-. . 

August 20, 1970 

Dr. J. W. Edgar 

Commissioner of Education 

Texas Education Agency 

Austin, Texas 

Dear Dr. Edgar: 

Opinion No. M-666 

Re: Does an Independent School 

District have authority to 

contract with private 

corporations for instructions of its pupils, and 

related questions. 

BY recent letter you have requested an opinion in regard 

to the above stated matter. We quote, at length, from your 

letter as follows: 

"The Dallas Independent School District recognizes 

the severe problems in educating the economically 

deprived minority groups. The District proposes to 

enter into and operate two major research and development projects to develop more effective programs and 

to alleviate educational deprivation among 1585 inner 

city pupils in grades 1, 2 and 3 and grades 7, 8, 9, 10, 

11 and 12. The projects will utilize the resources of 

business and industry through contracts with firms to 

provide specified instructional and other services, with 

an incentive-penalty system for payments. Contractors 

will,be required to install their instructional systems 

in approximately 27 regular classrooms, employ and 

train a corps of Dallas teachers to operate the programs, 

and within a specified period estimated at one to three 

years, turn the proven instructional systems back to the 

School District to be operated thereafter without 

assistance of the contractor. 

-3180- 
Dr. J. W. Edgar, page 2 (M-666) 

"To ensure local control of the project, the Dallas 

Independent School District Board of Education will hold 

the contractors accountable for their performance and pay 

them based on increases in achievement of pupils. An 

effective school-operated management system undes the 

direction of the Assistant Superintendent-Accountability 

supplemented by contracted services of education auditors, 

will enable Dallas school administrators to monitor 

continuously the work of the instructional contractors so 

as to meet the research and development and instructional 

goals of the project. Both projects will be supported 

primarily by federal funds. One project is eligible 

for support under Public Law 874, Title I, III and V of 

the Elementary and Secondary Education Act and the 

Vocational Education Act of 1968. 

"The second project will be supported entirely by 

funds from 41 USCA 252 (c)(5) and Section 602(n) of the 

Economic Opportunity Act, 1964, as amended. Contract No, 

BIC-5141 between the Office of Economic Opportunity and the 

Dallas Independent School District has been executed by 

both institutions: , it awaits the recommendations of the 

Texas Education Aqency and the Governor's apnroval. 

(Emphasis added.) 

Project One 

"One project is entitled 'Guaranteed Student Performance in Education and Training.' This project will 

serve 985 educationally disadvantaged students, grades 

9 through 12, who are enrolled in the following inner 

city high schools: Pinkston, Madison, Crozier Technical, 

Roosevelt, and Lincoln. These students will be selected 

from among those in each school who are performing below 

expectations in mathematics and English and'who have 

parental approval to participate. Instructional programs 

will be conducted on these five campuses under the 

direction of the building principals. 

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. . 

Dr. J. W. Edgar, page 3 (M-666) 

Project Two' 

'"The second project, 'Performance Incentive Remedial 

Education Experiment', is one of 18 that the U. S. Office 

of Economic Opportunity is sponsoring to determine the 

effectiveness of performance contracting in a variety of 

educational settings and among various ethnic groups. 

"By letter of June 5, 1970 the Dallas school district 

has asked this Agency to cooperate with the plans by its 

approval of the above described contractual project(s), to 

provide financial support as set out in 'Proposed Financial 

Support for the 'Guaranteed Student Performance in 

Education and Training Project',' and to designate an 

Agency Task Force to work with the Dallas administration 

to complete the operation of the project plan, monitor the 

project, participate in the project evaluation and disseminate the results. 

"In the absence of specific legislation, court ~decisions 

Or Attorney General rulings relative to the authority of 

a school district to enter into incentive performance contracts with private concerns or corporations for the educational instruction of public school regular students, 

on an experimental educational development program basis 

or otherwise, this Agency as well as the school district 

need and would appreciate an opinion from your office on 

the following questions of immediate importance: 

"1. Under current school laws, may a school district (Dallas I.S.D.) enter into incentive 

performance contract/s ,with private concerns or 

corporation/s for service proposed and under 

the conditions and purposes set forth in the two 

projects described above --where such program is 

primarily proposed for a study in depth of the 

utilization of the capability of the private 

sector as one strategy to facilitate .desirable 

educational reforms, as distinguished from any 

general plan or movement to contract to private 

-3182- 
Dr. J. W. Edgar, page 4 (M-666) 

"2 . 

"3 . 

"4 . 

corporation/s or firm/s the education of regular 

public school children? 

Has a school district authority to contract with 

or enter into agreements with an agency of the 

federal government? Sets. 11.02(e); 21.111(b), 

T.E.C. 

Under Section 21.111(b), T.E.C., does a school 

district have authority to contract or enter into 

agreements with private concerns, firms or 

corporations for the instruction of its public 

school children? 

Does a school district have authority to expend 

local maintenance funds to pay part or all of 

the cost of instruction provided by a private 

concern or firm under contract with the district." 

The pertinent provisions of the Texas Education Code are 

quoted, in part, as follows: 

"Section 11.02. General Powers and Duties 

"(a)... 

"(b)... 

"(c) Except for agreements entered into by the 

governing board of a state university or college, the 

Central Education Agency shall be the sole agency of the 

State of Texas empowered to enter into agreements with 

respect to education undertakings....with an agency of 

the federal government. No county board of education 

or board of trustees of a school district shall enter 

into contracts with, or accept money from, an agency 

of the federal government, except under rules and 

regulations prescribed by the Central Education Agency." 

