DAN MORALES 

ATTORNEY GENERAL 

QBffice of tfy Bttornep @eneral 

&date of IEexae 

November 21,1996 

Dr. Mike Moses 

Commissioner of Education 

Texas Education Agency 

170 1 North Congress Avenue 

Austin, Texas 78701-1494 

Opinion No. DM-424 

Re: Whether the State Board of Education may adopt 

a rule prescribing general content requirements for 

textbooks used in public schools, and whether the 

board’s authority over textbook adoption extends to 

Dr. Jack Christie 

Chair 

State Board of Education 

1242 1 Memorial Drive 

Houston, Texas 77024 

ancillary materials provided by publishers to schools at 

no cost to the state (RQ-903) 

Dear Commissioner Moses and Dr. Christie: 

You request our opinion regarding the authority of the State Board of Education (“the 

board”) to adopt a rule prescribing the content of state-Iimded textbooks for use in public schools. 

Cln July 12,1996, the board adopted a rule requiring textbooks to adhere to certain general content 

requirements and limitations as a condition of board approval. 21 Tex. Reg. 7238 (1996) (to be 

coditled at 19 T.AC. $66.66) (State Bd. of Educ). The board conditioned the effectiveness of the 

rule on a finding by this office that the rule is within the board’s rule-making authority. It is our 

opinion that the board has no authority to adopt the proposed rule prescribing textbook content. 

You also ask several questions regarding the board’s authority with respect to “ancillary’ 

items provided by textbook publishers t&s of charge to school districts. We conclude that the 

board’s authority to adopt or reject textbooks does not extend to consideration of ancillary items 

provided to school districts at no cost to the state. 

Textbook Adoation 

In 1995 the Texas Legislature completely revised the Education Code in Senate Bill 1, making 

substantive changes in the laws governing Texas public schools.’ The revised code sets out the 

powers and duties ofthe State Board of Education, a state agency that the constitution required the 

legislature to create with “such duties as may be prescribed by law.” Tex. Const. art. VII, $8; see 
Dr. Mike Moses and Dr. Jack Christie - Page 2 (DM-424) 

Educ. Code 5 7.102.’ As a state agency, the board has only those powers expressly granted to it or 

n&y implied from or incident to its express powers. CentruZEiiuc. Agency v. Upshur County 

Comm ‘rs Court, 731 S.W.2d 559,561 (Tex. 1987); Sherman v. Public Util. Comm’n, 643 S.W.2d 

681,686 (Tex. 1983); Attorney General Opinion JM-971 (1988) at 1. 

The legislature’s gmnt of power to the board allows the board to “perform only those duties 

relating to school districts nor regional education service centers assigned to the board by the 

constitution of this state or by [the Education Code].” Educ. Code 5 7.102. In a section entitled 

“Limitation on Authority,” the new code expressly reserves to school districts and open-enrollment 

charter schools any “educational fimction not specifically delegated to the [Texas Education Agency] 

or the board.” Id. § 7.003. In light of the code’s express limitations on the board’s authority, we 

construe stn’ctly its grants of power to the board. 

Education Code section 7.102(b)(24) requires the board to adopt textbooks and textbook 

rules required by chapter 31, governing state timding, adoption, and purchase of textbooks. 

Textbooks selected for use in public schools are provided without cost to students attending those 

schools, id $31.001, usingmoniesfromthe state textbook fimd, id $31.021. Section 31.003 gives 

the board authority to promulgate rules, consistent with chapter 3 1, for the adoption of textbooks. 

When given rule-making authority, a state agency generally may adopt only such rules as are 

authorized by and consistent with its statutory authority. An agency rule may’not impose additional 

burdens, conditions, or restrictions in excess of or inconsistent with relevant statutory provisions. 

Roilrood Comm’n v. Lone Star Gas Co., 844 S.W.2d 679,685 (Tex. 1992); RoiIroodComm’n v. 

