QBffice of the Bttornep QBenerat
&tate of Z!Cexas
DAN MORALES
AI-TORNW
CENERAL January 9,1998
Dr. Mike Moses Opinion No. DM-465
Commissioner of Education
Texas Bducation Agency Re: State Board of Education adoption of sex
170 1 North Congress Avenue education curriculum and textbooks (RQ-942)
Austin, Texas 78701-1494
Dr. Jack Christie
Chair, State Board of Education
1701 North Congress Avenue
Austin, Texas 78701-1494
Dear Commissioner Moses and Chairman Christie:
Under the revised Education Code,’ the State Board of Education (the “board”) is required
to establish the public school curricuhnn and adopt textbooks for use in public schools. At the same
time, the Education Code allows local school districts to choose course materials and instruction
relating to human sexuality, sexually transmitted diseases, the human immunodeficiency virus, and
acquired immune deficiency syndrome for use in their districts. The code also mandates five
elements, mostly relating to abstinence t?om sexual activity, that must be included in any course
materials and instruction on human sexuality chosen by a district. You ask about the relationship
between the powers granted to the board and those granted to local school districts with respect to
sex,education in public schools.
We begin by discussing the relevant law. Section 28.002 of the Education Code sets out the
minimum curriculum that must be offered by a public school district with grades kindergarten
through twelve.2 Each school district must provide a “foundation cur&mum” consisting of English,
matheanatks, science, and social studies. E&c. Code 5 28.002(a)(l); id. $4.002. Each district must
also provide an “emichment curriculum” that includes health, physical education, fine arts,
economics, career and technology education, technology applications, and, to the extent possible,
languages other than English. Id. 5 28.002(a)(2).
‘Act of May 21,1995,74th Leg., ch. 260, 1995 Tex. Gen. Laws 2207.2207.
‘For school districts that do not offer kindergarten through grade 12, the. board must designate subjects
comtihUin~ a well-balanced curriculum. Fduc. code 8 28.002(b).
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Dr. Jack Christie
For each foundation curriculum subject, the board must identify the “essential knowledge
and skills,” commonly known as “TEKS,” that all students should be able to demonstrate for that
subject at the appropriate grade level.’ Id. 4 28.002(c). The TEKS are developed with input 6om
educators, parents, business and industry representatives, and employem. Id. The foundation TEKS
must be considered by the board in evaluating textbooks for use in schools’ and must be included
in the assessment of academic skills test, known as ‘TAAS,” required of all students5 Jnstruction
in the TEKS for each foundation subject is required for accreditation of a school district by the
board. Id. $28.002(c); see id. $9 11.001 (requiring each school district to be accredited), 39.071 -
.076 (setting criteria and procedures for accreditation), 39.13 1 (establishing sanctions for failure to
satisfy accreditation criteria).
For each enrichment curriculum subject, the board must also establish TEKS. Enrichment
curriculum subjects are not required to be included in the TAAS test, and instruction of enrichment
curriculum TEKS is not a condition of accreditation. Instead, “]e]ach district shall use the essential
knowledge and skills identified by the board asguidelines in providing instruction in the enrichment
cuniculum.” Id. § 28.002(d) (emphasis added).
The board must adopt two lists of textbooks for each subject in both the foundation and
emichment curricula. See id. $9 31.022, .023, .024. Books reviewed by the board are placed on
the “conforming list” if they cover all of the TBKS elements for the subject. Id. $31.023. Books
are placed on the “nonconforming list” ifthey cover at least half, but not ah, of the TEKS elements6
Id. For subjects in the foundation curricuhrm, local school districts must select books Tom either
the conforming or nonconforming list in order to have the cost of the books paid by the state. Id.
9 31.101. The state will not pay for any part of the cost of a foundation subject book that does not
appear on the conforming or nonconfotming list. For subjects in the emichment cunicul~,
however, the state will pay for the 111 cost of books selected t?om either list, and seventy percent
of the cost of books that do not appear on either list. Id. A school district may use local funds to
purchase any textbook it likes for any subject. Id. 5 3 1.106.
In sum, the Education Code requires the state board to establish TBKS for foundation and
emichment curricuhnn subjects and adopt textbooks containing at least half of the TEXS elements
yrhe code declares that “[i]t is the intent of the legislature that the esential knowledgt and skills developed
by ~StatcBoardofEducation...shallrequirc~studcntstodarmnstratethelmowledgeandsldllsnecessarytoread,
write, compute, problem solve, think critically, apply technology, and communicate. across all subject axas.” Id.
$28.001.
‘See Id. 5 3 1.023 (requiriag board to adopt lists of textbooks from which districts may choose books for use
in schools); see generaIly Attorney General Opinion DM-424 (1996) at l-8 (discussing textbook selection).
