CHAPTER 44. FISCAL MANAGEMENT
EDUCATION CODE
TITLE 2. PUBLIC EDUCATION
SUBTITLE I. SCHOOL FINANCE AND FISCAL MANAGEMENT
CHAPTER 44. FISCAL MANAGEMENT
SUBCHAPTER A. SCHOOL DISTRICT FISCAL MANAGEMENT
Sec. 44.001. FISCAL GUIDELINES. (a) The commissioner shall
establish advisory guidelines relating to the fiscal management
of a school district.
(b) The commissioner shall report annually to the State Board of
Education the status of school district fiscal management as
reflected by the advisory guidelines and by statutory
requirements.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995.
Sec. 44.0011. FISCAL YEAR. The fiscal year of a school district
begins on July 1 or September 1 of each year, as determined by
the board of trustees of the district. The commissioner may adopt
rules concerning the submission of information by a district
under Chapter 39 or 42 based on the fiscal year of the district.
Added by Acts 1999, 76th Leg., ch. 643, Sec. 1, eff. Sept. 1,
2001.
Sec. 44.002. PREPARATION OF BUDGET. (a) On or before a date
set by the State Board of Education, the superintendent shall
prepare, or cause to be prepared, a proposed budget covering all
estimated revenue and proposed expenditures of the district for
the following fiscal year.
(b) The budget must be prepared according to generally accepted
accounting principles, rules adopted by the State Board of
Education, and adopted policies of the board of trustees.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995.
Sec. 44.003. RECORDS AND REPORTS. The superintendent shall
ensure that records are kept and that copies of all budgets, all
forms, and all other reports are filed on behalf of the school
district at the proper times and in the proper offices as
required by this code.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995.
Sec. 44.004. NOTICE OF BUDGET AND TAX RATE MEETING; BUDGET
ADOPTION. (a) When the budget has been prepared under Section
44.002, the president shall call a meeting of the board of
trustees for the purpose of adopting a budget for the succeeding
fiscal year.
(b) The president shall provide for the publication of notice of
the budget and proposed tax rate meeting in a daily, weekly, or
biweekly newspaper published in the district. If no daily,
weekly, or biweekly newspaper is published in the district, the
president shall provide for the publication of notice in at least
one newspaper of general circulation in the county in which the
district's central administrative office is located. Notice under
this subsection shall be published not earlier than the 30th day
or later than the 10th day before the date of the hearing.
(c) The notice of public meeting to discuss and adopt the budget
and the proposed tax rate may not be smaller than one-quarter
page of a standard-size or a tabloid-size newspaper, and the
headline on the notice must be in 18-point or larger type.
Subject to Subsection (d), the notice must:
(1) contain a statement in the following form:
"NOTICE OF PUBLIC MEETING TO DISCUSS BUDGET AND PROPOSED TAX RATE
"The (name of school district) will hold a public meeting at
(time, date, year) in (name of room, building, physical location,
city, state). The purpose of this meeting is to discuss the
school district's budget that will determine the tax rate that
will be adopted. Public participation in the discussion is
invited." The statement of the purpose of the meeting must be in
bold type. In reduced type, the notice must state: "The tax
rate that is ultimately adopted at this meeting or at a separate
meeting at a later date may not exceed the proposed rate shown
below unless the district publishes a revised notice containing
the same information and comparisons set out below and holds
another public meeting to discuss the revised notice.";
(2) contain a section entitled "Comparison of Proposed Budget
with Last Year's Budget," which must show the difference,
expressed as a percent increase or decrease, as applicable, in
the amounts budgeted for the preceding fiscal year and the amount
budgeted for the fiscal year that begins in the current tax year
for each of the following:
(A) maintenance and operations;
(B) debt service; and
(C) total expenditures;
(3) contain a section entitled "Total Appraised Value and Total
Taxable Value," which must show the total appraised value and the
total taxable value of all property and the total appraised value
and the total taxable value of new property taxable by the
district in the preceding tax year and the current tax year as
calculated under Section 26.04, Tax Code;
(4) contain a statement of the total amount of the outstanding
and unpaid bonded indebtedness of the school district;
(5) contain a section entitled "Comparison of Proposed Rates
with Last Year's Rates," which must:
(A) show in rows the tax rates described by Subparagraphs
(i)-(iii), expressed as amounts per $100 valuation of property,
for columns entitled "Maintenance & Operations," "Interest
& Sinking Fund," and "Total," which is the sum of
"Maintenance & Operations" and "Interest & Sinking Fund":
(i) the school district's "Last Year's Rate";
(ii) the "Rate to Maintain Same Level of Maintenance &
Operations Revenue & Pay Debt Service," which:
(a) in the case of "Maintenance & Operations," is the tax
rate that, when applied to the current taxable value for the
district, as certified by the chief appraiser under Section
26.01, Tax Code, and as adjusted to reflect changes made by the
chief appraiser as of the time the notice is prepared, would
impose taxes in an amount that, when added to state funds to be
distributed to the district under Chapter 42, would provide the
same amount of maintenance and operations taxes and state funds
distributed under Chapter 42 per student in average daily
attendance for the applicable school year that was available to
the district in the preceding school year; and
(b) in the case of "Interest & Sinking Fund," is the tax
rate that, when applied to the current taxable value for the
district, as certified by the chief appraiser under Section
26.01, Tax Code, and as adjusted to reflect changes made by the
chief appraiser as of the time the notice is prepared, and when
multiplied by the district's anticipated collection rate, would
impose taxes in an amount that, when added to state funds to be
distributed to the district under Chapter 46 and any excess taxes
collected to service the district's debt during the preceding tax
year but not used for that purpose during that year, would
provide the amount required to service the district's debt; and
(iii) the "Proposed Rate";
(B) contain fourth and fifth columns aligned with the columns
required by Paragraph (A) that show, for each row required by
Paragraph (A):
(i) the "Local Revenue per Student," which is computed by
multiplying the district's total taxable value of property, as
certified by the chief appraiser for the applicable school year
under Section 26.01, Tax Code, and as adjusted to reflect changes
made by the chief appraiser as of the time the notice is
