Agency Response. This comment, insofar as it pertains to the contents of education code, is outside of the scope of the proposed rulemaking.

Comment. TASA/TASB and Houston ISD stated that the proposed new language "effective change" found in §97.1057(f)(4) and §97.1059(b)(l)(G) is subjective and should be defined. The commenters asked how "effective change" would be measured objectively.

Agency Response. The agency provides the following clarification: The inability to implement effective change in a school district does not lend itself to a finite set of circumstance. Rather, the amendment, as written, gives the commissioner flexibility and discretion to consider reforms and initiatives considered or implemented by the district, without relying on a formula that does not consider the diverse and qualitative factors that occur outside of a prescriptive formula.

Comment. TSA asked, pursuant to §97.1057(f), how the state "reasonably calculate[s]" whether a given sanction will address a given deficiency; how the state intends to identify the "inability to implement effective change"; whether the "inability" rests exclusively with the district or campus; how the state intends to determine whether "effective change" has taken place to "improve performance of students"; and how much change, on which indicators and calculated by what methods, will be sufficient.

Agency Response. This comment, insofar as it pertains to §97.1057(f)(1), (2), and (3), is outside of the scope of the proposed rulemaking. The agency provides the following clarification with respect to §97.1057(f)(4). The inability to implement effective change in a school district, or in a specific school, does not lend itself to a finite set of circumstance. Rather, the amendment, as written, gives the commissioner flexibility and discretion to consider reforms and initiatives considered or implemented by the district, without relying on a formula that does not consider the diverse, and qualitative factors that occur outside of a prescriptive formula.

Comment. The Texas Classroom Teachers Association (TCTA) and TASA/TASB noted that "effective change" is not referenced in the Texas Education Code, and therefore TASA/TASB recommended that the language be removed from §97.1057(f)(4) and §97.1059(b)(l)(G).

Agency Response. The agency agrees that the term "effective change" is not found in TEC, Chapter 39 or 39A. However, the agency disagrees that the language needs to be revised. This rule, as drafted, allows the commissioner to target interventions to school districts that both fail in the accountability system and fail to implement effective change. It also gives flexibility to the commissioner to allow districts who fail in the accountability system, but who have implemented effective change, the time necessary for outcomes to improve.

Comment. The TCTA recommended that the phrase "student outcomes" be substituted for "student performance" in §97.1057(f)(4) and §97.1059(b)(l)(G).

Agency Response. The agency disagrees. The term "student performance" aligns with existing language found in administrative and education code.

Comment. Houston ISD noted that the legislature has not adopted the terminology "effective change," as used in §97.1057(f)(4) and §97.1059(b)(l)(G). Houston ISD notes that Chapter 39 is one of the more detailed chapters and directs the commissioner's actions on sanctions and interventions for campus performance to be "in accordance with this subchapter" (TEC, §39.103).

Agency Response. The agency agrees that the term "effective change" is not found in TEC, Chapter 39 or 39A. However, the agency disagrees that the absence of this term in education code is sufficient evidence to prohibit the use or adoption of it in rule. Further, this rule, as drafted, allows the commissioner to target interventions to school districts that both fail in the accountability system and fail to implement effective change. It also gives flexibility to the commissioner to allow districts who fail in the accountability system, but who have implemented effective change, the time necessary for outcomes to improve.

Comment. TSTA cited §97.1057(f)(4) and §97.1059(b)(l)(G) as examples of accountability measures linked primarily to tested scores that fail to tell the whole story of persistently struggling schools. TSTA further stated their opposition to sanctions or interventions that remove the authority of a duly-elected local school board and replace it with a board of managers that is not accountable to the local community, or that emphasizes its bottom line as education decision makers should be accountable to stakeholders not stockholders.

Agency Response. The agency disagrees. This rule allows the commissioner to target interventions to school districts that both fail in the accountability system and fail to implement effective change. It also gives flexibility to the commissioner to allow districts who fail in the accountability system, but who have implemented effective change, the time necessary for outcomes to improve.

Comment. TASA/TASB and Houston ISD stated that §97.1065(d) is not within statutory authority. The commenters stated that statute allows a petition for appointment of a board of managers or closure of the campus but does not allow a petition for alternative management. Therefore, TASA/TASB and Houston ISD recommended the agency comport the existing and proposed rules to statute.

Agency Response. The agency agrees and amended §97.1065(d)(2)(B) at adoption to clarify that the petition must state which sanction under §97.1065(a)(2) is being requested by the parents. This clarification will align with the applicable statutory provisions related to parent petitions contained in TEC, §39A.112.

Comment. TASA/TASB inquired as to what prompted the change to §97.1065(d)(5) and requested information regarding what circumstances would be necessary to implement sanctions during a current school year.

Agency Response. The agency provides the following clarification. The example was struck from §97.1065(d)(5) because it did not provide additional clarity and is not applicable in all situations. Regarding circumstances in which sanctions would be required in the same year, the agency provides the following clarification. The appointment of a board of managers could, for example, be implemented during the school year in which a parent petition is timely filed.

Comment. TSA and Houston ISD asked why the agency removed the language requiring the school board to approve a parent petition in §97.1065(d). Houston ISD noted that this is not a statutory requirement, but parents are the constituents of the elected school board. Houston ISD stated that the language allows the superintendent, not the district or the board, to validate the parents' petition.

Agency Response. The agency provides the following clarification. There is no requirement that a board approve the parent petition. The amendment dispenses with the necessity of calling a formal board meeting. The approval of the parent petition is a ministerial act and does not need the input of policy makers.

Comment. TASA/TASB stated that §97.1073(e)(8) creates a new circumstance under which the commissioner may appoint a board of managers: when "a failure in governance" results in an inability to carry out the powers and duties of the board of trustees as outlined in TEC, §11.151 and §11.1511." TASA/TASB suggested that this oversteps the commissioner's rulemaking authority, as it is not an authorized reason in statute to appoint a board of managers. Therefore, TASA/TASB recommended that the proposed language be removed.

Agency Response. The agency disagrees. As reflected in the amendment, the authority to appoint a board of managers is contained in TEC, §§39A.006, 39A.102, 39A.107, 39A.111, 39A.256, and 12.116(d)(1). Therefore, the commissioner is within his authority when exercising the statutory right to appoint a board of managers. No changes were made as a result of this comment.

Comments. TSTA stated opposition, in §97.1073, to the appointment of a board of managers to supplant the authority of a duly-elected local school board and the expansion of the commissioner's authority to appoint a board of managers; specifically, appointments based on a single campus that is subject to TEC, §39A.111. Furthermore, TSTA expressed opposition to the concept of school closures.

Agency Response. The agency disagrees. The agency has statutory authority to appoint a board of managers or order closure of a campus described in the section, and is required to take such action in certain circumstances.

Comment. TSA and Houston ISD requested that, "a failure of governance," in §97.1073(e)(8), be defined and examples be provided.

Agency Response. The agency disagrees. The term, "failure of governance" does not lend itself to an objective measurement.

Comment. TASA/TASB stated that the proposed language in §97.1073(g)(8) permitting the commissioner to determine the order of the trustee positions appears to overstep the bound of reasonable rulemaking; therefore, TASA/TASB recommended this language be removed from the rules or the agency should provide the factors that will be applied in the decision-making process.

Agency Response. The agency disagrees. The applicable statutory provision, TEC, §39A.208, does not specify a method by which the elected board of trustee members will transition back onto the board. The amendment to the rule provides clarity regarding the order in which the board of trustee members will return to their elected positions in order to implement the statute.

Comment. TSA argued that TEC, §39.109 and §39.110, require that districts bear costs associated with state-mandated interventions, including service providers, monitors, conservators, management team, and campus intervention teams. Therefore, TSA argued that it was inaccurate to state that "there are no additional costs […] to comply with the proposed amendments." Further, TSA proposed that funds be appropriated to offset actual costs to districts to comply with state-mandated interventions and sanctions.

Agency Response. The agency disagrees. The amendments did not require additional interventions under TEC, §39A.111, rather they only provided clarity regarding existing interventions and, therefore, additional costs are not anticipated.

