By:  Bivins                                   S.B. No. 136

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to placement of students expelled from public schools in

 1-2     juvenile justice alternative education programs.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Subsection (a), Section 37.001, Education Code,

 1-5     is amended to read as follows:

 1-6           (a)  Each school district shall, with the advice of its

 1-7     district-level committee established under Section 11.251, [and

 1-8     jointly, as appropriate, with the juvenile board of each county in

 1-9     which the district is located,] adopt a student code of conduct for

1-10     the district.  In addition to establishing standards for student

1-11     conduct, the student code of conduct must:

1-12                 (1)  specify the circumstances, in accordance with this

1-13     subchapter, under which a student may be removed from a classroom,

1-14     campus, or alternative education program;

1-15                 (2)  [outline the responsibilities of each juvenile

1-16     board concerning the establishment and operation of a juvenile

1-17     justice alternative education program under Section 37.011;]

1-18                 [(3)  define the conditions on payments from the

1-19     district to each juvenile board;]

1-20                 [(4)]  specify conditions that authorize or require a

1-21     principal or other appropriate administrator to transfer a student

1-22     to an alternative education program; and

1-23                 (3) [(5)]  outline conditions under which a student may

 2-1     be suspended as provided by Section 37.005 or expelled as provided

 2-2     by Section 37.007.

 2-3           SECTION 2.  Subsections (a) and (b), Section 37.006,

 2-4     Education Code, are amended to read as follows:

 2-5           (a)  Except as provided by Section 37.007(a)(3) or (b), a

 2-6     student shall be removed from class and placed in an alternative

 2-7     education program as provided by Section 37.008 if the student

 2-8     engages in conduct punishable as a felony, or commits the following

 2-9     on school property or while attending a school-sponsored or

2-10     school-related activity on or off of school property:

2-11                 (1)  engages in conduct that contains the elements of

2-12     the offense of assault under Section 22.01(a)(1), Penal Code, or

2-13     terroristic threat under Section 22.07, Penal Code;

2-14                 (2)  sells, gives, or delivers to another person or

2-15     possesses or uses or is under the influence of:

2-16                       (A)  marihuana or a controlled substance, as

2-17     defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.

2-18     Section 801 et seq.; or

2-19                       (B)  a dangerous drug, as defined by Chapter 483,

2-20     Health and Safety Code;

2-21                 (3)  sells, gives, or delivers to another person an

2-22     alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage

2-23     Code, commits a serious act or offense while under the influence of

2-24     alcohol, or possesses, uses, or is under the influence of an

2-25     alcoholic beverage;

 3-1                 (4)  engages in conduct that contains the elements of

 3-2     an offense relating to abusable glue or aerosol paint under

 3-3     Sections 485.031 through 485.035, Health and Safety Code, or

 3-4     relating to volatile chemicals under Chapter 484, Health and Safety

 3-5     Code; or

 3-6                 (5)  engages in conduct that contains the elements of

 3-7     the offense of public lewdness under Section 21.07, Penal Code, or

 3-8     indecent exposure under Section 21.08, Penal Code.

 3-9           (b)  Except as provided by Section 37.007(d) [37.007(c)], a

3-10     student shall be removed from class and placed in an alternative

3-11     education program under Section 37.008 if the student engages in

3-12     conduct that contains the elements of the offense of retaliation

3-13     under Section 36.06, Penal Code, against any school employee.

3-14           SECTION 3.  Section 37.007, Education Code, is amended to

3-15     read as follows:

3-16           Sec. 37.007.  EXPULSION FOR SERIOUS OFFENSES.  (a)  A student

3-17     shall be expelled from a school if the student, on school property

3-18     or while attending a school-sponsored or school-related activity on

3-19     or off of school property:

3-20                 (1)  uses, exhibits, or possesses:

3-21                       (A)  a firearm as defined by Section 46.01(3),

3-22     Penal Code;

3-23                       (B)  an illegal knife as defined by Section

3-24     46.01(6), Penal Code, or by local policy;

3-25                       (C)  a club as defined by Section 46.01(1), Penal

 4-1     Code; or

 4-2                       (D)  a weapon listed as a prohibited weapon under

 4-3     Section 46.05, Penal Code;

 4-4                 (2)  engages in conduct that contains the elements of

 4-5     the offense of:

 4-6                       (A)  aggravated assault under Section 22.02,

 4-7     Penal Code, sexual assault under Section 22.011, Penal Code, or

 4-8     aggravated sexual assault under Section 22.021, Penal Code;

 4-9                       (B)  arson under Section 28.02, Penal Code;

4-10                       (C)  murder under Section 19.02, Penal Code,

4-11     capital murder under Section 19.03, Penal Code, or criminal

4-12     attempt, under Section 15.01, Penal Code, to commit murder or

4-13     capital murder;

4-14                       (D)  indecency with a child under Section 21.11,

4-15     Penal Code; or

4-16                       (E)  aggravated kidnapping under Section 20.04,

4-17     Penal Code; or

4-18                 (3)  engages in conduct specified by Section

4-19     37.006(a)(2) or (3), if the conduct is punishable as a felony.

