Untitled Texas Attorney General Opinion

QWice of tip I?lttornep Qhneral
.&ate of Qexarr
DAN MORALES
ATTORNEY
GENERAL January 22,1993

Mr. Lionel R Meno Opiion No. DM- 196
commissioner
Texas Education Agency Rez Whether the prekindergarten program
1701 North Congress Avenue established by section 21.136 of the
Austin, Texas 78701-1494 Education Code is part of elementaty
education under Texas Law, and related
questions (RQ-436)

Jkar CommissionerMeno:

You have asked us to answer several questions posed by the United States
Department of Education (the department) regarding the prekindergarten program
established by section 21.136 of the Education Code. The department wants answers to
these questions so that it can determine whether the school districts in Texas are eligibleto
receive impact-aid assistance for children enrolled in prekindergarten classes.

The impact-aid statute is designed to give local educational agencies (LEAS)
federal tinancial assistance when federal activities at&t the revenue available to the LEAs
or the number of children they serve. 20 U.S.C. Q236. Under section three of the statute,
an LEA may claim payments for federally-connected childrent who are receiving “6ee
public education” &om the LEA. Id. 0 238. The regulations enacted under the statute
iinther provide that, to be eligible for impact aid, an LEA must be responsible under the
applicable state or federal law for providing free public education to the children for whom
the aid is claimed and must actually be providing the free public education to those
children. In addition, the state must provide timds for the education of the children for
whom the aid is claimed on the same basis as all other children attending public school in
the state. 34 C.F.R. 8 222.80. The statute defines free public education as “education
which is provided at public expense, under public supervision and direction, and without
tuition charge, and which is provided as elementary or secondary school education in the
applicable State.” 20 U.S.C. 6 244(4).

p. 1035
Mr. Lionel R Meno - Page 2 (DM-196)

The department’sfirst three questions concern the status of the prehinder~en
program under Texas law and are as follows:
1) Is the Terms prekindergarten program considered to be part of
elementary education under Texas State law? Ifso, how and by what
authority?
2) Section 21.03 1 of the Texas @Iducation]Code indicates that
eveq child who is a citizen of the United States or a legal alien and is
ovatheageoffiveonthefirstdayofseptrmbashallbeentitkdto
the benefits of the Available School Fund for that year. The statute
fbrther provides that every child over the age of five is permitted to
attend the public free schools of the district in wbicb he resides. In
addressing question 1, please address the possible implication of
these provisions that education for four ywr olds is not elementary or
free public education under Texas law.
3) Similarly, section 21.13 1 of the Texas ~ucation] Code states
thateachschoo]districtinTacasshsllestsblimand~asa
part of the “public 6ee schools”one or more kindergartens for the
train@ of five year olds. Section 21.136, which authorizes the
establishment of a prekindergarten program for four year olds, does
not indicate that the prekindergarten program is considered to be a
part of the public free schools. In addressing question 1, please
address the meaning of this omission.
We conclude that the Texas prekindergarkn program is part of the public 8ee
schools under Texas law. Section 21.03 1(a) of the Education Code specitically provides
that children enrolled in prekindergarten classes are entitled to the bate&s of the available
school timd. Under article VII, section 5 of the Texas Consthution, however, the
available school timd may be used only for the support of public free schools. Therefore,
either the prekindergarten program is a part of the public frse schools under Texas law or
section 21.03 l(a) of the Education Code is unconstitutionalunder the Texas Constitution.
We must presume that a statute is constitutional. County of Gamerun v. Wih, 326
S.W.2d 162, 165 (Tex. 1959). Furthermore, ail reasonable doubts about the validity of a
statute must be resolved in favor of its validity. Greene v. Robison, 8 S.W.2d 655,656
(Tex. 1928). Because nothing in either the constitution or the statutes of Texas suggest
that the prekindergarten program cannot be part of the public free schools, we believe the
phrase “public &ee schools” must be interpreted to encompass the prekindergarten
program.

