1-1 By: Bivins S.B. No. 136
1-2 (In the Senate - Filed December 16, 1996; January 14, 1997,
1-3 read first time and referred to Committee on Jurisprudence;
1-4 January 22, 1997, rereferred to Committee on Education;
1-5 March 4, 1997, reported adversely, with favorable Committee
1-6 Substitute by the following vote: Yeas 10, Nays 0; March 4, 1997,
1-7 sent to printer.)
1-8 COMMITTEE SUBSTITUTE FOR S.B. No. 136 By: Bivins
1-9 A BILL TO BE ENTITLED
1-10 AN ACT
1-11 relating to placement of students expelled from public schools in
1-12 juvenile justice alternative education programs.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Subsection (a), Section 37.001, Education Code,
1-15 is amended to read as follows:
1-16 (a) Each school district shall, with the advice of its
1-17 district-level committee established under Section 11.251, [and
1-18 jointly, as appropriate, with the juvenile board of each county in
1-19 which the district is located,] adopt a student code of conduct for
1-20 the district. In addition to establishing standards for student
1-21 conduct, the student code of conduct must:
1-22 (1) specify the circumstances, in accordance with this
1-23 subchapter, under which a student may be removed from a classroom,
1-24 campus, or alternative education program;
1-25 (2) [outline the responsibilities of each juvenile
1-26 board concerning the establishment and operation of a juvenile
1-27 justice alternative education program under Section 37.011;]
1-28 [(3) define the conditions on payments from the
1-29 district to each juvenile board;]
1-30 [(4)] specify conditions that authorize or require a
1-31 principal or other appropriate administrator to transfer a student
1-32 to an alternative education program; and
1-33 (3) [(5)] outline conditions under which a student may
1-34 be suspended as provided by Section 37.005 or expelled as provided
1-35 by Section 37.007.
1-36 SECTION 2. Subsections (a) and (b), Section 37.006,
1-37 Education Code, are amended to read as follows:
1-38 (a) Except as provided by Section 37.007(a)(3) or (b), a
1-39 student shall be removed from class and placed in an alternative
1-40 education program as provided by Section 37.008 if the student
1-41 engages in conduct punishable as a felony, or commits the following
1-42 on school property or while attending a school-sponsored or
1-43 school-related activity on or off of school property:
1-44 (1) engages in conduct that contains the elements of
1-45 the offense of assault under Section 22.01(a)(1), Penal Code, or
1-46 terroristic threat under Section 22.07, Penal Code;
1-47 (2) sells, gives, or delivers to another person or
1-48 possesses or uses or is under the influence of:
1-49 (A) marihuana or a controlled substance, as
1-50 defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.
1-51 Section 801 et seq.; or
1-52 (B) a dangerous drug, as defined by Chapter 483,
1-53 Health and Safety Code;
1-54 (3) sells, gives, or delivers to another person an
1-55 alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage
1-56 Code, commits a serious act or offense while under the influence of
1-57 alcohol, or possesses, uses, or is under the influence of an
1-58 alcoholic beverage;
1-59 (4) engages in conduct that contains the elements of
1-60 an offense relating to abusable glue or aerosol paint under
1-61 Sections 485.031 through 485.035, Health and Safety Code, or
1-62 relating to volatile chemicals under Chapter 484, Health and Safety
1-63 Code; or
1-64 (5) engages in conduct that contains the elements of
2-1 the offense of public lewdness under Section 21.07, Penal Code, or
2-2 indecent exposure under Section 21.08, Penal Code.
2-3 (b) Except as provided by Section 37.007(d) [37.007(c)], a
2-4 student shall be removed from class and placed in an alternative
2-5 education program under Section 37.008 if the student engages in
2-6 conduct that contains the elements of the offense of retaliation
2-7 under Section 36.06, Penal Code, against any school employee.