4-20           (b)  A student may be expelled if the student, while on

4-21     school property or while attending a school-sponsored or

4-22     school-related activity on or off of school property:

4-23                 (1)  sells, gives, or delivers to another person or

4-24     possesses, uses, or is under the influence of any amount of:

4-25                       (A)  marihuana or a controlled substance, as

 5-1     defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.

 5-2     Section 801 et seq.;

 5-3                       (B)  a dangerous drug, as defined by Chapter 483,

 5-4     Health and Safety Code; or

 5-5                       (C)  an alcoholic beverage, as defined by Section

 5-6     1.04, Alcoholic Beverage Code; or

 5-7                 (2)  engages in conduct that contains the elements of

 5-8     an offense relating to abusable glue or aerosol paint under

 5-9     Sections 485.031 through 485.035, Health and Safety Code, or

5-10     relating to volatile chemicals under Chapter 484, Health and Safety

5-11     Code.

5-12           (c)  A student may be expelled if the student, after being

5-13     placed in an alternative education program for disciplinary

5-14     reasons, continues to engage in serious or persistent misbehavior

5-15     that violates the district's student code of conduct.

5-16           (d) [(c)]  A student shall be expelled if the student engages

5-17     in conduct that contains the elements of any offense listed in

5-18     Subsection (a) against any employee in retaliation for or as a

5-19     result of the employee's employment with a school district.

5-20           (e) [(d)]  In accordance with federal law, a local

5-21     educational agency, including a school district, home-rule school

5-22     district, or open-enrollment charter school, shall expel a student

5-23     who brings a firearm, as defined by 18 U.S.C. Section 921, to

5-24     school.  The student must be expelled from the student's regular

5-25     campus for a period of at least one year, except that:

 6-1                 (1)  the superintendent or other chief administrative

 6-2     officer of the school district or of the other local educational

 6-3     agency, as defined by 20 U.S.C. Section 2891, may modify the length

 6-4     of the expulsion in the case of an individual student; and

 6-5                 (2)  the district or other local educational agency may

 6-6     provide educational services to the expelled student in an

 6-7     alternative education program as provided by Section 37.008.

 6-8           (f) [(e)]  Each school district shall report to the agency

 6-9     the number of students expelled under Subsection (e) [(d)] each

6-10     year, the names of the schools from which the students are

6-11     expelled, and the types of weapons involved.

6-12           (g) [(f)]  A student who engages in conduct that contains the

6-13     elements of the offense of criminal mischief under Section 28.03,

6-14     Penal Code, may be expelled at the district's discretion if the

6-15     conduct is punishable as a felony under that section.  The student

6-16     shall be referred to the authorized officer of the juvenile court

6-17     regardless of whether the student is expelled.

6-18           (h) [(g)]  A school district shall inform each teacher of the

6-19     conduct of a student who has engaged in any violation listed in

6-20     this section.  A teacher shall keep the information received in

6-21     this subsection confidential.  The State Board for Educator

6-22     Certification may revoke or suspend the certification of a teacher

6-23     who intentionally violates this subsection.

6-24           SECTION 4.  Subsections (a), (b), and (f), Section 37.010,

6-25     Education Code, are amended to read as follows:

 7-1           (a)  Not later than the second business day after the date a

 7-2     hearing is held under Section 37.009, the board of trustees of a

 7-3     school district or the board's designee shall deliver a copy of the

 7-4     order placing a student in an alternative education program under

 7-5     Section 37.006 or expelling a student under Section 37.007 and any

 7-6     information required under Section 52.04, Family Code, to the

 7-7     authorized officer of the juvenile court in the county in which the

 7-8     student resides.  In compliance with compulsory school attendance

 7-9     requirements under Section 25.085 and the memorandum of

7-10     understanding between the school district and the juvenile board in

7-11     a county that operates a program under Section 37.011, an expelled

7-12     student shall immediately attend the educational program as

7-13     provided by law or by the memorandum of understanding from the date

7-14     of expulsion; provided, however, that every expelled student who is

7-15     not detained or receiving treatment under an order of the juvenile

7-16     court must be enrolled in an educational program.  [Except as

7-17     provided by Subsection (b), the officer may determine whether:]

7-18                 [(1)  a petition should be filed alleging that the

7-19     student is in need of supervision or has engaged in delinquent

7-20     conduct; or]

7-21                 [(2)  the student should be referred to an appropriate

7-22     state agency.]

