Can a Texas school district use free open-source textbooks to satisfy the state's classroom set requirement?

Plain-English summary

In 2009 the Texas Legislature rewrote parts of the Education Code to make room for cheaper alternatives to traditional paper textbooks, including "open-source" textbooks (free electronic texts a student can download from the Internet). The State Board of Education had eight questions about how those changes worked, and it asked the Attorney General to sort them out. The opinion walks through each one.

The recurring theme is that the Legislature defined "textbook" broadly. An electronic textbook counts as a textbook, and an open-source textbook counts as an electronic textbook. So when the Education Code requires a school district or charter school to buy "a classroom set of textbooks" adopted by the Board, an open-source textbook submitted by a university can satisfy that requirement once it is adopted under the regular sections (31.023 or 31.035). A classroom set can also include "nonconforming" textbooks that cover at least half but not all of the state's required knowledge and skills.

Two answers cut the other way for the Board. First, the opinion found no authority in section 31.0241 for the Board to refuse to place a university's open-source textbook on the conforming or nonconforming list simply because the Board disagreed with the university's own determination that the book qualified. Second, the opinion concluded that the statute making purchased textbooks "the property of this state" does not reach "technological equipment," which the Code defines separately. The Board can, however, impose an administrative penalty on a university that is properly treated as a publisher. The Attorney General declined the Board's very first question because the Board never explained the legal basis of the concern it raised.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The State Board of Education (what the opinion held for it): On most questions the opinion confirmed the statute's reach. It told the Board it could not decline to list a university open-source textbook under section 31.0241 just because it disagreed with the university's determination, but it could impose an administrative penalty on a university properly characterized as a publisher under subchapter D of chapter 31. On the very first question (whether the Board had correctly implemented the "classroom set" rule), the opinion declined to answer, explaining it lacked information about the Board's specific legal concern and how it interpreted its own rule.

School districts and open-enrollment charter schools (what the opinion described): The opinion described a district's purchasing duty under section 31.101(c-1) and confirmed that a university open-source textbook adopted under section 31.023 or 31.035 may serve as a classroom set, that the set may include nonconforming textbooks not covering the entire curriculum, and that a district acquiring a qualifying open-source textbook below the cost limit in section 31.025(a) is entitled to a credit under section 31.1011.

Parents and students (what the opinion described): The opinion read section 26.006(c) to mean that if a textbook used by a student is available, the district or charter school must honor a parent's request to let the student take it home, and that duty extends to a textbook that is part of a classroom set.

Universities submitting open-source textbooks (what the opinion described): The opinion treated a qualifying "eligible institution" as able to submit open-source textbooks for adoption, and noted that, if properly characterized as a publisher, such an institution may be subject to an administrative penalty for violations under subchapter D of chapter 31.

Common questions

Can a free open-source textbook count as a school district's required "classroom set" in Texas?
The opinion concluded yes. Because the Education Code defines "textbook" to include an electronic textbook, and "electronic textbook" to include an open-source textbook, an open-source textbook adopted under section 31.023 or 31.035 could constitute a classroom set under section 31.101(c-1).

Does a classroom set have to cover the entire state curriculum?
No. The opinion concluded that a classroom set could include textbooks on the nonconforming list, which by statute cover at least half but not all of the essential knowledge and skills for the subject and grade level.

Can a parent make the school let a student take a classroom-set textbook home?
The opinion read section 26.006(c) to say that if the textbook is available, the school must honor the parent's request, and that this applies to a textbook that is part of a classroom set.

Could the State Board refuse to list a university's open-source textbook because it disagreed with the university?
The opinion found no authority under section 31.0241 for the Board to decline to place the textbook on the conforming or nonconforming list when the Board disagreed with the eligible institution's determination that the book qualified.

Is classroom technology equipment owned by the state or the local district?
The opinion concluded that section 31.102, which makes purchased textbooks "the property of this state," does not cover "technological equipment," because the Code defines that term separately from "textbook."

