1-1     By:  Cain                                             S.B. No. 1735
 1-2           (In the Senate - Filed March 9, 2001; March 14, 2001, read
 1-3     first time and referred to Committee on Education; April 9, 2001,
 1-4     reported adversely, with favorable Committee Substitute by the
 1-5     following vote:  Yeas 8, Nays 0; April 9, 2001, sent to printer.)
 1-6     COMMITTEE SUBSTITUTE FOR S.B. No. 1735                  By:  Nelson
 1-7                            A BILL TO BE ENTITLED
 1-8                                   AN ACT
 1-9     relating to special education programs and the educational rights
1-10     of minors with disabilities and other minors whose disabilities are
1-11     removed for general purposes.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Section 29.002, Education Code, is amended to
1-14     read as follows:
1-15           Sec. 29.002.  DEFINITION.  In this subchapter, "special
1-16     services" means:
1-17                 (1)  special education instruction, which may be
1-18     provided by professional and supported by paraprofessional
1-19     personnel in the regular classroom or in an instructional
1-20     arrangement described by Section 42.151; and [or]
1-21                 (2)  related services, which are developmental,
1-22     corrective, supportive, or evaluative services, not instructional
1-23     in nature, that may be required for the student to benefit from
1-24     special education instruction [proper development] and for
1-25     implementation of a student's individualized education program.
1-26           SECTION 2.  Section 29.004, Education Code, is amended to
1-27     read as follows:
1-28           Sec. 29.004.  FULL INDIVIDUAL AND INITIAL EVALUATION
1-29     [COMPREHENSIVE ASSESSMENT].  A written report of a full individual
1-30     and initial evaluation [comprehensive individual assessment] of a
1-31     student for purposes of special education services shall be
1-32     completed not later than the 60th calendar day following the date
1-33     on which the referral for evaluation [assessment] was initiated by
1-34     school personnel, the student's parent or legal guardian, or
1-35     another appropriate person.  The evaluation [assessment] shall be
1-36     conducted using procedures that are appropriate for the student's
1-37     most proficient method of communication.
1-38           SECTION 3.  Subsections (a) and (c), Section 29.005,
1-39     Education Code, are amended to read as follows:
1-40           (a)  Before a child is enrolled in a special education
1-41     program of a school district, the district shall establish a
1-42     committee composed of the persons required under 20 U.S.C. Section
1-43     1401(11) [1401(20)] to develop the child's individualized education
1-44     program.
1-45           (c)  If the individualized education program is not developed
1-46     by agreement, the written statement of the program required under
1-47     20 U.S.C. Section 1401(11) [1401(20)] must include the basis of the
1-48     disagreement.
1-49           SECTION 4.  Section 29.006, Education Code, is amended to
1-50     read as follows:
1-51           Sec. 29.006.  CONTINUING ADVISORY COMMITTEE.  The governor
1-52     shall appoint a continuing advisory committee, composed of 17
1-53     members, under 20 U.S.C. Section 1412(a)(21) [1413(a)(12)].  The
1-54     appointments are not subject to confirmation by the senate.
1-55     Members of the committee are appointed for staggered terms of four
1-56     years with the terms of eight or nine members expiring on February
1-57     1 of each odd-numbered year.
1-58           SECTION 5.  Subsection (d), Section 29.012, Education Code,
1-59     is amended to read as follows:
1-60           (d)  The Texas Education Agency, the Texas Department of
1-61     Mental Health and Mental Retardation, the Texas Department of Human
1-62     Services, the Texas Department of Health, the Department of
1-63     Protective and Regulatory Services, the Interagency Council on
1-64     Early Childhood Intervention, the Texas Commission on Alcohol and
 2-1     Drug Abuse, the Texas Juvenile Probation Commission, and the Texas
 2-2     Youth Commission by a cooperative effort shall develop and by rule
 2-3     adopt a memorandum of understanding.  The memorandum must:
 2-4                 (1)  establish the respective responsibilities of
 2-5     school districts and of residential facilities for the provision of
 2-6     a free, appropriate public education, as required by the
 2-7     Individuals with Disabilities Education Act (20 U.S.C. Section 1400
 2-8     et seq.) and its subsequent amendments, including each requirement
 2-9     [of 20 U.S.C. Section 1412(a)(12),] for children with disabilities
2-10     who reside in those facilities;
2-11                 (2)  coordinate regulatory and planning functions of
2-12     the parties to the memorandum;
2-13                 (3)  establish criteria for determining when a public
2-14     school will [can] provide educational services [and when a
2-15     residential facility must provide the services];
2-16                 (4)  provide for appropriate educational space when
2-17     education services will be provided at the residential facility [a
2-18     residential facility must provide educational services];
2-19                 (5)  establish measures designed to ensure the safety
2-20     of students and teachers; and
2-21                 (6)  provide for binding arbitration consistent with
2-22     Chapter 2009, Government Code, and Section 154.027, Civil Practice
2-23     and Remedies Code.
2-24           SECTION 6.  Section 37.004, Education Code, is amended to
2-25     read as follows:
2-26           Sec. 37.004.  PLACEMENT OF STUDENTS WITH DISABILITIES.
2-27     (a)  The placement of a student with a disability who receives
2-28     special education services may be made only by a duly constituted
2-29     admission, review, and dismissal committee.  Disciplinary placement
2-30     of a student with disabilities, for nonemergency reasons, shall
2-31     only occur after a manifestation determination review has been
2-32     conducted.
2-33           (b)  All disciplinary actions regarding a student with a
2-34     disability who receives special education services shall be
2-35     determined in accordance with federal law and regulations,
2-36     including the provision of functional behavioral assessments;
2-37     positive behavioral interventions, strategies, and supports;
2-38     behavioral intervention plans; and the manifestation determination
2-39     review.
2-40           (c)  A teacher in a disciplinary alternative education
2-41     program who has a special education assignment must hold an
2-42     appropriate certificate or permit for that assignment.  [A student
2-43     with a disability who receives special education services may not
2-44     be placed in alternative education programs solely for educational
2-45     purposes if the student does not also meet the criteria for
2-46     alternative placement in Section 37.006(a) or 37.007(a).]
2-47           SECTION 7.  Subsection (c), Section 37.019, Education Code,
2-48     is amended to read as follows:
2-49           (c)  At the time of an emergency placement or expulsion, the
2-50     student shall be given oral notice of the reason for the action.
2-51     Within a reasonable time after the emergency placement or
2-52     expulsion, the student shall be accorded the appropriate due
2-53     process as required under Section 37.009.  If the student subject
2-54     to the emergency placement or expulsion is a student with
2-55     disabilities who receives special education services, the term of
2-56     the student's emergency placement or expulsion is subject to the
2-57     requirements of 20 U.S.C. Section 1415(j) and (k) [1415(e)(3) and
2-58     34 CFR 300.513].
2-59           SECTION 8.  Subchapter A, Chapter 29, Education Code, is
2-60     amended by adding Sections 29.016 and 29.017 to read as follows:
2-61           Sec. 29.016.  EVALUATION CONDUCTED PURSUANT TO A SPECIAL
2-62     EDUCATION DUE PROCESS HEARING.  A special education hearing officer
2-63     in an impartial due process hearing brought under 20 U.S.C. Section
2-64     1415 may issue an order or decision that authorizes one or more
2-65     evaluations of a student who is eligible for, or who is suspected
2-66     as being eligible for, special education services.  Such an order
2-67     or decision authorizes the evaluation of the student without
2-68     parental consent as if it were a court order for purposes of any
2-69     state or federal law providing for consent by order of a court.
 3-1           Sec. 29.017.  TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY.
 3-2     (a)  A student with a disability who is 18 years of age or older or
 3-3     whose disabilities of minority have been removed for general
 3-4     purposes under Chapter 31, Family Code, shall have the same right
 3-5     to make educational decisions as a student without a disability,
 3-6     except that the school district shall provide any notice required
 3-7     by this subchapter or 20 U.S.C. Section 1415 to both the student
 3-8     and the parents.  All other rights accorded to parents under this
 3-9     subchapter or 20 U.S.C. Section 1415 transfer to the student.
3-10           (b)  All rights accorded to parents under this subchapter or
3-11     20 U.S.C. Section 1415 transfer to students who are incarcerated in
3-12     an adult or juvenile, state or local correctional institution.
3-13           (c)  In accordance with 34 C.F.R. Section 300.517, the school
3-14     district shall notify the student and the parents of the transfer
3-15     of rights under this section.
3-16           SECTION 9.  Section 31.006, Family Code, is amended to read
3-17     as follows:
3-18           Sec. 31.006.  EFFECT OF GENERAL REMOVAL.  Except for specific
3-19     constitutional and statutory age requirements, a minor whose
3-20     disabilities are removed for general purposes has the capacity of
3-21     an adult, including the capacity to contract.  Except as provided
3-22     by federal law, all educational rights accorded to the parent of a
3-23     student, including the right to make education decisions under
3-24     Section 151.003(a)(10), transfer to the minor whose disabilities
3-25     are removed for general purposes.
3-26           SECTION 10.  Section 26.002, Education Code, is amended to
3-27     read as follows:
3-28           Sec. 26.002.  DEFINITION.  In this chapter, "parent" includes
3-29     a person standing in parental relation.  The term does not include
3-30     a person as to whom the parent-child relationship has been
3-31     terminated or a person not entitled to possession of or access to a
3-32     child under a court order.  Except as provided by federal law, all
3-33     rights of a parent under Title 2 of this code and all educational
3-34     rights under Section 151.003(a)(10), Family Code, shall be
3-35     exercised by a student who is 18 years of age or older or whose
3-36     disabilities of minority have been removed for general purposes
3-37     under Chapter 31, Family Code, unless the student has been
3-38     determined to be incompetent or the student's rights have been
3-39     otherwise restricted by a court order.
3-40           SECTION 11.  Subsection (c), Section 39.030, Education Code,
3-41     is repealed.
3-42           SECTION 12.  This Act applies beginning with the 2001-2002
3-43     school year.
3-44           SECTION 13.  This Act takes effect immediately if it receives
3-45     a vote of two-thirds of all the members elected to each house, as
3-46     provided by Section 39, Article III, Texas Constitution.  If this
3-47     Act does not receive the vote necessary for immediate effect, this
3-48     Act takes effect September 1, 2001.
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