SECTION 97.1079. Determination Processes and Criteria for Eligible Entity Approval under Texas Education Code, §11.174

(a) Applicability. This section applies only to independent school districts that intend to contract to partner to operate a campus and receive benefits under Texas Education Code (TEC), §11.174(a)(2).

(b) Definitions. For purposes of this division, the following words and terms shall have the following meaning, unless the context clearly indicates otherwise.

(1) Eligible entity--This term has the meaning assigned in TEC, §12.101(a).

(2) Campus--This term has the meaning assigned in §97.1051(3) of this title (relating to Definitions).

(3) Applicant--This term refers to an independent school district seeking approval to receive benefits for an eligible entity to contract to partner to operate a campus.

(4) Proposed operating partner--This term refers to the eligible entity seeking approval in coordination with an independent school district to contract to partner to operate a campus.

(c) Institutions of higher education. This subsection applies to entities meeting the definition of an institution of higher education as described in TEC, §61.003.

(1) For applicants seeking eligibility approval of an institution of higher education, which has been granted a charter in accordance with TEC, Chapter 12, Subchapter E, as the proposed operating partner, the commissioner of education will treat the institution of higher education as an open-enrollment charter school under TEC, §11.174(a)(1).

(2) The commissioner may approve an eligibility approval request under this section if the commissioner determines that the approval of the eligibility approval request will improve student outcomes at the campus.

(d) Private or independent institutions of higher education that are not described in subsection (c) of this section, non-profits, and governmental entities. This subsection applies to entities meeting the definitions described in TEC, §12.101(a)(2), (3), and (4).

(e) Application requirements.

(1) Prior to each eligibility approval cycle, the commissioner shall approve an application package for submission by applicants seeking eligibility approval as specified in TEC, §11.174. The application package may contain, but is not limited to, any of the following:

(A) an application form;

(B) the timeline for submission of completed forms;

(C) requirements, including mandatory training sessions for districts and proposed operating partners, that must be met in order for applications to be approved;

(D) scoring criteria and procedures for use by the review panel selected under paragraph (6) of this subsection; and

(E) eligibility approval criteria, including the minimum score necessary for approval.

(2) The Texas Education Agency (TEA) shall review application packages submitted under this section. If the TEA determines that an application package is not complete and/or the applicant does not meet the eligibility criteria in TEC, §11.174, the TEA shall notify the applicant and allow ten business days for the applicant to submit any missing or explanatory documents.

(A) If, after giving the applicant the opportunity to provide supplementary documents, the TEA determines that the eligibility approval request remains incomplete and/or the eligibility requirements of TEC, §11.174, have not been met, the eligibility approval request will be denied.

(B) If the documents are not timely submitted, the TEA shall remove the eligibility approval request without further processing. The TEA shall establish procedures and schedules for returning eligibility approval requests without further processing.

(C) Failure of the TEA to identify any deficiency or notify an applicant thereof does not constitute a waiver of the requirement and does not bind the commissioner.

(D) A decision made by the TEA to deny, remove, or return an eligibility approval request is a final administrative decision of the TEA and may not be appealed under TEC, §7.057.

(3) Upon written notice to the TEA, an applicant may withdraw an application package.

(4) All parts of the district's application package are releasable to the public under the Texas Public Information Act, Texas Government Code, Chapter 552, and will be posted to the TEA website. Therefore, the following must be excluded or redacted from an application package submission:

(A) personal email addresses;

(B) proprietary material;

(C) copyrighted material;

(D) documents that could violate the Family Educational Rights and Privacy Act (FERPA) by identifying potential students of the partnership school, including, but not limited to, sign-in lists at public meetings about the school, photographs of existing students if the school is currently operating or photographs of prospective students, and/or letters of support from potential charter school parents and/or students; and

(E) any other information or documentation that cannot be released in accordance with Texas Government Code, Chapter 552.

(5) TEA will remove from review any application packages that:

(A) include plagiarism;

(B) are from districts that did not submit a letter of intent by the TEA published deadline;

(C) are from districts that did not participate in TEA required trainings;

(D) are from districts whose proposed operating partners did not attend TEA required trainings;

(E) are not submitted by the TEA published deadline;

(F) include an operating partner that does not have the following:

(i) a governing board with a minimum of three members. All partner governing board members must meet the requirements outlined in subsection (e)(9)(C)(vi) of this section; and

(ii) at least one full-time equivalent dedicated to the management of the campus or campuses. The full-time equivalent may be employed by the district only if they are under contractual obligation with the operating partner board and the district can demonstrate that they are solely dedicated to planning the launch of the campus at the time of application for benefits; or

(G) include performance contracts that are contingent on approval of benefits under TEC, §11.174(a)(2), or a performance rating assigned to the campus based on performance that occurred prior to the operation of the campus by the operating partner.

