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�	H.B.�No.�2488

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�	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�������