If a Texas school district hires a private company to run its classes, does it still have to follow state school rules?

Plain-English summary

In 1993, as part of the big Senate Bill 7 education reform, Texas added section 23.34 to the Education Code, letting the board of trustees of an independent school district contract with a public or private entity to provide educational services for the district. A House committee chair asked the Attorney General what that meant for the long list of rules the Education Code puts on school districts: the minimum days of instruction and staff-development hours needed to draw foundation school funds (section 16.052), the cap of 22 students in early-grade classes (section 16.054(b)), the teacher's 30-minute duty-free lunch (section 13.909), the no-pass-no-play extracurricular suspension (section 21.920(b)), campus report cards (section 35.043(a)), annual student assessments in grades three through eight (section 35.023(a)), and the counselor requirement for larger elementary schools (section 21.793(a)). Did contracting the work out to another entity let those rules slide?

The office answered no. Those statutes apply to school districts, and section 23.34 does not change that. The district does not disappear when it contracts out, and students receiving the contracted services are still enrolled in the district, so the district still has to make sure the services meet every mandate that applies to it and that students still get the benefit of those mandates. Nothing in the words of section 23.34 hints at a free pass.

The legislative history pointed the same way. In the very same Senate Bill 7, the legislature built the routes a district uses to get out from under a requirement: section 11.273 (waivers for rules a campus or district decides are holding back student achievement, of limited duration and with a list of things that cannot be waived, like class-size limits and graduation requirements, and an absolute bar on waiving educational-employee rights and benefits), section 11.27 (waivers for innovative programs), and section 35.102 (an exemption for districts rated exemplary, again with a list of non-waivable items). Those provisions read as the exclusive ways a district may shed a statutory requirement. If the legislature had wanted section 23.34 to be another escape hatch, it would have said so. And a district that contracts out can still apply for a waiver under sections 11.27, 11.273, or 35.102, just like any other district.

Currency note

This opinion was issued in 1995. 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 Education Code was comprehensively recodified in 1995, shortly after this opinion, so the specific section numbers it relies on (the section 16, 21, 23, and 35 provisions, and the waiver provisions in sections 11.27, 11.273, and 35.102) were renumbered and in many cases substantively revised. Read this page for how the office analyzed the contracting question under the pre-recodification Education Code, and check the current Education Code for the corresponding instructional-time, class-size, waiver, and accountability provisions before relying on any section number here.

What the opinion meant for those who asked

For the requesting committee: The opinion answered that section 23.34 did not relieve a contracting district of the Education Code requirements applicable to districts; the district remained on the hook to ensure compliance.

For school districts: Under the opinion, a district that contracted with an outside entity for educational services still had to ensure students received the required instructional days, class-size limits, and the other listed mandates, and could obtain relief only through the existing waiver and exemption routes (sections 11.27, 11.273, 35.102).

For private or public entities providing the services: The opinion treated the statutory mandates as obligations of the district rather than of the contractor, but because the district had to ensure the contracted services met those mandates, the requirements effectively shaped what such a contract had to deliver.

Common questions

Could a Texas district avoid education rules by outsourcing the teaching?
No. The opinion said section 23.34 let a district contract for educational services but did not relieve the district of the statutory requirements that apply to school districts.

What kinds of rules were at issue?
Things like the minimum 180 days of instruction and staff-development hours tied to foundation school funds (section 16.052), the 22-student early-grade class-size cap (section 16.054(b)), the teacher duty-free lunch (section 13.909), no-pass-no-play (section 21.920(b)), report cards and student assessments, and the elementary counselor requirement.

Was there any way for a contracting district to get relief from a requirement?
Yes, the same way as any district: by applying for a waiver under section 11.27 or section 11.273, or qualifying for the exemplary-district exemption in section 35.102, each with its own list of items that cannot be waived.

Why did the legislative history matter to the answer?
Because Senate Bill 7 created the waiver and exemption provisions at the same time it added section 23.34, the office read those provisions as the exclusive escape routes; had the legislature meant section 23.34 to be another, it would have said so.

Background and statutory framework

Section 23.34 of the Education Code provided: "The board of trustees of an independent school district may contract with a public or private entity for that entity to provide educational services for the district." It was enacted in 1993 as part of Senate Bill 7 (Act of May 28, 1993, 73d Leg., ch. 347, § 4.02, 1993 Tex. Sess. Law Serv. 1481, 1524), added as a floor amendment on second reading in the house.

