August 18, 2008
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 2008-2009 school year.
The statutes described in this Part apply to open-enrollment charter schools in addition to school districts, except for §25.0921 (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 25.094.2 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.
Under §25.085(f), the board of trustees of a school district may 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. Section 25.094 applies to a person subject to the policy, but §§ 25.093 and 25.095 do not apply to the person’s parent.
§25.086 (Compulsory Attendance Exemptions)
Section 25.086 lists the exemptions from compulsory attendance. Three of the exemptions are addressed below.
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 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.3
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,4 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 and 19 T.A.C. §129.22 (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), a school district is required to excuse an absence, including travel time, for observance of a religious holy day or for attending a required court appearance.5 This subsection 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.
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 Subsection (b) or (c) described above may not be penalized for the absence, including under the attendance requirements for class credit under §25.092. 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) or (c) and the student successfully completes the missed school work, the student is included in average daily attendance for that day.
§§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 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 should not be considered when deciding to make a referral or file a complaint.6 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 §28.085 to take the child into custody for the purpose of returning the child to the child’s school campus.7
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 absences. Tardies are generally not considered absences for purposes of compulsory attendance enforcement.8
§§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.9 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 or, in a county with a population of 2 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, 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 §51.03 of the Texas Family Code. 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 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.
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 final section of this Part.
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).
(Text of paragraph revised November 2008) 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. 10 The acceptance of transfer students must be in compliance with Civil Action No. 5281 and must be reported to the Texas Education Agency (TEA) Division of Program Monitoring and Interventions. Additional information regarding reporting transfers is available on the TEA website at http://www.tea.state.tx.us/pmi/ca5281/.11
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 IEP and the other requirements of 19 T.A.C. §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 T.A.C. §89.1070(b) or (d) is not eligible for special education services under state or federal law or for the benefits of the Foundation School Program.12
§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….”13 However, the student’s presence in the district may not be “for the primary purpose of participation in extracurricular activities.”14
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; or
(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.15
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).” 16
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)
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.17
42 U.S.C. §11302 provides:
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 residence; and
(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 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. Please refer to http://www.tea.state.tx.us/waivers/waiverapps.html for additional information regarding foreign exchange waivers.
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.19 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.
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:
- is unable to speak and comprehend the English language;
- is educationally disadvantaged20;
- is a homeless child21;
- is the child 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;
- is the child 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
- 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.22
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.23
§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 disciplinary alternative education program or a juvenile justice alternative education program. 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.
An older student admitted under this authority is entitled to Foundation School Program funding under §42.003. However, a student with a disability is not eligible for either federal or state special education programs or funding unless the student was under the age of 22 on September 1 of the applicable school year. A student with a disability who no longer qualifies for special education due to the student’s age and who has not graduated must meet the regular state graduation requirements regardless of whether the student previously could have graduated under an individualized education program (IEP) with different requirements. Generally, students with disabilities will qualify for §504,24 but that law does not allow modification of graduation requirements or provide any additional funding. A public school may not deny admission based on the presence of a disability, prior special education status, or §504 status.
Address Confidentiality Program (NEW)
The Address Confidentiality Progam (ACP) is mandated by Subchapter C, Chapter 56, Texas Code of Criminal Procedure. The Attorney General adopted rules implementing the program that took effect on May 25, 2008.
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.
The Texas Education Agency is currently working with the Office of Attorney General to provide additional guidance regarding verifying the enrollment eligibility of a student who is a member of an ACP household, which will be provided when it is available. Information regarding the ACP is available on the website of the Office of Attorney General at http://www.oag.state.tx.us/victims/acp.shtml.
Open-Enrollment Charter Schools
As stated at the beginning of this Part, the provisions in §25.001 apply to open-enrollment charter schools for the purposes of determining whether the student meets the residency requirements for the open-enrollment charter school’s designated geographic boundary. However, charter schools have more discretion in some regards than school districts in setting admissions criteria and also have enrollment caps that limit the number of students who may be enrolled. Charter schools are required to establish application deadlines for admission.25 Once the application period has ended, a charter school is required to accept all timely applications from students who meet the residency requirements for the open-enrollment charter school’s designated geographic boundary up to the enrollment capacity set out in the charter. A charter school may deny enrollment to students with a documented history of a criminal offense, a juvenile court adjudication, or discipline problems under Chapter 37, Subchapter A, if its charter so provides.26
If more students apply to a charter school than can be accommodated, a charter school should allocate spaces through a lottery process if the school receives federal Charter School Program (CSP) funds or if its charter provides for a lottery process.27 If a charter school has first enrolled all eligible applicants from its designated geographic boundary but its enrollment has not reached the maximum number of students approved in its charter, it may admit students from outside its designated geographic boundary in accordance with the terms of its charter.28
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)
Section 25.002 requires that a child’s prior school district or the person enrolling the child provide certain records. 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. These are the only records statutorily required for enrollment. Student social security numbers are used for purposes of the Public Education Information Management System; however, a district or charter will assign the student a state-approved alternative student identification number if the student’s social security number is not provided.