prepared, by the total tax rate, and dividing the product by the
number of students in average daily attendance in the district
for the applicable school year; and
(ii) the "State Revenue per Student," which is computed by
determining the amount of state aid received or to be received by
the district under Chapters 42, 43, and 46 and dividing that
amount by the number of students in average daily attendance in
the district for the applicable school year; and
(C) contain an asterisk after each calculation for "Interest
& Sinking Fund" and a footnote to the section that, in
reduced type, states "The Interest & Sinking Fund tax revenue
is used to pay for bonded indebtedness on construction,
equipment, or both. The bonds, and the tax rate necessary to pay
those bonds, were approved by the voters of this district.";
(6) contain a section entitled "Comparison of Proposed Levy with
Last Year's Levy on Average Residence," which must:
(A) show in rows the information described by Subparagraphs
(i)-(iv), rounded to the nearest dollar, for columns entitled
"Last Year" and "This Year":
(i) "Average Market Value of Residences," determined using the
same group of residences for each year;
(ii) "Average Taxable Value of Residences," determined after
taking into account the limitation on the appraised value of
residences under Section 23.23, Tax Code, and after subtracting
all homestead exemptions applicable in each year, other than
exemptions available only to disabled persons or persons 65 years
of age or older or their surviving spouses, and using the same
group of residences for each year;
(iii) "Last Year's Rate Versus Proposed Rate per $100 Value";
and
(iv) "Taxes Due on Average Residence," determined using the same
group of residences for each year; and
(B) contain the following information: "Increase (Decrease) in
Taxes" expressed in dollars and cents, which is computed by
subtracting the "Taxes Due on Average Residence" for the
preceding tax year from the "Taxes Due on Average Residence" for
the current tax year;
(7) contain the following statement in bold print: "Under state
law, the dollar amount of school taxes imposed on the residence
of a person 65 years of age or older or of the surviving spouse
of such a person, if the surviving spouse was 55 years of age or
older when the person died, may not be increased above the amount
paid in the first year after the person turned 65, regardless of
changes in tax rate or property value.";
(8) contain the following statement in bold print: "Notice of
Rollback Rate: The highest tax rate the district can adopt
before requiring voter approval at an election is (the school
district rollback rate determined under Section 26.08, Tax Code).
This election will be automatically held if the district adopts
a rate in excess of the rollback rate of (the school district
rollback rate)."; and
(9) contain a section entitled "Fund Balances," which must
include the estimated amount of interest and sinking fund
balances and the estimated amount of maintenance and operation or
general fund balances remaining at the end of the current fiscal
year that are not encumbered with or by corresponding debt
obligation, less estimated funds necessary for the operation of
the district before the receipt of the first payment under
Chapter 42 in the succeeding school year.
(c-1) The notice described by Subsection (c) must state in a
distinct row or on a separate or individual line for each of the
following taxes:
(1) the proposed rate of the school district's maintenance tax
described by Section 45.003, under the heading "Maintenance Tax";
and
(2) if the school district has issued ad valorem tax bonds under
Section 45.001, the proposed rate of the tax to pay for the
bonds, under the heading "School Debt Service Tax Approved by
Local Voters."
(d) The comptroller shall prescribe the language and format to
be used in the part of the notice required by Subsection (c). A
notice under Subsection (c) is not valid if it does not
substantially conform to the language and format prescribed by
the comptroller under this subsection.
(e) A person who owns taxable property in a school district is
entitled to an injunction restraining the collection of taxes by
the district if the district has not complied with the
requirements of Subsections (b), (c), and (d), and, if
applicable, Subsection (i), and the failure to comply was not in
good faith. An action to enjoin the collection of taxes must be
filed before the date the school district delivers substantially
all of its tax bills.
(f) The board of trustees, at the meeting called for that
purpose, shall adopt a budget to cover all expenditures for the
school district for the next succeeding fiscal year. Any taxpayer
of the district may be present and participate in the meeting.
(g) The budget must be adopted before the adoption of the tax
rate for the tax year in which the fiscal year covered by the
budget begins.
(h) Notwithstanding any other provision of this section, a
school district with a fiscal year beginning July 1 may use the
certified estimate of the taxable value of district property
required by Section 26.01(e), Tax Code, in preparing the notice
required by this section if the district does not receive on or
before June 7 the certified appraisal roll for the district
required by Section 26.01(a), Tax Code.
(i) A school district that uses a certified estimate, as
authorized by Subsection (h), may adopt a budget at the public
meeting designated in the notice prepared using the estimate, but
the district may not adopt a tax rate before the district
receives the certified appraisal roll for the district required
by Section 26.01(a), Tax Code. After receipt of the certified
appraisal roll, the district must publish a revised notice and
hold another public meeting before the district may adopt a tax
rate that exceeds:
(1) the rate proposed in the notice prepared using the estimate;
or
(2) the district's rollback rate determined under Section 26.08,
Tax Code, using the certified appraisal roll.
(j) Notwithstanding Subsections (g), (h), and (i), a school
district may adopt a budget after the district adopts a tax rate
for the tax year in which the fiscal year covered by the budget
begins if the district elects to adopt a tax rate before
receiving the certified appraisal roll for the district as
provided by Section 26.05(g), Tax Code. If a school district
elects to adopt a tax rate before adopting a budget, the district
must publish notice and hold a meeting for the purpose of
discussing the proposed tax rate as provided by this section.
Following adoption of the tax rate, the district must publish
notice and hold another public meeting before the district may
adopt a budget. The comptroller shall prescribe the language and
format to be used in the notices. The school district may use
the certified estimate of taxable value in preparing a notice
under this subsection.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995. Amended by Acts 1999, 76th Leg., ch. 398, Sec. 1, eff. Aug.
