- a peace officer under Government Code §3106.002;
- a firefighter under Government Code §3106.003;
- an emergency medical first responder under Government Code §3106.004. [61]
A district is required to offer prekindergarten classes if the district identifies 15 or more children who are eligible and are at least four years of age. [62] A school district may offer prekindergarten classes if the district identifies 15 or more eligible children who are at least three years of age. A district may not charge tuition for a prekindergarten class except as provided by §29.1531. Please see Part V of this letter for information regarding tuition for additional prekindergarten services.
Appeal
A school district board of trustees’ decision to deny admission that violates the school laws of this state 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.
Students at Least Age 21 but under Age 26
Section 25.001(b-1) grants districts discretionary authority to admit students who are at least 21 years of age and under 26 years of age on September 1 of the school year and are admitted to complete the requirements for a high school diploma.
These older students are not eligible for placement in a DAEP or a JJAEP. If a student admitted under this discretionary authority engages in conduct that would require such placement for a student under age 21, the district shall revoke the student’s admission into the public schools of the district.
Under §25.001(b-2), if a student admitted under Subsection (b-1) 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 §25.001(b-1) is entitled to Foundation School Program funding under §42.003(a)(1). 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 IEP with different requirements. Generally, students with disabilities will qualify for §504, [63] 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.
Inter-district Transfers
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 for a period of one school year. [64] The district may charge tuition under a transfer agreement to the extent permitted under §25.038.
Address Confidentiality Program
The Address Confidentiality Program (ACP) is mandated by Subchapter C, Chapter 56, Texas Code of Criminal Procedure. The rules of the Attorney General regarding the program are in 1 T.A.C. Chapter 61, Subchapter K. [65]
The ACP is available to a person who is a victim of family violence, trafficking of persons, sexual assault or abuse, 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.
IV. Enrollment Records
The statutes described in this part apply to open-enrollment charter schools in addition to school districts.
Record 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. [66] 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 open-enrollment 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 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. [67] This requirement also applies to the transfer of records to or from other public schools, including open-enrollment charter schools and JJAEPs. [68]
School districts and open-enrollment charter schools are required to participate in the electronic transfer of student records through the Texas Records Exchange (TREx). More information regarding TREx is available at http://tea.texas.gov/index4.aspx?id=25769817556.
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 DFPS [69] 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 DFPS is required to furnish such records not later than the 30th day after the date the child is enrolled. [70]
A school district or open-enrollment charter school may not prohibit a student from attending school pending receipt of transcripts or records from the school district the student previously attended. [71] 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. [72]
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) [73] 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. [74]
Immunization Records
Subject to the exceptions in §38.001(c) or other state and federal law, 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. [75]
Under §38.019, a school district that maintains an Internet website is required to post prominently on the website, in English and Spanish, lists 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.
Use of Legal Surname
Section 25.0021 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 the age of 11.
Enrollment Procedure
When a child under the age of 11 initially enrolls in a primary school, the school is required to take the following steps:
- 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. [76]
- 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:
- Flag the child’s records that are maintained by the school.
- 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. - 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.
- Do not disclose to the requesting party that the request concerns a missing child.
- 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). [77] 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 or older, the student, unless the disclosure comes within certain exceptions provided under FERPA. [78] 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. [79]
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 Act provides that “[i]f an officer for public information cannot produce public information for inspection or duplication within 10 business 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.” [80] Due to this provision, a district should notify a requestor within 10 business days that the records will be mailed on a certain date that is on or after the 21st day after the request is received.
V. Tuition
Prekindergarten
Eligibility for free prekindergarten is determined under §29.153. In addition to free prekindergarten, under §29.1531 a school district or an open-enrollment charter school may provide, on a tuition basis or using district funds, an additional half-day of prekindergarten for children eligible for classes under §29.153 or offer prekindergarten classes for children not eligible under §29.153. [81]
A district that offers a prekindergarten program on a tuition basis must submit the proposed tuition rate to the commissioner for approval. The tuition rate may not exceed the amount necessary to cover the added costs of providing the program, including any costs associated with collecting, reporting, and analyzing certain related data. [82]
F-1 or Other Visa Requiring Payment of Tuition
Section 25.0031 authorizes a school district or open-enrollment charter school to charge tuition equal to the full unsubsidized per capita cost of providing a student’s education to a student who is required to pay such costs as a condition of obtaining or holding an appropriate United States student visa. The amount of the tuition may not be greater than the amount computed under commissioner guidelines unless the commissioner approves a greater amount as a more accurate computation of the costs. The student is not counted for purposes of allocating state funds to the school district or open-enrollment charter school. [83]
This authority applies to a secondary school student holding an F-1 visa. 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. [84] 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. [85]
Other
Other than tuition related to prekindergarten or to certain visas discussed above, an open-enrollment charter school may not charge tuition. [86] 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 §§25.001(h) (regarding ineligible child enrolled based on false information), 25.003 (Certain Children from Other States), 25.038 (Transfer Students), 25.039 (Contract for Education Outside District), [87] 25.041 (Children of State School Employees), and 25.042 (Children of Employees of Texas Juvenile Justice Department Facilities).
We hope this summary is helpful to you in preparing for the 2017-2018 school year. If you have questions about the statutory provisions summarized in this letter, you are welcome to contact the Office of Legal Services by phone at (512) 463-9720 or by email at tealegal@tea.texas.gov.
Von Byer
General Counsel
Texas Education Agency
This letter assumes applicability of the Education Code to school districts. Districts of Innovation will need to adjust accordingly.
For additional information relating to open-enrollment charter schools, see the Charter Administrator Addressed letter regarding Admission, Enrollment, and Withdrawal.
All statutory citations are to the Texas Education Code unless otherwise noted. The Texas Education Code and other Texas statutes are available at http://www.statutes.legis.state.tx.us.
See Judicial Enforcement page 4.
The exemptions do not relieve a school district from its responsibility to provide a free appropriate public education to a child with a disability. §25.086(b).
A county with a population greater than 125,000 is not required to have a JJAEP if its population was 125,000 or less according to the 2000 federal census and the county enters into the memoranda of understanding required under §37.011(a-1).
Under §37.011(a-2), a county with a population greater than 125,000 is not required to have a JJAEP if the county has a population of 180,000 or less; is adjacent to two counties, each of which has a population of more than 1.7 million; and has seven or more school districts located wholly within the county’s boundaries. This exception is currently applicable to Ellis County.
Under §37.011(a-3), a county with a population greater than 125,000 is considered to be a county with a population of 125,000 or less if the county has a population of more than 200,000 and less than 220,000; has five or more school districts located wholly within the county’s boundaries; and has located in the county a juvenile justice alternative education program that, on May 1, 2011, served fewer than 15 students. The district must provide education services to expelled students as provided by §§37.011(a-4) and (a-5). This exception is currently applicable to Smith County.
As of the date of this letter, there are three providers of high school equivalency testing in Texas. High school equivalency information is available at http://tea.texas.gov/GED.html
A list of courts designated as truancy courts is found in §65.004, Texas Family Code.
For the elements of “truant conduct,” see §65. 003, Texas Family Code.
This issue is addressed further in an Administrator Addressed letter dated November 13, 2001. The letter can be found at http://ritter.tea.state.tx.us/taa/legal011113.html. The analysis in the letter applied to enforcement provisions in §25.094 and in §51.03, Texas Family Code, prior to the effect of H.B. 2398, applies to §65.003, Texas Family Code, as enacted in H.B. 2398, (Acts of the 84th Legislature, Regular Session, 2015).
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.
In addition to the truancy prevention measures required in every district under §25.0915, certain counties are required under §25.0916, as amended by H.B. 2398, supra, to have a uniform truancy policy that establishes certain uniform policies and procedures for truancy cases in the county.
For requirements related to a district’s truancy prevention measures see §25.0915(a-1) as added by H.B. 2398 (2015), supra, and Title 19 of the Texas Administrative Code, Section 129.1043. The Texas Administrative Code (T.A.C.) is available at http://ritter.tea.state.tx.us/rules/tac/index.html.