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 Improvement 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. 19. T.A.C. §74.26(a)(1). 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.29
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)30 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.
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.31
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.
When a child under the age of 11 initially enrolls in a primary school, the school is required to take the following steps:
- Request from the person enrolling the child the name of each previous school attended by the child.
- 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.
- 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.
- 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).32 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.33 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.34
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.”35 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.
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. Tuition may not be charged under §29.1531 for a student, including an eligible student served a full day, whose attendance is funded through a prekindergarten grant awarded by the commissioner under §29.155.
Other: Other than tuition for certain prekindergarten students discussed above, an open-enrollment charter school may not charge tuition.36 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)37, 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 2008-2009 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.
David A. Anderson
1 All statutory citations are to the Texas Education Code unless otherwise noted.
2 See §25.085(f) for enforcement of a related local policy.
3 Section 12.111(a)(6)(A).
4 Applicability to a county court is only in a county with a population of two million or more and is due to the extension of jurisdiction of complaints under §§25.093 or 25.094 to constitutional county courts in a county of that population.
5 For student attendance accounting for state funding, the number of excused days for travel under §25.087(b) is limited to not more than one day to and one day from the site where the student will observe the holy days. 19 T.A.C. §129.21(k)(4).
7 Additional statutes regarding delivery of a child to school by a law enforcement officer or a person authorized to take a child into custody include §§52.01(e), 52.02(a)(7), and 52.026(a), Texas Family Code.
8 Op. Tex. Att'y Gen. No. DM-200 (1993).
9 For purposes of §25.093, “parent” is defined to include “a person standing in parental relation.”
10 Other than tuition, the Education Code does not impose any conditions on the annual agreement and does not grant general authority to revoke the agreement during its term nor is such authority inferred. Therefore, in the opinion of the TEA Office of Legal Services, the failure to pay lawfully required tuition is the only basis for a district to terminate a tuition agreement during the school year to which the agreement applies. With regard to other issues that may arise during the applicable school year, such as unsatisfactory grades or disciplinary infractions, transfer students are subject to the same consequences as the districtís other students.
11 On June 25, 2008, the Fifth Circuit issued a judgment in favor of two intervening school districts holding that the districts are not subject to the student transfer provisions in the Civil Action No. 5281 Modified Order or to the TEA’s regulations promulgated to enforce those provisions because the districts were desegregated before the initiation of the original litigation, were not parties to the original litigation, and had not been found to engage in discriminatory acts since their desegregation. Samnorwood Independent School District v. Texas Education Agency, No. 06-41347 (5th. Cir. 6/24/2008). The TEA is currently c onsulting with the Office of Attorney General regarding the impact of the judgment on the agency’s implementation of the Civil Action No. 5281 Modified Order. Until further notice from the agency, districts should continue to report transfers to the agency and could be subject to sanction for the failure to do so or for accepting transfers that are impermissible under the Modified Order.
12 19 T.A.C. §89.1070(a).
16 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).
17 42 U.S.C. §§11432(e)(3)(A) and 11433(a)(2)(B).
18 Subsection (e) cross-references Subsection (b)(5), however, the current designation for the Subsection regarding foreign exchange students is (b)(6).
20 “Educationally disadvantaged” means “eligible to participate in the national free or reduced price lunch program”. See §5.001(4).
21 As defined in 42 U.S.C. §11434a(2). See discussion of §25.001(b)(5) above.
24 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794.
26 Section 12.111(a)(6)(A).
28 19 T.A.C. §100.1207(f).
29 42 U.S.C. §11432(g)(3)(C)(i).
30 The department’s name has changed to Department of Family and Protective Services.
31 For further information regarding immunization requirements, immunization exemptions, and immunization documentation, please contact the Department of State Health Services. Information about immunization and the department’s Immunization Branch is available at www.dshs.state.tx.us/immunize/default.shtm.
32 20 U.S.C. 1232g and 34 C.F.R. Part 99.
33 A FERPA exception permits disclosure to another school in which the student is enrolling, which is required by §25.002 of the Texas Education Code.
34 Article 63.021(d), Texas Code of Criminal Procedure.
35 Section 552.221(d), Texas Government Code.
37 The maximum tuition under this section is affected by 19 T.A.C. §61.1012.