DAN MORALES 

ATTORNEY GENERAL 

QBffice of tty Bttornep @enera 

@ate of %exae 

March 21,199s 

Honorable Warren Chisum 

Chair 

Opinion No. DM-335 

Committee on Enviromnental Regulation 

Texas of House of Representatives 

P.O. Box 2061 

Pampa, Texas 790662061 

Dear Representative Chisum: 

Re: Whether an entity that contracts with 

an independent school district to provide 

educational services to the district under 

section 23.34 of the Education Code must 

comply with various statutory requirements 

imposed on school districts (RQ-722) 

You arik whether an entity that contracts with an independent school district to 

provide educational services to the district under section 23.34 of the Education Code 

must comply with various statutory requirements imposed on school districts. You ask 

about the following sections of the Education Code: 

l Section 16.052, requiring that, in order to receive thumcial 

support from the foundation school tImd, a “school district must 

provide for not less than 180 days of instruction for students and not 

less than three days of preparation for teachers for each school year” 

and “must provide for not less than 20 hours of staff development 

training,” except when the commissioner of education approves 

0thenvise”; 

l Section 16.054(b), requiring that, in order to receive tinancial 

support from the foundation school fund, a “school district may not 

enroll more than 22 students in a kindergarten, tirst, second, third, or 

fourth grade class”; 

l Section 13.909, requiring that “each teacher actively engaged in 

the instruction and supervision of students in public schools is 

entitled to at least a 30-minute lunch period free from all duties and 

responsibilities connected with the instruction and supervision of 

students”; 

l Section 21.920(b), requiring that “[a] student enrolled in a school 

district in this state shall be suspended from participation in any 

extracurricular activity sponsored or sanctioned by the school district 

during the grade reporting period after a grade reporting period in 
Honorable Warren Chisum - Page 2 (DM-335) 

which the student received a grade lower than the equivalent of 70 

on a scale of 100 in any academic class”; 

l Section 35043(a), requiring that “[elach school year, the Central 

Education Agency shall prepare and distribute to each school district 

a report card for each campus”; 

0 Section 35023(a), requiring that “‘nonexempt pupils in grades 

three through eight” shall be assessed annually in mathematics and 

reading andperiodicaliy in other subjects; and 

l Section 21.793(a), requiring that “[a] school district with 500 or 

more students enrolled in elementary school grades shall employ a 

counselor.“1 

Section 23.34 of the Education Code provides as follows: “‘The board of trustees 

of an independent school district may contract with a public or private entity for that entity 

to provide educational services for the district.” It was enacted by the legislature in 1993 

as part of Senate Bill 7, a lengthy education reform measure. See Act of May 28, 1993, 

73d Leg., ch. 347, $4.02, 1993 Tex. Sess. Law Serv. 1481, 1524. It was added to Senate 

Bill 7 as a floor amendment on second reading of the bill in the house.2 

Obviously, the foregoing statutory provisions apply to school districts, not to other 

entities. This is not dispositive of your inquiry, however. Section 23.34 does not relieve 

school districts that contract with other entities to provide educational services from 

complying with any of the foregoing requirements. Thus, for example, a school district 

that receives foundation school funds and contracts with another entity to provide 

educational services must still ensure that students enrolled in the school district receive 

not less than 180 days of instruction and that class sizes are limited, in compliance with 

sections 16.052 and 16.054(b). In other words, school districts must ensure compliance 

‘You also ask about sections 13.101 through 13.117 of the Education Coda, which authorize 

school districts to offer teachers probationary or continuing contracts. We note that section 23.28 of the 

Education Code authorizes school districts to offer teachers tams contracts. Gii that sections 13.101 

through13.117annotmandatoryinthesamesenseasthcothersstionswhichyouhave~usabout, 

weannotsurrwhyyouhanincludedthescprovisionrinyourqueryanddowtaddrrssthem. Wedo 

wtc, however, that WC arc aware of no provision providing school districts an exemption from state 

atatutcs regarding cdueatiooal employee tights and bcmfit. See Edac. Coda 0 11.273(e), 01); see a/m 

infa p. 3. Section 13.914 of the Education Code authorizes a school district to enter into an agreemant 

with a business to accept an employee of the business for special employment as a classroom teacher 

aohjcct to certdn wmIitions, hot dots not in my way a&t the wntrwhtal relationship between school 

districts and their tcachcrs. 