Background and statutory framework

School districts must offer a required curriculum made up of the foundation and enrichment curriculum, and the State Board of Education identifies the essential knowledge and skills used to evaluate textbooks under chapter 31. Tex. Educ. Code Ann. § 28.002(a) (West Supp. 2010); id. § 28.002(c). The Board runs a review and adoption cycle for textbooks, id. § 31.022(a), and adopts lists of conforming, nonconforming, and supplemental textbooks under sections 31.023 and 31.035. Id. § 31.023(a); id. § 31.035. The questions in this opinion arose from 2009 amendments enacted in House Bill 2488 and House Bill 4294. Act of May 29, 2009, 81st Leg., R.S., ch. 679, §§ 1-12, 2009 Tex. Gen. Laws 1508 (House Bill 2488); Act of May 29, 2009, 81st Leg., R.S., ch. 1407, §§ 1-11, 2009 Tex. Gen. Laws 4392 (House Bill 4294).

The classroom-set questions turned on section 31.101(c-1), which requires a district or charter school to purchase a classroom set of textbooks adopted under section 31.023 or 31.035 for each subject and grade level. Tex. Educ. Code Ann. § 31.101(c-1) (West Supp. 2010). The Board had defined "classroom set" by rule. 19 Tex. Admin. Code § 66.104(s) (2010). Because the Board did not explain the legal basis of its concern or how it interpreted "class period," the opinion could not address whether the rule was correctly implemented. On the open-source question, the opinion relied on the statutory definitions: a "textbook" includes an electronic textbook, and an "electronic textbook" includes an open-source textbook, with words given their legislatively assigned meaning. Id. § 31.002(1-a); id. § 31.002(3); Tex. Gov't Code Ann. § 311.011(a)-(b) (West 2005). An eligible institution may submit an open-source textbook through any chapter 31 adoption process. Tex. Educ. Code Ann. § 31.0241(c) (West Supp. 2010); id. § 31.0241(a)(1).

On the take-home question, the opinion read section 26.006(c) together with the rule that "shall" generally imposes a duty. Id. § 26.006(c) (West 2006); Tex. Gov't Code Ann. § 311.016(2) (West 2005). On the listing question, section 31.0241(b) says the Board "shall" place a qualifying open-source textbook on the list once the eligible institution makes the required determinations, leaving the Board no authority to second-guess those determinations. Tex. Educ. Code Ann. § 31.0241(b) (West Supp. 2010). The penalty question rested on subchapter D, which authorizes administrative penalties against publishers. Id. §§ 31.151-.153 (West 2006 & Supp. 2010). The credit question rested on section 31.1011 and the cost limit in section 31.025(a). Id. § 31.1011(a); id. § 31.025(a). And the ownership question turned on section 31.102, which the opinion read, consistent with Tex. Att'y Gen. Op. No. GA-0444 (2006), not to sweep in technological equipment. Id. § 31.102 (West 2006).

Citations

Statutes, rules, and session laws:

