H.B. No. 2488
AN ACT
relating to open-source textbooks and other instructional
materials for public schools.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 31.002, Education Code, is amended by
amending Subdivision (1) and adding Subdivision (1-a) to read as
follows:
(1) "Electronic textbook" means computer software,
interactive videodisc, magnetic media, CD-ROM, computer
courseware, on-line services, an electronic medium, or other means
of conveying information to the student or otherwise contributing
to the learning process through electronic means, including an
open-source textbook.
(1-a) "Open-source textbook" means an electronic
textbook that is available for downloading from the Internet at no
charge to a student and without requiring the purchase of an unlock
code, membership, or other access or use charge, except for a charge
to order an optional printed copy of all or part of the textbook.
The term includes a state-developed open-source textbook purchased
under Subchapter B-1.
SECTION 2. Subchapter A, Chapter 31, Education Code, is
amended by adding Section 31.004 to read as follows:
Sec. 31.004. CERTIFICATION OF PROVISION OF TEXTBOOKS,
ELECTRONIC TEXTBOOKS, AND INSTRUCTIONAL MATERIALS. Each school
district and open-enrollment charter school shall annually certify
to the State Board of Education and the commissioner that, for each
subject in the required curriculum and each grade level, the
district provides each student with textbooks, electronic
textbooks, or instructional materials that cover all elements of
the essential knowledge and skills adopted by the State Board of
Education for that subject and grade level.
SECTION 3. Subchapter B, Chapter 31, Education Code, is
amended by adding Section 31.0241 to read as follows:
Sec. 31.0241. ADOPTION OF OPEN-SOURCE TEXTBOOKS. (a) In
this section, "eligible institution" means:
(1) a public institution of higher education that is
designated as a research university or emerging research university
under the higher education coordinating board's accountability
system, or a private university located in this state that is a
member of the Association of American Universities; or
(2) a public technical institute, as defined by
Section 61.003.
(b) The State Board of Education shall place an open-source
textbook for a secondary-level course submitted for adoption by an
eligible institution on a conforming or nonconforming list if:
(1) the textbook is written, compiled, or edited
primarily by faculty of the eligible institution who specialize in
the subject area of the textbook;
(2) the eligible institution identifies each
contributing author;
(3) the appropriate department of the eligible
institution certifies the textbook for accuracy; and
(4) the eligible institution determines that the
textbook qualifies for placement on the conforming or nonconforming
list based on the extent to which the textbook covers the essential
knowledge and skills identified under Section 28.002 for the
subject for which the textbook is written and certifies that:
(A) for a textbook for a senior-level course, a
student who successfully completes a course based on the textbook
will be prepared, without remediation, for entry into the eligible
institution's freshman-level course in that subject; or
(B) for a textbook for a junior-level and
senior-level course, a student who successfully completes the
junior-level course based on the textbook will be prepared for
entry into the senior-level course.
(c) This section does not prohibit an eligible institution
from submitting a textbook for placement on a conforming or
nonconforming list through any other adoption process provided by
this chapter.
SECTION 4. Section 31.026, Education Code, is amended by
adding Subsection (e) to read as follows:
(e) This section does not apply to an open-source textbook.
SECTION 5. Subchapter B, Chapter 31, Education Code, is
amended by adding Section 31.0261 to read as follows:
Sec. 31.0261. CONTRACTS FOR PRINTING OF OPEN-SOURCE
TEXTBOOKS. The State Board of Education may execute a contract for
the printing of an open-source textbook listed on the conforming or
nonconforming list. The contract must allow a school district to
requisition printed copies of an open-source textbook as provided
by Section 31.103.
SECTION 6. Section 31.027, Education Code, is amended by
adding Subsection (d) to read as follows:
(d) This section does not apply to an open-source textbook.
SECTION 7. Chapter 31, Education Code, is amended by adding
Subchapter B-1 to read as follows:
SUBCHAPTER B-1. STATE-DEVELOPED OPEN-SOURCE TEXTBOOKS
Sec. 31.071. PURCHASE AUTHORITY. (a) The commissioner may
purchase state-developed open-source textbooks in accordance with
this subchapter.
(b) The commissioner:
(1) shall purchase any state-developed open-source
textbooks through a competitive process; and
(2) may purchase more than one state-developed
open-source textbook for a subject or grade level.
(c) A state-developed open-source textbook must be
irrevocably owned by or licensed to the state for use in the
applicable subject or grade level. The state must have unlimited
authority to modify, delete, combine, or add content to the
textbook after purchase.
(d) The commissioner may issue a request for proposals for a
state-developed open-source textbook:
(1) in accordance with the textbook review and
adoption cycle under Section 31.022; or
(2) at any other time the commissioner determines that
a need exists for additional textbook options.
(e) The costs of administering this subchapter and
purchasing state-developed open-source textbooks shall be paid
from the state textbook fund, as determined by the commissioner.
Sec. 31.072. CONTENT REQUIREMENTS. (a) A state-developed
open-source textbook must:
(1) be evaluated by teachers or other experts, as
determined by the commissioner, before purchase; and
(2) meet the requirements for inclusion on a
conforming or nonconforming textbook list under Section 31.023.
(b) Following a curriculum revision by the State Board of
Education, the commissioner shall require the revision of a
state-developed open-source textbook relating to that curriculum.
The commissioner may, at any time, require an additional revision
of a state-developed open-source textbook or contract for ongoing
revisions of a textbook for a period not to exceed the period under
Section 31.022 for which a textbook for that subject and grade level
may be adopted. The commissioner shall use a competitive process to
request proposals to revise a state-developed open-source textbook
under this subsection.
(c) The commissioner shall provide for special and
bilingual state-developed open-source textbooks in the same manner
provided under Sections 31.028 and 31.029.
Sec. 31.073. COST. (a) For purposes of this section, the
commissioner shall determine the cost to a school district or
open-enrollment charter school for a state-developed open-source
textbook in an amount sufficient to cover state expenses associated
with the textbook, including expenses incurred by the state in
soliciting, evaluating, revising, and purchasing the textbook.
(b) If a school district or open-enrollment charter school
selects a state-developed open-source textbook instead of another
textbook adopted under Subchapter B, the difference between the
cost determined by the commissioner under Subsection (a) and the
maximum price for a textbook in the same subject area, as determined
by the State Board of Education under Section 31.025, shall be
allocated as follows:
(1) 50 percent of the amount shall be credited to the
state textbook fund under Section 31.021 to be used for purposes of
this subchapter; and
(2) 50 percent of the amount shall be credited to the
school district or open-enrollment charter school for use as
provided by Section 31.1011(c).
(c) Notwithstanding Section 31.022, a school district or
open-enrollment charter school may adopt a state-developed
open-source textbook at any time, regardless of the textbook review
and adoption cycle under that section.
(d) A school district or open-enrollment charter school may
not be charged for selection of a state-developed open-source
textbook in addition to a textbook adopted under Subchapter B.
Sec. 31.074. DISTRIBUTION. (a) The commissioner shall
provide for the distribution of state-developed open-source
textbooks in a manner consistent with distribution of textbooks
adopted under Subchapter B.
(b) The commissioner may use a competitive process to
contract for printing or other reproduction of a state-developed
open-source textbook on behalf of a school district or
open-enrollment charter school. The commissioner may not require a
school district or open-enrollment charter school to contract with
a state-approved provider for the printing or reproduction of a
state-developed open-source textbook.
Sec. 31.075. OWNERSHIP; LICENSING. (a) A state-developed
open-source textbook is the property of the state.
(b) The commissioner shall provide a license to each public
school in the state, including a school district, an
open-enrollment charter school, and a state or local agency
educating students in any grade from prekindergarten through high
school, to use and reproduce a state-developed open-source
textbook.
(c) The commissioner may provide a license to use a
state-developed open-source textbook to an entity not listed in
Subsection (b). In determining the cost of a license under this
subsection, the commissioner shall seek, to the extent feasible, to
recover the costs of developing, revising, and distributing
state-developed open-source textbooks.
Sec. 31.076. RULES; FINALITY OF DECISIONS. (a) The
commissioner may adopt rules necessary to implement this
subchapter.
(b) A decision by the commissioner regarding the purchase,
revision, cost, or distribution of a state-developed open-source
textbook is final and may not be appealed.
Sec. 31.077. ADOPTION SCHEDULE. The commissioner shall
develop a schedule for the adoption of state-developed open-source
textbooks under this subchapter. In developing the adoption
schedule under this section, the commissioner shall consider:
(1) the availability of funds;
(2) the existing textbook adoption cycles under
Subchapter B; and
(3) the availability of textbooks for development or
purchase by the state.
