87R3796 TSS-F
By: Bernal, Talarico H.B. No. 2278
A BILL TO BE ENTITLED
AN ACT
relating to the expulsion of public school students for engaging in
conduct that constitutes serious offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 37.007, Education Code, is amended to
read as follows:
Sec. 37.007. EXPULSION FOR SERIOUS OFFENSES. (a) Subject
to the considerations required under Subsection (c) and except
[Except] as provided by Subsection (h) [(k)], a student shall be
expelled from a school if the student:
(1) while[,] on school property or while attending a
school-sponsored or school-related activity on or off of school
property:
(A) [(1)] engages in conduct that contains the
elements of the offense of unlawfully carrying weapons under
Section 46.02, Penal Code, or elements of an offense relating to
prohibited weapons under Section 46.05, Penal Code;
(B) [(2)] engages in conduct that contains the
elements of the offense of:
(i) [(A)] aggravated assault under Section
22.02, Penal Code, sexual assault under Section 22.011, Penal Code,
or aggravated sexual assault under Section 22.021, Penal Code;
(ii) [(B)] arson under Section 28.02, Penal
Code;
(iii) [(C)] murder under Section 19.02,
Penal Code, capital murder under Section 19.03, Penal Code, or
criminal attempt, under Section 15.01, Penal Code, to commit murder
or capital murder;
(iv) [(D)] indecency with a child under
Section 21.11, Penal Code;
(v) [(E)] aggravated kidnapping under
Section 20.04, Penal Code;
(vi) [(F)] aggravated robbery under
Section 29.03, Penal Code;
(vii) [(G)] manslaughter under Section
19.04, Penal Code;
(viii) [(H)] criminally negligent homicide
under Section 19.05, Penal Code; or
(ix) [(I)] continuous sexual abuse of young
child or children under Section 21.02, Penal Code; or
(C) [(3)] engages in conduct specified by
Section 37.006(a)(2)(C) or (D), if the conduct is punishable as a
felony; or
(2) engages in conduct that contains the elements of
any offense listed in Subdivision (1) against any employee or
volunteer in retaliation for or as a result of the person's
employment or association with a school district, without regard to
whether the conduct occurs on or off of school property or while
attending a school-sponsored or school-related activity on or off
of school property.
(b) Subject to the considerations required under Subsection
(c), a [A] student may be expelled if the student:
(1) engages in conduct involving a public school that
contains the elements of the offense of false alarm or report under
Section 42.06, Penal Code, or terroristic threat under Section
22.07, Penal Code;
(2) while on or within 300 feet of school property, as
measured from any point on the school's real property boundary
line, or while attending a school-sponsored or school-related
activity on or off of school property:
(A) sells, gives, or delivers to another person
or possesses, uses, or is under the influence of any amount of:
(i) marihuana or a controlled substance, as
defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.
Section 801 et seq.;
(ii) a dangerous drug, as defined by
Chapter 483, Health and Safety Code; or
(iii) an alcoholic beverage, as defined by
Section 1.04, Alcoholic Beverage Code;
(B) engages in conduct that contains the elements
of an offense relating to an abusable volatile chemical under
Section [Sections] 485.031, 485.032, 485.033, or [through]
485.034, Health and Safety Code;
(C) engages in conduct that contains the elements
of an offense under Section 22.01(a)(1), Penal Code, against a
school district employee or a volunteer as defined by Section
22.053 of this code; or
(D) engages in conduct that contains the elements
of the offense of deadly conduct under Section 22.05, Penal Code;
(3) subject to Subsection (a)(2) [(d)], while within
300 feet of school property, as measured from any point on the
school's real property boundary line:
(A) engages in conduct specified by Subsection
(a)(1); or
(B) possesses a firearm, as defined by 18 U.S.C.