30, 1999; Acts 2001, 77th Leg., ch. 898, Sec. 1, eff. Sept. 1,
2001.
Amended by:
Acts 2005, 79th Leg., Ch.
807, Sec. 2, eff. June 17, 2005.
Acts 2006, 79th Leg., 3rd C.S., Ch.
5, Sec. 1.11, eff. May 31, 2006.
Acts 2009, 81st Leg., R.S., Ch.
1328, Sec. 66, eff. September 1, 2009.
Sec. 44.0041. PUBLICATION OF SUMMARY OF PROPOSED BUDGET. (a)
Concurrently with the publication of notice of the budget under
Section 44.004, a school district shall post a summary of the
proposed budget:
(1) on the school district's Internet website; or
(2) if the district has no Internet website, in the district's
central administrative office.
(b) The budget summary must include:
(1) information relating to per student and aggregate spending
on:
(A) instruction;
(B) instructional support;
(C) central administration;
(D) district operations;
(E) debt service; and
(F) any other category designated by the commissioner; and
(2) a comparison to the previous year's actual spending.
Added by Acts 2006, 79th Leg., 3rd C.S., Ch.
5, Sec. 2.06, eff. May 31, 2006.
Sec. 44.005. FILING OF ADOPTED BUDGET. On or before a date set
by the State Board of Education, the budget must be filed with
the agency according to the rules established by the State Board
of Education.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995.
Sec. 44.006. EFFECT OF ADOPTED BUDGET; AMENDMENTS. (a) Public
funds of the school district may not be spent in any manner other
than as provided for in the budget adopted by the board of
trustees, but the board may amend a budget or adopt a
supplementary emergency budget to cover necessary unforeseen
expenses.
(b) Any amendment or supplementary budget must be prepared and
filed according to rules adopted by the State Board of Education.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995.
Sec. 44.007. ACCOUNTING SYSTEM; REPORT. (a) A standard school
fiscal accounting system must be adopted and installed by the
board of trustees of each school district. The accounting system
must conform with generally accepted accounting principles.
(b) The accounting system must meet at least the minimum
requirements prescribed by the commissioner, subject to review
and comment by the state auditor.
(c) A record must be kept of all revenues realized and of all
expenditures made during the fiscal year for which a budget is
adopted. A report of the revenues and expenditures for the
preceding fiscal year shall be filed with the agency on or before
the date set by the State Board of Education.
(d) The State Board of Education shall require each district, as
part of the report required by this section, to include
management, cost accounting, and financial information in a
format prescribed by the board and in a manner sufficient to
enable the board to monitor the funding process and determine
educational system costs by district, campus, and program.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995.
Amended by:
Acts 2006, 79th Leg., 3rd C.S., Ch.
5, Sec. 2.08, eff. May 31, 2006.
Sec. 44.0071. COMPUTATION OF INSTRUCTIONAL EXPENDITURES RATIO
AND INSTRUCTIONAL EMPLOYEES RATIO. (a) Each fiscal year, a
school district shall compute and report to the commissioner:
(1) the percentage of the district's total expenditures for the
preceding fiscal year that were used to fund direct instructional
activities; and
(2) the percentage of the district's full-time equivalent
employees during the preceding fiscal year whose job function was
to directly provide classroom instruction to students, determined
by dividing the number of hours spent by employees in providing
direct classroom instruction by the total number of hours worked
by all district employees.
(b) At least annually a school district shall provide educators
employed by the district with a list of district employees
determined by the district for purposes of this section to be
engaged in directly providing classroom instruction to students.
The list must include the percentage of time spent by each
employee in directly providing classroom instruction to students.
(c) For purposes of this section, the computation of a
district's expenditures used to fund direct instructional
activities shall include the salary, including any associated
employment taxes, and value of any benefits provided to any
district employee who directly provided classroom instruction to
students, but only in proportion to the percentage of time spent
by the employee in directly providing classroom instruction to
students.
(d) The commissioner shall adopt rules as necessary to implement
this section. To the extent possible, the rules must provide for
development of the information required by this section using
information otherwise compiled by school districts for reporting
through the Public Education Information Management System
(PEIMS).
Added by Acts 2003, 78th Leg., ch. 1269, Sec. 1, eff. Sept. 1,
2003.
Sec. 44.008. ANNUAL AUDIT; REPORT. (a) The board of school
trustees of each school district shall have its school district
fiscal accounts audited annually at district expense by a
certified or public accountant holding a permit from the Texas
State Board of Public Accountancy. The audit must be completed
following the close of each fiscal year.
(b) The independent audit must meet at least the minimum
requirements and be in the format prescribed by the State Board
of Education, subject to review and comment by the state auditor.
The audit shall include an audit of the accuracy of the fiscal
information provided by the district through the Public Education
Information Management System (PEIMS).
(c) Each treasurer receiving or having control of any school
fund of any school district shall keep a full and separate
itemized account with each of the different classes of its school
funds coming into the treasurer's hands. The treasurer's records
of the district's itemized accounts and records shall be made
available to audit.
(d) A copy of the annual audit report, approved by the board of
trustees, shall be filed by the district with the agency not
later than the 150th day after the end of the fiscal year for
which the audit was made. If the board of trustees declines or
refuses to approve its auditor's report, it shall nevertheless
file with the agency a copy of the audit report with its
statement detailing reasons for failure to approve the report.
(e) The audit reports shall be reviewed by the agency, and the
commissioner shall notify the board of trustees of objections,
violations of sound accounting practices or law and regulation
requirements, or of recommendations concerning the audit reports
that the commissioner wants to make. If the audit report reflects
that penal laws have been violated, the commissioner shall notify
the appropriate county or district attorney and the attorney
general. The commissioner shall have access to all vouchers,
receipts, district fiscal and financial records, and other school
records as the commissioner considers necessary and appropriate
for the review, analysis, and passing on audit reports.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995. Amended by Acts 2001, 77th Leg., ch. 914, Sec. 2, eff.