7-23           (b)  If a student is expelled under Section 37.007(c)

7-24     [37.007(b)], the board or its designee shall refer the student to

7-25     the authorized officer of the juvenile court for appropriate

 8-1     proceedings under Title 3, Family Code.

 8-2           (f)  If a student is expelled under Section 37.007, on the

 8-3     recommendation of the committee established under Section 37.003 or

 8-4     on its own initiative, a district may readmit the student while the

 8-5     student is completing any court disposition requirements the court

 8-6     imposes.  After the student has successfully completed any court

 8-7     disposition requirements the court imposes, including conditions of

 8-8     a deferred prosecution ordered by the court, or such conditions

 8-9     required by the prosecutor or probation department, if the student

8-10     meets the requirements for admission into the public schools

8-11     established by this title, a district may not refuse to admit the

8-12     student, but the district may place the student in the alternative

8-13     education program.  Notwithstanding Section 37.002(d), the student

8-14     may not be returned to the classroom of the teacher under whose

8-15     supervision the offense occurred without that teacher's consent.

8-16     The teacher may not be coerced to consent.

8-17           SECTION 5.  Section 37.011, Education Code, is amended by

8-18     amending Subsection (b) and adding Subsections (k), (l), and (m) to

8-19     read as follows:

8-20           (b)  If a student is expelled from school under [found to

8-21     have engaged in conduct described by] Section 37.007 [and the

8-22     student is found by a juvenile court to have engaged in delinquent

8-23     conduct under Title 3, Family Code], unless otherwise agreed in the

8-24     memorandum of understanding required under this section, the

8-25     juvenile court shall:

 9-1                 (1)  if the student is placed on probation under

 9-2     Section 54.04, Family Code, order the student to attend [require]

 9-3     the juvenile justice alternative education program in the county in

 9-4     which the student resides from the date of disposition as a

 9-5     condition of probation, unless the child is placed in a

 9-6     post-adjudication treatment facility [conduct occurred to provide

 9-7     educational services to the student]; [and]

 9-8                 (2)  if the student is placed on deferred prosecution

 9-9     under Section 53.03, Family Code, by the court, prosecutor, or

9-10     probation department, require [order] the student to immediately

9-11     attend the juvenile justice alternative education program in the

9-12     county in which the student resides for a period not to exceed six

9-13     months as a condition of the deferred prosecution; and

9-14                 (3)  in determining the conditions of the deferred

9-15     prosecution or court ordered probation, consider the length of the

9-16     school district's expulsion order for the student [from the date of

9-17     adjudication].

9-18           (k)  Each school district in a county with a population

9-19     greater than 125,000 and the county juvenile board shall annually

9-20     enter into a joint memorandum of understanding that:

9-21                 (1)  outlines the responsibilities of the juvenile

9-22     board concerning the establishment and operation of a juvenile

9-23     justice alternative education program under this section;

9-24                 (2)  defines the amount and conditions on payments from

9-25     the school district to the juvenile board for all students of the

 10-1    school district served in the juvenile justice alternative

 10-2    education program;

 10-3                (3)  identifies those categories of conduct that the

 10-4    school district has defined in its student code of conduct as

 10-5    constituting serious or persistent misbehavior for which a student

 10-6    may be placed in the juvenile justice alternative education

 10-7    program;

 10-8                (4)  identifies and requires a timely placement and

 10-9    specifies a term of placement for expelled students for whom the

10-10    school district has received a notice under Section 52.041(d),

10-11    Family Code;

10-12                (5)  establishes services for the transitioning of

10-13    expelled students to the school district prior to the completion of

10-14    the student's placement in the juvenile justice alternative

10-15    education program;

10-16                (6)  establishes a plan that provides transportation

10-17    services for students placed in the juvenile justice alternative

10-18    education program; and

10-19                (7)  establishes the circumstances and conditions under

10-20    which a juvenile may be allowed to remain in the juvenile justice

10-21    alternative education program setting once the juvenile is no

10-22    longer under juvenile court jurisdiction.

