82R6270 VOO-D

By: Coleman H.B. No. 2302

A BILL TO BE ENTITLED

AN ACT

relating to transferring to the Texas Education Agency and the commissioner of education the statutorily assigned responsibilities of the State Board of Education concerning textbooks.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Sections 7.108(a) and (c), Education Code, are amended to read as follows:

(a) A person interested in selling bonds of any type [or a person engaged in manufacturing, shipping, selling, or advertising textbooks or otherwise connected with the textbook business] commits an offense if the person makes or authorizes a political contribution to or takes part in, directly or indirectly, the campaign of any person seeking election to or serving on the board.

(c) In this section, "political[:

[(1) "Political] contribution" has the meaning assigned by Section 251.001, Election Code.

[(2) "Textbook" has the meaning assigned by Section 31.002.]

SECTION 2. Section 7.112, Education Code, is amended by adding Subsection (d) to read as follows:

(d) This section expires January 31, 2014.

SECTION 3. Section 31.003, Education Code, is amended to read as follows:

Sec. 31.003. RULES. The commissioner [State Board of Education] may adopt rules, consistent with this chapter, for the adoption, requisition, distribution, care, use, and disposal of textbooks.

SECTION 4. Section 31.004, Education Code, is amended to read as follows:

Sec. 31.004. CERTIFICATION OF PROVISION OF TEXTBOOKS, ELECTRONIC TEXTBOOKS, AND INSTRUCTIONAL MATERIALS. Each school district and open-enrollment charter school shall annually certify to [the State Board of Education and] the commissioner that, for each subject in the required curriculum and each grade level, the district provides each student with textbooks, electronic textbooks, or instructional materials that cover all elements of the essential knowledge and skills adopted by the State Board of Education for that subject and grade level.

SECTION 5. Sections 31.021(b) and (f), Education Code, are amended to read as follows:

(b) The State Board of Education shall annually set aside out of the available school fund of the state an amount sufficient for the agency [board], school districts, and open-enrollment charter schools to purchase and distribute the necessary textbooks for the use of the students of this state for the following school year. The board shall determine the amount of the available school fund to set aside for the state textbook fund based on:

(1) a report by the commissioner issued on July 1 or, if that date is a Saturday or Sunday, on the following Monday, stating the amount of unobligated money in the fund;

(2) the commissioner's estimate, based on textbooks selected under Section 31.101 and on attendance reports submitted under Section 31.103 by school districts and open-enrollment charter schools, of the amount of funds, in addition to funds reported under Subdivision (1), that will be necessary for purchase and distribution of textbooks for the following school year; and

(3) any amount the board determines should be set aside for emergency purposes caused by unexpected increases in attendance.

(f) The state textbook fund may be used to purchase technological equipment necessary to support the use of electronic textbooks or instructional material included on the list adopted under Section 31.0231 or any textbook or material approved by the agency [State Board of Education].

SECTION 6. Section 31.022, Education Code, is amended to read as follows:

Sec. 31.022. TEXTBOOK REVIEW AND ADOPTION. (a) The agency [State Board of Education] shall adopt a review and adoption cycle for textbooks for elementary grade levels, including prekindergarten, and secondary grade levels, for each subject in the required curriculum under Section 28.002.

(b) The agency [board] shall organize the cycle for subjects in the foundation curriculum so that not more than one-sixth of the textbooks for subjects in the foundation curriculum are reviewed each year. The commissioner [board] shall adopt rules to provide for a full and complete investigation of textbooks for each subject in the foundation curriculum at least every six years. The adoption of textbooks for a subject in the foundation curriculum may be extended beyond the six-year period only if the content of textbooks for a subject is sufficiently current.

(c) The commissioner [board] shall adopt rules to provide for a full and complete investigation of textbooks for each subject in the enrichment curriculum on a cycle the agency [board] considers appropriate.

