (TEC), §21.031(a), which charges the SBEC with regulating and overseeing all aspects of the certification, continuing education, and standards of conduct for public school educators; TEC, §21.035, which states that TEA staff provide administrative functions and services for SBEC and gives SBEC the authority to delegate to either the commissioner of education or to TEA staff the authority to settle or otherwise informally dispose of contested cases involving educator certification; TEC, §21.040(4), which requires the SBEC to develop policies that delineate the respective responsibilities of the SBEC and TEA staff; TEC, §21.041, which authorizes the SBEC to adopt rules as necessary for its own procedures, to regulate educators, specify the requirements for issuance or renewal of educator certificates, administer statutory requirements, provide for educator disciplinary proceedings, and for enforcement of the Educator's Code of Ethics; and Texas Occupations Code, §§53.021(a), 53.022-53.025, and 53.051, which allow the SBEC to suspend or revoke an educator's certificate or refuse to issue a certificate if a person is convicted of certain offenses; set out factors for the SBEC to determine whether a particular criminal offense relates to the occupation of education; set out additional factors for the SBEC to consider when deciding whether to allow a person convicted of a crime to serve as an educator; set out information the SBEC must give an applicant when it denies a license and requires that the SBEC allow 30 days for the applicant to submit any relevant information to the SBEC; state that proceedings to deny or sanction an educator's certification are covered by the Texas Administrative Procedure Act, Chapter 2001, Texas Government Code; give the SBEC rulemaking authority to issue guidelines to define which crimes relate to the profession of education; and require that the SBEC notify a license holder or applicant after denying, suspending, or revoking the certification.

CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §§21.031(a); 21.035; 21.040(4); and 21.041(a), and (b)(1), (4), and (7); and Texas Occupations Code, §§53.021(a), 53.022-53.025, and 53.051.

§249.42.Procedure for the Suspension, Surrender, or Revocation of a Certificate.

(a) When the State Board for Educator Certification (SBEC) issues an order of suspension, surrender, or revocation, the Texas Education Agency (TEA) staff shall mail a copy of the order to the person who formerly held the certificate. If the parties have not agreed to the terms of the order, TEA staff shall send a notice with the order, including the findings of fact and conclusions of law on which the SBEC based its decision, and a statement that should the person desire to request that the SBEC reconsider the decision, the person should file a Motion for Rehearing with the SBEC.

(b) A record of the SBEC action suspending, accepting a surrender, or revoking the certificate shall be recorded on the educator's virtual certificate and shall become part of the person's official records maintained by the TEA staff.

(c) The TEA staff shall also notify the employing school district of the SBEC's order when it becomes administratively final.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 11, 2021.

TRD-202104019

Cristina De La Fuente-Valadez

Director, Rulemaking

State Board for Educator Certification

Earliest possible date of adoption: November 21, 2021

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