78R7299 KKA-F

By:  Janek                                                        S.B. No. 1548


A BILL TO BE ENTITLED
AN ACT
relating to alternative education programs and juvenile justice alternative education programs for public school students. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 37.001(a), Education Code, is amended to read as follows: (a) The board of trustees of an independent school district shall, with the advice of its district-level committee established under Section 11.251, adopt a student code of conduct for the district. The student code of conduct must be posted and prominently displayed at each school campus or made available for review at the office of the campus principal. In addition to establishing standards for student conduct, the student code of conduct must: (1) specify the circumstances, in accordance with this subchapter, under which a student may be removed from a classroom, campus, or alternative education program; (2) specify conditions that authorize or require a principal or other appropriate administrator to transfer a student to an alternative education program; and (3) outline conditions under which a student may be suspended as provided by Section 37.005 or expelled as provided by Section 37.007. SECTION 2. The heading to Section 37.0021, Education Code, is amended to read as follows: Sec. 37.0021. USE OF CONFINEMENT, RESTRAINT, SECLUSION, AND TIME-OUT FOR STUDENT WITH DISABILITY. SECTION 3. Section 37.0021, Education Code, is amended by amending Subsections (a)-(d) and adding Subsections (d-1) and (g) to read as follows: (a) It is the policy of this state to treat with dignity and respect all students with disabilities who receive special education services [with dignity and respect]. A student with a disability who receives special education services may not be confined in a locked box, locked closet, or other specially designed locked space as either a discipline management practice or a behavior management technique. (b) In this section: (1) "Restraint" means the use of physical force or a mechanical device to restrict the free movement of all or a portion of a student's body. (2) "Seclusion" means a behavior management technique in which a student is confined in a locked box, locked closet, or locked room that: (A) is designed solely to seclude a person; and (B) contains less than 50 square feet of space. (3) "Time-out" means a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting[: [(A)] that is not locked[; and [(B) from which the student is not physically prevented from leaving]. (c) A school district employee or volunteer or an independent contractor of a district may not place [a student] in seclusion a student with a disability who receives special education services. This subsection does not apply to the use of seclusion in a court-ordered placement or in a placement or facility to which the following law, rules, or regulations apply: (1) the Children's Health Act of 2000, Pub. L. No. 106-310, any subsequent amendments to that Act, any regulations adopted under that Act, or any subsequent amendments to those regulations; (2) 40 T.A.C. Sections 720.1001-720.1013; or (3) 25 T.A.C. Section 412.308(e). (d) The commissioner by rule shall adopt procedures for the use of restraint and time-out by a school district employee or volunteer or an independent contractor of a district in the case of a student with a disability receiving special education services [under Subchapter A, Chapter 29]. The procedures must impose reasonable documentation and reporting requirements regarding use of restraint and time-out and must allow a parent or guardian to waive in writing any reporting requirement that otherwise entitles the parent or guardian to notice of the use of restraint or time-out. Additionally, each [A] procedure adopted under this subsection must: (1) be consistent with: (A) professionally accepted practices and standards of student discipline and techniques for behavior management; and (B) relevant health and safety standards; and (2) identify any discipline management practice or behavior management technique that requires a district employee or volunteer or an independent contractor of a district to be trained before using that practice or technique. (d-1) Subsection (d) and any rules or procedures adopted under that subsection do not: (1) preclude a school district employee, volunteer, or other agent or an independent contractor of a district from using reasonable force in self-defense or to protect students or other persons from assault or other imminent, serious physical harm; or (2) apply to restraint or time-out administered in accordance with a student's individualized education program developed under Section 29.005 if the student's parent or guardian agrees to the provisions in the individualized education program that address the role, manner, and use of restraint and time-out. (g) This section and any rules or procedures adopted under this section do not apply to: (1) law enforcement personnel; (2) school security personnel; or (3) an educational services provider with whom a student is placed by a judicial authority. SECTION 4. Section 37.003, Education Code, is amended by adding Subsection (c) to read as follows: (c) The committee's placement determination regarding a student with a disability who receives special education services is subject to the requirements of the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.) and