• Tex. Educ. Code Ann. § 28.002(a) (West Supp. 2010)
• Tex. Educ. Code Ann. § 31.022(a)
• Tex. Educ. Code Ann. § 31.023(a)
• Tex. Educ. Code Ann. § 31.035
• Tex. Educ. Code Ann. § 31.101(c-1) (West Supp. 2010)
• Tex. Educ. Code Ann. § 31.002(1-a) (West Supp. 2010)
• Tex. Educ. Code Ann. § 31.002(3)
• Tex. Educ. Code Ann. § 31.0241(b) (West Supp. 2010)
• Tex. Educ. Code Ann. § 31.0241(c) (West Supp. 2010)
• Tex. Educ. Code Ann. § 31.0241(a)(1) (West Supp. 2010)
• Tex. Educ. Code Ann. § 26.006(c) (West 2006)
• Tex. Educ. Code Ann. §§ 31.151-.153 (West 2006 & Supp. 2010)
• Tex. Educ. Code Ann. § 31.1011(a) (West Supp. 2010)
• Tex. Educ. Code Ann. § 31.025(a) (West 2006)
• Tex. Educ. Code Ann. § 31.102 (West 2006)
• Tex. Educ. Code Ann. § 7.102(c)(23) (West 2006)
• Tex. Gov't Code Ann. § 311.011(a)-(b) (West 2005)
• Tex. Gov't Code Ann. § 311.016(2) (West 2005)
• 19 Tex. Admin. Code § 66.104(s) (2010)
• Act of May 29, 2009, 81st Leg., R.S., ch. 679, §§ 1-12, 2009 Tex. Gen. Laws 1508 (House Bill 2488)
• Act of May 29, 2009, 81st Leg., R.S., ch. 1407, §§ 1-11, 2009 Tex. Gen. Laws 4392 (House Bill 4294)

Opinions:

• Tex. Att'y Gen. Op. No. GA-0444 (2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0823
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0823.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 1, 2010

Ms. Gail Lowe, Chair Opinion No. GA-0823
State Board of Education
1701 North Congress Avenue Re: Public school textbook adoption under recent
Austin, Texas 78701-1494 legislative amendments to the Education Code
(RQ-0887-GA)

Dear Ms. Lowe:

On behalf of the State Board of Education (the "SBOE" or "Board"), you ask several questions regarding amendments to the Education Code enacted in 2009.[1] Specifically, your questions relate to changes to the Education Code adopted in House Bill 2488 and House Bill 4294. See Act of May 29, 2009, 81st Leg., R.S., ch. 679, §§ 1-12, 2009 Tex. Gen. Laws 1508, 1508-12 ("House Bill 2488"); Act of May 29, 2009, 81st Leg., R.S., ch. 1407, §§ 1-11, 2009 Tex. Gen. Laws 4392, 4392-96 ("House Bill 4294").

I. Background

To provide context for your questions, we review Education Code provisions pertinent to the textbook adoption and selection process. Generally, school districts must offer a required curriculum composed of the foundation curriculum and the enrichment curriculum. TEX. EDUC. CODE ANN. § 28.002(a) (West Supp. 2010). The SBOE identifies the essential knowledge and skills of each subject of the required curriculum, which are used in evaluating textbooks under chapter 31 of the Education Code. Id. § 28.002(c). The SBOE provides for a review and adoption cycle for textbooks for each subject of the required curriculum. Id. § 31.022(a). Under sections 31.023 and 31.035, the SBOE must adopt lists of conforming, nonconforming, and supplemental textbooks. Id. §§ 31.023(a) (further providing that a conforming textbook contains material covering each element, and a nonconforming textbook covers at least half of the elements of the essential knowledge and skills of the subject and grade level); 31.035 (providing for supplemental textbooks which contain material that covers a primary focal point or topic in the required curriculum but which are not designed to serve as a sole textbook for a full course).

The Education Code defines a "textbook" to include an electronic textbook. Id. § 31.002(3). House Bill 2488 relates, as a general matter, to open-source textbooks, which are a particular type of electronic textbook, and other instructional materials. See House Bill 2488. House Bill 4294 generally relates to textbooks, electronic textbooks, instructional materials, and technological equipment in public schools. See House Bill 4294. You state that both bills present opportunities for cost savings by providing options in addition to traditional paper textbooks. See Request Letter at 2.

II. Classroom Set of Textbooks

You explain that your "first four questions deal with the term 'classroom set' as it appears in Section 31.101(c-1) of the Education Code." Id. Section 31.101 concerns school districts' selection and purchase of textbooks of various kinds. TEX. EDUC. CODE ANN. § 31.101 (West Supp. 2010). Subsection 31.101(c-1) provides that "[n]otwithstanding any other provision of this chapter, a school district or open-enrollment charter school must purchase a classroom set of textbooks adopted by the State Board of Education under Section 31.023 or 31.035 for each subject and grade level in the foundation and enrichment curriculum." Id. § 31.101(c-1).

