Under Senate Bill (SB) 507, which was codified as § 29.022 of the Texas Education Code, upon the request of a parent, trustee, or staff member, a district must install one or more video cameras in each self-contained classroom or other special education setting in which a majority of the students in regular attendance are: (1) provided special education and related services; and (2) assigned to a self-contained classroom or other special education setting for at least 50 percent of the instructional day.
Subsection 29.022(k) further provides: “The commissioner may adopt rules to implement and administer this section, including rules regarding the special education settings to which this section applies.” Tex. Educ. Code § 29.022(k). Therefore, earlier this year, in an attempt to clarify districts’ obligations under Tex. Educ. Code § 29.022, the Commissioner released Rules Concerning Video Surveillance of Certain Special Education Settings under Title 19, § 103.1301 of the Texas Administrative Code. In furtherance of adopting this guidance, on March 11, 2016, Commissioner Mike Morath sent a Request for an Expedited Opinion to Attorney General Paxton to clarify four different issues. On September 13, 2016, Attorney General Paxton provided a response on all four issues. Unfortunately, given the fact that the Attorney General did not respond expediently as requested and only responded after the school year began, the Commissioner already released his guidance prior to receiving the Attorney General’s opinion. Therefore, the Commissioner’s guidance and Attorney General’s opinion are in direct conflict with one another. The four questions posed to the Attorney General are summarized below.
First, the Commissioner asked whether a request for video surveillance only requires that surveillance be conducted in one instructional setting, or whether a single request triggers a district-wide requirement that surveillance be set up in every school in the district, in every self-contained or other special education setting meeting the criteria of the statute. Sponsors of the bill enacting § 29.022 have stated that their intent was for a request to install cameras by a teacher or parent to result in installation only in the classroom where the teacher teaches or the student attends class. However, in his opinion, the Attorney General opined that courts must give effect to the Legislature’s apparent intent, as expressed by the statute’s language. Because the statute specifically says that a district or charter school shall provide surveillance “to each school in the district or each charter school campus,” and because the statute specifically says that surveillance shall be maintained “in each self-contained classroom or other special education setting” meeting the criteria of § 29.022(a), the language is unambiguous. Therefore, according to the Attorney General, in interpreting the express language of the statute, a single request indeed triggers a district-wide responsibility to provide surveillance cameras in every qualifying special education setting in every school in the district.
Second, along the same lines as the first question, the Commissioner asked if a requester may limit his or her request for surveillance to just one or more specific instructional setting(s). The Attorney General opined that the statute does not provide an option for the requestor to pick and choose the setting where surveillance will be conducted, so even if the requestor limits his or her request to a single classroom, the request nonetheless still triggers a district-wide responsibility to maintain surveillance in each special education setting meeting the criteria of § 29.022(a), in each school in the district.
Third, in his rules, the Commissioner narrowed the term of “staff member” in the statute to mean a teacher, related service provider, paraprofessional, or educational aide assigned to work in the self-contained classroom or other special education setting, or a principal or assistant principal of that campus. However, the Attorney General opined that to limit the definition of “staff member” would be to exceed the authority of the Commissioner because it imposes “additional burdens, conditions, or restrictions in excess of or inconsistent with” the statue. This means that any staff member of a school district – whether or not he or she actually works in the setting where surveillance is requested – qualifies as a “staff member” who can request surveillance under § 29.022.
Finally, the Commissioner asked whether a district may discontinue surveillance if the circumstances surrounding the request have changed substantially. Examples given were if the student whose parents requested surveillance is no longer assigned to the classroom or has left the campus or district, the teacher who requested surveillance is no longer assigned to the classroom, or the term of office of the trustee who requested surveillance ended. In keeping with the interpretation that a request from any parent, staff member, or board member triggers a district-wide responsibility for surveillance in each school, in each qualifying classroom, the Attorney General held that the statute does not provide that a district can discontinue surveillance just because circumstances may have changed with respect to the initial requestor. The Attorney General further held that the only way districts are permitted to discontinue surveillance is if a setting in which the camera was placed is no longer a self-contained classroom or other special education setting meeting the criteria of § 29.022(a). In other words, surveillance must remain in an instructional setting until it no longer meets the criteria of § 29.022(a), even if the initial requestor completely leaves the school district.
The Attorney General’s opinion of this statute vastly contrasts with the interpretation of the Commissioner and even the Legislators sponsoring the bill. However, it is important to note that the Attorney General’s opinion is strictly advisory and not binding on the courts, though courts are expected to give deference to an Attorney General opinion. Clearly, if the Attorney General’s interpretation is to be followed, the bill will result in unprecedented expense for districts.