*We are net a- of any specik testimony or bill analyses which would shad light on the 

legislative intent with respect to section 23.34. 

p. 1776 
Honorable Warren Chisum - Page 3 (DM-335) 

with statutory requirements when contracting with other entities under section 23.34. We 

believe this is the case for the following reasons. 

All of the foregoing statutes expressly apply to school disrricts. Section 23.34 

does not abolish school districts. Thus, a school district will continue to exist even if it 

contracts with another entity to provide educational services. Furthermore, students 

receiving those services will continue to be students enrolled in the school district. The 

language of section 23.34 in no way suggests that a school district that contracts with 

another entity to provide educational services need not ensure that those services comply 

with all statutory mandates applicable to school districts, or that the students who receive 

such services are not to receive the benefit of those mandates. 

The legislative history of section 23.34 supports this conclusion. In enacting 

Senate Bii 7, which included section 23.34, the legislature also amended section 11.273 of 

the Education Code. That provision authorizes a school district to apply to the 

commissioner of education for a waiver of a requirement or prohibition imposed by law 

“that the campus or district determines inhibits student achievement.” Such a waiver must 

be of limited duration. Educ. Code 8 11.273(c), (d). With certain exceptions, waivers 

will not be granted for laws relating to curriculum essential elements restrictions on extracurricular activities, health and safety, competitive bidding, elementary school class size 

limits, minimum graduation requirements, removal of a disruptive student 6om the classroom, suspension or expulsion of a student, at risk programs, prekindergarten programs, 

and special and bilingual education programs. Educ. Code 8 11.273(e)(l) - (lo), (12). 

(h). In no case may an exception be made for a state law relating to “educational 

employee and educational support employee rights and benefits.” Educ. Code 

3 11.273(e)(l l), (h); see also supru note 1. 

In enacting Senate Bii 7, the legislature also amended section 11.27 of the 

Education Code, which permits school districts to obtain waivers for innovative programs, 

and enacted section 35.102 of the Education Code, which provides that a school district 

“‘that is rated as exemplary is exempt from requirements and prohibitions imposed under 

this code.” Section 35.102 contains a list of certain requirements that may not be waived 

that is similar to the list in section 11.273. Cornpore Educ. Code 5 11.273(e) with id. 

5 35.102(b). 

The legislature amended sections 11.27 and 11.273 and enacted section 35.102 in 

the same legislation in which it enacted section 23.34. Sections 11.27, 11.273, and 35.102 

appear intended to be the exclusive means by which school districts may obtain 

exemptions from statutory requirements, except as specifically noted. We believe that if 

the legislature had intended for section 23.34 to provide a mechanism for school districts 

to bypass compliance with statutory requirements by contracting with other entities, it 

would have done so expressly in Senate Bill 7 to make it clear that sections 11.27, 11.273, 

and 35.102 are not the exclusive means by which school districts can avoid statutory 

requirements. 

p. 1777 
Honorable Warren Chisum - Page 4 (DM-335) 

Fiy, we note that at least one brief submitted to this office argues that it would 

defeat the purpose of section 23.34 for us to conclude that school districts must ensure 

compliance with the statutory requirements when contracting with other entities. In this 

regard, we note that a school district that contracts with an entity to provide educational 

services may apply for a waiver under section $1.27, section 11.273, or section 35.102, 

just like any other school district. 

SUMMARY 

Section 23.34 of the Education Code, which permits school 

districts to wntract with public or private entities to provide 

educational serviws, does not relieve school districts that enter into 

such wntracts from complying with statutory requirements 

applicable to school districts. School districts must ensure 

wmpliance with stamtoty requirements when contracting with other 

entities under section 23.34. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fii Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opiion Committee 

Prepared by Mary R Crouter 

Assistant Attorney General 

p. 1778