STATUTORY AUTHORITY. The amendments are adopted under the Texas Education Code (TEC), §39.051, which requires the commissioner to determine accreditation statuses; TEC, §39.057, as amended by SB 7 and SB 1488, 85th Texas Legislature, Regular Session, 2017, which authorizes the commissioner to take intervention actions based on a special accreditation investigation, which includes interventions under TEC, Chapter 39A, lowering the accreditation status, or both; TEC, §39.102(a)(9), as amended by House Bill (HB) 1553 and SB 1566, 85th Texas Legislature, Regular Session, 2017, which expands the commissioner intervention tools when districts fail to meet accreditation, academic accountability, or financial accountability standards to include authorizing a district to enter into a memorandum of understanding with an institution of higher education to improve the district's performance; TEC, §39.102(a)(12), which expands the commissioner intervention tools when districts fail to meet accreditation, academic accountability, or financial accountability standards to include requiring the use of a board improvement and evaluation tool as provided by TEC, §11.182; TEC, §39A.001, which requires the commissioner to take actions for districts under the TEC, Chapter 39A, Subchapter A, Interventions and Sanctions for School Districts, to the extent the commissioner determines necessary, including any action the commissioner determines is appropriate on the basis of a special accreditation investigation; TEC, §39A.002, which allows the commissioner to take several actions if a district does not satisfy one of several standards, including the appointment of monitors, conservators, and management teams; TEC, §39A.003, which establishes the powers, duties, and limitations on the authority of a conservator or management team; TEC, §39A.004, which allows the commissioner to appoint a board of managers upon the satisfaction of certain conditions; TEC, §39A.005, which allows the commissioner to revoke the accreditation of a district upon the satisfaction of certain conditions; TEC, §39A.006, which allows the commissioner to appoint a board of managers after the assignment of a conservator or management team for two consecutive years; TEC, §39A.007, which allows the commissioner to impose additional sanctions designed to improve high school completion rates if the district fails any standard because of a district's dropout rate; TEC, §39A.051, which allows the commissioner to take actions as provided by TEC, Chapter 39A, as the commissioner determines necessary when a campus fails to meet the standard on any accountability indicator; TEC, §39A.052, which allows the commissioner to include certain educational personnel on a campus intervention team; TEC, §39A.053, which establishes the requirements for onsite needs assessments performed by a campus intervention team; TEC, §39A.054, which establishes the parameters for the recommendations that a campus intervention team provides; TEC, §39A.055, which requires a campus intervention team to assist in developing and monitoring the implementation of a targeted improvement plan.; TEC, §39A.056, which establishes public notice requirements for a targeted improvement plan; TEC, §39A.057, which establishes hearing requirements for a targeted improvement plan; TEC, §39A.058, which requires submission of a targeted improvement plan to the commissioner for approval; TEC, §39A.059, which allows a campus intervention team, if appropriate, to take certain actions in executing a targeted improvement plan; TEC, §39A.060, recodified from TEC, §39.106, as amended by HB 2263, 85th Texas Legislature, Regular Session, 2017, which establishes continuing duty requirements for a campus intervention team; TEC, §39A.061, allows the commissioner to authorize certain intervention mechanisms to substitute for certain committees and planning requirements at a campus; TEC, §39A.062, which authorizes the commissioner to require campus- and district-level committees to revise campus improvement plans in certain circumstances; TEC, §39A.063, which authorizes the commissioner to accept a substantially similar federal intervention in place of imposing a state intervention; TEC, §39A.101, which requires the commissioner to order a campus to develop a campus turnaround plan after two consecutive years of unacceptable performance, requires the campus intervention team to assist in developing the plans, and requires the plan to include all necessary details to implement without further action by the board of trustees; TEC, §39A.102, which allows the commissioner to appoint a monitor, conservator, management team, or board of managers to the school district to ensure support of low-performing campuses and implementation of the targeted improvement plan; TEC, §39A.103, which requires public notices and requests for assistance in developing the campus turnaround plan prior to submitting the plan to the board of trustees; TEC, §39A.104, which requires the school district to prepare the campus turnaround plan and allow review prior to submitting to the board of trustees and requires that the plan assist in satisfying all accountability standards; TEC, §39A.105, which establishes the requirements of a campus turnaround plan; TEC, §39A.106, which requires the campus turnaround plan to take effect no later than the school year after the third consecutive school year of unacceptable performance; TEC, §39A.107, which allows the commissioner to approve a turnaround plan only if the commissioner determines implementing the plan will result in satisfaction of performance standards by the conclusion of the second year after implementation. In the absence of approving a turnaround plan, the commissioner must order alternative management of the campus or closure of the campus or appoint of a board of managers for the district; TEC, §39A.108, which authorizes the school district to take actions to implement the turnaround plan once approved by the commissioner; TEC, §39A.109, which authorizes a school district to receive assistance from a regional education service center or an institution of higher education in developing and implementing a campus turnaround plan; TEC, §39A.110, which provides options regarding the use of a campus turnaround plan if the campus receives an acceptable rating for the school year following the school year that required the development of the plan; TEC, §39A.111, which requires the commissioner to either close a campus or appoint a board of managers if a campus reaches five consecutive years of unacceptable performance; TEC, §39A.112, which authorizes the commissioner to establish the time and manner for a parent petition to direct the sanction imposed based on five consecutive years of unacceptable campus performance and allows the commissioner to order the sanction requested by a board of trustees submitted in rebuttal to a parent-submitted sanction directive; TEC, §39A.113, which establishes parameters around repurposing a campus site when the campus was ordered closed; TEC, §39A.114, which allows the commissioner to require a district to contract for targeted technical assistance at a campus under certain circumstances; TEC, §39A.115, which authorizes the commissioner to adopt rules to implement TEC, Chapter 39A, Subchapter C, Campus Turnaround Plan; TEC, §39A.151, which establishes process and eligible entities for alternative management; TEC, §39A.152, which establishes qualifications for a managing entity for alternative management; TEC, §39A.153, which establishes terms of the contract with the managing entity for alternative management; TEC, §39A.154, which authorizes the commissioner to extend an alternative management contract and to approve terms of the contract; TEC, §39A.155, which establishes the evaluation of a managing entity for alternative management; TEC, §39A.156, which establishes when an alternative management contract must be cancelled; TEC, §39A.157, which establishes when management of a campus returns to the school district; TEC, §39A.158, which requires accountability to apply to a campus managed under alternative management; TEC, §39A.159, which requires certain minimum funding for a campus under alternative management; TEC, §39A.160, which applies open meeting and public record requirements to a managing entity; TEC, §39A.161, which authorizes commissioner to adopt rules to implement TEC, Cont'd...