### ATTORNEY GENERAL OFTEXAS

Mr. Felipe T. Alanis Commissioner of Education Texas Education Agency 1701 North Congress Avenue Austin, Texas 78701-1494 GREG ABBOTT

April 152003

Opinion No. GA-0060

Re: Relative authority of the State Board of Education and the Commissioner ofEducation with regard to the adoption of academic excellence evaluators and the evaluation of school districts under chapter 39 of the Education Code (RQ-0607-JC)

Dear Commissioner Alanis:

You inquire about the relative authority of the Commissioner of Education (“the Commissioner”) and the Texas Education Agency (“the Agency”) on the one hand, and the State Board of Education (“the Board”) on the other, with respect to the performance indicators and accreditation status for public schools under chapter 39 ofthe Education Code. Your questions first require the examination of section 39.05 1ofthe Education Code, concerning academic excellence indicators (“AEIs”), which was revised by three separate enactments of the Seventy-seventh Legislature.

Your questions are occasioned by acontroversy between the Board and the Cornmissioner
as to the responsibility for defining the appropriate dropout rate to be used in the annual determination ofthe performance ofTexas school districts and their accreditation status. Pursuant to section 39.073(a) of the Education Code, “The agency shall annually review the performance of each district and campus on the indicators adopted under sections 39.05 l(b)( 1) through (7) and determine ifachange in the accreditation status ofthe district iswarranted.” TEX.EDUC. CODE ANN. 5 39.073(a) (Vemon Supp. 2003). Section 39.051(a) of the Code provides, “The State Board of Education shall adopt a set of indicators ofthe quality oflearning on acampus. The State Board of Education biennially shall review the indicators for the consideration of appropriate revisions.” Id. 839.05 1(a). Questions have arisen that concern the use of a“completion rate” in the calculation of dropout rates for the purposes ofthe indicator required by section 39.05 1(b)(2). As you put it, “A number ofquestions have arisen regarding the authority ofthe Board over the AEIs

...and the effect of that authority on the commissioner’s role in determining a school district or campus’ accountability rating, as well as on the annual report required by Section 39.182.“’ You note in

‘Letter from Felipe T. Alanis, Commissioner of Education, Texas Education Agency, to Honorable John Cornyn, Texas Attorney General at 3 (Sept. 10,2002) (on file with Opinion Committee) [hereinafter Request Letter].Mr. Felipe T. Alanis - Page 2 (GA-0060)

particular aresolution adopted by the Board inNovember 200 1: “That ahigh school completion rate (Grades 9-12)re

place the annual dropout rate in the accountability rating system, starting in the year 2003-2004.” Request Letter, supra note 1(Exhibit A, Resolution) (emphasis added). Your concern iswhether the power granted to the Board in section 39.05 1(a) of the Education Code encompasses the sort of definition attempted by the November 2001 resolution, and how such definitions are to be considered in undertaking your responsibility to issue annual “report cards” and “performance reports” on the schools of Texas under sections 39.052 and 39.053.

Avariety ofbills were passed inthe Seventy-seventh Legislature amending section 39.05 1(b) of the Education Code, not all ofwhich appear to be entirely reconcilable. Accordingly, before we consider your particular questions we must determine which of two alternatives prevails in two instances. We must determine which “completion rate” statute effectively amends subsection (b)(2) of section 39.05 1, and whether the language permitting the Board to adopt “any other indicator” remains apart of subsection (b)( 10). Under Senate Bill 702, subsection (b)(2) of section 39.05 1 requires the AEIs to include “dropout and completion rates.” Act ofMay 17,2001,77th Leg., R.S., ch. 725, 0 4, 2001 Tex. Gen. Laws 1439, 1441. On the other hand, the statutory language was amended by House Bill 1144 to require the inclusion of“dropout rates, including dropout rates and district completion rates for grade levels 9through 12.” Act ofMay 24,200 1,77th Leg., R.S., ch. 834, 8 lo,2001 Tex. Gen. Laws 1657, 1663-64 (emphasis added). The last legislative action on Senate Bill 702 was on May 17,200 1. The last legislative action on House Bill 1144 was taken on May 24, 2001. Accordingly, to the extent these sections conflict, House Bill 1144’s language prevails. TEX.GOV’TCODE ANN.9311.025(b) (Vernon 1998) (later enactment prevails). The AEIs
are therefore mandated to contain “dropout rates, including dropout rates and district completion rates for grade levels 9through 12.”
The language giving the Board the power to adopt “any other indicator” was specifically deleted from the statute by Senate Bill 676. See Act ofApr. 5,2001,77th Leg., R.S., ch. 8,§ 3;2001 Tex. Gen. Laws 14, 15-16. There is no question that it was the intent of Senate Bill 676 to