Tbe Srst sentence of section 21.031(a) suggests that only children between age
five and age twenty-one are entitled to the benefb of the available school 8md. However,
the second sentence of section 21.031(a) explicitlybrings prekindergarten children within

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Mr. Lionel R Meno - Page 3 (DM-196)

the group of children entitled to the benefits of the available school fund. This section, in
itsedrety,reads:

All children who are citizens of the United States or legally
admitted aliens and who are five years of age or older and under the
age of 21 years on the first day of September of any scholastic year
shall be entitled to the be&its of the Available School Fund for that
year. All other chik&enem-o&d in a prekhhgarten ckzss u&r
Section 21.136 of this conk are eniiiled to the betq’its of the
Awikzble SchoolFund.
Rduc. Code 8 21.031(a) (emphasis added). Therefow this section cxpnmdy and
unequivocdly supports the conchtsion that the prekindergarkn program is part of the
public fkee schools.

Furthermore, we do not believe that the omission of the phrase “public free
school”from section 21.136 is signi6cant. If a program is eligiile for the be&to of the
available school timd, then it must be a part of the public @eeschools; whether the statute
creating the program explicitlyrefers to it as a part of the public f+eeschools is irrelevant.

You also ask whether the prekindergarten program is “dememary education”
under Texas law. “Elementary education”is not a term of art under Texas law and is not
given a consistent defkition in the Texas statutess We note, however, that the
prekindergarten program is part of elementaty education in some signi6cant contexts. For
example, article VIII, sections l-b(c) and l-b(d) of the Texas Consdtution deal with tax
exemptions and refer to “ad valorem taxation for general elementary and secondary public
school purposes.” In this context, “elementary. . . public school purposes” must include
prekindergarten. School districts clearly have the authority to use ad valorem tax revenue
to support prekindergartm programs, and the tax exemptions must apply to the taxes used
to support those programs. Because prekindergarten is not a secondary school purpose, it
must be part of elementary education for the purposes of these sections. Siiy, the
section of the Texas Administrative Code dealing with dememary&tool curricuhun
includes the provisions regarding prekindergarten programs. 19 TAC 8 75.141(g); see
also Educ. Code 55 1501(c), 20.09; Tax Code 0 11.13(m)(2).

The fourth question has two parts, which we will address separately. Fii the
department asks whether the state provides firnding for the education of federally-
connected prekindergarten children on the same basis as for all other prekindergarkn
public-school children in the state. We conclude that it does. The state provides fiuding
for local school districts through the Foundation School Program, and section 16.003(b)
Mr. Lionel R. Meno - Page 4 (DM-196)

of the Education Code specitically states that all prekinderSarten children are entitled to
the bene6ts of the Foundation School Program. Under the current school-financiq
scheme,) the Foundation School ProSram has two timdinS tiers. In the Srst tier, each
school district receives a specitic allotment for each student in average daily attendancef
This allotment comes from three sources: (1) the school district’s share of the revenue
collected by the county education district;s (2) the state available school lImds distributed
to the school district; and (3) a Srant from the commissioner of education equal to the
difference between the district’s tier-one entitlement and the amount the district receives
from the other two sources. Rduc. Code 5 16.251(b). The Texas Consthution and the
Education Code both require that the available school lund be distriiuted to the counties
accordinS to their scholastic population. Tex. Con& art. VII, 4 5; Educ. Code
0 15.01(b). Similarly, the amount of the grant fkom the commissioner of education will
depend on the number of students in the school district and the tax base in the county
education district. See Rduc. Code 5 16.254(b). In the second tier, the state guarantees
each school district a certain amount of money per weiShted student for each penny of tax
etTortup to 45 centh6 m&less of the value of the property in the school district. See
Educ. Code $5 16.302(a), 16.303. If a school district cannot raise the gtaranteed amount
fiomitstexbase,thestatemakesupthediffaence.7Thus,inthistier,asintheiirsttier,
the state’s contribution to each school district depends on the weighted avaage daily
attendance in the district and the value of the property in the district. We are not aware of
anythiq in Texas law tbat permits the state to make distinctions between f’ederally-

%i~6~h~~b~h~~b~~~dtd~dMconstihdional~0d~th~T~~~C01~tit~ti0~byth~T~8~
Sup~anehut; howmr, il will maatnin cfkcl untilJoru1993.See GarmllIon-Fannera Branch Indep.
Sch. DIeI. v. aE+wood Indep. Sch. DM.. 826 S.W.M 489, 522-23 (Tcs 1992). Thusfar, theTexas
Legibhmharnota&ptcdasl-~rcbrmcloreplaatbcaumllsc~.

