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					Proposed Amendment to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter B, State Adoption of Instructional Materials, §66.66, Consideration and Adoption of Instructional Materials by the State Board of Education (Reconsideration of Second Reading and Final Adoption Action)

July 7, 2006 COMMITTEE OF THE WHOLE: ACTION STATE BOARD OF EDUCATION: ACTION SUMMARY: This item will provide the State Board of Education (SBOE) an opportunity to reconsider the adopted amendment to 19 TAC §66.66, Consideration and Adoption of Instructional Materials by the State Board of Education, approved for second reading and final adoption in April 2006, if the Attorney General certifies their authority to adopt the rules prior to the July 2006 meeting. STATUTORY AUTHORITY: Texas Education Code (TEC), §7.102(c)(23) and §31.003. EFFECTIVE DATE: The proposed effective date would be 20 days after filing as adopted with the Texas Register. Under TEC, §7.102(f), the SBOE must approve the rule action at second reading and final adoption by a vote of two-thirds of its members to specify an effective date earlier than September 1, 2006. PREVIOUS BOARD ACTION: In February 2006, the SBOE approved proposed amendments to 19 TAC Chapter 66 for first reading and filing authorization, including the proposed amendment to 19 TAC §66.66. The proposal was filed with Texas Register in the context of a pending Attorney General's opinion request with the notation that the SBOE would be guided by the resulting Attorney General's opinion in adopting a final rule. In April 2006, the SBOE took action to approve for second reading and final adoption amendments to 19 TAC Chapter 66, as amended, including the language in 19 TAC §66.66. Following the April 2006 meeting, the rules were sent to the Attorney General for legal certification prior to filing as adopted rules. BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: At the February 2006 meeting, the SBOE approved for first reading and filing authorization proposed amendments to update and clarify rules in 19 TAC Chapter 66, Subchapter A, General Provisions; Subchapter B, State Adoption of Instructional Materials; Subchapter C, Local Operations; and Subchapter D, Special Instructional Materials. The amendments included the following: revisions to administrative penalties; updates and clarifications to provisions relating to proclamations, state textbook review panels, requirements for materials submitted by publishers for consideration for adoption, public comment on instructional materials, ancillary materials, and revisions to adopted instructional materials; updated specifications to address the closing of the state textbook depository; a new rule to address the newly-mandated pilot program for students enrolled in courses for concurrent high school and college credit; and availability of educational materials for blind or visually impaired parents in accessible formats such as Braille and large type. Deliberation on the proposed amendments included the question of whether to retain existing language in 19 TAC §66.66 relating to criteria for which instructional materials may be rejected by the SBOE during consideration for state adoption. Agency legal counsel submitted a request for the Attorney General to

certify the authority of the SBOE to adopt a rule requiring textbooks to meet general textbook content standards as a condition of SBOE approval (Attachment III). Agency legal counsel at the time identified 19 TAC §66.36(a)(4) and §66.66(c)(4) as the SBOE rules that would be impacted by the resulting Attorney General's opinion. During the April 2006 meeting, the SBOE took action to adopt the proposed amendments to 19 TAC Chapter 66, pending receipt of legal certification by the Attorney General's office prior to filing as adopted rules with the Texas Register. Agency legal counsel has determined that the only rule that would be impacted by the Attorney General opinion is 19 TAC §66.66, specifically subsection (c)(4). The rule text for 19 TAC §66.66 adopted in April 2006 is shown in Attachment II. The Attorney General's opinion is anticipated to be issued in July 2006. If the Attorney General determines the SBOE has authority to adopt §66.66(c)(4), there is no further action needed and the complete set of adopted rules in 19 TAC Chapter 66, Subchapters A-D, will be filed with the Texas Register. If the Attorney General determines the SBOE has no authority to retain language in 19 TAC §66.66(c)(4) regarding rejection of content that conflicts with the TEC, §28.002(h), then the SBOE would need to take action to rescind the second reading and final adoption action taken on 19 TAC §66.66 at the April 2006 meeting and approve for second reading and final adoption the amendment to 19 TAC §66.66 with subsection (c)(4) stricken. FISCAL IMPACT: None. PUBLIC AND STUDENT BENEFIT: The proposed amendment would align rule with statute and Attorney General's certification. PROCEDURAL AND REPORTING IMPLICATIONS: None. PUBLIC COMMENTS: Not applicable. ALTERNATIVES: None. OTHER COMMENTS AND RELATED ISSUES: None. MOTIONS TO BE CONSIDERED:  The SBOE would take no action if the Attorney General determines the SBOE has authority to adopt a rule requiring textbooks to meet general textbook content standards as a condition of SBOE approval; or If the Attorney General determines the SBOE has no authority to retain language in 19 TAC §66.66(c)(4) regarding rejection of content that conflicts with the TEC, §28.002(h), then the SBOE would need to take action to rescind the second reading and final adoption action taken on 19 TAC §66.66 at the April 2006 meeting and approve for second reading and final adoption the amendment to 19 TAC §66.66 with subsection (c)(4) stricken.

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Respectfully submitted,

Shirley J. Neeley, Ed.D. Commissioner of Education Staff Members Responsible: Susan Barnes, Associate Commissioner Standards and Programs Sharon Jackson, Deputy Associate Commissioner Standards and Alignment Anita Givens, Senior Director Instructional Materials and Educational Technology Charles Mayo, Manager Distribution, Accessibility and Finance Instructional Materials and Educational Technology Attachments: I. Statutory Citations II. Text of Adopted Amendment to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter B, State Adoption of Instructional Materials, §66.66, Consideration and Adoption of Instructional Materials by the State Board of Education (Not Yet Filed as Adopted with the Texas Register) III. May 8, 2006, Transmittal Letter Request for Certification