federal regulations, state statutes, and agency requirements necessary to carry out federal law or regulations or state law relating to special education. SECTION 5. Section 37.005(a), Education Code, is amended to read as follows: (a) The principal or other appropriate administrator may suspend a student for any [who engages in] conduct identified in the student code of conduct adopted under Section 37.001 as conduct for which a student may be suspended [for which the student may be placed in an alternative education program under this subchapter]. SECTION 6. Sections 37.006(a)-(d) and (l), Education Code, are amended to read as follows: (a) Except as provided by Section 37.007(a)(3) or (b), a student shall be removed from class and placed in an alternative education program as provided by Section 37.008 if the student: (1) engages in conduct involving a public school that contains the elements of the offense of false alarm or report under Section 42.06, Penal Code, or terroristic threat under Section 22.07, Penal Code; or (2) commits the following on or within 300 feet of school property, as measured from any point on the school's real property boundary line, or while at a school bus stop or while attending a school-sponsored or school-related activity on or off of school property: (A) engages in conduct punishable as a felony; (B) engages in conduct that contains the elements of the offense of assault under Section 22.01(a)(1), Penal Code; (C) sells, gives, or delivers to another person or possesses or uses or is under the influence of: (i) marihuana or a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq.; or (ii) a dangerous drug, as defined by Chapter 483, Health and Safety Code; (D) sells, gives, or delivers to another person an alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code, commits a serious act or offense while under the influence of alcohol, or possesses, uses, or is under the influence of an alcoholic beverage; (E) engages in conduct that contains the elements of an offense relating to an abusable volatile chemical [glue or aerosol paint] under Sections 485.031 through 485.034 [485.035], Health and Safety Code[, or relating to volatile chemicals under Chapter 484, Health and Safety Code]; or (F) engages in conduct that contains the elements of the offense of public lewdness under Section 21.07, Penal Code, or indecent exposure under Section 21.08, Penal Code. (b) Except as provided by Section 37.007(d), a student shall be removed from class and placed in an alternative education program under Section 37.008 if the student engages in conduct on or off of school property that contains the elements of the offense of retaliation under Section 36.06, Penal Code, against any school employee. (c) In addition to Subsections [Subsection] (a) and (b), a student shall be removed from class and placed in an alternative education program under Section 37.008 based on conduct occurring off campus and while the student is not in attendance at a school-sponsored or school-related activity if: (1) the student receives deferred prosecution under Section 53.03, Family Code, for conduct defined as a felony offense in Title 5, Penal Code; (2) a court or jury finds that the student has engaged in delinquent conduct under Section 54.03, Family Code, for conduct defined as a felony offense in Title 5, Penal Code; or (3) the superintendent or the superintendent's designee has a reasonable belief that the student has engaged in a conduct defined as a felony offense in Title 5, Penal Code. (d) In addition to Subsections [Subsection] (a), (b), and (c), a student may be removed from class and placed in an alternative education program under Section 37.008 based on conduct occurring off campus and while the student is not in attendance at a school-sponsored or school-related activity if: (1) the superintendent or the superintendent's designee has a reasonable belief that the student has engaged in conduct defined as a felony offense other than those defined in Title 5, Penal Code; and (2) the continued presence of the student in the regular classroom threatens the safety of other students or teachers or will be detrimental to the educational process. (l) Notwithstanding any other provision of this code, other than Section 37.007(e)(2), a student who is younger than six years of age may not be removed from class and placed in an alternative education program. SECTION 7. Sections 37.007(a), (b), and (g), Education Code, are amended to read as follows: (a) A student shall be expelled from a school if the student, on or within 300 feet of school property, as measured from any point on the school's real property boundary line, or while at a school bus stop or while attending a school-sponsored or school-related activity on or off of school property: (1) uses, exhibits, or possesses: (A) a firearm as defined by Section 46.01(3), Penal Code; (B) an illegal knife as defined by Section 46.01(6), Penal Code, or by local policy; (C) a club as defined by Section 46.01(1), Penal Code; or (D) a weapon listed as a prohibited weapon under Section 46.05, Penal Code; (2) engages in conduct that contains the elements of the offense of: (A) aggravated assault under Section 22.02, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code; (B) arson under Section 28.02, Penal Code; (C) murder under Section 19.02, Penal Code, capital murder under Section 19.03, Penal Code, or criminal attempt, under Section 15.01, Penal