Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 28, 2008
Mr. Robert Scott Opinion No. GA-0657
Commissioner of Education
Texas Education Agency Re: Whether all school districts and charter schools
1701 North Congress Avenue must offer the elective course described in Education
Austin, Texas 78701-1494 Code section 28.011(a) in grades 9 through 12 each
school year (RQ-0683-GA)
Dear Commissioner Scott:
You inquire about certain Education Code provisions adopted by House Bill 1287 of the
Eightieth Legislative session. 1 See Act of May 23, 2007, 80th Leg., R.S., ch. 856, 2007 Tex. Gen.
Laws 1791 [hereinafter Act of May 23, 2007]. House Bill 1287 adopted Education Code section
28.011, which provides for elective public school courses on the study ofthe Hebrew Scriptures and
the New Testament, or a combined course. See TEX. EDUC. CODE ANN. § 28.011 (Vernon Supp.
2008), adopted by Act of May 23, 2007, § 1, at 1791-92. The same bill adopted Education Code
subsection 28.002(a)(2)(H), which added "religious literature, including the Hebrew Scriptures (Old
Testament) and New Testament," to the required enrichment curriculum. See id. § 28.002(a)(2)(H),
adopted by Act of May 23, 2007, § 3, at 1792-93.
I. Does Education Code subsection 28.002(a)(2)(H) require school districts and charter
schools to offer the course described by section 28.011 each year?
You first ask whether "all school districts and charter schools [must] offer the course
described in Section 28.011 each school year in grades 9 through 12." Request Letter, supra note
1, at 2. You inquire about charter schools as well as school districts because "[e]ach charter granted
under" Education Code chapter 12 "must ... describe the educational program to be offered, which
must include the required curriculum as provided by Section 28.002," the provision describing the
required curriculum that school districts must offer. TEX. EDUC. CODE ANN. § 12.111 (a)(I) (Vernon
2006); see ide § 28.002(a) (Vernon Supp. 2008). Charter schools must accordingly offer the required
state curriculum that school districts offer. We will answer your questions in terms of school
districts, but these answers also apply to charter schools.
ILetter from Robert Scott, Commissioner ofEducation, Texas Education Agency, to Honorable Greg Abbott,
Attorney General of Texas, at 1 (Feb. 19, 2008) (on file with the Opinion Committee, also available at
http://www.texasattorneygeneral.gov) [hereinafter Request Letter].
Mr. Robert Scott - Page 2 (GA-0657)
Section 28.002(a) provides:
(a) Each school district that offers kindergarten through grade 12
shall offer, as a required curriculum: 2
(1) a foundation curriculum that includes:
(A) English language arts;
(B) mathematics;
(C) science; and
(D) social studies, consisting ofTexas, United States, and
world history, government, and geography; 'and
(2) an enrichment curriculum that includes:
(A) to the extent possible, languages other than English;
(B) health, with emphasis on the importance of proper
nutrition and exercise;
(C) physical education;
(D) fine arts;
(E) economics, with emphasis on the free enterprise
system and its benefits;
(F) career and technology education;
(G) technology applications; and
(H) religious literature, including the Hebrew Scriptures
(Old Testament) and New Testament, and its impact on history
and literature.
Id § 28.002(a) (Vernon SUppa 2008) (emphasis added) (footnote added).
2We have found no Education Code provision or rule ofthe State Board ofEducation that defmes "curriculum"
for purposes of section 28.002(a). While a glossary prepared by the Texas Education Agency defmes "curriculum" in
general as "[t]he set of courses and content taught for a specific grade or area of study," it does not state how the
curriculum identified in section 28.002(a) will be formulated as courses offered by school districts. TEXAS EDUCATION
AGENCY, GLOSSARY OF TERMS, available at http://portals.tea.state.tx.us/page.aspx?id=170#c (last visited Aug. 26, 2008).