Arco Oil & Gas Co., 876 S.W.2d 473,481-82 (Tex. App-Austin 1994, writ denied). Thus we 

consider whether the proposed textbook content requirements are authorized by or consistent with 

relevant statutory provisions. We conclude that they are not, in light of the Education Code’s specific 

provisions regarding textbook selection and the general intent of the revised code to reduce and limit 

the board’s authority. 

Chapter 3 1 of the Education Code contains specific instructions to the board with respect to 

textbook selection. Section 3 1.023 provides: 

?4rtide W, seetim 3 ofthe Texas Constitution euthti the coll&ion of ad v&rem taxes for the maintenance 

ml suppat of public schools and provides: “mt shall be the duly of the State Board of Education to set aside a suflicient 

amount out ofthe said tax to provide 6~ text be&s for the we of children attending the public 6ze schcols of this State.” 

A 1935 rattmrq general opinion held that this provision should be d broadly to give the board exclusive authority 

over the purchase and distribution of t&books, which authority could not be diminished by the legislahre. See Attorney 

Genwl Opinion O-2968 (193.5). While not ezqressly overruling Attorney General Opinion O-2%8, the attorney general 

subqwdy held that article VII, sxtim~ 3 was never intended to confer upon the board exclusive control over the textbook 

rid, and that the legislature retains power to press&e the manner of purchase and distribution of textbooks by the bard. 

See Attorney General Opinion O-561 (I 939); see &o Attorney General Opinions H-507 (1975) (al?imdng AItomey 

Genaalopiniono-%l),ww-1112(1%1)( concluding that legislahre conhols method of expending state textbook iimd). 

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(a) For each subject and grade level, the State Board of Education shall 

adopt two lists of textbooks. The conforming list includes each textbook 

submitted for the subject and grade level that meets applicable physical 

specitications adopted by the State Board of Education and contains material 

covering each element ofthe essential knowledge and skills of the subject and 

grade level as determined by the State Board of Education under Section 

28.002 and adopted under Section 3 1.024. The nonconforming list includes 

each textbook submitted for the subject and grade level that: 

(1) meets applicable physical specitications adopted by the State 

Board of Education; 

(2) contains material covering at least half, but not all, of the elements 

of the essential knowledge and skills of the subject and grade level; and 

(3) is adopted under Section 3 1.024. 

(b) Each textbook on a conforming or nonconforming list must be gee 

from factual errors. 

Section 3 1.024 contains additional specific instructions with respect to textbook 

adoption. It provides: 

(a) By majority vote, the State Board of Education shah: 

(1) place each submitted textbook on a conforming or nonconforming 

list; or 

(2) reject a textbook submitted for placement on a conforming or 

nonconforming list. 

Read together, sections 3 1.023 and 3 1.024 establish what the board must do with respect to 

each textbook submitted by a publisher for use in public schools. Each submitted book must be 

placed on the conforming list, placed on the nonconforming list, or rejected. A book is to be placed 

on the conforming list if it satisfies four conditions: (1) it meets board-established physical 

specitications, (2) it covers all of the essential knowledge and skills elements for the subject and grade 

pursuant to section 28.002, (3) it is adopted by a majority vote of the board under section 3 1.024, 

and (4) it contains no &ctual errors. Jfa textbook covers less than all but at least half of the essential 

knowledge and skills elements but satisfies the physical requirements, is tiee of factual errors, and is 

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Dr. Mike Moses and Dr. Jack Christie - Page 4 (DM-424) 

adopted by a majority vote of the board, it is to be placed on the nonconforming list.’ Jf a book is 

not eligible for either the conforming or nonconforming list, then it must be rejected. 

No other criterion for placement on the textbook lists is provided in chapter 3 1. Nor is any 

other ground for rejection provided. When a statutory power is granted, and the method of its 

exercise pmsc&ed, the prescribed method excludes all others and must be followed. Foster v. Ciry 

ofW~o,255S.W. 1104,1105(Tex. 1923);Colev. TemsAmyNat’IGmrd,909S.W.2d535,539 

(Tex. App.-Austin 1995, writ denied); Attorney General Opinion JM-995 (1988) at 5; 2A 

SUTHERLAND STATUTORY CONSTRUCTION 5 47.23 (5th ed. 1992). The content requirement rule 

proposed by the board would establish conditions for adoption or rejection of a textbook in addition 

to those specifically set out in the code, and would therefore be beyond the board’s rule-making 

authority. 