(d) At least 24 months before the beginning of the school year for which textbooks for a particular subject and grade level will be purchased under the review and adoption cycle adopted by the agency [board], the agency [board] shall publish notice of the review and adoption cycle for those textbooks.

(e) The agency [board] shall designate a request for production of textbooks in a subject area and grade level by the school year in which the textbooks are intended to be made available in classrooms and not by the school year in which the agency [board] makes the request for production.

(f) The agency [board] shall amend any request for production issued for the purchase of textbooks to conform to the textbook funding levels provided by the General Appropriations Act for the year of implementation.

SECTION 7. Section 31.0221(a), Education Code, is amended to read as follows:

(a) The commissioner [State Board of Education] shall adopt rules for the midcycle review and adoption of a textbook for a subject for which textbooks are not currently under review by the agency [board] under Section 31.022. The rules must require:

(1) the publisher of the textbook to pay a fee to the agency [board] to cover the cost of the midcycle review and adoption of the textbook;

(2) the publisher of the textbook to enter into a contract with the agency [board] concerning the textbook for a term that ends at the same time as any contract entered into by the agency [board] for another textbook for the same subject and grade level; and

(3) a commitment from the publisher to provide the textbook to school districts in the manner specified by the publisher, which may include:

(A) providing the textbook to any district in a regional education service center area identified by the publisher; or

(B) providing a certain maximum number of textbooks specified by the publisher.

SECTION 8. Section 31.0222, Education Code, is amended to read as follows:

Sec. 31.0222. BUDGET-BALANCED CYCLE. In determining the review and adoption cycle of textbooks under Section 31.022, the agency [State Board of Education] shall:

(1) consult with the Legislative Budget Board and the governor's office of budget, planning, and policy before approving and publishing any notice or amendment of a cycle;

(2) review and consider:

(A) historic average funding levels for textbooks purchased in previous bienniums;

(B) expected average costs of future textbook purchases;

(C) anticipated student enrollment in future years;

(D) scheduled revisions to curriculum; and

(E) the impact on the state budget of the adoption of textbooks in all or some grade levels in a subject area; and

(3) limit the cycle to subject areas for which textbooks can be purchased with the funding anticipated to be available in the state textbook fund for the school year in which the textbooks are to be adopted.

SECTION 9. Section 31.023(a), Education Code, is amended to read as follows:

(a) For each subject and grade level, the agency [State Board of Education] shall adopt two lists of textbooks. The conforming list includes each textbook submitted for the subject and grade level that meets applicable physical specifications adopted by the agency [State Board of Education] and contains material covering each element of the essential knowledge and skills of the subject and grade level in the student version of the textbook, as well as in the teacher version of the textbook, as determined [by the State Board of Education] under Section 28.002 and adopted under Section 31.024. The nonconforming list includes each textbook submitted for the subject and grade level that:

(1) meets applicable physical specifications adopted by the agency [State Board of Education];

(2) contains material covering at least half, but not all, of the elements of the essential knowledge and skills of the subject and grade level in the student version of the textbook, as well as in the teacher version of the textbook; and

(3) is adopted under Section 31.024.

SECTION 10. Section 31.0231(c), Education Code, is amended to read as follows:

(c) [Before the commissioner places an electronic textbook or instructional material on the list adopted under Subsection (a), the State Board of Education must be given an opportunity to comment on the electronic textbook or instructional material.] An electronic textbook or instructional material placed on the list adopted under Subsection (a):

(1) must be reviewed and recommended to the commissioner by a panel of recognized experts in the subject area of the electronic textbook or instructional material and experts in education technology;

(2) must satisfy criteria adopted for the purpose by commissioner rule; and

(3) must meet the National Instructional Materials Accessibility Standard, to the extent practicable as determined by the commissioner.

SECTION 11. Section 31.024, Education Code, is amended to read as follows:

Sec. 31.024. ADOPTION BY AGENCY [STATE BOARD OF EDUCATION]. (a) The agency [By majority vote, the State Board of Education] shall:

(1) place each submitted textbook on a conforming or nonconforming list; or

(2) reject a textbook submitted for placement on a conforming or nonconforming list.

