By Garcia H.B. No. 171
76R1296 KKA-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to a school district's liability to the parent of a
1-3 student who fails to perform satisfactorily on certain assessment
1-4 instruments.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 39, Education Code, is amended by adding
1-7 Subchapter I to read as follows:
1-8 SUBCHAPTER I. PRIVATE REMEDY
1-9 Sec. 39.201. DEFINITION. In this subchapter, "parent"
1-10 includes a person standing in parental relation.
1-11 Sec. 39.202. CLAIM AUTHORIZED. A parent may bring a claim
1-12 against a school district under this subchapter if the parent's
1-13 child:
1-14 (1) has been enrolled in the district for at least
1-15 three consecutive school years; and
1-16 (2) while enrolled in the district, has failed to
1-17 perform satisfactorily during three different school years on one
1-18 or more assessment instruments administered by the district under
1-19 Section 39.023(a) or (c).
1-20 Sec. 39.203. DEFENSES. It is a defense to a claim brought
1-21 under this subchapter that:
1-22 (1) the child did not receive the ordinary amount of
1-23 classroom instruction in the school district because the child was
1-24 absent or tardy an excessive number of times;
2-1 (2) the child or the child's parent refused remedial
2-2 actions recommended by the school district, such as reassignment,
2-3 summer school attendance, tutoring, counseling, or repeated grade
2-4 levels or classes;
2-5 (3) the child has a recognized mental or physical
2-6 impediment that precluded satisfactory performance on the
2-7 assessment instruments;
2-8 (4) the child has been suspended, expelled, or
2-9 assigned to an alternative education program or juvenile justice
2-10 alternative education program by the school district;
2-11 (5) the child has been finally determined to have
2-12 committed an offense involving moral turpitude; or
2-13 (6) the proximate cause of the child's failure to
2-14 perform satisfactorily was a factor in the private affairs of the
2-15 child or the child's family beyond the control of the school
2-16 district.
2-17 Sec. 39.204. INITIATION OF CLAIM; LIMITATIONS. (a) To
2-18 initiate a claim under this subchapter a parent must file notice of
2-19 the claim with the school district. A school district that opposes
2-20 a claim must submit the claim to the State Office of Administrative
2-21 Hearings not later than the 30th day after the date the district
2-22 receives notice of the claim.
2-23 (b) A parent must file a claim under this subchapter not
2-24 later than the first anniversary of the last day of instruction in
2-25 the third school year in which the parent's child failed to perform
2-26 satisfactorily on an assessment instrument specified under Section
2-27 39.202.
3-1 Sec. 39.205. ADMINISTRATIVE DETERMINATION OF CLAIM. (a) An
3-2 administrative law judge shall decide the claim in accordance with
3-3 this subchapter and rules adopted by the chief administrative law
3-4 judge of the State Office of Administrative Hearings. The
3-5 administrative law judge shall hear the claim as a contested case
3-6 under Chapter 2001, Government Code.
3-7 (b) If the administrative law judge finds, by a
3-8 preponderance of the evidence, that the claim is valid, the judge
3-9 shall order the school district to pay an award in accordance with
3-10 Section 39.206.
3-11 (c) The parent shall pay the cost of a proceeding conducted
3-12 under this subchapter. The parent is entitled to recover the cost
3-13 from the school district in accordance with Section 39.206 if the
3-14 parent prevails in the proceeding.
3-15 Sec. 39.206. AMOUNT OF AWARD; PAYMENT. (a) A parent who
3-16 prevails in a proceeding brought under this subchapter is entitled
3-17 to recover from the school district:
3-18 (1) a voucher that:
3-19 (A) is in an amount equal to the sum of:
3-20 (i) three times the quotient resulting
3-21 from dividing the school district's gross budget for the school
3-22 year in which the child's third failure occurred by the number of
3-23 students enrolled in the school district that year; and
3-24 (ii) interest on the amount specified in
3-25 Paragraph (A)(i) accruing between the date the administrative law
3-26 judge determines that the parent's claim is valid and the date the
3-27 judge's decision becomes final at the rate specified by Section
4-1 304.003, Finance Code;
4-2 (B) may be used only in paying for educational
4-3 services for the parent's child; and
4-4 (C) may be redeemed by a private or public
4-5 entity chosen by the child's parent to provide educational
4-6 services;
4-7 (2) costs of the proceeding; and
4-8 (3) reasonable attorney's fees.
4-9 (b) A school district shall pay costs of the proceeding and
4-10 attorney's fees directly to the parent. The comptroller shall
4-11 issue the voucher to the parent on behalf of the school district.
4-12 The comptroller may adopt rules necessary to implement this
4-13 subsection, including rules providing for payment of the amount of
4-14 the voucher by the school district.
4-15 Sec. 39.207. JUDICIAL REVIEW. The determination of an
4-16 administrative law judge under this subchapter is subject to
4-17 judicial review as provided by Chapter 2001, Government Code.
4-18 Sec. 39.208. WAIVER OF SOVEREIGN IMMUNITY. (a) Sovereign
4-19 immunity to suit is waived and abolished to the extent of liability
4-20 created by this subchapter.
4-21 (b) This subchapter does not subject a teacher,
4-22 administrator, member of the board of trustees, or other individual
4-23 associated with a school district to personal liability.
4-24 SECTION 2. This Act takes effect September 1, 1999, and
4-25 authorizes a claim against a school district only in connection
4-26 with an assessment instrument administered under Subchapter B,
4-27 Chapter 39, Education Code, on or after that date.
5-1 SECTION 3. The importance of this legislation and the
5-2 crowded condition of the calendars in both houses create an
5-3 emergency and an imperative public necessity that the
5-4 constitutional rule requiring bills to be read on three several
5-5 days in each house be suspended, and this rule is hereby suspended.