DAN MORALES 

AI-TORNW CENERAL 

QBffice of the Bttornep QBenerat 

&tate of Z!Cexas 

January 9,1998 

Dr. Mike Moses 

Commissioner of Education 

Texas Bducation Agency 

170 1 North Congress Avenue 

Austin, Texas 78701-1494 

Opinion No. DM-465 

Re: State Board of Education adoption of sex 

education curriculum and textbooks (RQ-942) 

Dr. Jack Christie 

Chair, State Board of Education 

1701 North Congress Avenue 

Austin, Texas 78701-1494 

Dear Commissioner Moses and Chairman Christie: 

Under the revised Education Code,’ the State Board of Education (the “board”) is required 

to establish the public school curricuhnn and adopt textbooks for use in public schools. At the same 

time, the Education Code allows local school districts to choose course materials and instruction 

relating to human sexuality, sexually transmitted diseases, the human immunodeficiency virus, and 

acquired immune deficiency syndrome for use in their districts. The code also mandates five 

elements, mostly relating to abstinence t?om sexual activity, that must be included in any course 

materials and instruction on human sexuality chosen by a district. You ask about the relationship 

between the powers granted to the board and those granted to local school districts with respect to 

sex,education in public schools. 

We begin by discussing the relevant law. Section 28.002 of the Education Code sets out the 

minimum curriculum that must be offered by a public school district with grades kindergarten 

through twelve.2 Each school district must provide a “foundation cur&mum” consisting of English, 

matheanatks, science, and social studies. E&c. Code 5 28.002(a)(l); id. $4.002. Each district must 

also provide an “emichment curriculum” that includes health, physical education, fine arts, 

economics, career and technology education, technology applications, and, to the extent possible, 

languages other than English. Id. 5 28.002(a)(2). 

‘Act of May 21,1995,74th Leg., ch. 260, 1995 Tex. Gen. Laws 2207.2207. 

‘For school districts that do not offer kindergarten through grade 12, the. board must designate subjects 

comtihUin~ a well-balanced curriculum. Fduc. code 8 28.002(b). 
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For each foundation curriculum subject, the board must identify the “essential knowledge 

and skills,” commonly known as “TEKS,” that all students should be able to demonstrate for that 

subject at the appropriate grade level.’ Id. 4 28.002(c). The TEKS are developed with input 6om 

educators, parents, business and industry representatives, and employem. Id. The foundation TEKS 

must be considered by the board in evaluating textbooks for use in schools’ and must be included 

in the assessment of academic skills test, known as ‘TAAS,” required of all students5 Jnstruction 

in the TEKS for each foundation subject is required for accreditation of a school district by the 

board. Id. $28.002(c); see id. $9 11.001 (requiring each school district to be accredited), 39.071 - 

.076 (setting criteria and procedures for accreditation), 39.13 1 (establishing sanctions for failure to 

satisfy accreditation criteria). 

For each enrichment curriculum subject, the board must also establish TEKS. Enrichment 

curriculum subjects are not required to be included in the TAAS test, and instruction of enrichment 

curriculum TEKS is not a condition of accreditation. Instead, “]e]ach district shall use the essential 

knowledge and skills identified by the board as guidelines in providing instruction in the enrichment 

cuniculum.” Id. § 28.002(d) (emphasis added). 

The board must adopt two lists of textbooks for each subject in both the foundation and 

emichment curricula. See id. $9 31.022, .023, .024. Books reviewed by the board are placed on 

the “conforming list” if they cover all of the TBKS elements for the subject. Id. $31.023. Books 

are placed on the “nonconforming list” ifthey cover at least half, but not ah, of the TEKS elements6 

Id. For subjects in the foundation curricuhrm, local school districts must select books Tom either 

the conforming or nonconforming list in order to have the cost of the books paid by the state. Id. 

9 31.101. The state will not pay for any part of the cost of a foundation subject book that does not 

appear on the conforming or nonconfotming list. For subjects in the emichment cunicul~, 

however, the state will pay for the 111 cost of books selected t?om either list, and seventy percent 

of the cost of books that do not appear on either list. Id. A school district may use local funds to 

purchase any textbook it likes for any subject. Id. 5 3 1.106. 

In sum, the Education Code requires the state board to establish TBKS for foundation and 

emichment curricuhnn subjects and adopt textbooks containing at least half of the TEXS elements 

yrhe code declares that “[i]t is the intent of the legislature that the esential knowledgt and skills developed 

by ~StatcBoardofEducation...shallrequirc~studcntstodarmnstratethelmowledgeandsldllsnecessarytoread, 

write, compute, problem solve, think critically, apply technology, and communicate. across all subject axas.” Id. 

$28.001. 

‘See Id. 5 3 1.023 (requiriag board to adopt lists of textbooks from which districts may choose books for use 

in schools); see generaIly Attorney General Opinion DM-424 (1996) at l-8 (discussing textbook selection). 

