By Serna H.B. No. 389
75R2258 ESH-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the punishment for certain conduct occurring on school
1-3 property or at a school-sponsored or school-related activity.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 37.006, Education Code, is amended to
1-6 read as follows:
1-7 Sec. 37.006. REMOVAL FOR CERTAIN CONDUCT. (a) Except as
1-8 provided by Section 37.007(a)(3), a student shall be removed from
1-9 class and placed in an alternative education program as provided by
1-10 Section 37.008 if the student engages in conduct punishable as a
1-11 felony, or commits the following on school property or while
1-12 attending a school-sponsored or school-related activity on or off
1-13 of school property:
1-14 (1) engages in conduct that contains the elements of
1-15 the offense of [assault under Section 22.01(a)(1), Penal Code, or]
1-16 terroristic threat under Section 22.07, Penal Code;
1-17 (2) [sells, gives, or delivers to another person or]
1-18 possesses, [or] uses, or is under the influence of:
1-19 (A) marihuana or a controlled substance, as
1-20 defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.
1-21 Section 801 et seq.; or
1-22 (B) a dangerous drug, as defined by Chapter 483,
1-23 Health and Safety Code;
1-24 (3) sells, gives, or delivers to another person an
2-1 alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage
2-2 Code, commits a serious act or offense while under the influence of
2-3 alcohol, or possesses, uses, or is under the influence of an
2-4 alcoholic beverage;
2-5 (4) engages in conduct that contains the elements of
2-6 an offense relating to abusable glue or aerosol paint under
2-7 Sections 485.031 through 485.035, Health and Safety Code, or
2-8 relating to volatile chemicals under Chapter 484, Health and Safety
2-9 Code; or
2-10 (5) engages in conduct that contains the elements of
2-11 the offense of public lewdness under Section 21.07, Penal Code, or
2-12 indecent exposure under Section 21.08, Penal Code.
2-13 (b) Except as provided by Section 37.007(c), a student shall
2-14 be removed from class and placed in an alternative education
2-15 program under Section 37.008 if the student engages in conduct that
2-16 contains the elements of the offense of retaliation under Section
2-17 36.06, Penal Code, against any school employee.
2-18 (c) Except as provided by Section 37.007(a)(3), a student
2-19 shall be removed from class and placed in an alternative education
2-20 program in a high-security setting if the board or the board's
2-21 designee finds that the student, while on school property or while
2-22 attending a school-sponsored or school-related activity on or off
2-23 of school property, engaged in conduct that:
2-24 (1) contains the elements of the offense of:
2-25 (A) assault under Section 22.01, Penal Code; or
2-26 (B) deadly conduct under Section 22.05, Penal
2-27 Code; or
3-1 (2) consists of selling, giving, or delivering to
3-2 another person marihuana or a controlled substance, as defined by
3-3 21 U.S.C. Section 801 et seq.
3-4 (d) The terms of a placement under this section must
3-5 prohibit the student from attending or participating in a
3-6 school-sponsored or school-related activity.
3-7 SECTION 2. Section 37.007(a), Education Code, is amended to
3-8 read as follows:
3-9 (a) A student shall be expelled from a school if the
3-10 student, on school property or while attending a school-sponsored
3-11 or school-related activity on or off of school property:
3-12 (1) uses, exhibits, or possesses:
3-13 (A) a firearm as defined by Section 46.01(3),
3-14 Penal Code;
3-15 (B) an illegal knife as defined by Section
3-16 46.01(6), Penal Code, or by local policy;
3-17 (C) a club as defined by Section 46.01(1), Penal
3-18 Code; or
3-19 (D) a weapon listed as a prohibited weapon under
3-20 Section 46.05, Penal Code;
3-21 (2) engages in conduct that contains the elements of
3-22 the offense of:
3-23 (A) aggravated assault under Section 22.02,
3-24 Penal Code, sexual assault under Section 22.011, Penal Code, or
3-25 aggravated sexual assault under Section 22.021, Penal Code;
3-26 (B) arson under Section 28.02, Penal Code;
3-27 (C) murder under Section 19.02, Penal Code,
4-1 capital murder under Section 19.03, Penal Code, or criminal
4-2 attempt, under Section 15.01, Penal Code, to commit murder or
4-3 capital murder;
4-4 (D) indecency with a child under Section 21.11,
4-5 Penal Code; or
4-6 (E) aggravated kidnapping under Section 20.04,
4-7 Penal Code; [or]
4-8 (3) engages in conduct specified by Section
4-9 37.006(a)(2), (a)(3), or (c)(2) [(3)], if the conduct is punishable
4-10 as a felony; or
4-11 (4) engages in conduct that consists of selling,
4-12 giving, or delivering to another person:
4-13 (A) a controlled substance, as defined by
4-14 Chapter 481, Health and Safety Code; or
4-15 (B) a dangerous drug, as defined by Chapter 483,
4-16 Health and Safety Code.