SECTION 8. Section 31.103, Education Code, is amended by
adding Subsections (d) and (e) to read as follows:
(d) A school district or open-enrollment charter school
that selects an open-source textbook shall requisition a sufficient
number of printed copies for use by students unable to access the
textbook electronically unless the district or school provides to
each student:
(1) electronic access to the textbook at no cost to the
student; or
(2) printed copies of the portion of the textbook that
will be used in the course.
(e) The commissioner may establish a list of equipment or
devices that a school district or open-enrollment charter school
may purchase using textbook credits or textbook credits in
combination with other available funds to provide electronic access
to open-source textbooks under Subsection (d)(1).
SECTION 9. Section 31.104, Education Code, is amended by
amending Subsections (b) and (c) and adding Subsections (g) and (h)
to read as follows:
(b) A school district or open-enrollment charter school may
order replacements for textbooks that have been lost or damaged
directly from:
(1) the textbook depository; [or]
(2) the textbook publisher or manufacturer if the
textbook publisher or manufacturer does not have a designated
textbook depository in this state under Section 31.151(a)(6)(B); or
(3) any source for a printed copy of an open-source
textbook.
(c) Each textbook must state that the textbook is the
property of or is licensed to this state, as appropriate. Each
textbook, other than an electronic textbook or a printed copy of an
open-source textbook, must be covered by the student under the
direction of the teacher. Except as provided by Subsection (g), a
[A] student must return all textbooks to the teacher at the end of
the school year or when the student withdraws from school.
(g) At the end of the school year for which an open-source
textbook that a school district or open-enrollment charter school
does not intend to use for another student is distributed, the
printed copy of the open-source textbook becomes the property of
the student to whom it is distributed.
(h) This section does not apply to an electronic copy of an
open-source textbook.
SECTION 10. Section 31.151(a), Education Code, is amended
to read as follows:
(a) A publisher or manufacturer of textbooks:
(1) shall furnish any textbook the publisher or
manufacturer offers in this state, at a price that does not exceed
the lowest price at which the publisher offers that textbook for
adoption or sale to any state, public school, or school district in
the United States;
(2) shall automatically reduce the price of a textbook
sold for use in a school district or open-enrollment charter school
to the extent that the price is reduced elsewhere in the United
States;
(3) shall provide any textbook or ancillary item free
of charge in this state to the same extent that the publisher or
manufacturer provides the textbook or ancillary item free of charge
to any state, public school, or school district in the United
States;
(4) shall guarantee that each copy of a textbook sold
in this state is at least equal in quality to copies of that
textbook sold elsewhere in the United States and is free from
factual error;
(5) may not become associated or connected with,
directly or indirectly, any combination in restraint of trade in
textbooks or enter into any understanding or combination to control
prices or restrict competition in the sale of textbooks for use in
this state;
(6) shall:
(A) maintain a depository in this state or
arrange with a depository in this state to receive and fill orders
for textbooks, other than open-source textbooks, on-line
textbooks, or on-line textbook components, consistent with State
Board of Education rules; or
(B) deliver textbooks to a school district or
open-enrollment charter school without a delivery charge to the
school district, open-enrollment charter school, or state, if:
(i) the publisher or manufacturer does not
maintain or arrange with a depository in this state under Paragraph
(A) and the publisher's or manufacturer's textbooks and related
products are warehoused or otherwise stored less than 300 miles
from a border of this state; or
(ii) the textbooks are open-source
textbooks, on-line textbooks, or on-line textbook components;
(7) shall, at the time an order for textbooks is
acknowledged, provide to school districts or open-enrollment
charter schools an accurate shipping date for textbooks that are
back-ordered;
(8) shall guarantee delivery of textbooks at least 10
business days before the opening day of school of the year for which
the textbooks are ordered if the textbooks are ordered by a date
specified in the sales contract; and
(9) shall submit to the State Board of Education an
affidavit certifying any textbook the publisher or manufacturer
offers in this state to be free of factual errors at the time the
publisher executes the contract required by Section 31.026.
SECTION 11. To the extent of any conflict, Section 31.004,
Education Code, as added by this Act, prevails over Section 31.004,
Education Code, as added by H.B. No. 4294, Acts of the 81st
Legislature, Regular Session, 2009, regardless of the relative
dates of enactment.
SECTION 12. This Act takes effect September 1, 2009.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2488 was passed by the House on April
30, 2009, by the following vote: Yeas 132, Nays 0, 1 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 2488 on May 29, 2009, by the following vote: Yeas 139, Nays 0,
1 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2488 was passed by the Senate, with
amendments, on May 25, 2009, by the following vote: Yeas 31, Nays
0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor