18_06 Withdrawal of and Proposed New 19 TAC §61.1034

Commissioner's Rules

Withdrawal of and Proposed Amendment to 19 TAC Chapter 61, School Districts, Subchapter CC, Commissioner's Rules Concerning School Facilities, §61.1034, New Instructional Facility Allotment

Attachments:
I. Statutory Citation (PDF)
II. Text of Proposed Amendment to 19 TAC Chapter 61, School Districts, Subchapter CC, Commissioner's Rules Concerning School Facilities, §61.1034, New Instructional Facility Allotment (PDF)

SUMMARY: The rule action presented in this item was filed as proposed with the Texas Register under the commissioner's rulemaking authority. This item proposes an amendment to 19 TAC Chapter 61, School Districts, Subchapter CC, Commissioner's Rules Concerning School Facilities, §61.1034, New Instructional Facility Allotment, replacing an earlier proposal that will be withdrawn. The proposed amendment would modify the rule to reflect changes made by House Bill (HB) 1081, 85th Texas Legislature, Regular Session, 2017, and amend eligibility criteria and language related to the calculation of reductions to the allotment.

STATUTORY AUTHORITY: Texas Education Code (TEC), §42.158, as amended by HB 1081, 85th Texas Legislature, Regular Session, 2017.

TEC, §42.158, as amended by HB 1081, 85th Texas Legislature, Regular Session, 2017, authorizes the commissioner of education to adopt rules as necessary to implement the new instructional facility allotment.

EARLIEST POSSIBLE DATE OF ADOPTION: July 16, 2018.

PROPOSED EFFECTIVE DATE: September 9, 2018.

BACKGROUND INFORMATION AND JUSTIFICATION: The TEC, §42.158, allows the commissioner by rule to establish procedures and adopt guidelines for the administration of the new instructional facility allotment (NIFA). Through 19 TAC §61.1034, last amended to be effective January 2, 2012, the commissioner exercised rulemaking authority to establish definitions, explain eligibility criteria and the application process, and describe costs and payments related to the allotment.

HB 1081, 85th Texas Legislature, Regular Session, 2017, amended the TEC, §42.158, to increase the allotment per student from $250 to $1,000 for each student in average daily attendance for the first school year students attend a new instructional facility and from $250 to $1,000 for each additional student in average daily attendance for the second year students attend a new instructional facility. The bill also added a definition of a new instructional facility to include a newly constructed instructional facility, a repurposed instructional facility, and a leased facility operating for the first time as an instructional facility with a minimum lease term of not less than 10 years.

The proposed amendment to 19 TAC §61.1034 would add new subsection (a) for definitions, including the term new instructional facility as defined by HB 1081 and the term instructional facility as defined by TEC, §42.158. Language in current subsection (a)(2), relettered as subsection (b)(2), would be incorporated into the new definition for instructional campus.

Under current subsections (a) and (b), relettered as subsections (b) and (c), the amendment would further implement HB 1081 by expanding the eligibility criteria to include repurposed and leased buildings, removing language that prohibits leased facilities from being eligible for the NIFA, and updating the application process to include references to repurposed and leased buildings in the description of the photograph needed and the legal documents required for the initial application.

The requirements for a facility for which NIFA funds are requested would be amended in current subsection (a)(2), relettered as subsection (b)(2). Changes would be made to the language in current subsection (a)(2)(B) for clarity.

Current subsection (d)(2), relettered as subsection (e)(2), would be updated to remove current language related to proration and explain that reductions to allotments will be made by applying the same percentage of adjustment to each school district and open-enrollment charter school in accordance with the TEC, §42.253.

HB 3593, 85th Texas Legislature, Regular Session, 2017, amended the TEC, §42.158, to add language to specify that a school district entitled to an allotment may use funds from the district's allotment to renovate an existing instructional facility to serve as a dedicated cybersecurity computer laboratory. The TEA has determined that no changes to §61.1034 are necessary as a result of the bill.

The proposed amendment to 19 TAC §61.1034 replaces the version published as proposed in the February 23, 2018 issue of the Texas Register. The earlier proposal will be withdrawn.

FISCAL IMPACT: The TEA has determined that there are no additional costs to the state or persons required to comply with the proposed amendment.

The proposed amendment could have positive fiscal implications for school districts and open-enrollment charter schools that choose to apply for the allotment. The statutory increase in the allotment from $250 per student in average daily attendance to $1,000 per student in average daily attendance could increase the amount to which a school district is entitled. However, the total appropriation was not increased. It remains at $23,750,000 for each year of the biennium, and awards will likely be prorated.

There is no direct adverse economic impact for small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility analysis specified in Texas Government Code, §2006.002, is required. There is no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022. The proposed amendment 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.

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 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 create a new regulation; would not expand, limit, or repeal 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 AND STUDENT BENEFIT: The proposed amendment would implement legislative changes to the NIFA program, which helps school districts accommodate growth by providing funding to build new instructional facilities.

PROCEDURAL AND REPORTING IMPLICATIONS: The proposed amendment would have no new procedural and reporting requirements. The current rule requires a school district or charter school that wishes to receive an allotment to complete and submit an application requesting funding and provide certain documentation electronically. Since the proposed amendment would include repurposed or leased facilities, initial applications would be required to include documentation specific to those types of facilities.

LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: Any locally maintained paperwork requirements resulting from the proposed amendment would correspond with and support the stated procedural and reporting implications.

PUBLIC COMMENTS: The public comment period on the proposal begins June 15, 2018, and ends July 16, 2018.

ALTERNATIVES: None.

OTHER COMMENTS AND RELATED ISSUES: 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 June 15, 2018.

Staff Members Responsible:
Leo Lopez, Associate Commissioner, School Finance/Chief School Finance Officer
Al McKenzie, Director, State Funding