%ee Fduc. Code ch. 39 (providing for system of public school assessment to ensure school accounkabiity for 

student achievement). 

6Books on both lists must also meet the board’s physical specifications, contain no factual errors, and be 

adopted by majority vote ofthe board. Id. $31.023. 
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for each subject. At the same time, the boards of trustees of local school districts are required, 

pursuant to section 28.004 of the Education Code, to select “[altry course materials and instruction 

relating to human sexuality, sexually transmitted diseases, or human immunodeficicncy virus or 

acquired immune deficiency syndrome. . . with the advice of the local health education advisory 

council established Iby the board of trustees].” Id. $28.004(a). The local health education advisory 

council “as&s+] the district in ensuring that local community values and health issues are reflected 

in the district’s human sexuality instruction.” Id. 5 28.004(e). The council’s members, a majority 

of whom must be parents of students enrolled in the district, must include “persons who represent 

diverse views in the community about human sexuality instruction.” Id. § 28.004(g). The council’s 

duties include recommending appropriate grade levels for human sexuality instruction, 

recommending the methods of instruction to be used by a teacher, and recommending the number 

of hours of instruction to be provided. Id. 9 28.004(f). With the advice of the council, the district’s 

board of trustees is directed to “determine the specific content of the district’s instruction in human 

sexuality.” Id. $28.004(d). 

While section 28.004 creates local control over sex education, it also lays out five mandates 

with respect to the subject. Any course materials and instruction in human sexuality selected by a 

district must: 

(1) present abstinence &om sexual activity as the preferred choice of 

behavior in relationship to all sexual activities for unmarried persons of 

school age; 

(2) devote more attention to abstinence t+om sexual activity than to any 

other behavior, 

(3) emphasize that abstinence from sexual activity, if used consistently 

and correctly, is the only way that is 100 percent effective in preventing 

vw=w9 sexually transmitted diseases, infection with human 

immunodeficiency virus or acquired immune deficiency syndrome, and the 

emotional trauma associated with adolescent sexual activity; 

(4) direct adolescents to a standard of behavior in which abstinence t?om 

sexual activity before msrriage is the most effective way to prevent 

pregnancy, sexually transmitted diseases, and Section with human 

immunodeficiency virus or acquired immune deficiency syndrome; and 

(5) teach contraception and condom use in terms of human use reality 

rates instead of theoretical laboratory rates, if instruction on contraception 

and condoms is included in ctmiculum content. 

Id. 5 28.004(a). Under section 28.004, if a school district offers sex education, it must do so 

according to local guidelines but with the state-mandated components. 

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Dr. Jack Christie 

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Your questions arise fivm the apparent wnflict between the boa&s duty to establish TBKS 

and adopt textbooks, and a local school district’s duty to fommlate any human sexuality instruction 

it chooses to offer, select appropriate wurse materials, and comply with the abstinence mandates. 

Our goal in this opinion is to harmonize the relevant provisions, if possible, so as to give effect to 

the entire statute in accordance with legislative intent See Klinger v. City of San Angelo, 902 

S.W.2d 669 (Tex. App.-Austin 1995, writ denied); Attorney General Opinion DM-353 (1995) at 

3; Gov’t Code 9 3 11.021 (“In enacting a statute, it is presumed that . . . the entire statute is intended 

to be effective; . . . .“); id. 4 311.026 (“If a general provision conflicts with a special or local 

provision, the provisions shall be construed, if possible, so that effect is given to both.“). 

We turn to your specific questions, which we have summarized and combined into three 

areas of inquiry. You first ask: 

Does section 28.004 in any way limit the authority granted to the board 

by section 28.002 to develop the TEKS? If so, are the limits different for the 

foundation and enrichment curriculums? Must TEKS adopted pursuant to 

section 28.002 include the elements ofhuman sexuality instruction set out in 

section 28.004? 

Section 28.004’s effect on the board’s powers under section 28.002 is different for foundation 

and enrichment curricula. Because instruction in foundation TEZLS is a wndition of accreditation 

and because the TEKS are required to be included on the TAAS test, sex education TBKS adopted 

as part of a foundation curriculum subject would be mandatory for local school districts. Districts 

would thereby be placed in a position of conflict with their obligation under section 28.004 to 

develop a locsl wurse of instruction for sex education. To the extent they wnflict, the specific sex 

education requirements dire&d to local school districts in section 28.004 prevail over the authority 

granted to the state board in section 28.002 to set TBKS for curricula subjects generslly. See Gov’t 

Code 5 311.026(b) (providing that special or local provision prevails as an exception to general 

provision where wnflict is irreconcilable). 

Furthermore, we doubt that the legislature intended to allow the board to establish TBKS for 

sex education as part of a foundation curricula subject. Gur examination of the legislative history 

of section 28.004 indicates that the legislature intended to allow school districts to decide whether 

to offer instruction in human sexuality. See Conference Comm. on Senate Bill 1, 75th Leg. 

