By: Bettencourt, et al.  S.B. No. 28          (In the Senate - Filed March 11, 2021; March 11, 2021, read   first time and referred to Committee on Education; April 6, 2021,   reported adversely, with favorable Committee Substitute by the   following vote:  Yeas 6, Nays 3; April 6, 2021, sent to printer.)Click here to see the committee vote     COMMITTEE SUBSTITUTE FOR S.B. No. 28 By:  Bettencourt     A BILL TO BE ENTITLED   AN ACT     relating to the approval of open-enrollment charter schools and the   applicability of certain state and local laws to open-enrollment   charter schools.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 12.101(b-0), Education Code, is amended   to read as follows:          (b-0)  The commissioner shall notify the State Board of   Education of each charter the commissioner proposes to grant under   this subchapter. Unless, before the 90th day after the date on   which the board receives the notice from the commissioner, 10 [a   majority of the] members of the board present and voting vote   against the grant of that charter, the commissioner's proposal to   grant the charter takes effect. The board may not deliberate or   vote on any grant of a charter that is not proposed by the   commissioner. For each charter the commissioner proposes to grant,   the board is limited to consideration of the following:                (1)  the staffing proposed under the charter for:                      (A)  special education programs under Subchapter   A, Chapter 29; and                      (B)  bilingual education and special language   programs under Subchapter B, Chapter 29;                (2)  the alignment of proposed curriculum with the   essential knowledge and skills adopted under Subchapter A, Chapter   28;                (3)  any prior issues involving the applicant related   to open-enrollment charter school or campus operations, student   performance and academic accountability, or fiscal management that   led to the closure of an open-enrollment charter school, the   suspension of the authority of an open-enrollment charter school to   operate, or the revocation of a charter;                (4)  any issues involving the applicant related to:                      (A)  a violation or potential violation of   applicable state or local conflict-of-interest requirements; or                      (B)  a violation or potential violation of Chapter   573, Government Code, involving prohibited nepotism between an   individual serving the eligible entity and:                            (i)  an individual proposed to serve on the   governing body of an open-enrollment charter school to be operated   under the charter; or                            (ii)  an individual proposed to serve at the   management company for an open-enrollment charter school to be   operated under the charter; and                (5)  any issues involving lack of transparency or   truthfulness in the application for the charter.          SECTION 2.  Section 12.1058, Education Code, is amended by   amending Subsection (c) and adding Subsection (d) to read as   follows:          (c)  Notwithstanding Subsection (a) or (b), an   open-enrollment charter school operated by a tax exempt entity as   described by Section 12.101(a)(3) is not considered to be a   political subdivision, local government, or local governmental   entity unless:                (1)  a [the applicable] statute specifically states   that the statute applies to an open-enrollment charter school; or                (2)  a provision in this chapter states that a specific   statute applies to an open-enrollment charter school.          (d)  Except as provided by Section 12.103(c), a   municipality, county, special purpose district, or political   subdivision shall consider an open-enrollment charter school a   school district for purposes of zoning, permitting, plat approvals,   fees or other assessments, construction or site development work,   code compliance, development, and any municipality, county,   special purpose district, or political subdivision approval in the   same manner and following the same timelines as if the charter   school were a school district or state-owned facility located in   that local government's jurisdiction.          SECTION 3.  Subchapter D, Chapter 12, Education Code, is   amended by adding Section 12.1102 to read as follows:          Sec. 12.1102.  APPEAL OF APPLICATION SELECTION   DETERMINATION. (a)  This section applies only if the charter   application selection process includes:                (1)  scoring criteria and procedures for use of the   criteria by an external application review panel selected by the   commissioner; and                (2)  selection criteria that include the minimum score   necessary for an applicant to be eligible for selection.          (b)  The State Board of Education shall adopt procedures for   the appeal of an application selection determination made based on   the submission of an application under a process described by   Subsection (a).          (c)  The procedures adopted under this section must provide   for an applicant who scores within 10 percentage points of the   minimum score necessary for an applicant to be eligible for   selection to appeal to the State Board of Education a score   determined by the external application review panel.          (d)  The determination of the State Board of Education in an   appeal under the procedures adopted under this section is final.          (e)  If the charter applicant prevails in an appeal to the   State Board of Education, the commissioner shall consider the   applicant's application.          SECTION 4.  Section 212.902, Local Government Code, is   amended to read as follows:          Sec. 212.902.  SCHOOL DISTRICT AND OPEN-ENROLLMENT CHARTER   SCHOOL LAND DEVELOPMENT STANDARDS. (a)  This section applies to an   agreement [agreements] between a school district or   open-enrollment charter school  [districts] and a [any]   municipality which has annexed territory for limited purposes.          (b)  On request by a school district or open-enrollment   charter school, a municipality shall enter an agreement with the   board of trustees of the school district or the governing body of   the open-enrollment charter school to establish review fees, review   periods, and land development standards ordinances and to provide   alternative water pollution control methodologies for school   buildings constructed by the school district or open-enrollment   charter school. The agreement shall include a provision exempting   the district or charter school from all land development ordinances   in cases where the district or charter school is adding temporary   classroom buildings on an existing school campus.          (c)  If the municipality and the school district or   open-enrollment charter school do not reach an agreement on or   before the 120th day after the date on which the municipality   receives the district's or charter school's request for an   agreement, proposed agreements by the [school] district or charter   school and the municipality shall be submitted to an independent   arbitrator appointed by the presiding district judge whose   jurisdiction includes the [school] district or charter school. The   arbitrator shall, after a hearing at which both the [school]   district or charter school and the municipality make presentations   on their proposed agreements, prepare an agreement resolving any   differences between the proposals. The agreement prepared by the   arbitrator will be final and binding upon both the [school]   district or charter school and the municipality. The cost of the   arbitration proceeding shall be borne equally by the [school]   district or charter school and the municipality.          (d)  A school district or open-enrollment charter school   that requests an agreement under this section, at the time the   district or charter school [it] makes the request, shall send a copy   of the request to the commissioner of education. At the end of the   120-day period, the requesting district or charter school shall   report to the commissioner the status or result of negotiations   with the municipality. A municipality may send a separate status   report to the commissioner. The district or charter school shall   send to the commissioner a copy of each agreement between the   district or charter school and a municipality under this section.          (e)  In this section:                (1)  [,] "Land [land] development standards" includes   impervious cover limitations, building setbacks, floor to area   ratios, building heights and coverage, water quality controls,   landscaping, development setbacks, compatibility standards,   traffic analyses including traffic impact analyses, vehicle   queuing, parking requirements, signage requirements, and driveway   cuts, if applicable.                (2)  "Open-enrollment charter school" means a school   granted a charter under Subchapter D or E, Chapter 12, Education   Code.          (f)  Nothing in this section shall be construed to limit the   applicability of or waive fees for fire, safety, health, or   building code ordinances of the municipality prior to or during   construction of school buildings, nor shall any agreement waive any   fee or modify any ordinance of a municipality for an   administration, service, or athletic facility proposed for   construction by a school district or open-enrollment charter   school.          SECTION 5.  Chapter 250, Local Government Code, is amended   by adding Section 250.012 to read as follows:          Sec. 250.012.  REGULATION OF OPEN-ENROLLMENT CHARTER   SCHOOLS. (a)  In this section:                (1)  "Local governmental entity" means a political   subdivision of the state, including a:                      (A)  municipality;                      (B)  county; and                      (C)  special purpose district.                (2)  "Open-enrollment charter school" means a school   granted a charter under Subchapter D or E, Chapter 12, Education   Code.          (b)  A local governmental entity may not enact or enforce an   ordinance, order, regulation, resolution, rule, or policy or take   action that prohibits an open-enrollment charter school from   operating a public school campus, educational support facility, or   administrative office in the local governmental entity's   jurisdiction or on any specific property in the jurisdiction of the   local governmental entity.          (c)  The commissioner of education has exclusive   jurisdiction over the establishment and location of an   open-enrollment charter school campus as provided by Subchapter D,   Chapter 12, Education Code.          (d)  This section applies to property purchased or leased   with state funds received by an open-enrollment charter school   under Section 12.128, Education Code.          (e)  This section does not affect the authority granted by   state law to a local governmental entity to regulate an   open-enrollment charter school.          SECTION 6.  Section 395.022(b), Local Government Code, is   amended to read as follows:          (b)  A school district and an open-enrollment charter school   are [is] not required to pay impact fees imposed under this chapter   unless the board of trustees of the district or the governing body   of the charter school consents to the payment of the fees by   entering a contract with the political subdivision that imposes the   fees. The contract may contain terms the board of trustees or   governing body considers advisable to provide for the payment of   the fees.          SECTION 7.  Section 552.053, Local Government Code, is   amended by amending Subsection (b) and adding Subsections (b-1) and   (b-2) to read as follows:          (b)  The following may be exempt:                (1)  this state;                (2)  a county;                (3)  a municipality; or                (4)  [a] school districts and open-enrollment charter   schools [district].          (b-1)  For purposes of an exemption granted under Subsection   (b)(4), the exemption must be granted to both school districts and   open-enrollment charter schools.          (b-2)  For purposes of this section, "open-enrollment   charter school" means a school granted a charter under Subchapter D   or E, Chapter 12, Education Code.          SECTION 8.  As soon as practicable after the effective date   of this Act, the State Board of Education shall adopt procedures for   the appeal of an application selection determination as provided by   Section 12.1102, Education Code, as added by this Act.          SECTION 9.  An exemption granted to a school district under   Section 552.053(b)(4), Local Government Code, as that section   existed before the effective date of this Act, automatically   extends to all open-enrollment charter schools located in the   municipality after the effective date of this Act unless the   municipality repeals the exemption before the effective date of   this Act.          SECTION 10.  This Act takes effect immediately if it   receives a vote of two-thirds of all the members elected to each   house, as provided by Section 39, Article III, Texas Constitution.     If this Act does not receive the vote necessary for immediate   effect, this Act takes effect September 1, 2021.     * * * * *