The Texas Education Agency (TEA) adopts the repeal of §61.1033, an amendment to §61.1036, and new §61.1040, concerning school facilities. The repeal of §61.1033 is adopted without changes to the proposed text as published in the April 9, 2021 issue of the Texas Register (46 TexReg 2300) and will not be republished. Section 61.1036 and §61.1040 are adopted with changes to the proposed text as published in the April 9, 2021 issue of the Texas Register (46 TexReg 2300) and will be republished. The adopted revisions 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.

REASONED 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, adopted new §61.1040 establishes updated school facilities standards and new safety and security standards and compliance measures for instructional facilities constructed on or after November 1, 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 adopted new §61.1040(k)(1) and (3) apply to all school district instructional facilities and all open-enrollment charter school instructional facilities. Compliance measures established in new §61.1040(k)(2) apply to all capital improvement projects of a school district or an open-enrollment charter school as a mechanism to implement additional safety and security standards for instructional facilities. Except for the safety and security standards and compliance measures identified in adopted new §61.1040(k), the standards do not otherwise apply to open-enrollment charter schools.

Adopted new §61.1040 addresses 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 is amended to provide an end date that corresponds with the start date of the new standards. In addition, §61.1033 is repealed as those standards are obsolete.

The following changes were made to the rules since published as proposed.

Section 61.1036, School Facilities Standards for Construction on or after January 1, 2004

The section title and subsection (b)(3) were modified to reflect that the standards in the rule are effective for construction before November 1, 2021.

Section 61.1040, School Facilities Standards for Construction on or after November 1, 2021

The section title and subsection (c)(1) and (2) were modified to reflect that the standards in the rule are effective for construction on or after November 1, 2021.

In response to public comment, a definition for "non-designated entry" was added to the definitions as new subsection (a)(20) and the subsequent paragraphs were renumbered to accommodate the addition.

In response to public comment, subsection (d)(1)(A)(iii) was modified to remove the requirement that the long-range facility plan include a history of maintenance requirements, fulfillments, and completed and proposed projects to the facility. The updated language requires that the plan include a history of only completed capital improvement projects.

In response to public comment, subsection (d)(1)(B) was modified to remove the phrase "the inclusion of" so that the requirement reflects that the process shall include input from teachers, students, parents, taxpayers, and other school district stakeholders.

In response to public comment, subsection (e)(5) was modified to remove proposed language related to historically underutilized businesses for redundancy with Texas Government Code, Chapter 2161, and the subsequent subparagraphs were relettered to accommodate the deletion.

In response to public comment, subsection (f)(1)(C)(ii)(I) and (II) were modified to clarify responsibility for compliance with construction quality standards and specify that certain information provided by a local authority having jurisdiction must be in writing.

In response to public comment, subsection (g)(1)(A)(i) was modified to substitute the word "shall" for the word "may" to indicate that the School Library Standards and Guidelines adopted under TEC, §33.021, must be considered.

In response to public comment, subsection (g)(1)(A)(ii)(IV) was modified to eliminate the requirement that a school district add 25 square feet for each student computer in excess of 12 in the library.

In response to public comment, proposed subsection (g)(3), relating to required considerations for instructional safety for special spaces, was removed.

In response to public comment, subsection (h)(1)(F)(i) was modified to correct cross references to subsection (h)(3).

In response to public comment, subsection (j)(2)(G) was modified to narrow the designation of who can perform a plan review to include only an architect or an engineer.

In response to public comment, subsection (k)(3)(A) was modified to remove the requirement for the primary entrance of an instructional facility to always be door 0 and instead require that door to be the first in an entire sequence to allow flexibility for existing numbering systems in school districts.

In response to public comment, subsection (k)(5) was modified 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.

SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began April 9, 2021, and ended May 10, 2021. Following is a summary of the public comments received and corresponding responses.

Comment: A school district employee commented that the requirement in §61.1040(d)(1)(A)(iii) to include history of all relevant projects for every building would take huge resources to put into a legible format and should begin with projects contracted from this point forward, not for projects performed prior to 2021.

Response: The agency agrees and has revised §61.1040 (d)(1)(A)(iii) at adoption to read, "history of completed capital improvement projects at the facility."

Comment: A school district employee commented that the requirement to obtain input from certain types of people is an overstretch beyond the statute's intent. The commenter stated that enough community input already exists through steering committees of bond referendums, the passing of measures on a ballot specific, and the fact that board members have approved the sales of bonds and project awards. The commenter further stated that many districts complete their long-range plans by spring of the year preceding projects and that if the input as stated in the proposal is required to be included as a component of each plan, it should be applicable for long range plans adopted after June 15, 2021, so people can plan accordingly for the upcoming years.

Response: The agency disagrees and provides the following clarification. The language in §61.1040(d)(1)(B) states that the school district shall consider input but does not necessitate its inclusion. The provisions in new §61.1040 become effective and should be followed beginning with the effective date of the rule. In response to other comments, the phrase "the inclusion of" was removed from §61.1040((d)(1)(B) at adoption.

Comment: The Texas Society of Architects (TxA) and a school district employee commented that the language in the rule that requires numbering systems for doors to begin with the number zero could be expensive and time consuming for districts to comply with. The district employee stated that many districts have existing numbering systems on doors, including physical numbers on the doors as well as digital numbering in door access systems that begin with a different number. The district employee stated that to make every primary entrance begin with zero would require renumbering every door, both physically and digitally. The district employee proposed that if numbering systems are already in place, even if the primary entrance is not zero, that districts be allowed to use their existing numbering system and continue that system on new construction as well. TxA had similar concerns and suggested that districts that had proactively added door numbering for exterior doors be allowed to continue to use their systems without penalty of having to change to comply with the rule.

Response: The agency agrees in part and disagrees in part. The agency has revised §61.1040(k)(3)(A) at adoption to read, "The primary entrance of an instructional facility, as defined by subsection (a)(23)(A) of this section, shall always be the first in the entire sequence and is the only door location that does not require numbering." However, the requirement that the numbering system begin at the front entrance and go clockwise remains.

Comment: The Texas Classroom Teachers Association (TCTA) commented that there are no requirements or guidelines in proposed new §61.1040 regarding how much adjustment can be made to the maximum instructional capacity under the qualitative method of compliance. TCTA commented that the "trigger" for pursuing this method of compliance is "prior documented approval of one or more instructional or operational practices for the proposed project that distributes or manages student capacity in an innovative or non-traditional manner." TCTA stated this was a deeply concerning potential loophole for complying with the instructional facilities space standards set out in the proposed new rule. Accordingly, TCTA strongly recommended that rather than providing a wholesale alternative method of compliance as an option for accommodating instructional or operational practices that manage student capacity in an innovation/non-traditional manner, the agency provide a narrowly tailored exception process for districts to pursue with the agency when certifying compliance with instructional facilities space standards.

Response: The agency disagrees that an exception process is necessary to ensure compliance. The qualitative method simply allows two core spaces to be used if a school board has adopted a policy that modifies the proposed project's or campus's utilization. It allows additional spaces in the building to be counted as partially instructional in nature if they are partially used for instructional purposes.

Comment: TCTA commented with concerns about the change in proposed §61.1040(h)(3) and (i)(1) from delineating instructional space standards by type of instructional space, including general classrooms, specialized classrooms, etc., to "minimum square footage per student by campus type and the selected flexibility level." TCTA recommended that the rule set standards for types of instructional spaces, including general and specialized classrooms, rather than setting those standards at the school level.

Response: The agency disagrees that a change is needed to §61.1040. The facility standards simply allow a campus to design for a wider variety of class sizes and configurations that are permitted under the rule. The square footage per student provides that the building can meet the instructional needs of the capacity of the building and project.

Comment: TCTA commented with concerns about the provision in proposed new §61.1040(g)(3) for waiver ability from space standards for potentially high-risk environments like combination science classrooms/laboratories and science laboratories. TCTA recommended eliminating the ability for districts to seek waivers from these important safety standards.

