73R10555 CAS-D
          By Harris of Tarrant                                   S.B. No. 104
          Substitute the following for S.B. No. 104:
          By Grusendorf                                      C.S.S.B. No. 104
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the admission of children to public school.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Section 21.031, Education Code, is amended by
    1-5  amending Subsections (a)-(d) and adding Subsections (i) and (j) to
    1-6  read as follows:
    1-7        (a)  All children who are <citizens of the United States or
    1-8  legally admitted aliens and who are> five years of age or older and
    1-9  under the age of 21 years on the first day of September of any
   1-10  scholastic year shall be entitled to the benefits of the Available
   1-11  School Fund for that year.  All other children enrolled in a
   1-12  prekindergarten class under Section 21.136 of this code are
   1-13  entitled to the benefits of the Available School Fund.
   1-14        (b)  Every child in this state who is <a citizen of the
   1-15  United States or a legally admitted alien and who is> over the age
   1-16  of five years and not over the age of 21 years on the first day of
   1-17  September of the year in which admission is sought shall be
   1-18  permitted to attend the public free schools of the district in
   1-19  which the child or either <his> parent resides at the time he
   1-20  applies for admission; the child and his guardian or other person
   1-21  having lawful control of him under an order of a court reside at
   1-22  the time he applies for admission; the child resides, if the child
   1-23  is 18 years of age or older or the child's disabilities of minority
   1-24  have been removed under Chapter 31, Family Code; or the child has
    2-1  established a separate residence under Subsection (d) of this
    2-2  section.  A child admitted under this subsection shall be permitted
    2-3  to continue in attendance at the public free schools of the
    2-4  district through the end of the school year and, if the child
    2-5  admitted is a junior in high school,  the child shall be permitted
    2-6  to continue in attendance at the public free schools of the
    2-7  district through the end of the child's senior year.  The burden of
    2-8  proof shall be on the district to establish by a preponderance of
    2-9  the <A district may require> evidence that a child is not eligible
   2-10  to attend the public free schools of the district at the time the
   2-11  district considers an application for admission of the child.
   2-12        (c)  The board of trustees of any public free school district
   2-13  of this state or its designee shall admit into the public free
   2-14  schools of the district free of tuition all persons who are <either
   2-15  citizens of the United States or legally admitted aliens and who
   2-16  are> over five and not over 21 years of age at the beginning of the
   2-17  scholastic year if:
   2-18              (1)  such person or either parent of the person resides
   2-19  within the school district;
   2-20              (2)  such person resides within the school district and
   2-21  is 18 years of age or older or the child's disabilities of minority
   2-22  have been removed under Chapter 31, Family Code;
   2-23              (3)  such person and his guardian or other person
   2-24  having lawful control of him under an order of a court reside
   2-25  within the school district;
   2-26              (4) <(3)>  such person has established a separate
   2-27  residence under Subsection (d) of this section; or
    3-1              (5) <(4)>  such person is homeless, as defined by 42
    3-2  U.S.C.A.  Sec. 11302, regardless of the residence of the person, of
    3-3  either parent of the person, or of the person's guardian or other
    3-4  person having lawful control of him.
    3-5        (d)  In order for a person under the age of 18 years to
    3-6  establish a residence for the purpose of attending the public free
    3-7  schools separate and apart from his parent, guardian, or other
    3-8  person having lawful control of him under an order of a court, it
    3-9  must be established that his presence in the school district is not
   3-10  for the primary purpose of attending the public free schools of the
   3-11  district <participation in extracurricular activities>. The
   3-12  district <board of trustees> shall be responsible for determining
   3-13  whether an applicant for admission is a resident of the school
   3-14  district for purposes of attending the public schools.  The board
   3-15  of trustees of the district<, and> may adopt reasonable guidelines
   3-16  for making a determination as necessary to protect the best
   3-17  interest of students.