Section 921;
(4) engages in conduct that contains the elements of
any offense listed in Subsection (a)(1)(B)(i) [(a)(2)(A)] or (iii)
[(C)] or the offense of aggravated robbery under Section 29.03,
Penal Code, against another student, without regard to whether the
conduct occurs on or off of school property or while attending a
school-sponsored or school-related activity on or off of school
property; [or]
(5) engages in conduct that contains the elements of
the offense of breach of computer security under Section 33.02,
Penal Code, if:
(A) the conduct involves accessing a computer,
computer network, or computer system owned by or operated on behalf
of a school district; and
(B) the student knowingly:
(i) alters, damages, or deletes school
district property or information; or
(ii) commits a breach of any other
computer, computer network, or computer system;
(6) [. (c) A student may be expelled if the student,]
while placed in a disciplinary alternative education program,
engages in any of the following documented serious misbehavior
while on the program campus despite documented behavioral
interventions[. For purposes of this subsection, "serious
misbehavior" means]:
(A) [(1)] deliberate violent behavior that poses
a direct threat to the health or safety of others;
(B) [(2)] extortion, meaning the gaining of
money or other property by force or threat;
(C) [(3)] conduct that constitutes coercion, as
defined by Section 1.07, Penal Code; or
(D) [(4)] conduct that constitutes the offense
of:
(i) [(A)] public lewdness under Section
21.07, Penal Code;
(ii) [(B)] indecent exposure under Section
21.08, Penal Code;
(iii) [(C)] criminal mischief under
Section 28.03, Penal Code;
(iv) [(D)] personal hazing under Section
37.152; or
(v) [(E)] harassment under Section
42.07(a)(1), Penal Code, of a student or district employee;
(7) [. (d) A student shall be expelled if the student
engages in conduct that contains the elements of any offense listed
in Subsection (a), and may be expelled if the student] engages in
conduct that contains the elements of any offense listed in
Subdivision (2)(C) [Subsection (b)(2)(C)], against any employee or
volunteer in retaliation for or as a result of the person's
employment or association with a school district, without regard to
whether the conduct occurs on or off of school property or while
attending a school-sponsored or school-related activity on or off
of school property;
(8) engages in conduct that contains the elements of
the offense of criminal mischief under Section 28.03, Penal Code,
if the conduct is punishable as a felony under that section; or
(9) engages in conduct described by Subsection (a)(1)
while:
(A) on school property of another district in
this state; or
(B) attending a school-sponsored or
school-related activity of a school in another district in this
state.
(c) A school district shall consider each factor listed
under Section 37.001(a)(4) before making a decision to expel a
student under Subsection (a) or (b).
(d) [(e)] In accordance with 20 U.S.C. Section 7151, a local
educational agency, including a school district, home-rule school
district, or open-enrollment charter school, shall expel a student
who brings a firearm, as defined by 18 U.S.C. Section 921, to
school. The student must be expelled from the student's regular
campus for a period of at least one year, except that:
(1) the superintendent or other chief administrative
officer of the school district or of the other local educational
agency, as defined by 20 U.S.C. Section 7801, may modify the length
of the expulsion in the case of an individual student;
(2) the district or other local educational agency
shall provide educational services to an expelled student in a
disciplinary alternative education program as provided by Section
37.008 if the student is younger than 10 years of age on the date of
expulsion; and
(3) the district or other local educational agency may
provide educational services to an expelled student who is 10 years
of age or older in a disciplinary alternative education program as
provided in Section 37.008.
(e) [(f)] A student who engages in conduct described by
Subsection (b)(8) [that contains the elements of the offense of
criminal mischief under Section 28.03, Penal Code, may be expelled
at the district's discretion if the conduct is punishable as a
felony under that section. The student] shall be referred to the
authorized officer of the juvenile court regardless of whether the
student is expelled under Subsection (b).
(f) [(g)] In addition to any notice required under Article
15.27, Code of Criminal Procedure, a school district shall inform
each educator who has responsibility for, or is under the direction
and supervision of an educator who has responsibility for, the
instruction of a student who has engaged in any violation listed in
this section of the student's misconduct. Each educator shall keep
the information received under this subsection confidential from
any person not entitled to the information under this subsection,
except that the educator may share the information with the
student's parent or guardian as provided for by state or federal
law. The State Board for Educator Certification may revoke or
suspend the certification of an educator who intentionally violates
this subsection.
(g) [(h)] Subject to Subsection (d) [(e)], notwithstanding
any other provision of this section, a student who is younger than
10 years of age may not be expelled for engaging in conduct
described by this section.
(h) [(i) A student who engages in conduct described by
Subsection (a) may be expelled from school by the district in which
the student attends school if the student engages in that conduct:
[(1) on school property of another district in this
state; or
[(2) while attending a school-sponsored or
school-related activity of a school in another district in this
state.
[(k)] A student may not be expelled solely on the basis of
the student's use, exhibition, or possession of a firearm that
occurs:
(1) at an approved target range facility that is not
located on a school campus; and
(2) while participating in or preparing for a
school-sponsored shooting sports competition or a shooting sports
educational activity that is sponsored or supported by the Parks
and Wildlife Department or a shooting sports sanctioning
organization working with the department.