Response: The agency agrees and has removed the waiver provision from the rule at adoption. TEA does not currently grant class-size waivers at the high-school level. It is a district's responsibility to ensure that safety standards are met and that class size does not exceed the number for which the space was designed.

Comment: TCTA commented that §61.1040(g)(1)(A)(i) should read, "A school district shall consider the School Library Standards and Guidelines as adopted under TEC, §33.021, when developing, implementing, or expanding library services" instead of "may consider."

Response: The agency agrees and has revised §61.1040(g)(1)(A)(i) at adoption to read "shall" instead of "may" to indicate that the standards must be considered.

Comment: TCTA commented in support of the minimum standards for combination science classrooms/laboratories for Kindergarten-Grade 8 in §61.1040(g)(2)(A)(i) and (ii). TCTA commented that the new standards improve upon current standards by requiring increased square feet per student as well as setting a maximum number of students.

Response: The agency agrees.

Comment: TCTA commented in support of the minimum standards for combination science classrooms/laboratories for Grades 9-12 in §61.1040(g)(2)(A)(iii). TCTA commented that the new standards improve upon current standards by setting square footage per student standards as well as a maximum number of students.

Response: The agency agrees.

Comment: TCTA commented in support of the minimum standards for science laboratories in Grades 6-8 in §61.1040(g)(2)(B)(ii). TCTA commented that the new standards improve upon current standards by requiring increased square feet per students as well as setting a maximum number of students.

Response: The agency agrees.

Comment: TCTA commented in support of the minimum standards for science laboratories in Grades 9-12 in §61.1040(g)(2)(B)(iii). TCTA commented that the new standards improve upon current standards by setting square footage per student standards as well as a maximum number of students.

Response: The agency agrees.

Comment: TCTA commented regarding §61.1040(b)(1)(E), which allows minor scopes of work to be performed as part of a major renovation without the minor scopes of work triggering compliance with the new standards. TCTA objected to the language based on the potential for a major loophole for districts to not have to comply with the instructional facilities space standards provided in rule and recommended that the provision be eliminated.

Response: The agency disagrees that the provision should be eliminated. The provision allows for minor scopes of work, like painting or flooring, that are not major renovations on their own to be included with major renovation projects. This will allow districts to get better pricing without requiring those areas to meet minimum space standards or methods of compliance.

Comment: TCTA commented that §61.1040(d)(1)(B) was weaker than the current school facilities rule because it only requires the long-range facility plan process to "consider the inclusion of input" rather than requiring the allowance of input in developing the educational specifications. TCTA recommended that the language be revised to strike the phrase "the inclusion of" so that it reads, "The process of developing the long-range facility plan shall consider input from teachers, students, parents, taxpayers, and other school district stakeholders."

Response: The agency agrees and has struck the phrase "the inclusion of" from §61.1040(d)(1)(B) at adoption. This change has no effect on the meaning of the rule language.

Comment: TCTA commented in support of §61.1040(j)(3)(C) that includes the provision that "a school district shall consider as part of a capital improvement project the use of designs, methods, and materials that will reduce the potential for indoor air quality problems." TCTA stated that the language improves upon current facilities standards.

Response: The agency agrees.

Comment: TCTA commented in support of §61.1040(j)(3)(D) that includes the provision that "a school district shall consider as part of a capital improvement project the use of sustainable school designs." TCTA stated that the language improves upon current facilities standards.

Response: The agency agrees.

Comment: TCTA commented on the provision of exceptions to additional safety and security standards based on cost in §61.1040(k)(4)(B). TCTA commented that allowing a building to go for five years without meeting any additional safety/security standards was not reasonable and recommended that the rule provide that the five-year long-range facility plan clearly state that if ceasing operation does not occur by the end of the third year, the facility will be compliant with at least two additional safety and security standards by the end of the following year.

Response: The agency disagrees with making the commenter's suggested change. TEA does not anticipate this exception being used frequently. However, in the event a district needed to take advantage of this exception, it is unlikely that the district would be able to put the additional safety and security standards in place in the shortened timeframe.