The requirements the request listed all spoke to school districts: section 16.052 (instructional days, teacher-preparation days, and staff-development hours as conditions of foundation school funding), section 16.054(b) (early-grade class-size cap), section 13.909 (teacher duty-free lunch), section 21.920(b) (extracurricular suspension for a failing grade), section 35.043(a) (campus report cards), section 35.023(a) (annual assessment of pupils in grades three through eight), and section 21.793(a) (counselor for districts with 500 or more elementary students). The office read these as district obligations that section 23.34 left intact.

On the waiver structure, Senate Bill 7 also addressed section 11.273 (limited-duration waivers for requirements a campus or district found to inhibit student achievement, subject to a list of non-waivable laws under section 11.273(e) and (h), including the absolute bar on waiving educational-employee rights and benefits), amended section 11.27 (waivers for innovative programs), and enacted section 35.102 (exemption for exemplary-rated districts, with its own non-waivable list in section 35.102(b)). Treating these as the exclusive exemption routes, the office concluded section 23.34 was not an additional way to bypass compliance. A footnote also addressed the teacher-contract provisions the request mentioned (sections 13.101 through 13.117 and section 23.28), noting no exemption exists from statutes on educational-employee rights and benefits, and that section 13.914 (special employment of a business's employee as a classroom teacher) did not alter the district-teacher relationship.

Citations

Statutory provisions discussed:

• Education Code § 23.34 (district contract for educational services)
• Education Code § 16.052 (instructional/preparation days; staff development); § 16.054(b) (early-grade class-size cap)
• Education Code § 13.909 (teacher duty-free lunch); § 21.920(b) (extracurricular suspension); § 21.793(a) (counselor requirement)
• Education Code § 35.043(a) (campus report cards); § 35.023(a) (student assessments)
• Education Code § 11.27 (innovative-program waivers); § 11.273 (achievement waivers; non-waivable list); § 35.102 (exemplary-district exemption)
• Education Code §§ 13.101 through 13.117, § 23.28 (teacher contracts); § 13.914 (special employment as classroom teacher)

Other authority:

• Act of May 28, 1993, 73d Leg., ch. 347, § 4.02, 1993 Tex. Sess. Law Serv. 1481, 1524 (Senate Bill 7)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0335
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0335.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 21, 1995

Honorable Warren Chisum
Chair
Committee on Environmental Regulation
Texas House of Representatives
P.O. Box 2061
Pampa, Texas 79066-2061

Opinion No. DM-335

Re: Whether an entity that contracts with an independent school district to provide educational services to the district under section 23.34 of the Education Code must comply with various statutory requirements imposed on school districts (RQ-722)

Dear Representative Chisum:

You ask whether an entity that contracts with an independent school district to provide educational services to the district under section 23.34 of the Education Code must comply with various statutory requirements imposed on school districts. You ask about the following sections of the Education Code:

• Section 16.052, requiring that, in order to receive financial support from the foundation school fund, a "school district must provide for not less than 180 days of instruction for students and not less than three days of preparation for teachers for each school year" and "must provide for not less than 20 hours of staff development training," except when the commissioner of education approves otherwise";

• Section 16.054(b), requiring that, in order to receive financial support from the foundation school fund, a "school district may not enroll more than 22 students in a kindergarten, first, second, third, or fourth grade class";

• Section 13.909, requiring that "each teacher actively engaged in the instruction and supervision of students in public schools is entitled to at least a 30-minute lunch period free from all duties and responsibilities connected with the instruction and supervision of students";

• Section 21.920(b), requiring that "[a] student enrolled in a school district in this state shall be suspended from participation in any extracurricular activity sponsored or sanctioned by the school district during the grade reporting period after a grade reporting period in which the student received a grade lower than the equivalent of 70 on a scale of 100 in any academic class";

• Section 35.043(a), requiring that "[e]ach school year, the Central Education Agency shall prepare and distribute to each school district a report card for each campus";

• Section 35.023(a), requiring that "nonexempt pupils in grades three through eight" shall be assessed annually in mathematics and reading and periodically in other subjects; and

• Section 21.793(a), requiring that "[a] school district with 500 or more students enrolled in elementary school grades shall employ a counselor."[1]

Section 23.34 of the Education Code provides as follows: "The board of trustees of an independent school district may contract with a public or private entity for that entity to provide educational services for the district." It was enacted by the legislature in 1993 as part of Senate Bill 7, a lengthy education reform measure. See Act of May 28, 1993, 73d Leg., ch. 347, § 4.02, 1993 Tex. Sess. Law Serv. 1481, 1524. It was added to Senate Bill 7 as a floor amendment on second reading of the bill in the house.[2]

Obviously, the foregoing statutory provisions apply to school districts, not to other entities. This is not dispositive of your inquiry, however. Section 23.34 does not relieve school districts that contract with other entities to provide educational services from complying with any of the foregoing requirements. Thus, for example, a school district that receives foundation school funds and contracts with another entity to provide educational services must still ensure that students enrolled in the school district receive not less than 180 days of instruction and that class sizes are limited, in compliance with sections 16.052 and 16.054(b). In other words, school districts must ensure compliance with statutory requirements when contracting with other entities under section 23.34. We believe this is the case for the following reasons.

All of the foregoing statutes expressly apply to school districts. Section 23.34 does not abolish school districts. Thus, a school district will continue to exist even if it contracts with another entity to provide educational services. Furthermore, students receiving those services will continue to be students enrolled in the school district. The language of section 23.34 in no way suggests that a school district that contracts with another entity to provide educational services need not ensure that those services comply with all statutory mandates applicable to school districts, or that the students who receive such services are not to receive the benefit of those mandates.

The legislative history of section 23.34 supports this conclusion. In enacting Senate Bill 7, which included section 23.34, the legislature also amended section 11.273 of the Education Code. That provision authorizes a school district to apply to the commissioner of education for a waiver of a requirement or prohibition imposed by law "that the campus or district determines inhibits student achievement." Such a waiver must be of limited duration. Educ. Code § 11.273(c), (d). With certain exceptions, waivers will not be granted for laws relating to curriculum essential elements, restrictions on extracurricular activities, health and safety, competitive bidding, elementary school class size limits, minimum graduation requirements, removal of a disruptive student from the classroom, suspension or expulsion of a student, at risk programs, prekindergarten programs, and special and bilingual education programs. Educ. Code § 11.273(e)(1) - (10), (12), (h). In no case may an exception be made for a state law relating to "educational employee and educational support employee rights and benefits." Educ. Code § 11.273(e)(11), (h); see also supra note 1.

In enacting Senate Bill 7, the legislature also amended section 11.27 of the Education Code, which permits school districts to obtain waivers for innovative programs, and enacted section 35.102 of the Education Code, which provides that a school district "that is rated as exemplary is exempt from requirements and prohibitions imposed under this code." Section 35.102 contains a list of certain requirements that may not be waived that is similar to the list in section 11.273. Compare Educ. Code § 11.273(e) with id. § 35.102(b).

The legislature amended sections 11.27 and 11.273 and enacted section 35.102 in the same legislation in which it enacted section 23.34. Sections 11.27, 11.273, and 35.102 appear intended to be the exclusive means by which school districts may obtain exemptions from statutory requirements, except as specifically noted. We believe that if the legislature had intended for section 23.34 to provide a mechanism for school districts to bypass compliance with statutory requirements by contracting with other entities, it would have done so expressly in Senate Bill 7 to make it clear that sections 11.27, 11.273, and 35.102 are not the exclusive means by which school districts can avoid statutory requirements.

Finally, we note that at least one brief submitted to this office argues that it would defeat the purpose of section 23.34 for us to conclude that school districts must ensure compliance with the statutory requirements when contracting with other entities. In this regard, we note that a school district that contracts with an entity to provide educational services may apply for a waiver under section 11.27, section 11.273, or section 35.102, just like any other school district.

SUMMARY

Section 23.34 of the Education Code, which permits school districts to contract with public or private entities to provide educational services, does not relieve school districts that enter into such contracts from complying with statutory requirements applicable to school districts. School districts must ensure compliance with statutory requirements when contracting with other entities under section 23.34.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

[1] You also ask about sections 13.101 through 13.117 of the Education Code, which authorize school districts to offer teachers probationary or continuing contracts. We note that section 23.28 of the Education Code authorizes school districts to offer teachers term contracts. Given that sections 13.101 through 13.117 are not mandatory in the same sense as the other sections which you have asked us about, we cannot say why you have included these provisions in your query and do not address them. We do note, however, that we are aware of no provision providing school districts an exemption from state statutes regarding educational employee rights and benefits. See Educ. Code § 11.273(e), (h); see also infra p. 3. Section 13.914 of the Education Code authorizes a school district to enter into an agreement with a business to accept an employee of the business for special employment as a classroom teacher subject to certain conditions, but does not in any way affect the contractual relationship between school districts and their teachers.

[2] We are not aware of any specific testimony or bill analyses which would shed light on the legislative intent with respect to section 23.34.