(i) [(l)] Subsection (h) [(k)] does not authorize a student
to bring a firearm on school property to participate in or prepare
for a school-sponsored shooting sports competition or a shooting
sports educational activity described by that subsection.
SECTION 2. Section 37.001(e), Education Code, is amended to
read as follows:
(e) Except as provided by Section 37.007(d) [37.007(e)],
this subchapter does not require the student code of conduct to
specify a minimum term of a removal under Section 37.006 or an
expulsion under Section 37.007.
SECTION 3. Section 37.002(d), Education Code, is amended to
read as follows:
(d) A teacher shall remove from class and send to the
principal for placement in a disciplinary alternative education
program or for expulsion, as appropriate, a student who engages in
conduct described under Section 37.006 or 37.007. The student may
not be returned to that teacher's class without the teacher's
consent unless the committee established under Section 37.003
determines that such placement is the best or only alternative
available. If the teacher removed the student from class because
the student has engaged in the elements of any offense listed in
Section 37.006(a)(2)(B) or Section 37.007(a)(1)(B)(i)
[37.007(a)(2)(A)] or (b)(2)(C) against the teacher, the student may
not be returned to the teacher's class without the teacher's
consent. The teacher may not be coerced to consent.
SECTION 4. Section 37.0021(f), Education Code, is amended
to read as follows:
(f) For purposes of this subsection, "weapon" includes any
weapon described under Section 37.007(a)(1)(A) [37.007(a)(1)].
This section does not prevent a student's locked, unattended
confinement in an emergency situation while awaiting the arrival of
law enforcement personnel if:
(1) the student possesses a weapon; and
(2) the confinement is necessary to prevent the
student from causing bodily harm to the student or another person.
SECTION 5. Sections 37.006(b), (f), and (l), Education
Code, are amended to read as follows:
(b) Except as provided by Sections 37.007(a)(2) and (b)(7)
[Section 37.007(d)], a student shall be removed from class and
placed in a disciplinary alternative education program under
Section 37.008 if the student engages in conduct on or off of school
property that contains the elements of the offense of retaliation
under Section 36.06, Penal Code, against any school employee.
(f) Subject to Section 37.007(d) [37.007(e)], a student who
is younger than 10 years of age shall be removed from class and
placed in a disciplinary alternative education program under
Section 37.008 if the student engages in conduct described by
Section 37.007. An elementary school student may not be placed in a
disciplinary alternative education program with any other student
who is not an elementary school student.
(l) Notwithstanding any other provision of this code, other
than Section 37.007(d)(2) [37.007(e)(2)], a student who is younger
than six years of age may not be removed from class and placed in a
disciplinary alternative education program.
SECTION 6. Section 37.010(b), Education Code, is amended to
read as follows:
(b) If a student is expelled under Section 37.007(b)(6)
[37.007(c)], the board or its designee shall refer the student to
the authorized officer of the juvenile court for appropriate
proceedings under Title 3, Family Code.
SECTION 7. Sections 37.011(b), (h), (k), (l), and (p),
Education Code, are amended to read as follows:
(b) If a student admitted into the public schools of a
school district under Section 25.001(b) is expelled from school
[for conduct for which expulsion is required] under Section
37.007(a) or (d) [37.007(a), (d), or (e)], or for conduct that
contains the elements of the offense of terroristic threat as
described by Section 22.07(c-1), (d), or (e), Penal Code, the
juvenile court, the juvenile board, or the juvenile board's
designee, as appropriate, shall:
(1) if the student is placed on probation under
Section 54.04, Family Code, order the student to attend the
juvenile justice alternative education program in the county in
which the student resides from the date of disposition as a
condition of probation, unless the child is placed in a
post-adjudication treatment facility;
(2) if the student is placed on deferred prosecution
under Section 53.03, Family Code, by the court, prosecutor, or
probation department, require the student to immediately attend the
juvenile justice alternative education program in the county in
which the student resides for a period not to exceed six months as a
condition of the deferred prosecution;
(3) in determining the conditions of the deferred
prosecution or court-ordered probation, consider the length of the
school district's expulsion order for the student; and
(4) provide timely educational services to the student
in the juvenile justice alternative education program in the county
in which the student resides, regardless of the student's age or
whether the juvenile court has jurisdiction over the student.
