Adopted Rules Title 19

TITLE 19. EDUCATION

SUBCHAPTER CC. COMMISSIONER'S RULES CONCERNING SCHOOL FACILITIES

The Texas Education Agency (TEA) adopts an amendment to §61.1031, concerning school safety requirements. The amendment is adopted with changes to the proposed text as published in the May 24, 2024, issue of the Texas Register (49 TexReg 3684) and will be republished. The adopted amendment implements Senate Bill 838 and House Bill (HB) 3, 88th Texas Legislature, Regular Session, 2023, and clarifies requirements for school safety to ensure a safe and secure environment in Texas public schools.

REASONED JUSTIFICATION: Section 61.1031 prescribes minimum school safety standards to address the safety of students and staff in Texas public schools.

Legislation from the 88th Texas Legislature, Regular Session, 2023, added and amended school safety requirements in Texas Education Code (TEC), §§7.061, 37.1083, 37.117, 37.351, and 37.355. The adopted amendment to §61.1031 implements legislation and clarifies existing requirements, as follows.

The adopted amendment modifies the definition of "exterior secure area" in subsection (a)(2)(A) to establish that an exterior secure area is utilized when keeping doors closed, latched, and locked is not operationally practicable.

The adopted amendment to subsection (a)(7)(C) clarifies the functionality of a "secure vestibule."

The adopted amendment to subsection (c)(1) adds information related to door numbering requirements in compliance with International Fire Code, §505, and removes the phrase "campus-wide."

The adopted amendment to subsection (c)(3)(A) modifies the requirements for exterior doors by removing the phrase "by default."

The adopted amendment to subsection (c)(8) clarifies the intent of the requirement. The language outlines that roof access doors should remain closed, latched, and locked when not actively in use.

Subsection (c)(11) is modified to specify that school systems must ensure compliance with federal and state Kari's Laws and RAY BAUM's Act related to 9-1-1 for school telephone systems.

In response to public comment, subsection (d)(1)(A) is modified at adoption to remove the words "by default" to align with subsection (c)(3)(A).

Subsection (d)(2)(C) is modified in accordance with new statutory requirements in TEC, §37.117, as added by HB 3, 88th Texas Legislature, Regular Session, 2023. This statute requires that each school district and open-enrollment charter school provide the Department of Public Safety, local law enforcement, and emergency first responders an accurate map of each district campus and school campus. These entities must also be provided an opportunity to conduct a walk-through of facilities utilizing the maps provided.

The adopted amendment to subsection (d)(3)(A)(iv) removes the requirement that video surveillance monitoring systems trigger an alert. Artificial intelligence is not intended to be a minimal safety standard.

Adopted new subsection (i) is added to address the confidentiality requirements of TEC, §37.355, as added by HB 3, 88th Texas Legislature, Regular Session, 2023.

The adopted amendment to re-lettered subsection (j)(1) aligns school safety initiatives, including vulnerability assessments, with the responsibility of TEA rather than the Texas School Safety Center.

The adopted amendment removes provisional language set to expire on August 31, 2024.

SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began May 24, 2024, and ended June 24, 2024. Following is a summary of public comments received and agency responses.

Comment: A school administrator recommended that the words "by default" be removed or re-worded in subsection (d)(1)(A) to coincide with the proposed removal of the same words in subsection (c)(3)(A).

Response: The agency agrees and has modified subparagraph (d)(1)(A) at adoption to remove the phrase "by default."

Comment: A Texas community member expressed concern related to subsection (c)(1), which references International Fire Code, §505, and accessibility requirements. The commenter stated that "accessibility requirements" implies that interior and exterior door numbering must conform to the Americans with Disabilities Act, which requires specific guidelines for signage. The commenter stated that the purpose of International Fire Code, §505, is to ensure letters are large enough for visibility, but the reference to "accessibility requirements" creates confusion regarding building numbering, what it must entail, and where it must be placed.

Response: The agency disagrees and has determined that in subsection (c)(1), "All instructional facilities, including modular, portable buildings, must include the addition of graphically represented alpha-numerical characters on both the interior and exterior of each exterior door location" provides the clarification of applicability related to International Fire Code.

Comment: The Texas Society of Architects (TxA) recommended the addition of the good cause exception in the rule, as no provision of the proposed rule amendment reflects the good cause exception language included in HB 3 for school system facilities requirements.

Response: The agency disagrees and has determined that the language is sufficient as proposed.

Comment: TxA recommended language in subsection (j)(2) should be removed to reflect the changes made by HB 3 that require a school system to annually certify (rather than TEA certifying) compliance with school safety standards.

Response: The agency disagrees and has determined that the language is sufficient as proposed.

Comment: TxA recommended that the agency further amend the rule to reflect more of the provisions of HB 3. TxA also suggested that additional clarification for school systems should be included in subsection (j) to ensure clear directives and treatment for school system compliance requirements and the agency's related compliance monitoring and support.

Response: The agency provides the following clarification. In accordance with TEC, §7.061, the commissioner of education shall adopt or amend rules as necessary to ensure that facilities standards for new and existing instructional facilities and other school district and open-enrollment charter school facilities, including construction quality, performance, operational, and other standards related to safety and security. Not later than September 1 of each even-numbered year, the commissioner shall review all rules adopted or amended under TEC, §7.061, and amend the rules as necessary. Accordingly, rulemaking will be an ongoing process. Future proposals will be more inclusive of additional requirements.

