HBA-JEK H.B. 6 77(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 6
By: Dunnam
Public Education
8/7/2001
Enrolled



BACKGROUND AND PURPOSE 

On May 30, 1995, the Texas Legislature authorized an initial set of 20
open-enrollment charter schools to create competition and innovation in
Texas public schools as a whole.  The House Public Education Committee
established an interim subcommittee on charter schools to evaluate the
charter school program and report to the 77th Legislature.  The
subcommittee reports that there is little evidence to support that charter
schools are using innovative teaching methods or that they are performing
as well as traditional public schools.  Financial troubles and statutory
ambiguities have contributed to the abrupt failures of several charter
schools.  In some cases, the sudden closing of the schools resulted in
displaced students having to repeat a grade.  Yet the number of charter
schools has grown to approximately 200, and the subcommittee reports that
without restrictions, Texas could see more than 1,000 charter campuses
established in the next few years.  Unless the growth of charter schools is
slowed and the accountability and oversight strengthened, the subcommittee
concludes problems will continue to occur at a faster rate than the State
Board of Education can discover and solve them.  House Bill 6 converts
at-risk charter schools to open-enrollment charter schools, sets a cap on
the number of charter schools that may be granted, and strengthens the
accountability and oversight provisions regarding the operation of
openenrollment charter schools. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the commissioner of education in
SECTION 5 (Section 12.104, Education Code), SECTION 7, (Section 12.106,
Education Code), SECTION 10 (Section 12.1101, Education Code), SECTION 13
(Section 12.1162, Education Code), SECTION 18 (Sections 12.123 and 12.128,
Education Code), SECTION 19 (Section 12.153, Education Code), SECTION 27
(Section 39.0731, Education Code), SECTION 37, and SECTION 40 of this bill. 

ANALYSIS

House Bill 6 amends the Education, Government, and Local Government codes
to set forth provisions regarding open-enrollment charter schools (charter
school). 

Restrictions on the Granting of Charters

H.B. 6 authorizes the State Board of Education (SBOE) to grant a charter
for an open-enrollment charter school only to an applicant that meets any
financial, governing, and operational standards for charter schools adopted
by the commissioner of education (commissioner).  The bill prohibits SBOE
from granting a total of more than 215 charters (SECTION 2, Sec. 12.101).
H.B. 6 repeals the provision authorizing SBOE to grant at-risk charters
(SECTION 36). 

Applicability of Laws and Rules

H.B. 6 provides that the Local Government Records Act, the Professional
Services Procurement Act, and laws regarding open meetings, public
information, preservation and management of local government  records, real
property held in trust, competitive bidding on public work contracts,
authorized investments for local governments, and conflicts of interest
apply to the operation of a charter school, the governing body of a charter
holder, the governing body of a charter school, and charter school students
to the same extent the laws apply to a public school district, the board of
trustees of a school district, and public school students.  The bill
provides that a charter school is subject to laws relating to public
purchasing and contracts unless the school's charter otherwise describes
procedures that are approved by SBOE.  The bill considers a member of the
governing body of a charter school to be a local public official.  The bill
specifies that nepotism laws and rules apply to a charter school unless the
school has been rated academically acceptable or higher for at least two of
the preceding three school years, in which case only certain laws for
public officials apply (SECTION 6, Secs. 12.1051-12.1055). 

The bill specifies that a charter school is subject to the federal and
state laws governing municipal zoning ordinances regarding public schools,
but that a charter school campus in a municipality with a population of
20,000 or less is not subject to such ordinances (SECTION 4, Sec. 12.103). 

H.B. 6 provides that a charter school is entitled to the same level of
services provided to school districts by regional education service
centers.  The bill authorizes the commissioner to adopt rules that provide
for the representation of open-enrollment charter schools on the boards of
directors of regional education service centers as well as rules to permit
a charter school to voluntarily participate in any state program available
to school districts including a purchasing program if the school complies
with all terms of the program (SECTION 5, Sec. 12.104). 

