Untitled Texas Attorney General Opinion ( 1987 )

THE ATTO EY GENERAL
OF EXzW3
September 15. 1987
Honorable Bill Hammond Opinion No.JM-786
Chairman
House Committee on Local h Re: Vslidity of a rider
Consent Calendars regarding high school exit-
P.O. Box 2910 level tests
Austin, Texas 78769
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 cri tqion referenced aSsessnle”t
instruments designed to asses* 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 .4ssess mathematics and English
language arts competencies for pupils at the 12th
grade level. The State Board of Education shall
administer the assessment instruments.
Cc) The secondary exit level assessrm”t
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.
p. 3716
Honorable Bill Hammond - Page 2 (JM-786)
Educ. Code 521.551 (emphasis added). See also Educ. Code 121.553
(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, 51, Central Education Agency-Programs, subset. 16, at 111-7.
See Educ. Code 521.558 (cost of preparing and administering assessment
instruments to be paid from the compensatory aid provided by Educ.
Code 516.1521; 5516.152, 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 (19511. 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 list
Dist.1 1978, writ dism'dl. 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 Ilth-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
p. 3717
.
Honorable Bill Bammond - Page 3 (JM-786j
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, 91,
Central Education Agency-Programs, subset. 16, at
111-7.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
r
JUDGE ZOLLIE STBAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 3718