July 19, 2002
TO THE ADMINISTRATOR ADDRESSED:
Re: Attendance, Admission,
Enrollment Records and Tuition
As you begin the 2002-2003
school year, you may find that a summary of some important statutes
relating to attendance, public school admission, enrollment records,
and tuition is helpful to you. With that in mind, we have prepared
the enclosed summary related to those issues. Part I of the summary
relates to attendance. Part II relates to public school admission.
Part III relates to enrollment, and Part IV relates to tuition.
If you have questions
about the statutory provisions discussed in the enclosed summary,
you are welcome to call the Office of Legal Services at (512) 463-9720.
David A. Anderson
Summary of Certain Statutes Regarding
Attendance, Admission, Enrollment Records and Tuition
Tex. Educ. Code §25.085
Compulsory attendance applies to students who are at least six years
old as of September 1 of the applicable school year. The law requires
a student to attend public school until the student's 18th birthday,
unless the student is exempt under §25.086 . This requirement
is enforced through §§25.093 and 25.094, which are noted
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
voluntarily enrolled in pre-kindergarten or kindergarten.
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 services. Also,
please note that a student who is removed from school under this
provision is considered a dropout for accountability purposes.
Tex. Educ. Code §25.086 (Compulsory Attendance Exemptions)
This section lists the exemptions from compulsory attendance. Three
of the exemptions are addressed in this letter.
The exemption from compulsory attendance for students who have been
expelled applies only in counties with a population of 125,000 or
less. Counties with populations 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 125,000 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
17 year-old in GED course
The exemption from compulsory attendance for a child attending a
GED course who is at least 17 years of age applies if: 1) the child
has the permission of the child's parent or guardian to attend the
course; 2) the child is required by court order to attend the course;
3) the child has established a residence separate and apart from
the person's parent, guardian, or other person having lawful control;
or 4) the child is homeless. (For a discussion of the enrollment
in a school district of children with separate residences or who
are homeless see Part II below.)
16 year-old in GED course
There is a separate exemption for a child attending a GED course
who is at least 16 years old. This exemption applies if the student
is recommended to take the course by a public agency that has supervision
or custody of the child under a court order. Under Article 45.054,
Code of Criminal Procedure, a justice or municipal court that finds
that a child who is at least 16 years of age engaged in truant conduct
may order the child to take a GED examination and to attend a preparatory
course. The exemption applicable to a 16 year-old attending a GED
course includes those enrolled in a Job Corps training program.
These are the only conditions under which 16 year-olds are exempt
from compulsory attendance due to attending a GED course. In addition,
certain 16 year-olds may attend a GED program operated by a school
district or open-enrollment charter school under Section 29.087.
Tex. Educ. Code §25.087
This section relates to excused absences. It provides that a person
required to attend school under §25.085 "may be excused
for temporary absence resulting from any cause acceptable to the
teacher, principal, or superintendent of the school in which the
person is enrolled." As discussed under "Duties of School
Attendance Officer" below, excused absences are not counted
when determining the number of absences that trigger a referral
or complaint for failure to comply with the compulsory attendance
requirement. Excused absences are counted in determining whether
a student is compliance with the "90 percent rule", which
is also discussed below, but local policies under Section 25.092
regarding the award of class credit may take into account whether
an absence is excused.
Under this section, a
school district is required to excuse an absence for observance
of a religious holy day, including travel for that purpose, even
if no advanced written request is made. The former requirement that
a parent, guardian, or person having custody or control of a student
submit a written request for an excused absence in advance was removed
by the legislature in 1999. This section also requires that a school
district excuse a temporary absence for the purpose of an appointment
with a health care professional if the student comes to school
the day of the appointment, either before or after the appointment.
A student may not be penalized for an absence for a religious holy
day or a health care appointment. Also, the district must allow
the student a reasonable time to make up school work missed.