(b) Not later than December 1 of the year preceding the school year for which the textbooks for a particular subject and grade level will be purchased under the cycle adopted by the agency [board] under Section 31.022, the agency [board] shall provide the lists of adopted textbooks to each school district. Each nonconforming list must include the reasons an adopted textbook is not eligible for the conforming list.

SECTION 12. Section 31.0241(b), Education Code, is amended to read as follows:

(b) The agency [State Board of Education] shall place an open-source textbook for a secondary-level course submitted for adoption by an eligible institution on a conforming or nonconforming list if:

(1) the textbook is written, compiled, or edited primarily by faculty of the eligible institution who specialize in the subject area of the textbook;

(2) the eligible institution identifies each contributing author;

(3) the appropriate department of the eligible institution certifies the textbook for accuracy; and

(4) the eligible institution determines that the textbook qualifies for placement on the conforming or nonconforming list based on the extent to which the textbook covers the essential knowledge and skills identified under Section 28.002 for the subject for which the textbook is written and certifies that:

(A) for a textbook for a senior-level course, a student who successfully completes a course based on the textbook will be prepared, without remediation, for entry into the eligible institution's freshman-level course in that subject; or

(B) for a textbook for a junior-level and senior-level course, a student who successfully completes the junior-level course based on the textbook will be prepared for entry into the senior-level course.

SECTION 13. Section 31.025(a), Education Code, is amended to read as follows:

(a) The agency [State Board of Education] shall set a limit on the cost that may be paid from the state textbook fund for a textbook placed on the conforming or nonconforming list for a particular subject and grade level. The agency [board] may not reject a textbook for placement on the conforming or nonconforming list because the textbook's price exceeds the limit established under this subsection.

SECTION 14. Sections 31.026(a) and (b), Education Code, are amended to read as follows:

(a) The agency [State Board of Education] shall execute a contract:

(1) for the purchase of each adopted textbook other than an electronic textbook; and

(2) for the purchase or licensing of each adopted electronic textbook.

(b) A contract must require the publisher to provide the number of textbooks required by school districts in this state for the term of the contract, which must coincide with the agency's [board's] adoption cycle.

SECTION 15. Section 31.0261, Education Code, is amended to read as follows:

Sec. 31.0261. CONTRACTS FOR PRINTING OF OPEN-SOURCE TEXTBOOKS. The agency [State Board of Education] may execute a contract for the printing of an open-source textbook listed on the conforming or nonconforming list. The contract must allow a school district to requisition printed copies of an open-source textbook as provided by Section 31.103.

SECTION 16. Sections 31.028(a), (b), and (c), Education Code, are amended to read as follows:

(a) The agency [State Board of Education] may purchase special textbooks for the education of blind and visually impaired students in public schools. In addition, for a teacher who is blind or visually impaired, the agency [board] shall provide a teacher's edition in Braille or large type, as requested by the teacher, for each textbook the teacher uses in the instruction of students. The teacher edition must be available at the same time the student textbooks become available.

(b) The publisher of an adopted textbook shall provide the agency with computerized textbook files for the production of Braille textbooks or other versions of textbooks to be used by students with disabilities, on request of the agency [State Board of Education]. A publisher shall arrange computerized textbook files in one of several optional formats specified by the agency [State Board of Education].

(c) The agency [board] may also enter into agreements providing for the acceptance, requisition, and distribution of special textbooks and instructional aids pursuant to 20 U.S.C. Section 101 et seq. for use by students enrolled in:

(1) public schools; or

(2) private nonprofit schools, if state funds, other than for administrative costs, are not involved.

SECTION 17. Section 31.029, Education Code, is amended to read as follows:

Sec. 31.029. BILINGUAL TEXTBOOKS. The agency [board] shall purchase or otherwise acquire textbooks for use in bilingual education classes.