Adopted textbooks must contain materials covering the “essentialknowledge and skills” for 

the curriculum established by the board in accordance with section 28.002. Educ. Code $3 1.023. 

Section 28.002 sets out the minimum mquired curriculum for public schools. For school districts that 

offer kindergsrten through grade 12, subsection (a) requires a “foundation” curriculum that includes 

English language arts, mathematics, science, and social studies consisting of Texas, United States, 

and world history, govemment, and geography. Subsection (a) also requires an “emichment” 

curriculum that includes languages other than English, health, physical education, fine arts, economics 

(“with emphasis on the f?ee enterprise system and its be&its”), career and technology education, and 

technology applications. For school districts that do not offer kindergarten through grade 12, 

subsection (b) requires the board by rule to “designate subjects constituting a well-balanced 

curriculum.” Two provisions in section 28.002 address textbook selection in relation to curriculum: 

subsections (c) and (h). 

Subsection (c) requires the board, with the direct participation of educators, parents, business 

and industry representatives, and employers, to “identify [by rule] the essential knowledge and skills 

of each subject of the foundation curriculum that all students should be able to demonstrate and that 

will be used in evaluating textbooks under Chapter 3 1.” Educ. Code § 28.002(c).’ Subsection (c) 

allows the board to identify the specific “essential knowledge and skills” that textbooks must teach 

for each curriculum subject established by the legislature in subsection (a). It does not allow the 

board to establish general textbook content requirements. 

‘We note that subsection (d), requiring the board to identify the essential knowledge and skills fbr enrikhment 

cuniculusn, makes no reference to textbook adoption. Id. 8 28.002(d). 

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The second provision in section 28.002 address& textbook selection in relation to curriculum 

is subsection (h). Subsection (h) states: 

The State Board of Education and each school district shsll foster the 

continuadon of the tradition of teaching United States and Texas history and 

the the enterprise system in regular subject matter and in reading courses and 

in the adoption of textbooks. A primary purpose of the public school 

curriculum is to prepare thoughtfbl, active citizens who understand the 

importance of patriotism and can function productively in a free enterprise 

society with appreciation. for the basic democratic values of our state and 

national heritage. 

The code does not define the term “foster” or prescribe the manner in which the board and 

school districts may implement this provision. Nor does the “primary purpose” language mandate 

or direct any action by the board with respect to textbook selection. We believe that subsection (h) 

is intended to serve as an indication of legislative policy and a guide for the board and school districts 

in formulating their curriculum, and that it does not confer any additional power to the board with 

respect to textbook adoption. Tbe “primary purpose*’ language is identical to the language in former 

section 21.101(d), which read: 

(d) Local instructional plans may draw upon state curricula 

Sameworks and program standards as appropriate. The responsibility for 

enabling all children to participate actively in balanced curriculum which 

is designed to meet individual needs rests with the local school district. 

Districts are encouraged to exceed minimum requirements of the law. A 

primary purpose of the public school curriculum is to prepare thoughttil, 

active citizens who understand the importance of patriotism and can 

function productively in a t?ee enterprise society with appreciation for the 

basic democratic values of our state and national heritage.6 

It appears that the intent of the “primary purpose” language in section 2 1.101(d) was to give 

school districts some guidance in formulating their local curriculum plans. The former subsection 

made no reference to textbook adoption. We believe tbe current provision similarly is a guide for the 

board in formulating curriculum, not textbook content standards. 

It has been argued that the proposed content guidelines could be adopted pursuant to 

section 3 1.022, which provides, in pertinent part: 

(b) The board shall adopt rules to provide for a fir11 and complete 

investigation of textbooks for each subject in the foundation curriculum at 

‘ACt OfMay 25.1981.67th Leg., R.S., ch. 274.5 1.1981 Tex. Gen. Laws 727,121. 

