| (a) Under the Texas Education Code (TEC), §31.151(b),
the State Board of Education (SBOE) may assess a reasonable administrative
penalty against a publisher or manufacturer found in violation of
a provision of the TEC, §31.151(a). The SBOE shall assess an
administrative penalty under this section only for a violation based
upon an instructional material adopted by the SBOE. An administrative
penalty shall be assessed only after the SBOE has granted the publisher
or manufacturer a hearing in accordance with the TEC, §31.151;
the Administrative Procedure Act; Chapter 157, Subchapter A, of this
title (relating to General Provisions for Hearings Before the State
Board of Education); and this chapter.
(b) The SBOE may assess an administrative penalty against
a publisher or manufacturer who violates the TEC, §31.151(a)(1),
or a rule implementing that provision, including assessing an administrative
penalty against a publisher or manufacturer who offers an instructional
material in this state at a higher price than that offered to any
other state, public school, or school district in the United States.
A publisher or manufacturer does not violate this provision if within
60 days of the sale at a higher price, the publisher or manufacturer
provides a refund in the incremental amount of the lower price compared
to the purchase price to all Texas public schools that previously
purchased the same instructional material at a higher price and enters
into a written agreement with the Texas Education Agency (TEA) to
offer the instructional material at the lower price to any Texas public
school. An action under this subsection may only be taken for differential
pricing that occurs between the time when a public school may start
entering orders for a particular school year until the time when a
public school may start entering orders for the subsequent school
year.
(c) The SBOE may assess an administrative penalty against
a publisher or manufacturer who violates the TEC, §31.151(a)(2),
or a rule implementing that provision. A publisher or manufacturer
does not violate this provision if within 60 days of the sale at a
lower price, the publisher or manufacturer provides a refund in the
incremental amount of the lower price compared to the original purchase
price to all Texas public schools that previously purchased the same
instructional material. An action under this subsection may only be
taken for differential pricing that occurs between the time when a
public school may start entering orders for a particular school year
until the time when a public school may start entering orders for
the subsequent school year.
(d) The SBOE may assess an administrative penalty against
a publisher or manufacturer who violates the TEC, §31.151(a)(3),
or a rule implementing that provision. A publisher or manufacturer
does not violate this provision if within 60 days of dissemination
of instructional materials or ancillary items free of charge, the
publisher or manufacturer provides a refund of the purchase to all
Texas public schools that previously purchased the same instructional
material and enters into a written agreement with the TEA that the
ancillary items will be provided free of charge if any Texas public
school buys the instructional material at issue.
(e) The SBOE may assess an administrative penalty against
a publisher or manufacturer who violates the TEC, §31.151(a)(4),
or a rule implementing that provision. A publisher or manufacturer
does not violate this provision if within 60 days of dissemination
of instructional materials of higher quality, the publisher or manufacturer
provides new copies of the higher quality instructional material at
no charge or, with the public school consent, a refund equivalent
to the price of the lower quality material to all Texas public schools
that previously purchased the same instructional material.
(f) The SBOE may assess an administrative penalty against
a publisher or manufacturer who violates the TEC, §31.151(a)(4)
or (9), or a rule implementing those provisions, including:
(1) an administrative penalty for selling instructional
materials with factual errors. The SBOE may assess an administrative
penalty against a publisher or manufacturer of instructional materials
who sells instructional materials that have been adopted by the SBOE
and contain factual errors unless, within 60 days of knowledge of
the factual error, the publisher or manufacturer corrects the factual
error, including revising web-based instructional materials, providing
corrective materials to public schools that have received material
containing the factual error, and ensuring no further distribution
of materials occurs without correction of the error; or
(2) an administrative penalty for failure to correct
factual errors. The SBOE may assess an administrative penalty against
a publisher or manufacturer who fails to correct a factual error,
including:
(A) failure to correct a factual error identified in
the list of corrections submitted by a publisher under §66.28(c)(11)
of this title (relating to Requirements for Publisher Participation);
(B) failure to correct a factual error identified in
the report of the commissioner of education under §66.63(e) of
this title (relating to Report of the Commissioner of Education) and
required by the SBOE; or
(C) failure to correct a factual error identified and
required by the SBOE prior to the adoption of the instructional material.
(3) an administrative penalty for a factual error in
an instructional material that occurs through updates to the materials
by the publisher when the updates did not comply with requirements
for updating materials, including the requirements under §66.75
of this title (relating to Updates to Adopted Instructional Materials)
and §66.76 of this title (relating to New Editions of Adopted
Instructional Materials). Penalties imposed under this paragraph shall:
(A) not be subject to penalty limitations imposed by
subsection (h) of this section or any other section of this title;
(B) be of a sufficient amount to deter future violations;
and
(C) be based on a timeframe beginning at the time the
factual error first appeared in instructional materials delivered
to a public school, unless mitigating circumstances suggest otherwise.
(g) For purposes of this section:
(1) a factual error shall be defined as a verified
error of fact or any error that would interfere with student learning.
The context, including the intended student audience and grade level
appropriateness, shall be considered;
(2) a factual error repeated in a single item or contained
in both the student and teacher components of instructional material
shall be counted once for the purpose of determining penalties. An
identical error in materials with multiple components and formats
shall be counted as one error; and
(3) a penalty may be assessed for failure to correct
a factual error identified in the list of corrections submitted by
a publisher under §66.28(c)(11) of this title or for failure
to correct a factual error identified in the report of the commissioner
of education under §66.63(a) of this title and required by the
SBOE. The publisher shall identify errata in an appropriate manner.
(h) For purposes of subsection (f)(2) of this section,
a penalty of $5,000 shall be assessed for each failure to correct
a factual error:
(1) after the deadline established in the proclamation
by which publishers must have submitted corrected samples of adopted
instructional materials for violations of subsection (f)(2)(A) of
this section; or
(2) prior to distribution to public schools after the
SBOE has identified the factual error for violations of subsection
(f)(2)(B) and (C) of this section.
(i) The SBOE may assess an administrative penalty against
a publisher or manufacturer who violates the TEC, §31.151(a)(5),
or a rule implementing those provisions.
(j) The SBOE may assess an administrative penalty against
a publisher or manufacturer who violates the TEC, §31.151(a)(6),
(7), or (8), or a rule implementing those provisions, including:
(1) a penalty for failure to deliver adopted instructional
materials, including teacher components, in a timely manner or in
the quantities the school district or open-enrollment charter school
is eligible to receive as specified in the publisher's bid; and
(2) a penalty for failure to deliver adopted instructional
materials, including teacher components, in accordance with provisions
in the contracts if the failure extends beyond 45 days.
(k) The SBOE may assess an administrative penalty against
a publisher or manufacturer who fails to maintain a website or provide
a suitable alternative for conveying the information in the website,
or who otherwise fails to meet the requirements of §66.29 of
this title (relating to Websites in State-Adopted Instructional Materials).
Cont'd... |