Sept. 1, 2001.
Sec. 44.009. FINANCIAL REPORTS TO COMMISSIONER OR AGENCY; FORMS.
(a) All financial reports made by or for school districts or by
their officers, agents, or employees, to the commissioner or to
the agency, shall be made on forms prescribed by the agency,
subject to review and comment by the state auditor.
(b) The agency shall combine as many forms as possible to avoid
multiplicity of reports. The forms shall provide for entry of all
information required by law or by the commissioner and
information considered necessary by the state auditor.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995.
Sec. 44.010. REVIEW BY AGENCY. The budgets, fiscal reports, and
audit reports filed with the agency shall be reviewed and
analyzed by the staff of the agency to determine whether all
legal requirements have been met and to collect fiscal data
needed in preparing school fiscal reports for the governor and
the legislature.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995.
SUBCHAPTER B. PURCHASES; CONTRACTS
Sec. 44.031. PURCHASING CONTRACTS. (a) Except as provided by
this subchapter, all school district contracts, except contracts
for the purchase of produce or vehicle fuel, valued at $50,000 or
more in the aggregate for each 12-month period shall be made by
the method, of the following methods, that provides the best
value for the district:
(1) competitive bidding;
(2) competitive sealed proposals;
(3) a request for proposals, for services other than
construction services;
(4) an interlocal contract;
(5) a design/build contract;
(6) a contract to construct, rehabilitate, alter, or repair
facilities that involves using a construction manager;
(7) a job order contract for the minor construction, repair,
rehabilitation, or alteration of a facility;
(8) the reverse auction procedure as defined by Section
2155.062(d), Government Code; or
(9) the formation of a political subdivision corporation under
Section 304.001, Local Government Code.
(b) Except as provided by this subchapter, in determining to
whom to award a contract, the district shall consider:
(1) the purchase price;
(2) the reputation of the vendor and of the vendor's goods or
services;
(3) the quality of the vendor's goods or services;
(4) the extent to which the goods or services meet the
district's needs;
(5) the vendor's past relationship with the district;
(6) the impact on the ability of the district to comply with
laws and rules relating to historically underutilized businesses;
(7) the total long-term cost to the district to acquire the
vendor's goods or services; and
(8) any other relevant factor specifically listed in the request
for bids or proposals.
(b-1) In awarding a contract by competitive sealed bid under
this section, a school district that has its central
administrative office located in a municipality with a population
of less than 250,000 may consider a bidder's principal place of
business in the manner provided by Section 271.9051, Local
Government Code. This subsection does not apply to the purchase
of telecommunications services or information services, as those
terms are defined by 47 U.S.C. Section 153.
(c) The state auditor may audit purchases of goods or services
by the district.
(d) The board of trustees of the district may adopt rules and
procedures for the acquisition of goods or services.
(e) To the extent of any conflict, this subchapter prevails over
any other law relating to the purchasing of goods and services
except a law relating to contracting with historically
underutilized businesses.
(f) This section does not apply to a contract for professional
services rendered, including services of an architect, attorney,
or fiscal agent. A school district may, at its option, contract
for professional services rendered by a financial consultant or a
technology consultant in the manner provided by Section 2254.003,
Government Code, in lieu of the methods provided by this section.
(g) Notice of the time by when and place where the bids or
proposals, or the responses to a request for qualifications, will
be received and opened shall be published in the county in which
the district's central administrative office is located, once a
week for at least two weeks before the deadline for receiving
bids, proposals, or responses to a request for qualifications. If
there is not a newspaper in that county, the advertising shall be
published in a newspaper in the county nearest the county seat of
the county in which the district's central administrative office
is located. In a two-step procurement process, the time and place
where the second-step bids, proposals, or responses will be
received are not required to be published separately.
Text of subsec. (h) as amended by Acts 1999, 76th Leg., ch. 922,
Sec. 1
(h) If school equipment, a school facility, or a portion of a
school facility is destroyed, severely damaged, or experiences a
major unforeseen operational or structural failure, and the board
of trustees determines that the delay posed by the contract
methods required by this section would prevent or substantially
impair the conduct of classes or other essential school
activities, then contracts for the replacement or repair of the
equipment, school facility, or portion of the school facility may
be made by a method other than the methods required by this
section.
Text of subsec. (h) as amended by Acts 1999, 76th Leg., ch. 1225,
Sec. 1
(h) If school equipment or a part of a school facility or
personal property is destroyed or severely damaged or, as a
result of an unforeseen catastrophe or emergency, undergoes major
operational or structural failure, and the board of trustees
determines that the delay posed by the methods provided for in
this section would prevent or substantially impair the conduct of
classes or other essential school activities, then contracts for
the replacement or repair of the equipment or the part of the
school facility may be made by methods other than those required
by this section.
(i) A school district may acquire computers and computer-related
equipment, including computer software, through the Department of
Information Resources under contracts entered into in accordance
with Chapter 2054 or 2157, Government Code. Before issuing an
invitation for bids, the department shall consult with the agency
concerning the computer and computer-related equipment needs of
school districts. To the extent possible the resulting contract
shall provide for such needs.
(j) Without complying with Subsection (a), a school district may
purchase an item that is available from only one source,
including:
(1) an item for which competition is precluded because of the
existence of a patent, copyright, secret process, or monopoly;
(2) a film, manuscript, or book;
(3) a utility service, including electricity, gas, or water; and
(4) a captive replacement part or component for equipment.
(k) The exceptions provided by Subsection (j) do not apply to
mainframe data-processing equipment and peripheral attachments
with a single-item purchase price in excess of $15,000.
(l) Each contract proposed to be made by a school district for
the purchase or lease of one or more school buses, including a
lease with an option to purchase, must be submitted to
competitive bidding when the contract is valued at $20,000 or
more.
