Is Texas prekindergarten part of the public free schools, and which four-year-olds can enroll?

Plain-English summary

The U.S. Department of Education needed to know how Texas treats its prekindergarten program before it could decide whether Texas school districts qualify for federal "impact aid," money that goes to districts whose finances or enrollment are affected by a federal presence (like a military base). Federal impact aid is tied to whether a district provides "free public education," meaning education at public expense, under public supervision, without tuition, offered as elementary or secondary school in the state. So the Texas Education Agency asked the Attorney General to pin down the status of prekindergarten under Texas law, and a few related questions.

The central answer: prekindergarten is part of the "public free schools" in Texas. The logic is short. State law says prekindergarten children are entitled to money from the Available School Fund. The Texas Constitution says that fund can only be spent to support the public free schools. So either prekindergarten is part of the public free schools, or the statute giving prekindergartners that money is unconstitutional. Because courts presume statutes are valid and nothing suggested a conflict, the Attorney General read "public free schools" to include prekindergarten. It did not matter that the prekindergarten statute itself never used the phrase "public free schools"; what matters is the entitlement to the fund.

The opinion also said prekindergarten counts as "elementary education" in the contexts that matter here, even though Texas law has no single fixed definition of the term. For example, the constitution's school-tax provisions talk about taxes for "general elementary and secondary public school purposes," and since school districts can use those tax dollars for prekindergarten and prekindergarten is not "secondary," it has to fall on the elementary side. The state curriculum rules treat prekindergarten as part of the elementary curriculum too.

On funding, the opinion concluded the state pays for prekindergarten children the same way it pays for other students, through the Foundation School Program, based on a district's weighted average daily attendance and its property tax base. Nothing in Texas law lets the state treat federally-connected children differently from other children for funding. The opinion would not make the factual finding about whether each district's share was cut in 1990 and 1991, since the opinion process does not resolve facts, but it passed along what the agency's own counsel reported: across-the-board prorations of about 4.2 percent for 1989-1990 and about 2.3 percent for 1990-1991.

Finally, on who can attend, the opinion concluded a district may enroll any four-year-old who wants to come to prekindergarten. The statute uses "eligible children" (children who are limited-English-proficient or from low-income families) only to set the trigger for when a district is required to offer the program: once a district identifies 15 or more eligible children, it must offer prekindergarten. That eligibility line does not cap who may enroll once the classes exist.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Texas school-finance system and the Education Code were extensively rewritten after 1993 (the prekindergarten and Foundation School Program provisions were renumbered and amended, and the school-finance scheme the opinion describes was itself under constitutional challenge at the time), so confirm current law before relying on anything described here.

Background and statutory framework

The Commissioner of the Texas Education Agency asked the Attorney General to answer several questions posed by the U.S. Department of Education about the prekindergarten program established by Education Code section 21.136, so the department could determine whether Texas school districts are eligible for impact-aid assistance for children in prekindergarten classes.

The federal impact-aid statute gives local educational agencies (LEAs) federal financial assistance when federal activities affect the revenue available to the LEAs or the number of children they serve (20 U.S.C. § 236). An LEA may claim payments for federally-connected children receiving "free public education" from the LEA (id. § 238). The implementing regulations require that, to be eligible, an LEA must be responsible under applicable state or federal law for providing free public education to the children claimed and must actually be providing it, and the state must fund those children on the same basis as all other public-school children in the state (34 C.F.R. § 222.80). The statute defines free public education as education provided at public expense, under public supervision and direction, without tuition charge, and provided as elementary or secondary school education in the state (20 U.S.C. § 244(4)).

