(a) Complaints. An official complaint alleging a violation
of the Texas Education Code, §31.151, must be filed with the
commissioner of education. The commissioner may hold a formal or informal
hearing in the case of an apparent violation of statute. Upon determining
that a violation has occurred, the commissioner shall report his or
her findings to the State Board of Education (SBOE).
(b) Administrative penalties. Under the Texas Education
Code, §31.151(b), the SBOE may impose a reasonable administrative
penalty against a publisher or manufacturer found in violation of
a provision of §31.151(a). An administrative penalty shall be
assessed only after the SBOE has granted the publisher or manufacturer
a hearing in accordance with the Texas Education Code, §31.151,
and the Administrative Procedure Act.
(c) Penalties for failure to correct factual errors.
  (1) A factual error shall be defined as a verified
error of fact or any error that would interfere with student learning.
The context, including the intended student audience and grade level
appropriateness, shall be considered.
  (2) A factual error repeated in a single item or contained
in both the student and teacher components of instructional material
shall be counted once for the purpose of determining penalties. An
identical error in materials with multiple components and formats
shall be counted as one error.
  (3) A penalty may be assessed for failure to correct
a factual error identified in the list of corrections submitted by
a publisher under §66.54(i) of this title (relating to Samples)
or for failure to correct a factual error identified in the report
of the commissioner of education under §66.63(d) of this title
(relating to Report of the Commissioner of Education) and required
by the SBOE. The publisher shall identify errata in an appropriate
manner.
(d) Penalties. A penalty of $5,000 shall be assessed
for each failure to correct a factual error after the deadline established
in the proclamation by which publishers must have submitted corrected
samples of adopted instructional materials.
(e) Penalties for failure to deliver adopted instructional
materials, including teacher components, in a timely manner or in
the quantities the school district or open-enrollment charter school
is eligible to receive as specified in the publisher's bid. The SBOE
may assess penalties as allowed by law against publishers who fail
to deliver adopted instructional materials, including teacher components,
in accordance with provisions in the contracts.
(f) Penalties for selling instructional materials with
factual errors. The SBOE may assess administrative penalties in accordance
with the Texas Education Code, §31.151, against a seller of instructional
materials who sells instructional materials with factual errors.
(g) Penalties for failure to maintain websites in state-adopted
products. The SBOE may assess administrative penalties against a publisher
who fails to maintain a website or provide a suitable alternative
for conveying the information in the website, or who otherwise fails
to meet the requirements of this subsection. Where applicable, the
publisher shall monitor, update, and maintain any in-house and third
party electronic, web-based, or online products furnished as part
of the instructional materials specified in State of Texas Official
Publisher Contract for the period determined by the SBOE. If, at any
time during the contract period, the commissioner of education determines
in a hearing that electronic, web-based, or online instructional materials
furnished and supplied under the terms of a contract have faulty manufacturing
characteristics or display dated or inferior information that is not
in alignment with the Texas essential knowledge and skills that were
in place at the time of the materials' original adoption, the instructional
materials or information shall be replaced with complying materials
or information by the publishers without cost to the state. The publisher
further agrees that electronic, web-based or online instructional
materials listed in a State of Texas Official Publishers Contract
will not be altered in any way that would remove content from the
curriculum, or that would change content in the curriculum without
prior SBOE approval. The publisher will not allow advertising of any
type to be placed in or associated with the materials. The publisher
will not add any Internet links to the materials without the approval
of the commissioner of education, will not redirect any user accessing
the web-based or online instructional materials to other Internet
or electronic sites, and will not collect any information about the
user or computer accessing the materials that would allow determination
of personal information, including email addresses. This section applies
only to a website that is a component used to address Texas essential
knowledge and skills as part of a state-adopted product.
(h) State Board of Education discretion regarding penalties.
The SBOE may, if circumstances warrant, waive or vary penalties contained
in this section for first or subsequent violations based on the seriousness
of the violation, any history of a previous violation or violations,
the amount necessary to deter a future violation, any effort to correct
the violation, and any other matter justice requires.
(i) Payment of fines. Each affected publisher shall
issue credit to the Texas Education Agency (TEA) in the amount of
any penalty imposed under the provisions of this section. When circumstances
warrant it, TEA is authorized to require payment of penalties in cash
within ten days. Each affected publisher who pays a fine for failure
to deliver adopted instructional materials in a timely manner will
not be subject to the liquidated damages provision in the publisher's
contract for the same failure to deliver adopted instructional materials
in a timely manner.


Source Note: The provisions of this §66.10 adopted to be effective September 1, 1996, 21 TexReg 7236; amended to be effective August 15, 1999, 24 TexReg 5699; amended to be effective March 4, 2001, 26 TexReg 1706; amended to be effective February 7, 2002, 27 TexReg 746; amended to be effective October 12, 2006, 31 TexReg 8352; amended to be effective December 25, 2007, 32 TexReg 9611; amended to be effective February 22, 2010, 35 TexReg 1454; amended to be effective July 8, 2012, 37 TexReg 4911