%ee Fduc. Code ch. 39 (providing for system of public school assessment to ensure school accounkabiity for
student achievement).
6Books on both lists must also meet the board’s physical specifications, contain no factual errors, and be
adopted by majority vote ofthe board. Id. $31.023.
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for each subject. At the same time, the boards of trustees of local school districts are required,
pursuant to section 28.004 of the Education Code, to select “[altry course materials and instruction
relating to human sexuality, sexually transmitted diseases, or human immunodeficicncy virus or
acquired immune deficiency syndrome. . . with the advice of the local health education advisory
council established Iby the board of trustees].” Id. $28.004(a). The local health education advisory
council “as&s+] the district in ensuring that local community values and health issues are reflected
in the district’s human sexuality instruction.” Id. 5 28.004(e). The council’s members, a majority
of whom must be parents of students enrolled in the district, must include “persons who represent
diverse views in the community about human sexuality instruction.” Id. § 28.004(g). The council’s
duties include recommending appropriate grade levels for human sexuality instruction,
recommending the methods of instruction to be used by a teacher, and recommending the number
of hours of instruction to be provided. Id. 9 28.004(f). With the advice of the council, the district’s
board of trustees is directed to “determine the specific content of the district’s instruction in human
sexuality.” Id. $28.004(d).
While section 28.004 creates local control over sex education, it also lays out five mandates
with respect to the subject. Any course materials and instruction in human sexuality selected by a
district must:
(1) present abstinence &om sexual activity as the preferred choice of
behavior in relationship to all sexual activities for unmarried persons of
school age;
(2) devote more attention to abstinence t+om sexual activity than to any
other behavior,
(3) emphasize that abstinence from sexual activity, if used consistently
and correctly, is the only way that is 100 percent effective in preventing
vw=w9 sexually transmitted diseases, infection with human
immunodeficiency virus or acquired immune deficiency syndrome, and the
emotional trauma associated with adolescent sexual activity;
(4) direct adolescents to a standard of behavior in which abstinence t?om
sexual activity before msrriage is the most effective way to prevent
pregnancy, sexually transmitted diseases, and Section with human
immunodeficiency virus or acquired immune deficiency syndrome; and
(5) teach contraception and condom use in terms of human use reality
rates instead of theoretical laboratory rates, if instruction on contraception
and condoms is included in ctmiculum content.
Id. 5 28.004(a). Under section 28.004, if a school district offers sex education, it must do so
according to local guidelines but with the state-mandated components.
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Your questions arise fivm the apparentwnflict between the boa&s duty to establish TBKS
and adopt textbooks, and a local school district’s duty to fommlate any human sexuality instruction
it chooses to offer, select appropriate wurse materials, and comply with the abstinence mandates.
Our goal in this opinion is to harmonize the relevant provisions, if possible, so as to give effect to
the entire statute in accordance with legislative intent See Klinger v. City of San Angelo, 902
S.W.2d 669 (Tex. App.-Austin 1995, writ denied); Attorney General Opinion DM-353 (1995) at
3; Gov’t Code 9 3 11.021 (“In enacting a statute, it is presumed that . . . the entire statute is intended
to be effective; . . . .“); id. 4 311.026 (“If a general provision conflicts with a special or local
provision, the provisions shall be construed, if possible, so that effect is given to both.“).
We turn to your specific questions, which we have summarized and combined into three
areas of inquiry. You first ask:
Does section 28.004 in any way limit the authority granted to the board
by section 28.002 to develop the TEKS? If so, are the limits different for the
foundation and enrichment curriculums? Must TEKS adopted pursuant to
section 28.002 include the elements ofhuman sexuality instruction set out in
section 28.004?
Section 28.004’s effect on the board’s powers under section 28.002 is different for foundation
and enrichment curricula. Because instruction in foundation TEZLSis a wndition of accreditation
and because the TEKS are required to be included on the TAAS test, sex education TBKS adopted
as part of a foundation curriculum subject would be mandatory for local school districts. Districts
would thereby be placed in a position of conflict with their obligation under section 28.004 to
develop a locsl wurse of instruction for sex education. To the extent they wnflict, the specific sex
education requirements dire&d to local school districts in section 28.004 prevail over the authority
granted to the state board in section 28.002 to set TBKS for curricula subjects generslly. See Gov’t
Code 5 311.026(b) (providing that special or local provision prevails as an exception to general
provision where wnflict is irreconcilable).
Furthermore, we doubt that the legislature intended to allow the board to establish TBKS for
sex education as part of a foundation curricula subject. Gur examination of the legislative history
of section 28.004 indicates that the legislature intended to allow school districts to decide whether
to offer instruction in human sexuality. See Conference Comm. on Senate Bill 1, 75th Leg.