Comment: TxA recommended amending subsection (c)(3)(B), (5), and (6) to include functional performance standards pertaining to glass doors and adjacent glass windows.

Response: The agency disagrees and has determined that the language is sufficient as proposed.

Comment: TxA recommended adding language concerning the prohibited use of razor wire on perimeter fencing.

Response: The agency disagrees. Fencing is not mandated in §61.1031. Fencing is intended to add operational flexibility when it is not practicable to leave doors closed, latched, and locked. Additionally, TEC, §48.115 (School Safety Allotment) addresses the use or installation of perimeter fencing, which may not include razor wire.

STATUTORY AUTHORITY. The amendment is adopted under Texas Education Code (TEC), §7.061, as amended by House Bill (HB) 3, 88th Texas Legislature, Regular Session, 2023, which requires the commissioner of education to adopt and amend rules to ensure a safe and secure environment for public schools, which includes best practices for design and construction of new facilities and improving, renovating, and retrofitting existing facilities. The section requires the commissioner to review all rules by September 1 of each even-numbered year and take action as necessary to ensure school facilities for school districts and open-enrollment charter schools continue to provide a safe and secure environment; TEC, §37.1083, as added by HB 3, 88th Texas Legislature, Regular Session, 2023, which establishes the Office of School Safety and Security within the Texas Education Agency (TEA) and charges TEA with monitoring the implementation and operation requirements of school district safety and security. Monitoring efforts must include technical assistance related to multihazard emergency operations plans and safety and security audits. Further, the statute establishes that any document or information collected, identified, developed, or produced related to the monitoring of district safety and security is confidential under Texas Government Code, §418.177 and §418.181, making them not subject to disclosure under Texas Government Code, Chapter 552. Subsection (k) allows the commissioner to adopt rules as necessary to implement the section; TEC, §37.115(b), which allows Texas Education Agency (TEA), in coordination with the Texas School Safety Center, to adopt rules to establish a safe and supportive school program, including providing for physical and psychological safety; TEC, §37.117, as added by Senate Bill 838, 88th Texas Legislature, Regular Session, 2023, which requires that each school district or open-enrollment charter school have silent alert panic technology allowing for immediate contact with district or school emergency services and emergency services agencies, law enforcement agencies, health departments, and fire departments; TEC, §37.117, as added by HB 3, 88th Texas Legislature, Regular Session, 2023, which requires that each school district and open-enrollment charter school provide the Department of Public Safety, local law enforcement, and emergency first responders an accurate map of each district campus and school campus, in accordance with standards outlined in TEC, §37.351. Additionally, school systems must provide these emergency services personnel an opportunity to conduct a walk-through of each campus and school building using the map provided; TEC, §37.351, as added by HB 3, 88th Texas Legislature, Regular Session, 2023, which requires school districts to comply with each school facilities standard, including performance standards and operational requirements, related to safety and security adopted under TEC, §7.061, or provided by other law or TEA rule. Additionally, school districts must develop and maintain documentation of the district's implementation of and compliance with school safety and security facilities standards for each district facility; and TEC, §37.355, as added by HB 3, 88th Texas Legislature, Regular Session, 2023, which outlines that any document or information collected, identified, developed, or produced relating to a safety or security requirement under TEC, Chapter 37, Subchapter J, is confidential under Texas Government Code, §418.177 and §418.181, and not subject to disclosure under Texas Government Code, Chapter 552.

CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §7.061, as amended by House Bill (HB) 3, 88th Texas Legislature, Regular Session, 2023; §37.1083, as added by HB 3, 88th Texas Legislature, Regular Session, 2023; §37.115(b); §37.117, as added by Senate Bill 838 and HB 3, 88th Texas Legislature, Regular Session, 2023; and §37.351 and §37.355, as added by HB 3, 88th Texas Legislature, Regular Session, 2023.

§61.1031.School Safety Requirements.

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings.

(1) Actively monitored--supervised by an adult who can visibly review visitors prior to entrance, who can take immediate action to close and/or lock the door, and whose duties allow for sufficient attention to monitoring.

(2) Exterior secured area--an area fully enclosed by a fence and/or wall that:

(A) is utilized when keeping doors closed, locked, and latched is not operationally practicable;

(B) if enclosed by a fence or wall, utilizes a fence or wall at least 6 feet high with design features that prevent it from being easily scalable, such as stone, wrought iron, chain link with slats or wind screen, or chain link topped with an anti-scaling device, or utilizes a fence or wall at least 8 feet high;

(D) if gated, features locked gates with emergency egress hardware and has features to prevent opening from the exterior without a key or combination mechanism.

(3) Instructional facility--this term has the meaning assigned in Texas Education Code (TEC), §46.001, and includes any real property, an improvement to real property, or a necessary fixture of an improvement to real property that is used predominantly for teaching curriculum under TEC, §28.002. For purposes of this section, an instructional facility does not include real property, improvements to real property, or necessary fixtures of an improvement to real property that are part of a federal, state, or private correctional facility or facility of an institution of higher education, medical provider, or other provider of professional or social services over which a school system has no control.