The bill provides that a charter school, its employees and volunteers, and
a member of the governing body of a charter school or charter holder is
immune from liability to the same extent as a school district and its
employees, volunteers, and trustees (SECTION 6, Sec. 12.1056).  The bill
requires a charter school in existence on September 1, 2001 to fulfill
records management requirements no later than September 1, 2002 (SECTION
38). 

Funding

H.B. 6 restructures how charter schools receive funding under the
foundation school program.  The bill no longer entitles a charter school to
the distribution from the available school fund and local taxes that the
district in which the student resides would be entitled to, but instead
provides that a charter holder is entitled to receive funds as if it were a
school district without a tier one local share and without any local
revenue. A charter school's allotment is to be calculated based on the
average small and mid-sized district adjustment, the average sparsity
adjustment, the average district enrichment for the state, and the average
costs of education adjustment (SECTION 7, Sec. 12.106).  The bill
establishes a plan to transition to the new system of state funding
incrementally until the 2012-2013 school year, and authorizes the
commissioner to adopt rules to implement the plan (SECTION 40). 

The bill provides that a charter school is entitled to funds that are
available to school districts from the Texas Education Agency (TEA) or the
commissioner in the form of grants or other discretionary funding unless
specifically prohibited elsewhere in statute.  The bill authorizes the
commissioner to adopt rules to provide and account for state funding of
charter schools (SECTION 7, Sec. 12.106). 

H.B. 6 provides that funds received by a charter holder after September 1,
2001 and land bought or leased by a charter holder the cost of which is
funded at least 50 percent by state funds after September 1, 2001 are
considered to be public funds or public property to the extent the land was
purchased with state funds. These funds or lands are to be held in trust
for the benefit of the students of the charter school, and may be used only
for a purpose for which a school district is authorized to use local school
funds or property. The bill provides that the funds must be deposited into
a Federal Deposit Insurance Corporation insured bank with which the charter
holder has a depository contract, and requires a charter holder to deliver
a copy of the depository contract to TEA (SECTION 7, Sec. 12.107 and
SECTION 18, Sec. 12.128). The bill provides that a charter holder who
accepts state funding after September 1, 2001 agrees to accept all
liability for any funds accepted before September 1, 2001 (SECTION 8, Sec.
12.1071).  
 
H.B. 6 requires the commissioner to take possession and assume control of
the property of a charter school that ceases to operate and to supervise
the disposition of the property in accordance with law.  The security
interests in a lien on charter school property of secured property are not
affected by such an occurrence. The bill authorizes the commissioner to
adopt rules regarding the administration of an open-enrollment charter
school's property that has been bought or leased with state funds (SECTION
18, Sec. 12.128).  

H.B. 6  specifies that a charter school is not entitled to funding under
the instructional facilities allotment or the existing debt allotment
(SECTION 30, Sec. 46.012 and SECTION 31, Sec. 46.036).  The bill requires
the Texas Public Finance Authority (authority) to establish a nonprofit
corporation to issue revenue bonds on behalf of charter schools for the
acquisition, construction, repair, or renovation of educational facilities
of those schools.  The bill requires the authority to appoint the directors
of the corporation in connection with the commissioner.  The bill requires
the corporation to adopt rules governing the issuance of bonds on behalf of
an authorized charter school and requires the comptroller to establish a
fund dedicated to the credit enhancement of these bonds.  The bill sets
forth provisions regarding revenue bonds and exemption from taxation
(SECTION 32, Sec. 53.351). 

The bill authorizes the governing body of a charter school to require a
student to pay only those fees that the board of trustees of a school
district may charge (SECTION 9, Sec. 12.108).  The bill amends the Local
Government Code to require the governing body of a charter school to
prepare and make available an annual financial statement for each fund
subject to its authority (SECTION 34, Sec. 140.005 and SECTION 35, Sec.
140.006). 

Teachers, Employees, and Parents

H.B. 6 amends the Education Code to provide that a person employed as a
teacher by a charter school must hold a high school diploma (SECTION 18,
12.129).  The bill requires each charter school to provide to parents
information related to the qualifications of each of its teachers (SECTION
18, Sec. 12.130). The bill requires a charter school to notify a student's
parent in writing if the student has five unexcused absences in a six month
period (SECTION 25, Sec. 25.095). 

