HBA-MPA H.B. 171 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 171
By: Garcia
Public Education
4/20/1999
Introduced




BACKGROUND AND PURPOSE 

Currently there is no recourse in the law if a parent feels that the
parent's child is not receiving a proper education.  H.B. 171 allows a
parent to bring suit against a school district attended by the parent's
child if the child fails to perform satisfactorily on one or more
assessment instruments commonly known as the Texas Assessment of Academic
Skills test.  This bill provides for procedures to initiate a claim, reach
administrative determination of such a claim, award damages for claims and
make payments, and provide defenses that a school district may use in
answering claims. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is  expressly delegated to the chief administrative law judge of
the State Office of the Administrative Hearings and to the comptroller of
public accounts in SECTION 1 (Sections 39.205, 39.206, Education Code) of
this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 39, Education Code, by adding Subchapter I, as
follows: 

SUBCHAPTER I.  PRIVATE REMEDY

Sec. 39.201. DEFINITIONS.  Defines "parent." 

Sec. 39.202.  CLAIM AUTHORIZED.  Authorizes a parent to bring a claim
against a school district if the parent's child has been enrolled in a
district for three consecutive school years and during three different
school years has failed to perform satisfactorily on one or more assessment
instruments administered under Section 39.023 (a) or (c), and commonly
known as Texas Assessment of Academic Skills (TAAS) tests. 

Sec. 39.203. DEFENSES.  Provides that it is a defense against a claim under
this subchapter if the child did not receive the ordinary amount of
instruction due to excessive absence or tardiness; the child or parent
refused remedial actions recommended by the school district; the child has
a recognized mental or physical impediment; the child was suspended,
expelled or assigned to an alternative education program; the child was
determined to have committed an offense involving moral turpitude; or the
proximate cause of the child's failure was private and beyond the control
of the school district. 

Sec. 39.204.  INITIATION OF CLAIM; LIMITATIONS.  Provides that to initiate
a claim under this subsection a parent must file a notice of claim with the
school district.  Requires a school district that opposes a claim to submit
the claim to the State Office of Administrative Hearings within 30 days
after receiving notice of the claim.  Requires a parent to file a claim not
later than the first anniversary of the last day of the third school year
in which the parent's child failed to perform satisfactorily on a specified
assessment instrument. 

 Sec. 39.205. ADMINISTRATIVE DETERMINATION OF CLAIM. Requires an
administrative law judge to hear the claim as a contested case under
Chapter 2001 Administrative Procedures, Government Code, and to decide the
claim in accordance with this subchapter and the rules adopted by the chief
administrative law judge of the State Office of Administrative Hearings.
Requires the judge to order payment by the school district in accordance
with this subchapter if the preponderance of the evidence indicates the
claim is valid.  Requires the costs of the proceeding to be paid by the
parent, but that those costs are recoverable if the parent prevails in the
proceeding. 

Sec. 39.206. AMOUNT OF AWARD; PAYMENT.   Provides that a parent who
prevails in a proceeding brought under this subchapter is entitled to
receive the cost of the proceedings and reasonable attorney's fees, paid
directly to the parents, and a voucher for three times the per student
expenditure (the school district's gross budget divided by the number of
students) for the year in which the third failure occurred plus interest as
per Section 304.003 Judgement Interest Rate: Interest Rate Not in Contract,
Financial Code, which may be used only to pay for educational services for
the child at a public or private entity chosen by the child's parents.
Requires the comptroller to issue the voucher to the parents on behalf of
the school district.  Authorizes the comptroller to adopt  rules necessary
to implement this subsection, including rules regarding payment of the
vouchers by the school district. 

Sec. 39.207.  JUDICIAL REVIEW. Provides that the determination of an
administrative law judge under this subchapter is subject to judicial
review as provided by Chapter 2001, Government Code. 

Sec. 39.208.  WAIVER OF SOVEREIGN IMMUNITY.  Waives sovereign immunity to
suit to the extent that liability is created by this subchapter, but does
not subject a teacher, administrator, board member, or other individual
associated with a school district to personal liability. 

SECTION 2.  Effective date: September 1, 1999.
            Makes application of this Act prospective.

SECTION 3.  Emergency clause.