Code, to commit murder or capital murder; (D) indecency with a child under Section 21.11, Penal Code; [or] (E) aggravated kidnapping under Section 20.04, Penal Code; (F) manslaughter under Section 19.04, Penal Code; or (G) criminally negligent homicide under Section 19.05, Penal Code; or (3) engages in conduct specified by Section 37.006(a)(2)(C) or (D), if the conduct is punishable as a felony. (b) A student may be expelled if the student: (1) engages in conduct involving a public school that contains the elements of the offense of false alarm or report under Section 42.06, Penal Code, or terroristic threat under Section 22.07, Penal Code; or (2) while on or within 300 feet of school property, as measured from any point on the school's real property boundary line, or while at a school bus stop or while attending a school-sponsored or school-related activity on or off of school property: (A) sells, gives, or delivers to another person or possesses, uses, or is under the influence of any amount of: (i) marihuana or a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq.; (ii) a dangerous drug, as defined by Chapter 483, Health and Safety Code; or (iii) an alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code; (B) engages in conduct that contains the elements of an offense relating to an abusable volatile chemical [glue or aerosol paint] under Sections 485.031 through 485.034 [485.035], Health and Safety Code[, or relating to volatile chemicals under Chapter 484, Health and Safety Code]; [or] (C) engages in conduct that contains the elements of an offense under Section 22.01(a)(1), Penal Code, against a school district employee or a volunteer as defined by Section 22.053; or (D) engages in conduct that contains the elements of the offense of deadly conduct under Section 22.05, Penal Code. (g) A school district shall inform each teacher who has regular contact with a student through a classroom assignment of the conduct of a student who has engaged in any violation listed in this section. A teacher shall keep the information received in this subsection confidential. The State Board for Educator Certification may revoke or suspend the certification of a teacher who intentionally violates this subsection. SECTION 8. Section 37.009(a), Education Code, is amended to read as follows: (a) Not later than the third class day after the day on which a student is removed from class by the teacher under Section 37.002(b) or (d) or by the school principal or other appropriate administrator under Section 37.006, the principal or other appropriate administrator shall schedule a conference among the principal or other appropriate administrator, a parent or guardian of the student, the teacher removing the student from class, if any, and the student. At the conference, the student is entitled to written or oral notice of the reasons for the removal, an explanation of the basis for the removal, and an opportunity to respond to the reasons for the removal. The student may not be returned to the regular classroom pending the conference. Following the conference, and whether or not each requested person is in attendance after valid attempts to require the person's attendance, the principal shall order the placement of the student as provided by Section 37.002 or 37.006, as applicable, for a period consistent with the student code of conduct. If school district policy allows a student to appeal to the board of trustees or the board's designee a decision of the principal or other appropriate administrator, other than an expulsion under Section 37.007, the decision of the board or the board's designee is final and may not be appealed. SECTION 9. Section 37.011, Education Code, is amended by amending Subsection (b) and adding Subsection (b-1) to read as follows: (b) If a student admitted into the public schools of a school district under Section 25.001(b) is expelled from school under Section 37.007(a), (d), or (e), the juvenile court, the juvenile board, or the juvenile board's designee, as appropriate, shall: (1) if the student is placed on probation under Section 54.04, Family Code, order the student to attend the juvenile justice alternative education program in the county in which the student resides from the date of disposition as a condition of probation, unless the child is placed in a post-adjudication treatment facility; (2) if the student is placed on deferred prosecution under Section 53.03, Family Code, by the court, prosecutor, or probation department, require the student to immediately attend the juvenile justice alternative education program in the county in which the student resides for a period not to exceed six months as a condition of the deferred prosecution; [and] (3) in determining the conditions of the deferred prosecution or court-ordered probation, consider the length of the school district's expulsion order for the student; and (4) provide educational services to the student in the juvenile justice alternative education program in the county in which the student resides. (b-1) For purposes of this chapter, a juvenile court or juvenile board, as appropriate, has jurisdiction and authority over each student, regardless of age, who is placed in a juvenile justice alternative education program. SECTION 10. Section 37.001(b), Education Code, is repealed. SECTION 11. This Act applies beginning with the 2003-2004 school year. SECTION 12. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2003.