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Texas Register Preamble


Comment: Three architects from PBK Architects, Inc. commented that proposed new §61.1040 has confusing square footage calculations. The commenters stated that the most significant change from previous facilities standards is the move to qualitative and quantitative methods of compliance, four levels of flexibility, and several square-foot-per-student calculation factors that must be assessed to determine a school's capacity. The commenters stated that the whole process seems much more confusing and convoluted. One commenter felt that the square footage calculations in proposed new §61.1040 are confusing and overly complicated and that the multiple levels of flexibility and square footage types will create various interpretations and misunderstandings during required board approvals as well as future analysis of building capacities. The commenters believe that the requirements of §61.1040(h), relating to the quantitative method of compliance for instructional facility space requirements, should be revisited and simplified.

Response: The agency disagrees. The complexity is necessary because the overall structure of the standards has changed. This allows for future modifications to be added based on research or other trusted sources. In addition, the higher levels of flexibility mean mobile furniture and technology, which likely necessitate additional square footage to account for multiple configurations and technology that would no longer be mounted to the wall like in a more traditional setting. The process involves applying a formula to calculate and show campus compliance. Specific suggestions to reduce the complexity of the calculation can be considered for future iterations of the standards.

Comment: Two architects from PBK Architects, Inc. commented that proposed new §61.1040 was too long. The commenters stated that the rule went from 11 pages in 2004 to 27 pages for the current proposal. Both commenters felt most of the growth is due to complexity with no apparent benefit.

Response: The agency disagrees. The new standards must take into account laws that have been enacted since the last update, and this necessitates the length of new §61.1040.

Comment: Three architects from PBK Architects, Inc. commented on minimum codes listed in §61.1040 and asked why the language needed to change. One commenter stated that having districts select their own code would mean the codes were more up to date than those listed in the rule that might not change for years. Another commenter stated that there did not seem to be a benefit to the added language. The third commenter stated that including specific codes date the document, requiring constant updates.

Response: The agency disagrees. The language required updating, and the codes listed in §61.1040(j) are for situations when a district would look to state-adopted codes. The codes will be updated in rule as needed.

Comment: Two architects from PBK Architects, Inc. commented on inclusive design. One commenter felt that the issue was a curriculum issue and not a facilities issue. Another commenter stated that school districts are obligated by new §61.1040 to set inclusive design goals and write a statement about addressing inclusive design in new and renovated facilities, but there are no standards proposed to determine if the goals are acceptable within the context of the new rule.

Response: The agency disagrees that any change is needed. Inclusive design is the intentional design for the variety of users of public school facilities, not related to curriculum. The purpose of this definition and inclusion in the education specifications is to require intentional decisions be made about facility design to meet the varied needs of users of the facility. Each campus and community are different so the goals and design decisions should be local and specific to the project and campus type.

Comment: Two architects from PBK Architects, Inc. commented on the necessity of board approvals. Both commenters stated that proposed new §61.1040 recommends board approvals for the TEA Square Footage Compliance path for every project. The commenters each felt that the number of actions seemed excessive and gave the opinion that it could be handled in other ways.

Response: The agency disagrees that the language needs to change. New §61.1040 does not necessitate that every project being pursued by a district be taken up separately by the board. If a district wants to designate all projects in a bond program as quantitative, it can do that and then take up a re-designation of a project to qualitative if it wants.

Comment: Two architects from PBK Architects, Inc. commented that the change from the existing standards regarding square footage per special education student will cause equity issues between new and existing campuses for a minor benefit and should be left alone.

Response: The agency disagrees. Additional square footage is needed for special education students. Existing facilities should be upgraded as projects are pursued.

Comment: Two architects from PBK Architects, Inc. commented on the inclusion of historically underutilized business (HUB) standards in §61.1040 and stated that the facilities rule was not the place for them.

Response: The agency agrees. The section on HUBs was stricken from §61.1040(e)(5)(C) at adoption.

Comment: Two architects from PBK Architects, Inc. commented that there was overlap in proposed new §61.1040 and the Texas Board of Architectural Examiners (TBAE) authority. The commenters stated that this standard specifies when an architect or engineer should be hired and said that authority was already with the TBAE. The commenters stated the language in the proposed new rule is at best duplicative and at worst confusing and should be removed.