(4) Modular, portable building--

(A) an industrialized building as defined by Texas Occupations Code (TOC), §1202.002 and §1202.003;

(B) any relocatable educational facility as defined by TOC, §1202.004, regardless of the location of construction of the facility; or

(5) Primary entrance--

(A) the main entrance to an instructional facility that is closest to or directly connected to the reception area; or

(B) any exterior door the school system intends to allow visitors to use to enter the facility during school hours either through policy or practice.

(6) School system--a public independent school district or public open-enrollment charter school.

(7) Secure vestibule--a secured space with two or more sets of doors and an office sign-in area where all but the exterior doors shall:

(A) remain closed, latched, and locked;

(B) comply with subsection (c)(3)(B) of this section; and

(b) The provisions of this section apply to all school instructional facilities owned, operated, or leased by a school system, regardless of the date of construction or date of lease. The provisions of this section ensure that all school system instructional facilities have access points that are:

(1) secured by design;

(2) maintained to operate as intended; and

(3) appropriately monitored.

(c) A school system shall implement the following safety and security standards compliance requirements to all school instructional facilities owned, operated, or leased by the school system.

(1) All instructional facilities, including modular, portable buildings, must include the addition of graphically represented alpha-numerical characters on both the interior and exterior of each exterior door location. The characters may be installed on the door, or on at least one door at locations where more than one door leads from the exterior to the same room inside the facility, or on the wall immediately adjacent to or above the door location. Characters shall comply with the International Fire Code, §505, which requires numbers to be a minimum of four inches in height. The primary entrance of an instructional facility shall always be the first in the entire sequence and is the only door location that does not require numbering. The numbering sequence shall be clockwise and may be sequenced for the entire campus or for each facility individually. The door-numbering process must comply with any and all accessibility requirements related to signage.

(2) Unless a secure vestibule is present, a primary entrance shall:

(A) meet all standards for exterior doors;

(B) include a means to allow an individual located within the building to visually identify an individual seeking to enter the primary entrance when the entrance is closed and locked, including, but not limited to, windows, camera systems, and/or intercoms;

(D) feature a location for a visitor check-in and check-out process.

(3) All exterior doors shall:

(A) be set to a closed, latched, and locked status, except that:

(i) a door may be unlocked if it is actively monitored or within an exterior secured area; and

(ii) for the purposes of ventilation, a school system may designate in writing as part of its multi-hazard emergency operations plan under TEC, §37.108, specific exterior doors that are allowed to remain open for specified periods of time if explicitly authorized by the school safety and security committee established by TEC, §37.109, when a quorum of members are present, and only if it is actively monitored or within an exterior secured area;

(B) be constructed, both for the door and door frame and their components, of materials and in a manner that make them resistant to entry by intruders. Unless inside an exterior secured area, doors constructed of glass or containing glass shall be constructed or modified such that the glass cannot be easily broken and allow an intruder to open or otherwise enter through the door (for example, using forced entry-resistant film);

(i) a mechanism that fully closes and engages locking hardware automatically after entry or egress without manual intervention, regardless of air pressure within or outside of the facility; and

(ii) a mechanism that allows the door to be opened from the inside when locked to allow for emergency egress while remaining locked; and

(D) if keyed for re-entry, be capable of being unlocked with a single (or a small set of) master key(s), whether physical key, punch code, or key-fob or similar electronic device.

(4) Except when inside an exterior secured area, classrooms with exterior entry doors shall include a means to allow an individual located in the classroom to visually identify an individual seeking to enter the classroom when the door is closed and locked, including, but not limited to, windows, camera systems, and/or intercoms.

(5) Except when inside an exterior secured area, all windows that are adjacent to an exterior door and that are of a size and position that, if broken, would easily permit an individual to reach in and open the door from the inside shall be constructed or modified such that the glass cannot be easily broken.

(6) Except when inside an exterior secured area, all ground-level windows near exterior doors that are of a size and position that permits entry from the exterior if broken shall be constructed or modified such that the glass cannot be easily broken and allow an intruder to enter through the window frame (for example, using forced entry-resistant film).

(7) If designed to be opened, all ground-level windows shall have functional locking mechanisms that allow for the windows to be locked from the inside and, if large enough for an individual to enter when opened or if adjacent to a door, be closed and locked when staff are not present.

(8) Roof access doors should remain closed, latched, and locked when not actively in use.

(9) All facilities must:

(A) include one or more distinctive, exterior secure master key box(es) designed to permit emergency access to both law enforcement agencies and emergency responder agencies from the exterior (for example, a Knox box) at a location designated by the local authorities with applicable jurisdiction; or

(B) provide all local law enforcement electronic or physical master key access to the building(s).

(10) A communications infrastructure shall be implemented that must:

(A) ensure equipment is in place such that law enforcement and emergency responder two-way radios can function within most portions of the building(s); and

(B) include a panic alert button, duress, or equivalent alarm system, via standalone hardware, software, or integrated into other telecommunications devices or online applications, that includes the following functionality.

(i) An alert must be capable of being triggered by campus staff, including temporary or substitute staff, from an integrated or enabled device.

(ii) An alert must be triggered automatically in the event a district employee makes a 9-1-1 call using the hardware or integrated telecommunications devices described in this subparagraph from any location within the school system.

(iii) With any alert generated, the location of where the alert originated shall be included.