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leasteverysixyears.... 

(c) The board shall adopt rules to provide for a tbll and complete 

investigation of textbooks for each subject in the enrichment curriculum on a 

cycle the board considers appropriate. 

We do not believe that motion 3 1.022 gives the board authority to adopt the proposed content 

8uidelines as part of their “full and complete investigation” of textbooks. The board’s investigation 

is limited to consideration of the criteria for textbook adoption set out in the code: physical 

specifications, essential knowledge and skills elements, and factual errors. 

The revised code’s specific instructions to the board with respect to textbook selection are 

consistent with the code’s reduction of the board’s overall authority in the governance of public 

schools. The former code gave the State Board of Education broad powers. The board was 

authorized to “take actions necessary to implement legislative policy for the public school system.” 

Act ofJune 5,1990,7lst Leg., 6th C.S., ch. 1, 8 2.06, 1990 Tex. Gen. Laws 1, 13. With respect to 

textbook selection, the board had great discretion. The former code allowed the board to select any 

textbooks “which in the opinion of the board [were] most acceptable for use in the schools.” Act of 

May 31,1%9,6lst Leg., RS., ch. 889,s 12.24,1969 Tex. Gen. Laws 2735,2779. The board could 

consider quality, mechanical construction, paper, print, price, authorship, literary merit, and “other 

relevant matters” in making its selections. Id In fact, consideration of textbook content was an 

express responsibility of the board: “The State Board of Education shall adopt rules to provide for 

a full and complete investigation of all books and accompanying bids and for an opportunity for 

members of the public to comment in regard to textbook content or in support of or against any 

textbookpresented.” ActofApril7, 1983,68thLeg.,RS., ch. 13, $ 10, 1983 Tex.Gen.L.aws83, 

90 (emphasis added). At least one content requirement was speciScally expressed: ‘No book 

adopted shall wntain anything of a partisan or sectarian character.” Act of May 3 1, 1969,6lst Leg., 

R.S., ch. 889, $ 12.14, 1969 Tex. Gen. Laws 2735,2775. 

No such broad authority over textbook adoption or specific control over content is found in 

the new Education Code. When the legislature amends a statute and omits language of the former 

statute in its amended version, the legislature is presumed to have intended to change the law. See 

Gateley v. Humphrey, 254 S.W.2d 98, 101; State v. Eversole, 889 S.W.2d 418,425 (Tex. App.- 

Houston [14th Dist.] 1994, pet. ref d); 1A SW STATUTORYCONSTRU~ON$~~.~O(~~~ 

ed. 1992). In great contrast to its former authority, the board’s powers are now expressly limited, 

and powers not assigned to the board are reserved to local school districts. See Educ. Code 

!j 7.003,.102. 

We also find support for our conclusion in the legislative history of Senate Bill 1, The bill as 

introduced by Senator Ratliff completely removed textbook selection power from the board. S.B. 

1,74th Leg., RS. (1995) (iioduced version). During consideration on the senate floor, Senate Bill 

1 was amended to allow the board to approve textbooks that “contain the essential elements of the 

p. 2367 
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subject” and were “free of factual errors.” S.J. ofTex., 74th Leg., R.S. 773-83 (1995) (Floor 

Amendment No. 44). Also adopted was a textbook content provision requiring approved books to 

be ‘%ee of language that refers to one or more specific racial groups and that, in the opinion of the 

board, considering the context in which the language occurs, is derogatory or malicious and has no 

educational purpose appropriate to the age of the student.” S.J. of Tex., 74th Leg., RS. 788 (1995) 

(Floor Amendment No. 44G). The conference wmmittee on Senate Bill 1 adopted the House of 

Representative’s version of the bii, which contained the conforming and nonconforming list scheme 

but eliminated the content requirement regarding racial groups, Kuther evidence of the legislature’s 

intent to limit the board’s review of textbooks to the criteria listed in section 3 1.023. 