A. SBOE Definition of "Classroom Set"

The Board has, by rule,[2] defined the term "classroom set" to mean "the total count of SBOE adopted textbooks on the conforming or nonconforming list necessary to provide one copy to each student during the class period." 19 TEX. ADMIN. CODE § 66.104(s) (2010) (Tex. Educ. Agency, Selection of Instructional Materials by School Districts). You first ask us to "confirm that the Board has appropriately implemented ... section [31.101(c-1)] of the Education Code." Request Letter at 2. You explain that "[c]oncerns have been raised about the impact of the term 'classroom set' on elementary grade textbooks where students do not cycle through classes as is common in middle and high schools" but do not go on to clarify the legal basis of this concern. Id. The concern appears to hinge on how the SBOE interprets its rule. For instance, the manner in which the SBOE interprets the phrase "class period" could be relevant in addressing this concern. Without more information about the legal basis of the concern and how the SBOE interprets its rule, however, we are unable to answer your first question.

B. University Open-Source Textbooks as a Classroom Set

Your second question is "whether university open-source textbooks are eligible for local selection" as a classroom set or, stated conversely, whether "university open-source textbooks may not be selected by school districts to satisfy the classroom set requirement under Section 31.101 (c-1)."[3] Id. at 2-3. An open-source textbook is, generally speaking, an electronic textbook that a student may obtain from the Internet at no charge.[4]

Subsection 31.101(c-1) provides that a classroom set of textbooks consists of "textbooks adopted by the State Board of Education under Section 31.023 or 31.035." TEX. EDUC. CODE ANN. § 31.101(c-1) (West Supp. 2010). By legislative definition, the term textbook includes an open-source textbook.[5] Id. § 31.002(1), (3) (defining "textbook" to include an electronic textbook and defining "electronic textbook" to include an open-source textbook); TEX. GOV'T CODE ANN. § 311.011(a)-(b) (West 2005) (providing that words that have a particular meaning because of a legislative definition shall be construed accordingly). Section 31.0241(c) provides that an eligible institution (i.e., a university)[6] is not prohibited from "submitting a textbook for placement on a conforming or nonconforming list through any other adoption process provided by" chapter 31. TEX. EDUC. CODE ANN. § 31.0241(c) (West Supp. 2010). Thus, an open-source textbook could be adopted under section 31.023 or 31.035, as required by subsection 31.101(c-1), and thereby constitute a classroom set.[7]

C. Materials that Do Not Cover Entire State Curriculum as Classroom Set

Your third question asks whether a school district or open-enrollment charter school may "satisfy the requirement of Section 31.101(c-1) by purchasing a classroom set of materials[8] adopted by the Board that does not cover the entire state curriculum[.]"[9] Request Letter at 3 (footnotes added). By its terms, section 31.101(c-1) provides that a classroom set of textbooks consists of "textbooks adopted by the State Board of Education under Section 31.023 or 31.035." TEX. EDUC. CODE ANN. § 31.101(c-1) (West Supp. 2010). Section 31.023 provides for the adoption of textbooks placed on either a conforming or nonconforming list. Id. § 31.023(a). Textbooks on the nonconforming list "contain[] material covering at least half, but not all, of the elements of the essential knowledge and skills of the subject and grade level in the student version of the textbook." Id. § 31.023(a)(2). Thus, a classroom set of textbooks could, by the express terms of section 31.101(c-1), include textbooks on the nonconforming list which do not, as you describe it, cover the entire state curriculum.

