Untitled Texas Attorney General Opinion ( 1975 )

February 6, 1975
The Honorable M. L. Brockette Opinion No. H- 518
Commissioner of Education
Texas Education Agency Re: Interpretations of Section
210 East Eleventh Street 16.16 of the Education Code
Austin, Texas 78701 with reference to comprehenrive
special education.
Dear Dr. Brockette:
You have requested an opinion from this office concerning the
provisions of section 16.16 of the Texas Education Code, which authorizes
a comprehensive special education program for exceptional children in
Texas. Speci~fically, your request raises three issues:
(1) Between what ages are children who are
“mentally retarded” or both “mentally retarded”
and “physically handicapped” eligible t.o partici-
pat:c in special education programs under section
16.16?
(2) Is the legislative intent of section 16.16
to impose a mandatory duty upon each Texas school
district to furnish directly or indirectly special
education programs to “exceptional children” residing
in the district who are either “mentally ret.arded” or
both “physically handicapped” and “mentally reta,rded”?
(3) If so, does sect:ion 16.16 authorize the State
Board of Educatjon, acting through the Commissioner of
Education and his staff, to permit all Texas school
districts to operate or provide “Plan B” programs and
servi~ccs unt,il the beginning of the 1976-77 school
year. and to require all dist,ricts to operate or pro-
vide “Plan A” programs and services thereafter?
p. 2334
. .
The Honorable M. L. Brockctte page 2 (H-518)
1. AGE LIMITATIONS FOR “MENTALLY RETARDED” AND
"PHYSICALLY HANDICA~ED/ME~TALL~ RETARDED" CHILDREN.
Subsection (b) (1) of section 16.16 defines “exceptional children”
as:
. . . children brtwecn the ages of 3 and 21,
inclusi,ve, wi.t.h rducational handicaps (physical,
retarded, emotionaUy disturbed, and/or children
width language and/or learni.ng disabilities) as
hereinafter more specifically defi,ned; autistic
children; and children leaving and not attending
public schools for a time because of pregnancy --
which disabilities render regular services and classes
of the public schools inconsistent with their educational
nrods.
“Physically handicapped children” and “mentally retarded children”
arc more specifically clefi,ncd in subdivision (b)(2) and (b)(3) of section 16.16.
Since “physically handicapped” children and “mentally retarded and/or
physically handicapped” children are within the definition of “exceptional
<.hildr<,n. ” su,.h rat-c- such programs. The statute itself does not expressly
respond to this qu,:st;on. In our opinix, however, the statute should
be construed as mandatory.
Socr:;on ii). 01 of thck Education Code outlines the purpose of the
Foundrltion School Program of whi,ch the section 16.16 special education
program is a part.
pe 2335
The Honorable M. L. Brockette, page 3 (H-518)
The purpose of the Foundation School Program
is to guarantee to each child of school age in Texas
the availability of a Minimum Foundation School
Program for nine full months of the year and to
establish the eligibility requirements for the public
school districts of Texas in connection therewith.
The language of the statute is clear: its purpose is to guarantee each school
age child in Texas the availability of a Minimum Foundation School Program.
Therefore, under the statute “excepti,onal” children should be guaranteed
the same opportunity for education as any other school age child in Texas.,
To allow local school districts receiving Foundation School funding to operate
educati.on programs only at their option would not be making available Minimum
Foundation School Programs to the child.
Section 16. 16 of the Education Code also contains an indication of legis-
lative inten?. Subdivision (a) of that section provides:
It is the i,ntention of this section to provide
for a comprehensive special education program
for exceptional children in Texas.
Webster’s Third New International Dictionary (unabridged Ed. 1966).
defines the adjective “comprehensive” as:
. . cwvc ring a matter
. und+ r conside ration
completely or nearly completely: accounting for
or comprehending all or virtual~ly all pertinent
considerations ma . .
In our opinion, the inter.t of section 16. 16 is to provide a “comprehensive”
special education program - comprehensive in that it is available to all
eligible children. Legislators involved in the drafting and passage of section
16. I6 have c``.firmed that it was intended that the statute provide special
education programs t-o every e1,igibl.e child in Texas. The statute itself is
designed to facilitate implementation of a mandatory comprehensive program
with a maximum of flexibility allowed to provide for the needs of smaller
school districts. Selztion 16. lb(g) contemplates cooperative operation of a
program by two or more school dislricts when they are unable to efficiently
operate programs indivitilally:
p. 2336
The Honorable M. L. Brockette, page 4 (~-518)
(g) Special education unit personnel may be
employed and/or utilized on a full-time, part-
time, or upon a consultative basis, or may be
allotted by the commissioner of education, pur-
suant to cooperative districts’ agreement, jointly
to serve two or more school districts. Two or
more school district,s may operate jointly their
special education program and any school district
may contmct where feasible with any other school
district for al.1 or any part of the program of
special educat;.on for the children of either district.
under rules and regulations establi,shed by the com-
missioner of education.
Section 16. lb(m) allows school districts to contract with public or private
agencies approocd by !~Ile State Board of Education to provide the neces-
sary sper.ial education services:
(WI) IJndrr rules and regulations of the State
Board cf Education, eligible school districts may
crntract with ncnprofit community mental health
and/or mental retardation centers, public or
pi+.,-ate, or any other nonprofit organization,
l~nstimtion, or agency approved by the State
H412 S. W. 2d 287 (Tex. Civ. App.
--Amarillo 1967, no writ) and Alvin Independent School District v. Cooper,
JO4 S. W. 2d 76 (Tes. Civ. App. --Houston 1.966, no writ). These cases
hold invalid local school rules barring married students from attendance.
Section 16.16, which is an integral part of the Minimum Foundation Pro-
grsm, [s,.c,
- subdi!.-isions (I.) and (o)], simil.arly prescribes a program of
specialized educational assistance for a designated class of persons.
Ir. our opinion a school. district should likewise be precluded from electing
nof to provide it.s be.1iefi.t s to members of the el.igible class residing in
tht district.
We are aware that the case of Love v. City of Dallas? 40 S. W. 2d 20(Tcx. Sup. 19.31) could br c,onsI:rued to support a contrary conclusion.
However, it is our view that such a construction is unlikely, and even if
that construction were adoptt.d, the case would be distinguished from this
situation on several different grounds.
3. --VALIDITY OF-----__--
TEA REGULATIONS
Your thi~rd quesi:ion asks if section 16.1,6 imposes a mandatory duty
upon all school districts to provi,de a comprehensive program of special
p. 2338
The Honorable M. L. Brockette page 6 (H-518)
education, do the State Board of Education and the Commissioner of
Education have the regulatory authority to defer the mandatory require-
ment for comprehensive programs until the beginning of the 1976-77
school year?
The policies of the State Board of Education, administrative
procedures of the Commissioner of Education, and operational guide-
lines of the TEA Divi,si,on of Special Education are set out in TEA
Bulletin 711, Administtrative Guide and Handbook for Special Education
(March 1973). The policies and regulations in question concern the
implementation of a comprehensive special education program.
3.1 Comprehensive Special Education For
Exceptional Children (Plan A)
All accredited local school districts operating
approved special education programs for exceptional
children under the Foundation School Program shall
provide comprehensive special education programs
and services for handicapped pupils between the ages
of 3 and 21 years, inclusive, by the school year start-
ing Scpt:cmbcr 1, 1?76. [TEA Bulletin 711 at 391.
3. 2 Pro~m Based on Identified Handicapped
Pupi,ls (I-‘
--.--lan B)--
Until such time as such local school districts
can develop a comprehensive special education pro-
gram and bc approved for suc,h a program or unti,l
Sept~ember 1, 1976, any accredited school district
may make application for allocation for special
education programs based on identifi,ed handicapped
pupils botwcrn thr ages of 3 and 21, inclusive, by
disability categories (Plan B). [TEA Bulletin 711
at 441.
p. 2339
The Honorable M. L. Brockette page 7 (H-518)
2.17 Implementation of Comprehensive Programs
for Exceptional Children
‘Comprehensive Programs for Exceptional Children’
(Plan A) shall be available on a state wide basis by
September 1, 1976. A selected number of school
districts each year will be approved to develop “Com-
prehensive Programs for Exceptional Children’ (Plan A).
Other school districts shall be approved to operate
special education programs based on ‘Allocations Based
on Identified Handicapped Pupils’ (Plan B) until September
1, 1976. [TEA Bulletin 711 at 381.
Apart from programatic differences, there appear to be two basic
procedural differences between “Plan A” and “Plan B. ” First, Plan A
is mandatory for all districts after September 1, 1976, while Plan B is
available for those districts desiring to implement it until September 1,
1976. Second, the formula for allocatinginstructional units under Plan
A is based on a distri~ct’s total average daily attendance (ADA) for
pupils from 6 through 21 years of age for the preceding school year, while
the Plan B formula is based on the actual number of handicapped pupils
identified by type of di,sability for whom the school district plans to
provide special education services. See
- TEA Bulletin 711 at 39, 44.
Under section 16.16, the State Board of Education is empowered
to adopt rules, regulations and formulae for the allotment of “exceptional
children teacher units, in addit,i.on to other professional and paraprofessional
unit allotments” [subdivision (c)] , for the establishment of quantitative
bases for the allotment of “all special education unit personnel” [sub-
division (f)] , and for the contracts under which “eligible school districts”
may arrange for special services from public or private non-profit
organizations, inst:itutions, or agencies [subdivision (m)] . The Commis-
sioner of Education may make rules establi,shing the qualifications and
mi,nimum salary levels of paraprofessi~onal personnel [subdivision (e) 1,
prescribe the terms and conditions under which two or more school
districts may ope’ratc joint programs [subdivision (g) 1, determine
amounts of “special service allowances” [.subdivision (h) ] and approve
p* 2340
. .
The llonorabl~c: M. I,. 1srockett.e. page 8 (H-518)
9. 10, 11, or 12 month special education programs and prescribe qualifica-
tions for special education teachers, counselors and supervisors [sub-
divisions (j) and (k)].
It is a well settled rule of statutory construction, stated in Terre11
V. Sparks, 135 S. W. 519. 521 (Tex.Sup. 1911), that:
Whenever a power is given by statute, every-
t.hing necessary Taomake it effectual or requisite
to attain the end is implied. It is a well-established
principle that statutes containing grants of power
are to be construed so as to include the authority to
do all things necessary to accomplish the object of
the grant. The grant of an express power carries
with it by necessary implication every other power
necessary and proper to the execution of the power
expressly grant:nd. Where the law commands any-
thing to be done, it aut.horizes the performance of
whatever may be nc-cessary for executing its com-
ma, nds . (Citing Sutherland on Statutory Construction,
5 341).
Seem
--- .t!.so Attornr? Gzncral Opi,nio~ C-265 (1964).
In ou: opi~r.ion, lhc- alithority granted the State Board of Education
and the Commissiont?r of Educal:ion by section 16.16 to adopt rules
and regulations outlined abuve includes the power to prescribe a
rcascna’b!,e periodof time for districts to achieve compliance with the
mandatr of section l-6.16 to provide comprehensive special education
programs. That the Legislature intended the program Taobe phased
in over ir period of time. is evidenced by the method by which the program
was 10 1.x in.~!ially I\lllded. Ral.anccs rcmsining in the Foundation School
Fund were to be apprcpriated at the end of each fiscal year of the initial
birrnnium ti, pay for the ape&l1 education program. Acts 1969, 6lst Leg.,
ch. 863, p. 2bO2 at 2CO5. Ilowevcr, since the sums available were of an
uncertain amount, it is clear that the Legislature did not intend that all
programs be ful.ly operated and funded at the same date.
Giv<,.n the apparent complr>xity of est.abl.ishing a state-wide program of
specia.1, e:ciixation, incl~uding the t:rai.ning of qual.i.fied teachers and other ,
personna:l~ to administer the program, it. i,s our opinion that September 1, 1976,
p. 2341
. . . I
-
The Honorable M. L. Brockette, page 9 (H-518)
is a reasonable deadline. The power to prescribe a reasonable dead-
line for compliance also necessarily includes the power to prescribe
reasonable alternative plans, such as “Plan B,” to ease the transition
from no special education programs to the “Plan A” comprehensive
programs required under the statute.
SUMMARY
1. In the case of either “mentally retarded” or
both “physically handicapped” and “mentally retarded”
persons, eligibility for special education programs
under section 16.16 is governed by the age limitations
for “exceptional children” in subdivision (b)(l).
2. Section 16. 16 entitles “exceptional children”
residing in a district operating under the Foundation
School Program to receive, and imposes on the
district a corresponding mandatory duty to furnish
special education programs as outlined in the statute.
3. It is within the authority conferred by section
1.6.16 for t.he State Board of Education to establish
September I., 1976, as the date by which all districts
must implement a comprehensive program of special
education for resident exceptional children, and to
permit school distri,cts to operate alternative “Plan
B” programs until, such date,
A Very truly yours,
Attorney General of Texas
First Assistant
Opip.ion Committee
p. 2342