Can a comparable or practice exam satisfy the test requirement for a Texas bilingual-teacher tuition grant?

Plain-English summary

The Texas Legislature funds a program that gives tuition assistance to students preparing to teach bilingual education, English as a second language, or Spanish in school districts with high critical needs. The funding and its conditions live in a "rider," Rider 52, attached to the Higher Education Coordinating Board's appropriation in the General Appropriations Act. The Commissioner of Higher Education, Harrison Keller, asked the Attorney General two questions about how strictly to read one of the rider's eligibility conditions.

Rider 52 lists three requirements for "qualified students": demonstrated financial need (via the FAFSA and the school's financial aid office), a minimum 3.0 GPA, and successfully passing the State Board for Educator Certification Bilingual Target Language Proficiency Test. The Commissioner explained the practical friction: students pursuing English-as-a-second-language or Spanish certifications often do not sit for that particular bilingual test at all, taking different subject-area exams instead, and even bilingual-track students usually do not take it until their last semester, after their final tuition bill is due. He asked whether a school could instead accept passage of a comparable exam, or passage of a practice version of the named test.

The AG read the rider by its plain terms, applying the rule that statutory-construction canons apply equally to appropriations riders. The rider names one specific test and conditions the grant on passing it. Nothing in the text says a comparable exam or a practice test counts. The AG noted courts presume the Legislature included the words it meant to include and do not rewrite a statute to make it more reasonable, reserving the "absurdity doctrine" for truly exceptional cases. Even though requiring the named test might shrink the pool of eligible students and raise timing problems, the AG concluded that enforcing the law as written was the safest course, and that a court was unlikely to hold either a comparable exam or a practice exam satisfies Rider 52's requirement to pass the Bilingual Target Language Proficiency Test.

Currency note

This opinion was issued in 2020 and construes Rider 52 in the 2020 General Appropriations Act, which the Legislature re-enacts every two years and can change each session. Treat this page as historical context, not current legal advice. Verify the text of the current appropriations rider before relying on this conclusion.

What the opinion meant for those who asked

The opinion told the Coordinating Board and the universities administering the grants that the test condition meant exactly what it said. For the Board, the reading at the time was that it could not treat a comparable certification exam or a practice test as satisfying Rider 52's requirement to pass the named Bilingual Target Language Proficiency Test. For the universities, the opinion explained that the eligibility pool was limited to students who pass that specific test, even if that produced odd or inconvenient results. The AG framed the conclusion as a prediction of how a court would likely construe the rider, grounded in plain-meaning construction and the narrowness of the absurdity exception, and pointed out that any broader fix would be a matter for the Legislature to write into the rider, not for the agency to read in.

Common questions

Q: Could a student qualify for the bilingual-teacher grant with a different, comparable exam?
A: A court was unlikely to allow it, the AG concluded. Rider 52 names the State Board for Educator Certification Bilingual Target Language Proficiency Test specifically, and nothing in the text suggested a comparable exam for a different program would satisfy the requirement.

Q: Does passing a practice version of the test count?
A: No, in the AG's reading. The rider requires successfully passing the actual test, and the AG found no language suggesting a practice exam would meet that condition.

Q: Why didn't the AG just fix the apparent timing and eligibility problems?
A: Because courts enforce statutes and appropriations riders as written and only depart from plain meaning to avoid a truly absurd result. The AG quoted the Texas Supreme Court that the bar for reworking enacted text is high and "mere oddity does not equal absurdity," so the practical friction did not justify reading the requirement more loosely.

Q: Who could change the requirement?
A: The opinion treated the named-test condition as the Legislature's choice in the appropriations rider. Any change to accept comparable or practice exams would come from the Legislature rewriting the rider, not from the agency or universities reinterpreting it.

