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


Office of House Bill AnalysisH.B. 6
By: Dunnam
Public Education
3/20/2001
Introduced



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 over 1,000 charter campuses 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 establishes a two-year
moratorium on new charters for open-enrollment charter schools and
strengthens the accountability and oversight provisions regarding the
operation of open-enrollment 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 3 (Section 12.104, Education Code), SECTION 19 (Section 12.127,
Education Code), SECTION 20 (Sections 12.153, 12.156, and 12.160, Education
Code),  and to the State Board of Education in SECTION 19 (Section 12.123,
Education Code) and SECTION 27 of this bill. 

ANALYSIS

House Bill 6 amends the Education Code to set forth provisions regarding
open-enrollment charter schools (charter schools). 

Moratorium

H.B. 6 prohibits the State Board of Education (board) from issuing a
charter for a charter school after August 31, 2001.  The bill also
prohibits the board from approving an expansion of an existing charter
school to an additional campus or site beyond the campuses or sites stated
in the charter.  The moratoriums expire September 1, 2003 (SECTION 1, Sec.
12.1015 and SECTION 10, Sec. 12.114). 

Minimum Student Enrollment

H.B. 6 prohibits the State Board of Education (board) from granting or
renewing a charter unless the board determines that the school will have
and maintain an enrollment of at least 50 students, except that a school
may have at least 20 students if the board specifically finds that the
nature of the school requires an enrollment of fewer than 50 students
(SECTION 1, Sec. 12.1014).   

 Delegation

The bill authorizes the board to delegate to the commissioner of education
(commissioner) any power or duty regarding charter schools other than the
power to grant, deny, modify, place on probation, deny renewal of, or
revoke a charter for an open-enrollment charter school (SECTION 1, Sec.
12.1013). 

Applicability of Laws and Rules

H.B. 6 specifies that a charter school is subject to the federal and state
laws governing public school districts (SECTION 2, Sec. 12.103).  The bill
provides that the Local Government Records Act, the Professional Services
Procurement Act, and laws regarding open meetings, public information,
nepotism, 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 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 (SECTION 2, Sec. 12.103 and
SECTION 5, Secs. 12.1051, 12.1052, and 12.1053).  The bill requires a
charter school in existence on September 1, 2001 to designate a records
management officer, establish a records management program, and prepare and
file records control schedules by September 1, 2002 (SECTION 31).   

H.B. 6 provides that a charter school is subject to requirements to notify
parents concerning inappropriately certified or uncertified teachers.  The
bill also provides that charter schools are subject to provisions governing
purchasing and contracting and the selection of a bank depository by a
public school.  The bill also specifies that a charter school is subject to
the requirement that a school day be at least seven hours each day unless
the commissioner grants the open-enrollment charter school a waiver.  The
bill authorizes the commissioner to adopt rules to apply other provisions
of the Education Code to charter schools to the extent the commissioner
determines these rules are necessary or advisable to provide and account
for state funding of charter schools (SECTION 3, Sec. 12.104 and SECTION 4,
Sec. 12.1041). 

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, and the average district enrichment for the state (SECTION 6,
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 with state funds after
September 1, 2001 are considered to be public funds or public property.
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 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
openenrollment charter school's property that has been bought or leased
with state funds (SECTION 6, Sec. 12.106 and SECTION 19, Sec. 12.127). 

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 6, Sec. 12.108).  The bill amends the Local
Government Code to require the governing body of an open-enrollment charter
school to prepare and publish an annual financial statement for each fund
subject to its authority (SECTION 24, Sec. 140.005 and SECTION 25, Sec.
140.006). 
 
Teachers and Employees

H.B. 6 amends the Education Code to provide that a person employed as a
teacher by a charter school must hold a bachelor's or more advanced degree
from an institution of higher education (SECTION 19, Sec. 12.128).  The
bill provides an exception for a current teacher who does not have a
bachelor's degree and is under contract as a teacher for the 2001-2002
school year if the person enrolls in an institution of higher education no
later than January 1, 2002 and obtains a bachelor's degree no later than
July 1, 2007 (SECTION 19, Sec. 12.1281). 

H.B. 6 provides that an employee of a charter school's management company
who qualifies for membership under the Teacher Retirement System of Texas
(TRS) shall be covered under TRS to the same extent a qualified employee of
a school district is covered (SECTION 5, Sec. 12.1055). 

Charter Applications and Revisions

H.B. 6 requires the board to adopt an application form and procedure that
must be used to apply for the renewal of a charter.  The bill provides that
an application for a charter or renewal of a charter must include a
description of each instructional approach to be used and the program to be
provided during the school day (SECTION 7, Sec. 12.110).  The bill provides
that the charter must specify the powers or duties of the school's
governing body that may be delegated and prohibit discrimination in the
school's admission policy on the basis of artistic ability (SECTION 8, Sec.
12.111).  The bill requires the Texas Education Agency (TEA) to investigate
existing charter schools to determine if any of them are operating in a
manner that effectively requires students to possess special artistic,
athletic, or other abilities to be considered for admission and to report
any violations to the board by January 1, 2002 (SECTION 26).  The bill
requires a charter school that receives more acceptable applications for
admission than available positions to fill the available positions by
lottery (SECTION 14, Sec. 12.117). 

H.B. 6 establishes that the grant of a charter does not create a property
right to the charter or an entitlement to a renewal of a charter on the
same terms as it was originally issued (SECTION 9, Sec. 12.113).  The bill
provides that a charter holder that seeks to increase grade levels or
enrollment or expand to an additional campus or site beyond what is stated
in the charter must submit an application for approval in a form approved
by the board.  The bill provides that the board must interview appropriate
school representatives and carefully review an application for revision
(SECTION 10, Sec. 12.114).  The bill requires a charter holder to file a
copy of its articles of incorporation with the board if applicable (SECTION
17, Sec. 12.119).  

Evaluation of Open-Enrollment Charter Schools

The bill authorizes the board to modify, place on probation, revoke, or
deny the renewal of an openenrollment charter school's charter if the board
determines that the charter holder failed to protect the health, safety, or
welfare of the students enrolled at the school (SECTION 11, Sec. 12.115).
The bill authorizes the commissioner to temporarily withhold funding,
suspend the authority of an open-enrollment 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 under these provisions (SECTION 12, Sec. 12.116 and SECTION 13,
Sec. 12.1162).  

H.B. 6 prohibits a charter school whose charter has been revoked or
surrendered from continuing to operate or receive state funds, and
authorizes an open-enrollment charter school whose renewal is denied by the
board to continue to operate and receive state funds only for the remainder
of the school year (SECTION 13, Sec. 12.1161).  

H.B. 6 provides that the evaluation of charter schools must include an
evaluation of whether a school district  or its employees are informing
students at risk of dropping out of school of the opportunity to attend an
open-enrollment charter school for the purpose of enabling the district or
campus to avoid responsibility for those students (SECTION 15, Sec.
12.118).  The bill requires the commissioner to authorize a special
accreditation investigation of the school district in response to such an
allegation (SECTION 22, Sec. 39.075).  The bill establishes criteria for
the evaluation of a charter school that assists students in earning a high
school diploma or high school equivalency certificate (SECTION 15, Sec.
12.118). 

H.B. 6 requires TEA to study the use of and effectiveness of innovative
instructional methods by charter schools and the procedures TEA uses to
obtain information regarding the performance of charter schools. The bill
requires TEA to report its assessment and recommendations in the
comprehensive biennial report by December 1, 2002.  These provisions expire
January 1, 2003  (SECTION 16, Secs. 12.1181 and 12.1182).   

Governing Body of a Charter School

H.B. 6 prohibits a person or a person whose spouse has a substantial
interest in a management company from serving as a member of the governing
body of a charter holder or as an officer or employee of an open-enrollment
charter school (SECTION 18, Sec. 12.120).  The bill requires the governing
body of a charter school to govern and oversee the management of the school
including the use of state funds.  The bill prohibits the governing body of
a charter school from delegating the governing body's powers and duties
unless the charter provides for such a delegation.  The bill requires the
governing body of a charter school to provide for appeals to the governing
body or its designee concerning student disciplinary matters (SECTION 19,
Sec. 12.121).   

H.B. 6  provides that a member of the governing body of a charter holder or
a member of the governing body of a charter school is personally liable for
a misuse of state funds or property purchased or leased with state funds
(SECTION 19, Sec. 12.122).  The bill authorizes the board to adopt rules
prescribing training for officers and members of governing bodies of
open-enrollment charter schools by January 1, 2002.  The bill describes
what the rules must include and establishes penalties for a person who does
not complete the minimum training (SECTION 19, Sec. 12.123 and SECTION 27). 

Management Contracts

H.B. 6 requires the governing body of a charter school to enter into a
contract for management services if the governing body determines that
contracting is necessary and desirable (SECTION 19, Sec. 12.121). The bill
prohibits the charter holder or the governing body of a charter school from
accepting a loan and entering into a contract to provide management
services with the same management company (SECTION 19, Sec. 12.124).  H.B.
6 requires a charter school to submit to the commissioner any proposed
contract between the school and a management company and provides that such
a contract may not take effect until approved by the commissioner.  The
bill requires the commissioner to adopt criteria concerning the approval of
management contracts by November 1, 2001 (SECTION 19, Sec. 12.125 and
SECTION 28).  

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.  The bill does not
entitle an affected school district to bring suit on its own behalf against
a management company, but does authorize such a district to participate in
a suit brought by the attorney general (SECTION 19, Sec. 12.126). 

H.B. 6 requires the commissioner by rule to adopt minimum standards no
later than November 1, 2001 that must be met by an applicant who is
registering to provide management services.  The bill prescribes criteria
the standards must include and describes registration application,
issuance, and renewal procedures. The bill prohibits a person from
providing or offering to provide management services to an openenrollment
charter school after September 1, 2002 unless the person holds a
registration issued by the commissioner.  The bill prohibits a registration
holder from assigning a registration issued by the commissioner (SECTION
20, Secs. 12.152-12.157 and SECTIONS 28 and 29).  H.B. 6 sets forth
provisions regarding the commissioner's authority to suspend, revoke, or
refuse to renew a registration (SECTION 20, Sec. 12.158).  The bill
provides that providing or offering to provide management services to a
charter school without holding a registration is a Class B misdemeanor
(SECTION 20, Sec. 12.159). The bill authorizes the commissioner to adopt
rules to establish the fee for registration or registration renewal and
rules to administer the registration provisions (SECTION 20, Secs. 12.156
and 12.160). 

Access to Criminal History Records

H.B. 6 requires a charter school to obtain criminal history record
information that relates to a person who serves as or agrees to serve as a
member of the school's governing body or a person whom the school intends
to employ as an educator who is not certified by the State Board for
Educator Certification.  The bill authorizes 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 the above or
other capacities, or a person who has indicated in writing an intention to
serve as a volunteer with the school (SECTION 21, 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 the school (SECTION 23, Sec. 411.097). 

EFFECTIVE DATE

The Act takes effect September 1, 2001.  The provision regarding criminal
penalties for a person who provides or offers to provide management
services to a charter school without registration takes effect September 1,
2002.