“[d]elete[] text regarding any other indicator the State Board ofEducation adopts.” SENATE COMM. ONEDUCATION,

BILL ANALYSIS, Tex. S.B. 676,77th Leg., R.S. (2001). Accordingly, were Senate Bill 676 the only legislation enacted by the Seventy-seventh Legislature with regard to section 39.05 1(b)(lo), the legislature’s decision to strip the Board ofpower to adopt “any other indicator” would be unmistakably clear.
However, two later bills, Senate Bill 702 and House Bill 1144, contain the original language of subsection (b)( 10). It has therefore been argued that, as these enactments are later, section 311.025(b) of the Government Code provides that they prevail over the earlier language in Senate Bill 676 which stripped the Board of its powers under subsection (b)(10).2

2SeeBrief from Joe J.Bemal, Vice Chair, State Board ofEducation, toHonorable John Corny-n, Texas Attorney General at 5(Nov. 6,2002) (on file with Opinion Committee); Brief from Chris Patterson, Director ofEducation, Texas Public Policy Foundation, to Susan D. Gusky, Chair, Opinion Committee, Office ofthe Attorney General at 3 (Nov. 4, 2002) (on file with Opinion Committee).Mr. Felipe T. Alanis - Page 3 (GA-0060)

This argument, however, fails to take into account section 311.025(c) of the Government Code, which reads: (c) In deterrnining whether amendments are irreconcilable,

text that isreenacted because ofthe requirement ofArticle III, Section 36, of the Texas Constitution is not considered to be irreconcilable with additions or omissions in the same text made by another amendment. Unless clearly indicated to the contrary, an amendment that reenacts text in compliance with that constitutional requirement does not indicate legislative intent that the reenacted text prevail over changes in the same text made by another amendment, regardless of the relevant dates of enactment.

TEX.GOV’T CODEANN. 8311.025(c) (Vernon 1998) (emphasis added).
Article III, section 36, to which section 311.025(c) refers, states, “No law shall be revived
or amended by reference to its title; but in such case the act revived, or the section or sections amended, shall be re-enacted and published at length.” TEX. CONST.art. III, 8 36. As the Interpretive Commentary notes, “The evil designed tobe remedied by this mandate was the passage of amendments in terms soblind that legislators could be deceived in regard to their effects.

... An amendment which sought to insert words or substitute phrases byreference with no publication could well mislead as to its effect.” Id. inter-p. commentary. The Court ofCriminal Appeals explained in Rhoades v.State, 934 S.W.2d 113,121 (Tex. Crim. App. 1996)) “to amend astatute, the Legislature must indicate changes by interlineating the modifications onto the text ofthe statute asthe text was prior to amendment.”
Senate Bill 702 makes minor changes to the introductory language of section 39.05 1(b) and to subsection 7, but otherwise simply sets out the provision’s language in extenso. There is no indication by interlineation that itintends to reintroduce subsection (b)( 10). Nor does the legislative history suggest any such intent. The bill analysis describes that the relevant section of Senate Bill 702 “requires the indicators to be based on information that is disaggregated by race, ethnicity, gender (rather than sex), and socioeconomic status and requires the indicators to include certain information.” SENATE COMM.ONEDUCATION, BILLANALYSIS,

Tex. S.B. 702, 77th Leg., R.S. (2001).