See letter referenced in footnote 15 and Op. Tex. Att'y Gen. No. DM-200 (1993). oag.state.tx.us/opinions/opinions/48morales/op/1993/pdf/dm0200.pdf
Section 65.002(a)(1) and 65.003, Texas Family Code.
Sections 25.0915(c)(3) and 25.0915(d).
For purposes of §25.093, “parent” is defined to include “a person standing in parental relation.”
Op. Tex. Att'y Gen. No. GA-0701 (2009). oag.state.tx.us/opinions/opinions/50abbott/op/2009/pdf/ga0701.pdf
Sections 25.093(h), and §65.003(c), Texas Family Code.
Section 65.003(c), Texas Family Code.
As discussed in Part II of this letter, excused absences are counted in determining whether a student is in compliance with the attendance requirements for class credit, but local policies under §25.092 regarding the award of class credit may take into account whether an absence is excused. See Also Texas Attorney General Opinion No. JC-0398 (2001).
For student attendance accounting for state funding, the number of excused days for travel under §25.087(b)(1) is limited to not more than one day to and one day from the site of the applicable event. 19 T.A.C. §129.21(j)(3).
See §1355.015(b), Texas Insurance Code, for a description of “health care practitioner.”
Under §25.087(b-3), “generally recognized service” includes applied behavioral analysis, speech therapy, and occupational therapy.
For absences under §§25.087(b)(2) and (b-3) of students with disabilities, further information is available in the Texas Education Agency (TEA) guidance document regarding temporary absences at http://tea.texas.gov/www.tea.state.ts.us/SPED_State_Guidance.aspx.
Under Chapter 162, The Interstate Compact on Educational Opportunity for Military Children, “uniformed services” means the Army, Navy, Air Force, Marine Corps, Coast Guard, as well as the Commissioned Corps of the National Oceanic and Atmospheric Administration, and Public Health Services.
See also Chapter 162,
S.B.1152, Acts of the 85th Legislature, Regular Session, 2017. All bills cited in this letter are available at http://www.capitol.state.tx.us. The bills cited are currently in effect unless otherwise noted.
New §25.087(b-6), S.B. 1152, Id.
Under §25.092(a-2), §25.092(a) does not apply to a student who receives credit by examination for a class under §28.023.
Lee v. Tarkington I.S.D., 167-R5-293 (Commissioner Education. 1993).
See Section 3.2 of the Student Attendance Accounting Handbook (SAAH) at http://tea.texas.gov/index2.aspx?id=25769817607.
A student who has received a high school equivalency certificate, or who has been court ordered to obtain a high school equivalency certificate, is still eligible to enroll to complete the requirements for a high school diploma if the student chooses; provided all other eligibility requirements are met. See Section 3.3.10 of the SAAH.
A joint letter issued by the U.S. Department of Justice and the U.S. Department of Education advises public schools to refrain from inquiring into students’ citizenship or immigration status or that of their parents or guardians. The letter and additional information are available at http://www.justice.gov/crt/about/edu/documents/plyler.php. Also, a U.S. Department of Education fact sheet regarding educational services for immigrant children, including recently arrived unaccompanied children, is available at http://www2.ed.gov/policy/rights/guid/unaccompanied-children.pdf.
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).
For additional information regarding homeless students, pleases refer to the homeless education webpage at http://tea.texas.gov/index4.aspx?id=2147503685 and the Texas Homeless Education Office website at http://www.utdanacenter.org/theo .
42 U.S.C. §§11432(e)(3)(A) and 11433(a)(2)(B).
Due to the amendment of §11302(a), currently the correct cross-reference is §11302(a)(2).
Eligibility to enroll in a Texas Virtual School Network (TxVSN) course or Online School (OLS) is determined under state law. See Section 12 of the Student Attendance Accounting Handbook at http://tea.texas.gov/index2.aspx?id=25769817607.
For additional information regarding foreign exchange waivers, please refer to the Foreign Exchange Guidelines and FAQ
F For students in foster care, see additional information on page 15.
Section 29.012 does not apply to a residential treatment facility for juveniles established under §221.056, Texas Human Resources Code.
H,B, 1569, Acts of the 85th Legislature, Regular Session, 2017.