10-23          (l)  The school district shall be responsible for providing

10-24    an immediate educational program to students who engage in serious

10-25    or persistent misbehavior as defined in the school district's

 11-1    student code of conduct but who are not eligible for admission into

 11-2    the juvenile justice alternative education program in accordance

 11-3    with the memorandum of understanding required under this section.

 11-4    The memorandum of understanding shall address the circumstances

 11-5    under which such students who continue to engage in serious or

 11-6    persistent misbehavior shall be admitted into the juvenile justice

 11-7    alternative education program.

 11-8          (m)  Each school district in a county with a population

 11-9    greater than 125,000 and the county juvenile board shall adopt a

11-10    joint memorandum of understanding as required by this section not

11-11    later than September 1 of each school year.  If a school district

11-12    and the juvenile board are unable to reach an agreement for

11-13    adoption of the memorandum of understanding required under this

11-14    section, the issues of dispute between the school district and

11-15    juvenile board shall be referred to a binding arbitration process

11-16    which utilizes a qualified alternate dispute resolution arbitrator.

11-17    Each party must submit its best final proposal to the arbitrator,

11-18    who shall select between the two proposals.  The parties shall

11-19    equally share the costs of the arbitration.

11-20          SECTION 6.  Subsection (a), Section 37.012, Education Code,

11-21    is amended to read as follows:

11-22          (a)  The school district in which a student is enrolled on

11-23    the date a juvenile court orders the student to attend a juvenile

11-24    justice alternative education program shall transfer to the

11-25    juvenile board in charge of the juvenile justice alternative

 12-1    education program for the portion of the school year for which the

 12-2    juvenile justice alternative education program provides educational

 12-3    services funds in an amount determined by the memorandum of

 12-4    understanding under Section 37.011(k)(2) [equal to the district's

 12-5    average per student expenditure in alternative education programs

 12-6    under Section 37.008].

 12-7          SECTION 7.  Subchapter A, Chapter 37, Education Code, is

 12-8    amended by adding Section 37.020 to read as follows:

 12-9          Sec. 37.020.  REPORT OF EXPULSIONS.  Each school district

12-10    shall report all expulsions under this subchapter to the

12-11    commissioner in the manner required by the commissioner.

12-12          SECTION 8.  Subsection (b), Section 51.03, Family Code, is

12-13    amended to read as follows:

12-14          (b)  Conduct indicating a need for supervision is:

12-15                (1)  subject to Subsection (f) of this section,

12-16    conduct, other than a traffic offense, that violates:

12-17                      (A)  the penal laws of this state of the grade of

12-18    misdemeanor that are punishable by fine only; or

12-19                      (B)  the penal ordinances of any political

12-20    subdivision of this state;

12-21                (2)  the unexcused voluntary absence of a child on 10

12-22    or more days or parts of days within a six-month period or three or

12-23    more days or parts of days within a four-week period from school

12-24    without the consent of his parents;

12-25                (3)  the voluntary absence of a child from his home

 13-1    without the consent of his parent or guardian for a substantial

 13-2    length of time or without intent to return;

 13-3                (4)  conduct which violates the laws of this state

 13-4    prohibiting driving while intoxicated or under the influence of

 13-5    intoxicating liquor (first or second offense) or driving while

 13-6    under the influence of any narcotic drug or of any other drug to a

 13-7    degree which renders him incapable of safely driving a vehicle

 13-8    (first or second offense);

 13-9                (5)  conduct prohibited by city ordinance or by state

13-10    law involving the inhalation of the fumes or vapors of paint and

13-11    other protective coatings or glue and other adhesives and the

13-12    volatile chemicals itemized in Section 484.002, Health and Safety

13-13    Code;

13-14                (6)  an act that violates a school district's

13-15    previously communicated written standards of student conduct for

13-16    which the child has been expelled under Section 37.007(b)

13-17    [21.3011], Education Code; or

13-18                (7)  conduct that violates a reasonable and lawful

13-19    order of a court entered under Section 264.305.

13-20          SECTION 9.  Section 52.041, Family Code, is amended by adding

13-21    Subsections (c), (d), and (e) to read as follows:

13-22          (c)  Within five working days of receipt of an expulsion

13-23    notice under this section by the office or official designated by

13-24    the juvenile court, a preliminary investigation and determination

13-25    shall be conducted as required by Section 53.01.

