EDUCATION CODE
CHAPTER 44. FISCAL MANAGEMENT
SUBCHAPTER A. SCHOOL DISTRICT FISCAL MANAGEMENT
§ 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, § 1, eff. May 30, 1995.
§ 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, § 1, eff. Sept. 1, 2001.
§ 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, § 1, eff. May 30, 1995.
§ 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, § 1, eff. May 30, 1995.
§ 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
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 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.";
(3) 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;
(4) 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.";
(5) 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
(6) 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) to (c-5) Expired.
(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(d), 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.
Added by Acts 1995, 74th Leg., ch. 260, § 1, eff. May 30, 1995.
Amended by Acts 1999, 76th Leg., ch. 398, § 1, eff. Aug. 30,
1999; Acts 2001, 77th Leg., ch. 898, § 1, eff. Sept. 1, 2001.
§ 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, § 1, eff. May 30, 1995.
§ 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, § 1, eff. May 30, 1995.
§ 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 State Board of Education, 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, § 1, eff. May 30, 1995.
§ 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, § 1, eff. Sept. 1, 2003.
§ 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, § 1, eff. May 30, 1995.
Amended by Acts 2001, 77th Leg., ch. 914, § 2, eff. Sept. 1,
2001.
§ 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, § 1, eff. May 30, 1995.
§ 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, § 1, eff. May 30, 1995.
SUBCHAPTER B. PURCHASES; CONTRACTS
§ 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
$25,000 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) a catalogue purchase as provided by Subchapter B,
Chapter 2157, Government Code;
(5) an interlocal contract;
(6) a design/build contract;
(7) a contract to construct, rehabilitate, alter, or
repair facilities that involves using a construction manager;
(8) a job order contract for the minor construction,
repair, rehabilitation, or alteration of a facility;
(9) the reverse auction procedure as defined by
Section 2155.062(d), Government Code; or
(10) 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 may 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.
(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,
§ 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,
§ 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 General Services Commission under contracts entered into in
accordance with Chapter 2157, Government Code. Before issuing an
invitation for bids, the commission 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 an average daily attendance of 190,000 or more as
determined under Section 42.005 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, § 1, eff. May 30, 1995.
Amended by Acts 1997, 75th Leg., ch. 1179, § 1, eff. Sept. 1,
1997; Acts 1999, 76th Leg., ch. 881, § 1, eff. June 18, 1999;
Acts 1999, 76th Leg., ch. 922, § 1, eff. June 18, 1999; Acts
1999, 76th Leg., ch. 1225, § 1, eff. Sept. 1, 1999; Acts 2001,
77th Leg., ch. 436, § 7, eff. May 28, 2001; Acts 2001, 77th Leg.,
ch. 1409, § 9, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 201,
§ 38, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 680, § 1,
eff. June 20, 2003.
§ 44.0311. APPLICABILITY TO JUNIOR COLLEGE
DISTRICTS. (a) 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.
Added by Acts 1999, 76th Leg., ch. 1225, § 2, eff. Sept. 1, 1999.
§ 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.
Added by Acts 1999, 76th Leg., ch. 1225, § 2, eff. Sept. 1, 1999.
§ 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, § 2, eff. Sept. 1, 1997.
Amended by Acts 2001, 77th Leg., ch. 1409, § 10, eff. Sept. 1,
2001; Acts 2003, 78th Leg., ch. 1276, § 14A.756, eff. Sept. 1,
2003.
§ 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, § 1, eff. May 30, 1995.
Amended by Acts 1999, 76th Leg., ch. 1225, § 3, eff. Sept. 1,
1999.
§ 44.033. PURCHASES OF PERSONAL PROPERTY VALUED BETWEEN
$10,000 AND $25,000. (a) A school district shall purchase
personal property as provided by this section if the value of the
items is at least $10,000 but less than $25,000, in the aggregate,
for a 12-month period. In the alternative, the school district may
purchase those items in accordance with Sections 44.031 (a) and
(b).
(b) For each 12-month period, the district shall publish a
notice in two successive issues of any newspaper of general
circulation in the county in which the school is located. If there
is no newspaper in the county in which the school is located, the
advertising shall be published in a newspaper in the county nearest
the county seat of the county in which the school is located,
specifying the categories of personal property to be purchased
under this section and soliciting the names, addresses, and
telephone numbers of vendors that are interested in supplying any
of the categories to the district. For each category, the district
shall create a vendor list consisting of each vendor that responds
to the published notice and any additional vendors the district
elects to include.
(c) Before the district makes a purchase from a category of
personal property, the district must obtain written or telephone
price quotations from at least three vendors from the list for that
category. If fewer than three vendors are on the list, the district
shall contact each vendor on the list. Whenever possible,
telephone quotes should be confirmed in writing by mail or
facsimile. The bidding records must be retained with the school's
competitive bidding records and are subject to audit. The purchase
shall be made from the lowest responsible bidder.
(d) Purchases of produce and fuel shall be made in
accordance with this section.
(e) If a purchase is made at the campus level in a school
district with an average daily attendance of 190,000 or more as
determined under Section 42.005 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, § 1, eff. May 30, 1995.
Amended by Acts 1999, 76th Leg., ch. 881, § 2, eff. June 18,
1999.
§ 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, § 1, eff. May 30, 1995.
§ 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, § 2, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 1225, § 4, eff. Sept. 1,
1999; Acts 2001, 77th Leg., ch. 1409, § 11, eff. Sept. 1, 2001.
§ 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, § 2, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 1225, § 5, 6, eff. Sept. 1,
1999; Acts 2001, 77th Leg., ch. 1409, § 12, eff. Sept. 1, 2001;
Acts 2003, 78th Leg., ch. 1276, § 14A.757, eff. Sept. 1, 2003.
§ 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, § 2, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 1225, § 7, eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 1276, § 14A.758, eff. Sept. 1,
2003.
§ 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 bonds not later than the 10th day after
the date the construction manager executes the contract unless the
construction manager furnishes a bid bond or other financial
security acceptable to the district to ensure that the construction
manager will furnish the required performance and payment bonds
when a guaranteed maximum price is established.
Added by Acts 1997, 75th Leg., ch. 1179, § 2, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 1225, § 8, eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 1229, § 3, eff. Sept. 1, 2003;
Acts 2003, 78th Leg., ch. 1276, § 14A.759, eff. Sept. 1, 2003.
§ 44.039. SELECTING CONTRACTOR FOR CONSTRUCTION
SERVICES THROUGH COMPETITIVE SEALED PROPOSALS. (a) In selecting
a contractor for construction, rehabilitation, alteration, or
repair services for a facility through competitive sealed
proposals, a school district shall follow the procedures prescribed
by this section.
(b) The district shall select or designate an engineer or
architect to prepare construction documents for the project. The
selected or designated engineer or architect 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.
(c) The district shall provide or contract for,
independently of the contractor, 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, and shall identify them in the request for
proposals.
(d) The district shall prepare a request for competitive
sealed proposals that includes construction documents, selection
criteria, estimated budget, project scope, schedule, and other
information that contractors may require to respond to the request.
The district shall state in the request for proposals the selection
criteria that will be used in selecting the successful offeror.
(e) The district shall receive, publicly open, and read
aloud the names of the offerors and, if any are required to be
stated, all prices stated in each proposal. Within 45 days after
the date of opening the proposals, the district shall evaluate and
rank each proposal submitted in relation to the published selection
criteria.
(f) The district shall select the offeror 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. The
district and its engineer or architect may discuss with the
selected offeror options for a scope or time modification and any
price change associated with the modification. If the district is
unable to negotiate a contract with the selected offeror, the
district shall, formally and in writing, end negotiations with that
offeror and proceed to the next offeror in the order of the
selection ranking until a contract is reached or all proposals are
rejected.
(g) In determining best value for the district, the district
is not restricted to considering price alone, but may consider any
other factor stated in the selection criteria.
Added by Acts 1997, 75th Leg., ch. 1179, § 2, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 1225, § 8, eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 1276, § 14A.760, eff. Sept. 1,
2003.
§ 44.040. SELECTING CONTRACTOR FOR CONSTRUCTION
SERVICES THROUGH COMPETITIVE BIDDING. (a) Except to the extent
prohibited by other law and to the extent consistent with this
subchapter, a school district may use competitive bidding to select
a contractor to perform construction, rehabilitation, alteration,
or repair services for a facility.
(b) Except as otherwise specifically provided by this
subsection, Subchapter B, Chapter 271, Local Government Code, does
not apply to a competitive bidding process under this subchapter.