(h) Academically, the mission of juvenile justice
alternative education programs shall be to enable students to
perform at grade level. For purposes of accountability under
Chapters 39 and 39A, a student enrolled in a juvenile justice
alternative education program is reported as if the student were
enrolled at the student's assigned campus in the student's
regularly assigned education program, including a special
education program. Annually the Texas Juvenile Justice Department,
with the agreement of the commissioner, shall develop and implement
a system of accountability consistent with Chapters 39 and 39A,
where appropriate, to assure that students make progress toward
grade level while attending a juvenile justice alternative
education program. The department shall adopt rules for the
distribution of funds appropriated under this section to juvenile
boards in counties required to establish juvenile justice
alternative education programs. Except as determined by the
commissioner, a student served by a juvenile justice alternative
education program on the basis of an expulsion [required] under
Section 37.007(a) or (d) [37.007(a), (d), or (e)] is not eligible
for Foundation School Program funding under Chapter 31 or 48 if the
juvenile justice alternative education program receives funding
from the department under this subchapter.
(k) Each school district in a county with a population
greater than 125,000 and the county juvenile board shall annually
enter into a joint memorandum of understanding that:
(1) outlines the responsibilities of the juvenile
board concerning the establishment and operation of a juvenile
justice alternative education program under this section;
(2) defines the amount and conditions on payments from
the school district to the juvenile board for students of the school
district served in the juvenile justice alternative education
program whose placement was not made on the basis of an expulsion
[required] under Section 37.007(a) or (d) [37.007(a), (d), or (e)];
(3) establishes that a student may be placed in the
juvenile justice alternative education program if the student
engages in any serious misbehavior described[, as defined] by
Section 37.007(b)(6) [37.007(c)];
(4) identifies and requires a timely placement and
specifies a term of placement for expelled students for whom the
school district has received a notice under Section 52.041(d),
Family Code;
(5) establishes services for the transitioning of
expelled students to the school district prior to the completion of
the student's placement in the juvenile justice alternative
education program;
(6) establishes a plan that provides transportation
services for students placed in the juvenile justice alternative
education program;
(7) establishes the circumstances and conditions
under which a juvenile may be allowed to remain in the juvenile
justice alternative education program setting once the juvenile is
no longer under juvenile court jurisdiction; and
(8) establishes a plan to address special education
services required by law.
(l) The school district shall be responsible for providing
an immediate educational program to students who engage in behavior
resulting in expulsion under Section 37.007(b) [and (f)] but who
are not eligible for admission into the juvenile justice
alternative education program in accordance with the memorandum of
understanding required under this section. The school district may
provide the program or the school district may contract with a
county juvenile board, a private provider, or one or more other
school districts to provide the program. The memorandum of
understanding shall address the circumstances under which such
students who continue to engage in any serious misbehavior
described[, as defined] by Section 37.007(b)(6) [37.007(c),] shall
be admitted into the juvenile justice alternative education
program.
(p) If a district elects to contract with the juvenile board
for placement in the juvenile justice alternative education program
of students expelled under Section 37.007(b)[, (c), and (f)] and
the juvenile board and district are unable to reach an agreement in
the memorandum of understanding, either party may request that the
issues of dispute be referred to a binding arbitration process that
uses a qualified alternative dispute resolution arbitrator in which
each party will pay its pro rata share of the arbitration costs.
Each party must submit its final proposal to the arbitrator. If the
parties cannot agree on an arbitrator, the juvenile board shall
select an arbitrator, the school districts shall select an
arbitrator, and those two arbitrators shall select an arbitrator
who will decide the issues in dispute. An arbitration decision
issued under this subsection is enforceable in a court in the county
in which the juvenile justice alternative education program is
located. Any decision by an arbitrator concerning the amount of the
funding for a student who is expelled and attending a juvenile
justice alternative education program must provide an amount
sufficient based on operation of the juvenile justice alternative
education program in accordance with this chapter. In determining
the amount to be paid by a school district for an expelled student
enrolled in a juvenile justice alternative education program, the
arbitrator shall consider the relevant factors, including evidence
of:
(1) the actual average total per student expenditure
in the district's alternative education setting;
(2) the expected per student cost in the juvenile
justice alternative education program as described and agreed on in
the memorandum of understanding and in compliance with this
chapter; and
(3) the costs necessary to achieve the accountability
goals under this chapter.
SECTION 8. Section 37.012(a), Education Code, is amended to
read as follows:
(a) Subject to Section 37.011(n), the school district in
which a student is enrolled on the date the student is expelled [for
conduct for which expulsion is permitted but not required] under
Section 37.007(b) [37.007] shall, if the student is served by the
juvenile justice alternative education program, provide funding to
the juvenile board for the portion of the school year for which the
juvenile justice alternative education program provides
educational services in an amount determined by the memorandum of
understanding under Section 37.011(k)(2).
