The Texas Education Agency (TEA) proposes the repeal of §61.1033, an amendment to §61.1036, and new §61.1040, concerning school facilities. The proposed revisions would remove an obsolete rule, provide an end date for the current school facilities standards rule, and create a new rule to implement the safety standards required by Senate Bill (SB) 11, 86th Texas Legislature, 2019.

BACKGROUND INFORMATION AND JUSTIFICATION: Texas Education Code (TEC), §46.008, requires the commissioner to establish standards for the adequacy of school facilities. Section 61.1033, adopted effective September 1, 1998, establishes standards for school facilities constructed before January 1, 2004. Section 61.1036, adopted effective June 9, 2003, establishes standards for facilities constructed on or after January 1, 2004.

SB 11, 86th Texas Legislature, 2019, added TEC, §7.061, which requires the commissioner to adopt or amend rules as necessary to ensure that building standards for instructional facilities and other school district and open-enrollment charter school facilities continue to provide a secure and safe environment. SB 11 also added TEC, §37.108(a)(2) and (3), to require a school district to adopt and implement a multi-hazard emergency operations plan that provides for, among other things, measures to ensure that district communications technology and infrastructure are adequate to allow for communication during an emergency and that district employees, including substitute teachers, have classroom access to a telephone, including a cellular telephone or another electronic communication device, that allows for immediate contact with district emergency services or emergency services agencies, law enforcement agencies, health departments, and fire departments.

To implement SB 11, proposed new §61.1040 would establish updated school facilities standards and new safety and security standards for school facilities constructed on or after July 15, 2021. The standards reflect recommendations from a school facilities standards advisory committee convened by the Texas Association of School Administrators and from other stakeholders providing input and public comment on previously proposed rules published in the Texas Register on May 15, 2020, and subsequently withdrawn by the agency effective November 9, 2020.

The new safety and security standards identified in proposed new §61.1040(k) would apply to all school facilities, including instructional facilities and other school district and open-enrollment charter school facilities. Except for the safety and security standards identified in proposed new §61.1040(k), the standards would not otherwise apply to open-enrollment charter schools.

Proposed new §61.1040 would address definitions and facilities standards for capital improvement projects necessary to promote educational adequacy, including the requirement for school districts to have educational specifications and long-range facilities plans; construction code requirements; methods to demonstrate compliance with construction quality standards; square footage requirements for instructional space, common areas, and special spaces; methods to demonstrate aggregate space compliance with the standards; and safety and security standards and compliance measures.

Section 61.1036 would be amended to provide an end date that corresponds with the start date of the new standards. In addition, §61.1033 would be repealed as those standards are obsolete.

FISCAL IMPACT: Leo Lopez, associate commissioner for school finance, has determined that for the first five-year period the proposal is in effect there are no additional costs to state or local government, including school districts and open-enrollment charter schools, required to comply with the proposal beyond what the authorizing statute requires.

LOCAL EMPLOYMENT IMPACT: The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.

SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

COST INCREASE TO REGULATED PERSONS: The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045.

TAKINGS IMPACT ASSESSMENT: The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

GOVERNMENT GROWTH IMPACT: TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would repeal an existing regulation, limit an existing regulation, and create a new regulation. Section 61.1033 would be repealed as it is obsolete. The standards in §61.1036 would be limited by specifying that the standards apply to facilities constructed before July 15, 2021; currently the standards apply to all facilities built on or after January 1, 2004, with no specific end date. Proposed new §61.1040 would be added to address facilities constructed on or after July 15, 2021.

The proposed rulemaking would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not expand an existing regulation; would not increase or decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.

PUBLIC BENEFIT AND COST TO PERSONS: Mr. Lopez has determined that for each year of the first five years the proposal is in effect, the public benefit anticipated as a result of enforcing the proposal would be ensuring that building standards for instructional facilities and other school district and open-enrollment charter school facilities provide a secure and safe environment. There is no anticipated economic cost to persons who are required to comply with the proposal.

DATA AND REPORTING IMPACT: The proposal would have no data or reporting impact.

PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: TEA has determined that the proposal would not require a written report or other paperwork to be completed by a principal or classroom teacher.

PUBLIC COMMENTS: The public comment period on the proposal begins April 9, 2021, and ends May 10, 2021. A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register on April 9, 2021. A form for submitting public comments is available on the TEA website at https://tea.texas.gov/About_TEA/Laws_and_Rules/Commissioner_Rules_(TAC)/Proposed_Commissioner_of_Education_Rules/.

STATUTORY AUTHORITY. The amendment and new section are proposed 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.