(iv) The alert must notify a set of designated school administrators as needed to provide confirmation of response, and, if confirmed, notice must be issued to the 9-1-1 center of an emergency situation requiring a law enforcement and/or emergency response and must include the location of where the alert originated. A notice can simultaneously be issued to all school staff of the need to follow appropriate emergency procedures.

(v) For any exterior doors that feature electronic locking mechanisms that allow for remote locking, the alert system will trigger those doors to automatically lock.

(11) School systems shall ensure compliance with state and federal Kari's Laws and federal RAY BAUM's Act and corresponding rules and regulations pertaining to 9-1-1 service for school telephone systems, including a multi-line telephone system.

(d) Certain operating requirements. A school system shall implement the following.

(1) Access control. The board of trustees or the governing board shall adopt a policy requiring the following continued auditing of building access:

(A) conduct at least weekly inspections during school hours of all exterior doors of all instructional facilities to certify that all doors are set to a closed, latched, and locked status and cannot be opened from the outside without a key as required in subsection (c)(3)(A) of this section;

(B) report the findings of weekly inspections required by subparagraph (A) of this paragraph to the school system's safety and security committee as required by TEC, §37.109, and ensure the results are kept for review as part of the safety and security audit as required by TEC, §37.108;

(C) report the findings of weekly inspections required by subparagraph (A) of this paragraph to the principal or leader of the instructional facility to ensure awareness of any deficiencies identified and who must take action to reduce the likelihood of similar deficiencies in the future; and

(D) include a provision in the school system's applicable policy stating that nothing in a school system's access control procedures will be interpreted as discouraging parents, once properly verified as authorized campus visitors, from visiting campuses they are authorized to visit.

(2) Exterior and interior door numbering site plan.

(A) A school system must develop and maintain an accurate site layout and exterior and interior door designation document for each instructional facility school system-wide that identifies all exterior and interior doors in the instructional facility and depicts all exterior doors on a floor plan with an alpha-numeric designation, in accordance with the door numbering specifications established in subsection (c)(1) of this section.

(B) Copies of exterior and interior door numbering site plans shall be readily available in each campus main office.

(C) Electronic copies of exterior and interior door numbering site plans shall be provided to the local 9-1-1 administrative entity, the Department of Public Safety, local law enforcement agencies, and emergency first responders in accordance with TEC, §37.117. These entities shall be afforded an opportunity to conduct a walk-through of facilities utilizing the site plans provided.

(D) The site layout and exterior and interior door designation document should be oriented in a manner that depicts true north.

(3) Maintenance.

(A) A school system shall perform at least twice-yearly maintenance checks to ensure the facility components required in subsection (c) of this section function as required. At a minimum, maintenance checks shall ensure the following:

(i) instructional facility exterior doors function properly, including meeting the requirements in subsection (c)(3)(A) and (C) of this section;

(ii) the locking mechanism for any ground-level windows that can be opened function properly;

(iii) any perimeter barriers and related gates function properly;

(iv) all panic alert or similar emergency notification systems in classrooms and campus central offices function properly, which includes at least verification from multiple campus staff and classroom locations that a notification can be issued and received by the appropriately designated personnel and that the alert is successfully broadcast to all campus staff and to appropriate law enforcement and emergency responders;

(v) all school telephone systems and communications infrastructure provide accurate location information when a 9-1-1 call is made in accordance with state and federal laws and rules and when an alert is triggered in accordance with this section;

(vi) all exterior master key boxes function properly and the keys they contain function properly;

(vii) law enforcement and emergency responder two-way radios operate effectively within each instructional facility; and

(viii) two-way radios used by school system peace officers, school resource officers, or school marshals properly communicate with local law enforcement and emergency response services.

(B) A school system shall ensure procedures are in place to require that staff who become aware of a facility component functionality deficiency that would be identified during the twice-yearly maintenance review described by subparagraph (A) of this paragraph immediately report the deficiency to the school system's administration, regardless of the status of the twice-yearly maintenance review.

(C) A school system shall promptly remedy any deficiencies discovered as a consequence of maintenance checks required by subparagraph (A) of this paragraph or reports made under subparagraph (B) of this paragraph.

(e) In implementing the requirements of this section, school systems shall comply with the provisions of §61.1040(j) of this title (relating to School Facilities Standards for Construction on or after November 1, 2021).

(f) To the extent that any provisions of this section conflict with rules adopted in Chapter 61, Subchapter CC, of this title (relating to Commissioner's Rules Concerning School Facilities), including terms defined by this section or standards established by this section, the provisions of this section prevail.

(g) In implementing the requirements of this section, school systems shall comply with the standards adopted under Texas Government Code, §469.052.

(h) In implementing the requirements of this section, school systems must adopt a 3-year records control schedule that complies with the minimum requirements established by the Texas State Library and Archives Commission schedule, record series item number 5.4.017, as referenced in Texas Government Code, §441.169, and Texas Local Government Code, §203.041.

(i) Any document or information collected, identified, developed, or produced relating to the monitoring of school district safety and security requirements is confidential under Texas Government Code, §418.177 and §418.181, and is not subject to disclosure under Texas Government Code, Chapter 552.

(j) Certification.