(m) If a purchase is made at the campus level in a school
district with a student enrollment of 180,000 or more that has
formally adopted a site-based decision-making plan under
Subchapter F, Chapter 11, that delegates purchasing decisions to
the campus level, this section applies only to the campus and
does not require the district to aggregate and jointly award
purchasing contracts. A district that adopts site-based
purchasing under this subsection shall adopt a policy to ensure
that campus purchases achieve the best value to the district and
are not intended or used to avoid the requirement that a district
aggregate purchases under Subsection (a).
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995. Amended by Acts 1997, 75th Leg., ch. 1179, Sec. 1, eff.
Sept. 1, 1997; Acts 1999, 76th Leg., ch. 881, Sec. 1, eff. June
18, 1999; Acts 1999, 76th Leg., ch. 922, Sec. 1, eff. June 18,
1999; Acts 1999, 76th Leg., ch. 1225, Sec. 1, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 436, Sec. 7, eff. May 28, 2001; Acts
2001, 77th Leg., ch. 1409, Sec. 9, eff. Sept. 1, 2001; Acts 2003,
78th Leg., ch. 201, Sec. 38, eff. Sept. 1, 2003; Acts 2003, 78th
Leg., ch. 680, Sec. 1, eff. June 20, 2003.
Amended by:
Acts 2005, 79th Leg., Ch.
1205, Sec. 2, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch.
325, Sec. 1, eff. June 15, 2007.
Acts 2007, 80th Leg., R.S., Ch.
449, Sec. 4, eff. June 16, 2007.
Acts 2007, 80th Leg., R.S., Ch.
937, Sec. 2.02, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch.
1081, Sec. 1, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch.
1266, Sec. 1, eff. June 19, 2009.
Sec. 44.0311. APPLICABILITY TO JUNIOR COLLEGE DISTRICTS. (a)
Except as provided by Subsection (c), this subchapter applies to
junior college districts.
(b) For purposes of this subchapter, "board of trustees"
includes the governing board of a junior college district.
(c) This subchapter does not apply to a purchase, acquisition,
or license of library goods and services for a library operated
as a part of a junior college district. In this subsection,
"library goods and services" has the meaning assigned by Section
130.0101(a).
Added by Acts 1999, 76th Leg., ch. 1225, Sec. 2, eff. Sept. 1,
1999.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
336, Sec. 1, eff. June 19, 2009.
Sec. 44.0312. DELEGATION. (a) The board of trustees of the
district may, as appropriate, delegate its authority under this
subchapter regarding an action authorized or required by this
subchapter to be taken by a school district to a designated
person, representative, or committee. In procuring construction
services, the district shall provide notice of the delegation and
the limits of the delegation in the request for bids, proposals,
or qualifications or in an addendum to the request. If the
district fails to provide that notice, a ranking, selection, or
evaluation of bids, proposals, or qualifications for construction
services other than by the board of trustees in an open public
meeting is advisory only.
(b) The board may not delegate the authority to act regarding an
action authorized or required by this subchapter to be taken by
the board of trustees of a school district.
(c) Notwithstanding any other provision of this code, in the
event of a catastrophe, emergency, or natural disaster affecting
a school district, the board of trustees of the district may
delegate to the superintendent or designated person the authority
to contract for the replacement, construction, or repair of
school equipment or facilities under this subchapter if emergency
replacement, construction, or repair is necessary for the health
and safety of district students and staff.
Added by Acts 1999, 76th Leg., ch. 1225, Sec. 2, eff. Sept. 1,
1999.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
1006, Sec. 6, eff. June 19, 2009.
Sec. 44.0313. PROCEDURES FOR ELECTRONIC BIDS OR PROPOSALS. (a)
A school district may receive bids or proposals under this
chapter through electronic transmission if the board of trustees
of the school district adopts rules to ensure the identification,
security, and confidentiality of electronic bids or proposals and
to ensure that the electronic bids or proposals remain
effectively unopened until the proper time.
(b) Notwithstanding any other provision of this chapter, an
electronic bid or proposal is not required to be sealed. A
provision of this chapter that applies to a sealed bid or
proposal applies to a bid or proposal received through electronic
transmission in accordance with the rules adopted under
Subsection (a).
Added by Acts 2009, 81st Leg., R.S., Ch.
1266, Sec. 2, eff. June 19, 2009.
Sec. 44.0315. DEFINITIONS. In this subchapter:
(1) "Architect" means an individual registered as an architect
under Chapter 1051, Occupations Code.
(2) "Contractor" in the context of a contract for the
construction, rehabilitation, alteration, or repair of a facility
means a sole proprietorship, partnership, corporation, or other
legal entity that assumes the risk for constructing,
rehabilitating, altering, or repairing all or part of the
facility at the contracted price.
(3) "Engineer" means an individual licensed as an engineer under
Chapter 1001, Occupations Code.
(4) "Facility" means real property, including buildings and
associated structures and improved or unimproved land. The term
does not include:
(A) highways, roads, streets, bridges, utilities, water supply
projects, water plants, wastewater plants, water and wastewater
distribution or conveyance facilities, wharves, docks, airport
runways and taxiways, drainage projects, or related types of
projects associated with civil engineering construction; or
(B) buildings or structures that are incidental to projects that
are primarily civil engineering construction projects.
(5) "Fee" in the context of a contract for the construction,
rehabilitation, alteration, or repair of a facility means the
payment a construction manager receives for its overhead and
profit in performing its services.
(6) "General conditions" in the context of a contract for the
construction, rehabilitation, alteration, or repair of a facility
means on-site management, administrative personnel, insurance,
bonds, equipment, utilities, and incidental work, including minor
field labor and materials.
Added by Acts 1997, 75th Leg., ch. 1179, Sec. 2, eff. Sept. 1,
1997. Amended by Acts 2001, 77th Leg., ch. 1409, Sec. 10, eff.
Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.756, eff.
Sept. 1, 2003.
Sec. 44.032. ENFORCEMENT OF PURCHASE PROCEDURES: CRIMINAL
PENALTIES; REMOVAL; INELIGIBILITY. (a) In this section:
(1) "Component purchases" means purchases of the component parts
of an item that in normal purchasing practices would be purchased
in one purchase.
