By: Hughes, Creighton S.B. No. 1072
A BILL TO BE ENTITLED
AN ACT
relating to local school health advisory councils and instruction
regarding human sexuality, sexual orientation, and gender identity
provided by public schools.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 12.104(b), Education Code, as amended by
Chapters 542 (S.B. 168), 887 (S.B. 1697), 915 (H.B. 3607), 974 (S.B.
2081), and 1046 (S.B. 1365), Acts of the 87th Legislature, Regular
Session, 2021, is reenacted and amended to read as follows:
(b) An open-enrollment charter school is subject to:
(1) a provision of this title establishing a criminal
offense;
(2) the provisions in Chapter 554, Government Code;
and
(3) a prohibition, restriction, or requirement, as
applicable, imposed by this title or a rule adopted under this
title, relating to:
(A) the Public Education Information Management
System (PEIMS) to the extent necessary to monitor compliance with
this subchapter as determined by the commissioner;
(B) criminal history records under Subchapter C,
Chapter 22;
(C) reading instruments and accelerated reading
instruction programs under Section 28.006;
(D) accelerated instruction under Section
28.0211;
(E) high school graduation requirements under
Section 28.025;
(F) special education programs under Subchapter
A, Chapter 29;
(G) bilingual education under Subchapter B,
Chapter 29;
(H) prekindergarten programs under Subchapter E
or E-1, Chapter 29, except class size limits for prekindergarten
classes imposed under Section 25.112, which do not apply;
(I) extracurricular activities under Section
33.081;
(J) discipline management practices or behavior
management techniques under Section 37.0021;
(K) health and safety under Chapter 38;
(L) the provisions of Subchapter A, Chapter 39;
(M) public school accountability and special
investigations under Subchapters A, B, C, D, F, G, and J, Chapter
39, and Chapter 39A;
(N) the requirement under Section 21.006 to
report an educator's misconduct;
(O) intensive programs of instruction under
Section 28.0213;
(P) the right of a school employee to report a
crime, as provided by Section 37.148;
(Q) bullying prevention policies and procedures
under Section 37.0832;
(R) the right of a school under Section 37.0052
to place a student who has engaged in certain bullying behavior in a
disciplinary alternative education program or to expel the student;
(S) the right under Section 37.0151 to report to
local law enforcement certain conduct constituting assault or
harassment;
(T) a parent's right to information regarding the
provision of assistance for learning difficulties to the parent's
child as provided by Sections 26.004(b)(11) and 26.0081(c) and (d);
(U) establishment of residency under Section
25.001;
(V) school safety requirements under Sections
37.108, 37.1081, 37.1082, 37.109, 37.113, 37.114, 37.1141, 37.115,
37.207, and 37.2071;
(W) the early childhood literacy and mathematics
proficiency plans under Section 11.185;
(X) the college, career, and military readiness
plans under Section 11.186; [and]
(Y) [(X)] parental options to retain a student
under Section 28.02124; and
(Z) establishing a local school health advisory
council in which members are appointed by the governing body of the
school and health education instruction complies with Section
28.004.
SECTION 2. Section 12A.004(a), Education Code, is amended
to read as follows:
(a) A local innovation plan may not provide for the
exemption of a district designated as a district of innovation from
the following provisions of this title:
(1) a state or federal requirement applicable to an
open-enrollment charter school operating under Subchapter D,
Chapter 12;
(2) Subchapters A, C, D, and E, Chapter 11, except that
a district may be exempt from Sections 11.1511(b)(5) and (14) and
Section 11.162;
(3) state curriculum and graduation requirements
adopted under Chapter 28; [and]
(4) Section 28.004; and
(5) academic and financial accountability and
sanctions under Chapters 39 and 39A.
SECTION 3. Section 28.004, Education Code, is amended by
amending Subsection (c) and adding Subsections (r), (s), (t), (u),
and (v) to read as follows:
(c) The local school health advisory council's duties
include recommending:
(1) the number of hours of instruction to be provided
in:
(A) health education in kindergarten through
grade eight; and
(B) if the school district requires health
education for high school graduation, health education, including
physical health education and mental health education, in grades 9
through 12;
(2) policies, procedures, strategies, and curriculum
appropriate for specific grade levels designed to prevent physical
health concerns, including obesity, cardiovascular disease, Type 2
diabetes, and mental health concerns, including suicide, through
coordination of:
(A) health education, which must address
physical health concerns and mental health concerns to ensure the
integration of physical health education and mental health
education;
(B) physical education and physical activity;
(C) nutrition services;
(D) parental involvement;
(E) instruction on substance abuse prevention;
(F) school health services, including mental
health services;
(G) a comprehensive school counseling program
under Section 33.005;
(H) a safe and healthy school environment; and
(I) school employee wellness;
(3) appropriate grade levels and methods of
instruction for human sexuality instruction;
(4) strategies for integrating the curriculum
components specified by Subdivision (2) with the following elements
in a coordinated school health program for the district:
(A) school health services, including physical
health services and mental health services, if provided at a campus
by the district or by a third party under a contract with the
district;
(B) a comprehensive school counseling program
under Section 33.005;
(C) a safe and healthy school environment; and
(D) school employee wellness;
(5) if feasible, joint use agreements or strategies
for collaboration between the school district and community
organizations or agencies;
(6) strategies to increase parental awareness
regarding:
(A) risky behaviors and early warning signs of
suicide risks and behavioral health concerns, including mental
health disorders and substance use disorders; and
(B) available community programs and services
that address risky behaviors, suicide risks, and behavioral health
concerns;
(7) appropriate grade levels and curriculum for
instruction regarding opioid addiction and abuse and methods of
administering an opioid antagonist, as defined by Section 483.101,
Health and Safety Code; [and]
(8) appropriate grade levels and curriculum for
instruction regarding child abuse, family violence, dating
violence, and sex trafficking, including likely warning signs that
a child may be at risk for sex trafficking, provided that the local
school health advisory council's recommendations under this
subdivision do not conflict with the essential knowledge and skills
developed by the State Board of Education under this subchapter;
and
(9) the communication policy described by Subsection
(r) for approval by the board of trustees of the school district.
(r) Subject to the restriction imposed by Section 28.0043
and using the procedure described by Subsection (e-1), the board of
trustees shall adopt a written policy regarding communication
outside of a course dedicated to human sexuality instruction
between a school employee and a student enrolled in the district
concerning topics included in the reproductive and sexual health
curriculum. The policy must:
(1) direct school employees to refer students to
discuss topics included in the reproductive and sexual health
curriculum with the student's parent, a school counselor, or, if
applicable, the student's teacher responsible for teaching
materials related to human sexuality instruction;
(2) inform school employees regarding appropriate
boundaries related to communicating with students; and
(3) include provisions designed to prevent improper
communication between school employees and students.
(s) A school district shall make the policy adopted under
Subsection (r) available in the same manner as curriculum materials
under Subsection (j)(1).
(t) A school district may not host an extracurricular
activity related to human sexuality unless the board of trustees
has adopted a written policy, subject to the restriction imposed by
Section 28.0043 and using the procedure described by Subsection
(e-1), specifying the circumstances in which the district may host
an extracurricular activity related to human sexuality.
(u) For purposes of adopting a communication policy under
this section, "communication" includes any verbal or written
communication conducted in person or facilitated through the use of
an electronic device, including communication conducted through a
telephone, including a cellular telephone, a computer, a computer
network, personal data assistance, a pager, e-mail, text message,
instant message, a social media application, or an Internet
website.
(v) If the attorney general or an appropriate district or
county attorney believes that a school district has violated or is
violating the provisions of this section, the attorney general or
district or county attorney may bring a cause of action on behalf of
the state to enjoin the district from violating the provisions of
this section. The action may be brought in a district court in
Travis County or a county in which any part of the violation or
threatened violation occurred. The court may grant any prohibitory
or mandatory relief warranted by the facts, including a temporary
restraining order, temporary injunction, or permanent injunction.
SECTION 4. Subchapter A, Chapter 28, Education Code, is
amended by adding Section 28.0043 to read as follows:
Sec. 28.0043. RESTRICTION ON INSTRUCTION REGARDING SEXUAL
ORIENTATION AND GENDER IDENTITY. (a) A school district,
open-enrollment charter school, or district or charter school
employee may not provide or allow a third party to provide
instruction, guidance, activities, or programming regarding sexual
orientation or gender identity to students enrolled in
prekindergarten through 12th grade.
(b) This section may not be construed to limit:
(1) a student's ability to engage in speech or
expressive conduct protected by the First Amendment to the United
States Constitution or by Section 8, Article I, Texas Constitution,
that does not result in material disruption to school activities;
or
(2) the ability of a person who is authorized by the
district to provide physical or mental health-related services to
provide the services to a student, subject to any required parental
consent.
SECTION 5. Section 12A.004(a), Education Code, as amended
by this Act, applies to a local innovation plan adopted or renewed
before, on, or after the effective date of this Act.
SECTION 6. Section 28.004, Education Code, as amended by
this Act, applies only to a cause of action that accrues on or after
the effective date of this Act.
SECTION 7. To the extent of any conflict, this Act prevails
over another Act of the 88th Legislature, Regular Session, 2023,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 8. 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, 2023.