D. Student's Ability to Take Home Textbooks

Your fourth question is whether "[s]ubsection 26.006(c) entitles a student to take a textbook home at the request of a parent if a copy of the textbook is 'available'" and whether such entitlement extends to a textbook that is part of a classroom set. Request Letter at 4. Subsection 26.006(c) provides that

[a] student's parent is entitled to request that the school district or open-enrollment charter school the student attends allow the student to take home any textbook used by the student. Subject to the availability of a textbook, the district or school shall honor the request. ... In this subsection, "textbook" has the meaning assigned by Section 31.002.

TEX. EDUC. CODE ANN. § 26.006(c) (West 2006) (emphasis added).

By its terms, subsection 26.006(c) entitles a parent to request that a student be allowed to take home a textbook that is used by the student. Id. If the textbook is available, as your question asks us to assume, then a charter school or school district has a duty to honor that request. See TEX. GOV'T CODE ANN. § 311.016(2) (West 2005) (providing that the term "shall" is generally construed to impose a duty).

Also by its terms, subsection 26.006(c) applies to "any textbook" that is used by a student. TEX. EDUC. CODE ANN. § 26.006(c) (West 2006) (emphasis added). Thus, if a student uses a textbook that is part of a classroom set and the textbook is available, then the school or district's duty to honor the parent's request extends to that textbook.

III. University Open-Source Textbooks

Your next three questions relate to university open-source textbooks. See supra note 4 (discussing the meaning of the phrase "university open-source textbook").

A. SBOE's Discretion in Placing a University Open-Source Textbook on a State Adoption List

Your fifth question asks whether the SBOE has "authority [under section 31.0241(b)] to decline to place a university open-source textbook on the conforming or nonconforming list of textbooks if the university disagreed with the Board as to whether the textbook covered the curriculum or contained factual errors." Request Letter at 4; see also supra page 3 (explaining that an open-source textbook may be submitted under any process provided in chapter 31).

Section 31.0241(b) provides that the SBOE "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" the textbook meets certain criteria and the eligible institution makes certain determinations. TEX. EDUC. CODE ANN. § 31.0241(b) (West Supp. 2010) (emphasis added); see also TEX. GOV'T CODE ANN. § 311.016(2) (West 2005) (providing that the term "shall" is generally construed to impose a duty). One such determination is "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." TEX. EDUC. CODE ANN. § 31.0241(b)(4) (West Supp. 2010). We find no authority under section 31.0241 for the SBOE to decline to place an open-source textbook on the conforming or nonconforming list if the SBOE disagrees with the eligible institution's determination as to this or any other issue for the eligible institution's determination.[10]

B. SBOE's Authority to Fine or Sanction a University

Your sixth question asks whether the SBOE "has the authority to impose a fine or other sanction under its rules generally relating to a publisher against a university that certifies an open-source textbook." Request Letter at 4. You explain that subchapter D, chapter 31 of the Education Code imposes certain duties on publishers[11] of textbooks and authorizes the SBOE to impose a reasonable administrative penalty for violations under that subchapter. See TEX. EDUC. CODE ANN. §§ 31.151-.153 (West 2006 & Supp. 2010); Request Letter at 4. You also tell us that the SBOE has adopted rules applying the duties of publisher to a university submitting an open-source textbook. See 19 TEX. ADMIN. CODE § 66.67(i)-(j) (2010) (Tex. Educ. Agency, Adoption of Open-Source Instructional Materials); Request Letter at 4. This "status of 'publisher' raises a question as to whether penalties that the Board may otherwise assess against a publisher may be imposed on a university." Request Letter at 4. Assuming that a university is properly characterized as a publisher,[12] we conclude that subchapter D, chapter 31 of the Education Code authorizes the SBOE to impose an administrative penalty on a university for such violation of the subchapter.[13]

