By: De la Garza H.B. No. 874
73R4095 CAS-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to student discipline and certain offenses against school
1-3 employees; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 21.3011, Education Code, is amended to
1-6 read as follows:
1-7 Sec. 21.3011. Expulsion of Students. (a) In this
1-8 section:<,>
1-9 (1) "expulsion" means suspension of a student from
1-10 school for more than six school days within a semester and<. The
1-11 term> does not include removal of a student to an alternative
1-12 education program; and
1-13 (2) "assaultive offense" is any act considered an
1-14 offense under Chapter 22, Penal Code.
1-15 (b) A student may be removed from class and expelled without
1-16 resort to an alternative education program under Section 21.301 of
1-17 this code if the student, on school property or while attending a
1-18 school-sponsored or school-related activity on or off of school
1-19 property:
1-20 (1) commits an assaultive offense against <assaults> a
1-21 teacher or other individual;
1-22 (2) sells, gives, or delivers to another person or
1-23 possesses or uses or is under the influence of:
1-24 (A) marihuana or a controlled substance, as
2-1 defined by Chapter 481, Health and Safety Code or by 21 U.S.C.
2-2 Section 801 et seq.; or
2-3 (B) a dangerous drug, as defined by Chapter 483,
2-4 Health and Safety Code;
2-5 (3) sells, gives, or delivers to another person an
2-6 alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage
2-7 Code, or commits a serious act or offense while under the influence
2-8 of alcohol; or on more than one occasion possesses, uses, or is
2-9 under the influence of an alcoholic beverage;
2-10 (4) possesses a firearm as defined by Section
2-11 46.01(3), Penal Code, an illegal knife as defined by Section
2-12 46.01(6), Penal Code, a club as defined by Section 46.01(1), Penal
2-13 Code, or a weapon listed as a prohibited weapon under Section
2-14 46.06, Penal Code;
2-15 (5) engages in conduct that contains the elements of
2-16 an offense relating to abusable glue or aerosol paint under
2-17 Sections 485.031 through 485.035, Health and Safety Code, or
2-18 relating to volatile chemicals under Chapter 484, Health and Safety
2-19 Code;
2-20 (6) engages in conduct that contains the elements of
2-21 the offense of arson under Section 28.02, Penal Code; or
2-22 (7) engages in conduct that contains the elements of
2-23 the offense of criminal mischief under Section 28.03, Penal Code,
2-24 if the offense is punishable as a felony under that section.
2-25 (c) A student may be removed from class and expelled without
2-26 resort to an alternative education program under Section 21.301 of
2-27 this code if the student commits an assaultive offense against a
3-1 teacher or other school employee:
3-2 (1) while the teacher or other employee is performing
3-3 job-related duties; or
3-4 (2) in retaliation for or on account of the
3-5 performance of job-related duties by the teacher or other employee.
3-6 (d) <(c)> A student who, after having been placed in an
3-7 alternative education program under Section 21.301 of this code,
3-8 continues to engage in serious or persistent misbehavior that
3-9 violates the district's previously communicated written standards
3-10 of student conduct may be removed from class and expelled.
3-11 (e) <(d)> The board or its designee shall set a term for the
3-12 expulsion.
3-13 (1) The expulsion may not extend beyond the end of the
3-14 school year unless the conduct directly leading to the expulsion
3-15 occurred during the final six-week reporting period of the school
3-16 year, in which case the expulsion may extend beyond the end of the
3-17 current school year but not beyond the end of the first semester of
3-18 the next school year.
3-19 (2) A pupil who is to be expelled for the first time
3-20 for possession, use, or for being under the influence of an
3-21 alcoholic beverage as defined in this section may not be expelled
3-22 beyond the end of the semester, unless the conduct directly leading
3-23 to the expulsion occurred during the final six-week reporting
3-24 period of a semester, which may result in expulsion not to extend
3-25 beyond the end of the next regular semester.
3-26 (f) <(e)> Before the expulsion, the board or its designee
3-27 must provide the student a hearing at which the student is afforded
4-1 appropriate due process as required by the federal constitution.
4-2 If the decision to expel a student is made by the board's designee,
4-3 the decision may be appealed to the board. The decision of the
4-4 board may be appealed by trial de novo to a state district court of
4-5 the county in which the school district's central administrative
4-6 office is located.
4-7 (g) <(f)> A teacher may remove from class and recommend for
4-8 expulsion or may recommend for suspension or removal to an
4-9 alternative education program a student who engages in conduct for
4-10 which a student may be expelled under Subsection (b), <or> (c), or
4-11 (d) of this section. If a teacher recommends a student for
4-12 expulsion, suspension, or removal to an alternative education
4-13 program under this section, the board or its designee shall conduct
4-14 a hearing under Subsection (f) <(e)> of this section. If the
4-15 teacher has recommended the student for expulsion and the board or
4-16 its designee decides not to expel the student and the student is
4-17 again recommended for expulsion by the teacher during the same
4-18 school year, the hearing under Subsection (f) <(e)> of this section
4-19 may be conducted only by the board. If the teacher has recommended
4-20 a student for suspension or removal to an alternative education
4-21 program under this section and, at a later time during the same
4-22 school year, the teacher recommends the student for expulsion, the
4-23 teacher is entitled to decide whether the expulsion hearing is
4-24 conducted by the board or by the board's designee.
4-25 (h) <(g)> The board or its designee shall deliver a copy of
4-26 the order expelling the student to the student and the student's
4-27 parent or guardian. The board or its designee shall also deliver a
5-1 copy of the order to the authorized officer of the juvenile court
5-2 in the county in which the student resides. The officer shall
5-3 determine whether:
5-4 (1) a petition should be filed alleging that the
5-5 student is in need of supervision or engaged in delinquent conduct;
5-6 or
5-7 (2) the student should be referred to an appropriate
5-8 state agency.
5-9 (i) <(h)> A school district may provide home-based
5-10 instruction to students expelled under this section.
5-11 (j) <(i)> Each school district shall provide each teacher
5-12 and administrator with a copy of Section 21.301 and this section of
5-13 this code and with a copy of the local policies relating to the
5-14 sections.
5-15 (k) <(j)> If a court orders a student who has been expelled
5-16 to attend school as a condition of probation, the school district
5-17 shall readmit the student, but the student is not immune from
5-18 suspension, removal to an alternative education program, or
5-19 expulsion during the term of the probation.
5-20 (l) <(k)> Each school district shall reasonably cooperate
5-21 with governmental agencies and community organizations providing
5-22 services within the district to students expelled under this
5-23 section.
5-24 (m) <(l)> A rehabilitation district that admits handicapped
5-25 delinquent children shall admit a child referred by a juvenile
5-26 court located in the district if the ARD committee of the district
5-27 has determined that the district has sufficient facilities and
6-1 personnel available.
6-2 (n) <(m)> If the student enrolls in another school district
6-3 before the expiration of the period of expulsion, the board shall
6-4 provide to the district in which the student enrolls, at the same
6-5 time other of the student's records are provided, a copy of the
6-6 order. The district in which the student enrolls may continue the
6-7 expulsion under the terms of the order or, if the student produces
6-8 evidence, to the satisfaction of the district, of remediation for
6-9 the conduct for which the student was expelled and the conduct was
6-10 not an assaultive offense, the district may allow the student to
6-11 attend classes without completing the period of expulsion.
6-12 SECTION 2. Section 22.01, Penal Code, as amended by Chapters
6-13 14 and 334, Acts of the 72nd Legislature, 1991, is amended to read
6-14 as follows:
6-15 Sec. 22.01. Assault. (a) A person commits an offense if
6-16 the person:
6-17 (1) intentionally, knowingly, or recklessly causes
6-18 bodily injury to another, including the person's spouse; or
6-19 (2) intentionally or knowingly threatens another with
6-20 imminent bodily injury, including the person's spouse; or
6-21 (3) intentionally or knowingly causes physical contact
6-22 with another when the person knows or should reasonably believe
6-23 that the other will regard the contact as offensive or provocative.
6-24 (b) An offense under Subsection (a)(1) of this section is a
6-25 Class A misdemeanor unless:
6-26 (1) the offense is committed by the owner or an
6-27 employee of an institution described in Section 242.002(6), Health
7-1 and Safety Code, or a person providing medical or psychiatric
7-2 treatment at an institution described in that section, and the
7-3 offense is committed by causing bodily injury to a patient or
7-4 resident of an institution described in that section, in which
7-5 event the offense is a felony of the third degree;
7-6 (2) the offense is committed by the owner or employee
7-7 of a facility, except a facility operated by the Texas Youth
7-8 Commission or the institutional division of the Texas Department of
7-9 Criminal Justice <Corrections>, described in Section 242.003(a)(6),
7-10 Health and Safety Code, or a person providing medical or
7-11 psychiatric treatment at a facility, except a facility operated by
7-12 the Texas Youth Commission or the institutional division of the
7-13 Texas Department of Criminal Justice <Corrections>, described in
7-14 that section, and the offense is committed by causing bodily injury
7-15 to a patient or resident of a facility, except a facility operated
7-16 by the Texas Youth Commission or the institutional division of the
7-17 Texas Department of Criminal Justice <Corrections>, described in
7-18 that section, in which event the offense is a felony of the third
7-19 degree; or
7-20 (3) the offense is committed against a family member
7-21 and the actor has been previously convicted under this section for
7-22 an offense against a family member two or more times, in which
7-23 event the offense is a felony of the third degree.
7-24 (c) An offense under Subsection (a)(2) of this section is a
7-25 Class C misdemeanor unless:
7-26 (1) the offense is committed by the owner or an
7-27 employee of an institution described in Section 242.002(6), Health
8-1 and Safety Code, or a person providing medical or psychiatric
8-2 treatment at an institution described in that section, and the
8-3 offense is committed by threatening a patient or resident of an
8-4 institution described in that section with bodily injury, in which
8-5 event the offense is a Class B misdemeanor; or
8-6 (2) the offense is committed by the owner or an
8-7 employee of a facility, except a facility operated by the Texas
8-8 Youth Commission or the institutional division of the Texas
8-9 Department of Criminal Justice, described in Section 242.003(a)(6),
8-10 Health and Safety Code, or a person providing medical or
8-11 psychiatric treatment at a facility, except a facility operated by
8-12 the Texas Youth Commission or the institutional division, described
8-13 in that section, and the offense is committed by threatening a
8-14 patient or resident of a facility, except a facility operated by
8-15 the Texas Youth Commission or the institutional division, described
8-16 in that section with bodily injury, in which event the offense is a
8-17 Class B misdemeanor; or
8-18 (3) the offense is committed against a classroom
8-19 teacher, counselor, principal, or other similar instructional or
8-20 administrative employee of a public primary or secondary school
8-21 <accredited by the Texas Education Agency>, other than the Windham
8-22 Schools, while engaged in performing or in retaliation for or on
8-23 account of performing his educational duties, in which event the
8-24 offense is:
8-25 (A) a Class B misdemeanor for the first offense;
8-26 (B) a Class A misdemeanor if it is shown at the
8-27 trial for the offense that the actor has been convicted under this
9-1 subdivision one time previously; or
9-2 (C) a felony of the third degree if it is shown
9-3 at the trial for the offense that the actor has been convicted
9-4 under this subdivision two or more times previously; or
9-5 (4) the offense is committed against a family member
9-6 and the actor has been previously convicted under this section for
9-7 an offense against a family member:
9-8 (A) one time, in which event the offense is a
9-9 Class B misdemeanor;
9-10 (B) two times, in which event the offense is a
9-11 Class A misdemeanor; or
9-12 (C) more than two times, in which event the
9-13 offense is a felony of the third degree.