(6) Applicants with complete application packages satisfying the requirements in paragraph (5) of this subsection will be reviewed by a review panel selected by the commissioner. The panel may include TEA staff or external stakeholders. The panel shall review application packages in accordance with the procedures and criteria established in the application package and guidance form. Review panel members shall not discuss eligibility approval requests with anyone except TEA staff. Review panel members shall not accept meals, entertainment, gifts, or gratuities in any form from any person or organization with an interest in the results of an application package review. Members of the review panel shall disclose to the TEA immediately the discovery of any past or present relationship with an applicant, including any current or prospective employee, agent, officer, or director of the eligible entity, an affiliated entity, or other party with an interest in the approval of the application package.

(7) TEA staff may interview applicants, may specify individuals from the district and proposed operating partner required to attend the interview, and may require the submission of additional information and documentation prior to an interview.

(8) No recommendation, ranking, or other type of endorsement by a member or members of the review panel is binding on the commissioner.

(9) The commissioner will consider criteria that include the following when determining whether to approve an applicant.

(A) The criteria described in this subparagraph apply to all campuses. Each applicant must submit financial information that demonstrates that the proposed operating partner:

(i) is provided with a reasonable per pupil amount or percentage of the revenue generated by attendance at the campus from the district to the operating partner of all federal, state, and local funds due the campus, to be paid to the operating partner for managing the campus or campuses each year;

(ii) has provided the total budget for the first year of operation of the campus to the district; and

(iii) has authority over the entire campus budget, which includes all of the federal, state, and local funds due the campus as described in clause (i) of this subparagraph.

(B) The criteria described in this subparagraph apply to application packages relating to partnerships between a district and an organization authorized under TEC, Chapter 12, Subchapters D and E.

(i) Each applicant must demonstrate evidence of the district's adoption and implementation of the TEA model authorizing policy or a similar policy approved by TEA.

(I) For application packages submitted for benefits that begin in the 2021-2022 school year, districts not using the TEA model policy must have the local authorizing policy approved prior to the application review.

(II) TEA will release the authorizing policy approval timeline and process annually.

(III) TEA approval of local authorizing policies expires if the district changes the authorizing policy or if related sections of the Texas Administrative Code (TAC) or TEC change.

(ii) Each applicant must submit a performance contract that demonstrates that the applicant and proposed operating partner meet the requirements to contract to partner to operate, as outlined in §97.1075 of this title (relating to Contracting to Partner to Operate a Campus under Texas Education Code, §11.174).

(C) The criteria described in this subparagraph apply to application packages relating to partnerships between a district and any other type of partner except for operating partners described in subparagraph (B) of this paragraph. Each applicant must demonstrate:

(i) evidence of district capacity to authorize and oversee district charter campuses authorized under TEC, Chapter 12, Subchapter C, which must include:

(I) at least one district employee, employed prior to the district evaluation of the partnership, and fully dedicated to overseeing the authorizing and ongoing monitoring of in-district charter schools; and

(II) for benefits that begin in the 2021-2022 school year, evidence that the district employee has completed a TEA training program on authorizing and partnerships no later than one year from the date of benefits approval;

(ii) evidence of the district's adoption and implementation of a high-quality district charter authorizing process as required by TEC, §12.058, which must include the following:

(I) the district's adoption and implementation of the TEA model authorizing policy or a similar policy approved by TEA prior to or as part of the application review. The following provisions apply.

(-a-) For application packages submitted for benefits that begin in the 2021-2022 school year, districts not using the TEA model policy must have the local authorizing policy approved prior to the application review.

(-b-) TEA will release the authorizing policy approval timeline and process annually.

(-c-) TEA approval of local authorizing policies expires if the district changes the authorizing policy or if related sections of the TAC or TEC change;

(II) evidence of the district's adoption and implementation of the TEA model campus charter application or similar application and scoring rubric or a similar application and scoring rubric approved by TEA. The following provisions apply.

(-a-) For application packages submitted for benefits that begin in the 2021-2022 school year, districts not using the TEA model campus application and scoring rubric must have the local campus application approved prior to the application review.

(-b-) TEA will release the local campus application and scoring rubric approval timeline and process annually.