2-8 SECTION 3. Section 37.007, Education Code, is amended to
2-9 read as follows:
2-10 Sec. 37.007. EXPULSION FOR SERIOUS OFFENSES. (a) A student
2-11 shall be expelled from a school if the student, on school property
2-12 or while attending a school-sponsored or school-related activity on
2-13 or off of school property:
2-14 (1) uses, exhibits, or possesses:
2-15 (A) a firearm as defined by Section 46.01(3),
2-16 Penal Code;
2-17 (B) an illegal knife as defined by Section
2-18 46.01(6), Penal Code, or by local policy;
2-19 (C) a club as defined by Section 46.01(1), Penal
2-20 Code; or
2-21 (D) a weapon listed as a prohibited weapon under
2-22 Section 46.05, Penal Code;
2-23 (2) engages in conduct that contains the elements of
2-24 the offense of:
2-25 (A) aggravated assault under Section 22.02,
2-26 Penal Code, sexual assault under Section 22.011, Penal Code, or
2-27 aggravated sexual assault under Section 22.021, Penal Code;
2-28 (B) arson under Section 28.02, Penal Code;
2-29 (C) murder under Section 19.02, Penal Code,
2-30 capital murder under Section 19.03, Penal Code, or criminal
2-31 attempt, under Section 15.01, Penal Code, to commit murder or
2-32 capital murder;
2-33 (D) indecency with a child under Section 21.11,
2-34 Penal Code; or
2-35 (E) aggravated kidnapping under Section 20.04,
2-36 Penal Code; or
2-37 (3) engages in conduct specified by Section
2-38 37.006(a)(2) or (3), if the conduct is punishable as a felony.
2-39 (b) A student may be expelled if the student, while on
2-40 school property or while attending a school-sponsored or
2-41 school-related activity on or off of school property:
2-42 (1) sells, gives, or delivers to another person or
2-43 possesses, uses, or is under the influence of any amount of:
2-44 (A) marihuana or a controlled substance, as
2-45 defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.
2-46 Section 801 et seq.;
2-47 (B) a dangerous drug, as defined by Chapter 483,
2-48 Health and Safety Code; or
2-49 (C) an alcoholic beverage, as defined by Section
2-50 1.04, Alcoholic Beverage Code; or
2-51 (2) engages in conduct that contains the elements of
2-52 an offense relating to abusable glue or aerosol paint under
2-53 Sections 485.031 through 485.035, Health and Safety Code, or
2-54 relating to volatile chemicals under Chapter 484, Health and Safety
2-55 Code.
2-56 (c) A student may be expelled if the student, after being
2-57 placed in an alternative education program for disciplinary
2-58 reasons, continues to engage in serious or persistent misbehavior
2-59 that violates the district's student code of conduct.
2-60 (d) [(c)] A student shall be expelled if the student engages
2-61 in conduct that contains the elements of any offense listed in
2-62 Subsection (a) against any employee in retaliation for or as a
2-63 result of the employee's employment with a school district.
2-64 (e) [(d)] In accordance with federal law, a local
2-65 educational agency, including a school district, home-rule school
2-66 district, or open-enrollment charter school, shall expel a student
2-67 who brings a firearm, as defined by 18 U.S.C. Section 921, to
2-68 school. The student must be expelled from the student's regular
2-69 campus for a period of at least one year, except that:
3-1 (1) the superintendent or other chief administrative
3-2 officer of the school district or of the other local educational
3-3 agency, as defined by 20 U.S.C. Section 2891, may modify the length
3-4 of the expulsion in the case of an individual student; and
3-5 (2) the district or other local educational agency may
3-6 provide educational services to the expelled student in an
3-7 alternative education program as provided by Section 37.008.
3-8 (f) [(e)] Each school district shall report to the agency
3-9 the number of students expelled under Subsection (e) [(d)] each
3-10 year, the names of the schools from which the students are
3-11 expelled, and the types of weapons involved.
3-12 (g) [(f)] A student who engages in conduct that contains the
3-13 elements of the offense of criminal mischief under Section 28.03,
3-14 Penal Code, may be expelled at the district's discretion if the
3-15 conduct is punishable as a felony under that section. The student
3-16 shall be referred to the authorized officer of the juvenile court
3-17 regardless of whether the student is expelled.
3-18 (h) [(g)] A school district shall inform each teacher of the
3-19 conduct of a student who has engaged in any violation listed in
3-20 this section. A teacher shall keep the information received in
3-21 this subsection confidential. The State Board for Educator
3-22 Certification may revoke or suspend the certification of a teacher
3-23 who intentionally violates this subsection.
