Untitled Texas Attorney General Opinion ( 1996 )

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DAN MORALES November 21,1996
ATTORNEY
GENERAL
Dr. Mike Moses Opinion No. DM-424
Commissioner of Education
Texas Education Agency Re: Whether the State Board of Education may adopt
170 1 North Congress Avenue a rule prescribing general content requirements for
Austin, Texas 78701-1494 textbooks used in public schools, and whether the
board’s authority over textbook adoption extends to
Dr. Jack Christie ancillary materials provided by publishers to schools at
Chair no cost to the state (RQ-903)
State Board of Education
1242 1 Memorial Drive
Houston, Texas 77024
Dear Commissioner Moses and Dr. Christie:
You request our opinion regarding the authority of the State Board of Education (“the
board”) to adopt a rule prescribing the content of state-Iimded textbooks for use in public schools.
Cln July 12,1996, the board adopted a rule requiring textbooks to adhere to certain general content
requirements and limitations as a condition of board approval. 21 Tex. Reg. 7238 (1996) (to be
coditled at 19 T.AC. $66.66) (State Bd. of Educ). The board conditioned the effectiveness of the
rule on a finding by this office that the rule is within the board’s rule-making authority. It is our
opinion that the board has no authority to adopt the proposed rule prescribing textbook content.
You also ask several questions regarding the board’s authority with respect to “ancillary’
items provided by textbook publishers t&s of charge to school districts. We conclude that the
board’s authority to adopt or reject textbooks does not extend to consideration of ancillary items
provided to school districts at no cost to the state.
Textbook Adoation
In 1995 the Texas Legislature completely revised the Education Code in Senate Bill 1, making
substantive changes in the laws governing Texas public schools.’ The revised code sets out the
powers and duties ofthe State Board of Education, a state agency that the constitution required the
legislature to create with “such duties as may be prescribed by law.” Tex. Const. art. VII, $8; see
Dr. Mike Moses and Dr. Jack Christie - Page 2 (DM-424)
Educ. Code 5 7.102.’ As a state agency, the board has only those powers expressly granted to it or
n&y implied from or incident to its express powers. CentruZEiiuc.Agency v. Upshur County
Comm‘rsCourt, 731 S.W.2d 559,561 (Tex. 1987); Sherman v. Public Util. Comm’n, 643 S.W.2d
681,686 (Tex. 1983); Attorney General Opinion JM-971 (1988) at 1.
The legislature’s gmnt of power to the board allows the board to “perform only those duties
relating to school districts nor regional education service centers assigned to the board by the
constitution of this state or by [the Education Code].” Educ. Code 5 7.102. In a section entitled
“Limitation on Authority,” the new code expressly reserves to school districts and open-enrollment
charter schools any “educational fimction not specifically delegated to the [Texas Education Agency]
or the board.” Id. § 7.003. In light of the code’s express limitations on the board’s authority, we
construe stn’ctly its grants of power to the board.
Education Code section 7.102(b)(24) requires the board to adopt textbooks and textbook
rules required by chapter 31, governing state timding, adoption, and purchase of textbooks.
Textbooks selected for use in public schools are provided without cost to students attending those
schools, id $31.001, usingmoniesfromthe state textbook fimd, id $31.021. Section 31.003 gives
the board authority to promulgate rules, consistent with chapter 3 1, for the adoption of textbooks.
When given rule-making authority, a state agency generally may adopt only such rules as are
authorized by and consistent with its statutory authority. An agency rule may’not impose additional
burdens, conditions, or restrictions in excess of or inconsistent with relevant statutory provisions.
Roilrood Comm’n v. Lone Star Gas Co., 844 S.W.2d 679,685 (Tex. 1992); RoiIroodComm’n v.
Arco Oil & Gas Co., 876 S.W.2d 473,481-82 (Tex. App-Austin 1994, writ denied). Thus we
consider whether the proposed textbook content requirements are authorized by or consistent with
relevant statutory provisions. We conclude that they are not, in light of the Education Code’s specific
provisions regarding textbook selection and the general intent of the revised code to reduce and limit
the board’s authority.
Chapter 3 1 of the Education Code contains specific instructions to the board with respect to
textbook selection. Section 3 1.023 provides:
?4rtide W, seetim 3 ofthe Texas Constitution euthti the coll&ion of ad v&rem taxes for the maintenance
ml suppat of publicschools and provides:“mt shallbe the duly of the State Board of Education to set aside a suflicient
amount out ofthe said tax to provide6~ textbe&s for the we of children attending the public 6ze schcols of this State.”