Sections 271.026, 271.027(a), and 271.0275, Local Government Code,
apply to a competitive bidding process under this subchapter.
(c) The district shall select or designate an engineer or
architect to prepare construction documents for the project. The
selected or designated engineer or architect has full
responsibility for complying with Chapter 1001 and Chapter 1051,
Occupations Code, as applicable.
(d) A school district shall award a competitively bid
contract at the bid amount to the bidder offering the best value to
the district according to the selection criteria that were
established by the district. The selection criteria may include
the factors listed in Section 44.031(b).
Added by Acts 1997, 75th Leg., ch. 1179, § 2, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 1225, § 9, eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 1229, § 4, eff. Sept. 1, 2003.
§ 44.041. JOB ORDER CONTRACTS FOR FACILITIES
CONSTRUCTION OR REPAIR. (a) A school district may award job order
contracts for the minor construction, repair, rehabilitation, or
alteration of a facility if the work is of a recurring nature but
the delivery times are indefinite and indefinite quantities and
orders are awarded substantially on the basis of predescribed and
prepriced tasks.
(b) The school district may establish contractual unit
prices for a job order contract by:
(1) specifying one or more published construction unit
price books and the applicable divisions or line items; or
(2) providing a list of work items and requiring the
offerors to bid or propose one or more coefficients or multipliers
to be applied to the price book or work items as the price proposal.
(c) The school district shall advertise for, receive, and
publicly open sealed proposals for job order contracts.
(d) The district may require offerors to submit additional
information besides rates, including experience, past performance,
and proposed personnel and methodology.
(e) The district may award job order contracts to one or
more job order contractors in connection with each solicitation of
bids or proposals.
(f) An order for a job or project under the job order
contract must be signed by the district's representative and the
contractor. The order may be a fixed price, lump-sum contract based
substantially on contractual unit pricing applied to estimated
quantities or may be a unit price order based on the quantities and
line items delivered.
(g) The contractor shall provide payment and performance
bonds, if required by law, based on the amount or estimated amount
of any order.
(h) The base term of a job order contract is for the period
and with any renewal option that the district sets forth in the
request for proposals. If the district fails to advertise that
term, the base term may not exceed two years and is not renewable
without further advertisement and solicitation of proposals.
(i) If a job order contract or an order issued under the
contract 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 applicable law.
Added by Acts 1997, 75th Leg., ch. 1179, § 2, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 1225, § 10, eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 1276, § 14A.761, eff. Sept. 1,
2003.
§ 44.042. PREFERENCE TO TEXAS AND UNITED STATES
PRODUCTS. (a) A school district that purchases agricultural
products shall give preference to those produced, processed, or
grown in this state if the cost to the school district is equal and
the quality is equal.
(b) If agricultural products produced, processed, or grown
in this state are not equal in cost and quality to other products,
the school district shall give preference to agricultural products
produced, processed, or grown in other states of the United States
over foreign products if the cost to the school district is equal
and the quality is equal.
(c) A school district that purchases vegetation for
landscaping purposes, including plants, shall give preference to
Texas vegetation if the cost to the school district is equal and the
quality is not inferior.
(d) The agency shall conduct an analysis of purchases by
school districts to determine the effectiveness of this section and
shall report the results of its analysis to the governor,
lieutenant governor, and speaker of the house of representatives
not later than December 31 of each even-numbered year.
(e) In the implementation of this section, a school district
may receive assistance from and use the resources of the Texas
Department of Agriculture, including information on availability
of agricultural products.
(f) A school district may not adopt product purchasing
specifications that unnecessarily exclude agricultural products
produced, processed, or grown in this state.
(g) In this section:
(1) "Agricultural products" includes textiles and
other similar products.
(2) "Processed" means canning, freezing, drying,
juicing, preserving, or any other act that changes the form of a
good from its natural state to another form.
Added by Acts 1999, 76th Leg., ch. 1342, § 1, eff. Sept. 1, 1999.
§ 44.043. RIGHT TO WORK. (a) This section applies to a
school district while the school district is engaged in:
(1) procuring goods or services;
(2) awarding a contract; or
(3) overseeing procurement or construction for a
public work or public improvement.
