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
Hxity 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
Untitled Texas Attorney General Opinion
Combined Opinion