Whether prekindergarten is part of the public free schools (questions 1-3). The opinion concluded the Texas prekindergarten program is part of the public free schools. Section 21.031(a) of the Education Code specifically provides that children enrolled in prekindergarten classes are entitled to the benefits of the Available School Fund. Under article VII, section 5 of the Texas Constitution, the Available School Fund may be used only for the support of the public free schools. Therefore, either the prekindergarten program is part of the public free schools or section 21.031(a) is unconstitutional. Because a statute is presumed constitutional (County of Cameron v. Wilson, 326 S.W.2d 162, 165 (Tex. 1959)) and all reasonable doubts about validity are resolved in favor of the statute (Greene v. Robison, 8 S.W.2d 655, 656 (Tex. 1928)), and nothing in the constitution or statutes suggests the program cannot be part of the public free schools, the phrase "public free schools" must be read to encompass prekindergarten. The first sentence of section 21.031(a) suggests only children from age five to twenty-one are entitled to the fund, but its second sentence explicitly brings prekindergarten children within the group entitled to it ("All other children enrolled in a prekindergarten class under Section 21.136 of this code are entitled to the benefits of the Available School Fund"). The omission of the phrase "public free schools" from section 21.136 is not significant; if a program is eligible for the Available School Fund, it must be part of the public free schools whether or not its enabling statute says so.

Whether prekindergarten is "elementary education." "Elementary education" is not a term of art under Texas law and is not consistently defined in the statutes, but prekindergarten is part of elementary education in significant contexts. Article VIII, sections 1-b(c) and 1-b(d) of the Texas Constitution, dealing with tax exemptions, refer to "ad valorem taxation for general elementary and secondary public school purposes"; school districts may use ad valorem tax revenue to support prekindergarten, the exemptions must apply to those taxes, and because prekindergarten is not a secondary school purpose, it must be part of elementary education for those sections. Likewise, the Texas Administrative Code provisions on elementary school curriculum include prekindergarten (19 TAC § 75.141(g); see also Educ. Code §§ 15.01(c), 20.09; Tax Code § 11.13(m)(2)).

Funding on the same basis (question 4). The state provides funding for prekindergarten children, including federally-connected children, on the same basis as for all other prekindergarten public-school children. Funding flows through the Foundation School Program, and section 16.003(b) of the Education Code states that all prekindergarten children are entitled to its benefits. Under the school-finance scheme then in effect, the program had two tiers: in the first, each district received a per-student allotment for each student in average daily attendance, drawn from the district's share of county education district revenue, the state Available School Fund (distributed by scholastic population, Tex. Const. art. VII, § 5; Educ. Code § 15.01(b)), and a state grant making up the difference (Educ. Code §§ 16.251(b), 16.254(b)); in the second tier, the state guaranteed each district a set amount per weighted student for each penny of tax effort up to a cap, making up any shortfall (Educ. Code §§ 16.302(a), 16.303). In both tiers the state's contribution depended on weighted average daily attendance and district property value, and nothing in Texas law permits the state to distinguish between federally-connected and other children in funding public-school programs. (A footnote noted the school-finance scheme had been held unconstitutional but would remain in effect until June 1993; Carrollton-Farmers Branch Independent School District v. Edgewood Independent School District, 826 S.W.2d 489, 522-23 (Tex. 1992).)

The opinion declined to answer the factual part of the fourth question, whether each LEA's portion was reduced in the 1990 and 1991 fiscal years and at whose expense, because the opinion process does not resolve fact questions. It noted, however, that TEA's General Counsel had reported the state reduced each LEA's allocation proportionally by a statewide percentage proration, about 4.2 percent for 1989-1990 and approximately 2.3 percent for 1990-1991.

Who may attend (question 5). Section 21.136 permits a district to offer prekindergarten to all four-year-old children who wish to attend. Section 21.136(a) provides that any district may offer prekindergarten classes but must offer them if it identifies 15 or more eligible children at least four years old (and may offer them if it identifies 15 or more eligible children at least three years old). Section 21.136(b) defines an eligible child as one at least three years old who is either unable to speak and comprehend English or from a family whose income, under State Board of Education standards, is at or below subsistence level. Although the language was susceptible to two readings, the legislative history (Hearings on H.B. 72 Before the House Committee on Public Education, 68th Leg. (June 14, 1984)) indicates any four-year-old may attend. So districts are permitted to educate all four-year-olds, but are required to offer prekindergarten only to children meeting the section 21.136(b) criteria, and only when the district identifies 15 or more such children.

Common questions

Is Texas prekindergarten part of the public school system?
The opinion concluded yes. Because state law entitles prekindergarten children to the Available School Fund, and the constitution lets that fund support only the public free schools, prekindergarten must be part of the public free schools.

Does it matter that the prekindergarten statute never says "public free schools"?
No. The opinion concluded the omission is not significant; eligibility for the Available School Fund is what makes a program part of the public free schools, regardless of the enabling statute's wording.

Can any four-year-old enroll in a Texas prekindergarten class?
The opinion concluded a district may enroll any four-year-old who wishes to attend. The "eligible children" criteria (limited-English or low-income) set when a district is required to offer the program (15 or more such children), not who may enroll.

Does the state fund prekindergarten children differently if they are connected to a federal installation?
No. The opinion concluded the state funds prekindergarten children, including federally-connected ones, on the same weighted-attendance and property-value basis as all other students, and found nothing in Texas law allowing a distinction.

Citations

• Education Code § 21.136 (prekindergarten program; eligibility and offering requirements); § 21.031(a) (entitlement to the Available School Fund, including prekindergarten children); § 21.131 (kindergartens as part of the public free schools); § 16.003(b) (prekindergarten children entitled to Foundation School Program); §§ 15.01(b), (c), 16.251(b), 16.254(b), 16.302(a), 16.303, 20.09
• Tex. Const. art. VII, § 5 (Available School Fund used only for public free schools); art. VIII, §§ 1-b(c), 1-b(d) (ad valorem taxation for elementary and secondary public school purposes)
• 19 TAC § 75.141(g) (prekindergarten within elementary curriculum); Tax Code § 11.13(m)(2)
• 20 U.S.C. §§ 236, 238, 244(4) (federal impact aid; definition of free public education); 34 C.F.R. § 222.80 (eligibility regulations)
• County of Cameron v. Wilson, 326 S.W.2d 162 (Tex. 1959)
• Greene v. Robison, 8 S.W.2d 655 (Tex. 1928)
• Carrollton-Farmers Branch Independent School District v. Edgewood Independent School District, 826 S.W.2d 489 (Tex. 1992)
• Hearings on H.B. 72 Before the House Committee on Public Education, 68th Leg. (June 14, 1984)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0196
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0196.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; garbled case names were verified against the official reporters. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

January 22, 1993

Mr. Lionel R. Meno
Commissioner
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494

Opinion No. DM-196

Re: Whether the prekindergarten program established by section 21.136 of the Education Code is part of elementary education under Texas Law, and related questions (RQ-436)

Dear Commissioner Meno:

You have asked us to answer several questions posed by the United States Department of Education (the department) regarding the prekindergarten program established by section 21.136 of the Education Code. The department wants answers to these questions so that it can determine whether the school districts in Texas are eligible to receive impact-aid assistance for children enrolled in prekindergarten classes.

The impact-aid statute is designed to give local educational agencies (LEAs) federal financial assistance when federal activities affect the revenue available to the LEAs or the number of children they serve. 20 U.S.C. § 236. Under section three of the statute, an LEA may claim payments for federally-connected children who are receiving "free public education" from the LEA. Id. § 238. The regulations enacted under the statute further provide that, to be eligible for impact aid, an LEA must be responsible under the applicable state or federal law for providing free public education to the children for whom the aid is claimed and must actually be providing the free public education to those children. In addition, the state must provide funds for the education of the children for whom the aid is claimed on the same basis as all other children attending public school in the state. 34 C.F.R. § 222.80. The statute defines free public education as "education which is provided at public expense, under public supervision and direction, and without tuition charge, and which is provided as elementary or secondary school education in the applicable State." 20 U.S.C. § 244(4).

The department's first three questions concern the status of the prekindergarten program under Texas law and are as follows:

1) Is the Texas prekindergarten program considered to be part of elementary education under Texas State law? If so, how and by what authority?
2) Section 21.031 of the Texas [Education] Code indicates that every child who is a citizen of the United States or a legal alien and is over the age of five on the first day of September shall be entitled to the benefits of the Available School Fund for that year. The statute further provides that every child over the age of five is permitted to attend the public free schools of the district in which he resides. In addressing question 1, please address the possible implication of these provisions that education for four year olds is not elementary or free public education under Texas law.
3) Similarly, section 21.131 of the Texas [Education] Code states that each school district in Texas shall establish and maintain as a part of the "public free schools" one or more kindergartens for the training of five year olds. Section 21.136, which authorizes the establishment of a prekindergarten program for four year olds, does not indicate that the prekindergarten program is considered to be a part of the public free schools. In addressing question 1, please address the meaning of this omission.

