July 28, 2011
TO THE ADMINISTRATOR ADDRESSED:
Re: Attendance, Admission, Enrollment Records and
Tuition
This letter
summarizes several important statutes relating to attendance, public school
admission, enrollment records, and tuition. 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. In each part, we have
identified which statutes do or do not apply to open-enrollment charter
schools. We hope you will find this summary helpful as
you begin the 2011-2012 school year.
I. Attendance
The statutes
described in this Part apply to open-enrollment
charter schools in addition to school districts, except for §25.092 (Minimum Attendance for Class Credit).
§25.085
(Compulsory Attendance)
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 (see page 5).
Under §25.085(d), compulsory
attendance applies to certain extended-year programs, tutorial classes,
accelerated reading instruction programs, accelerated instruction programs,
basic skills programs, and summer programs for students subject to certain
disciplinary removals. Under §25.085(c),
it also applies to students below the age for compulsory attendance during any
period that the student is voluntarily 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 state 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 authority to revoke enrollment, however,
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 whose enrollment is revoked under this provision is considered a
dropout for accountability purposes.
Section 25.085(f) purports to
authorize the board of trustees of a school district to adopt a policy
requiring a person described by Subsection (e) who is under the age of 21 to
attend school until the end of the school year and to subject the person to §25.094. However, §25.085(f) is no longer
effective due to the amendment of §25.094, limiting the application of that
section to persons “younger than 18 years of age.”
§25.086
(Compulsory Attendance Exemptions)
Section 25.086 lists the
exemptions from compulsory attendance. Three of the exemptions are addressed below.
Expelled
Students
The exemption from compulsory
attendance for students who have been expelled applies only in a school district
that does not participate in a mandatory juvenile justice alternative education
program (JJAEP). With certain exceptions,
counties with populations greater than 125,000 are required to have JJAEPs. In those counties, expelled students are
subject to compulsory attendance. Expelled students must attend the JJAEP, if they are placed there, or
another educational program provided by the school district. If an expelled student from a county that
does not have a JJAEP moves to a county that has a mandatory JJAEP, the new
school district may honor the expulsion under Chapter 37 but must assign the
student to either the JJAEP or another educational program provided by the
school district for expelled students. An open-enrollment charter school may deny admission to a student
expelled from a school district if its charter so provides.
Notwithstanding the above-described
exemption from compulsory attendance, a school district has a continuing
obligation under federal and state law to provide a free appropriate public
education to a student with a disability who has been removed for disciplinary
reasons from his or her current educational placement, regardless of the population
of the county in which the school district is located.
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 child’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, Admission.)
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 of the Texas Code of Criminal Procedure, a county, 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 §29.087.
§25.087 (Excused Absences)
Section
25.087 relates to excused absences. Subsection (a) 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 in compliance with the attendance requirements
for class credit, which are also discussed below, but local policies under §25.092
regarding the award of class credit may take into account whether an absence is
excused.
Under
§25.087(b)(1), a school district is required to excuse a student’s absence for
observance of a religious holy day, for attending a required court appearance, to
appear at a governmental office to complete paperwork required in connection
with the student’s application for United States citizenship, to take part in a
United States naturalization oath ceremony, or for service as an election clerk.
The period of an excused absence under §25.087(b)(1) includes travel time.
Under
§25.087(b)(2), a school district must 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. According to §25.087(b-3), an absence subject
to this provision includes a temporary absence of student diagnosed with autism
spectrum disorder for an appointment with a health care practitioner to receive a generally recognized service for persons with autism spectrum disorder.
Under
§25.087(b-2) , a district may excuse the absence of a student who is a junior
or senior for the purpose of visiting an accredited institution of higher
education if the district adopts a policy to determine when an absence will be
excused for that purpose and a procedure to verify the visit. In addition, under §25.087(c), a school
district may excuse a student in grades 6 through 12 for the purpose of
sounding “Taps” at a military honors funeral held in this state for a deceased
veteran.
A
student whose absence is excused under Subsections (b) - (c) described above may
not be penalized for the absence. Also,
the district must allow the student a reasonable time to make up missed school
work If an absence is excused under
§25.087(b) - (c) and the student successfully completes the missed school work,
the student is included in average daily attendance for that day. A student may not be included in average
daily attendance for an absence that is excused for a reason that is not
included under §25.087 (b) – (c).