A 1935 rattmrq general opinion held that this provision should be d broadly to give the board exclusive authority
over the purchase and distribution of t&books, which authority could not be diminished by the legislahre. See Attorney
Genwl Opinion O-2968 (193.5). While not ezqressly overruling Attorney General Opinion O-2%8, the attorney general
subqwdy held that article VII, sxtim~ 3 was never intended to confer upon the board exclusive control over the textbook
rid, and that the legislature retains power to press&e the manner of purchase and distribution of textbooks by the bard.
See Attorney General Opinion O-561 (I 939); see &o Attorney General Opinions H-507 (1975) (al?imdng AItomey
Genaalopiniono-%l),ww-1112(1%1)( concluding that legislahre conhols method of expending state textbook iimd).
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(a) For each subject and grade level, the 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
specitications adopted by the State Board of Education and contains material
covering each element ofthe essential knowledge and skills of the subject and
grade level as determined by the State Board of Education under Section
28.002 and adopted under Section 3 1.024. The nonconforming list includes
each textbook submitted for the subject and grade level that:
(1) meets applicable physical specitications adopted by the 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; and
(3) is adopted under Section 3 1.024.
(b) Each textbook on a conforming or nonconforming list must be gee
from factual errors.
Section 3 1.024 contains additional specific instructions with respect to textbook
adoption. It provides:
(a) By majority vote, the State Board of Education shah:
(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.
Read together, sections 3 1.023 and 3 1.024 establish what the board must do with respect to
each textbook submitted by a publisher for use in public schools. Each submitted book must be
placed on the conforming list, placed on the nonconforming list, or rejected. A book is to be placed
on the conforming list if it satisfies four conditions: (1) it meets board-established physical
specitications, (2) it covers all of the essential knowledge and skills elements for the subject and grade
pursuant to section 28.002, (3) it is adopted by a majority vote of the board under section 3 1.024,
and (4) it contains no &ctual errors. Jfa textbook covers less than all but at least half of the essential
knowledge and skills elements but satisfies the physical requirements, is tiee of factual errors, and is
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adopted by a majority vote of the board, it is to be placed on the nonconforming list.’ Jf a book is
not eligible for either the conforming or nonconforming list, then it must be rejected.
No other criterion for placement on the textbook lists is provided in chapter 3 1. Nor is any
other ground for rejection provided. When a statutory power is granted, and the method of its
exercise pmsc&ed, the prescribed method excludes all others and must be followed. Foster v. Ciry
ofW~o,255S.W. 1104,1105(Tex. 1923);Colev. TemsAmyNat’IGmrd,909S.W.2d535,539
(Tex. App.-Austin 1995, writ denied); Attorney General Opinion JM-995 (1988) at 5; 2A
SUTHERLAND STATUTORY CONSTRUCTION 5 47.23 (5th ed. 1992). The content requirement rule
proposed by the board would establish conditions for adoption or rejection of a textbook in addition
to those specifically set out in the code, and would therefore be beyond the board’s rule-making
authority.
Adopted textbooks must contain materials covering the “essentialknowledge and skills” for
the curriculum established by the board in accordance with section 28.002. Educ. Code $3 1.023.
Section 28.002 sets out the minimum mquired curriculum for public schools. For school districts that
offer kindergsrten through grade 12, subsection (a) requires a “foundation” curriculum that includes
English language arts, mathematics, science, and social studies consisting of Texas, United States,
and world history, govemment, and geography. Subsection (a) also requires an “emichment”
curriculum that includes languages other than English, health, physical education, fine arts, economics
(“with emphasis on the f?ee enterprise system and its be&its”), career and technology education, and
technology applications. For school districts that do not offer kindergarten through grade 12,
subsection (b) requires the board by rule to “designate subjects constituting a well-balanced
curriculum.” Two provisions in section 28.002 address textbook selection in relation to curriculum:
subsections (c) and (h).
Subsection (c) requires the board, with the direct participation of educators, parents, business
and industry representatives, and employers, to “identify [by rule] the essential knowledge and skills
of each subject of the foundation curriculum that all students should be able to demonstrate and that
will be used in evaluating textbooks under Chapter 3 1.” Educ. Code § 28.002(c).’ Subsection (c)
allows the board to identify the specific “essential knowledge and skills” that textbooks must teach
for each curriculum subject established by the legislature in subsection (a). It does not allow the
board to establish general textbook content requirements.
‘We note that subsection (d), requiring the board to identify the essential knowledge and skills fbr enrikhment
cuniculusn, makes no reference to textbook adoption. Id. 8 28.002(d).
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The second provision in section 28.002 address& textbook selection in relation to curriculum
is subsection (h). Subsection (h) states:
The State Board of Education and each school district shsll foster the
continuadon of the tradition of teaching United States and Texas history and
the the enterprise system in regular subject matter and in reading courses and
in the adoption of textbooks. A primary purpose of the public school
curriculum is to prepare thoughtfbl, active citizens who understand the
importance of patriotism and can function productively in a free enterprise
society with appreciation. for the basic democratic values of our state and
national heritage.