We conclude that the Texas prekindergarten program is part of the public free schools under Texas law. Section 21.031(a) of the Education Code specifically provides that children enrolled in prekindergarten classes are entitled to the benefits of the available school fund. Under article VII, section 5 of the Texas Constitution, however, the available school fund may be used only for the support of public free schools. Therefore, either the prekindergarten program is a part of the public free schools under Texas law or section 21.031(a) of the Education Code is unconstitutional under the Texas Constitution. We must presume that a statute is constitutional. County of Cameron v. Wilson, 326 S.W.2d 162, 165 (Tex. 1959). Furthermore, all reasonable doubts about the validity of a statute must be resolved in favor of its validity. Greene v. Robison, 8 S.W.2d 655, 656 (Tex. 1928). Because nothing in either the constitution or the statutes of Texas suggest that the prekindergarten program cannot be part of the public free schools, we believe the phrase "public free schools" must be interpreted to encompass the prekindergarten program.

The first sentence of section 21.031(a) suggests that only children between age five and age twenty-one are entitled to the benefits of the available school fund. However, the second sentence of section 21.031(a) explicitly brings prekindergarten children within the group of children entitled to the benefits of the available school fund. This section, in its entirety, reads:

All children who are citizens of the United States or legally admitted aliens and who are five years of age or older and under the age of 21 years on the first day of September of any scholastic year shall be entitled to the benefits of the Available School Fund for that year. All other children enrolled in a prekindergarten class under Section 21.136 of this code are entitled to the benefits of the Available School Fund.

Educ. Code § 21.031(a) (emphasis added). Therefore this section expressly and unequivocally supports the conclusion that the prekindergarten program is part of the public free schools.

Furthermore, we do not believe that the omission of the phrase "public free school" from section 21.136 is significant. If a program is eligible for the benefits of the available school fund, then it must be a part of the public free schools; whether the statute creating the program explicitly refers to it as a part of the public free schools is irrelevant.

You also ask whether the prekindergarten program is "elementary education" under Texas law. "Elementary education" is not a term of art under Texas law and is not given a consistent definition in the Texas statutes. We note, however, that the prekindergarten program is part of elementary education in some significant contexts. For example, article VIII, sections 1-b(c) and 1-b(d) of the Texas Constitution deal with tax exemptions and refer to "ad valorem taxation for general elementary and secondary public school purposes." In this context, "elementary . . . public school purposes" must include prekindergarten. School districts clearly have the authority to use ad valorem tax revenue to support prekindergarten programs, and the tax exemptions must apply to the taxes used to support those programs. Because prekindergarten is not a secondary school purpose, it must be part of elementary education for the purposes of these sections. Similarly, the section of the Texas Administrative Code dealing with elementary school curriculum includes the provisions regarding prekindergarten programs. 19 TAC § 75.141(g); see also Educ. Code §§ 15.01(c), 20.09; Tax Code § 11.13(m)(2).

The fourth question has two parts, which we will address separately. First, the department asks whether the state provides funding for the education of federally-connected prekindergarten children on the same basis as for all other prekindergarten public-school children in the state. We conclude that it does. The state provides funding for local school districts through the Foundation School Program, and section 16.003(b) of the Education Code specifically states that all prekindergarten children are entitled to the benefits of the Foundation School Program. Under the current school-financing scheme, the Foundation School Program has two funding tiers. In the first tier, each school district receives a specific allotment for each student in average daily attendance. This allotment comes from three sources: (1) the school district's share of the revenue collected by the county education district; (2) the state available school funds distributed to the school district; and (3) a grant from the commissioner of education equal to the difference between the district's tier-one entitlement and the amount the district receives from the other two sources. Educ. Code § 16.251(b). The Texas Constitution and the Education Code both require that the available school fund be distributed to the counties according to their scholastic population. Tex. Const. art. VII, § 5; Educ. Code § 15.01(b). Similarly, the amount of the grant from the commissioner of education will depend on the number of students in the school district and the tax base in the county education district. See Educ. Code § 16.254(b). In the second tier, the state guarantees each school district a certain amount of money per weighted student for each penny of tax effort up to 45 cents, regardless of the value of the property in the school district. See Educ. Code §§ 16.302(a), 16.303. If a school district cannot raise the guaranteed amount from its tax base, the state makes up the difference. Thus, in this tier, as in the first tier, the state's contribution to each school district depends on the weighted average daily attendance in the district and the value of the property in the district. We are not aware of anything in Texas law that permits the state to make distinctions between federally-connected children and other children with regards to providing funds for any public-school programs.

[The school-financing scheme described has been held unconstitutional under the Texas Constitution by the Texas Supreme Court; however, it will remain in effect until June 1993. See Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 522-23 (Tex. 1992). Thus far, the Texas Legislature has not adopted a school-finance reform to replace the current scheme.]

The second part of the fourth question asks this office to indicate whether each LEA's portion of the state funding was reduced for the 1990 and 1991 fiscal years and, if so, at whose expense. The opinion process is not designed to respond to questions regarding facts; therefore, we cannot answer this question from our own knowledge. However, we are informed by the General Counsel of the Texas Education Agency that the state did reduce each LEA's allocation proportionally for the 1989-1990 and 1990-1991 school years. The reduction was accomplished by a percentage proration across the state. During the 1989-1990 school year, each school district's allocation was reduced by 4.2 percent. During the 1990-1991 school year, each school district's allocation was reduced by approximately 2.3 percent.

Finally, the department asks: "[O]n what basis do Texas school districts offer prekindergarten classes? For example, are they permitted to educate any four year olds that may wish to attend or is attendance strictly limited to children who are either limited English proficient or from a family whose income is at or below subsistence level." We conclude that section 21.136 of the Education Code permits school districts to offer prekindergarten classes to all four-year-old children who wish to attend. Section 21.136 provides, in pertinent part:

(a) Any school district may offer prekindergarten classes, but a district shall offer prekindergarten classes if the district identifies 15 or more eligible children who are at least four years of age. A school district may offer prekindergarten classes if the district identifies 15 or more eligible children who are at least three years of age.
(b) To be eligible for enrollment in a prekindergarten class a child must be at least three years of age and must be:
(1) unable to speak and comprehend the English language; or
(2) from a family whose income, according to standards set by the State Board of Education, is at or below subsistence level.

Although this language is susceptible to two interpretations, the legislative history indicates that any four year old may attend prekindergarten classes. During the hearings regarding this legislation in the House Committee on Public Education, it was explained that this section permits any school district to provide prekindergarten classes if it so desires and requires school districts to offer prekindergarten classes when they identify 15 or more "eligible children," as that term is defined in section 21.136(b). Hearings on H.B. 72 Before the House Comm. on Public Education, 68th Leg. (June 14, 1984) (tape available from House Committee Coordinator). Thus, school districts are permitted to educate all four year-old children, not just four year-old children who meet the criteria in section 21.136(b). However, districts are required to offer prekindergarten classes only to children who meet the criteria in section 21.136(b) and only when a district identifies 15 or more of these children.

SUMMARY

The prekindergarten program created by section 21.136 of the Education Code must be a part of the "public free schools" under Texas law because prekindergarten students are entitled to the benefits of the available school fund; under article VII, section 5 of the Texas Constitution, the available school fund can be used only for the support of the public free schools.

The state bases the funding it provides to local school districts on the district's weighted average daily attendance and its tax base; we can find nothing in Texas law that permits the state to make distinctions between federally-connected children and other children with regards to funding for the prekindergarten program.

Texas school districts are permitted to enroll any four year old in prekindergarten classes. However, the statute requires the districts to establish a prekindergarten program when they identify 15 or more children who meet the criteria in section 21.136(b) of the Education Code.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Margaret A. Roll
Assistant Attorney General