(1) A school system must annually certify compliance with subsections (c) and (d) of this section as part of ongoing security audits under TEC, §37.108(b); maintain the certification locally; and provide documentation upon request by TEA. Non-compliance with subsections (c) and (d) of this section and all information received upon completion of a district vulnerability assessment under TEC, §37.1083, shall be reported to the school system's safety and security committee, the school system's board, and TEA, as applicable.

(2) TEA may modify rule requirements or grant provisional certification for individual site needs as determined by TEA.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 22, 2024.

TRD-202403207

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: August 11, 2024

Proposal publication date: May 24, 2024

For further information, please call: (512) 475-1497

CHAPTER 102. EDUCATIONAL PROGRAMS

SUBCHAPTER BB. COMMISSIONER RULES CONCERNING THE RURAL PATHWAY EXCELLENCE PARTNERSHIP (R-PEP) PROGRAM

19 TAC §102.1021

The Texas Education Agency (TEA) adopts new §102.1021, concerning the rural pathway excellence partnership (R-PEP) program. The new section is adopted with changes to the proposed text as published in the April 12, 2024 issue of the Texas Register (49 TexReg 2239) and will be republished. The adopted new rule implements House Bill (HB) 2209, 88th Texas Legislature, Regular Session, 2023, by establishing the R-PEP program.

REASONED JUSTIFICATION: HB 2209, 88th Texas Legislature, Regular Session, 2023, established the R-PEP program and created an allotment and outcomes bonus under the Foundation School Program to support the program.

New §102.1021 implements HB 2209 by defining the requirements of the R-PEP program.

New subsection (a) specifies the applicability of the new section.

New subsection (b) establishes a school district's eligibility for R-PEP benefits. Based on public comment, language has been added to subsection (b) at adoption to state that open-enrollment charter schools are not eligible for R-PEP designation.

New subsection (c) defines key words and concepts related to R-PEP.

Based on public comment, the definition of "school district" in proposed subsection (c)(5), which specified the inclusion of open-enrollment charter schools, was removed.

New subsection (d) outlines the requirements of the performance agreement required to be approved by the school boards of each participating district and the proposed R-PEP coordinating entity in order to be designated by TEA as an R-PEP.

Based on public comment, subsection (d)(2) was modified at adoption to include a requirement for biannual updates to district boards.

New subsection (e) outlines the application process the coordinating entity must follow in order to be designated by TEA. This process includes submitting a letter of intent; a description of the pathways offered by the partnership that align with high-wage, high-demand careers in the region; the approved performance agreement between districts and coordinating entity; letters of support from relevant organizations; and scoring criteria TEA will use to make designation decisions.

Conforming edits were made to subsection (e) at adoption to align with the addition of new subsection (f), which addresses the application process to expand or modify a designated R-PEP. Specifically, the following changes were made. Subsection (e)(2) was amended at adoption to specify that an application may be submitted to modify a previously designated R-PEP. Subsection (e)(3)(A) was modified at adoption to remove the requirement that a letter of intent be submitted before applying for an expansion of an existing R-PEP since that information will be included in new subsection (f)(3)(A). Subsection (e)(4)(D) was amended at adoption to remove reference to expansion materials received as part of the application process.

Based on public comment, new subsection (f) was added at adoption to specify the R-PEP expansion and modification process.

New subsection (g) outlines the performance standards for R-PEP renewal and revocation, including the timeline for TEA to make renewal and revocation decisions, the content of the renewal application package, and the criteria by which TEA will make renewal or revocation decisions.

Based on public comment, subsection (g)(2)(D) has been added to require outcome measures to include progress toward goals.

Based on public comment, subsection (g)(4) was added at adoption to clarify ongoing benefit eligibility, specifying that if student enrollment meets or exceeds the threshold of 1,600, districts will receive benefits for the current school year and will be deemed ineligible for subsequent school years if enrollment meets or exceeds enrollment requirements in subsequent school years.

New subsection (h) outlines the process by which TEA will award R-PEP planning and implementation grants as funds are available. Subsection (h)(1) was amended at adoption to reflect that grant funds may be used to modify partnerships.

SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period began April 12, 2024, and ended May 13, 2024. Following is a summary of public comments received and agency responses.

Comment: The Permian Basin Innovation Zone (PBIZ) requested a policy update requiring R-PEP directors to provide mandatory biannual updates to district school boards, one at an in-person meeting and one delivered as a report, to ensure they are apprised of the work of the R-PEP.

Response: The agency agrees that biannual updates to district school boards would help ensure they are apprised of the work of the R-PEP. Subsection (d)(2) has been modified at adoption to include biannual updates to district boards as a requirement.

Comment: Texas Charter Schools Association (TCSA) questioned the application and expansion processes under §102.1021(e)(2), which refers to two types of applications: new R-PEP programs and expansions of existing programs. TCSA stated that the proposed rule for expansion includes information already provided in the initial new R-PEP program application and requested a more streamlined process for programs in good standing. Similarly, Empower, also representing a group of practitioners and technical assistance providers, requested a more accelerated process for expansion of existing R-PEPs.

Response: The agency agrees and has added new subsection (f) at adoption to define the expansion application requirements in a more streamlined process for existing R-PEPs in good standing. Conforming edits were made in subsection (e) to clarify that the requirements in that subsection relate to initial R-PEP designation.