Mr. Robert Scott - Page 3 (GA-0657)
Section 28.002(a) sets out the overall subject matter to be offered by school districts, but the
State Board ofEducation (the "Board") and the Texas Education Agency3 (the "TEA") decide when
and how curriculum subject matter will be offered to students in the public schools. For example,
section 28.002(a) provides that"[e]ach school district that offers kindergarten through grade 12 shall
offer, as a required curriculum" the foundation and enrichment subjects. Id The same statutory
curriculum requirements thus apply from kindergarten through grade 12, but instruction in those
subjects must be tailored to the age ofthe students receiving .instruction. See Request Letter, supra
note 1, at 3 n.12; 19 TEX. ADMIN. CODE § 74.2 (2008) (Tex. Educ. Agency, Description of a
Required Elementary Curriculum). Section 28.002(a) cannot be said to establish classroom-ready
"courses," becausethe "course" method is not typical of instruction at the elementary school level.
See Request Letter, supra note 1, at 3 n.12. Other Education Cede provisions address some of the
additional steps necessary to developing the classes and courses that will be offered in the schools
in order to achieve the curriculum mandates.
The Board must adopt rules to carry out the curriculum requirements of section 28.002
and to implement chapter 28, subchapter A. See TEX. EDUC. CODE ANN. §§ 7.102(11) (Vernon
2006), 28.001-.014 (Vernon 2006 & Supp. 2008). In addition, the Board, with the participation of
educators, .parents, business and industry representatives, and employers, is required to adopt rules
identifying the essential knowledge and skills (the "Texas Essential Knowledge and Skills" or
"TEKS")4 for each subject ofthe required curriculum at appropriate grade levels. See id. § 28.002(c)
(Vernon Supp. 2008); see also Request Letter, supra note 1, at 3 n.12. We note that "[a]s a condition
ofaccreditation, the board shall require each district to provide instruction in the essential knowledge
and skills at appropriate grade levels." TEX. EDUC. CODE ANN. § 28.002(c) (Vernon Supp. 2008)
(emphasis added). Significantly, this provision requires school districts to provide "instruction," not
"courses," in the essential knowledge and skills identified for each required curriculum subject.
While section 28.002(a) does not use the word "course" or expressly identify courses that
school districts must offer in the required curriculum, other Education Code provisions identify
course requirements. Section 28.025(a) provides for graduation requirements, stating that the Board
"by rule shall determine curriculum requirements for the minimum, recommended, and advanced
high school programs that are consistent with the required curriculum under Section 28.002." Id.
§ 28.025(a). But section 28.025(b-1) limits this authority, stating that the Board "by rule shall
require that . . . the curriculum requirements for the recommended and advanced high school
programs under Subsection (a) include a requirement that students successfully complete four
3The Board is established by the Legislature pursuant to constitutional mandate, and its duties are set out in the
Education Code. See TEX. CaNST. art. VII, § 8; see also, e.g., TEX. EDUC. CODE ANN. §§ 7.101 (election of Board
members), 7.102 (Board's powers and duties) (Vernon 2006). The Texas Education Agency is the administrative unit
for primary and secondary public education. See TEXAS EDUCATION AGENCY, MISSION & RESPONSIBILITIES, available
at http://www.tea.state.tx.us/tea/agencymissionandroles.html (last visited Aug. 26, 2008); see also TEX. EDUC. CODE
ANN. § 7.021 (Vernon 2006) (setting out TEA's powers and duties). The commissioner ofeducation serves as executive
officer of TEA and as executive secretary ofthe Board and carries out powers and duties stated in the Education Code.
See TEX. EDUC. CODE ANN. § 7.055 (Vernon 2006).
4See 19 TEX. ADMIN. CODE § 74.4(a)(I) (2008) (Tex. Educ. Agency, Curriculum Requirements, English
Language Proficiency Standards).
Mr. Robert Scott - Page 4 (GA-0657)
courses in each subject ofthe foundation curriculum." Id § 28.025(b-1) (emphasis added). Thus,
the Legislature knows how to require high schools to offer specific courses in the required
foundation curriculum, because it did so in section 28.025(b-1). See Tex. Natural Res. Conservation
Comm 'n v. IT-Davy, 74 S.W.3d 849, 859 (Tex. 2002) (stating that the Legislature knows how to
adopt a specific kind of statute and citing a statute that exemplifies the Legislature's knowledge).