Response: The agency disagrees that the language should be removed. Proposed new §61.1040(e)(4) addresses provisions if an architect is required to be hired. If it is required in the Texas Occupations Code and the project value exceeds $50,000 due to public procurement processes, the provisions are triggered.

Comment: An architect from PBK Architects, Inc. commented that the square footage for libraries seems a bit outdated.

Response: The agency disagrees with making changes at this time. However, it may be reevaluated in a future review process.

Comment: An architect from PBK Architects, Inc. commented that more study was essential to determine the most straightforward way to achieve the goal of flexibility in school design. The commenter stated that the move toward a more innovative approach than simply counting square footage was admirable and necessary, but this method may not be the best.

Response: The agency disagrees that changes are needed to §61.1040 at this time. Because all of the spaces listed, with the exception of collaboration spaces, are currently used to establish building capacity, it seems logical to allow them to be used to show the facility has adequate instructional space to serve the number of students enrolled in the campus.

Comment: An architect from PBK Architects, Inc. commented that most of the safety and security requirements in §61.1040 were good starting points. The commenter stated that sophisticated districts execute these safety and security requirements already, and this standardizes a baseline of measures to implement on every significant project.

Response: The agency agrees.

Comment: An architect from PBK Architects, Inc. commented that changing the requirement for science countertops to six square foot per student instead of six linear feet make more sense.

Response: The agency agrees.

Comment: An architect from PBK Architects, Inc. commented that the methodology on how square footage is calculated is a bit confusing and has moved away from the previously simplistic qualitative method. The commenter noted that the requirement for a school district board of trustees to determine the district's compliance path before design development for every project leaves space to edit or modify to meet target budget numbers.

Response: The agency disagrees that the methodology leaves room for the board to edit or modify square footage calculations to meet target budget numbers. Edits and modifications would have to be of capacity and enrollment; otherwise, the board's designation either takes into account innovative policies or not.

Comment: An architect from PBK Architects, Inc. commented that the new standards appear to require less square footage overall per student. The commenter stated concern about the reduction of square footage for an overall campus after a year of social distancing and concern on occupancy.

Response: The agency disagrees that new §61.1040 reduces the required square footage. Square footage is summed up to a campus minimum. Social distancing is a short-term operational choice. If districts want to design for future or sustained social distancing, the rule does not preclude that.

Comment: An architect from PBK Architects, Inc. recommended an addition or requirement for outdoor learning environments. The commenter stated that with the myriad of statistics that show the value for students of all ages to spend time outside, Texas should embrace that in the new educational standards. The commenter further stated that outdoors is a continuation of the indoor learning environment.

Response: The comment is outside the scope of the proposed rulemaking. However, the commenter's suggestion can be considered in future rulemaking.

Comment: An architect from PBK Architects, Inc. commented that under proposed new §61.1040, new schools have the potential to be much smaller than pre-existing schools yet are deemed adequate for the same student capacity. The commenter stated that this accounting will likely be at odds with school administrators who feel the existing calculations leave their buildings too small already.

Response: The agency disagrees that a change is needed. The new standards simply change the compliance to the campus level instead of the space level.

Comment: TxA commented that the provisions in §61.1040(k) that direct school districts and open-enrollment charter schools to incrementally implement the specified safety and security standards in the rule based on the "project construction budget" definition in §61.1040(a)(25) will appropriately guide school districts and open-enrollment charter schools to make the foundational facilities upgrades specified to ensure effective implementation of Senate Bill 11 requirements. TxA suggested clarifying that the proposed "project construction budget" definition set out in subsection (a)(25) is to be based only on projected total aggregate dollars (as opposed to final total dollars) to establish subsection (k) compliance thresholds. TxA stated that would ensure the correct timing signals for the school district to approve the safety and security measures that are to be specified for the development of construction documents during the design phase of a capital improvement project.

Response: The agency disagrees that the requested clarification is necessary at this time. It may be reviewed at a future date.

