July 31, 2001
TO THE ADMINISTRATOR ADDRESSED:
The regular session of the 77th Legislature resulted in some changes in the state laws relating to public school admission and attendance that will apply during the 2001-2002 school year. This letter summarizes several important statutes relating to attendance, public school admission, enrollment records, and tuition, including the most recent legislative changes. Part I of the letter relates to attendance, Part II relates to public school admission, Part III relates to enrollment records, and Part IV relates to tuition. We hope you will find this summary helpful as you begin the 2001-2002 school year.
Tex. Educ. Code §25.085 (Compulsory Attendance)
Under §25.085(d), compulsory attendance applies to certain extended-year programs, tutorial classes, accelerated reading, accelerated instruction, and basic skills programs. Under Section 25.085(c), it also applies to students below the age for compulsory attendance but who are enrolled in pre-kindergarten or kindergarten.
Under §25.085(e), a person who voluntarily enrolls in or attends
school after the person's 18th birthday is required to attend each
school day for the entire period the program of instruction for
which the student is enrolled is offered. This requirement is not
enforceable through §§25.093 and 25.094. However, if the person
has more than five unexcused absences in a semester, the school
district may revoke the person's enrollment for the remainder of the
school year under this subsection. This provision does not override
the district's responsibility to provide a free appropriate public
education to a student who is eligible for special education
Tex. Educ. Code §25.086 (Compulsory Attendance Exemptions)
greater than 125,000 are required to have juvenile justice alternative education programs. In those counties, expelled students are subject to compulsory attendance. Expelled students must attend the juvenile justice alternative education program (JJAEP), if they are placed there, or another educational program provided by the school district. If an expelled student from a county of l25,000 or less moves to a county of more than 125,000, the new school district may honor the expulsion under Chapter 37 but must allow the student to attend either the JJAEP or another education program provided by the school district for expelled students.
Notwithstanding the exemption from compulsory attendance, if an expelled student is a special education student, the school district has a continuing obligation to provide a free appropriate public education to the student as required by 34 C.F.R. §300.121(d) regardless of the size of the county.
17 year-old in GED course
16 year-old in GED course
Tex. Educ. Code §25.087 (Excused Absences)
Tex. Educ. Code §§25.088 and 25.090 (Designation of School
does not select an attendance officer, §25.090 requires that the county peace officers perform the duties of attendance officer with respect to students in the open-enrollment charter school.
Tex. Educ. Code §§25.091 and 25.095 (Duties of School
Tex. Educ. Code §§25.092 and 11.158 (Ninety Percent Rule; Fees)
This flexible requirement allows a district to establish ways to make up work or regain credit that are workable in consideration of the circumstances. It does not require that students spend a certain amount of time in a "Saturday school" or other educational setting equal to time missed during regular school hours. The district should be prepared with other options that give the student a reasonable opportunity to make up work or regain credit even under challenging circumstances, including excessive absences that occur late in the school year. Additionally, this law is not intended to penalize students for not attending a class before the student was enrolled in the class. Students, including migrant students or transfer students, who could not have attended a class before enrollment should not have the days of class that occurred before their enrollment counted against them for purposes of "the 90 percent rule". As with any other student, to receive credit a student who enrolls after instruction for the year or semester has begun is required to demonstrate academic achievement and proficiency of the subject matter as required under §28.021 and 19 TAC §74.26.
If a district offers an educational program outside of regular
school hours as a means for students to make up work or regain
credit, under §11.158(a)(15) and (h), a district may charge a fee
for such an education program under restricted circumstances. The
school district may assess the fee only if the student returns a
form signed by the student's parent or other legal guardian stating
that the fee would not create a financial hardship or discourage the
student from attending the program. The fee may not exceed $50.
Also, under §25.092(b) and (f), the board must provide at least one
alternative for making up work or regaining credit that does not
require a student to pay a fee under §11.158(a)(15). The
availability of that alternative must be substantially the same as
the availability of an educational program for which a fee is
Tex. Educ. Code §§25.093, 25.094, 25.0951, and 25.0952
(Compulsory Attendance Enforcement)
Texas Education Code §25.001(b) sets out the circumstances under
which a person, who is at least five years of age and less than 21
on September 1 of a school year, is entitled to admission in a
school district. A student is entitled to admission if any one (or
more) of the eight subsections applies to the student. Most, but not
all, of the subsections require that the student live in the
district. If a district is considering denying admission to a
student who is eligible for special education services, the district
may wish to consult with its legal counsel or the Texas Education
Agency regarding the effect of that decision on the student's right
to a free appropriate public education.