 14-1          (d)  The office or official designated by the juvenile court

 14-2    shall within two working days notify the school district that

 14-3    expelled the child if:

 14-4                (1)  a determination was made under Section 53.01 that

 14-5    the person referred to juvenile court was not a child within the

 14-6    meaning of this title;

 14-7                (2)  a determination was made that no probable cause

 14-8    existed to believe the child engaged in delinquent conduct or

 14-9    conduct indicating a need for supervision;

14-10                (3)  no deferred prosecution or formal court

14-11    proceedings have been or will be initiated involving the child;

14-12                (4)  the court or jury finds that the child did not

14-13    engage in delinquent conduct or conduct indicating a need for

14-14    supervision and the case has been dismissed with prejudice; or

14-15                (5)  the child was adjudicated but no disposition was

14-16    or will be ordered by the court.

14-17          (e)  In any county where a juvenile justice alternative

14-18    education program is operated, no student shall be expelled without

14-19    written notification by the board of the school district or its

14-20    designated agent to the juvenile board's designated representative.

14-21    The notification shall be made not later than two business days

14-22    following the board's determination that the student is to be

14-23    expelled.  Failure to timely notify the designated representative

14-24    of the juvenile board shall result in the child's duty to continue

14-25    attending the school district's educational program, which shall be

 15-1    provided to that child until such time as the notification to the

 15-2    juvenile board's designated representative is properly made.

 15-3          SECTION 10.  Section 53.02, Family Code, is amended by adding

 15-4    Subsection (e) to read as follows:

 15-5          (e)  In a county with a population greater than 125,000, if a

 15-6    child being released under this section is expelled under Section

 15-7    37.007, Education Code, the release shall be conditioned on the

 15-8    child's attending a juvenile justice alternative education program

 15-9    pending a deferred prosecution or formal court disposition of the

15-10    child's case.

15-11          SECTION 11.  Subsection (f), Section 54.01, Family Code, is

15-12    amended to read as follows:

15-13          (f)  A release may be conditioned on requirements reasonably

15-14    necessary to insure the child's appearance at later proceedings,

15-15    but the conditions of the release must be in writing and a copy

15-16    furnished to the child.  In a county with a population greater than

15-17    125,000, if a child being released under this section is expelled

15-18    under Section 37.007, Education Code, the release shall be

15-19    conditioned on the child's attending a juvenile justice alternative

15-20    education program pending a deferred prosecution or formal court

15-21    disposition of the child's case.

15-22          SECTION 12.  Subsection (a), Section 59.003, Family Code, is

15-23    amended to read as follows:

15-24          (a)  Subject to Subsection (e), after a child's first

15-25    commission of delinquent conduct or conduct indicating a need for

 16-1    supervision, the probation department may or the juvenile court

 16-2    may, in a disposition hearing under Section 54.04, assign a child

 16-3    one of the following sanction levels according to the child's

 16-4    conduct:

 16-5                (1)  for conduct indicating a need for supervision,

 16-6    other than conduct described in Section 51.03(b)(6) or a Class A or

 16-7    B misdemeanor, the sanction level is one;

 16-8                (2)  for conduct indicating a need for supervision

 16-9    under Section 51.03(b)(6) or a Class A or B misdemeanor, other than

16-10    a misdemeanor involving the use or possession of a firearm, or for

16-11    delinquent conduct under Section 51.03(a)(2) or (3), the sanction

16-12    level is two;

16-13                (3)  for a misdemeanor involving the use or possession

16-14    of a firearm or for a state jail felony or a felony of the third

16-15    degree, the sanction level is three;

16-16                (4)  for a felony of the second degree, the sanction

16-17    level is four;

16-18                (5)  for a felony of the first degree, other than a

16-19    felony involving the use of a deadly weapon or causing serious

16-20    bodily injury, the sanction level is five;

16-21                (6)  for a felony of the first degree involving the use

16-22    of a deadly weapon or causing serious bodily injury or for an

16-23    aggravated controlled substance felony, the sanction level is six

16-24    or, if the petition has been approved by a grand jury under Section

16-25    53.045, seven; or

 17-1                (7)  for a capital felony, the sanction level is seven.

 17-2          SECTION 13.  This Act applies beginning with the 1997-1998

 17-3    school year.

 17-4          SECTION 14.  The importance of this legislation and the

 17-5    crowded condition of the calendars in both houses create an

 17-6    emergency and an imperative public necessity that the

 17-7    constitutional rule requiring bills to be read on three several

 17-8    days in each house be suspended, and this rule is hereby suspended,

 17-9    and that this Act take effect and be in force from and after its

17-10    passage, and it is so enacted.