(2) "Separate purchases" means purchases, made separately, of
items that in normal purchasing practices would be purchased in
one purchase.
(3) "Sequential purchases" means purchases, made over a period,
of items that in normal purchasing practices would be purchased
in one purchase.
(b) An officer, employee, or agent of a school district commits
an offense if the person with criminal negligence makes or
authorizes separate, sequential, or component purchases to avoid
the requirements of Section 44.031(a) or (b). An offense under
this subsection is a Class B misdemeanor and is an offense
involving moral turpitude.
(c) An officer, employee, or agent of a school district commits
an offense if the person with criminal negligence violates
Section 44.031(a) or (b) other than by conduct described by
Subsection (b). An offense under this subsection is a Class B
misdemeanor and is an offense involving moral turpitude.
(d) An officer or employee of a school district commits an
offense if the officer or employee knowingly violates Section
44.031, other than by conduct described by Subsection (b) or (c).
An offense under this subsection is a Class C misdemeanor.
(e) The final conviction of a person other than a trustee of a
school district for an offense under Subsection (b) or (c)
results in the immediate removal from office or employment of
that person. A trustee who is convicted of an offense under this
section is considered to have committed official misconduct for
purposes of Chapter 87, Local Government Code, and is subject to
removal as provided by that chapter and Section 24, Article V,
Texas Constitution. For four years after the date of the final
conviction, the removed person is ineligible to be a candidate
for or to be appointed or elected to a public office in this
state, is ineligible to be employed by or act as an agent for the
state or a political subdivision of the state, and is ineligible
to receive any compensation through a contract with the state or
a political subdivision of the state. This subsection does not
prohibit the payment of retirement benefits to the removed person
or the payment of workers' compensation benefits to the removed
person for an injury that occurred before the commission of the
offense for which the person was removed. This subsection does
not make a person ineligible for an office for which the federal
or state constitution prescribes exclusive eligibility
requirements.
(f) A court may enjoin performance of a contract made in
violation of this subchapter. A county attorney, a district
attorney, a criminal district attorney, a citizen of the county
in which the school district is located, or any interested party
may bring an action for an injunction. A party who prevails in an
action brought under this subsection is entitled to reasonable
attorney's fees as approved by the court.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995. Amended by Acts 1999, 76th Leg., ch. 1225, Sec. 3, eff.
Sept. 1, 1999.
Sec. 44.0331. MANAGEMENT FEES UNDER CERTAIN COOPERATIVE
PURCHASING CONTRACTS. (a) A school district that enters into a
purchasing contract valued at $25,000 or more under Section
44.031(a)(5), under Subchapter F, Chapter 271, Local Government
Code, or under any other cooperative purchasing program
authorized for school districts by law shall document any
contract-related fee, including any management fee, and the
purpose of each fee under the contract.
(b) The amount, purpose, and disposition of any fee described by
Subsection (a) must be presented in a written report and
submitted annually in an open meeting of the board of trustees of
the school district. The written report must appear as an agenda
item.
(c) The commissioner may audit the written report described by
Subsection (b).
Added by Acts 2007, 80th Leg., R.S., Ch.
449, Sec. 5, eff. June 16, 2007.
Sec. 44.034. NOTIFICATION OF CRIMINAL HISTORY OF CONTRACTOR.
(a) A person or business entity that enters into a contract with
a school district must give advance notice to the district if the
person or an owner or operator of the business entity has been
convicted of a felony. The notice must include a general
description of the conduct resulting in the conviction of a
felony.
(b) A school district may terminate a contract with a person or
business entity if the district determines that the person or
business entity failed to give notice as required by Subsection
(a) or misrepresented the conduct resulting in the conviction.
The district must compensate the person or business entity for
services performed before the termination of the contract.
(c) This section does not apply to a publicly held corporation.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30,
1995.
Sec. 44.035. EVALUATION OF BIDS AND PROPOSALS FOR CONSTRUCTION
SERVICES. (a) The board of trustees of a school district that
is considering a construction contract using a method specified
by Section 44.031(a) must, before advertising, determine which
method provides the best value for the district.
(b) The district shall base its selection among offerors on
criteria authorized to be used under Section 44.031(b). The
district shall publish in the request for bids, proposals, or
qualifications the criteria that will be used to evaluate the
offerors and the relative weights given to the criteria.
(c) The district shall document the basis of its selection and
shall make the evaluations public not later than the seventh day
after the date the contract is awarded.
Added by Acts 1997, 75th Leg., ch. 1179, Sec. 2, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 1225, Sec. 4, eff.
Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1409, Sec. 11, eff.
Sept. 1, 2001.
Sec. 44.036. DESIGN-BUILD CONTRACTS FOR FACILITIES. (a) In
this section:
(1) "Design-build contract" means a single contract with a
design-build firm for the design and construction of a facility.
(2) "Design-build firm" means a partnership, corporation, or
other legal entity or team that includes an engineer or architect
and builder qualified to engage in building construction in
Texas.
(3) "Design criteria package" means a set of documents that
provides sufficient information to permit a design-build firm to
prepare a response to a school district's request for
qualifications and any additional information requested,
including criteria for selection. The design criteria package
must specify criteria the district considers necessary to
describe the project and may include, as appropriate, the legal
description of the site, survey information concerning the site,
interior space requirements, special material requirements,
material quality standards, conceptual criteria for the project,
special equipment requirements, cost or budget estimates, time
schedules, quality assurance and quality control requirements,
site development requirements, applicable codes and ordinances,
provisions for utilities, parking requirements, or any other
requirement, as applicable.
(b) A school district may use the design-build method for the
construction, rehabilitation, alteration, or repair of a
facility. In using that method and in entering into a contract
for the services of a design-build firm, the contracting school
district and the design-build firm shall follow the procedures
provided by Subsections (c)-(j).