Under
the Interstate Compact on Educational Opportunity for Military Children, a
school superintendent may excuse a student’s absence for the purpose of
visiting with a parent or legal guardian who is an active duty member of the
uniformed services and has been called to duty for, is on leave from, or
immediately returned from deployment to a combat zone or combat support
posting.
§§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.
§§25.091, 25.0915 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
a county, justice or municipal court only for “unexcused absences.” Excused
absences are not included in the number of absences required for a referral or
complaint. In addition to enrolled students with
unexcused absences, a school attendance officer’s duties extend to persons
within compulsory attendance age who are not exempt from compulsory attendance
and are not enrolled in school.
Section 25.091(b-1) authorizes a peace officer who has probable cause to
believe that a child is violation of the compulsory school attendance law under
§25.085 to take the child into custody for the purpose of returning the child
to the child’s school campus.
An attendance officer is required to apply truancy prevention measures
adopted by the district under §25.0915 and may make a referral or file a
complaint under §25.091 only if the truancy prevention measures fail to
meaningfully address the student’s conduct.
Section 25.095 requires school districts and open-enrollment 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 absences. Tardies are generally not considered absences
for purposes of compulsory attendance enforcement.
§§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.” Section 25.092
does not apply directly to open-enrollment charter schools. However, some open-enrollment charter schools
have included “the 90 percent rule” in their charters.
Section 25.092 conditions credit
for a class on a student’s attendance for at least 90 percent of the days a
class is offered. A student who is in
attendance for at least 75 percent, but less than 90 percent, of the days a
class is offered may be given credit if the student completes a plan approved
by the principal that provides for the student to meet the instructional
requirement of the class. If the student
is under the jurisdiction of a court in a criminal or juvenile justice
proceeding, the student may not receive credit by completing such a plan
without the consent of the presiding judge.
The board of trustees is required
to appoint one or more attendance committees to hear petitions from students
who do not regain credit through a plan approved by the principal. An attendance committee may grant credit due
to extenuating circumstances. The board
is also required to adopt policies establishing alternative ways for such students
to make up work or regain credit lost because of absences.
Under §25.092, a district may establish
ways to make up work or regain credit that are workable in consideration of the
circumstances. The section 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 T.A.C. §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.
§§25.093,
25.094, and 25.0951 (Compulsory Attendance Enforcement)
There are three options for
compulsory attendance enforcement, which are outlined in §25.0951. Section 25.093 is an offense for contributing
to nonattendance, which is committed by a parent. Section 25.094 is an offense for failing to
attend school, which is committed by a student who is 12 years of age or older
and younger than 18 years of age. 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 or, in a county with a population of 1.75 million or more, in a
constitutional county court. Section 25.093 provides for the deposit of
one-half of a fine collected under that section to the credit of the
open-enrollment charter, JJAEP, 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 §51.03 of the Texas Family Code. This
option applies if the child is 10 years of age or older for conduct committed
before becoming 18 years of age. It is an affirmative defense under both the Texas
Education Code and the Texas Family Code that an absence has been excused by a
school official or the court. For the student, there is also an affirmative
defense for absences that are involuntary. The affirmative defenses apply only if there are an insufficient number
of absences remaining to constitute an offense.
Under §25.0951(a), a complaint or
referral for 10 or more unexcused absences within six months must be made
within 10 school days from the date of the student’s 10th absence. A court shall dismiss a complaint or referral
that is not made in compliance with §25.0951.
II. Admission
Section 25.001 applies to an open-enrollment charter school for the
purposes of determining whether the student meets the residency requirements
for the open-enrollment charter school’s designated geographic boundary. Also,
the eligibility standards for prekindergarten programs, summarized in this Part,
apply to an open-enrollment charter
school. For more information
regarding open-enrollment charter school
admissions, please see the separate To The Charter Administrator Addressed
letter relating to admission, enrollment and withdrawal.
Section 25.001 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 school also may choose to
admit under this section a person who is at least 21 years of age and under 26
years of age on September 1 of a school year in order for the person to
complete the requirements for a high school diploma. There is additional
information regarding students age 21 and over near the end of this Part (see page
12).
A student’s entitlement to admission is established if any
one (or more) of the bases for admission in §25.001 applies to the
student. Most, but not all, of
the bases require that the student live in the district. 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 a minor 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 nine subdivisions of §25.001(b), as well as §25.001(g)
and (h), 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. Under §25.036, a transfer is an annual
agreement. The district may charge
tuition under a transfer agreement to the extent permitted under §25.038.