SECTION 18. Section 31.030, Education Code, is amended to read as follows:

Sec. 31.030. USED TEXTBOOKS. The commissioner [State Board of Education] shall adopt rules to ensure that used textbooks sold to school districts and open-enrollment charter schools are not sample copies that contain factual errors. The rules may provide for the imposition of an administrative penalty in accordance with Section 31.151 against a seller of used textbooks who knowingly violates this section.

SECTION 19. Sections 31.035(a), (b), and (f), Education Code, are amended to read as follows:

(a) Notwithstanding any other provision of this subchapter, the agency [State Board of Education] may adopt supplemental textbooks that are not on the conforming or nonconforming list under Section 31.023. The agency [State Board of Education] may adopt a supplemental textbook under this section only if the textbook:

(1) contains, as determined by the agency, material covering one or more primary focal points or primary topics of a subject in the required curriculum under Section 28.002[, as determined by the State Board of Education];

(2) is not designed to serve as the sole textbook for a full course;

(3) meets applicable physical specifications adopted by the agency [State Board of Education]; and

(4) is free from factual errors.

(b) The agency [State Board of Education] shall identify the essential knowledge and skills identified under Section 28.002 that are covered by a supplemental textbook adopted by the agency [board] under this section.

(f) A school district or open-enrollment charter school that requisitions supplemental textbooks under Subsection (d)(2) shall certify to the agency that the supplemental textbooks, in combination with any other textbooks or supplemental textbooks used by the district or school, cover the essential knowledge and skills identified under Section 28.002 [by the State Board of Education] for the subject and grade level for which the district or school is requisitioning the supplemental textbooks.

SECTION 20. Section 31.073(b), Education Code, is amended to read as follows:

(b) If a school district or open-enrollment charter school selects a state-developed open-source textbook instead of another textbook adopted under Subchapter B, the difference between the cost determined by the commissioner under Subsection (a) and the maximum price for a textbook in the same subject area, as determined by the agency [State Board of Education] under Section 31.025, shall be allocated as follows:

(1) 50 percent of the amount shall be credited to the state textbook fund under Section 31.021 to be used for purposes of this subchapter; and

(2) 50 percent of the amount shall be credited to the school district or open-enrollment charter school for use as provided by Section 31.1011(c).

SECTION 21. Sections 31.101(a), (c-1), and (d), Education Code, are amended to read as follows:

(a) Each year, during a period established by the agency [State Board of Education], the board of trustees of each school district and the governing body of each open-enrollment charter school shall:

(1) for a subject in the foundation curriculum, notify the agency [State Board of Education] of the textbooks selected by the board of trustees or governing body for the following school year from among the textbooks on the appropriate conforming or nonconforming list, including the list adopted under Section 31.0231; or

(2) for a subject in the enrichment curriculum:

(A) notify the agency [State Board of Education] of each textbook selected by the board of trustees or governing body for the following school year from among the textbooks on the appropriate conforming or nonconforming list, including the list adopted under Section 31.0231; or

(B) notify the agency [State Board of Education] that the board of trustees or governing body has selected a textbook that is not on the conforming or nonconforming list.

(c-1) Notwithstanding any other provision of this chapter, a school district or open-enrollment charter school must purchase a classroom set of textbooks adopted by the agency [State Board of Education] under Section 31.023 or 31.035 for each subject and grade level in the foundation and enrichment curriculum.

(d) For a textbook that is not on the conforming or nonconforming list, a school district or open-enrollment charter school must use the textbook for the period of the review and adoption cycle the agency [State Board of Education] has established for the subject and grade level for which the textbook is used.

