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