House Bill 1144’s sole amendment to the language of subsection (b) is the addition of the words “including dropout rates and district completion rates for grade levels 9through 12”to section 39.05 1(b)(2). Otherwise, it simply sets forth the prior statutory language. Again, there is nothing in the bill analysis to suggest an intention to re-introduce subsection (b)(lO).
There is, therefore, no evidence in either of these bills of an attempt to reinstate the power to adopt other indicators which had been taken from the Board by Senate Bill 676. Absent such clear indication to the contrary, we cannot infer alegislative intent that the reenacted text in Senate Bill 702 or House Bill 1144 prevail over Senate Bill 676, even though they were enacted later.Mr. Felipe T. Alanis - Page 4 (GA-0060)

Accordingly, the operative amendment of subsection (b)(lO) is that of Senate Bill 676, deleting the text that indicates the Board has power to adopt “any other indicator.”

In light of this construction of the statute we turn to your specific questions. You first ask whether the Board may, pursuant to section 39.05 1(a), provide for the use ofthe particular method of dropout calculation at issue here, as it attempted to do by resolution on November 11,200l. It may not. The Board’s resolution required that “a high school completion rate replace the annual dropout rate in the accountability rating system.” Request Letter, supra note 1 (Exhibit A, Resolution) (emphasis added). Pursuant, however, to the change in subsection (b)(2) effected by House Bill 1144, the relevant indicator mandated by the legislature is “dropout rates, including dropout rates and district completion rates for grade levels 9through 12.” TEX.EDUC.CODE ANN. fj39.05 1(b)(2) (Vemon Supp. 2003) (emphasis added). To reach the conclusion that the Board’s resolution was consistent with this language, we would have to read dropout rates as restricted to completion rates. But “it is a well settled rule that the words ‘include,’ ‘including,’ and ‘shall include’ are generally employed as terms of enlargement rather than limitation or restriction.” Badouh v.Hale, 22 S.W.3d 392, 396 (Tex. 2000) (citing Republic Ins. Co. v. Silverton Elevators, Inc., 493 S.W.2d 748,752 (Tex. 1973)). The legislature has required that the calculation ofdropout rates include, but not be limited to, completion rates. What the legislature requires by statute, an administrative agency cannot gainsay by rule. See R.R. Comm ‘nv.Lone Star Gas Co., 844 S.W.2d 679,685 (Tex. 1992) (agency “can adopt only such rules as are authorized by and consistent with its statutory authority”).
Given that the Board’s authority to adopt other indicators was repealed by the abolition of section 39.05 l(b)(lO), you next ask whether indicators added by the Board to those mandated by statute before the effective date of the deletion of subsection (b)( 10) remain in effect. Any such indicators were, until that time, within the Board’s discretion. Accordingly, given that legislation is ordinarily prospective, see TEX.GOV’TCODE ANN.5311.022 (Vernon 1998)’ any such indicators properly so adopted remain in full force and effect.

Your final question concerns the effect ofthe Board’s attempted definition of dropout rates on the responsibility of the Commissioner and the Agency with respect to the determination of school accreditation status under sections 39.072(b) and 39.073 of the Education Code, as well as on the comprehensive annual report required ofthe Agency under section 39.182. Because we have determined that the Board lacked authority to promulgate such a definition, this question is moot.Mr. Felipe T. Alanis - Page 5 (GA-0060)

SUMMARY
The Seventy-seventh Legislature specifically required as an academic excellence indicator under section 39.05 l(b) of the Education Code the inclusion of “dropout rates, including dropout rates and district completion rates for grade levels 9 through 12.” Accordingly, the State Board of Education does not have the authority topromulgate arule mandating that such rates be computed based upon district completion rates alone. The Seventy-seventh Legislature further amended section 39.05 1(b)ofthe Education Code to excise the State Board ofEducation’s authority to adopt additional academic excellence indicators. Any such indicators adopted by the State Board before the effective date of this legislation, however, remain in full force and effect.Very truly yours,

BARRY R. MCBEE First Assistant Attorney General
DON R. WTLLETT Deputy Attorney General -Legal Counsel

NANCY S. FULLER Chair, Opinion Committee

James E. Tourtelott Assistant Attorney General, Opinion Committee