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