Tex. Educ. Code §§25.088
and 25.090 (Designation of School Attendance Officer)
Under §25.088, the governing body of a school district or of
an open-enrollment charter school may select an attendance officer
to enforce the attendance of students. If an open-enrollment charter
school does not select an attendance officer, §25.090 requires
the county peace officers to 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 Attendance Officer)
Section 25.091 lists the duties of a school attendance officer.
The section lists separately the duties of attendance officers who
are peace officers and the duties of those who are not peace officers.
Please note that the statute authorizes an attendance officer to
refer a student to juvenile court or file a complaint in justice
or municipal court only for "unexcused absences." Excused
absences should not be considered when deciding to make a referral
or file a complaint.
Section 25.095 requires
school districts and charter schools to notify parents of attendance
requirements at the beginning of the school year. Also, an additional
notice is required after a student has a certain number of unexcused
Tex. Educ. Code §§25.092
and 11.158 (Ninety Percent Rule; Fees)
Section 25.092 contains the provision of law commonly referred to
as "the 90 percent rule". It conditions credit for a class
on a student's attendance for at least 90 percent of the days a
class is offered. The board of trustees is required to appoint one
or more attendance committees that may grant credit due to extenuating
circumstances. The board is also required to adopt policies establishing
alternative ways for students to make up work or regain credit lost
because of absences.
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 charged.
Tex. Educ. Code §§25.093,
25.094, 25.0951, and 25.0952 (Compulsory Attendance Enforcement)
There are three options for compulsory attendance enforcement, which
are outlined in new Section 25.0951. Section 25.093 is an offense
for thwarting compulsory attendance, which is committed by a parent.
Section 25.094 is an offense for failing to attend school, which
is committed by a student. A district may file an action to enforce
compulsory attendance in any
justice precinct in the
county in which the school is located or in which the person filed
against resides. Alternatively, an action may be filed in municipal
court. Section 25.093 now provides for the deposit of one-half of
a fine collected under that section to the credit of the open-enrollment
charter, juvenile justice alternative education program, or school
district that the child
attends. The third option for enforcement is to proceed against
the child in juvenile court as a "child in need of supervision"
under Section 51.03, Family Code. Formerly, the juvenile court option
was unavailable for attendance enforcement if the student was married,
but in 2001 the legislature removed that exception from Section
51.03, Family Code. It is an affirmative defense under both the
Education Code and the Family Code that an absence was or should
be excused. For the student, there is also an affirmative defense
for absences that are involuntary.
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
in a different district than 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 accept, as transfers,
students who are not entitled to enroll in the district under §25.001.
The acceptance of transfer students must be in compliance with Civil
Action No. 5281 and must be reported to the TEA Division of Equal
If a district legally
admits a school age Texas resident, the district may include the
student in its average daily attendance, 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 and who has graduated from high school by successfully
completing an IEP and the other requirements of 19 TAC Sec. 89.1070(c),
but meets the age eligibility requirements, may receive additional
educational services (and be eligible for enrollment and funding)
if the student's ARD committee determines that services need to
be resumed. A student with a disability who has graduated in accordance
with 19 TAC Sec. 89.1070(b) or (d) is not eligible for special education
services under state or federal law or for the benefits of the Foundation
and Student in District)
This provision entitles a student to admission if the student and
either parent reside in the district. Although this subdivision
applies only if the student and parent reside in the same district,
it does not require that they live at the same address. (For a student
living in different district, separate and apart from a parent,
guardian, or other person having lawful control of the student under
a court order, see § 25.001(b)(4) below.)
Only in District)
This provision requires a district to serve a student who does not
reside in the district if 1) a parent of the child resides in the
district and 2) the parent is a joint managing conservator, sole
managing conservator, or possessory conservator of the child. This
provision does not apply to all parents living apart from their
children. It applies only if the parent is a joint managing conservator,
sole managing conservator, or possessory conservator. Those designations
are established by the order of a court in a suit affecting the
parent-child relationship under Title 5 of the Texas Family Code.
If the parent's relationship with the child has not been the subject
of such a suit, this provision of §25.001(b) does not apply.