It is important to consider that most students are entitled to enrollment in at least one district regardless of with whom they live. The exceptions under §25.001(d) apply only if a student is living separate and apart from the student's parent, guardian, or other person with lawful control under a court order (for discussion of these exceptions, see §25.001(b)(4) below).
All eight subdivisions of §25.001(b) are discussed below. These provisions create entitlements to enroll. A district may choose to also admit students who are not entitled to enroll in the district. If a district admits a school age Texas resident, the district may include the student in it's average daily attendance whether or not the student is entitled to enroll in that district under §25.001(b), unless the student is a high school graduate. An individual who is not a high school graduate is eligible for the Foundation School Program if the individual is under the age of 21 on September 1 of the applicable school year. An individual who is eligible for special education services and is not a high school graduate is eligible for enrollment and funding through the end of the school year or until graduation, whichever comes first, if the individual is under the age of 22 on September 1 of the applicable school year. A student who is eligible for special
education services who has graduated from high school by successfully completing an IEP in accordance with 19 TAC Sec. 89.1070(c), but meets the age eligibility requirements, may continue to receive educational services (and be eligible for enrollment and funding) if determined to be appropriate by the student's ARD committee. A student with disabilities who has graduated in accordance with 19 TAC Sec. 89.1070(b) or (d) is not eligible for state or federal special education funding.
§25.001(b)(1) (Parent and Student in District)
§25.001(b)(2) (Parent Only in District)
To avoid treating separated parents who do not have a court order differently from separated parents with a court order, a district may admit any child from outside the district who has a parent residing in the district, but is not statutorily required to do so.
§25.001(b)(3) (Student and Guardian or Person with Lawful
Control in District)
To determine a student's entitlement under §25.001(b)(3), a
district must determine if a court order exists that identifies a
guardian or other person with lawful control residing in the
district. A child is entitled to admission if a court orders the
placement of the child with a person or in a facility in the
district or if, pursuant to a court order, an entity such as Child
Protective Services or the Texas Youth Commission places a child in
the district. If such a court order exists, the child is entitled to
admission under this provision regardless of whether the student
would be ineligible under the exclusions of §25.001(d), which are
The district is not required to admit a student under §§25.001(b)(4) and (d) if the student:
(1) has engaged in conduct or misbehavior within the preceding
year that has resulted in:
These exceptions cannot be used to prevent a student eligible for admission under a different subdivision of §25.001(b) from being served. The exceptions apply only if a student is living separate and apart from the student's parent, guardian, or other person with lawful control of the child under a court order. (See Section 25.001(b)(2) for a parent and the student residing in the same district and §25.001(b)(3) above for a student placed with a person or in a facility in the district pursuant to a court order.)
Proof of Residency
This ability to adopt guidelines should not be misinterpreted as the ability to redefine the legal concept of residency established by our state law. Residency is not defined by an address on a driver's license, a signature on a lease, or the address on a utility bill. These are indicators that may assist a district in verifying residency, but do not define it. The traditional, basic residence criteria are living in the district and having the present intention to remain there. See, Martinez v. Bynum, 461 U.S. 321, 330-333 (1983), Arredondo v. Brockette, 648 F.2d 425 (5th Cir. 1981). The board of trustees' authority is to provide guidelines that will enable a student to substantiate his or her residency and enable the board to determine if the student is a resident of the district.
§25.001(b)(5) (Homeless Student)
(1) an individual who lacks a fixed, regular, and adequate
nighttime residence; and
§ 25.001(b)(6) (Foreign Exchange Student)
Illegal Immigration Reform and Immigrant Responsibility Act (F-1
The federal reimbursement requirement does not apply to foreign exchange students who hold J-1 visas. It applies only to the very limited number of nonimmigrant students who seek F-1 student status by obtaining an I-20 certificate of eligibility from a local educational agency. The ineligibility for an F-1 visa does not affect the entitlement to admission of a student actually residing in the district. Please remember that, under the United State Supreme Court decision in Plyler v. Doe, 102 S.Ct. 2382 (1982), a student's immigration status is not a permissible basis for denying admission to a public school.
