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.