4-17 SECTION 3. Section 54.044, Family Code, is amended to read
4-18 as follows:
4-19 Sec. 54.044. COMMUNITY SERVICE. (a) If the court places a
4-20 child on probation under Section 54.04(d), the court shall require
4-21 as a condition of probation that the child work a specified number
4-22 of hours at a community service project approved by the court and
4-23 designated by the juvenile board as provided by Subsection (f)
4-24 [(e)], unless the court determines and enters a finding on the
4-25 order placing the child on probation that:
4-26 (1) the child is physically or mentally incapable of
4-27 participating in the project;
5-1 (2) participating in the project will be a hardship on
5-2 the child or the family of the child; or
5-3 (3) the child has shown good cause that community
5-4 service should not be required.
5-5 (b) The court may also order under this section that the
5-6 child's parent perform community service with the child.
5-7 (c) The court shall order the child to complete at least 80
5-8 hours of community service if:
5-9 (1) the conduct that the child is found to have
5-10 engaged in:
5-11 (A) violates Section 22.01, 22.011, 22.02,
5-12 22.021, or 22.05, Penal Code; or
5-13 (B) consists of selling, giving, or delivering
5-14 to another person:
5-15 (i) marihuana or a controlled substance,
5-16 as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.
5-17 Section 801 et seq.; or
5-18 (ii) a dangerous drug, as defined by
5-19 Chapter 483, Health and Safety Code; and
5-20 (2) the conduct occurred on school property or while
5-21 the child was attending a school-sponsored or school-related
5-22 activity on or off school property.
5-23 (d) The court shall order that the child and the child's
5-24 parent perform a total of not more than 500 hours of community
5-25 service under this section.
5-26 (e) [(d)] A municipality or county that establishes a
5-27 program to assist children and their parents in rendering community
6-1 service under this section may purchase insurance policies
6-2 protecting the municipality or county against claims brought by a
6-3 person other than the child or the child's parent for a cause of
6-4 action that arises from an act of the child or parent while
6-5 rendering community service. The municipality or county is not
6-6 liable under this section to the extent that damages are
6-7 recoverable under a contract of insurance or under a plan of
6-8 self-insurance authorized by statute. The liability of the
6-9 municipality or county for a cause of action that arises from an
6-10 action of the child or the child's parent while rendering community
6-11 service may not exceed $100,000 to a single person and $300,000 for
6-12 a single occurrence in the case of personal injury or death, and
6-13 $10,000 for a single occurrence of property damage. Liability may
6-14 not extend to punitive or exemplary damages. This subsection does
6-15 not waive a defense, immunity, or jurisdictional bar available to
6-16 the municipality or county or its officers or employees, nor shall
6-17 this section be construed to waive, repeal, or modify any provision
6-18 of Chapter 101, Civil Practice and Remedies Code.
6-19 (f) [(e)] For the purposes of this section, a court may
6-20 submit to the juvenile probation department a list of organizations
6-21 or projects approved by the court for community service. The
6-22 juvenile probation department may:
6-23 (1) designate an organization or project for community
6-24 service only from the list submitted by the court; and
6-25 (2) reassign or transfer a child to a different
6-26 organization or project on the list submitted by the court under
6-27 this subsection without court approval.
7-1 (g) [(f)] A person subject to an order proposed under
7-2 Subsection (a) or (b) is entitled to a hearing on the order before
7-3 the order is entered by the court.
7-4 (h) [(g)] On a finding by the court that a child's parents
7-5 or guardians have made a reasonable good faith effort to prevent
7-6 the child from engaging in delinquent conduct or engaging in
7-7 conduct indicating a need for supervision and that, despite the
7-8 parents' or guardians' efforts, the child continues to engage in
7-9 such conduct, the court shall waive any requirement for community
7-10 service that may be imposed on a parent under this section.
7-11 (i) [(h)] An order made under this section may be enforced
7-12 as provided by Section 54.07.
7-13 SECTION 4. This Act takes effect September 1, 1997.
7-14 SECTION 5. (a) The change in law made by this Act applies
7-15 only to conduct that occurs on or after the effective date of this
7-16 Act. For the purposes of this section, conduct occurs before the
7-17 effective date of this Act if any element of the conduct occurs
7-18 before the effective date.
7-19 (b) Conduct that occurs before the effective date of this
7-20 Act is covered by the law in effect when the conduct occurred, and
7-21 the former law is continued in effect for that purpose.
7-22 SECTION 6. The importance of this legislation and the
7-23 crowded condition of the calendars in both houses create an
7-24 emergency and an imperative public necessity that the
7-25 constitutional rule requiring bills to be read on three several
7-26 days in each house be suspended, and this rule is hereby suspended.