Section 28.025(a) does not, however, mandate Board rules requiring that high schools offer
a specific course or courses in the required enrichment curriculum. See TEX. EDUC. CODE ANN.
§ 28.025(a) (Vernon Supp. 2008). Thus, the Board may exercise its reasonable discretion in
adopting rules for graduation requirements in the enrichment curriculum. The Board has in fact
adopted high school graduation requirements that in general require students to earn credit in the
enrichment curriculum subjects. See 19 TEX. ADMIN. CODE § 74.12 (2008) (Tex. Educ. Agency,
Recommended High School Program). But you inform us that the recommended high school
graduation program does not require courses in career and technology for graduation, a subject in
the required enrichment curriculum. See Request Letter, supra note 1, at 3 n.12; see also TEX. EDUC.
CODE ANN. § 28.002(a)(2)(F) (Vernon Supp. 2008) (including career and technology education in
the required' enrichment curriculum).
Provisions relating to specific courses in foundation curriculum subjects are also found in
chapter 39 of the Education Code, which requires the creation and implementation of a statewide
assessment program. See TEX. EDUC. CODE ANN. § 39.022 (Vernon 2006). Section 39.023(c)
requires the TEA to "adopt end-of-course assessment instruments for secondary-level courses in
Algebra I, Algebra II,geometry, biology, chemistry, physics, English I, English II, English III, world
geography, world history, and United States history," all of which are courses in the foundation
curriculum. Id. § 39.023(c) (Vernon Supp. 2008); see id § 28.002(a)(1)(A)-(D) (foundation
curriculum consists ofEnglish language arts, mathematics, science, and social studies). Chapter 39
does not include any such specific references to courses in the enrichment curriculum. See generally
ide ch. 39 (Vernon 2006 & Supp. 2008).
When section 28.002(a)(2) is viewed in relation to other Education Code provisions, it
becomes evident that section 28.002(a)(2) lists the enrichment subject areas in which school districts
must give instruction, but it does not state that one or more separate courses must be offered in each
area. Moreover, other Education Code provisions address the development of "courses" on the
subjects ofthe required foundation curriculum. See generally ide §§ 28.025(b-1 ), 39.023(c) (Vemon
Supp.2008). The differences between the term "curriculum" used in subsection 28.002(a)(2) and
the term "course" used in other provisions of chapter 28 suggest that, whereas subsection
28.002(a)(2) requires that the subjects listed therein be part of the school districts's enrichment
curriculum, it does not necessarily require a separate course or courses in each subject matter area
it describes.
A school district must, of course, offer instruction in the subject matter described in
subsection 28.002(a)(2)(H). Section 28.002(a) requires school districts to offer, "as a required
curriculum," the subjects included in the foundation and the enrichment curriculum, and subsection
28.002(a)(2)(H) identifies "religious literature, including the Hebrew Scriptures (0 ld Testament) and
New Testament," as a subject in the enrichment curriculum. Id. § 28.002(a)(2)(H). In addition to
Mr. Robert Scott - Page 5 (GA-0657)
providing that instruction by way of an independent course, there are various other ways in which
the subject matter of subsection 28.002(a)(2)(H) might be offered, such as including it in another
course in the foundation or enrichment curriculum. This has been done with other subjects, for
example, by providing that eighth grade social studies shall include economic issues. See 19 TEx.
ADMIN. CODE § 113.24(a)(I) (2008) (Tex. Educ. Agency, Social Studies, Grade 8). The Legislature
has also recognized that a particular subject may be added to a course on a related subject. See TEx.
EDUC. CODE ANN. § 28.0021 (Vernon 2006) (TEKS and section 28.025 "shall require instruction
in personal financial literacy in one or more courses required for high school graduation").
II. Does Education Code section 28.011 require all school districts and charter schools to
offer the course it describes each year?