Background and statutory framework

The program traces to a tuition-assistance appropriation for educator preparation in bilingual education, ESL, and Spanish, carried in Rider 52 to the Higher Education Coordinating Board's appropriation in the 2020 General Appropriations Act. The AG applied standard statutory-construction principles (Silguero v. CSL Plasma, Inc.), the rule that those principles govern appropriations items and riders (Jessen Assocs., Inc. v. Bullock), plain-meaning construction subject to a context or absurdity exception (Tex. Lottery Comm'n v. First State Bank of DeQueen), and the presumption that the Legislature includes and omits words deliberately (Union Carbide Corp. v. Synatzske). The narrow absurdity doctrine came from Combs v. Health Care Servs. Corp., and the enforce-as-written principle from Entergy Gulf States, Inc. v. Summers, with the office's earlier Opinion GA-0378 (2005) cited for the proposition that a general appropriation bill may contain riders that detail, limit, or restrict the use of funds.

Citations and references

Appropriations provision:

• General Appropriations Act, 86th Leg., R.S., art. III, at III-62-3 (2020) (Rider 52, Higher Education Coordinating Board)

Cases:

• Silguero v. CSL Plasma, Inc., 579 S.W.3d 53 (Tex. 2019)
• Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593 (Tex. 1975)
• Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010)
• Union Carbide Corp. v. Synatzske, 438 S.W.3d 39 (Tex. 2014)
• Combs v. Health Care Servs. Corp., 401 S.W.3d 623 (Tex. 2013)
• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009)

Related opinion:

• Tex. Att'y Gen. Op. No. GA-0378 (2005) (a general appropriation bill may contain riders that detail, limit, or restrict the use of funds)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0320
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0320.pdf

Original opinion text

July 14, 2020

Harrison Keller, Ph.D.
Commissioner of Higher Education
Texas Higher Education Coordinating Board
Post Office Box 12788
Austin, Texas 78711

Opinion No. KP-0320

Re: Whether Rider 52 to the Higher Education Coordinating Board's appropriation in the General Appropriations Act allows students to qualify for financial assistance through the Program to Encourage Certification to Teach Bilingual Education, English as a Second Language, or Spanish by taking an exam comparable to the State Board for Educator Certification Bilingual Target Language Proficiency Test or by passing a practice exam (RQ-0329-KP)

Dear Commissioner Keller:

During the Eighty-Sixth Legislative Session, the Legislature's General Appropriations Act included funding for a program to encourage certification to teach bilingual education, English as a second language, or Spanish.[1] The Act appropriated funds to the Higher Education Coordinating Board ("the Board") to allocate to certain institutions of higher education funds "to be used for grants to provide financial incentives in the form of tuition assistance, to encourage students who enroll in an educator preparation program at the university to become certified to teach bilingual education, English as a Second Language, or Spanish in school districts with high critical needs." GAA, at III-62.

While this program has existed in some form since 2003, you explain that during the past legislative session, the Legislature revised the qualifications necessary to receive the grants.[2] Rider 52 to the Board's appropriation explains the program and the specific qualifications required:

Qualified students must: 1) have demonstrated financial need, as determined by the completion of a Free Application for Federal Student Aid form and the institution's financial aid office; 2) successfully pass the State Board for Educator Certification Bilingual Target Language Proficiency Test; and 3) Maintain a minimum cumulative 3.0 GPA.

Id. at III-62-3.

You explain that the specific test listed in the second prong of the eligibility requirements has raised questions from institutions of higher education receiving the funding. Request Letter at 1. You note that "students pursuing English as a Second Language or Spanish teaching certifications do not necessarily sit for that exam at all," but instead take different certification exams for their specific subject areas. Id.[3] Thus, you state that "students pursuing English as a Second Language or Spanish certification could not receive funding through the program at all unless they took the Bilingual Target Language Proficiency Test in addition to whatever exam is required for their certification." Id. at 2. You also note that "students typically do not sit for the Bilingual Target Language Proficiency Test until the last semester of their program." Id. at 1. Thus, under a plain reading of Rider 52, "students pursuing bilingual education certification could not receive funding through the program until after their final tuition bill is due." Id. at 2. Based on these concerns you ask whether institutions of higher education may "use passage of comparable exams" for different programs to meet the requirement that qualified students pass the State Board for Educator Certification Bilingual Target Language Proficiency Test, and whether "passage of a practice exam for the Bilingual Target Language Proficiency Test" meets the requirement to pass that test. Id.