Under §33.904, each school district and open-enrollment charter school is required to appoint at least one employee as a liaison officer to facilitate the enrollment in or transfer to a public school of a child in the district who is in the conservatorship of the state. Information for liaison officers is available at http://www.tea.state.tx.us/FosterCareStudentSuccess.
These provisions are similar to requirements included in the federal Every Student Succeeds Act of 2015 (ESSA), effective on December 10, 2016. Federal guidance on the ESSA foster care provisions is available at http://www2.ed.gov/policy/elsec/leg/essa/edhhsfostercarenonregulatorguide.pdf.
“Educationally disadvantaged” means “eligible to participate in the national free or reduced price lunch program”. See §5.001(4).
As defined in 42 U.S.C. §11434a (2). See discussion of §25.001(b)(5) above.
Additional information regarding prekindergarten eligibility is available on the TEA Early Childhood Education webpage and in the Prekindergarten section of the Student Attendance Accounting Handbook
Added by H.B.357, Acts of the 85th Legislature, Regular Session, 2017; applicable beginning with the 2017-2018 school year.
Information regarding the high-quality prekindergarten grant program is available at http://tea.texas.gov/Academics/Early_Childhood_Education/High-Quality_P…
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794.
Child v. Skidmore-Tynan Independent School District, 026-R5-1110 (Comm’r Educ. 2013).
Information regarding the ACP is available on the website of the Office of Attorney General at
https://www.texasattorneygeneral.gov/cvs/the-address-confidentiality-pr…
On enrollment, a school district is required to request food allergy information under §25.0022, but provision of the information is not required for enrollment.
In addition, §25.007(b)(1) provides that the school records of students who are homeless or who are in foster care must be provided not later than the 10th working day after the date the student begins enrollment at a new school.
The requirements of §25.002 apply regardless of whether the student has unreturned instructional materials or technological equipment. Under §31.104(d), a school district has discretion to withhold the records of a student if the student has not returned or paid for instructional materials or technological equipment. This discretionary authority does not exempt a school district from the mandatory provision in §25.002 to send records to another public school in which the student is enrolling. In situations in which there is not a conflicting mandate, the district may implement the discretionary authority under §31.104(d). For definitions of “instructional materials” and “technical equipment,” see §31.002.
The statute refers to the Department of Protective and Regulatory Services, which is the predecessor to DFPS.
If the child was previously enrolled in a Texas public school, the school is required to forward records through TREx in the same manner as for any other student within the same time period of 10 working days.
The department’s name has changed to Department of Family and Protective Services.
Certain close relatives who are not a child’s legal guardian may have express authority to enroll a child in school pursuant to an authorization agreement under Chapter 34, Texas Family Code. The form required for this purpose is State of Texas Form 2638 available on the DFPS website at http://www.dfps.state.tx.us/Site_Map/forms.asp.
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 http://www.dshs.state.tx.us/immunize/default.shtm.
If a school district has documentation that a certified birth certificate was provided when a student initially enrolled in the district, the original may be returned to the person enrolling the child. Also, it is not necessary for the birth certificate to be provided again in the event the student transfers to another school in the same district.
20 U.S.C. §1232g and 34 C.F.R. Part 99.
A FERPA exception, found in 34 C.F.R. §99.31(a)(2), permits disclosure to another school in which the student is enrolling, which is required by §25.002.
Article 63.021(d), Texas Code of Criminal Procedure.
Section 552.221(d), Texas Government Code.
Additional information regarding tuition for prekindergarten is available on the TEA Early Childhood Education webpage and in the Prekindergarten section of the Student Attendance Accounting Handbook
The data is described in §29.1532(c)..
For purposes of student attendance accounting codes, the appropriate code for the student is “ineligible full-day” or “ineligible half-day,” depending on the student’s schedule. See Section 3 of the Student Attendance Accounting Handbook, which is available at http://tea.texas.gov/index2.aspx?id=25769817607.
A school district or open-enrollment charter school may not provide a signature on an I-20 certificate of eligibility for a student seeking a F-1 visa unless the student is paying the tuition authorized under §25.0031.
The maximum tuition under this section is affected by 19 T.A.C. §61.1012.