Comment: TCSA questioned the process for determining annual eligibility requirements for R-PEPs and requested a subsection that outlines ongoing benefit eligibility requirements. Specifically, TCSA requested clarification regarding how TEA will utilize district average daily attendance projections early in the school years to determine funding eligibility and the funding implications if a district exceeds the 1,600-student enrollment threshold during the school year.

Response: The agency agrees that clarification regarding ongoing benefit eligibility would provide clarity. At adoption, subsection (g)(4) was added to state that if student enrollment meets or exceeds the 1,600-student threshold, districts will receive benefits for the current school year and will be deemed ineligible for subsequent school years if enrollment meets or exceeds enrollment requirements in subsequent school years.

Comment: The Rural Schools Innovation Zone (RSIZ) requested clarity regarding language that includes charter schools, stating that their inclusion is out of alignment with the intent of the HB 2209 and would divert funds from rural Texas students.

Response: The agency agrees that clarification was needed. At adoption, the definition of "school district," which specified the inclusion of open-enrollment charter schools, was removed. A statement was added in subsection (b) to clarify that charter schools are not eligible for R-PEP designation.

Comment: RSIZ proposed that subsection (d)(1)(A)-(D), regarding staffing authority, be modified to limit the coordinating entity's authority to the pathways instead of the entire employment, compensation, evaluation, and development plans for their non-pathway roles. RSIZ stated that the proposed rule does not take into account the unique structure of shared roles at rural school districts where staff regularly have multiple roles in the district. Empower, also representing a group of practitioners and technical assistance providers, suggested the rule be modified to limit the coordinating entity's authority to the pathways within the partnership agreement.

Response: The agency disagrees that the rule should be modified to limit the coordinating entity's authority to the pathways within the partnership agreement. Per statute, the R-PEP coordinating entity must have control over pathway employees. Addressing any non-pathway duties would be a matter for the R-PEP coordinating entity to address with its member districts on a case-by-case basis.

Comment: Regarding subsections (d)(2) and (f)(2)(D), re-lettered as (g)(2)(D) at adoption, Empower, also representing a group of practitioners and technical assistance providers, proposed the alignment of renewal standards with the requirements for student outcomes in the performance agreements, which would extend the high bar for longitudinal college, career, and military outcomes across both the initial agreement and the ongoing renewal decision.

Response: The agency agrees that alignment of renewal standards with the requirements for student outcomes in the performance agreement would extend college, career, and military outcomes. Subsection (g)(2)(D) has been modified at adoption with updated language specifying progress toward goals as part of outcome measures.

STATUTORY AUTHORITY. The new section is adopted under Texas Education Code (TEC), §29.912, as added by House Bill (HB) 2209, 88th Texas Legislature, Regular Session, 2023, which requires the commissioner of education to establish and administer the R-PEP program to incentivize and support multidistrict, cross-sector, rural college and career pathway partnerships that expand opportunities for underserved students to succeed in school and life while promoting economic development in rural areas; TEC, §29.912(k), which requires the commissioner to adopt rules as necessary to implement the program; and TEC, §48.118, as added by HB 2209, 88th Texas Legislature, Regular Session, 2023, which establishes an additional average daily attendance allotment, an outcomes bonus, and a grant program to support R-PEPs.

CROSS REFERENCE TO STATUTE. The new section implements Texas Education Code, §29.912 and §48.118, as added by House Bill 2209, 88th Texas Legislature, Regular Session, 2023.

§102.1021.Rural Pathway Excellence Partnership Program.

(a) Applicability. This section applies only to an eligible school district that intends to establish a rural pathway excellence partnership (R-PEP) under Texas Education Code (TEC), §29.912.

(b) Eligibility for R-PEP benefits. A school district is eligible for R-PEP program benefits if it has fewer than 1,600 students in average daily attendance and enters into a partnership with at least one other school district, irrespective of the number of students in average daily attendance in the other district, located within a distance of 100 miles. Open-enrollment charter schools are not eligible for R-PEP designation.

(c) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Coordinating entity--An entity that has the capacity to effectively coordinate a multi-district partnership that includes at least one district eligible for benefits under subsection (b) of this section, has entered into a performance agreement approved by the board of trustees of each partnering school district, is an eligible entity as defined by TEC, §12.101(a), and has a governing or advisory board that meets all membership requirements defined in TEC, §29.912.

(2) Institution of higher education--An institution of higher education has the meaning assigned by TEC, §61.003.

(3) Pathway--A program of study or endorsement described by TEC, §28.025(c-1), that:

(A) aligns with regional labor market projections for high-wage, high-demand careers with advancement opportunities; and

(B) incorporates:

(i) Texas Education Agency (TEA)-approved career and technical education programs of study, as defined in TEC, §48.106, and/or Texas College and Career Readiness School Models, including Pathways in Technology Early College High School (P-TECH) and Early College High School (ECHS);

(ii) college and career advising; and

(iii) a continuum of work-based learning experiences that allow students to reflect on and apply what they have learned.

(4) Performance agreement--A legally binding agreement between the board of trustees of each partnering school district and the coordinating entity that confers specific authority to the coordinating entity over the R-PEP pathways as defined in TEC, §29.912.