Charter Applications and Revisions

H.B. 6 requires the governing body of a charter school to require an
applicant to complete and submit an application by a reasonable deadline,
and provides that a charter school must publish notice of the opportunity
to apply for admission.  The bill requires a charter holder to file a copy
of its articles of incorporation or bylaws if possible.  The bill requires
a charter school that receives more acceptable applications for admission
than available positions to fill the available positions by lottery or in
the order the applications received before the deadline were received
(SECTION 14, Sec. 12.117 and SECTION 16, Sec. 12.119). 

H.B. 6 requires the commissioner by rule to adopt a procedure for providing
notice on SBOE's receipt of an application for a charter school to the
board of trustees of each school district from which the charter school is
likely to draw students and to each member of the legislature that
represents the geographic area to be served by the proposed school (SECTION
10, Sec. 12.1101). 
The bill provides that the charter must specify the powers or duties of the
school's governing body that may be delegated.  The charter must also
prohibit discrimination in the school's admission policy on the basis of
artistic ability (SECTION 11, Sec. 12.111). 

H.B. 6 establishes that the grant of a charter does not create an
entitlement to a renewal of a charter on the same terms as it was
originally issued (SECTION 11, Sec. 12.113).  

Evaluation and Accountability

The bill provides that a revision of a charter may be made only with the
approval of the commissioner rather than SBOE, and authorizes the
commissioner to modify, place on probation, revoke, or deny the renewal  of
a charter school's charter if the commissioner determines that the charter
holder failed to protect the health, safety, or welfare of the students
enrolled at the school (SECTION 12, Secs. 12.114 and 12.115). The bill
authorizes the commissioner to temporarily withhold funding, suspend the
authority of a charter school to operate, or take any other reasonable
action to protect the health, safety, or welfare of the school's students
based on evidence until further determination is made by the commissioner
or the board that conditions did not or no longer present a danger (SECTION
13, Sec. 12.1162).  The Administrative Procedure Act does not apply to a
hearing that is related to a modification, placement on probation,
revocation, denial of renewal, or suspension of a charter (SECTION 12, Sec.
12.116). 

H.B. 6 prohibits a charter school whose charter has been revoked or
surrendered from continuing to operate or receive state funds, but
authorizes a charter school whose renewal is denied by the commissioner to
continue to operate and receive state funds only for the remainder of the
school year.  The bill authorizes the commissioner to take actions or
accreditation sanctions against a charter school that commits a material
violation of the school's charter, fails to satisfy generally accepted
accounting standards of fiscal management, or fails to comply with statute
or rule governing charter schools.  The bill requires the commissioner to
adopt rules to implement these provisions (SECTION 13, Secs. 12.1161 and
12.1162). 

H.B. 6 authorizes the commissioner to audit the records of a charter
school, charter holder, and management company, and provides that an audit
must be limited to matters directly related to the management or operation
of a charter school (SECTION 13, Sec. 12.1163).  The bill also requires the
commissioner to authorize special accreditation investigations to be
conducted as the commissioner determines necessary (SECTION 28, Sec.
39.075). 

The bill provides that the evaluation of charter schools must include an
evaluation of issues determined by the commissioner.  The bill authorizes
the commissioner to determine how all indicators may be used to determine
accountability ratings and to select districts and campuses for
acknowledgment (SECTION 15, Sec. 12.118 and SECTION 26, Sec. 39.073).  The
bill authorizes the commissioner to order closure of all programs operated
under the charter of a school that does not satisfy the accreditation
criteria.  The bill provides that if a district fails or refuses to pay the
costs of a monitor, master, management team, or special campus intervention
team, the commissioner may pay the costs using amounts withheld from funds
to which the district is otherwise entitled or recover the amount in the
manner provided for recovery of an overallocation of state funds (SECTION
29, Sec. 39.131).  