(-c-) TEA approval of a local campus application and scoring rubric expires if the district changes the authorizing policy or if related sections of the TAC or TEC change; and

(III) evidence that, at a minimum, the district:

(-a-) required the proposed operating partner to complete the application without assistance from the district or a district assigned vendor;

(-b-) employed a review panel to read the application from the operating partner and that the review panel identified strengths and weaknesses of the application;

(-c-) reviewed any operating and academic performance history of the proposed operator; and

(-d-) conducted a capacity interview with the board and proposed staff of the partner organization;

(iii) evidence of the capacity of the operating partner to manage the campus or campuses, including evidence that:

(I) the board of the operating partner includes at least three people and that their membership on the board pre-dates the submission of their application to the district;

(II) the operating partner has staff that will be fully dedicated to the management of the campus or campuses and that the level of staffing is reasonable given the number of campuses to be managed;

(III) the staff of the operating partner dedicated to the management of the campus or campuses has experience managing schools or academic programs;

(IV) the operating partner is provided with a reasonable per pupil amount or percentage of the revenue generated by attendance at the campus from the district to the operating partner of all federal, state, and local funds due the campus, to be paid to the operating partner for managing the campus or campuses each year; and

(V) the governing board of the operating partner will participate in board governance training provided by TEA or a vendor recommended by TEA within one year of approval of benefits;

(iv) evidence of a clear and coherent academic model or program to be implemented by the partner organization, including evidence that:

(I) the partner can clearly describe a consistent school vision for the campus or all campuses, including its culture, curriculum, assessment program, instructional strategies, talent recruitment and management strategies, and professional development activities or programs;

(II) the partner can clearly provide evidence that the aforementioned strategies and programs can be effective with the student population served in the campus or campuses; and

(III) the partner can clearly describe the management routines and practices to be implemented by the operating partner in managing the staff and academic programs as the campus or campuses;

(v) evidence that the applicant and proposed operating partner meet the requirements to contract to partner to operate, as outlined in §97.1075 of this title;

(vi) an assurance that the governing body of the operating partner shall remain independent of the independent school district. This may include the following:

(I) an assurance that the governing body of the operating partner is not and shall not be comprised of any members of the independent school district's board of trustees, the superintendent, or staff responsible for granting the contract to partner to operate or overseeing the performance contract;

(II) an assurance that the majority of the governing body of the operating partner is not and shall not be comprised of district staff;

(III) an assurance that no member of the governing body of the operating partner will be related within the first degree of affinity or consanguinity with any members of the independent school district's board of trustees, the superintendent, or staff responsible for granting the charter or contract to partner to operate or overseeing the performance contract;

(IV) an assurance that all members of the governing body of the operating partner have passed and will continually pass the district's conflict of interest checks;

(V) an assurance that the district has not appointed a majority of the members of the governing board of the operating partner; and

(vii) an assurance that the school district will provide a list of the board members of the governing body and a description of their respective backgrounds upon approval and annually thereafter.

(D) The criteria described in this subparagraph apply to a campus whose last preliminary or final overall performance rating was unacceptable. In addition to the criteria described in subparagraphs (A)-(C) of this paragraph, as applicable, each applicant must demonstrate evidence that the operating partner has the capacity necessary to successfully turn around campuses.

(i) For partnership benefits applied to district charter campuses authorized under TEC, Chapter 12, Subchapter C, that are approved for the 2020-2021 or 2021-2022 school year, evidence must be provided that the operating partner has staff in leadership positions with at least three years of experience managing campuses to academic success.

(ii) For partnership benefits applied to all campuses approved for the 2022-2023 school year and thereafter, evidence must be provided that the operating partner:

(I) has been in existence for at least three years prior to undertaking the management of the district campus;

(II) has managed multiple campuses for multiple years; and

(III) has a track record of managing campuses to academic success or has significantly improved the academic performance of campuses.

(E) In order to qualify for ongoing benefits, subsequent to initial eligibility validation or approval, the eligible partnership campus must comply with all information requests or monitoring visits deemed necessary by TEA staff to monitor the ongoing eligibility of the partnership.

(F) To receive benefits under TEC, §11.174(f) and (g) and §48.252, the district must continuously meet the requirements in this subsection.

(G) Notwithstanding this subsection, the commissioner will treat a campus granted a charter under TEC, Chapter 12, Subchapter C, as an open-enrollment charter school under TEC, §11.174(a)(1), if the Subchapter C charter was granted by a high-quality district authorizer. A high-quality district authorizer is a district that has successfully completed a state-approved professional development program in high-quality authorizing and has operated at least four Subchapter C campuses that are eligible for benefits under TEC, §11.174, in the prior year with at least 75% of those campuses performing at or above an agency-identified threshold for each campus's School Progress Domain.

Source Note: The provisions of this §97.1079 adopted to be effective April 4, 2018, 43 TexReg 1993; amended to be effective September 1, 2019, 44 TexReg 4477; amended to be effective March 31, 2020, 45 TexReg 2174; amended to be effective March 26, 2024, 49 TexReg 1921