(b) Notwithstanding any other provision of this chapter, a
school district:
(1) may not consider whether a vendor is a member of or
has another relationship with any organization; and
(2) shall ensure that its bid specifications and any
subsequent contract or other agreement do not deny or diminish the
right of a person to work because of the person's membership or
other relationship status with respect to any organization.
Added by Acts 2001, 77th Leg., ch. 1409, § 13, eff. Sept. 1,
2001.
§ 44.044. CONTRACT WITH PERSON INDEBTED TO SCHOOL
DISTRICT. (a) The board of trustees of a school district by
resolution may establish regulations permitting the school
district to refuse to enter into a contract or other transaction
with a person indebted to the school district.
(b) It is not a violation of this subchapter for a school
district, under regulations adopted under Subsection (a), to refuse
to award a contract to or enter into a transaction with an apparent
low bidder or successful proposer that is indebted to the school
district.
(c) In this section, "person" includes an individual, sole
proprietorship, corporation, nonprofit corporation, partnership,
joint venture, limited liability company, and any other entity that
proposes or otherwise seeks to enter into a contract or other
transaction with the school district requiring approval by the
board.
Added by Acts 2003, 78th Leg., ch. 156, § 3, eff. Sept. 1, 2003.
SUBCHAPTER C. PENAL PROVISIONS
§ 44.051. INTERFERENCE WITH OPERATION OF FOUNDATION
SCHOOL PROGRAM. An offense under Section 37.10, Penal Code, is a
felony of the third degree if it is shown on trial of the offense
that the governmental record was a record, form, report, or budget
required under Chapter 42 or rules adopted under that chapter. If
the actor's intent is to defraud the state or the public school
system, the offense is a felony of the second degree.
Added by Acts 1995, 74th Leg., ch. 260, § 1, eff. May 30, 1995.
§ 44.052. FAILURE TO COMPLY WITH BUDGET REQUIREMENTS;
PENALTY. (a) Any county superintendent approving any expenditure
of school funds in excess of the item or items appropriated in the
adopted budget or a supplementary or amended budget commits an
offense. An offense under this subsection is a Class C misdemeanor.
(b) A person who fails to comply with the person's duties
with regard to the preparation or the following of a county school
budget or a budget of a school district or who violates any
provision of Section 44.002 commits an offense. An offense under
this subsection is a Class C misdemeanor.
(c) A trustee of a school district who votes to approve any
expenditure of school funds in excess of the item or items
appropriated in the adopted budget or a supplementary or amended
budget commits an offense. An offense under this subsection is a
Class C misdemeanor.
(d) Charges of the violation of this section may be
instituted by the proper county or district attorney or by the
attorney general.
Added by Acts 1995, 74th Leg., ch. 260, § 1, eff. May 30, 1995.
§ 44.053. FAILURE OF MUNICIPAL OFFICER TO MAKE
TREASURER'S REPORT; PENALTY. Any county or municipal treasurer or
treasurer of the school board of each municipality having exclusive
control of its schools who fails to make and transmit any report and
certified copy thereof, or either, required by law, commits an
offense. An offense under this section is a Class C misdemeanor.
Added by Acts 1995, 74th Leg., ch. 260, § 1, eff. May 30, 1995.
§ 44.054. FAILURE TO TRANSFER STUDENTS AND FUNDS. A
county judge serving as ex officio county superintendent, a county,
district, or municipal superintendent, or a school officer who
refuses to transfer students and funds as provided by Subchapter B,
Chapter 25, commits an offense. An offense under this section is a
Class B misdemeanor.
Added by Acts 1995, 74th Leg., ch. 260, § 1, eff. May 30, 1995.