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. - 

Dr. J. W. Edgar, page 5 ~, (M-666) 

"Section 11.30. Aut,hority to Enter Into Contracts 

'for &ants 

"For the maintenance and improvement of state 

educational programs and activities in the public 

schools. the State Board of Education mav enter into 

contracts for grants from both public and private 

organizations and may expend such funds under the 

terms and for the specific purposes contracted." 

"Section 21.111. Vocational and Other Educational 

Programs 

"(a) The board of trustees of any public free 

school district of this state, subject to rules and 

regulations of the Central Education Aqency heretofore 

and hereafter adopted, is hereby authorized and 

empowered to conduct and supervise vocational classes 

and other educational programs for students of all 

aqes; and whenever it deems necessary to expend local 

maintenance funds forthe cost thereof. 

"(b) For purposes of conducting.and/or supervision 

by the district of such vocational classes and other 

educational programs for students of any and all ages, 

said board of trustees is hereby authorized and 

empowered to purchase, acquire or lease real or personal 

property: to contract or enter into agreements with any 

department or agency of the United States or this state, 

subject to rules and regulations prescribed by the 

.Central Education Aqency appertaininq to such educational 

prosrams: and,to contract or enter into agreements with 

any person, partnership, firm or corporation pertaininq 

-to the local operation and supervision of such programs by 

the district." (Emphasis added.) 

Section 11.02, quoted above, requires that any school district have prior approval from the Central Education Agency, 

based upon rules and regulations from said agency, before 

entering into agreements with the federal government. 

-3184- 
Dr. J. W. Edgar, page 6 (M-666) 

Section 11.30, quoted above, authorizes the Education Agency 

to enter contracts with the government to receive money and expend such money under conditions of the contract. See Attorney 

General's Opinion WW-1321 (1962). 

In addition, the purpose of Section 21.111, quoted above, 

was to make express provision for vocational and other educational 

courses for students of all ages, there being a doubt concerning the extent of authority conferred under previous laws. See 

the Emergency Clause in H.B. 580, Acts 59th Legislature, R.S. 

1965, Ch. 184, p. 381. Section 21.111 authorizes the local 

school districts to operate such programs, to contract with the 

federal government regarding such programs, and to contract with 

local private concerns for private operation and supervision of 

such programs, subject to the rules and requlations of 'the 

Central Education Aqency pertaining to such educational programs. 

In other words, Section 11.02 authorizes the Central 

EducationAgency, by rule and regulation, to require the local 

school districts to obtain its approval before entering into 

agreements with or receiving money from the federal government. 

Section 21.111, however, makes an exception to such prior 

approval where "vocational classes and other educational 

programs for students of all ages" are concerned. Where these 

programs are concerned, the Central Education Agency cannot withhold approval but may, by rule and regulation, prescribe the 

method, etc. by which the local school district enters into 

contracts with the federal government or local private concerns 

for operation and supervision of such programs. 

It is also the opinion of this office that Section 21.111 

must be construed with reference to the entire body of law existing at the time of the statute as well as in para materia with 

any ,statutes dealing with the same subject insofar as the latter 

are not inconsistent with Section 21.111. 53 Tex.Jur2d 278, 

Statutes, Sec. 185; p. 280, Sec. 186. For example, if under 

prior laws (such as Article 2902, V.C.S.) it was notclear whether 

local school funds could be used'for the education of persons 

over twenty-one, it is now clear that Section 21.111 permits 

-3185- 
. . . 

Dr. J. W. Edgar, page 7 (M-666) 

the board of trustees, subject to rules and regulations of the 

Central Education Agency, to conduct and supervise vocational 

classes and other educational programs "for students of all 

ages. " Likewise, in contracting with private concerns under 

Section 21.111(b) for the instruction of public school children, 

a school district may not disregard the teaching qualifications 

and requirements, as required in other statutes of this State 

and permit instruction by~persons,who do not meet the statutory 

standards, such as to age, health, and educational qualifications. 

No doubt such matters will be included in any contract to be 

executed. 

In light of the above discussion, the answer to your first 

question is a qualified "yes". The yes is qualified by a 

determination by the school district that such a program is 

vocational as defined above, and a determination by the Central 

Education Agency that the contracts in question are consistent 

with the statutes of this State and the rules and regulations of 

the Central Education Agency. 

The second question is also'answered by a qualified "yes" 

as discussed above. 

Question No. 3 is also answered by a qualified "yes" as 

discussed above. 

In regard to question No. 4, it should suffice to note that 

Subsection (a) of Section 21.111 specifically authorizes use of 

local maintenance funds for the vocational type programs. 

Consequently, the answer to your fourth question is also a qualified "yes", as discussed above. 

SUMMARY 

A school district may enter into a contract 

with private concerns, pursuant to Section 21.111 

of the Texas Education Code, for the operation 

and supervision of vocational classes and other 

educational programs for students of all ages, 

-3186- 
. 

Dr. J. W. Edgar, page 8 (M-666) 

as defined, provided such contracts comply with 

the rules and regulations of the Central Education 

Agency, and with the statutes regarding teaching 

qualifications and requirements. 

A school district may directly enter into 

a contract with the federal government pursuant 

to Section 21.111 of the Texas Education Code, 

subject to rules and regulations of the Central 

Education Agency; and such district may use local 

maintenance funds to carry out the purpose of such 

contracts. 

General of Texas 

Prepared by James C. McCoy 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Ivan Williams 

Earl Hines 

William J. Craig 

Jack Goodman 

NRADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOIS. WHITE 

First Assistant 

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