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.