The code does not define the term “foster” or prescribe the manner in which the board and
school districts may implement this provision. Nor does the “primary purpose” language mandate
or direct any action by the board with respect to textbook selection. We believe that subsection (h)
is intended to serve as an indication of legislative policy and a guide for the board and school districts
in formulating their curriculum, and that it does not confer any additional power to the board with
respect to textbook adoption. Tbe “primary purpose*’language is identical to the language in former
section 21.101(d), which read:
(d) Local instructional plans may draw upon state curricula
Sameworks and program standards as appropriate. The responsibility for
enabling all children to participate actively in balanced curriculum which
is designed to meet individual needs rests with the local school district.
Districts are encouraged to exceed minimum requirements of the law. A
primary purpose of the public school curriculum is to prepare thoughttil,
active citizens who understand the importance of patriotism and can
function productively in a t?ee enterprise society with appreciation for the
basic democratic values of our state and national heritage.6
It appears that the intent of the “primary purpose” language in section 2 1.101(d) was to give
school districts some guidance in formulating their local curriculum plans. The former subsection
made no reference to textbook adoption. We believe tbe current provision similarly is a guide for the
board in formulating curriculum, not textbook content standards.
It has been argued that the proposed content guidelines could be adopted pursuant to
section 3 1.022, which provides, in pertinent part:
(b) The board shall adopt rules to provide for a fir11and complete
investigation of textbooks for each subject in the foundation curriculum at
‘ACt OfMay 25.1981.67th Leg., R.S., ch. 274.5 1.1981 Tex. Gen. Laws 727,121.
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leasteverysixyears....
(c) The board shall adopt rules to provide for a tbll and complete
investigation of textbooks for each subject in the enrichment curriculum on a
cycle the board considers appropriate.
We do not believe that motion 3 1.022 gives the board authority to adopt the proposed content
8uidelines as part of their “full and complete investigation” of textbooks. The board’s investigation
is limited to consideration of the criteria for textbook adoption set out in the code: physical
specifications, essential knowledge and skills elements, and factual errors.
The revised code’s specific instructions to the board with respect to textbook selection are
consistent with the code’s reduction of the board’s overall authority in the governance of public
schools. The former code gave the State Board of Education broad powers. The board was
authorized to “take actions necessary to implement legislative policy for the public school system.”
Act ofJune 5,1990,7lst Leg., 6th C.S., ch. 1, 8 2.06, 1990 Tex. Gen. Laws 1, 13. With respect to
textbook selection, the board had great discretion. The former code allowed the board to select any
textbooks “which in the opinion of the board [were] most acceptable for use in the schools.” Act of
May 31,1%9,6lst Leg., RS., ch. 889,s 12.24,1969 Tex. Gen. Laws 2735,2779. The board could
consider quality, mechanical construction, paper, print, price, authorship, literary merit, and “other
relevant matters” in making its selections. Id In fact, consideration of textbook content was an
express responsibility of the board: “The State Board of Education shall adopt rules to provide for
a full and complete investigation of all books and accompanying bids and for an opportunity for
members of the public to comment in regard to textbook content or in support of or against any
textbookpresented.” ActofApril7, 1983,68thLeg.,RS., ch. 13, $ 10, 1983 Tex.Gen.L.aws83,
90 (emphasis added). At least one content requirement was speciScally expressed: ‘No book
adopted shall wntain anything of a partisan or sectarian character.” Act of May 3 1, 1969,6lst Leg.,
R.S., ch. 889, $ 12.14, 1969 Tex. Gen. Laws 2735,2775.
No such broad authority over textbook adoption or specific control over content is found in
the new Education Code. When the legislature amends a statute and omits language of the former
statute in its amended version, the legislature is presumed to have intended to change the law. See
Gateley v. Humphrey, 254 S.W.2d 98, 101; State v. Eversole, 889 S.W.2d 418,425 (Tex. App.-
Houston [14th Dist.] 1994, pet. ref d); 1A SW STATUTORYCONSTRU~ON$~~.~O(~~~
ed. 1992). In great contrast to its former authority, the board’s powers are now expressly limited,
and powers not assigned to the board are reserved to local school districts. See Educ. Code
!j7.003,.102.
We also find support for our conclusion in the legislative history of Senate Bill 1, The bill as
introduced by Senator Ratliff completely removed textbook selection power from the board. S.B.