SECTION 22. Section 31.103(b), Education Code, is amended to read as follows:

(b) A requisition for textbooks for the following school year shall be based on the maximum attendance reports under Subsection (a), plus an additional 10 percent, except as otherwise provided. A school district or open-enrollment charter school shall make a requisition for a textbook on the conforming or nonconforming list through the commissioner to the state depository designated by the publisher or as provided by commissioner [State Board of Education] rule, as applicable, not later than June 1 of each year. The designated state depository or, if the publisher or manufacturer does not have a designated textbook depository in this state under Section 31.151(a)(6)(B), the publisher or manufacturer shall fill a requisition approved by the agency at any other time in the case of an emergency. As made necessary by available funds, the commissioner shall reduce the additional percentage of attendance for which a district or school may requisition textbooks. The commissioner may, on application of a district or school that is experiencing high enrollment growth, increase the additional percentage of attendance for which the district or school may requisition textbooks.

SECTION 23. Section 31.1031, Education Code, is amended to read as follows:

Sec. 31.1031. SHORTAGE OF REQUISITIONED TEXTBOOKS. If a school district or open-enrollment charter school does not have a sufficient number of copies of a textbook used by the district or school for use during the following school year, and a sufficient number of additional copies will not be available from the depository or the publisher within the time specified by Section 31.151(a)(8), the district or school is entitled to:

(1) be reimbursed from the state textbook fund, at a rate and in the manner provided by commissioner [State Board of Education] rule, for the purchase of a sufficient number of used adopted textbooks; or

(2) return currently used textbooks to the commissioner in exchange for sufficient copies, if available, of other textbooks on the conforming or nonconforming list to be used during the following school year.

SECTION 24. Sections 31.151(a), (b), and (c), Education Code, are amended to read as follows:

(a) A publisher or manufacturer of textbooks:

(1) shall furnish any textbook the publisher or manufacturer offers in this state, at a price that does not exceed the lowest price at which the publisher offers that textbook for adoption or sale to any state, public school, or school district in the United States;

(2) shall automatically reduce the price of a textbook sold for use in a school district or open-enrollment charter school to the extent that the price is reduced elsewhere in the United States;

(3) shall provide any textbook or ancillary item free of charge in this state to the same extent that the publisher or manufacturer provides the textbook or ancillary item free of charge to any state, public school, or school district in the United States;

(4) shall guarantee that each copy of a textbook sold in this state is at least equal in quality to copies of that textbook sold elsewhere in the United States and is free from factual error;

(5) may not become associated or connected with, directly or indirectly, any combination in restraint of trade in textbooks or enter into any understanding or combination to control prices or restrict competition in the sale of textbooks for use in this state;

(6) shall:

(A) maintain a depository in this state or arrange with a depository in this state to receive and fill orders for textbooks, other than open-source textbooks, on-line textbooks, or on-line textbook components, consistent with commissioner [State Board of Education] rules; or

(B) deliver textbooks to a school district or open-enrollment charter school without a delivery charge to the school district, open-enrollment charter school, or state, if:

(i) the publisher or manufacturer does not maintain or arrange with a depository in this state under Paragraph (A) and the publisher's or manufacturer's textbooks and related products are warehoused or otherwise stored less than 300 miles from a border of this state; or

(ii) the textbooks are open-source textbooks, on-line textbooks, or on-line textbook components;

(7) shall, at the time an order for textbooks is acknowledged, provide to school districts or open-enrollment charter schools an accurate shipping date for textbooks that are back-ordered;

(8) shall guarantee delivery of textbooks at least 10 business days before the opening day of school of the year for which the textbooks are ordered if the textbooks are ordered by a date specified in the sales contract; and

(9) shall submit to the agency [State Board of Education] an affidavit certifying any textbook the publisher or manufacturer offers in this state to be free of factual errors at the time the publisher executes the contract required by Section 31.026.

(b) The commissioner [State Board of Education] may impose a reasonable administrative penalty against a publisher or manufacturer who knowingly violates Subsection (a). The commissioner [board] shall provide for a hearing to be held to determine whether a penalty is to be imposed and, if so, the amount of the penalty. The commissioner [board] shall base the amount of the penalty on:

(1) the seriousness of the violation;

(2) any history of a previous violation;

(3) the amount necessary to deter a future violation;

(4) any effort to correct the violation; and

(5) any other matter justice requires.