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 is eligible for the Foundation
School Program if the individual is under the age of 21 on September 1 of the
applicable school year and is not a high school graduate or if the individual
is at least 21 years of age and under 26 years of age on September 1 of the
school year and has been admitted to complete the requirements for a high
school diploma.
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 his or her individualized education program (IEP) and the other
requirements of 19 T.A.C. §89.1070(b)(3), but meets the age eligibility
requirements, may receive additional educational services (and be eligible for
enrollment and funding) if the student’s admission, review, and dismissal (ARD)
committee determines that services need to be resumed. A student with a disability who has graduated in accordance with 19 T.A.C.
§89.1070(b)(1), (2) or (4) is not eligible for special education services under
state or federal law or for the benefits of the Foundation School Program.
§25.001(b)(1) (Parent 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 a 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).)
§25.001(b)(2) (Parent Only
in District)
This provision entitles a student
who resides in Texas but does not reside in the district to admission 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.
§25.001(b)(3) (Student 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).)
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 the
Department of Family and 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.
§25.001(b)(4) (Student Only
in District)
This provision, by reference to
§25.001(d), allows a student under 18 years of age to “establish a residence
for the purpose of attending the public schools separate and apart from the
[student’s] parent, guardian, or other person having lawful control of the
[student] under a court order….” However, the student’s presence in the
district may not be “for the primary purpose of participation in
extracurricular activities.”
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:
(A) removal to a
disciplinary alternative education program (DAEP); or
(B) expulsion;
(2) has engaged in delinquent
conduct or conduct in need of supervision and is on probation or other
conditional release for that conduct; or
(3) has been convicted of a
criminal offense and is on other conditional release.
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 provision of §25.001
from being enrolled, including homeless students. Please consult this entire Part to determine
if another basis for eligibility applies.
Proof of Residency
Under §25.001(d), “[t]he board of
trustees shall determine whether an applicant for admission is a resident . . .
for purposes of attending the public schools” under that subsection and “may
adopt reasonable guidelines for making a determination as necessary to protect
the best interests of students (emphasis
added).”
This ability to adopt guidelines
should not be misinterpreted as the ability to redefine the legal concept of
residency established by our state law. 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. 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 expedite verifying residency, but the absence of such
indicators is not conclusive that the student is not a resident. Furthermore, the fact that a student is
living in a household that is leased or owned by someone outside the student’s
immediate family may be an indicator that the student is homeless and entitled
to admission under §25.001(b)(5).
§25.001(b)(5) (Homeless
Student)
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 definition of “homeless children and youths”
enacted in the No Child Left Behind (NCLB) legislation enacted by Congress in
2002. As the 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). Both definitions are set
out below. Under federal law, homeless
students may not be segregated from students who are not homeless, prohibiting
assignments to a “shelter school” or other segregated setting. Limited exceptions are provided for a short
period to deal with a health and safety emergency or to provide temporary,
special, and supplementary services that are unique to the needs of homeless
children.
42 U.S.C. §11302(a)
provides:
For purposes of this chapter, the terms “homeless”, “homeless
individual”, and “homeless person” means--
(1) an individual or family who lacks a
fixed, regular, and adequate nighttime residence;
(2) an individual or family with 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, including
a car, park, abandoned building, bus or train station, airport, or camping
ground;
(3) an individual or family living in a supervised publicly or
privately operated shelter designated to provide temporary living arrangements
(including hotels and motels paid for by Federal, State, or local government
programs for low-income individuals or by charitable organizations, congregate
shelters, and transitional housing);
(4) an individual who resided in a shelter or
place not meant for human habitation and who is exiting an institution where he
or she temporarily resided;
(5) an individual or family who--
(A) will imminently lose their housing,
including housing they own, rent, or live in without paying rent, are sharing
with others, and rooms in hotels or motels not paid for by Federal, State, or
local government programs for low-income individuals or by charitable
organizations, as evidenced by--
(i) a court order resulting from an eviction
action that notifies the individual or family that they must leave within 14
days;
(ii) the individual or family having a primary
nighttime residence that is a room in a hotel or motel and where they lack the
resources necessary to reside there for more than 14 days; or
(iii) credible evidence indicating that the
owner or renter of the housing will not allow the individual or family to stay
for more than 14 days, and any oral statement from an individual or family
seeking homeless assistance that is found to be credible shall be considered
credible evidence for purposes of this clause;
(B) has no subsequent residence identified; and
(C) lacks the resources or support networks
needed to obtain other permanent housing; and
(6) unaccompanied youth and homeless families with children and youth
defined as homeless under other Federal statutes who--
(A) have experienced a long term period
without living independently in permanent housing,
(B) have experienced persistent instability
as measured by frequent moves over such period, and
(C) can be expected to continue in such
status for an extended period of time because of chronic disabilities, chronic
physical health or mental health conditions, substance addiction, histories of
domestic violence or childhood abuse, the presence of a child or youth with a
disability, or multiple barriers to employment.