1,74th Leg., RS. (1995) (iioduced version). During consideration on the senate floor, Senate Bill
1 was amended to allow the board to approve textbooks that “contain the essential elements of the
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subject” and were “free of factual errors.” S.J. ofTex., 74th Leg., R.S. 773-83 (1995) (Floor
Amendment No. 44). Also adopted was a textbook content provision requiring approved books to
be ‘%ee of language that refers to one or more specific racial groups and that, in the opinion of the
board, considering the context in which the language occurs, is derogatory or malicious and has no
educational purpose appropriate to the age of the student.” S.J. of Tex., 74th Leg., RS. 788 (1995)
(Floor Amendment No. 44G). The conference wmmittee on Senate Bill 1 adopted the House of
Representative’s version of the bii, which contained the conforming and nonconforming list scheme
but eliminated the content requirement regarding racial groups, Kuther evidence of the legislature’s
intent to limit the board’s review of textbooks to the criteria listed in section 3 1.023.
We reviewed wmzspondence from members of the Seventy-fourth Texas Legislature stating
that they did not intend Senate Bill 1 to remove the board’s authority to adopt gene4 content
requirements. P&t-enactment statements of legislators, however, do not form part of the legislative
history of provisions that may be taken account of in their construction. Gene& Chem. Corp. v. De
LaZ.a?ru, 852 S.W.Zd 916,923 (Tex. 1993), cert. denied, 510 U.S. 985 (1993); Attorney General
Opinion DM-321 (1995) at 1 n.1; (citing 2A Norman J. Singer, STATUTESAND STATUTORY
CONSTRUCTION 5 48.16 (5th ed. 1992)).
Members ofthe legislature have also made post-enactment statements that they intended the
board to retain power over textbook selection. We note that the board does retain power over
textbook selection. The board establishes curriculum requirements, screens books for quality and
fkctual errors, and enters into contracts with publis&rs. However, the board may exercise authority
over textbook selection only within the scope of the power granted to it by the legislature. We
conclude that the power granted to the board in the revised Education Code does not include
authority to adopt the proposed rule prescribing textbook content.
Ancillsw Materialg
You also ask several questions regarding the board’s authority with respect to “ancillary”
items provided by textbook publishers free of charge to school districts. Your questions are:
Does the Board’s authority to adopt or reject textbooks extend to
consideration of ancillary items?
Do all materials which a publisher provides a school district wme within the
definition of”‘textbool? [under] section 3 1.002(3) or may a publisher choose
what materials are submitted for consideration under Section 3 1.023?
May the Board reject a textbook submitted for consideration because of the
nature of an ancillary item which has not been submitted?
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“Textbook” is defined broadly in the revised Education Code as “a book, a system of
instructional materials, or a combination of a book and supplementary instructional materials that
wnveys information to the student or otherwise contributes to the learning process, or an electronic
textbook.” Educ. Code $3 1.002(3). The only reference to “ancillary’ materials in the Education
Code is in section 3 1.15 1, which requires textbook publishers and manufacturers to provide any
“‘textbook or ancillary item” fhae of charge in Texas to the same extent that it is provided free of
charge to any other state, school or school district in the United States. Id 0 3 1.15 l(a)(3). Given
the ordinary meaning of ancillary--which is synonymous with “subordinate,” “auxiliary,” and
“supplementary”‘-ancillary materials would appear to come within the broad definition of
“textbook,” which includes “supplementary instructional materials.” Id, 3 3 1.002(3). However, the
reference to ancillary items in section 3 1.15 1 suggests that the legislature envisioned that items not
within the definition of “textbook” may be supplied by publishers to schools.
The textbook adoption and purchasing laws in chapter 3 1 of the code do not refer to ancillary
materials. Textbooks are to be adopted or rejected from the books submitted to the board. Id
@ 3 1.023, .024. Furthermore, the purpose of chapter 3 1 is to provide for a system of selecting slate
funded textbooks. The state will pay only for approved books, but districts are free to use local fbnds
to purchase any book they choose. Zu! 4 31.106. Nothing in the code prohibits districts 6om
acquiring books free of charge. Therefore, we do not believe that the board’s authority to adopt or
reject textbooks extends to consideration of ancillary items provided to school districts free of charge.
Because the board is to select or reject textbooks from the books submined, we believe that the
submitting party may determine what materials are to be included for review. Only the materials
submitted to the board may be the basis for adoption or rejection of a textbook.
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SUMMARY
The State Board of Education has no authority under the Texas
Education Code to adopt mles regarding the content of state-approved
textbooks establishing criteria for approval beyond the criteria contained
in section 31.023 ofthe Education Code. The board’s authority to adopt
or reject textbooks does not extend to consideration of ancillary items
provided to school districts free of charge.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Barbara Griffin
Assistant Attorney General
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