By: Hughes, Creighton S.B. No. 1072
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to local school health advisory councils and instruction
  regarding human sexuality, sexual orientation, and gender identity
  provided by public schools.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 12.104(b), Education Code, as amended by
  Chapters 542 (S.B. 168), 887 (S.B. 1697), 915 (H.B. 3607), 974 (S.B.
  2081), and 1046 (S.B. 1365), Acts of the 87th Legislature, Regular
  Session, 2021, is reenacted and amended to read as follows:
         (b)  An open-enrollment charter school is subject to:
               (1)  a provision of this title establishing a criminal
  offense;
               (2)  the provisions in Chapter 554, Government Code;
  and
               (3)  a prohibition, restriction, or requirement, as
  applicable, imposed by this title or a rule adopted under this
  title, relating to:
                     (A)  the Public Education Information Management
  System (PEIMS) to the extent necessary to monitor compliance with
  this subchapter as determined by the commissioner;
                     (B)  criminal history records under Subchapter C,
  Chapter 22;
                     (C)  reading instruments and accelerated reading
  instruction programs under Section 28.006;
                     (D)  accelerated instruction under Section
  28.0211;
                     (E)  high school graduation requirements under
  Section 28.025;
                     (F)  special education programs under Subchapter
  A, Chapter 29;
                     (G)  bilingual education under Subchapter B,
  Chapter 29;
                     (H)  prekindergarten programs under Subchapter E
  or E-1, Chapter 29, except class size limits for prekindergarten
  classes imposed under Section 25.112, which do not apply;
                     (I)  extracurricular activities under Section
  33.081;
                     (J)  discipline management practices or behavior
  management techniques under Section 37.0021;
                     (K)  health and safety under Chapter 38;
                     (L)  the provisions of Subchapter A, Chapter 39;
                     (M)  public school accountability and special
  investigations under Subchapters A, B, C, D, F, G, and J, Chapter
  39, and Chapter 39A;
                     (N)  the requirement under Section 21.006 to
  report an educator's misconduct;
                     (O)  intensive programs of instruction under
  Section 28.0213;
                     (P)  the right of a school employee to report a
  crime, as provided by Section 37.148;
                     (Q)  bullying prevention policies and procedures
  under Section 37.0832;
                     (R)  the right of a school under Section 37.0052
  to place a student who has engaged in certain bullying behavior in a
  disciplinary alternative education program or to expel the student;
                     (S)  the right under Section 37.0151 to report to
  local law enforcement certain conduct constituting assault or
  harassment;
                     (T)  a parent's right to information regarding the
  provision of assistance for learning difficulties to the parent's
  child as provided by Sections 26.004(b)(11) and 26.0081(c) and (d);
                     (U)  establishment of residency under Section
  25.001;
                     (V)  school safety requirements under Sections
  37.108, 37.1081, 37.1082, 37.109, 37.113, 37.114, 37.1141, 37.115,
  37.207, and 37.2071;
                     (W)  the early childhood literacy and mathematics
  proficiency plans under Section 11.185;
                     (X)  the college, career, and military readiness
  plans under Section 11.186; [and]
                     (Y) [(X)]  parental options to retain a student
  under Section 28.02124; and
                     (Z)  establishing a local school health advisory
  council in which members are appointed by the governing body of the
  school and health education instruction complies with Section
  28.004.
         SECTION 2.  Section 12A.004(a), Education Code, is amended
  to read as follows:
         (a)  A local innovation plan may not provide for the
  exemption of a district designated as a district of innovation from
  the following provisions of this title:
               (1)  a state or federal requirement applicable to an
  open-enrollment charter school operating under Subchapter D,
  Chapter 12;
               (2)  Subchapters A, C, D, and E, Chapter 11, except that
  a district may be exempt from Sections 11.1511(b)(5) and (14) and
  Section 11.162;
               (3)  state curriculum and graduation requirements
  adopted under Chapter 28; [and]
               (4)  Section 28.004; and
               (5)  academic and financial accountability and
  sanctions under Chapters 39 and 39A.