9-14 (d) An offense under Subsection (a)(3) of this section is a
9-15 Class C misdemeanor unless:
9-16 (1) the offense is committed against a classroom
9-17 teacher, counselor, principal, or other similar instructional or
9-18 administrative employee of a public primary or secondary school
9-19 <accredited by the Texas Education Agency> while engaged in
9-20 performing or in retaliation for or on account of performing his
9-21 educational duties, in which event the offense is:
9-22 (A) a Class B misdemeanor for the first offense;
9-23 (B) a Class A misdemeanor if it is shown at the
9-24 trial for the offense that the actor has been convicted under this
9-25 subdivision one time previously; or
9-26 (C) a felony of the third degree if it is shown
9-27 at the trial for the offense that the actor has been convicted
10-1 under this subdivision two or more times previously; or
10-2 (2) the offense is committed against a family member
10-3 and the actor has been previously convicted under this section for
10-4 an offense against a family member:
10-5 (A) one time, in which event the offense is a
10-6 Class B misdemeanor;
10-7 (B) two times, in which event the offense is a
10-8 Class A misdemeanor; or
10-9 (C) more than two times, in which event the
10-10 offense is a felony of the third degree.
10-11 (e) In this section, "family" has the meaning assigned by
10-12 Section 71.01, Family Code.
10-13 SECTION 3. Section 22.02(a), Penal Code, is amended to read
10-14 as follows:
10-15 (a) A person commits an offense if the person commits
10-16 assault as defined in Section 22.01 of this code and the person:
10-17 (1) causes serious bodily injury to another, including
10-18 the person's spouse;
10-19 (2) threatens with a deadly weapon or threatens to
10-20 cause bodily injury or causes bodily injury to a member of the
10-21 Board of Pardons and Paroles or the Texas Board of Criminal
10-22 Justice, an employee of the pardons and paroles division of the
10-23 Texas Department of Criminal Justice, an employee of the Windham
10-24 Schools, a peace officer, or a jailer, guard, or other employee of
10-25 a municipal or county jail, the institutional division of the Texas
10-26 Department of Criminal Justice, or a correctional facility
10-27 authorized by Subchapter F, Chapter 351, Local Government Code or
11-1 Chapter 495, Government Code, or a classroom teacher, counselor,
11-2 principal, or similar instructional or administrative employee of a
11-3 public primary or secondary school when the person knows or has
11-4 been informed the person assaulted is a member of the Board of
11-5 Pardons and Paroles or the Texas Board of Criminal Justice, an
11-6 employee of the pardons and paroles division, an employee of the
11-7 Windham Schools, a peace officer, <or> a jailer, guard, or other
11-8 employee, or a classroom teacher, counselor, principal, or similar
11-9 instructional or administrative employee of a public primary or
11-10 secondary school:
11-11 (A) while the member of the Board of Pardons and
11-12 Paroles or Texas Board of Criminal Justice, employee of the pardons
11-13 and paroles division, employee of the Windham Schools, peace
11-14 officer, jailer, guard, or other employee, or employee of a public
11-15 primary or secondary school is lawfully discharging an official
11-16 duty; or
11-17 (B) in retaliation for or on account of an
11-18 exercise of official power or performance of an official duty as a
11-19 member of the Board of Pardons and Paroles or Texas Board of
11-20 Criminal Justice, an employee of the pardons and paroles division,
11-21 an employee of the Windham Schools, a peace officer, or a jailer,
11-22 guard, or other employee, or an employee of a public primary or
11-23 secondary school; or
11-24 (3) causes bodily injury to a participant in a court
11-25 proceeding when the person knows or has been informed the person
11-26 assaulted is a participant in a court proceeding:
11-27 (A) while the injured person is lawfully
12-1 discharging an official duty; or
12-2 (B) in retaliation for or on account of the
12-3 injured person's having exercised an official power or performed an
12-4 official duty as a participant in a court proceeding; or
12-5 (4) uses a deadly weapon.
12-6 SECTION 4. (a) The change in law made by this Act applies
12-7 only to an offense committed on or after the effective date of this
12-8 Act. For purposes of this section, an offense is committed before
12-9 the effective date of this Act if any element of the offense occurs
12-10 before the effective date.
12-11 (b) An offense committed before the effective date of this
12-12 Act is covered by the law in effect when the offense was committed,
12-13 and the former law is continued in effect for this purpose.
12-14 SECTION 5. This Act takes effect September 1, 1993.
12-15 SECTION 6. The importance of this legislation and the
12-16 crowded condition of the calendars in both houses create an
12-17 emergency and an imperative public necessity that the
12-18 constitutional rule requiring bills to be read on three several
12-19 days in each house be suspended, and this rule is hereby suspended.