3-24 SECTION 4. Subsections (a), (b), and (f), Section 37.010,
3-25 Education Code, are amended to read as follows:
3-26 (a) Not later than the second business day after the date a
3-27 hearing is held under Section 37.009, the board of trustees of a
3-28 school district or the board's designee shall deliver a copy of the
3-29 order placing a student in an alternative education program under
3-30 Section 37.006 or expelling a student under Section 37.007 and any
3-31 information required under Section 52.04, Family Code, to the
3-32 authorized officer of the juvenile court in the county in which the
3-33 student resides. In compliance with compulsory school attendance
3-34 requirements under Section 25.085 and the memorandum of
3-35 understanding between the school district and the juvenile board in
3-36 a county that operates a program under Section 37.011, an expelled
3-37 student shall immediately attend the educational program as
3-38 provided by law or by the memorandum of understanding from the date
3-39 of expulsion; provided, however, that every expelled student who is
3-40 not detained or receiving treatment under an order of the juvenile
3-41 court must be enrolled in an educational program. [Except as
3-42 provided by Subsection (b), the officer may determine whether:]
3-43 [(1) a petition should be filed alleging that the
3-44 student is in need of supervision or has engaged in delinquent
3-45 conduct; or]
3-46 [(2) the student should be referred to an appropriate
3-47 state agency.]
3-48 (b) If a student is expelled under Section 37.007(c)
3-49 [37.007(b)], the board or its designee shall refer the student to
3-50 the authorized officer of the juvenile court for appropriate
3-51 proceedings under Title 3, Family Code.
3-52 (f) If a student is expelled under Section 37.007, on the
3-53 recommendation of the committee established under Section 37.003 or
3-54 on its own initiative, a district may readmit the student while the
3-55 student is completing any court disposition requirements the court
3-56 imposes. After the student has successfully completed any court
3-57 disposition requirements the court imposes, including conditions of
3-58 a deferred prosecution ordered by the court, or such conditions
3-59 required by the prosecutor or probation department, if the student
3-60 meets the requirements for admission into the public schools
3-61 established by this title, a district may not refuse to admit the
3-62 student, but the district may place the student in the alternative
3-63 education program. Notwithstanding Section 37.002(d), the student
3-64 may not be returned to the classroom of the teacher under whose
3-65 supervision the offense occurred without that teacher's consent.
3-66 The teacher may not be coerced to consent.
3-67 SECTION 5. Section 37.011, Education Code, is amended by
3-68 amending Subsection (b) and adding Subsections (k), (l), and (m) to
3-69 read as follows:
4-1 (b) If a student is expelled from school under [found to
4-2 have engaged in conduct described by] Section 37.007 [and the
4-3 student is found by a juvenile court to have engaged in delinquent
4-4 conduct under Title 3, Family Code], unless otherwise agreed in the
4-5 memorandum of understanding required under this section, the
4-6 juvenile court shall:
4-7 (1) if the student is placed on probation under
4-8 Section 54.04, Family Code, order the student to attend [require]
4-9 the juvenile justice alternative education program in the county in
4-10 which the student resides from the date of disposition as a
4-11 condition of probation, unless the child is placed in a
4-12 post-adjudication treatment facility [conduct occurred to provide
4-13 educational services to the student]; [and]
4-14 (2) if the student is placed on deferred prosecution
4-15 under Section 53.03, Family Code, by the court, prosecutor, or
4-16 probation department, require [order] the student to immediately
4-17 attend the juvenile justice alternative education program in the
4-18 county in which the student resides for a period not to exceed six
4-19 months as a condition of the deferred prosecution; and
4-20 (3) in determining the conditions of the deferred
4-21 prosecution or court ordered probation, consider the length of the
4-22 school district's expulsion order for the student [from the date of
4-23 adjudication].
4-24 (k) Each school district in a county with a population
4-25 greater than 125,000 and the county juvenile board shall annually
4-26 enter into a joint memorandum of understanding that:
4-27 (1) outlines the responsibilities of the juvenile
4-28 board concerning the establishment and operation of a juvenile
4-29 justice alternative education program under this section;
4-30 (2) defines the amount and conditions on payments from
4-31 the school district to the juvenile board for all students of the
4-32 school district served in the juvenile justice alternative
4-33 education program;
4-34 (3) identifies those categories of conduct that the
4-35 school district has defined in its student code of conduct as
4-36 constituting serious or persistent misbehavior for which a student
4-37 may be placed in the juvenile justice alternative education
4-38 program;
4-39 (4) identifies and requires a timely placement and
4-40 specifies a term of placement for expelled students for whom the
4-41 school district has received a notice under Section 52.041(d),
4-42 Family Code;
4-43 (5) establishes services for the transitioning of
4-44 expelled students to the school district prior to the completion of
4-45 the student's placement in the juvenile justice alternative
4-46 education program;
4-47 (6) establishes a plan that provides transportation
4-48 services for students placed in the juvenile justice alternative
4-49 education program; and
4-50 (7) establishes the circumstances and conditions under
4-51 which a juvenile may be allowed to remain in the juvenile justice
4-52 alternative education program setting once the juvenile is no
4-53 longer under juvenile court jurisdiction.