(May 11,1995) (tmnscript available t?om Senate Staff Services) (statement of Rep. Sadler). They
would not have this discretion if sex education were required as a foundation subject. We conclude,
therefore, that the board may not adopt human sexuality TEKS as part of a foundation curriculum
subject.
1
Enrichment curriculum TEKS, on the other hand, may be used merely as guidelines for local
districts. A district that decides to offer sex education could adopt a local instructional plan in
accordance with section 28.004 irrespective of any TEKS adopted by the state board, and thus no
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wnflict between the provisions would exist. We conclude, therefore, that the board may, but is not
required to, adopt TEKS for sex’education as part of an enrichment curriculum subject7
However, a board rule establishing TEKS inconsistent with the section 28.004 abstinence
mandates would be useless to school districts. Statutes creating and defining the powers of
.
admnmt&ve agencies are to be wnstrued under the presumption that the legislature never intends
that functions committed to agency should be exercises in futility. Beaver Express Service, Inc. v.
Ra&oadComm ‘n, 727 S.W.2d 768,773-74 (Tex. App.-Austin 1987, writ denied). Thus any human
sexuality TEKS adopted by the board as part of an enrichment subject must be consistent with the
mandates set out in section 28.004.
You next ask “May the board adopt a textbook that addresses human sexuality but which
does not contain the elements of human sexuality instruction set out in section 28.004?’
The board may adopt a textbook if it wntains half of the TEKS for the subject for which the
book is to be used. Id. $3 1.023. If the board adopts TEKS relating to human sexuality, which
TEKS must be wnsistent with the requirements of section 28.004, the board may adopt a textbook
on human sexuahty if it includes at least half of the TEKS elements, even if it does not include all
of the elements.
In our view, a local school district is not prechtded tIom using a board-adopted textbook that
does not wntain all the elements that section 28.004 requires in any “wurse materials and
instructions” in human sexuality. We do not believe that each “wurse material,” such as a textbook,
must include sII of the elements. Instead, we believe that wurse materials and instruction as a whole
must satisfy the mquirements of section 28.004. That is, emphasis on abstinence required by section
28.004 may be conveyed to students through a combination of different materials and classroom
instruction, even if one source does not contain all the required elements.
Finally, you ask:
May a school district select a textbook for local use that contains material
inwnsistent with the course of instruction for humau sexuality selected by the
district? If yes, may a school district selectively use the wmponents in a
manner that complies with the local course of instruction chosen pursuant to
section 28.004.
The snswer to both of these quations is yes. Section 28.004 allows local school districts to
choose the “wurse materials” for use in human sexuality instruction and requires the materials to
include certain elements. The Education Code does not define “wurse materials,” but “instructional
‘It is our understanding that your questions arise. from the board’s adoption of TEKS for human sexuality as
part of health class, me of tbe enrichment curriculum subjects. See Texas Educ. Agency, 22 Tex. Reg. 7755,7759
(Aug. l&1997) (codified at T.A.C. tit. 19 $5 115.31 - .33).
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materials*’ are included in the code’s definition of “textbook.” Educ. Code § 31.002(3)
(“‘Textbook’ means a book, a system of instructional materials, or a combination of a book and
instructional materials that wnveys information to the student or otherwise contributes to the
lesrning process, or an electronic textbook.“). Thus “course materials” includes part of a textbook.
We conclude that a district may select a textbook that contains material inwnsistent with the locally
determined wurse of sex education instruction, provided any materials from the textbook used in
the course of instruction are consistent with the local instructional plan. In other words, if a textbook
selected by a district includes material that is inconsistent with the district’s instructional plan a
school district may select the book and comply with section 28.004 by using only those parts of the
book that reflect its instructional plan.
SUMMARY
The State Board of Education may not establish as part of a foundation
curriculum subject the essential knowledge and skills (“TEKS”) for
instruction in human sexuality, sexually transmitted diseases, the human
immunodeficie.ncy virus, or acquired immune deficiency syndrome. Any
human sexuality TEKS adopted by the board as part of an enrichment
curriculum subject must be consistent with the sex education mandates set
out in Education Code section 28.004. If the board adopts TEKS for an
enrichment subject that includes human sexuality, the board may adopt a
textbook for the subject that does not contain the elements of human
sexuality set out in section 28.004 provided at least half of the TEKS
elements for the subject are included in the book. A local school district may
select a textbook that contains material inconsistent with the 1ocalIy
determined sex education instructional plan provided any materials used in
the wurse of instruction are consistent with the local instructional plan.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH I. SHIRLEY
Chair, Opinion Committee
Prepared by Bsrbara Griffin
Assistant Attorney General
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Untitled Texas Attorney General Opinion
Combined Opinion