Untitled Texas Attorney General Opinion

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