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
(B) includes--
(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
placement;
(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; and
(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
Exchange Student)
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.
F-1
Visa
Under federal law, a nonimmigrant
may not be granted an F-1 visa in order to pursue a public elementary or
publicly-funded adult education program. 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 States 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)
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:
“Residential facility” means:
(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 purpose; and
(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.
§25.001(b)(8) (Adult Student)
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.
§25.001(b)(9) (Grandparent in District)
This provision entitles a student
who resides in Texas but does not reside in the district to admission if
a grandparent of the student resides in the district and the grandparent
provides a substantial amount of after-school care for the student as
determined by the local school board.
§25.001(f) and (g) (Foster Care)
The law makes special provision
for children in foster care. Subsection (f) provides for tuition-free
admission in the district in which the foster parents reside. In addition, the subsection forbids the use
of a durational residence requirement to prohibit a foster child from
participating in any school-sponsored activity. Subsection (g) specifically provides a high school student placed in
temporary foster care with the option of continuing to attend, without payment
of tuition, the school in which the student was enrolled at the time of
placement, regardless of the residence of the foster parents.
§29.153 (Prekindergarten)
There are additional eligibility criteria
for prekindergarten programs for three and four year olds. Under §29.153, a child of the appropriate age
is eligible for a prekindergarten program if the child:
(1)
is unable to speak and comprehend the English language;
(2)
is educationally disadvantaged;
(3)
is a homeless child;
(4)
is the child or stepchild of an active duty member of
the armed forces, including state military forces or a reserve component of the
armed forces, who is ordered to active duty;
(5)
is the child or stepchild of a member of the armed
forces, including state military forces or a reserve component of the armed
forces, who was injured or killed while serving on active duty; or
(6)
is or ever has been in the conservatorship of the
Department of Family and Protective Services following an adversary hearing under
§262.201 of the Texas Family Code.
Appeal
A decision of a school district
to deny admission may be appealed to the commissioner of education under
§7.057(a). 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.
§25.001(b-1) and (b-2) (Students at least age 21 but under age 26)
Section 25.001 grants districts
discretionary authority to admit students who are at least 21 years of age and
under 26 years of age on September 1 of the school year and are admitted to
complete the requirements for a high school diploma.
These older students are not
eligible for placement in a DAEP or a JJAEP. If a student admitted under this discretionary authority engages in
conduct that would require such placement for a student under age 21, the
district shall revoke admission of the student into the public schools of the
district.
If a student admitted under this
discretionary authority has not attended school in the three preceding school
years, the student may not be placed with a student who is 18 years of age or
younger in a classroom setting, a cafeteria, or another district-sanctioned
school activity. However, the student
may attend a school-sponsored event that is open to the public as a member of
the public.
Address Confidentiality Program
The Address
Confidentiality Program (ACP) is mandated by Subchapter C, Chapter 56, Texas Code
of Criminal Procedure. The rules of the Attorney
General regarding the program are in 1 T.A.C. Chapter 61.
The ACP is available to a person
who is a victim of domestic violence, sexual assault, or stalking. The goal of
the program is keep the victim’s location confidential through the use of a
substitute address and mail-forwarding service. A substitute legal address (P.O. Box) is established for the participant
and is displayed on a participation card issued by the Office of Attorney
General. On presentment of a
participant’s card, the statute and the rules require that state and local
agencies accept the substitute post office address in lieu of the person’s
actual address. The substitute address
has no relation to the participant’s actual location within the state.
III. Enrollment
Records
The statutes described in this
Part apply to open-enrollment charter
schools in addition to school
districts.
§25.002 (Requirements for Enrollment)
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 §504 or to special education services under the Individuals with
Disabilities Education Act. Under
§25.002, the prior district must provide the records not later than the 10th working day after the date a request for the records is received. This requirement also applies to the transfer
of records to or from other public schools, including open-enrollment charter
schools and JJAEPs.
School districts and
open-enrollment charter schools are required to participate in the electronic
transfer of student records through the Texas Records Exchange (TREx). For more information regarding TREx, visit http://www.tea.state.tx.us/trex/.