The designation by a court of a parent as a joint managing conservator,
sole managing conservator, or possessory conservator can occur under
a number of different circumstances, but occurs most commonly in
relationship to a divorce proceeding. A temporary order pending
final disposition of a divorce action would qualify a student for
enrollment under this provision.
and Guardian or Person with Lawful Control in District)
This provision entitles a student to admission if the student and
the student's "guardian or other person having lawful control
of the . . . [student] under a court order reside within the school
district." (For a student living separate and apart from a
parent, guardian, or other person having lawful control of the student,
see §25.001(b)(4) below.)
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 discussed below.
Only in District)
This provision, by reference to §25.001(d), allows a student
under 18 years of age to "establish residence for purpose of
attending public schools separate and apart from the… student's]
parent, guardian, or other person having lawful control of the …
[student] under a court order…" §25.001(d). However, the
student's presence in the district may not be "for the primary
purpose of participation in extracurricular activities." Id.
The district is not required
to admit a student under §§25.001(b)(4) and (d) if the
(1) has engaged in conduct
or misbehavior within the preceding year that has resulted in:
(A) removal to an alternative education program; or
(2) has engaged in delinquent conduct or conduct in need of supervision
and is on probation or other conditional release for that conduct;
(3) has been convicted
of a criminal offense and is on other conditional release. §25.001(d).
These exceptions apply
only if a student is living in a different district than the student's
parent, guardian, or other person with lawful control of the child
under a court order. The exceptions cannot be used to prevent a
student eligible for admission under a different subdivision of
§25.001(b) from being served. (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
Under §25.001(d), "the board of trustees shall determine
whether an applicant for admission is a resident . . . for purposes
of attending school" under that subsection. Furthermore, the
"board may adopt reasonable guidelines for making a determination
as necessary to protect the best interests of students." [emphasis
added] Id.; See also, §25.001(c) (board may require evidence
of residency, may establish minimum proof of residency, and may
make reasonable inquiries to verify eligibility for admission).
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.
This provision entitles
a person defined as "homeless" under 42 U.S.C. §11302
to admission "regardless of the residence of the person, of
either parent of the person, or of the person's guardian or other
person having lawful control of the person." Therefore, a person
who is homeless is entitled to admission in any Texas school district.
The definition in 42 U.S.C. §11302 is similar, but not identical,
to the new definition of "homeless children and youths"
enacted in the No Child Left Behind (NCLB) legislation enacted by
Congress this year. As the new definition in the NCLB legislation
applies specifically under federal law to the enrollment of homeless
children and youth, the Texas Education Agency advises that school
districts apply the NCLB definition, in addition to the definition
in 42 U.S.C. §11302, when determining if a student is eligible
for enrollment under §25.001(b)(5).
42 U.S.C. §11302
For purposes of this chapter, the term ''homeless'' or ''homeless
individual or homeless person'' includes -
(1) an individual who lacks a fixed, regular, and adequate nighttime
(2) an individual who has a primary nighttime residence that is
(A) a supervised publicly
or privately operated shelter designed to provide temporary living
accommodations (including welfare hotels, congregate shelters, and
transitional housing for the mentally ill);
(B) an institution that provides a temporary residence for individuals
intended to be institutionalized; or
(C) a public or private place not designed for, or ordinarily used
as, a regular sleeping accommodation for human beings.
42 U.S.C. §11434a provides:
* * * * *
(2) The term "homeless children and youths"'--
(A) means individuals
who lack a fixed, regular, and adequate nighttime residence (within
the meaning of section 11302(a)(1) of this title); and
(i) children and youths
who are sharing the housing of other persons due to loss of housing,
economic hardship, or a similar reason; are living in motels, hotels,
trailer parks, or camping grounds due to the lack of alternative
adequate accommodations; are living in emergency or transitional
shelters; are abandoned in hospitals; or are awaiting foster care
(ii) children and youths
who have a primary nighttime residence that is a public or private
place not designed for or ordinarily used as a regular sleeping
accommodation for human beings (within the meaning of section 11302(a)(2)(C)
of this title);
(iii) children and youths
who are living in cars, parks, public spaces, abandoned buildings,
substandard housing, bus or train stations, or similar settings;
(iv) migratory children
(as such term is defined in section 6399 of Title 20) who qualify
as homeless for the purposes of this part because the children are
living in circumstances described in clauses (i) through (iii).