(May 11,1995) (tmnscript available t?om Senate Staff Services) (statement of Rep. Sadler). They 

would not have this discretion if sex education were required as a foundation subject. We conclude, 

therefore, that the board may not adopt human sexuality TEKS as part of a foundation curriculum 

subject. 

1 

Enrichment curriculum TEKS, on the other hand, may be used merely as guidelines for local 

districts. A district that decides to offer sex education could adopt a local instructional plan in 

accordance with section 28.004 irrespective of any TEKS adopted by the state board, and thus no 

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wnflict between the provisions would exist. We conclude, therefore, that the board may, but is not 

required to, adopt TEKS for sex’education as part of an enrichment curriculum subject7 

However, a board rule establishing TEKS inconsistent with the section 28.004 abstinence 

mandates would be useless to school districts. Statutes creating and defining the powers of 

. admnmt&ve agencies are to be wnstrued under the presumption that the legislature never intends 

that functions committed to agency should be exercises in futility. Beaver Express Service, Inc. v. 

Ra&oadComm ‘n, 727 S.W.2d 768,773-74 (Tex. App.-Austin 1987, writ denied). Thus any human 

sexuality TEKS adopted by the board as part of an enrichment subject must be consistent with the 

mandates set out in section 28.004. 

You next ask “May the board adopt a textbook that addresses human sexuality but which 

does not contain the elements of human sexuality instruction set out in section 28.004?’ 

The board may adopt a textbook if it wntains half of the TEKS for the subject for which the 

book is to be used. Id. $3 1.023. If the board adopts TEKS relating to human sexuality, which 

TEKS must be wnsistent with the requirements of section 28.004, the board may adopt a textbook 

on human sexuahty if it includes at least half of the TEKS elements, even if it does not include all 

of the elements. 

In our view, a local school district is not prechtded tIom using a board-adopted textbook that 

does not wntain all the elements that section 28.004 requires in any “wurse materials and 

instructions” in human sexuality. We do not believe that each “wurse material,” such as a textbook, 

must include sII of the elements. Instead, we believe that wurse materials and instruction as a whole 

must satisfy the mquirements of section 28.004. That is, emphasis on abstinence required by section 

28.004 may be conveyed to students through a combination of different materials and classroom 

instruction, even if one source does not contain all the required elements. 

Finally, you ask: 

May a school district select a textbook for local use that contains material 

inwnsistent with the course of instruction for humau sexuality selected by the 

district? If yes, may a school district selectively use the wmponents in a 

manner that complies with the local course of instruction chosen pursuant to 

section 28.004. 

The snswer to both of these quations is yes. Section 28.004 allows local school districts to 

choose the “wurse materials” for use in human sexuality instruction and requires the materials to 

include certain elements. The Education Code does not define “wurse materials,” but “instructional 

‘It is our understanding that your questions arise. from the board’s adoption of TEKS for human sexuality as 

part of health class, me of tbe enrichment curriculum subjects. See Texas Educ. Agency, 22 Tex. Reg. 7755,7759 

(Aug. l&1997) (codified at T.A.C. tit. 19 $5 115.31 - .33). 

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materials*’ are included in the code’s definition of “textbook.” Educ. Code § 31.002(3) 

(“‘Textbook’ means a book, a system of instructional materials, or a combination of a book and 

instructional materials that wnveys information to the student or otherwise contributes to the 

lesrning process, or an electronic textbook.“). Thus “course materials” includes part of a textbook. 

We conclude that a district may select a textbook that contains material inwnsistent with the locally 

determined wurse of sex education instruction, provided any materials from the textbook used in 

the course of instruction are consistent with the local instructional plan. In other words, if a textbook 

selected by a district includes material that is inconsistent with the district’s instructional plan a 

school district may select the book and comply with section 28.004 by using only those parts of the 

book that reflect its instructional plan. 

SUMMARY 

The State Board of Education may not establish as part of a foundation 

curriculum subject the essential knowledge and skills (“TEKS”) for 

instruction in human sexuality, sexually transmitted diseases, the human 

immunodeficie.ncy virus, or acquired immune deficiency syndrome. Any 

human sexuality TEKS adopted by the board as part of an enrichment 

curriculum subject must be consistent with the sex education mandates set 

out in Education Code section 28.004. If the board adopts TEKS for an 

enrichment subject that includes human sexuality, the board may adopt a 

textbook for the subject that does not contain the elements of human 

sexuality set out in section 28.004 provided at least half of the TEKS 

elements for the subject are included in the book. A local school district may 

select a textbook that contains material inconsistent with the 1ocalIy 

determined sex education instructional plan provided any materials used in 

the wurse of instruction are consistent with the local instructional plan. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH I. SHIRLEY 

Chair, Opinion Committee 

Prepared by Bsrbara Griffin 

Assistant Attorney General 

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