| (a) Public property. An interest in real estate or
personal property acquired, improved, or maintained using state funds
that were received by the charter holder on or after September 1,
2001, is public property for all purposes under state law. The date
on which the property was acquired, improved, or maintained is not
determinative. An interest in real estate acquired, improved, or maintained
using state funds that were received by the charter holder before
September 1, 2001, is public property only to the extent specified
by §100.1065 of this title (relating to Property Acquired with
State Funds Received Before September 1, 2001--Special Rules). Where
the property is acquired with federal funds, federal law may preempt
this section in whole or part.
(b) Fiduciary duty respecting public property. Public
property is held by the charter holder in trust for the benefit of
the students of the charter school. With respect to the public property
they manage, the members of the governing body of a charter holder,
and the members of the governing body and officers of a charter school,
are trustees under Texas law; and the students enrolled in the school
are beneficiaries of a trust. Each trustee shall be held to the standard
of care and fiduciary duties that a trustee owes the beneficiary of
a trust under Texas law.
(c) Use of public property. Public property may be
used only for a purpose for which a school district may use school
district property and only to implement a program that is described
in the open-enrollment charter and is consistent with Texas Education
Code (TEC), §12.107.
(1) Any use or application of public property for a
purpose other than implementing a program that is described in the
open-enrollment charter and is consistent with TEC, §12.107,
constitutes misuse and misapplication of such property, and is subject
to Texas law governing misuse or misapplication of public property.
(2) The governing body of a charter holder shall adopt
and enforce local policies governing the use and application of public
property by its employees, agents, contractors, and management companies.
The policies shall prohibit the use or application of public property
for any purpose but a program described in the open-enrollment charter,
except that the policies may authorize charter holder employees to
use local telephone service, cellular phones, electronic mail, Internet
connections, and similar public property for incidental personal use,
if the policies:
(A) do not result in any direct cost paid with state
funds, or the charter holder is reimbursed for any direct cost incurred;
(B) do not impede charter school functions;
(C) do not authorize incidental personal use of public
property for private commercial purposes; and
(D) authorize only incidental amounts of employee time--time
periods comparable to reasonable coffee breaks during the day--for
personal matters.
(3) The governing body of a charter holder shall by
separate vote approve any joint use of real property for charter and
non-charter activities. In the minutes of the vote approving the joint
use, the governing body of a charter holder shall set forth the methodology
used to allocate shared costs and the percentage allocation basis
between charter and non-charter activities.
(4) The members of the governing body of a charter
holder, and the members of the governing body and officers of a charter
school, shall authorize all uses and applications of the public property
under their control, and shall not authorize any use or application
that is inconsistent with the policy required by paragraph (2) of
this subsection.
(5) If pursuant to TEC, §12.111(9), the daily
management of public property is delegated to any person, including
a management company, the members of the governing body of the charter
holder, and the members of the governing body and officers of the
charter school, shall remain fully responsible to authorize all uses
and applications of public property and enforce the policy required
by paragraph (2) of this subsection.
(6) Nothing in this section prevents a charter holder
from authorizing the use of its public property by a contractor for
the purpose of providing goods or services under the contract, if
such use is an express contract term, factored into the price of the
contract, and the contract is duly authorized by the governing body
of the charter holder under this section.
(d) Ownership of public property. Public property is
owned by the charter holder, regardless of the funds used to acquire
it. Subject to the requirements of §100.1067 of this title (relating
to Possession and Control of the Public Property of a Former Charter
Holder) and this section, a charter holder retains all title to the
property, exercises complete control over the property, and is entitled
to all use and benefit from the property.
(e) Public property mixed with private property. Property
acquired, improved, or maintained partly using state funds and partly
using other funds is mixed public and private property, and is subject
to all requirements of this section.
(f) Accounting for public property. Each charter holder
shall include in its annual audit report an exhibit identifying the
fixed assets of the charter holder and the ownership interest of all
parties for all real estate and capitalized personal property presently
held by the charter holder or acquired, improved, or maintained by
the charter holder during the term of the open-enrollment charter.
(1) Pursuant to the requirements in §109.41 of
this title (relating to Financial Accountability System Resource Guide),
the annual audit report must separately disclose the cost basis and
accumulated depreciation of all public property as determined by this
division, and all other property held, acquired, improved, or maintained
by the charter holder.
(2) Alternatively, the charter holder may omit the
exhibit required by paragraph (1) of this subsection and substitute
a statement, in accordance with the requirements in §109.41 of
this title, that all property acquired, improved, or maintained during
the term of the open-enrollment charter, and all property presently
held by the charter holder, is public property under this division.
(3) All property held, acquired, improved, or maintained
by the charter holder is subject to this subsection regardless whether
it is public or private property.
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