We next consider whether Education Code section 28.011 requires all school districts to
provide the course described by that statute each year. Education Code section 28.011 provides in
part:
(a) school district may offer to students in grade nine or above:
(1) an elective course on the Hebrew Scriptures (Old
Testament) and its impact and an elective course on the New
Testament and its impact; or
(2) an elective course that combines the courses described
by Subdivision (1).
(b) [stating the purpose of the course in detail].
(g) [grant of academic elective credit for satisfactory
completion of a course on the Hebrew Scriptures, on the New
Testament, or a combined course taught in strict compliance with
section 28.011].
(h) If, for a particular semester, fewer than 15 students at a
school district campus register to enroll in a course required by this
section, the district is not required to offer the course at that campus
for that semester.
(i) This section does not prohibit the board of trustees of a
school district from offering an elective course based on the books of
a religion other than Christianity....
Mr. Robert Scott - Page 6 (GA-0657)
0) This section does not prohibit a school district from
offering a course, other than the course authorized by this section, in
the academic study ofthe Hebrew Scriptures, the New Testament, or
both for local credit or for state elective credit towards high school
graduation.
Id. § 28.011 (Vernon Supp. 2008) (emphasis added).
Section 28.011(a) provides that "[a] school district may offer to students in grade nine or
above" an elective course as described by subsection 28.011(a)(1)-(2). Id. § 28.011(a) (emphasis
added). "[U]nless the context in which the word ... appears necessarily requires a different
construction," the word '''may' creates discretionary authority or grants permission or a power," and
'''shall' imposes a duty." TEX. GOV'T CODE ANN. § 311.016(1)-(2) (Vernon 2005). See also San
Angelo Nat 'I Bankv. Fitzpatrick, 30 S.W. 1053, 1054 (Tex. 1895) (stating that before treating "may"
as a word of command, there should be something either in the subject-matter or the context
to indicate an intention that it was used in that sense). To read section 28.011(a) as granting
discretionary authority to the school board is consistent with section 28.0110)'s reference to "the
course authorized by this section." TEX. EDUC. CODE ANN. § 28.0110) (Vernon Supp. 2008)
(emphasis added).
It has been suggested that the word "required" in subsection 28.011(h) means that each
school district "shall" provide this course. This provision states that if fewer than fifteen students
at a school district campus enroll in "a course required by this section," the district "is not required
to offer the course at that campus for that semester." Id. § 28.011(h) (emphasis added). See TEX.
GOV'T CODE ANN. § 311.016(7) (Vernon 2005) ("Is not required to" negates a duty.); MERRIAM-
WEBSTER'S COLLEGIATE DICTIONARY 1058(11th ed. 2005) (defining "require" as "compel").
Section 28.0110), however, refers to a "course authorized by this section." TEX. EDUC.
CODE ANN. § 28.0110) (Vernon Supp. 2008) (emphasis added). The terms "required" and
"authorized" both attempt to describe the course authorized by subsection 28.011(a). Subsections
(h) and 0) would be meaningless absent subsection 28.011(a), which is the operative provision in
section 28.011. Subsection 28.011(a) grants the substantive authority to school districts, while
subsections 28.011 (h) and 28.0110) provide details about this grant ofauthority. Absent subsection
28.011(a), any description ofa course would be meaningless. Subsection 28.011(a) is thus the most
significant ofthe three provisions, and its meaning best expresses the legislative intent. Its meaning
prevails over that given to subsection 28.011(h) in isolation from section 28.011 as a whole. See
City ofSan Antonio v. City ofBoerne, 111 S.W.3d 22,25 (Tex. 2003) (stating that the Legislature's
intent is determined from the entire act and not just isolated portions).