4-54 (l) The school district shall be responsible for providing
4-55 an immediate educational program to students who engage in serious
4-56 or persistent misbehavior as defined in the school district's
4-57 student code of conduct but who are not eligible for admission into
4-58 the juvenile justice alternative education program in accordance
4-59 with the memorandum of understanding required under this section.
4-60 The memorandum of understanding shall address the circumstances
4-61 under which such students who continue to engage in serious or
4-62 persistent misbehavior shall be admitted into the juvenile justice
4-63 alternative education program.
4-64 (m) Each school district in a county with a population
4-65 greater than 125,000 and the county juvenile board shall adopt a
4-66 joint memorandum of understanding as required by this section not
4-67 later than September 1 of each school year. If a school district
4-68 and the juvenile board are unable to reach an agreement for
4-69 adoption of the memorandum of understanding required under this
5-1 section, the issues of dispute between the school district and
5-2 juvenile board shall be referred to a binding arbitration process
5-3 which utilizes a qualified alternate dispute resolution arbitrator.
5-4 Each party must submit its best final proposal to the arbitrator,
5-5 who shall select between the two proposals. The parties shall
5-6 equally share the costs of the arbitration.
5-7 SECTION 6. Subsection (a), Section 37.012, Education Code,
5-8 is amended to read as follows:
5-9 (a) The school district in which a student is enrolled on
5-10 the date a juvenile court orders the student to attend a juvenile
5-11 justice alternative education program shall transfer to the
5-12 juvenile board in charge of the juvenile justice alternative
5-13 education program for the portion of the school year for which the
5-14 juvenile justice alternative education program provides educational
5-15 services funds in an amount determined by the memorandum of
5-16 understanding under Section 37.011(k)(2) [equal to the district's
5-17 average per student expenditure in alternative education programs
5-18 under Section 37.008].
5-19 SECTION 7. Subchapter A, Chapter 37, Education Code, is
5-20 amended by adding Section 37.020 to read as follows:
5-21 Sec. 37.020. REPORT OF EXPULSIONS. Each school district
5-22 shall report all expulsions under this subchapter to the
5-23 commissioner in the manner required by the commissioner.
5-24 SECTION 8. Subsection (b), Section 51.03, Family Code, is
5-25 amended to read as follows:
5-26 (b) Conduct indicating a need for supervision is:
5-27 (1) subject to Subsection (f) of this section,
5-28 conduct, other than a traffic offense, that violates:
5-29 (A) the penal laws of this state of the grade of
5-30 misdemeanor that are punishable by fine only; or
5-31 (B) the penal ordinances of any political
5-32 subdivision of this state;
5-33 (2) the unexcused voluntary absence of a child on 10
5-34 or more days or parts of days within a six-month period or three or
5-35 more days or parts of days within a four-week period from school
5-36 without the consent of his parents;
5-37 (3) the voluntary absence of a child from his home
5-38 without the consent of his parent or guardian for a substantial
5-39 length of time or without intent to return;
5-40 (4) conduct which violates the laws of this state
5-41 prohibiting driving while intoxicated or under the influence of
5-42 intoxicating liquor (first or second offense) or driving while
5-43 under the influence of any narcotic drug or of any other drug to a
5-44 degree which renders him incapable of safely driving a vehicle
5-45 (first or second offense);
5-46 (5) conduct prohibited by city ordinance or by state
5-47 law involving the inhalation of the fumes or vapors of paint and
5-48 other protective coatings or glue and other adhesives and the
5-49 volatile chemicals itemized in Section 484.002, Health and Safety
5-50 Code;
5-51 (6) an act that violates a school district's
5-52 previously communicated written standards of student conduct for
5-53 which the child has been expelled under Section 37.007(b)
5-54 [21.3011], Education Code; or
5-55 (7) conduct that violates a reasonable and lawful
5-56 order of a court entered under Section 264.305.
5-57 SECTION 9. Section 52.041, Family Code, is amended by adding
5-58 Subsections (c), (d), and (e) to read as follows:
5-59 (c) Within five working days of receipt of an expulsion
5-60 notice under this section by the office or official designated by
5-61 the juvenile court, a preliminary investigation and determination
5-62 shall be conducted as required by Section 53.01.
5-63 (d) The office or official designated by the juvenile court
5-64 shall within two working days notify the school district that
5-65 expelled the child if:
5-66 (1) a determination was made under Section 53.01 that
5-67 the person referred to juvenile court was not a child within the
5-68 meaning of this title;
5-69 (2) a determination was made that no probable cause
6-1 existed to believe the child engaged in delinquent conduct or
6-2 conduct indicating a need for supervision;
6-3 (3) no deferred prosecution or formal court
6-4 proceedings have been or will be initiated involving the child;
6-5 (4) the court or jury finds that the child did not
6-6 engage in delinquent conduct or conduct indicating a need for
6-7 supervision and the case has been dismissed with prejudice; or
6-8 (5) the child was adjudicated but no disposition was
6-9 or will be ordered by the court.
6-10 (e) In any county where a juvenile justice alternative
6-11 education program is operated, no student shall be expelled without
6-12 written notification by the board of the school district or its
6-13 designated agent to the juvenile board's designated representative.
6-14 The notification shall be made not later than two business days
6-15 following the board's determination that the student is to be
6-16 expelled. Failure to timely notify the designated representative
6-17 of the juvenile board shall result in the child's duty to continue
6-18 attending the school district's educational program, which shall be
6-19 provided to that child until such time as the notification to the
6-20 juvenile board's designated representative is properly made.
6-21 SECTION 10. Section 53.02, Family Code, is amended by adding
6-22 Subsection (e) to read as follows:
6-23 (e) In a county with a population greater than 125,000, if a
6-24 child being released under this section is expelled under Section
6-25 37.007, Education Code, the release shall be conditioned on the
6-26 child's attending a juvenile justice alternative education program
6-27 pending a deferred prosecution or formal court disposition of the
6-28 child's case.
6-29 SECTION 11. Subsection (f), Section 54.01, Family Code, is
6-30 amended to read as follows:
6-31 (f) A release may be conditioned on requirements reasonably
6-32 necessary to insure the child's appearance at later proceedings,
6-33 but the conditions of the release must be in writing and a copy
6-34 furnished to the child. In a county with a population greater than
6-35 125,000, if a child being released under this section is expelled
6-36 under Section 37.007, Education Code, the release shall be
6-37 conditioned on the child's attending a juvenile justice alternative
6-38 education program pending a deferred prosecution or formal court
6-39 disposition of the child's case.
6-40 SECTION 12. Subsection (a), Section 59.003, Family Code, is
6-41 amended to read as follows:
6-42 (a) Subject to Subsection (e), after a child's first
6-43 commission of delinquent conduct or conduct indicating a need for
6-44 supervision, the probation department may or the juvenile court
6-45 may, in a disposition hearing under Section 54.04, assign a child
6-46 one of the following sanction levels according to the child's
6-47 conduct:
6-48 (1) for conduct indicating a need for supervision,
6-49 other than conduct described in Section 51.03(b)(6) or a Class A or
6-50 B misdemeanor, the sanction level is one;
6-51 (2) for conduct indicating a need for supervision
6-52 under Section 51.03(b)(6) or a Class A or B misdemeanor, other than
6-53 a misdemeanor involving the use or possession of a firearm, or for
6-54 delinquent conduct under Section 51.03(a)(2) or (3), the sanction
6-55 level is two;
6-56 (3) for a misdemeanor involving the use or possession
6-57 of a firearm or for a state jail felony or a felony of the third
6-58 degree, the sanction level is three;
6-59 (4) for a felony of the second degree, the sanction
6-60 level is four;
6-61 (5) for a felony of the first degree, other than a
6-62 felony involving the use of a deadly weapon or causing serious
6-63 bodily injury, the sanction level is five;
6-64 (6) for a felony of the first degree involving the use
6-65 of a deadly weapon or causing serious bodily injury or for an
6-66 aggravated controlled substance felony, the sanction level is six
6-67 or, if the petition has been approved by a grand jury under Section
6-68 53.045, seven; or
6-69 (7) for a capital felony, the sanction level is seven.
7-1 SECTION 13. This Act applies beginning with the 1997-1998
7-2 school year.
7-3 SECTION 14. The importance of this legislation and the
7-4 crowded condition of the calendars in both houses create an
7-5 emergency and an imperative public necessity that the
7-6 constitutional rule requiring bills to be read on three several
7-7 days in each house be suspended, and this rule is hereby suspended,
7-8 and that this Act take effect and be in force from and after its
7-9 passage, and it is so enacted.
7-10 * * * * *