By: Bettencourt, et al. S.B. No. 28
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the approval of open-enrollment charter schools and the
  applicability of certain state and local laws to open-enrollment
  charter schools.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 12.101(b-0), Education Code, is amended
  to read as follows:
         (b-0)  The commissioner shall notify the State Board of
  Education of each charter the commissioner proposes to grant under
  this subchapter. Unless, before the 90th day after the date on
  which the board receives the notice from the commissioner, 9 [a
  majority of the] members of the board present and voting vote
  against the grant of that charter, the commissioner's proposal to
  grant the charter takes effect. The board may not deliberate or
  vote on any grant of a charter that is not proposed by the
  commissioner. For each charter the commissioner proposes to grant,
  the board is limited to consideration of the following:
               (1)  the staffing proposed under the charter for:
                     (A)  special education programs under Subchapter
  A, Chapter 29; and
                     (B)  bilingual education and special language
  programs under Subchapter B, Chapter 29;
               (2)  the alignment of proposed curriculum with the
  essential knowledge and skills adopted under Subchapter A, Chapter
  28;
               (3)  any prior issues involving the applicant related
  to open-enrollment charter school or campus operations, student
  performance and academic accountability, or fiscal management that
  led to the closure of an open-enrollment charter school, the
  suspension of the authority of an open-enrollment charter school to
  operate, or the revocation of a charter;
               (4)  any issues involving the applicant related to:
                     (A)  a violation or potential violation of
  applicable state or local conflict-of-interest requirements; or
                     (B)  a violation or potential violation of Chapter
  573, Government Code, involving prohibited nepotism between an
  individual serving the eligible entity and:
                           (i)  an individual proposed to serve on the
  governing body of an open-enrollment charter school to be operated
  under the charter; or
                           (ii)  an individual proposed to serve at the
  management company for an open-enrollment charter school to be
  operated under the charter;
               (5)  any issues involving lack of transparency or
  truthfulness in the application for the charter; and
               (6)  evidence that:
                     (A)  the recruitment policies of the
  open-enrollment charter school or campus encourage special
  education students to apply and the admission and enrollment of
  special education students at the school or campus is not limited;
                     (B)  the proposed leadership of the
  open-enrollment charter school or campus has a record of prior
  performance that demonstrates improvement in school and campus
  operations, academic and fiscal management, and student
  performance;
                     (C)  the proposed budget of the open-enrollment
  charter school or campus includes sufficient funding to support the
  academic programs, support services, and staffing included in the
  application; and
                     (D)  the fiduciary responsibilities and decisions
  of the open-enrollment charter school or campus are executed by the
  governing body of the charter school.
         SECTION 2.  Section 12.1058, Education Code, is amended by
  amending Subsection (c) and adding Subsections (d), (d-1), (d-2),
  and (d-3) to read as follows:
         (c)  Notwithstanding Subsection (a) or (b), an
  open-enrollment charter school operated by a tax exempt entity as
  described by Section 12.101(a)(3) is not considered to be a
  political subdivision, local government, or local governmental
  entity unless:
               (1)  a [the applicable] statute specifically states
  that the statute applies to an open-enrollment charter school; or
               (2)  a provision in this chapter states that a specific
  statute applies to an open-enrollment charter school.
         (d)  Except as provided by Section 12.103(c), a political
  subdivision shall consider an open-enrollment charter school a
  school district for purposes of zoning, project permitting,
  platting and replatting processes, business licensing, franchises,
  utility services, eminent domain, signage, subdivision regulation,
  property development projects, the requirements for posting bonds
  or securities, contract requirements, land development standards
  as provided by Section 212.902, Local Government Code, tree and
  vegetation regulations, regulations of architectural features of a
  structure, construction of fences, landscaping, garbage disposal,
  noise levels, fees or other assessments, and construction or site
  development work.  An open-enrollment charter school does not have
  the power of eminent domain.
         (d-1)  A political subdivision may not take any action that
  prohibits an open-enrollment charter school from operating a public
  school campus, educational support facility, athletic facility, or
  administrative office within the political subdivision's
  jurisdiction or on any specific property located within the
  jurisdiction of the political subdivision that it could not take
  against a school district. A political subdivision shall grant
  approval in the same manner and follow the same timelines as if the
  charter school were a school district located in that political
  subdivision's jurisdiction.
         (d-2)  This section applies to both owned and leased property
  of the open-enrollment charter school under Section 12.128.
         (d-3)  Except as provided by this section, this section does
  not affect the authority granted by state law to a political
  subdivision to regulate an open-enrollment charter school
  regarding health and safety ordinances.
         SECTION 3.  Subchapter D, Chapter 12, Education Code, is
  amended by adding Section 12.1102 to read as follows:
         Sec. 12.1102.  APPEAL OF APPLICATION SELECTION
  DETERMINATION. (a)  This section applies only if the charter
  application selection process includes:
               (1)  scoring criteria and procedures for use of the
  criteria by an external application review panel selected by the
  commissioner; and
               (2)  selection criteria that include the minimum score
  necessary for an applicant to be eligible for selection.
         (b)  The State Board of Education shall adopt procedures for
  the appeal of an application selection determination made based on
  the submission of an application under a process described by
  Subsection (a).
         (c)  The procedures adopted under this section must provide
  for an applicant who scores within 10 percentage points of the
  minimum score necessary for an applicant to be eligible for
  selection to appeal to the State Board of Education a score
  determined by the external application review panel.
         (d)  The determination of the State Board of Education in an
  appeal under the procedures adopted under this section is final.
         (e)  If the charter applicant prevails in an appeal to the
  State Board of Education, the commissioner shall consider the
  applicant's application.
         SECTION 4.  Section 554.001(2), Government Code, is amended
  to read as follows:
               (2)  "Local governmental entity" means:
                     (A)  a political subdivision of the state,
  including a[:
                     [(A)]  county,[;
                     [(B)]  municipality,[;
                     [(C)  public] school district,[;] or
                     [(D)]  special-purpose district authority; or
                     (B)  an open-enrollment charter school.
         SECTION 5.  Section 212.902, Local Government Code, is
  amended to read as follows:
         Sec. 212.902.  SCHOOL DISTRICT AND OPEN-ENROLLMENT CHARTER
  SCHOOL LAND DEVELOPMENT STANDARDS. (a)  This section applies to an
  agreement [agreements] between a school district or
  open-enrollment charter school  [districts] and a [any]
  municipality which has annexed territory for limited purposes.
         (b)  On request by a school district or open-enrollment
  charter school, a municipality shall enter an agreement with the
  board of trustees of the school district or the governing body of
  the open-enrollment charter school to establish review fees, review
  periods, and land development standards ordinances and to provide
  alternative water pollution control methodologies for school
  buildings constructed by the school district or open-enrollment
  charter school. The agreement shall include a provision exempting
  the district or charter school from all land development ordinances
  in cases where the district or charter school is adding temporary
  classroom buildings on an existing school campus.
         (c)  If the municipality and the school district or
  open-enrollment charter school do not reach an agreement on or
  before the 120th day after the date on which the municipality
  receives the district's or charter school's request for an
  agreement, proposed agreements by the [school] district or charter
  school and the municipality shall be submitted to an independent
  arbitrator appointed by the presiding district judge whose
  jurisdiction includes the [school] district or charter school. The
  arbitrator shall, after a hearing at which both the [school]
  district or charter school and the municipality make presentations
  on their proposed agreements, prepare an agreement resolving any
  differences between the proposals. The agreement prepared by the
  arbitrator will be final and binding upon both the [school]
  district or charter school and the municipality. The cost of the
  arbitration proceeding shall be borne equally by the [school]
  district or charter school and the municipality.
         (d)  A school district or open-enrollment charter school
  that requests an agreement under this section, at the time the
  district or charter school [it] makes the request, shall send a copy
  of the request to the commissioner of education. At the end of the
  120-day period, the requesting district or charter school shall
  report to the commissioner the status or result of negotiations
  with the municipality. A municipality may send a separate status
  report to the commissioner. The district or charter school shall
  send to the commissioner a copy of each agreement between the
  district or charter school and a municipality under this section.
