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                                  * * * * *