         SECTION 3.  Section 28.004, Education Code, is amended by
  amending Subsection (c) and adding Subsections (r), (s), (t), (u),
  and (v) to read as follows:
         (c)  The local school health advisory council's duties
  include recommending:
               (1)  the number of hours of instruction to be provided
  in:
                     (A)  health education in kindergarten through
  grade eight; and
                     (B)  if the school district requires health
  education for high school graduation, health education, including
  physical health education and mental health education, in grades 9
  through 12;
               (2)  policies, procedures, strategies, and curriculum
  appropriate for specific grade levels designed to prevent physical
  health concerns, including obesity, cardiovascular disease, Type 2
  diabetes, and mental health concerns, including suicide, through
  coordination of:
                     (A)  health education, which must address
  physical health concerns and mental health concerns to ensure the
  integration of physical health education and mental health
  education;
                     (B)  physical education and physical activity;
                     (C)  nutrition services;
                     (D)  parental involvement;
                     (E)  instruction on substance abuse prevention;
                     (F)  school health services, including mental
  health services;
                     (G)  a comprehensive school counseling program
  under Section 33.005;
                     (H)  a safe and healthy school environment; and
                     (I)  school employee wellness;
               (3)  appropriate grade levels and methods of
  instruction for human sexuality instruction;
               (4)  strategies for integrating the curriculum
  components specified by Subdivision (2) with the following elements
  in a coordinated school health program for the district:
                     (A)  school health services, including physical
  health services and mental health services, if provided at a campus
  by the district or by a third party under a contract with the
  district;
                     (B)  a comprehensive school counseling program
  under Section 33.005;
                     (C)  a safe and healthy school environment; and
                     (D)  school employee wellness;
               (5)  if feasible, joint use agreements or strategies
  for collaboration between the school district and community
  organizations or agencies;
               (6)  strategies to increase parental awareness
  regarding:
                     (A)  risky behaviors and early warning signs of
  suicide risks and behavioral health concerns, including mental
  health disorders and substance use disorders; and
                     (B)  available community programs and services
  that address risky behaviors, suicide risks, and behavioral health
  concerns;
               (7)  appropriate grade levels and curriculum for
  instruction regarding opioid addiction and abuse and methods of
  administering an opioid antagonist, as defined by Section 483.101,
  Health and Safety Code; [and]
               (8)  appropriate grade levels and curriculum for
  instruction regarding child abuse, family violence, dating
  violence, and sex trafficking, including likely warning signs that
  a child may be at risk for sex trafficking, provided that the local
  school health advisory council's recommendations under this
  subdivision do not conflict with the essential knowledge and skills
  developed by the State Board of Education under this subchapter;
  and
               (9)  the communication policy described by Subsection
  (r) for approval by the board of trustees of the school district.
         (r)  Subject to the restriction imposed by Section 28.0043
  and using the procedure described by Subsection (e-1), the board of
  trustees shall adopt a written policy regarding communication
  outside of a course dedicated to human sexuality instruction
  between a school employee and a student enrolled in the district
  concerning topics included in the reproductive and sexual health
  curriculum.  The policy must:
               (1)  direct school employees to refer students to
  discuss topics included in the reproductive and sexual health
  curriculum with the student's parent, a school counselor, or, if
  applicable, the student's teacher responsible for teaching
  materials related to human sexuality instruction;
               (2)  inform school employees regarding appropriate
  boundaries related to communicating with students; and
               (3)  include provisions designed to prevent improper
  communication between school employees and students.
         (s)  A school district shall make the policy adopted under
  Subsection (r) available in the same manner as curriculum materials
  under Subsection (j)(1).
         (t)  A school district may not host an extracurricular
  activity related to human sexuality unless the board of trustees
  has adopted a written policy, subject to the restriction imposed by
  Section 28.0043 and using the procedure described by Subsection
  (e-1), specifying the circumstances in which the district may host
  an extracurricular activity related to human sexuality.
         (u)  For purposes of adopting a communication policy under
  this section, "communication" includes any verbal or written
  communication conducted in person or facilitated through the use of
  an electronic device, including communication conducted through a
  telephone, including a cellular telephone, a computer, a computer
  network, personal data assistance, a pager, e-mail, text message,
  instant message, a social media application, or an Internet
  website.
         (v)  If the attorney general or an appropriate district or
  county attorney believes that a school district has violated or is
  violating the provisions of this section, the attorney general or
  district or county attorney may bring a cause of action on behalf of
  the state to enjoin the district from violating the provisions of
  this section.  The action may be brought in a district court in
  Travis County or a county in which any part of the violation or
  threatened violation occurred. The court may grant any prohibitory
  or mandatory relief warranted by the facts, including a temporary
  restraining order, temporary injunction, or permanent injunction.
         SECTION 4.  Subchapter A, Chapter 28, Education Code, is
  amended by adding Section 28.0043 to read as follows:
         Sec. 28.0043.  RESTRICTION ON INSTRUCTION REGARDING SEXUAL
  ORIENTATION AND GENDER IDENTITY. (a)  A school district,
  open-enrollment charter school, or district or charter school
  employee may not provide or allow a third party to provide
  instruction, guidance, activities, or programming regarding sexual
  orientation or gender identity to students enrolled in
  prekindergarten through 12th grade.
         (b)  This section may not be construed to limit:
               (1)  a student's ability to engage in speech or
  expressive conduct protected by the First Amendment to the United
  States Constitution or by Section 8, Article I, Texas Constitution,
  that does not result in material disruption to school activities;
  or
               (2)  the ability of a person who is authorized by the
  district to provide physical or mental health-related services to
  provide the services to a student, subject to any required parental
  consent.
         SECTION 5.  Section 12A.004(a), Education Code, as amended
  by this Act, applies to a local innovation plan adopted or renewed
  before, on, or after the effective date of this Act.
         SECTION 6.  Section 28.004, Education Code, as amended by
  this Act, applies only to a cause of action that accrues on or after
  the effective date of this Act.
         SECTION 7.  To the extent of any conflict, this Act prevails
  over another Act of the 88th Legislature, Regular Session, 2023,
  relating to nonsubstantive additions to and corrections in enacted
  codes.
         SECTION 8.  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, 2023.