(d) Performance agreement. To contract with the coordinating entity to operate under TEC, §29.912, the board of trustees of each partnering school district must approve a legally binding agreement with the coordinating entity. The R-PEP performance agreement must:

(1) confer to the coordinating entity the same authority with respect to pathways offered under the partnership provided to an entity that contracts to operate a district campus under TEC, §11.174. The coordinating entity must have:

(A) authority to employ and manage the staff member responsible for the pathways at each partner campus, including initial and final non-delegable authority to hire, supervise, manage, assign, evaluate, develop, advance, compensate, continue employment, and establish any other terms of employment;

(B) authority over the employees in each pathway, including initial and final non-delegable authority for the operating partner to employ and/or manage all of the operating partner's own administrators, educators, contractors, or other staff. Such authority includes the authority to hire, supervise, manage, assign, evaluate, develop, advance, compensate, continue employment, and establish any other terms of employment;

(C) initial, final, and sole authority to supervise, manage, evaluate, and rescind the assignment of any district employee or district contractor from the pathway. If the coordinating entity rescinds the assignment of any district employee or district contractor, the district must grant the request within 20 working days;

(D) authority to and must directly manage the staff member responsible for the pathways at each partner campus, including having the sole responsibility for evaluating their performance;

(E) initial, final, and sole authority over educational programs within each pathway for specific, identified student groups, such as gifted and talented students, emergent bilingual students, students at risk of dropping out of school, special education students, and other statutorily defined populations;

(F) initial, final, and sole authority to set the school calendar and the daily schedule; and

(G) authority to develop and exercise final approval of pathway budgets, which must include at least 80% of the state and local funding to which each partnering school district is entitled under TEC, §§48.106, 48.110, and 48.118, for each student participating in a pathway;

(2) include ambitious and measurable performance goals and progress measures tied to current college, career, and military readiness outcomes bonus standards and longitudinal postsecondary completion and employment-related outcomes and a timeline to report progress to district school boards at least biannually;

(3) allocate responsibilities for accessing and managing progress and outcome information and annually publishing that information on the Internet website of each partnering district and the coordinating entity;

(4) authorize the coordinating entity to optimize the value of each college and career pathway offered through the partnership by:

(A) determining scheduling;

(B) adding or removing a pathway;

(D) developing and exercising final approval of pathway budgets, which must include at least 80% of the state and local funding to which each partnering school district is entitled under TEC, §§48.106, 48.110, and 48.118, for each student participating in a pathway; and

(E) determining any other matter critical to the efficacy of the pathways; and

(5) provide that any eligible student enrolled in a partnering school district may participate in a college or career pathway offered through the partnership.

(e) Applying for designation of an R-PEP.

(1) Applicant eligibility. A coordinating entity must submit a single application on behalf of each district and campus it requests to designate as eligible for R-PEP benefits.

(2) Types of applications. A coordinating entity may submit an application to start a new R-PEP or an application to expand or modify a previously designated R-PEP in good standing with all applicable R-PEP requirements.

(3) Application contents. The following provisions apply to an R-PEP application submitted to the commissioner of education.

(A) A coordinating entity must submit a letter of intent prior to applying for an R-PEP in accordance with the procedures determined by the commissioner.

(B) The application package shall contain, but is not limited to, any of the following:

(i) an application form;

(ii) a description of R-PEP pathways, including a list of pathways offered at each R-PEP district and evidence that the college and career pathways offered align with regional labor market projections for high-wage, high-demand careers;

(iii) a description of the R-PEP organizational structure, including a staffing plan that outlines roles and responsibilities related to operating and coordinating the R-PEP pathways and includes at least two full-time equivalent roles that:

(I) are under the control of the coordinating entity to the extent required to fulfill responsibilities related to R-PEP;

(II) may be distributed among more than two employees or contractors, including employees or contractors of the district with time allocated for duties managed by the coordinating entity; and

(III) will be engaged and begin fulfillment of their roles within 30 days of approval by the commissioner;

(iv) a proposed budget demonstrating the use of funds allocated to the coordinating entity from the partner districts and ensuring that the coordinating entity exercises final approval over at least 80% of the state and local funding to which each partnering school district is entitled under TEC, §§48.106, 48.110, and 48.118;

(v) an approved performance agreement in alignment with subsection (d) of this section; and

(vi) letters of support from relevant organizations, including institutions of higher education, workforce development organizations, and school districts in the region.

(C) TEA shall review application packages submitted under this section. If TEA determines that an application package is not complete and/or the applicant does not meet the eligibility criteria in TEC, §29.912, TEA shall notify the applicant and allow 10 business days for the applicant to submit any missing or explanatory documents.

(i) If, after giving the applicant the opportunity to provide supplementary documents, TEA determines that the eligibility approval request remains incomplete and/or the eligibility requirements of TEC, §29.912, have not been met, the eligibility approval request will be denied.

(ii) If the documents are not timely submitted, TEA shall remove the eligibility approval request without further processing. TEA shall establish procedures and schedules for returning eligibility approval requests without further processing.

(iii) Failure of TEA to identify any deficiency or notify an applicant thereof does not constitute a waiver of the requirement and does not bind the commissioner.

(D) Upon written notice to TEA, an applicant may withdraw an application package.

(4) Application review.

(A) Applicants with complete application packages satisfying the requirements in paragraph (3) of this subsection will be reviewed by a panel selected by the commissioner.