Our primary objective in construing a statute is to give effect to the Legislature's intent. Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019). Rules applicable to the construction of statutes also apply to the construction of items of appropriation and riders. Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593, 599-600 (Tex. 1975). We construe a statute's words according to their plain and common meaning unless they are statutorily defined otherwise, a different meaning is apparent from the context, or unless such a construction leads to absurd results. See Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). "We take statutes as we find them, presuming the Legislature included words that it intended to include and omitted words it intended to omit." Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 52 (Tex. 2014). "We do not read words into a statute to make it what we consider to be more reasonable, rather we may do so only to prevent an absurd result." Id.

"In addition to appropriating money and stipulating the amount, manner, and purpose of the various items of expenditure, a general appropriation bill may contain any provisions or riders which detail, limit, or restrict the use of the funds . . . ." Tex. Att'y Gen. Op. No. GA-0378 (2005) at 3. The language of Rider 52 allows specified institutions of higher education to "make awards to qualified students admitted to the Teacher Education Program in Bilingual Education or other comparable programs for teacher education in English as a second language or Spanish." GAA, at III-62 (emphasis added). It then defines "qualified students" as those who "[s]uccessfully pass the State Board for Educator Certification Bilingual Target Language Proficiency Test," among other requirements. Id. at III-62-3. Thus, under the plain meaning of Rider 52, to receive funds under this program, students must pass the specific test listed. No language in Rider 52 suggests that passing a practice test satisfies the qualification requirement, and no court should read words into a statute to make it what the court considers to be more reasonable. Union Carbide Corp., 438 S.W.3d at 52. However, if an as-written statute leads to patently nonsensical results, the "absurdity doctrine" allows a court to consider alternatives to a statute's plain meaning. Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 630 (Tex. 2013). But as the Texas Supreme Court explained, "the bar for reworking the words our Legislature passed into law is high, and should be. The absurdity safety valve is reserved for truly exceptional cases, and mere oddity does not equal absurdity." Id.

Here, the Legislature's stated purpose of the underlying program is "to encourage students who enroll in an educator preparation program at the university to become certified to teach bilingual education, English as a Second Language, or Spanish in school districts with high critical needs." GAA, at III-62 (emphasis added). And yet, to qualify for the grants, the Legislature requires that the students pass the certification exam. Id. at III-62-3. Thus, at most the grant will be available to students who pass the exam. While this may limit the number of students eligible to receive the grants, "[e]nforcing the law as written is a court's safest refuge in matters of statutory construction," and a court would likely do so in construing Rider 52. Entergy Gulf States, Inc., v. Summers, 282 S.W.3d 433, 443 (Tex. 2009). Utilizing this principle of statutory construction, a court is unlikely to conclude that institutions of higher education may use passage of other exams for comparable programs to meet the grant award requirement in Rider 52 that qualified students pass the State Board for Educator Certification Bilingual Target Language Proficiency Test. A court is also unlikely to conclude that passage of a practice exam for the Bilingual Target Language Proficiency Test meets the requirement in Rider 52 to pass that test.

[1] General Appropriations Act, 86th Leg., R.S., H.B. 1, art. III, § 1, at III-62-3 (2020) (to be codified at chapter 1353, Texas General Laws, 86th Legislature) (the "GAA").

[2] See Letter from Harrison Keller, Ph.D., Comm'r of Higher Educ., Tex. Higher Educ. Coordinating Bd., to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Jan. 17, 2020) ("Request Letter").

[3] See 2019-2020 Required Test Chart for Teacher Certification (Texas Education Agency).

S U M M A R Y

The Eighty-Sixth Legislature appropriated funds to the Higher Education Coordinating Board for grants to encourage students to become certified to teach bilingual education, English as a Second Language, or Spanish in school districts with high critical needs. Pursuant to Rider 52 of the Board's appropriation, in order to qualify for the grants, students must "successfully pass the State Board for Educator Certification Bilingual Target Language Proficiency Test," among other requirements. Given the plain language of the General Appropriations Act, a court is unlikely to conclude that institutions of higher education may use passage of other exams for comparable programs to meet this qualification requirement or that passage of a practice exam satisfies the testing requirement.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee