DAN MORALES

ATTORNEY GENERAL 

## QBffice of tfy Bttornep @eneral &date of IEexae November 21,1996
Dr. Mike Moses Commissioner ofEducation Texas Education Agency 1701North Congress Avenue Austin, Texas 78701-1494 Opinion No. DM-424 Re: Whether the State Board ofEducation 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 12421Memorial Drive Houston, Texas 77024 ancillarymaterials 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. ClnJuly 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 19T.AC. $66.66) (State Bd. ofEduc). 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 1995the TexasLegislature completely revisedthe Education Code in Senate Bill 1,making substantive changes in the laws governing Texas public schools.’ The revised code sets out the powers andduties 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; seeDr. Mike Moses and Dr. Jack Christie - Page 2 (DM-424)

Educ. Code 57.102.’ As a state agency, the board has only those powers expressly granted to it or n&y impliedfrom or incident to its express powers. 

### CentruZEiiuc. Agencyv. UpshurCounty Comm‘rsCourt,731 S.W.2d 559,561 (Tex. 1987);

### Shermanv.Public Util.Comm’n,643 S.W.2d 681,686 (Tex. 1983); Attorney General Opinion JM-971 (1988) at 1. The legislature’s gmnt ofpower to the board allows the board to “perform only those duties relating to school districts norregional 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’ctlyits 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 31,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’nv.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 ofthe Education Code’s specific provisions regarding textbook selection andthe general intent of the revised code to reduce and limit the board’s authority. Chapter 31ofthe Education Code contains specific instructions to the board with respect to textbook selection. Section 31.023 provides:

?4rtide W, seetim 3 ofthe Texas Constitution euthti the coll&ion of ad v&rem taxes for the maintenance ml suppat ofpublicschools and provides:“mtshall betheduly of the State Board of Education to set aside a suflicient amount out ofthe said tax toprovide 6~ text be&sfor 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 ofEducation 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 ofEducation and contains material covering each element ofthe essentialknowledge and skills ofthe subject and grade level as determined by the State Board of Education under Section 28.002 and adopted under Section 31.024. The nonconforming list includes each textbook submitted for the subject and grade level that: (1) meets applicable physical specitications adopted by the State Board ofEducation; (2) contains material covering at leasthalf, but not all, ofthe elements of the essential knowledge and skills ofthe subject and grade level; and (3) is adopted under Section 31.024. (b) Each textbook on a conforming or nonconforming list must be gee from factual errors. Section 31.024 contains additional specific instructions with respect to textbook adoption. It provides:

(a) By majority vote, the State Board of Education shah: (1) place each submittedtextbook on a conforming or nonconforming list; or (2) reject a textbook submitted for placement on a conforming or nonconforming list. Read together, sections 31.023 and 31.024 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. Abook is to be placed on the conforming list if it satisfies four conditions: (1) it meets board-established physical specitications, (2) it covers allofthe essentialknowledge and skillselements for the subject and grade pursuant to section 28.002, (3) it is adopted by a majority vote ofthe board under section 31.024, and (4)it contains no &ctual errors. Jfa textbook covers less than all but at least half ofthe essential knowledge and skillselementsbut satisfies the physical requirements, is tiee of factual errors, and is

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adopted by a majority vote of the board, it is to be placed on the nonconforming list.’ Jfa 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 31. Nor is any other ground for rejection provided. When a statutory power is granted, and the method of its exercisepmsc&ed, the prescribed method excludes all others and must be followed. 

### Fosterv. 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 establishconditions 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 minimummquired curriculumfor 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” curriculumthat includes languages other than English,health, physical education, fine arts, economics (“withemphasison the f?eeenterprise system and itsbe&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 directparticipation of educators, parents, business and industry representatives, and employers, to “identify [by rule] the essential knowledge and skills ofeach subjectofthe foundation curriculum that all students should be able to demonstrate and that will be used in evaluating textbooks under Chapter 31.” 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 inrelation to curriculum is subsection (h). Subsection (h) states:

The State Board of Education and each school district shsll foster the continuadon ofthe tradition ofteaching United States and Texas history and the the enterprise systeminregular 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) isintended to serve as an indication oflegislativepolicy 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 “primarypurpose*’language is identical to the language in former section 21.101(d), which read:

(d) Local instructional plans may draw upon state curricula Sameworks andprogram 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 ofthe law. A primary purpose ofthe public school curriculum is to prepare thoughttil, active citizens who understand the importance of patriotism and can function productively inat?eeenterprise society with appreciation for the basic democratic values of our state and national heritage.6 It appears that the intent ofthe “primary purpose” language in section 21.101(d) was to give school districts some guidance in formulating their local curriculum plans. The former subsection madeno reference to textbook adoption. We believetbe 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 31.022, which provides, in pertinent part:

(b) The board shall adopt rules to provide for a fir11and 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 oftextbooks for each subject in the enrichment curriculum on a cycle the board considers appropriate. We do not believethat motion 31.022givesthe board authority to adopt the proposed content 8uidelines aspart oftheir “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 inthe opinion ofthe 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 expressresponsibility 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 regardto textbookcontent 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 shallwntain anything of apartisan or sectarian character.” Act ofMay 31, 1969,6lst Leg., R.S., ch. 889, $ 12.14, 1969 Tex. Gen. Laws 2735,2775.
No suchbroad 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 ofthe former statute in its amended version, the legislature is presumed to have intended to change the law. See 

### Gateleyv.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 1was amended to allow the board to approve textbooks that “contain the essential elements of the
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subject” and were “free of factual errors.” S.J. ofTex., 74th Leg., R.S. 773-83 (1995) (Floor AmendmentNo. 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 ofthe 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 eliminatedthe content requirement regarding racial groups, Kuther evidence of the legislature’s intent to limit the board’s review oftextbooks to the criteria listed in section 31.023.
We reviewed wmzspondence from members ofthe 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 ofprovisions that maybetaken account of in their construction. 

### Gene& Chem.Corp.v.De LaZ.a?ru,852S.W.Zd916,923 (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 ANDSTATUTORY CONSTRUCTION

548.16 (5th ed. 1992)). Members ofthe legislaturehave 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 allmaterials which a publisher provides a school district 

### wme withinthe definition of

”‘textbool? [under] section 31.002(3) or may a publisher choose what materials are submitted for consideration under Section 31.023? May the Board reject atextbook submitted for consideration because of the nature of an ancillary item which has not been submitted?

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“Textbook” is defined broadly in the 

### revisedEducation Code as 

### “abook, 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 31.151, 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 31.15l(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 31.002(3). However, the reference to ancillary items in section 31.151 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 lawsin chapter 31ofthe code do not refer to ancillary materials. Textbooks are to be adopted or rejected from 

### the books 

### submittedto the board. Id @ 31.023, .024. Furthermore, the purpose ofchapter 31isto provide for a system of selecting slate 

### funded textbooks. The state willpay 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 acquiringbooks free of charge. Therefore, we do not believe that the board’s authority to adopt or reject textbooks extends to consideration ofancillaryitemsprovided 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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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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