         (e)  In this section:
               (1)  [,] "Land [land] development standards" includes
  impervious cover limitations, building setbacks, floor to area
  ratios, building heights and coverage, water quality controls,
  landscaping, development setbacks, compatibility standards,
  traffic analyses including traffic impact analyses, vehicle
  queuing, parking requirements, signage requirements, and driveway
  cuts, if applicable.
               (2)  "Open-enrollment charter school" means a school
  granted a charter under Subchapter C, D, or E, Chapter 12, Education
  Code.
         (f)  Nothing in this section shall be construed to limit the
  applicability of or waive fees for fire, safety, health, or
  building code ordinances of the municipality prior to or during
  construction of school buildings, nor shall any agreement waive any
  fee or modify any ordinance of a municipality for an
  administration, service, or athletic facility proposed for
  construction by a school district or open-enrollment charter
  school.
         SECTION 6.  Chapter 250, Local Government Code, is amended
  by adding Section 250.012 to read as follows:
         Sec. 250.012.  REGULATION OF OPEN-ENROLLMENT CHARTER
  SCHOOLS. (a)  In this section:
               (1)  "Local governmental entity" means a political
  subdivision of the state, including a:
                     (A)  municipality;
                     (B)  county; and
                     (C)  special purpose district.
               (2)  "Open-enrollment charter school" means a school
  granted a charter under Subchapter D or E, Chapter 12, Education
  Code.
         (b)  A local governmental entity may not enact or enforce an
  ordinance, order, regulation, resolution, rule, or policy or take
  action that prohibits an open-enrollment charter school from
  operating a public school campus, educational support facility, or
  administrative office in the local governmental entity's
  jurisdiction or on any specific property in the jurisdiction of the
  local governmental entity.
         (c)  The commissioner of education has exclusive
  jurisdiction over the establishment and location of an
  open-enrollment charter school campus as provided by Subchapter D,
  Chapter 12, Education Code.
         (d)  This section applies to property purchased or leased
  with state funds received by an open-enrollment charter school
  under Section 12.128, Education Code.
         (e)  This section does not affect the authority granted by
  state law to a local governmental entity to regulate an
  open-enrollment charter school.
         SECTION 7.  Section 395.022(b), Local Government Code, is
  amended to read as follows:
         (b)  A school district and an open-enrollment charter school
  are [is] not required to pay impact fees imposed under this chapter
  unless the board of trustees of the district or the governing body
  of the charter school consents to the payment of the fees by
  entering a contract with the political subdivision that imposes the
  fees. The contract may contain terms the board of trustees or
  governing body considers advisable to provide for the payment of
  the fees.  This section applies only to an open-enrollment charter
  school campus constructed on land that:
               (1)  is owned by the charter holder or the charter
  holder's parent nonprofit entity; and
               (2)  does not include any other uses.
         SECTION 8.  Section 552.053, Local Government Code, is
  amended by amending Subsection (b) and adding Subsections (b-1) and
  (b-2) to read as follows:
         (b)  The following may be exempt:
               (1)  this state;
               (2)  a county;
               (3)  a municipality; or
               (4)  [a] school districts and open-enrollment charter
  schools [district].
         (b-1)  For purposes of an exemption granted under Subsection
  (b)(4), the exemption must be granted to both school districts and
  open-enrollment charter schools.
         (b-2)  For purposes of this section, "open-enrollment
  charter school" means a school granted a charter under Subchapter D
  or E, Chapter 12, Education Code.
         SECTION 9.  As soon as practicable after the effective date
  of this Act, the State Board of Education shall adopt procedures for
  the appeal of an application selection determination as provided by
  Section 12.1102, Education Code, as added by this Act.
         SECTION 10.  An exemption granted to a school district under
  Section 552.053(b)(4), Local Government Code, as that section
  existed before the effective date of this Act, automatically
  extends to all open-enrollment charter schools located in the
  municipality after the effective date of this Act unless the
  municipality repeals the exemption before the effective date of
  this Act.
         SECTION 11.  This Act takes effect immediately if it
  receives a vote of two-thirds of all the members elected to each
  house, as provided by Section 39, Article III, Texas Constitution.  
  If this Act does not receive the vote necessary for immediate
  effect, this Act takes effect September 1, 2021.