(B) The panel may include TEA staff or external stakeholders. The panel shall review application packages in accordance with the procedures and criteria established in the application package and guidance form. Review panel members shall not discuss eligibility approval requests with anyone except TEA staff.

(i) interviewing applicants, including individuals from the district, coordinating entity, and institutions of higher education, and requiring the submission of additional information and documentation prior to and after the interview;

(ii) interviewing other entities that have contracted with the proposed coordinating entity to assist TEA in determining the past success of a coordinating entity in meeting program-aligned goals; and

(iii) collecting additional data and information not submitted in the application that demonstrates the likelihood of success in meeting R-PEP program goals.

(D) TEA will notify each applicant of its selection or non-selection for R-PEP designation no later than the 60th day after the date the commissioner receives all R-PEP application materials.

(E) In order to qualify for ongoing benefits subsequent to initial eligibility validation or approval, the eligible partnership campus must comply with all information requests deemed necessary by TEA staff to determine the ongoing eligibility of the R-PEP program.

(F) To receive benefits under TEC, §48.118, the district must continuously meet the requirements in this subsection and subsection (d) of this section.

(f) Applying to expand or modify a designated R-PEP.

(1) Eligibility for expansion or modification. A coordinating entity may apply to expand or modify a designated R-PEP any year after initial designation or subsequent renewal. Applications must be submitted to TEA prior to July 1 of the school year in which the change will be effective.

(2) Types of expansions/modifications. A complete expansion/modification amendment packet must be submitted any time there is a change in partnership districts and/or pathways by selecting and completing one of the following options:

(A) the R-PEP will add or remove participating districts with no change in pathways offered;

(B) the R-PEP will add or remove pathways offered with no change in districts; or

(3) Expansion and modification amendment application contents. The following provisions apply to an R-PEP expansion and modification amendment application submitted to the commissioner.

(A) A coordinating entity must submit a letter of intent prior to applying to expand or modify an existing R-PEP in accordance with the procedures determined by the commissioner.

(B) The application package shall contain, but is not limited to, the following:

(i) an application form outlining any relevant changes to the R-PEP and/or coordinating entity structure or supports;

(ii) an updated budget demonstrating the use of funds allocated to the coordinating entity from the partner districts and ensuring that the coordinating entity exercises final approval over at least 80% of the state and local funding to which each partnering school district is entitled under TEC, §§48.106, 48.110, and 48.118; and

(iii) an updated approved performance agreement in alignment with subsection (d) of this section.

(4) Expansion and modification amendment application review.

(A) Applicants with complete application packages satisfying the requirements in paragraph (3) of this subsection will be reviewed by a panel selected by the commissioner.

(C) TEA may perform additional due diligence on R-PEP expansion or modification applicants, including, but not limited to:

(iii) collecting additional data and information not submitted in the application that demonstrates the likelihood of success in meeting R-PEP program goals.

(D) TEA will notify each applicant of its approval for the R-PEP expansion or modification no later than the 60th day after the date the commissioner receives all R-PEP expansion or modification materials.

(F) To continue to receive benefits under TEC, §48.118, the district must continuously meet the requirements in this subsection and subsection (d) of this section.

(g) Performance standards for R-PEP renewal.

(1) No less than three years after an R-PEP designation is approved or renewed, each R-PEP coordinating entity must submit for TEA review a renewal package to determine continued eligibility for R-PEP allocations.

(2) The renewal package may contain, but is not limited to, any of the following:

(A) a renewal form;

(B) assurance from the R-PEP coordinating entity and school board of trustees for each participating R-PEP district that the performance agreement continues to meet TEA criteria and is being implemented in accordance with TEC, §29.912, and this section;

(D) outcome measures as evidenced by progress reports and program data, including, but not limited to, progress toward goals outlined in the R-PEP performance agreement.

(3) The commissioner may deny renewal of the authorization of a designated R-PEP program based on any or all of the following factors:

(A) noncompliance with application assurances and/or the provisions of this section;

(B) lack of program success as evidenced by progress reports and program data;

(D) failure to provide accurate, timely, and complete information as required by TEA to evaluate the effectiveness of the R-PEP program.

(4) If a school district starts a school year with fewer than 1,600 students but meets or exceeds that enrollment by the end of the school year, that district will be entitled to R-PEP benefits outlined in TEC, §48.118, for the current school year and will be deemed ineligible for the subsequent school year if enrollment meets or exceeds 1,600 students.

(h) R-PEP grants.

(1) TEA will announce and execute an open application for R-PEP planning and implementation grants pursuant to TEC, §48.118, to assist school districts and coordinating entities in planning, development, establishment, or expansion/modification of partnerships as funds are available.

(2) TEA will make publicly available the R-PEP grant application, eligibility criteria, and scoring rubric. Priority will be given to coordinating entities that have entered into a performance agreement or, if in the planning stage, have entered into a memorandum of understanding to enter into a performance agreement, unless the source of funds does not permit a grant to the coordinating entity, in which case the grant shall be made to a participating school district acting as fiscal agent.

(3) Submitted applications will be scored according to the published scoring rubric, and grants will be awarded by TEA to the applicants whose applications are scored highest under the rubric.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 17, 2024.

TRD-202403133

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: August 6, 2024

Proposal publication date: April 12, 2024

For further information, please call: (512) 475-1497