§ 25.001(b)(6) (Foreign
This provision entitles a foreign exchange student to admission
if the student is placed with a host family that resides in the
school district by a nationally recognized foreign exchange program.
The only exception is under the terms of a waiver granted by the
commissioner on application of a district under §25.001(e).
For a waiver to be granted, the admission of a foreign exchange
student must create one of three possible conditions. It must 1)
create a financial or staffing hardship for the district, 2) diminish
the district's ability to provide high quality educational services
for the district's domestic students, or 3) require domestic students
to compete with foreign exchange students for educational resources.
The period of a waiver may not exceed three years.
Illegal Immigration Reform and Immigrant Responsibility Act (F-1
Under this federal act, a nonimmigrant may not be granted an F-1
visa in order to pursue a public elementary or publicly-funded adult
education program. The federal law permits a nonimmigrant F-1 immigration
status for public secondary school if the aggregate period of study
at the school will not exceed twelve months and the student reimburses
the secondary school for the full unsubsidized per capita cost of
the student's education. Texas law does not authorize a school district
to charge a student tuition under these circumstances. This conflict
between the federal law and Texas law prevents a student from being
able to meet the second condition for the issuance of an F-1 visa.
The federal reimbursement
requirement does not apply to foreign exchange students who hold
J-1 visas. It applies only to 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.
in Residential Facility)
This provision entitles a student residing at a residential facility
located in the district to admission. A "residential facility"
is defined in §5.001(8) as follows:
(A) a facility operated by a state agency or political subdivision,
including a child placement agency, that provides 24-hour custody
or care of a person 22 years of age or younger, if the person resides
in the facility for detention, treatment, foster care, or any noneducational
(B) any person or entity that contracts with or is funded, licensed,
certified, or regulated by a state agency or political subdivision
to provide custody or care for a person under Paragraph (A).
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.
This provision entitles a student residing in the district to admission
if the student is over 18 years of age or if the student is less
than 18 years of age and has had the disabilities of minority removed
through marriage or as otherwise permitted by law.
A decision of a school district to deny admission may be appealed
to the commissioner of education under §7.057(c). In an appeal
under that section, the commissioner will review the
record developed at the district level to determine if the decision
is supported by substantial evidence.
III. Enrollment Records
Section 25.002 requires that a child's prior school district or
the person enrolling the child provide certain records within 30
days from the date of enrollment. The required records are 1) a
birth certificate or other proof of identity, 2) the child's records
from the school most recently attended, and 3) immunization records.
The prior school district should promptly provide records to the
enrolling district that are needed for the appropriate placement
and continued education of the student, including records relating
to Section 504 or to special education services under the Individuals
with Disabilities Education Act. Under §25.002, the prior district
must provide the records within the 30-day period. This requirement
also applies to the transfer of records to or from other public
schools, including open-enrollment charter schools and juvenile
justice alternative education programs (JJAEPs).
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 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
During the 1995-1996 and 1996-1997 school years, a school district
was required under Section 25.002(f) to notify the Department of
Protective and Regulatory Services (DPRS) if a child was enrolled
by a person other than the child's parent, guardian, or other person
with legal control of the child under a court order. The district
was then to send parental communication regarding that child to
DPRS or whomever DPRS directed. During the 1997 legislative session,
the section was amended by removing the requirement to notify DPRS.
The amendment did not remove the first sentence of Section 25.002(f),
but that sentence is no longer effective because the referenced
exception was removed. The district must determine with whom communication
regarding the child is appropriate as the DPRS is no longer a default.
The absence of a parent, guardian, or other person with legal control
of a child under a court order is not grounds for refusing admission
to which a child is entitled under § 25.001.
Regardless of whether
or not 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)
This new section requires that a public school identify a student
by that student's legal surname as it appears on the student's birth
certificate or other document suitable as proof of the student's
identity or in a court order changing the student's name.
Articles 62.019 - 62.022, Code of Criminal Procedure
There are additional requirements relating to school records in
Chapter 62 of the Code of Criminal Procedure, which relates to the
missing children and missing persons information clearinghouse in
the Department of Public Safety. The requirements apply to the records
of children under 11 years of age.
When a child under the age of 11 initially enrolls in a school,
the school is required to take the following steps:
1. Request from the person
enrolling the child the name of each previous school attended by
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.
3. Notify the person enrolling the student that not later than the
30th day after enrollment, or the 90th day if the child was not
born in the United States, the person must provide a certified copy
of the child's birth certificate or other reliable proof of the
child's identity and age with a signed statement explaining the
inability to produce a copy of the birth certificate.
4. If the person enrolling the child does not provide valid prior
school information or the required documentation, the school shall
notify the appropriate law enforcement agency before the 31st day
after the person fails to comply. The failure to provide records
does not constitute grounds for refusing to admit an eligible student.
Records of Children Identified
When a law enforcement agency receives a report that a child under
11 years of age is missing, the law enforcement agency or the clearinghouse
will notify each school in which the child has been enrolled or
has attended. When the school receives the notice, the school is
required to take the following steps:
1. Flag the child's records that are maintained by the school.
2. On receipt of a request regarding the child, notify law enforcement
that a request for a flagged record has been made. If the request
is made in person, include a physical description of the requesting
party, the identity and address of the requesting party, and a copy
of the requesting party's driver's license or other photographic
identification. If the request is in writing, include a copy of
3. Do not disclose to the requesting party that the request concerns
a missing child.
4. Require the requesting party to complete a form stating the person's
name, address, telephone number, and relationship to the child and
the name, address, and birth date of the child.
5. Obtain a copy of the requesting party's driver's license or other
photographic identification, if possible.
6. After notifying law enforcement, mail a copy of the requested
record to the requesting party on or after the 21st day after the
date of the request.
Removal of Flag
On the return of a missing child whose records have been flagged,
the law enforcement agency or the clearinghouse will notify each
school the child has attended. On receipt of that notification,
the school shall remove the flag from the records. A school that
has reason to believe a missing child has been recovered may request
confirmation of that from the appropriate law enforcement agency
or the clearinghouse. If a response is not received after the 45th
day after the date of the request for confirmation, the school may
remove the flag from the record and notify the law enforcement agency
or the clearinghouse that the flag has been removed.
Relationship to FERPA
When a school receives a request for records, the school first needs
to consider whether the information may be released at all. Articles
62.019 - 62.022 of the Code of Criminal Procedure do not replace
the limitations on the disclosure of educational records that are
found in the federal Family Educational Rights and Privacy Act (FERPA).
FERPA prohibits the disclosure of educational records to persons
other than the student's parent, guardian, or an individual acting
as a parent in the absence of a parent or 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
Articles 62.019 - 62.011, Code of Criminal Procedure, require that
the district wait 21 days before mailing copies of flagged records
to a requester. However, the Public Information (or Open Records)
Act provides that "[i]f an officer for public information cannot
produce public information for inspection or duplication within
10 calendar days after the date the information is requested . .
. , the officer shall certify that fact in writing to the requester
and set a date and hour within a reasonable time when the information
will be available for inspection or duplication." Tex. Govt.
Code, §552.221(d). Due to this provision, a district should
notify a requester within 10 days that the records will be mailed
on a certain date that is on or after the 21st day after the request
Prekindergarten: In April
of 2000, 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.
In 2001, 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.
Formerly, school districts had legislative authority under Section
25.004 to charge tuition for certain military dependents. This authority
was removed by the legislature in 2001. However, these students
are eligible for funding under the Foundation School Program.
Other: 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