Texas Attorney General Opinion: KP-0043 Page: 1 of 8
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KEN PAXTON
ATTORNEY GENERAL OF TEXAS
December 4, 2015
The Honorable Donna Bahorich Opinion No. KP-0043
Chair, State Board of Education
1701 North Congress Avenue Re: Authority of the State Board of
Austin, Texas 78701-1494 Education to promulgate rules governing the
process used by school districts and charter
schools in selecting instructional materials
(RQ-0026-KP)
Dear Ms. Bahorich:
Your predecessor asked seven questions related to the authority of the State Board of
Education ("SBOE") to promulgate rules regulating the process by which school districts and
open-enrollment charter schools select instructional materials.1 Alongside the seven questions
relating to SBOE's authority to enact specific rules, your predecessor asked the general question
of whether SBOE's "authority extend[s] to all local adoptions of instructional materials regardless
of whether the materials are purchased from [SBOE's] list of adopted instructional materials."
Request Letter at 2.
To answer this general question, a review of the statutes explaining SBOE's and the school
districts' respective authority is helpful. The Legislature has provided that SBOE "may perform
only those duties relating to school districts or regional education service centers assigned to
[SBOE] by the constitution of this state or by this subchapter or another provision of this code."
TEX. EDUC. CODE 7.102(a). "The school districts and charter schools created in accordance with
the laws of this state have the primary responsibility for implementing the state's system of public
education and ensuring student performance in accordance with this code." Id. 11.002. "The
trustees of [an independent school district] have the exclusive power and duty to govern and
oversee the management of the public schools of the district." Id. 11.151(b). "All powers and
duties not specifically delegated by statute to [the Texas Education Agency or SBOE] are reserved
for the trustees, and the agency may. not substitute its judgment for the lawful exercise of those
powers and duties by the trustees." Id.
Chapter 31 of the Education Code governs the approval and adoption of instructional
materials. Id. 31.001-.153. Subchapter A, titled "General Provisions," includes two relevant
sections. Section 31.003 provides: "The State Board of Education may adopt rules, consistent with
'See Letter from Honorable Barbara Cargill, Chair, State Bd. of Educ., to Honorable Ken Paxton, Tex. Att'y
Gen. at 2 (June 8, 2015), https://texasattomeygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter"). Upon
becoming Chair of SBOE, you asked that we proceed with the opinion. See Letter from Honorable Donna Bahorich,
Chair, State Bd. of Educ., to Virginia Hoelscher, Chair, Op. Comm. (July 17, 2015) (on file with the Op. Comm.).
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Texas. Attorney-General's Office. Texas Attorney General Opinion: KP-0043, text, December 4, 2015; (https://texashistory.unt.edu/ark:/67531/metapth1051089/m1/1/: accessed July 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.