The legislative history of House Bill 1287, which enacted section 28.011, supports the
construction that section 28.011 is permissive. See TEX. GOV'T CODE ANN. § 311.023(3) (Vernon
2005) (providing that whether or not a statute is considered ambiguous on its face, a court may
consider legislative history to determine the Legislature's intent); City ofRockwall v. Hughes, 246
S.W.3d 621,625 n.6 (Tex. 2008) (citing section 311.023(3), Government Code); In re Canales,
Mr. Robert Scott - Page 7 (GA-0657)
52 S.W.3d 698, 702 (Tex. 2001) (stating that even ifa statute is clear and unambiguous, a court may
consider, among other things, a statute's legislative history). House Bill 1287 as introduced provided
in subsection 28.011(a) that "[a] school district shall offer to students in grades nine or above" an
elective course in the history and literature ofthe Hebrew Scriptures and New Testament eras. Tex.
H.B. 1287, 80th Leg., R.S., § 1 (2007) (as introduced) (emphasis added). The House Committee on
Public Education reported a committee substitute providing in section 28.011(a) that "[a] school
district may offer to students in grade nine or above" an elective course in the Hebrew Scriptures or
the New Testament or both. Tex. C.S.H.B. 1287, 80th Leg., R.S. (2007) (emphasis added). A bill
analysis on the committee substitute to House Bill 1287 stated that "[t]he original version ofthe bill
would have required school districts to offer an elective course," while "[t]he substitute would allow
school districts to offer an elective course." HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex.
C.S.H.B. 1287, 80th Leg., R.S. (2007) (emphasis added). Thus, the Legislature understood that
section 28.011 as amended by the House Committee on Public Education would authorize, but not
require a school district to offer an elective course on the Hebrew Scriptures, the New Testament,
or a combined course.
During House consideration of the committee substit~te of House Bill 1287, a floor
amendment was proposed providing that "[a] school district shall offer" an elective course on the
Hebrew Scriptures and its impact and the New Testament and its impact. H.J. of Tex., 80th Leg.,
R.S. 3447-50 (2007). The proposed amendment, which included other provisions similar to those
in the introduced version, was tabled .after discussion, and the House approved the committee
substitute of House Bill 1287 without change. See id at 3447-50, 3556. During the discussion of
the proposed floor amendment, it was noted that the amendment would change "may" to "shall."
See Debate on Tex. H. B. 1287 on the Floor ofthe House, 80th Leg., R.S. (May 8, 2007) (statement
of Representative Mark Strama) (tape available from House Video/Audio Servs.). Representative
Rob Eissler, who was Chair of the House Committee on Public Education, stated that the bill
approved by the committee respects local control by giving the school district a right to decide how
often and whether the course will be taught. See ide (testimony of Representative Rob Eissler).
Discussion of House Bill 1287 in the House- demonstrates that the word "may" was understood in
its ordinary sense, as authorizing or permitting an action.
When the Senate considered House Bill 1287, an amendment was proposed stating that "[a]
school district shall offer" an elective course on the Hebrew Scriptures or the Old Testament. S.J.
of Tex., 80th Leg., R.S. 3160-62 (2007) (emphasis added). The discussion that ensued specifically
noted that the term "may" grants or authorizes an action, while "shall" makes the action mandatory. 5
This proposed amendment was tabled, and House Bill 1287 was adopted by the Senate in its present
form. There was no discussion of the word "required" that appears in section 28.011(h), but
discussion ofthe proposed amendment in the House and Senate shows that the Legislature intended
"may" as it appears in Education Code section 28.011(a) to be understood in its usual sense as
creating discretionary authority or granting permission or power to offer an elective course as
5See Debate on Tex. H. B. 1287 on the Floor of the Senate, 2d Reading, 80th Leg., R.S. (May 23,2007)
(statement of Senator Estes; exchange between Senator Estes and Senator Hinojosa) (tape available from Senate. Staff
Servs.).
Mr. Robert Scott - Page 8 (GA-0657)
described by section 28.011 and not as mandating school districts to offer such elective courses.
When we take into account section 28.011 as a whole and consider the legislative history, we
conclude that a court would hold that the phrase "[a] school district may offer" a type of elective
course means that a school district has discretion and authority to offer such courses but it is not
required to do SO.6
III. Does section 28.011 require all school districts and charter schools to offer the course
it describes if fifteen students on a campus request it?