(c) A hearing under Subsection (b) shall be held according to rules adopted by the commissioner [State Board of Education].

SECTION 25. Section 31.201, Education Code, is amended to read as follows:

Sec. 31.201. DISPOSITION OF TEXTBOOKS. (a) The commissioner[, with the approval of the State Board of Education,] may provide for the disposition of:

(1) textbooks, other than electronic textbooks, that are no longer in acceptable condition to be used for instructional purposes; or

(2) discontinued textbooks, other than electronic textbooks.

(b) The commissioner, as provided by rules adopted by the commissioner [State Board of Education], shall make available on request copies of discontinued textbooks, other than electronic textbooks, for use in libraries maintained in municipal and county jails, facilities operated by the Texas Department of Criminal Justice for the imprisonment of individuals convicted of felonies other than state jail felonies, and other state agencies.

(c) The commissioner [State Board of Education] shall adopt rules under which a school district or open-enrollment charter school may donate discontinued textbooks, other than electronic textbooks, to a student, to an adult education program, or to a nonprofit organization.

SECTION 26. Effective May 1, 2012, Section 7.102(c)(23), Education Code, is repealed.

SECTION 27. (a) Effective May 1, 2012:

(1) all functions and activities concerning textbooks performed by the State Board of Education immediately before that date, other than such functions and activities assigned to the board by the constitution of this state, are transferred to the Texas Education Agency;

(2) a rule, form, policy, procedure, or decision of the State Board of Education concerning textbooks, other than such a rule, form, policy, procedure, or decision relating to a function or activity assigned to the board by the constitution of this state, continues in effect as a rule, form, policy, procedure, or decision of the commissioner of education and remains in effect until amended or replaced by the commissioner of education;

(3) a reference in law or an administrative rule to the State Board of Education concerning textbooks means the commissioner of education, other than such a reference to the State Board of Education relating to a function or activity assigned to the board by the constitution of this state;

(4) all money, contracts, leases, rights, property, records, and bonds and other obligations of the State Board of Education concerning textbooks are transferred to the Texas Education Agency, except that money or a contract, lease, right, property, record, or bond or other obligation relating to a function or activity assigned to the board by the constitution of this state is not transferred;

(5) a court case, administrative proceeding, contract negotiation, or other proceeding involving the State Board of Education concerning textbooks, other than such a proceeding relating to a function or activity assigned to the board by the constitution of this state, is transferred without change in status to the commissioner of education, and the commissioner of education assumes, without a change in status, the position of the State Board of Education in a negotiation or proceeding relating to an activity transferred by this Act to the commissioner of education to which the State Board of Education is a party;

(6) an employee of the State Board of Education whose duties relate solely or primarily to textbooks, other than such an employee whose duties relate solely or primarily to a function or activity assigned to the board by the constitution of this state, becomes an employee of the Texas Education Agency; and

(7) any unexpended and unobligated balance of money appropriated by the legislature for the State Board of Education to carry out a function or activity related solely or primarily to textbooks, other than money appropriated to enable the board to carry out a function or activity assigned by the constitution of this state, is transferred to the Texas Education Agency.

(b) In the period beginning on January 1, 2012, and ending on April 30, 2012:

(1) the State Board of Education shall continue to perform functions and activities under the Education Code or other law as if the law had not been amended or repealed, as applicable, and the former law is continued in effect for that purpose; and

(2) a person who is authorized or required by law to take an action relating to the State Board of Education or a member of the State Board of Education shall continue to take that action under the law as if the law had not been amended or repealed, as applicable, and the former law is continued in effect for that purpose.

SECTION 28. Before May 1, 2012, the State Board of Education may agree with the commissioner of education to transfer any property of the State Board of Education to the Texas Education Agency to implement the transfer required by Section 27 of this Act.

SECTION 29. This Act takes effect January 1, 2012.