§25.001(b)(7) (Student in Residential Facility)
"Residential facility" means:
Under §29.012, a residential facility is required to notify the school district in which the facility is located of the placement of a person three years of age or older. The facility is required to give the notice not later than the third day after the date of placement. A district should contact residential facilities in the district to coordinate implementation of this notice provision. In general, students placed in residential facilities are entitled to admission under other provisions of §25.001. However, §25.001(b)(7) provides a uniform admissions provision for children in such facilities. Additionally, the notice requirement should generate communication between the facilities and school districts that will promote efficiency in the provision of educational services to these children.
§25.001(b)(8) (Adult Student)
III. Enrollment Records
§25.002 (Requirements for Enrollment)
The failure of a prior district or the person enrolling the child to provide identification or school records under §25.002 does not constitute grounds for refusing to admit an eligible student. However, if identifying records are not furnished within the 30-day period, §25.002(c) requires the district to notify law enforcement and request a determination of whether the child has been reported as missing. This requirement
applies regardless of the child's age. If a child is enrolled under a name other than the name in the identifying documents, the school district is required to notify the missing children and missing persons information clearinghouse. The notice is confidential. (Please note that a student must be enrolled under the student's legal surname; see summary of new Section 25.0021 below.)
A student may be withdrawn if immunization records are not received within 30 days unless an exemption to immunization applies or the student has begun immunizations and is receiving them as rapidly as medically feasible. Section 38.001, Education Code.
Absence of parent or guardian
New Legislation: Regardless of whether a child's parent, guardian, or other person with legal control of the child under a court order is enrolling a child, under Section 25.002(f) as amended this year, a district is required to record the name, address, and date of birth of the person enrolling a child.
Section 25.0021 (Use of Legal Surname)
Articles 62.019 - 62.022, Code of Criminal Procedure
1. Request from the person enrolling the child the name of each
2. Request from each school the school records for the child or,
if the person enrolling the child provides the records, request
verification from the school of the child's name, address, birth
date, and grades and dates attended.
Records of Children Identified as Missing
Removal of Flag
Relationship to FERPA
guardian or, if age 18, the student, unless the disclosure comes within certain exceptions provided under FERPA. (One exception permits disclosure to another school district in which the student is enrolling, which is required by Section 25.002, Education Code). If the requester is someone other than the student's parent or guardian, an individual acting as a parent in the absence of a parent or guardian, or the student, if age 18, the district should still notify law enforcement of the request but may not release the records to the requester unless consent to the release is obtained or a FERPA exception to the general requirement for consent applies. Whether or not the information is released, remember that under Articles 62.019 - 62.022 of the Code of Criminal Procedure, the school district may not disclose to any requester (including a parent, guardian, individual acting as a parent, or student) that the request concerns a missing child.
Relationship to Public Information Act
New legislation: In April of last year, the Attorney General issued an opinion that school districts do not have authority to charge tuition for prekindergarten or for students who are under or over the ages of eligibility for the Foundation School Program. That opinion is in keeping with previous opinions that a school district may charge a fee or tuition only if it is specifically authorized to do so by statute or under the constitution. This legislative session, the legislature enacted statutory authority for tuition for some prekindergarten students. Eligibility for free prekindergarten is determined under Section 29.153 of the Education Code. Under new Section 29.1531, a school district may, on a tuition basis or using district funds, provide an additional half-day of prekindergarten for children eligible for classes under Section 29.153 or offer prekindergarten classes for children not eligible under Section 29.153. Tuition may not be charged under this new section for a student, including an eligible student served a full day, whose attendance is funded through a prekindergarten grant awarded by the commissioner under Section 29.155.
Another change regarding tuition is the amendment of Section 25.004 to remove the authority to charge tuition for certain military dependents. If your district is charging tuition for any purpose, please review the statutes to determine if there is authority for the tuition. Statutes authorizing tuition under certain limited circumstances include §§25.003 (Certain Children From Other States), 25.038 (Transfer Students), 25.039 (Contract for Education Outside District), 25.041 (Children of State School Employees),
and 25.042 (Children of Texas Youth Commission Employees). With respect to Section 25.039, see also new Section 41.0021(d)(2).
I hope this information is helpful to you in preparing for the 2001-2002 school year. If you have questions about the statutory provisions discussed in this letter, you are welcome to call the Office of Legal Services at (512) 463-9720.
|A MS Word Version of this letter is available for download.|
For further information on this topic, contact the Office of Legal Services at (512) 463-9720.