   3-18        (i)  A child denied admission to attend the public free
   3-19  schools of a school district under this section may appeal to a
   3-20  justice of the peace of the county and precinct in which the child,
   3-21  a parent of the child, or a guardian of the child resides or in
   3-22  which the district is located.  An appeal before the justice of the
   3-23  peace is by trial de novo.  The justice of the peace shall decide
   3-24  the matter by a preponderance of the evidence  and shall ensure
   3-25  that the best interests of the child are protected.  The justice of
   3-26  the peace shall recognize a surrogate parent appointed under
   3-27  Section 21.0314 of this code or under 34 C.F.R. Section 300.514 and
    4-1  may not remove or otherwise replace the surrogate parent.  Costs of
    4-2  appeal shall be assigned to the district by the justice of the
    4-3  peace.  On receipt of written notice of an appeal under this
    4-4  subsection, a school district shall admit the child to the public
    4-5  free schools of the district while the appeal is pending and until
    4-6  further order by the justice of the peace.  This subsection does
    4-7  not relieve a person of any liability under Subsection (g) of this
    4-8  section or under Section 37.10, Penal Code.
    4-9        (j)  The commissioner of education shall adopt rules to
   4-10  implement this section.
   4-11        SECTION 2.  Subchapter B, Chapter 21, Education Code, is
   4-12  amended by adding Section 21.0314 to read as follows:
   4-13        Sec. 21.0314.  SURROGATE PARENTS.  (a)  A school district
   4-14  shall ensure that the best interests of a child admitted to a
   4-15  school in the district under Section 21.031(c)(4) or (5) of this
   4-16  code are protected and, except as provided by Subsection (b) of
   4-17  this section, shall assign an individual to act as a surrogate for
   4-18  the parents of the child in any proceedings under Section
   4-19  21.031(c)(4) or (5) of this code if the child is under 18 years of
   4-20  age and:
   4-21              (1)  the district cannot identify a parent, guardian,
   4-22  or other person having lawful control of the child under an order
   4-23  of a court;
   4-24              (2)  the district, after reasonable efforts, cannot
   4-25  discover the whereabouts of a parent, guardian, or other person
   4-26  having lawful control of the child under an order of a court; or
   4-27              (3)  the child is homeless, as defined by 42 U.S.C.A.
    5-1  Sec. 11302, and contacting the child's parent, guardian, or other
    5-2  person having lawful control of the child under an order of a court
    5-3  would violate federal law governing the education of homeless
    5-4  children.
    5-5        (b)  If a child is a child with disabilities as defined by 20
    5-6  U.S.C.A.  Sec. 1401 who is entitled to a special education
    5-7  surrogate under 34 C.F.R.  Section 300.514:
    5-8              (1)  the appropriate public agency shall assign a
    5-9  surrogate parent as provided by 34 C.F.R. Section 300.514; and
   5-10              (2)  the school district may assign the surrogate
   5-11  parent to act as a surrogate under this section.
   5-12        (c)  Each school district shall adopt policies for
   5-13  determining whether a child needs a surrogate parent, and for
   5-14  assigning a surrogate parent to the child, consistent with rules
   5-15  adopted by the State Board of Education under this section.  Except
   5-16  as provided by Subsection (b) of this section, a school district
   5-17  may assign a surrogate parent for purposes other than those
   5-18  provided under Subsection (a) of this section.
   5-19        (d)  A surrogate parent may represent a child and may give
   5-20  consent, authorization, or a power of attorney on behalf of the
   5-21  child in any matter relating to the education of the child if a
   5-22  parent, guardian, or other person having lawful control of the
   5-23  child under an order of a court would have the right to give
   5-24  consent, authorization, or a power of attorney.
   5-25        (e)  The State Board of Education shall adopt rules to
   5-26  implement this section.
   5-27        SECTION 3.  This Act applies beginning with the 1993-1994
    6-1  school year.
    6-2        SECTION 4.  The importance of this legislation and the
    6-3  crowded condition of the calendars in both houses create an
    6-4  emergency and an imperative public necessity that the
    6-5  constitutional rule requiring bills to be read on three several
    6-6  days in each house be suspended, and this rule is hereby suspended,
    6-7  and that this Act take effect and be in force from and after its
    6-8  passage, and it is so enacted.