We reviewed wmzspondence from members of the Seventy-fourth Texas Legislature stating 

that they did not intend Senate Bill 1 to remove the board’s authority to adopt gene4 content 

requirements. P&t-enactment statements of legislators, however, do not form part of the legislative 

history of provisions that may be taken account of in their construction. Gene& Chem. Corp. v. De 

LaZ.a?ru, 852 S.W.Zd 916,923 (Tex. 1993), cert. denied, 510 U.S. 985 (1993); Attorney General 

Opinion DM-321 (1995) at 1 n.1; (citing 2A Norman J. Singer, STATUTES AND STATUTORY 

CONSTRUCTION 5 48.16 (5th ed. 1992)). 

Members ofthe legislature have also made post-enactment statements that they intended the 

board to retain power over textbook selection. We note that the board does retain power over 

textbook selection. The board establishes curriculum requirements, screens books for quality and 

fkctual errors, and enters into contracts with publis&rs. However, the board may exercise authority 

over textbook selection only within the scope of the power granted to it by the legislature. We 

conclude that the power granted to the board in the revised Education Code does not include 

authority to adopt the proposed rule prescribing textbook content. 

Ancillsw Materialg 

You also ask several questions regarding the board’s authority with respect to “ancillary” 

items provided by textbook publishers free of charge to school districts. Your questions are: 

Does the Board’s authority to adopt or reject textbooks extend to 

consideration of ancillary items? 

Do all materials which a publisher provides a school district wme within the 

definition of”‘textbool? [under] section 3 1.002(3) or may a publisher choose 

what materials are submitted for consideration under Section 3 1.023? 

May the Board reject a textbook submitted for consideration because of the 

nature of an ancillary item which has not been submitted? 

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Dr. Mike Moses and Dr. Jack Christie - Page 8 (DM-424) 

“Textbook” is defined broadly in the revised Education Code as “a book, a system of 

instructional materials, or a combination of a book and supplementary instructional materials that 

wnveys information to the student or otherwise contributes to the learning process, or an electronic 

textbook.” Educ. Code $3 1.002(3). The only reference to “ancillary’ materials in the Education 

Code is in section 3 1.15 1, which requires textbook publishers and manufacturers to provide any 

“‘textbook or ancillary item” fhae of charge in Texas to the same extent that it is provided free of 

charge to any other state, school or school district in the United States. Id 0 3 1.15 l(a)(3). Given 

the ordinary meaning of ancillary--which is synonymous with “subordinate,” “auxiliary,” and 

“supplementary”‘-ancillary materials would appear to come within the broad definition of 

“textbook,” which includes “supplementary instructional materials.” Id, 3 3 1.002(3). However, the 

reference to ancillary items in section 3 1.15 1 suggests that the legislature envisioned that items not 

within the definition of “textbook” may be supplied by publishers to schools. 

The textbook adoption and purchasing laws in chapter 3 1 of the code do not refer to ancillary 

materials. Textbooks are to be adopted or rejected from the books submitted to the board. Id 

@ 3 1.023, .024. Furthermore, the purpose of chapter 3 1 is to provide for a system of selecting slate 

funded textbooks. The state will pay only for approved books, but districts are free to use local fbnds 

to purchase any book they choose. Zu! 4 31.106. Nothing in the code prohibits districts 6om 

acquiring books free of charge. Therefore, we do not believe that the board’s authority to adopt or 

reject textbooks extends to consideration of ancillary items provided to school districts free of charge. 

Because the board is to select or reject textbooks from the books submined, we believe that the 

submitting party may determine what materials are to be included for review. 

submitted to the board may be the basis for adoption or rejection of a textbook. 

Only the materials 

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Dr. Mike Moses and Dr. Jack Christie - Page 9 (DM-424) 

SUMMARY 

The State Board of Education has no authority under the Texas 

Education Code to adopt mles regarding the content of state-approved 

textbooks establishing criteria for approval beyond the criteria contained 

in section 31.023 ofthe Education Code. The board’s authority to adopt 

or reject textbooks does not extend to consideration of ancillary items 

provided to school districts free of charge. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Barbara Griffin 

Assistant Attorney General 

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