H.B. 6 authorizes the commissioner by rule to develop an alternative
accreditation status pilot program for the 2001-2002 school year that is
designed to reflect the academic performance and improvement of students
enrolled at a district, campus, or charter school that primarily serves
at-risk students or is not required to administer assessment instruments.
The bill provides that a district, campus, or charter school participating
in the pilot program will also continue to receive a regular accountability
rating and is subject to any applicable sanctions based on that rating.
The bill requires the commissioner to report on the pilot program to the
governor, lieutenant governor, speaker of the house of representatives, and
the presiding officer of each legislative committee having primary
jurisdiction over public education.  The pilot program provisions expire
January 1, 2003 (SECTION 27, Sec. 39.0731). 

Governing Body of a Charter School

H.B. 6 prohibits a person or a person from serving as a member of the
governing body of a charter holder or charter school, or as an officer or
employee of a charter school if the person has been convicted of certain
serious or violent offenses or has a substantial interest in a management
company (SECTION 17, Sec. 12.120).   

The bill provides that the governing body of a charter school is
responsible for the management, operation, and accountability of the school
regardless of whether the governing body delegates the governing body's
powers and duties to another person.  The bill authorizes the attorney
general to bring suit against a member of the governing body for breach of
a fiduciary duty by the member, including misapplication of public funds.
The bill sets forth provisions regarding training for officers and members
of governing bodies and  requires the commissioner to adopt rules relating
to the training no later than January 1, 2002 (SECTION 18, Secs. 12.121 and
12.123, and SECTION 37). 

The bill authorizes the governing body of a charter school to select a
school attendance officer, and requires the duties of the attendance
officer to be performed by peace officers in the county if no attendance
officer is appointed (SECTION 21, Sec. 25.088 and SECTION 23, Sec. 25.090). 

Management Contracts

H.B. 6 prohibits a charter holder or governing body of a charter school
from accepting a loan from a management company that has a contract to
provide management services to that charter school or another charter
school operating under a charter granted to the same charter holder.  The
bill provides that any contract between a charter school and a management
company proposing to provide management services to the school must require
the management company to maintain all records related to the management
services separately from any other records (SECTION 18, Secs. 12.124 and
12.125). 

The bill authorizes the commissioner to prohibit, deny renewal of, suspend,
or revoke a contract between a charter school and a management company if
the commissioner determines that the company has failed to provide
educational or related services in compliance with the company's
contractual or legal obligations, has violated statute or rules regarding
charter schools, or has failed to protect the health, safety, or welfare of
the students served by the company.  The bill establishes that a management
company is liable for damages incurred by the state or an affected school
district as a result of the company's failure to comply with its legal
obligations to the charter school.  The bill authorizes the attorney
general on request of the board to bring suit on behalf of the state or any
affected school district against a management company liable under these
provisions (SECTION 18, Secs. 12.126 and 12.127). 

College or University Charter Schools

H.B. 6 authorizes SBOE to grant a charter on the application of a public
senior college or university for a charter school to operate on the campus
of the public senior college or university or in the same county in which
the campus of the college or university is located.  The bill sets forth
criteria for the granting of such a charter and provides that the name of
the charter school must include the name of the public senior college or
university operating the school.  The bill authorizes the commissioner to
adopt rules to implement these provisions, and specifies that provisions
regarding charter schools apply to a charter school run by a college or
university.  A charter granted under these provisions is not considered for
purposes of the limit on the number of charter schools (SECTION 19, Secs.
12.152-12.156). 

Access to Criminal History Records

H.B. 6 requires a charter school to obtain from any law enforcement or
criminal justice agency all criminal history information regarding a person
the school intends to employ in any capacity or a person who has indicated
in writing an intention to serve as a volunteer with the school (SECTION
20, Sec. 22.083).  The bill amends the Government Code to entitle a charter
school to obtain from the Department of Public Safety criminal history
information for members of the governing body of a charter school (SECTION
33, Sec. 411.097). 

EFFECTIVE DATE

The Act takes effect September 1, 2001.  The provisions regarding state
funding apply beginning with the 2001-2002 school year.