Your second question is as·follows:
If your answer to Question 1 is "no," must all school districts and
charter schools offer the course described in Section 28.011 in grades
9 through 12 during any school year in which 15 students at a campus
request the course?
Request Letter, supra note 1, at 2. This question requires us again to construe subsection 28.011 (h),
which provides that "[i]f, for a particular semester, fewer than 15 students at a school district campus
register to enroll in a course 'required' by this section, the district is not required to offer the
course at that campus for that semester." TEX. EDUC. CODE ANN. § 28.011(h) (Vernon Supp. 2008)
(emphasis added, single quotation marks added).
Subsection 28.011(h) does not use the term "request," which is defined as "[a]n act or
instance of asking for something: a petition or expressed desire; a writing or document of this
nature." XIII OXFORD ENGLISH DICTIONARY 679 (definition 2) (2d ed. 1989). Instead, it refers
to a semester when "fewer than 15 students at a school district campus register to· enroll in a
course" offered under section 28.011(a). TEX. EDUC. CODE ANN. § 28.011(h) (Vernon Supp. 2008)
(emphasis added). The term "register" has been defined as "[t]o make formal entry of (a document,
fact, name, etc.) in a particular register." XIII OXFORD ENGLISH DICTIONARY 514 (definition 2.a)
(2d ed.. 1989). "Enroll" has been similarly defined as "to insert, register, or enter in a list, catalog,
or roll," for example, "the school [enrolls] about 800 pupils." MERRIAM-WEBSTER'S COLLEGIATE
DICTIONARY 415 (11 th ed. 2005). Section 28.011 (h) deals with a situation where a school district
offers a section 28.011(a) course in a particular semester, but fewer than fifteen students indicate,
according to the district's usual registration procedures, their intent to enroll in it. In those
circumstances, the district may cancel the proposed course at that campus for that semester. In
answer to your question, we conclude that whatever mayor may not be "requested" by fifteen
students is irrelevant to whether section 28.011 (h) requires a school district or charter school to offer
a course on the Hebrew Scriptures or New Testament.
6Although one briefreceived in this office argues that there is "some evidence" that section 28.011 was intended
as a mandatory provision, it states that "[t]he more reasonable interpretation" is that section 28.011 is a discretionary
means of implementing the section 28.002(a)(2)(H) curriculum requirement, and that section 28.011 provides a "safe
harbor" for school districts. See Brief from Kelly J. Shackelford, Liberty Legal Institute, to Honorable Greg Abbott,
Attorney General of Texas, at 9 (Apr. 10, 2008) (on file with the Opinion. Committee).
Mr. Robert Scott - Page 9 (GA-0657)
SUMMARY
Section 28.002(a) ofthe Education Code defines the required
foundation and enrichment curriculum for school districts and charter
schools but does not identify courses that school districts must offer.
Education Code subsection 28.002(a)(2)(H) provides that the
enrichment curriculum will include "religious literature, including the
Hebrew Scriptures (Old Testament) and New Testament, and its
impact on history and literature," but the Legislature did not mandate
that this curriculum instruction be provided in independent courses.
The State Board ofEducation, however, may provide for enrichment
curriculum offerings in school districts by rule.
In furtherance of the enrichment curriculum requirement
concerning "religious literature, including the Hebrew Scriptures (Old
Testament) and New Testament, and its impact on history and
literature," section 28.011 ofthe Education Code authorizes but does
not require school districts and charter schools to offer elective
courses on the Hebrew Scriptures and its impact or on the New
Testament and its impact. Such discretion does not, however, mean
that school districts or charter schools are not required to comply with
the curriculum requirements in subsection 28.002(a)(2).
If a school district or charter school chooses to offer a course
authorized by section 28.011 and fewer than fifteen students at a
campus register to enroll in the course, the district or charter school
is not required to provide the course at that campus for that semester,
but that does not mean that the school is not required to comply with
the curriculum requirements in subsection 28.002(a)(2).
V e~ truly yours,
. /~
{72~'
GREG BBOTT
Attorney eneral of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion' Committee