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.