SECTION 9. Section 37.015(a), Education Code, is amended to
read as follows:
(a) The principal of a public or private primary or
secondary school, or a person designated by the principal under
Subsection (d), shall notify any school district police department
and the police department of the municipality in which the school is
located or, if the school is not in a municipality, the sheriff of
the county in which the school is located if the principal has
reasonable grounds to believe that any of the following activities
occur in school, on school property, or at a school-sponsored or
school-related activity on or off school property, whether or not
the activity is investigated by school security officers:
(1) conduct that may constitute an offense listed
under Section 508.149, Government Code;
(2) deadly conduct under Section 22.05, Penal Code;
(3) a terroristic threat under Section 22.07, Penal
Code;
(4) the use, sale, or possession of a controlled
substance, drug paraphernalia, or marihuana under Chapter 481,
Health and Safety Code;
(5) the possession of any of the weapons or devices
listed under Sections 46.01(1)-(14) or Section 46.01(16), Penal
Code;
(6) conduct that may constitute a criminal offense
under Section 71.02, Penal Code; or
(7) conduct that may constitute a criminal offense for
which a student may be expelled under Section 37.007(a) or (d)
[37.007(a), (d), or (e)].
SECTION 10. Section 37.020(c), Education Code, is amended
to read as follows:
(c) For each expulsion under Section 37.007, the district
shall report:
(1) information identifying the student, including
the student's race, sex, and date of birth, that will enable the
agency to compare placement data with information collected through
other reports;
(2) information indicating whether the expulsion was
based on:
(A) conduct described by [for which expulsion is
required under] Section 37.007(a) [37.007, including information
specifically indicating whether a student was expelled on the basis
of Section 37.007(e)]; [or]
(B) conduct described by [for which expulsion is
permitted under] Section 37.007(b) [37.007]; or
(C) conduct described by Section 37.007(d);
(3) the number of full or partial days the student was
expelled;
(4) information indicating whether:
(A) the student was placed in a juvenile justice
alternative education program under Section 37.011;
(B) the student was placed in a disciplinary
alternative education program; or
(C) the student was not placed in a juvenile
justice or other disciplinary alternative education program; and
(5) the number of expulsions that were inconsistent
with the guidelines included in the student code of conduct under
Section 37.001(a)(5).
SECTION 11. Section 37.022(c), Education Code, is amended
to read as follows:
(c) Subject to Section 37.007(d) [37.007(e)], the district
or school in which the student enrolls may continue the
disciplinary action under the terms of the order or may allow the
student to attend regular classes without completing the period of
disciplinary action.
SECTION 12. Section 37.310, Education Code, is amended to
read as follows:
Sec. 37.310. FUNDING FOR REGISTERED SEX OFFENDER PLACED IN
JUVENILE JUSTICE ALTERNATIVE EDUCATION PROGRAM. A juvenile justice
alternative education program is entitled to funding for a student
who is placed in the program under this subchapter in the same
manner as a juvenile justice alternative education program is
entitled to funding under Section 37.012 for a student who is
expelled and placed in a juvenile justice alternative education
program for conduct described by [for which expulsion is permitted
but not required under] Section 37.007(b) [37.007].
SECTION 13. Section 51.03(b), Family Code, is amended to
read as follows:
(b) Conduct indicating a need for supervision is:
(1) subject to Subsection (f), conduct, other than a
traffic offense, that violates:
(A) the penal laws of this state of the grade of
misdemeanor that are punishable by fine only; or
(B) the penal ordinances of any political
subdivision of this state;
(2) the voluntary absence of a child from the child's
home without the consent of the child's parent or guardian for a
substantial length of time or without intent to return;
(3) conduct prohibited by city ordinance or by state
law involving the inhalation of the fumes or vapors of paint and
other protective coatings or glue and other adhesives and the
volatile chemicals itemized in Section 485.001, Health and Safety
Code;
(4) an act that violates a school district's
previously communicated written standards of student conduct for
which the child has been expelled under Section 37.007(b)(6)
[37.007(c)], Education Code;
(5) notwithstanding Subsection (a)(1), conduct
described by Section 43.02(a) or (b), Penal Code; or
(6) notwithstanding Subsection (a)(1), conduct that
violates Section 43.261, Penal Code.
SECTION 14. This Act applies beginning with the 2021-2022
school year.
SECTION 15. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2021.