SUBCHAPTER Z. MISCELLANEOUS PROVISIONS
§ 44.901. ENERGY SAVINGS PERFORMANCE
CONTRACTS. (a) In this section, "energy savings performance
contract" means a contract for energy or water conservation
measures to reduce energy or water consumption or operating costs
of school facilities in which the estimated savings in utility
costs resulting from the measures is guaranteed to offset the cost
of the measures over a specified period. The term includes a
contract for the installation or implementation of:
(1) insulation of a building structure and systems
within the building;
(2) storm windows or doors, caulking or
weatherstripping, multiglazed windows or doors, heat absorbing or
heat reflective glazed and coated window or door systems, or other
window or door system modifications that reduce energy consumption;
(3) automatic energy control systems, including
computer software and technical data licenses;
(4) heating, ventilating, or air-conditioning system
modifications or replacements that reduce energy or water
consumption;
(5) lighting fixtures that increase energy
efficiency;
(6) energy recovery systems;
(7) electric systems improvements;
(8) water-conserving fixtures, appliances, and
equipment or the substitution of non-water-using fixtures,
appliances, and equipment;
(9) water-conserving landscape irrigation equipment;
(10) landscaping measures that reduce watering
demands and capture and hold applied water and rainfall, including:
(A) landscape contouring, including the use of
berms, swales, and terraces; and
(B) the use of soil amendments that increase the
water-holding capacity of the soil, including compost;
(11) rainwater harvesting equipment and equipment to
make use of water collected as part of a storm-water system
installed for water quality control;
(12) equipment for recycling or reuse of water
originating on the premises or from other sources, including
treated municipal effluent;
(13) equipment needed to capture water from
nonconventional, alternate sources, including air conditioning
condensate or graywater, for nonpotable uses;
(14) metering equipment needed to segregate water use
in order to identify water conservation opportunities or verify
water savings; or
(15) other energy or water conservation-related
improvements or equipment, including improvements or equipment
relating to renewable energy or nonconventional water sources or
water reuse.
(b) The board of trustees of a school district may enter
into an energy savings performance contract in accordance with this
section.
(c) Each energy or water conservation measure must comply
with current local, state, and federal construction, plumbing, and
environmental codes and regulations. Notwithstanding Subsection
(a), an energy savings performance contract may not include
improvements or equipment that allow or cause water from any
condensing, cooling, or industrial process or any system of
nonpotable usage over which the public water supply system
officials do not have sanitary control, to be returned to the
potable water supply.
(d) The board may enter into energy savings performance
contracts only with persons who are experienced in the design,
implementation, and installation of the energy or water
conservation measures addressed by the contract.
(e) Before entering into an energy savings performance
contract, the board shall require the provider of the energy or
water conservation measures to file with the board a payment and
performance bond relating to the installation of the measures in
accordance with Chapter 2253, Government Code. The board may also
require a separate bond to cover the value of the guaranteed savings
on the contract.
(f) An energy savings performance contract may be financed:
(1) under a lease/purchase contract that has a term
not to exceed 15 years from the final date of installation and that
meets federal tax requirements for tax-free municipal leasing or
long-term financing;
(2) with the proceeds of bonds; or
(3) under a contract with the provider of the energy or
water conservation measures that has a term not to exceed 15 years
from the final date of installation.
(g) An energy savings performance contract shall contain
provisions requiring the provider of the energy or water
conservation measures to guarantee the amount of the savings to be
realized by the school district under the contract. If the term of
an energy savings performance contract exceeds one year, the school
district's contractual obligations in any one year during the term
of the contract beginning after the final date of installation may
not exceed the total energy, water, wastewater, and operating cost
savings, including electrical, gas, water, wastewater, or other
utility cost savings and operating cost savings resulting from the
measures, as determined by the school district in this subsection,
divided by the number of years in the contract term.
(h) An energy savings performance contract shall be let
according to the procedures established for procuring certain
professional services by Section 2254.004, Government Code. Notice
of the request for qualifications shall be published in the manner
provided for competitive bidding.
(i) Before entering into an energy savings performance
contract, the board must require that the cost savings projected by
an offeror be reviewed by a licensed professional engineer who is
not an officer or employee of an offeror for the contract under
review or otherwise associated with the contract or the offeror. An
engineer who reviews a contract shall maintain the confidentiality
of any proprietary information the engineer acquires while
reviewing the contract. Sections 1001.053 and 1001.407,
Occupations Code, apply to work performed under the contract.
Added by Acts 1995, 74th Leg., ch. 260, § 1, eff. May 30, 1995.
Amended by Acts 1997, 75th Leg., ch. 1142, § 1, eff. June 19,
1997; Acts 1999, 76th Leg., ch. 361, § 1, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 573, § 1, 2, 11, eff. Sept. 1, 2001;
Acts, 2001, 77th Leg., ch. 1319, § 1, eff, Sept. 1, 2001; Acts
2003, 78th Leg., ch. 1310, § 5, 121(1), eff. June 20, 2003.