C. University Open-Source Textbook Credits

Your seventh question asks whether an open-enrollment charter school or school district is entitled to a credit under section 31.1011 if the school or district "selects a university open-source textbook in lieu of another textbook purchased at state expense." Request Letter at 5. Section 31.1011 provides that "[a] school district or open-enrollment charter school is entitled to receive credit for textbooks purchased at a cost below the cost limit established under Section 31.025(a)."[14] TEX. EDUC. CODE ANN. § 31.1011(a) (West Supp. 2010). As we previously stated, an open-source textbook is, by legislative definition, a textbook. Id. § 31.002(1), (3) (defining "textbook" to include an electronic textbook and defining "electronic textbook" to include an open-source textbook). Thus, if an open-enrollment charter school or school district acquires a university open-source textbook at a cost below the cost limit established under section 31.025(a), the school or district is entitled to a credit.

IV. Ownership of Technological Equipment

Your final question is "whether technological equipment purchased under Section 31.1011 is the property of the state or the local school district." Request Letter at 5. You tell us that the SBOE assumes that such equipment becomes state property by virtue of section 31.102, which provides that "each textbook purchased as provided by this chapter is the property of this state." TEX. EDUC. CODE ANN. § 31.102 (West 2006) (emphasis added); Request Letter at 5.

The term "technological equipment" is defined to mean "hardware, a device, or equipment necessary for" certain instruction and professional use. TEX. EDUC. CODE ANN. § 31.002(4) (West Supp. 2010). The term "textbook" is defined to "mean[] a book, a system of instructional materials, or a combination of a book and supplementary instructional materials that conveys information to the student or otherwise contributes to the learning process, or an electronic textbook." Id. § 31.002(3). As you recognize, the term "textbook" does not include "technological equipment." See Request Letter at 5 ("The definition of 'textbook' in Section 31.102 does not appear to include 'technological equipment' as defined at Subsection (4)."); see also Tex. Att'y Gen. Op. No. GA-0444 (2006) at 1 ("Neither the definition of 'textbook' nor that of 'electronic textbook' indicates that [the terms] include[] hardware or other equipment."). Thus, we conclude that section 31.102 does not provide that technological equipment is the property of the state.

SUMMARY

Section 31.101(c-1) of the Education Code requires a school district or an open-enrollment charter school to purchase "a classroom set of textbooks" according to the statute's terms. TEX. EDUC. CODE ANN. § 31.101(c-1) (West Supp. 2010). We cannot address whether the State Board of Education ("SBOE") has appropriately implemented the section without information about the SBOE's specific legal concerns and its interpretation of its rules. However, university open-source textbooks adopted pursuant to Education Code section 31.023 or 31.035 may serve as a classroom set of textbooks under section 31.101(c-1). Also, a classroom set under section 31.101(c-1) may include textbooks on the nonconforming list that do not cover the entire state curriculum. Education Code section 26.006(c), which requires a school district or charter school to honor a parent's request to allow the student to take home any textbook used by the student if it is available, applies to a textbook that is part of a classroom set of textbooks.

The SBOE has no authority under section 31.0241 of the Education Code to decline to place an open-source textbook on the conforming or nonconforming textbook list if the SBOE disagrees with an eligible institution's determination that the textbook qualifies for placement on the conforming or nonconforming list. Assuming that a university is properly characterized as a publisher with respect to an open-source textbook, the SBOE has authority to impose an administrative penalty on such a university for violations under subchapter D, chapter 31 of the Education Code. If an open-enrollment charter school or school district acquires a university open-source textbook at a cost below the cost limit established under section 31.025(a) of the Education Code, the school or district is entitled to a credit.

Section 31.102 of the Education Code, which provides that "[e]ach textbook purchased as provided by this chapter is the property of this state," does not include technological equipment as property of the state. Id. § 31.102(a) (West 2006).

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William Hill
Assistant Attorney General, Opinion Committee

[1] Request Letter at 2-5 (available at http://www.texasattorneygeneral.gov).

[2] Education Code section 7.102 provides that the SBOE "shall adopt and purchase or license textbooks as provided by Chapter 31 and adopt rules required by that chapter." TEX. EDUC. CODE ANN. § 7.102(c)(23) (West 2006). Chapter 31 provides that the SBOE "may adopt rules, consistent with this chapter, for the adoption, requisition, distribution, care, use, and disposal of textbooks." Id. § 31.003.

[3] While you inform us that the SBOE has adopted a rule that provides that "[a]n open-source textbook defined in [Education Code] § 31.0241 ... shall not fulfill the requirement of a classroom set," we understand your question to concern statutory requirements rather than SBOE rules. See 19 TEX. ADMIN. CODE § 66.67(k) (2010) (Tex. Educ. Agency, Adoption of Open-Source Instructional Materials); Request Letter at 3.

[4] We do not find the term "university open-source textbook" in chapter 31. Chapter 31 defines "'[o]pen-source textbook' [to] mean[] 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." TEX. EDUC. CODE ANN. § 31.002(1-a) (West Supp. 2010). Section 31.0241 provides that "eligible institutions"—defined to include certain institutions of higher education—may submit open-source textbooks for adoption. Id. § 31.0241(b)-(c). Thus, we understand and use the phrase "university open-source textbook" throughout this opinion to mean an open-source textbook submitted by an eligible institution as defined in section 31.0241.

[5] You appear to agree that the term textbook includes an open-source textbook. See Request Letter at 5, n.21 ("The term 'textbook' as defined in Section 31.002 includes electronic textbooks, open-source textbooks and instructional materials.").

[6] "'[E]ligible institution' means ... 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." TEX. EDUC. CODE ANN. § 31.0241(a)(1) (West Supp. 2010).

[7] You appear to agree. See Request Letter at 3, n.14 ("Of course, a university could choose to submit a textbook through the formal Board adoption process in addition to certifying under Section 31.0241.").

[8] We understand your reference to "a classroom set of materials" to mean a classroom set of textbooks under section 31.101(c-1). See Request Letter at 2 (telling us that your first four questions relate to the meaning of "classroom set of textbooks" in section 31.101(c-1)); see also TEX. EDUC. CODE ANN. § 31.002(3) (West Supp. 2010) (defining "textbook" to include certain materials).

[9] We do not find the term "state curriculum" in chapter 31 but understand you to mean the elements of the essential knowledge and skills of the subject and grade level in the student version of the textbook. See, e.g., Request Letter at 3 n.13 ("Section 31.023 of the Education Code provides for a 'conforming list' of textbooks that cover all the elements of the state curriculum and a 'nonconforming list' whose textbooks cover at least one-half of those elements."); see also TEX. EDUC. CODE ANN. §§ 28.002 (West Supp. 2010) (setting out required curriculum), 32.254(c) (providing that certain classes "must be aligned with state curriculum requirements under Section 28.002 and the essential knowledge and skills identified under that section"); 19 TEX. ADMIN. CODE § 228.2(20) (2010) (defining the "Texas Essential Knowledge and Skills" as "[t]he Kindergarten-Grade 12 state curriculum in Texas adopted by the State Board of Education and used as the foundation of all state certification examinations").

[10] You do not ask and, thus, this opinion does not address whether the SBOE has such authority when a university open-source textbook is adopted through some process other than the section 31.0241 process. Moreover, we do not address any potential issues that may arise should the SBOE choose to impose an administrative penalty on a university.

[11] Section 31.002(2) provides that the term publisher "includes an on-line service or a developer or distributor of an electronic textbook." TEX. EDUC. CODE ANN. § 31.002(2) (West Supp. 2010).

[12] You do not ask and, thus, this opinion does not address the meaning of the term publisher.

[13] We do not address any issues beyond what the face of the statute purports to authorize.

[14] Section 31.025 provides that the SBOE "shall set a limit on the cost that may be paid from the state textbook fund for a textbook placed on the conforming or nonconforming list for a particular subject and grade level." See id. § 31.025(a) (West 2006).