Records furnished by a parent or
other person with legal control of a child under a court order must be
furnished not later than the 30th day after the date the child is
enrolled. The 30 day provision is
duplicated in Subsection (g) in relation to a child taken into possession by
the Department of Family and Protective Services under Chapter 262 of the Texas
Family Code. A school district is
specifically required to accept the child for enrollment without the records required
under §25.002, but the department is required to furnish such records not later
than the 30th day after the date the child is enrolled.
A school district may not
prohibit a student from attending school pending receipt of transcripts or
records from the school district the student previously attended. Additionally, the failure of a prior
district or the person enrolling the student 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 student has been reported as missing. This requirement applies regardless of the student’s
age. If a student 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 person’s information
clearinghouse under §25.002(b). The
notice is confidential. (Please note
that a student must be enrolled under the student’s legal surname; see subsequent
summary of §25.0021.)
With respect to homeless
students, a school district or open-enrollment charter school is required under
federal law to enroll a homeless student immediately, even if the student is
unable to produce records normally required for enrollment.
Absence
of parent or guardian
During the 1995-1996 and
1996-1997 school years, a school district was required under §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 §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
§25.002(f) as amended in 2001, a district is required to record the name,
address, and date of birth of the person enrolling a child.
Immunization Records
Subject to the exceptions in §38.001(c), a student is required to be
fully immunized against certain diseases. However, under §38.001 a student may be provisionally admitted if the
student has begun the required immunizations and continues to receive the
necessary immunizations as rapidly as medically feasible. Except as provided by §38.001(c), a student
who is not fully immunized and has not begun the required immunizations may not
attend school.
Under §38.019, a school district that maintains an Internet website is
required to post prominently on the website lists, in English and Spanish, of
the immunizations required for admission to public school, any additional
immunizations recommended by the Department of State Health Services (DSHS),
and health clinics in the district that offer influenza vaccine. The district must also post a link to the
DSHS website information relating to claiming an exemption from immunization
requirements. This information is
available at www.dshs.state.tx.us/immunize/school/default.shtm.
§25.0021 (Use of Legal Surname)
This 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.
Texas
Code of Criminal Procedure School Records Requirements
There are additional requirements
relating to school records in Chapter 63 of the Texas Code of Criminal
Procedure, which relates to the missing children and missing person information
clearinghouse in the Department of Public Safety. The requirements apply to the records maintained
by primary schools for children under 11 years of age.
Enrollment Procedure
When a child under the age of 11
initially enrolls in a primary 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 the child.
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 as
Missing
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 primary 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 made in person:
(a) 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;
(b) obtain a copy of
the requesting party’s driver’s license or other photographic identification,
if possible; and
. (c)
notify law enforcement or the clearinghouse that a request for a flagged record
has been made, enclosing 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.
3. On receipt of a request regarding a child that
is made in writing, notify law enforcement or the clearinghouse and include a
copy of the request.
4. Do not disclose to the
requesting party that the request concerns a missing child.
5. 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 primary 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. The provisions in the Texas
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. If the requestor 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 or older, the district
should still notify law enforcement of the request but may not release the
records to the requestor 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,
the school may not disclose to any requestor (including a parent,
guardian, individual acting as a parent, or student) that the request concerns
a missing child.
Relationship
to Public Information Act
Article 63.021(c) of the Texas
Code of Criminal Procedure requires that a school wait 21 days before mailing
copies of flagged records to a requestor. 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 requestor and set a date and hour within a reasonable time when the
information will be available for inspection or duplication.” Due to this provision, a district should notify a requestor within 10 days that
the records will be mailed on a certain date that is on or after the 21st day
after the request is received.
IV. TUITION
Prekindergarten: Eligibility
for free prekindergarten is determined under §29.153. In addition to free prekindergarten, under
§29.1531 a school district or an open-enrollment charter school may provide, on
a tuition basis or using district funds, an additional half-day of
prekindergarten for children eligible for classes under §29.153 or offer
prekindergarten classes for children not eligible under §29.153.
Other: Other than tuition for certain
prekindergarten students discussed above, an open-enrollment charter school may
not charge tuition. A school district may charge tuition only if
it is specifically authorized to do so by statute or under the
constitution. 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).
We hope this summary is helpful
to you in preparing for the 2011-2012 school year. If you have questions about the statutory
provisions summarized in this letter, you are welcome to call the Office of
Legal Services at (512) 463-9720.
Sincerely,
David A. Anderson
General Counsel
DA/shs/ds