Comment: TxA commented that proposed §61.1040(k)(1)(B) establishes a requirement that a document be developed by each school district or charter school designating each exterior door of each instructional facility on a campus as either a primary, secondary, or non-designated entrance and further requires that such designation of entrances be documented and become part of a school district long-range facility plan. TxA further commented that while primary and secondary entrances are defined in §61.1040(a)(23) and (29), respectively, there is currently no explicit or separate definition of a "non-designated entrance." TxA suggested that to avoid the potential for any confusion about the application of provisions relating to the various types of exterior doors defined in the rule a separate definition for a "non-designated entry" be added to subsection (a) to separate exterior doors that allow for emergency egress but do not operate as an entrance from the exterior of the building. TxA also suggested additional conforming changes be made to the proposed definition of a secondary entrance. To ensure all relevant definitions are closely aligned in the policy provisions of the rule, TxA also recommended changes to subsection (k) to conform the proposed definition of a "non-designated entry" with the access control specifications in subsection (k)(1)(B).

Response: The agency agrees. Section 61.1040(a) was modified at adoption to add a definition for "non-designated entry" in new subsection (a)(20). The definition reads, "Non-designated entry--A door that is not operable from the exterior and is designed to only allow for emergency egress."

Comment: TxA commented that clarification was needed for contractor certifications. TxA is concerned that the wording related to contractor certifications required in §61.1040(f)(1)(C) could inadvertently be interpreted as requiring a contractor to certify that the facility meets building code requirements. TxA stated that the contractor does not and may not serve as the building code official, nor are they qualified to specify or certify applicable building code standards. To address any potential impact regarding insurability for design professionals or the appropriate contract accountability for contractors, TxA suggested changes be made to the contractor certification provisions in subsection (f)(1)(C)(ii)(I) to clarify, as expressed elsewhere in proposed §61.1040, that the contractor is required to build in accordance with the contract documents and to certify compliance with specified requirements and performance standards reflected in the construction documents.

Response: The agency agrees. At adoption, §61.1040(f)(1)(C)(ii)(I) was modified to clarify certification of contractual obligations of a contractor in accordance with the contract documents.

Additionally, §61.1040(f)(1)(C)(ii)(II) was modified at adoption to specify that documentation that a certificate of occupancy is not required or provided for by a local government must be in writing.

Comment: TxA commented that §61.1040(h)(1)(F)(i) should be updated to correct cross references to subsection (h)(3).

Response: The agency agrees and has modified the language at adoption to correct the cross references.

Comment: TxA commented that §61.1040(k)(5) should be amended to clarify that any school district review that could modify public disclosure is narrowly tailored and limited to information related to school district "safety and security" information.

Response: The agency agrees and has modified §61.1040(k)(5) at adoption to refine and more narrowly tailor the process by which a school district could limit public disclosure of information when related to "safety and security" information.

Comment: TxA commented that §61.1040(h)(1)(F)(i) and (i)(1)(F)(i), referencing the "maximum number of students that shall be served," may require clarification to address how that term is defined and whether it is intended to be defined as the "maximum occupant load per code" or by some other measure.

Response: The agency disagrees that the suggested change is necessary at this time. It may need to be reviewed at a future date.

Comment: TxA commented that §61.1040(j)(2)(G) may require clarification to ensure appropriate qualifications for those allowed to perform building code reviews as a third-party code compliance officer.

Response: The agency agrees and has modified the language at adoption to narrow the designation of who can perform a plan review to include only an architect or an engineer.

Comment: A school district employee commented that the requirement to add 25 square feet for computers in the library in excess of 12 is archaic and unnecessary. The commenter stated that with the prevalence of digital resources there should actually be less stack space and more computer stations. Additionally, the commenter stated that the minimum square footage requirements are excessive when a 3,500-student high school requires a 10,500 square foot library that will sit empty most of the day.

Response: The agency agrees and has modified §61.1040(g)(1)(A)(ii)(IV) at adoption to remove the reference to additional space for student computers.

STATUTORY AUTHORITY. The amendment and new section are adopted under Texas Education Code (TEC), §7.061, as added by Senate Bill 11, 86th Texas Legislature, 2019, which requires the commissioner of education to adopt or amend rules as necessary to ensure that building standards for instructional facilities provide a secure and safe environment; TEC, §46.001, which provides a definition for instructional facility; TEC, §46.002, which allows the commissioner to adopt rules for administering instructional facility programs; and TEC, §46.008, which requires the commissioner to establish standards for adequacy of school facilities.

CROSS REFERENCE TO STATUTE. The amendment and new section implement Texas Education Code, §§7.061, 46.001, 46.002, and 46.008.



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