~lllotmmtforcachdiari*coodas~~baricallommtwitbanyrpplicsblcedjurtmentsplus
specialall-. For tk Ml-1992 schoolyear, tbcbasic rdblnmt was $2,200;for tbc 1992-1993
scl~dyear,tkbasicaUotmcntwiUbc.S2,4M.E4k.C!ak~16.101. Tbcbasicallommtis~to
rdkt gwgJaphicvariationsio lesouKccc6l6andthcco6t6ofuhKadonductofpdolEhcyondulc
diatria’scontml. Id. 8 16.102.The basicallotnxntis also adjustalfor padaddy smallor spmely
pop&d die&i& Id. $0 16.103,16.104.Loaddition
tolb lwic allotment, eachsclud diarictraxivrs
spcdalaUotmentsfowariousprogramEnrhasrpedplaiucation. Id. 55 16.151-.160.

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Mr. Lionel R Meno - Page 5 (DM-196)

co~ected children and other children with regards to providiig funds for any public-
school programs.

The second part of the fourth question asks this office to indicate whether each
LEA’s portion of the state funding was reduced for the 1990 and 1991 fiscal years and, if
so, at whose expense. The opinion process is not designed to respond to questions
regarding facts; therefore, we cannot answer this question t%omour own knowledge.
However, we are informed by the General Counsel of the Texas Education Agency that
the state did reduce each LEA’s allocation proportionally for the 1989-1990 and
1990-1991 school years. The reduction was accomplished by a percentage proration
across the state. During the 1989-1990 school year, each school district’s allocation was
reduced by 4.2 percent. During the 1990-1991 school year, each school district’s
allocation was reduced by approximately23 percent.

Fiiy, the department asks: “[O]n what basis do Texas school districts offer
prekindergarten classes? For example, are they permitted to educate any four year olds
that may wish to attend or is attendance strictly limited to children who are either limited
English proficient or t?om a family whose income is at or below subsistence level.” We
conclude that section 21.136 of the Education Code permits school districts to offer
prekindergarten classes to aJl four-year-old children who wish to attend. Section 21.136
provides, in pertinent part:
(a) Any school district may offer prekindergarten classes, but a
district shah offer prekindergarten classes if the district identifies 15
or more eligible children who are at least four years of age. A school
district may offer prekindergarten classes if the district identifies 15
or more eligible children who are at least three years of age.
(b) To be eligible for enrollment in a prekindergarten class a
child must be at least three years of age and must be:
(1) unable to speak and comprehend the English language; or
(2) from a family whose income, accordiig to standards set
by the State Board of Education, is at or below subsistence level.
Although this language is susceptible to two interpretations, the legislative history
indicates that any four year old may attend prekindergarten classes. During the hearings
regarding this legislation in the House Committee on Public Education, it was explained
tbat this section permits any school district to provide prekindergarten classes if it so
desires and requires school districts to offer prekindergarten classes when they identity 15
or more “eligiblechildren,”as that term is defined in section 21.136(b). Hearings on H.B.
72 Before the House Comm. on Public Education, 68th Leg. (June 14. 1984) (tape
available from House Committee Coordinator). Thus, school districts are permitted to
educate all four year-old children, not just four year-old children who meet the criteria in

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Mr. Lionel R Meno - Page 6 (DM-196)

section 2 1.136@). However, districts are required to offer prekindergarten classes only to
children who meet the criteria in section 21.136(b) and only when a district identities 15 or
more of these children.
SUMMARY

The prelrindergarten program created by section 21.136 of the
Education Code must be a part of the *public fke schools” under
Texas law because prekindergarten students are entitled to the
bene6ts of the available school fund; under article VII, section 5 of
the Texas Constitution, the availableschool fbnd can be used only for
the support of the public ti schools..

The state bases the timding it provides to local school districts
on the district’sweighted average daily attendance and its tsx base;
we can 6nd nothing in Texas law that permits the state to make
disUnctionsbetween federaUy-connectedchildren and other children
with regards to funding for the prekindergartenprogram.

Texas school districts are permitted to enroll any four year old in
prekindergarten classes. However, the statute requires the districts
to establish a prekindergartenprogram when they identity 15 or more
children who meet the criteria in section 21.136(b) of the Education
Code.

DAN MORALES
Attorney General of Texas

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Mr. Lionel R Meno - PaSe 7

WILL PRYOR
First Ass&ant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opiion Committee

Prepared by Margaret A. Roll
Assistant Attorney General