Do Texas regional education service centers have to keep the model lesson plans they developed, and can parents see them?

Plain-English summary

This opinion grew out of the wind-down of CSCOPE, the shared curriculum that ten of Texas's twenty regional education service centers built together. The centers, called ESCs, had formed a nonprofit called the Texas Education Service Center Curriculum Collaborative (TESCCC) and pooled their resources to develop a curriculum management program, including model or "exemplar" lesson plans they provided to member school districts. TESCCC then voted to stop providing the lesson plans and, soon after, to dissolve the nonprofit and wind up its affairs, with the curriculum work moving to the ESCs under a shared service arrangement. State Senator Robert Duncan, who chaired the Senate Committee on State Affairs, asked the Attorney General five questions about whether those lesson plans had to be retained as public records, and if so under which rules.

Because TESCCC was dissolving and handing the curriculum back to the ESCs, the AG concluded the ongoing retention duties belonged to the ESCs and answered the questions only as to them. The threshold issue was whether an ESC counts as a state agency, which would put its records under Government Code chapter 441's state-agency rules, or a local government, which would put them under the Local Government Records Act. The AG noted that the Texas State Library and Archives Commission runs both records programs, and that the Commission, in a brief, took the position that ESCs are local governments, treating them as "special-purpose districts or authorities." Since the statutes governing ESCs do not clearly slot them into either box, the AG could not call the Commission's view unreasonable or contrary to the text, so a court would have reason to defer. That made the ESC lesson plans local government records under the Local Government Records Act, and also subject to chapter 441, subchapter J, which addresses local government records.

On which schedule applied, the AG pointed to the Commission's Local Schedule SD, which sets mandatory minimum retention periods for records commonly found in local education agencies and expressly lists regional education service centers. Under that schedule, lesson plans must be kept "as long as administratively valuable." The AG added an important overlay: separate from the records-retention rules, Education Code section 26.006(a) gives parents of Texas public school children an absolute right to see the teaching materials used in their child's classroom, so any final disposal of the lesson plans must comply with that right. Finally, because the lesson plans are subject to records-retention provisions, the AG did not reach the fifth question, which had assumed the opposite.

Currency note

This opinion was issued in 2014. 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

Senator Duncan and the Senate committee (as the opinion described it): The opinion answered that the lesson plans, now in the ESCs' hands, are local government records a court would treat as governed by the Local Government Records Act and chapter 441, subchapter J, retained under Local Schedule SD as long as administratively valuable, and that parental access rights apply to any disposal; it did not reach the fifth question because the plans are subject to retention rules.

Regional education service centers (as the opinion described it): The opinion described ESCs as entities the Commission reasonably treats as local governments, making their model lesson plans local government records subject to the Local Government Records Act, chapter 441 subchapter J, and Local Schedule SD's "as long as administratively valuable" period.

Parents of public school students (as the opinion described it): The opinion described Education Code section 26.006(a) as giving parents an absolute right to access the teaching materials used in their child's classroom, a right that any final disposition of the lesson plans must respect.

Common questions

Did the lesson plans have to be kept, or could they just be deleted?
The AG concluded they are local government records subject to retention rules, so they could not simply be discarded. Under the Commission's Local Schedule SD, lesson plans must be kept as long as administratively valuable, and any disposal must also respect parents' access rights.

Are education service center records state or local records?
The AG said a court would have reason to defer to the State Library and Archives Commission's view that ESCs are local governments, so their records fall under the Local Government Records Act rather than the state-agency rules.

Can a parent demand to see these lesson plans?
Yes. The AG pointed to Education Code section 26.006(a), which gives parents an absolute right to access the teaching materials used in their child's classroom, and said any final disposition of the plans must comply with it.

What happened to the records when TESCCC dissolved?
The AG explained that by dissolving and transferring the curriculum management to the ESCs, TESCCC relinquished control of the lesson plans, so the ongoing retention obligations belonged to the ESCs, which is why the opinion addressed only the ESCs.

Background and statutory framework

Government Code chapter 441, subchapter L governs the records of a "state agency," defined to include a department, commission, board, office, or other agency in the executive, legislative, or judicial branch created by the constitution or a statute (Tex. Gov't Code Ann. § 441.180(9)(A) (West 2012); id. §§ 441.180-.205). The Local Government Records Act governs the records of a "local government," defined to include a county, municipality, public school district, appraisal district, or any other special-purpose district or authority (Tex. Loc. Gov't Code Ann. § 201.003(7) (West 2008)). The Texas State Library and Archives Commission administers both the state records management program and the Local Government Records Act (Tex. Gov't Code Ann. §§ 441.002(g)(4), .152, .182(b)), so its reasonable construction is entitled to deference unless it contradicts the statute (State v. Pub. Util. Comm'n of Tex., 344 S.W.3d 349, 356 (Tex. 2011)).

The Commission treated ESCs as local governments, equating them to special-purpose districts, and the AG found that reasonable. Chapter 441, subchapter J also addresses local government records (Tex. Gov't Code Ann. §§ 441.151-.168; id. § 441.168(a)). The Commission must prepare retention schedules for each type of local government (id. § 441.158(a)), and its Local Schedule SD covers regional education service centers and requires lesson plans to be kept as long as administratively valuable (13 Tex. Admin. Code § 7.125(a)(6)). Apart from retention, parents have an absolute right of access to classroom teaching materials (Tex. Educ. Code Ann. § 26.006(a) (West 2012)).

Citations

Statutory and regulatory provisions:

• Tex. Gov't Code Ann. § 441.180(9)(A) (West 2012) (definition of "state agency" for subchapter L)
• Tex. Gov't Code Ann. §§ 441.180-.205 (West 2012) (state-agency records, subchapter L)
• Tex. Gov't Code Ann. §§ 441.002(g)(4), .152, .182(b) (West 2012) (Commission administers the records programs)
• Tex. Gov't Code Ann. §§ 441.151-.168 (West 2012) (local government records, subchapter J)
• Tex. Gov't Code Ann. § 441.168(a) (West 2012) (microfilming or storage of local government records)
• Tex. Gov't Code Ann. § 441.158(a) (West 2012) (retention schedules for each type of local government)
• Tex. Loc. Gov't Code Ann. § 201.003(7) (West 2008) (definition of "local government")
• 13 Tex. Admin. Code § 7.125(a)(6) (Local Schedule SD; regional education service centers; lesson plans)
• Tex. Educ. Code Ann. § 26.006(a) (West 2012) (parental right of access to teaching materials)

Cases:

• State v. Pub. Util. Comm'n of Tex., 344 S.W.3d 349, 356 (Tex. 2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1038
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1038.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

January 21, 2014

The Honorable Robert Duncan Opinion No. GA-1038
Chair, Committee on State Affairs
Texas State Senate Re: Whether statutory records retention
Post Office Box 12068 requirements apply to model lesson plans
Austin, Texas 78711-2068 developed and maintained by the Texas
Education Service Center Curriculum
Collaborative (RQ-1140-GA)

Dear Senator Duncan:

You ask five questions about "whether model lesson plans developed by the Texas Education Service Center Curriculum Collaborative ('TESCCC' or 'the collaborative') are subject to the records retention requirements applicable to local governments and/or those applicable to state agencies."[1] As background, you explain that ten of the state's twenty regional education service centers ("ESCs") entered into "an interlocal agreement, formally creating the TESCCC" as a nonprofit corporation. Request Letter at 2. Through that nonprofit, the ESCs pooled their resources to develop a curriculum management program, which included providing "exemplar lesson plans ... to the member school districts." Id. You tell us that TESCCC "voted to discontinue providing lesson plans," and you explain that "questions have arisen regarding how to handle the discontinued lessons." Id.

Your first and second questions ask whether "the lesson plans maintained by TESCCC and/or the member ESCs" are considered state government records, subject to chapter 441 of the Government Code, or local government records, subject to the Local Government Records Act. Id. With regard to TESCCC, you tell us that in May of this year, the board of directors of TESCCC voted to "dissolve the nonprofit and wind up its affairs," and the curriculum management program will now be managed by the regional ESCs through a shared service arrangement. Id. By dissolving itself and transferring management to the ESCs, it would appear that TESCCC has relinquished control of the curriculum and affiliated lesson plans to the ESCs. Any ongoing retention obligations belong to the ESCs, and we will therefore answer your questions only with regard to the ESCs.

Government Code chapter 441, subchapter L addresses the preservation and management of the records of a "state agency," defined for purposes of subchapter L to include "any department, commission, board, office, or other agency in the executive, legislative, or judicial branch of state government created by the constitution or a statute of this state." TEX. GOV'T CODE ANN. § 441.180(9)(A) (West 2012); see also id. §§ 441.180-.205. The Local Government Records Act addresses the preservation and management of the records of a "local government," defined for purposes of that Act as "a county, ... municipality, public school district, appraisal district, or any other special-purpose district or authority." TEX. LOC. GOV'T CODE ANN. § 201.003(7) (West 2008). To answer your questions, we must therefore determine whether ESCs are state agencies or local governments.

The Legislature has directed the Texas State Library and Archives Commission (the "Commission") to "administer the state records management program" and to "administer programs to carry out the duties" of the Commission under the Local Government Records Act. TEX. GOV'T CODE ANN. §§ 441.002(g)(4), .152, .182(b) (West 2012). As the agency charged with administration of the Local Government Records Act, the Commission's reasonable construction of the statute is entitled to deference so long as it does not contradict the statute's plain language. See State v. Pub. Util. Comm'n of Tex., 344 S.W.3d 349, 356 (Tex. 2011). In a brief submitted to this office in response to your request, the Commission advises that it considers ESCs local governments subject to the Local Government Records Act, explaining that it equates ESCs to "special-purpose districts or authorities" under Local Government Code section 201.003(7).[2] While the law governing ESCs does not clearly categorize these entities as either state agencies or local governments, we cannot conclude that the Commission's categorization of them as local governments is unreasonable or contrary to the statutory text. Thus, a court would have reason to defer to the Commission's conclusion that the lesson plans maintained by ESCs are local government records subject to the Local Government Records Act.

Your third question asks whether the lesson plans are "subject to any of the other retention requirements of Chapter 441 of the Government Code." Request Letter at 3. Along with the Local Government Records Act, Government Code chapter 441, subchapter J addresses the preservation and management of local government records. TEX. GOV'T CODE ANN. §§ 441.151-.168 (West 2012). Most of the provisions in subchapter J address the authority and duties of the Commission director and librarian. Id. To the extent that the provisions address local government records, however, the ESCs are subject to chapter 441, subchapter J. See, e.g., id. § 441.168(a) (authorizing a local government to request the Commission to provide microfilming or storage of local government records).

Your fourth question asks which of the retention schedules adopted by the Commission applies to the lesson plans and what is the minimum retention time under that schedule. Request Letter at 3. Government Code subsection 441.158(a) requires the Commission to "prepare and distribute ... records retention schedules for each type of local government." TEX. GOV'T CODE ANN. § 441.158(a) (West 2012). Pursuant to this duty, the Commission has published Local Schedule SD, which "sets mandatory minimum retention periods for records ... commonly found in local education agencies," expressly including "regional educational service centers." 13 TEX. ADMIN. CODE § 7.125(a)(6). Under the Local Schedule SD, "lesson plans" must be maintained for "as long as administratively valuable." In addition to the requirements of the Local Government Records Act, parents of Texas public school children have an absolute right of access to teaching materials used in the classroom of the parents' child. TEX. EDUC. CODE ANN. § 26.006(a) (West 2012). Any final disposition of the lesson plans about which you ask must comply with this statute.

Your final question assumes that the lesson plans are not subject to any statutory records retention provisions. Request Letter at 3. Because the lesson plans maintained by ESCs are subject to statutory records retention provisions, we do not answer your fifth question.

SUMMARY

A court would have reason to defer to the conclusion of the State Library and Archives Commission that the model lesson plans maintained by Regional Education Service Centers are local government records subject to the Local Government Records Act. In addition, Education Service Centers must comply with Government Code chapter 441, subchapter J with regard to the maintenance of model lesson plans.

The State Library and Archives Commission's Local Schedule SD applies to the retention of lesson plans maintained by Regional Education Service Centers. Local Schedule SD requires that lesson plans be maintained for as long as administratively valuable. Any final disposition of lesson plans must comport with the absolute right of parents to access teaching materials used in the classroom of the parents' child pursuant to subsection 26.006(a) of the Education Code.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Robert Duncan, Chair, Senate Comm. on State Affairs, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (July 23, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Brief from Edward Seidenberg, Interim Dir. & Librarian, Tex. State Library and Archives Comm'n at 1 (Aug. 13, 2013) (on file with Op. Comm.) ("Commission Brief").