Current through Reg. 49, No. 38; September 20, 2024
(a) Public property. An interest in real
estate or personal property acquired, improved, or maintained using state funds
that were received by the charter holder on or after September 1, 2001, is
public property for all purposes under state law. The date on which the
property was acquired, improved, or maintained is not determinative. An
interest in real estate acquired, improved, or maintained using state funds
that were received by the charter holder before September 1, 2001, is public
property only to the extent specified by §
100.1065
of this title (relating to Property Acquired with State Funds Received Before
September 1, 2001--Special Rules). Where the property is acquired with federal
funds, federal law may preempt this section in whole or part.
(b) Fiduciary duty respecting public
property. Public property is held by the charter holder in trust for the
benefit of the students of the charter school. With respect to the public
property they manage, the members of the governing body of a charter holder,
and the members of the governing body and officers of a charter school, are
trustees under Texas law; and the students enrolled in the school are
beneficiaries of a trust. Each trustee shall be held to the standard of care
and fiduciary duties that a trustee owes the beneficiary of a trust under Texas
law.
(c) Use of public property.
Public property may be used only for a purpose for which a school district may
use school district property and only to implement a program that is described
in the open-enrollment charter and is consistent with Texas Education Code
(TEC), §12.107.
(1) Any use or
application of public property for a purpose other than implementing a program
that is described in the open-enrollment charter and is consistent with TEC,
§12.107, constitutes misuse and misapplication of such property, and is
subject to Texas law governing misuse or misapplication of public
property.
(2) The governing body of
a charter holder shall adopt and enforce local policies governing the use and
application of public property by its employees, agents, contractors, and
management companies. The policies shall prohibit the use or application of
public property for any purpose but a program described in the open-enrollment
charter, except that the policies may authorize charter holder employees to use
local telephone service, cellular phones, electronic mail, Internet
connections, and similar public property for incidental personal use, if the
policies:
(A) do not result in any direct
cost paid with state funds, or the charter holder is reimbursed for any direct
cost incurred;
(B) do not impede
charter school functions;
(C) do
not authorize incidental personal use of public property for private commercial
purposes; and
(D) authorize only
incidental amounts of employee time--time periods comparable to reasonable
coffee breaks during the day--for personal matters.
(3) The governing body of a charter holder
shall by separate vote approve any joint use of real property for charter and
non-charter activities. In the minutes of the vote approving the joint use, the
governing body of a charter holder shall set forth the methodology used to
allocate shared costs and the percentage allocation basis between charter and
non-charter activities.
(4) The
members of the governing body of a charter holder, and the members of the
governing body and officers of a charter school, shall authorize all uses and
applications of the public property under their control, and shall not
authorize any use or application that is inconsistent with the policy required
by paragraph (2) of this subsection.
(5) If pursuant to TEC, §12.111(9), the
daily management of public property is delegated to any person, including a
management company, the members of the governing body of the charter holder,
and the members of the governing body and officers of the charter school, shall
remain fully responsible to authorize all uses and applications of public
property and enforce the policy required by paragraph (2) of this
subsection.
(6) Nothing in this
section prevents a charter holder from authorizing the use of its public
property by a contractor for the purpose of providing goods or services under
the contract, if such use is an express contract term, factored into the price
of the contract, and the contract is duly authorized by the governing body of
the charter holder under this section.
(d) Ownership of public property. Public
property is owned by the charter holder, regardless of the funds used to
acquire it. Subject to the requirements of §
100.1067
of this title (relating to Possession and Control of the Public Property of a
Former Charter Holder) and this section, a charter holder retains all title to
the property, exercises complete control over the property, and is entitled to
all use and benefit from the property.
(e) Public property mixed with private
property. Property acquired, improved, or maintained partly using state funds
and partly using other funds is mixed public and private property, and is
subject to all requirements of this section.
(f) Accounting for public property. Each
charter holder shall include in its annual audit report an exhibit identifying
the fixed assets of the charter holder and the ownership interest of all
parties for all real estate and capitalized personal property presently held by
the charter holder or acquired, improved, or maintained by the charter holder
during the term of the open-enrollment charter.
(1) Pursuant to the requirements in §
109.41
of this title (relating to Financial Accountability System Resource Guide), the
annual audit report must separately disclose the cost basis and accumulated
depreciation of all public property as determined by this division, and all
other property held, acquired, improved, or maintained by the charter
holder.
(2) Alternatively, the
charter holder may omit the exhibit required by paragraph (1) of this
subsection and substitute a statement, in accordance with the requirements in
§
109.41
of this title, that all property acquired, improved, or maintained during the
term of the open-enrollment charter, and all property presently held by the
charter holder, is public property under this division.
(3) All property held, acquired, improved, or
maintained by the charter holder is subject to this subsection regardless
whether it is public or private property.
