Could a Texas budget rider bar high school exit tests from covering material students had not reasonably been taught?

Texas AG Opinion JM-786: Appropriations Rider for High School Exit Tests

Plain-English summary

The 1987 appropriations act barred state funds from being used to develop or administer an exit-level assessment that tested objectives eleventh graders could not reasonably have been taught in previous courses. A legislator asked whether that rider conflicted with Education Code section 21.551.

The Attorney General concluded that it did not. Section 21.551 directed the Central Education Agency to adopt exit-level assessments in mathematics and English language arts and required the tests to be administered in eleventh grade.

Although the statute did not expressly say the exam could cover only previously taught material, the opinion treated that limit as implicit. An administrative agency had to exercise delegated authority reasonably, and it would have been unreasonable to test eleventh graders on material they were not likely to have covered.

An appropriations rider could not conflict with a general statute, but it could declare what existing law already required. Because this rider restated the statute's implied limit, the opinion concluded that it was valid.

Currency note

This opinion was issued in 1987. 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.

Common questions

What did the rider prohibit?

It prohibited state funds from being used for an exit-level assessment that tested objectives eleventh graders could not reasonably have been expected to encounter in prior courses.

Why did the opinion treat that restriction as part of existing law?

The Education Code required the exit test to be given in eleventh grade, and the opinion concluded that testing untaught material would have been an unreasonable exercise of the agency's delegated authority.

Can an appropriations rider change a general statute?

No. The opinion repeated the rule that a rider conflicting with a general statute was invalid.

Can a rider restate a requirement already implicit in a statute?

Yes. JM-786 concluded that a rider merely declaratory of existing law was not invalid.

Did the rider eliminate the exit test?

No. It restricted the content that state-funded development and administration of the test could cover.

Background and statutory framework

Education Code section 21.551 directed the Central Education Agency to adopt criterion-referenced assessments for several grade levels and secondary exit-level assessments in mathematics and English language arts. The exit assessment had to be administered in eleventh grade, with additional opportunities to retake sections before graduation.

The General Appropriations Act rider stated that appropriated funds could not be used for an exit-level assessment covering objectives that eleventh graders would not reasonably have been expected to receive instruction in during previous courses.

The opinion distinguished between a rider that conflicted with a general statute and one that merely declared existing law. It relied on the principle that the legislature could delegate implementation authority to an agency but the agency had to act reasonably. From that principle and the test's required eleventh-grade administration, the Attorney General inferred that section 21.551 already limited the assessment to material students could reasonably have covered.

Citations and references

Statutes and appropriations act:

• Education Code sections 21.551, 21.553, and 21.558
• Education Code sections 16.1521, 16.152, and 16.251
• General Appropriations Act, Acts 1987, 70th Legislature, Second Called Session, chapter 78, article III, section 1, Central Education Agency-Programs, subsection 16, at III-7

Cases:

• State ex rel. Grimes County Taxpayers Association v. Texas Municipal Power Agency, 565 S.W.2d 258, 273 (Tex. Civ. App. - Houston [1st Dist.] 1978, writ dism'd)
• Allstate Insurance Co. v. State Board of Insurance, 401 S.W.2d 131, 132 (Tex. Civ. App. - Austin 1966, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-786
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0786.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

September 15, 1987

Honorable Bill Hammond
Chairman
House Committee on Local & Consent Calendars
P.O. Box 2910
Austin, Texas 78769

Opinion No. JM-786

Re: Validity of a rider regarding high school exit-level tests

Dear Mr. Hammond:

You ask whether a rider to the 1987 appropriations bill conflicts with the following statute:

(a) The Central Education Agency shall adopt appropriate criterion referenced assessment instruments designed to assess minimum basic skills competencies in reading, writing, and mathematics for all pupils at the first, third, fifth, seventh, and ninth grade levels and in mathematics and English language arts for all pupils at the 12th grade level.

(b) The Central Education Agency shall also adopt secondary exit level assessment instruments designed to assess mathematics and English language arts competencies for pupils at the 12th grade level. The State Board of Education shall administer the assessment instruments.

(c) The secondary exit level assessment instrument must be administered to all pupils at the 11th grade level. Each pupil who did not perform satisfactorily on all sections when tested at the 11th grade level shall be given opportunities during the 11th and 12th grade levels to retake the sections of the assessment instrument on which the pupil did not perform satisfactorily, including the opportunity to retake those sections during the final month of the school term in which the pupil is enrolled at the 12th grade level.

Educ. Code §21.551 (emphasis added). See also Educ. Code §21.553 (pupil may not receive high school diploma until he has performed satisfactorily on all sections of the secondary exit level assessment instrument).

The rider you ask about provides:

Exit-Level Tests. State funds appropriated under this Act shall not be used in the development and administration of an exit-level assessment instrument under Sections 21.551, et seq., Texas Education Code, which tests objectives in which eleventh graders would not have reasonably been expected to receive instructions in previous courses.

General Appropriations Act, Acts 1987, 70th Leg., 2d C.S., ch. 78, art. III, §1, Central Education Agency-Programs, subsec. 16, at III-7. See Educ. Code §21.558 (cost of preparing and administering assessment instruments to be paid from the compensatory aid provided by Educ. Code §16.1521; §§16.152, 16.251 (financing of compensatory aid)). A rider to an appropriations bill is invalid if its provisions conflict with the provisions of a general statute. Attorney General Opinion V-1254 (1951). A rider is not invalid, however, if it is merely declaratory of existing law. Attorney General Opinion MW-389 (1981). You suggest that the rider set out above is invalid because it conflicts with section 21.551 of the Education Code.

The legislature delegated to the Central Education Agency the task of adopting exit-level assessment instruments to assure that high school graduates have at least basic skills in math and English. The legislature may delegate authority to carry out a legislative purpose, State ex rel. Grimes County Taxpayers Association v. Texas Municipal Power Agency, 565 S.W.2d 258, 273 (Tex. Civ. App. - Houston [1st Dist.] 1978, writ dism'd). In carrying out delegated authority, however, an administrative agency must act reasonably. See Allstate Insurance Co. v. State Board of Insurance, 401 S.W.2d 131, 132 (Tex. Civ. App. - Austin 1966, writ ref'd n.r.e.).

The legislature directed that exit-level assessment instruments be administered to all pupils in the 11th grade. We think it would be unreasonable, as a matter of law, for a competency test administered to 11th graders to test material that 11th graders are not likely to have covered. Therefore, we think it is implicit in section 21.551 that the material tested be material that an 11th-grader could reasonably be expected to have covered. The rider you ask about simply states that the exit-level examination should not cover subjects in which "eleventh graders would not have reasonably been expected to receive instructions in previous courses." That rider is simply declaratory of what we think is implicit in section 21.551 of the Education Code. Therefore, we conclude that the rider is not invalid.

SUMMARY

A rider concerning exit-level examinations for high school students is merely declaratory of existing law and is therefore not invalid. Acts 1987, 70th Leg., 2d C.S., ch. 78, art. III, §1, Central Education Agency-Programs, subsec. 16, at III-7.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General