(c) The district shall designate an engineer or architect
independent of the design-build firm to act as its representative
for the duration of the work on the facility. If the district's
engineer or architect is not a full-time employee of the
district, any engineer or architect designated shall be selected
on the basis of demonstrated competence and qualifications in
accordance with Section 2254.004, Government Code.
(d) The district shall prepare a request for qualifications that
includes general information on the project site, project scope,
budget, special systems, selection criteria, and other
information that may assist potential design-build firms in
submitting proposals for the project. The district shall also
prepare the design criteria package that includes more detailed
information on the project. If the preparation of the design
criteria package requires engineering or architectural services
that constitute the practice of engineering within the meaning of
Chapter 1001, Occupations Code, or the practice of architecture
within the meaning of Chapter 1051, Occupations Code, those
services shall be provided in accordance with the applicable law.
(e) The district shall evaluate statements of qualifications and
select a design-build firm in two phases:
(1) In phase one, the district shall prepare a request for
qualifications and evaluate each offeror's experience, technical
competence, and capability to perform, the past performance of
the offeror's team and members of the team, and other appropriate
factors submitted by the team or firm in response to the request
for qualifications, except that cost-related or price-related
evaluation factors are not permitted. Each offeror must certify
to the district that each engineer or architect that is a member
of its team was selected based on demonstrated competence and
qualifications, in the manner provided by Section 2254.004,
Government Code. The district shall qualify a maximum of five
offerors to submit additional information and, if the district
chooses, to interview for final selection.
(2) In phase two, the district shall evaluate the information
submitted by the offerors on the basis of the selection criteria
stated in the request for qualifications and the results of any
interview. The district may request additional information
regarding demonstrated competence and qualifications,
considerations of the safety and long-term durability of the
project, the feasibility of implementing the project as proposed,
the ability of the offeror to meet schedules, costing
methodology, or other factors as appropriate. The district may
not require offerors to submit detailed engineering or
architectural designs as part of the proposal. The district shall
rank each proposal submitted on the basis of the criteria set
forth in the request for qualifications. The district shall
select the design-build firm that submits the proposal offering
the best value for the district on the basis of the published
selection criteria and on its ranking evaluations. The district
shall first attempt to negotiate with the selected offeror a
contract. If the district is unable to negotiate a satisfactory
contract with the selected offeror, the district shall, formally
and in writing, end negotiations with that offeror and proceed to
negotiate with the next offeror in the order of the selection
ranking until a contract is reached or negotiations with all
ranked offerors end.
(f) Following selection of a design-build firm under Subsection
(e), that firm's engineers or architects shall complete the
design, submitting all design elements for review and
determination of scope compliance to the district or district's
engineer or architect before or concurrently with construction.
(g) An engineer shall have responsibility for compliance with
the engineering design requirements and all other applicable
requirements of Chapter 1001, Occupations Code. An architect
shall have responsibility for compliance with the requirements of
Chapter 1051, Occupations Code.
(h) The district shall provide or contract for, independently of
the design-build firm, the inspection services, the testing of
construction materials engineering, and the verification testing
services necessary for acceptance of the facility by the
district. The district shall select those services for which it
contracts in accordance with Section 2254.004, Government Code.
(i) The design-build firm shall supply a signed and sealed set
of construction documents for the project to the district at the
conclusion of construction.
(j) A payment or performance bond is not required for, and may
not provide coverage for, the portion of a design-build contract
under this section that includes design services only. If a fixed
contract amount or guaranteed maximum price has not been
determined at the time a design-build contract is awarded, the
penal sums of the performance and payment bonds delivered to the
district must each be in an amount equal to the project budget,
as specified in the design criteria package. The design-build
firm shall deliver the bonds not later than the 10th day after
the date the design-build firm executes the contract unless the
design-build firm furnishes a bid bond or other financial
security acceptable to the district to ensure that the
design-build firm will furnish the required performance and
payment bonds when a guaranteed maximum price is established.
Added by Acts 1997, 75th Leg., ch. 1179, Sec. 2, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 1225, Sec. 5, 6, eff.
Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1409, Sec. 12, eff.
Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.757, eff.
Sept. 1, 2003.
Sec. 44.037. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AGENT. (a) A school district may use the construction
manager-agent method for the construction, rehabilitation,
alteration, or repair of a facility. In using that method and in
entering into a contract for the services of a construction
manager-agent, a district shall follow the procedures prescribed
by this section.
(b) A construction manager-agent is a sole proprietorship,
partnership, corporation, or other legal entity that provides
consultation to the school district regarding construction,
rehabilitation, alteration, or repair of the facility. A district
using the construction manager-agent method may, under the
contract between the district and the construction manager-agent,
require the construction manager-agent to provide administrative
personnel, equipment necessary to perform duties under this
section, and on-site management and other services specified in
the contract. A construction manager-agent represents the
district in a fiduciary capacity.
(c) Before or concurrently with selecting a construction
manager-agent, the district shall select or designate an engineer
or architect who shall prepare the construction documents for the
project and who has full responsibility for complying with
Chapter 1001 or 1051, Occupations Code, as applicable. If the
engineer or architect is not a full-time employee of the
district, the district shall select the engineer or architect on
the basis of demonstrated competence and qualifications as
provided by Section 2254.004, Government Code. The district's
engineer or architect may not serve, alone or in combination with
another person, as the construction manager-agent unless the
engineer or architect is hired to serve as the construction
manager-agent under a separate or concurrent procurement
conducted in accordance with this subchapter. This subsection
does not prohibit the district's engineer or architect from
providing customary construction phase services under the
engineer's or architect's original professional service agreement
in accordance with applicable licensing laws.
(d) A district shall select a construction manager-agent on the
basis of demonstrated competence and qualifications in the same
manner as provided for the selection of engineers or architects
under Section 2254.004, Government Code.
(e) A district using the construction manager-agent method shall
procure, in accordance with applicable law and in any manner
authorized by this chapter, a general contractor, trade
contractors, or subcontractors who will serve as the prime
contractor for their specific portion of the work.
(f) The district or the construction manager-agent shall procure
in accordance with Section 2254.004, Government Code, all of the
testing of construction materials engineering, the inspection
services, and the verification testing services necessary for
acceptance of the facility by the district.
Added by Acts 1997, 75th Leg., ch. 1179, Sec. 2, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 1225, Sec. 7, eff.
Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1276, Sec. 14A.758, eff.
Sept. 1, 2003.
Sec. 44.038. CONTRACTS FOR FACILITIES: CONSTRUCTION
MANAGER-AT-RISK. (a) A school district may use the construction
manager-at-risk method for the construction, rehabilitation,
alteration, or repair of a facility. In using that method and in
entering into a contract for the services of a construction
manager-at-risk, a district shall follow the procedures
prescribed by this section.
(b) A construction manager-at-risk is a sole proprietorship,
partnership, corporation, or other legal entity that assumes the
risk for construction, rehabilitation, alteration, or repair of a
facility at the contracted price as a general contractor and
provides consultation to the school district regarding
construction during and after the design of the facility.
(c) Before or concurrently with selecting a construction
manager-at-risk, the district shall select or designate an
engineer or architect who shall prepare the construction
documents for the project and who has full responsibility for
complying with Chapter 1001 or 1051, Occupations Code, as
applicable. If the engineer or architect is not a full-time
employee of the district, the district shall select the engineer
or architect on the basis of demonstrated competence and
qualifications as provided by Section 2254.004, Government Code.
The district's engineer, architect, or construction manager-agent
for a project may not serve, alone or in combination with
another, as the construction manager-at-risk unless the engineer
or architect is hired to serve as the construction
manager-at-risk under a separate or concurrent procurement
conducted in accordance with this subchapter. This subsection
does not prohibit the district's engineer or architect from
providing customary construction phase services under the
engineer's or architect's original professional service agreement
in accordance with applicable licensing laws.
(d) The district shall provide or contract for, independently of
the construction manager-at-risk, the inspection services, the
testing of construction materials engineering, and the
verification testing services necessary for acceptance of the
facility by the district. The district shall select those
services for which it contracts in accordance with Section
2254.004, Government Code.
(e) The district shall select the construction manager-at-risk
in either a one-step or two-step process. The district shall
prepare a request for proposals, in the case of a one-step
process, or a request for qualifications, in the case of a
two-step process, that includes general information on the
project site, project scope, schedule, selection criteria,
estimated budget, and the time and place for receipt of proposals
or qualifications, as applicable, a statement as to whether the
selection process is a one-step or two-step process, and other
information that may assist the district in its selection of a
construction manager-at-risk. The district shall state the
selection criteria in the request for proposals or
qualifications, as applicable. The selection criteria may include
the offeror's experience, past performance, safety record,
proposed personnel and methodology, and other appropriate factors
that demonstrate the capability of the construction
manager-at-risk. If a one-step process is used, the district may
request, as part of the offeror's proposal, proposed fees and
prices for fulfilling the general conditions. If a two-step
process is used, the district may not request fees or prices in
step one. In step two, the district may request that five or
fewer offerors, selected solely on the basis of qualifications,
provide additional information, including the construction
manager-at-risk's proposed fee and its price for fulfilling the
general conditions.
(f) At each step, the district shall receive, publicly open, and
read aloud the names of the offerors. At the appropriate step,
the district shall also read aloud the fees and prices, if any,
stated in each proposal as the proposal is opened. Within 45 days
after the date of opening the proposals, the district shall
evaluate and rank each proposal submitted in relation to the
criteria set forth in the request for proposals.
(g) The district shall select the offeror that submits the
proposal that offers the best value for the district based on the
published selection criteria and on its ranking evaluation. The
district shall first attempt to negotiate with the selected
offeror a contract. If the district is unable to negotiate a
satisfactory contract with the selected offeror, the district
shall, formally and in writing, end negotiations with that
offeror and proceed to negotiate with the next offeror in the
order of the selection ranking until a contract is reached or
negotiations with all ranked offerors end.
(h) A construction manager-at-risk shall publicly advertise, in
accordance with Section 44.031(g), and receive bids or proposals
from trade contractors or subcontractors for the performance of
all major elements of the work other than the minor work that may
be included in the general conditions. A construction
manager-at-risk may seek to perform portions of the work itself
if the construction manager-at-risk submits its bid or proposal
for those portions of the work in the same manner as all other
trade contractors or subcontractors and if the district
determines that the construction manager-at-risk's bid or
proposal provides the best value for the district.
(i) The construction manager-at-risk and the district or its
representative shall review all trade contractor or subcontractor
bids or proposals in a manner that does not disclose the contents
of the bid or proposal during the selection process to a person
not employed by the construction manager-at-risk, engineer,
architect, or district. All bids or proposals shall be made
public after the award of the contract or within seven days after
the date of final selection of bids or proposals, whichever is
later.
(j) If the construction manager-at-risk reviews, evaluates, and
recommends to the district a bid or proposal from a trade
contractor or subcontractor but the district requires another bid
or proposal to be accepted, the district shall compensate the
construction manager-at-risk by a change in price, time, or
guaranteed maximum cost for any additional cost and risk that the
construction manager-at-risk may incur because of the district's
requirement that another bid or proposal be accepted.
(k) If a selected trade contractor or subcontractor defaults in
the performance of its work or fails to execute a subcontract
after being selected in accordance with this section, the
construction manager-at-risk may, without advertising, itself
fulfill the contract requirements or select a replacement trade
contractor or subcontractor to fulfill the contract requirements.
(l) If a fixed contract amount or guaranteed maximum price has
not been determined at the time the contract is awarded, the
penal sums of the performance and payment bonds delivered to the
district must each be in an amount equal to the project budget,
as specified in the request for qualifications. The construction
manager shall deliver the bon