87R3796 TSS-F     By: Bernal, Talarico H.B. No. 2278       A BILL TO BE ENTITLED   AN ACT   relating to the expulsion of public school students for engaging in   conduct that constitutes serious offenses.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 37.007, Education Code, is amended to   read as follows:          Sec. 37.007.  EXPULSION FOR SERIOUS OFFENSES. (a) Subject   to the considerations required under Subsection (c) and except   [Except] as provided by Subsection (h) [(k)], a student shall be   expelled from a school if the student:                (1)  while[,] on school property or while attending a   school-sponsored or school-related activity on or off of school   property:                      (A) [(1)]  engages in conduct that contains the   elements of the offense of unlawfully carrying weapons under   Section 46.02, Penal Code, or elements of an offense relating to   prohibited weapons under Section 46.05, Penal Code;                      (B) [(2)]  engages in conduct that contains the   elements of the offense of:                            (i) [(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;                            (ii) [(B)]  arson under Section 28.02, Penal   Code;                            (iii) [(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;                            (iv) [(D)]  indecency with a child under   Section 21.11, Penal Code;                            (v) [(E)]  aggravated kidnapping under   Section 20.04, Penal Code;                            (vi) [(F)]  aggravated robbery under   Section 29.03, Penal Code;                            (vii) [(G)]  manslaughter under Section   19.04, Penal Code;                            (viii) [(H)]  criminally negligent homicide   under Section 19.05, Penal Code; or                            (ix) [(I)]  continuous sexual abuse of young   child or children under Section 21.02, Penal Code; or                      (C) [(3)]  engages in conduct specified by   Section 37.006(a)(2)(C) or (D), if the conduct is punishable as a   felony; or                (2)  engages in conduct that contains the elements of   any offense listed in Subdivision (1) against any employee or   volunteer in retaliation for or as a result of the person's   employment or association with a school district, without regard to   whether the conduct occurs on or off of school property or while   attending a school-sponsored or school-related activity on or off   of school property.          (b)  Subject to the considerations required under Subsection   (c), a [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;                (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 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 under   Section [Sections] 485.031, 485.032, 485.033, or [through]   485.034, Health and Safety Code;                      (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 of this code; or                      (D)  engages in conduct that contains the elements   of the offense of deadly conduct under Section 22.05, Penal Code;                (3)  subject to Subsection (a)(2) [(d)], while within   300 feet of school property, as measured from any point on the   school's real property boundary line:                      (A)  engages in conduct specified by Subsection   (a)(1); or                      (B)  possesses a firearm, as defined by 18 U.S.C.   Section 921;                (4)  engages in conduct that contains the elements of   any offense listed in Subsection (a)(1)(B)(i) [(a)(2)(A)] or (iii)   [(C)] or the offense of aggravated robbery under Section 29.03,   Penal Code, against another student, without regard to whether the   conduct occurs on or off of school property or while attending a   school-sponsored or school-related activity on or off of school   property; [or]                (5)  engages in conduct that contains the elements of   the offense of breach of computer security under Section 33.02,   Penal Code, if:                      (A)  the conduct involves accessing a computer,   computer network, or computer system owned by or operated on behalf   of a school district; and                      (B)  the student knowingly:                            (i)  alters, damages, or deletes school   district property or information; or                            (ii)  commits a breach of any other   computer, computer network, or computer system;                (6)  [. (c) A student may be expelled if the student,]   while placed in a disciplinary alternative education program,   engages in any of the following documented serious misbehavior   while on the program campus despite documented behavioral   interventions[. For purposes of this subsection, "serious   misbehavior" means]:                      (A) [(1)]  deliberate violent behavior that poses   a direct threat to the health or safety of others;                      (B) [(2)]  extortion, meaning the gaining of   money or other property by force or threat;                      (C) [(3)]  conduct that constitutes coercion, as   defined by Section 1.07, Penal Code; or                      (D) [(4)]  conduct that constitutes the offense   of:                            (i) [(A)]  public lewdness under Section   21.07, Penal Code;                            (ii) [(B)]  indecent exposure under Section   21.08, Penal Code;                            (iii) [(C)]  criminal mischief under   Section 28.03, Penal Code;                            (iv) [(D)]  personal hazing under Section   37.152; or                            (v) [(E)]  harassment under Section   42.07(a)(1), Penal Code, of a student or district employee;                (7)  [. (d) A student shall be expelled if the student   engages in conduct that contains the elements of any offense listed   in Subsection (a), and may be expelled if the student] engages in   conduct that contains the elements of any offense listed in   Subdivision (2)(C) [Subsection (b)(2)(C)], against any employee or   volunteer in retaliation for or as a result of the person's   employment or association with a school district, without regard to   whether the conduct occurs on or off of school property or while   attending a school-sponsored or school-related activity on or off   of school property;                (8)  engages in conduct that contains the elements of   the offense of criminal mischief under Section 28.03, Penal Code,   if the conduct is punishable as a felony under that section; or                (9)  engages in conduct described by Subsection (a)(1)   while:                      (A)  on school property of another district in   this state; or                      (B)  attending a school-sponsored or   school-related activity of a school in another district in this   state.          (c)  A school district shall consider each factor listed   under Section 37.001(a)(4) before making a decision to expel a   student under Subsection (a) or (b).          (d) [(e)]  In accordance with 20 U.S.C. Section 7151, a local   educational agency, including a school district, home-rule school   district, or open-enrollment charter school, shall expel a student   who brings a firearm, as defined by 18 U.S.C. Section 921, to   school. The student must be expelled from the student's regular   campus for a period of at least one year, except that:                (1)  the superintendent or other chief administrative   officer of the school district or of the other local educational   agency, as defined by 20 U.S.C. Section 7801, may modify the length   of the expulsion in the case of an individual student;                (2)  the district or other local educational agency   shall provide educational services to an expelled student in a   disciplinary alternative education program as provided by Section   37.008 if the student is younger than 10 years of age on the date of   expulsion; and                (3)  the district or other local educational agency may   provide educational services to an expelled student who is 10 years   of age or older in a disciplinary alternative education program as   provided in Section 37.008.          (e) [(f)]  A student who engages in conduct described by   Subsection (b)(8) [that contains the elements of the offense of   criminal mischief under Section 28.03, Penal Code, may be expelled   at the district's discretion if the conduct is punishable as a   felony under that section. The student] shall be referred to the   authorized officer of the juvenile court regardless of whether the   student is expelled under Subsection (b).          (f) [(g)]  In addition to any notice required under Article   15.27, Code of Criminal Procedure, a school district shall inform   each educator who has responsibility for, or is under the direction   and supervision of an educator who has responsibility for, the   instruction of a student who has engaged in any violation listed in   this section of the student's misconduct. Each educator shall keep   the information received under this subsection confidential from   any person not entitled to the information under this subsection,   except that the educator may share the information with the   student's parent or guardian as provided for by state or federal   law. The State Board for Educator Certification may revoke or   suspend the certification of an educator who intentionally violates   this subsection.          (g) [(h)]  Subject to Subsection (d) [(e)], notwithstanding   any other provision of this section, a student who is younger than   10 years of age may not be expelled for engaging in conduct   described by this section.          (h)  [(i)  A student who engages in conduct described by   Subsection (a) may be expelled from school by the district in which   the student attends school if the student engages in that conduct:                [(1)  on school property of another district in this   state; or                [(2)  while attending a school-sponsored or   school-related activity of a school in another district in this   state.          [(k)]  A student may not be expelled solely on the basis of   the student's use, exhibition, or possession of a firearm that   occurs:                (1)  at an approved target range facility that is not   located on a school campus; and                (2)  while participating in or preparing for a   school-sponsored shooting sports competition or a shooting sports   educational activity that is sponsored or supported by the Parks   and Wildlife Department or a shooting sports sanctioning   organization working with the department.          (i) [(l)]  Subsection (h) [(k)] does not authorize a student   to bring a firearm on school property to participate in or prepare   for a school-sponsored shooting sports competition or a shooting   sports educational activity described by that subsection.          SECTION 2.  Section 37.001(e), Education Code, is amended to   read as follows:          (e)  Except as provided by Section 37.007(d) [37.007(e)],   this subchapter does not require the student code of conduct to   specify a minimum term of a removal under Section 37.006 or an   expulsion under Section 37.007.          SECTION 3.  Section 37.002(d), Education Code, is amended to   read as follows:          (d)  A teacher shall remove from class and send to the   principal for placement in a disciplinary alternative education   program or for expulsion, as appropriate, a student who engages in   conduct described under Section 37.006 or 37.007. The student may   not be returned to that teacher's class without the teacher's   consent unless the committee established under Section 37.003   determines that such placement is the best or only alternative   available. If the teacher removed the student from class because   the student has engaged in the elements of any offense listed in   Section 37.006(a)(2)(B) or Section 37.007(a)(1)(B)(i)   [37.007(a)(2)(A)] or (b)(2)(C) against the teacher, the student may   not be returned to the teacher's class without the teacher's   consent. The teacher may not be coerced to consent.          SECTION 4.  Section 37.0021(f), Education Code, is amended   to read as follows:          (f)  For purposes of this subsection, "weapon" includes any   weapon described under Section 37.007(a)(1)(A) [37.007(a)(1)].   This section does not prevent a student's locked, unattended   confinement in an emergency situation while awaiting the arrival of   law enforcement personnel if:                (1)  the student possesses a weapon; and                (2)  the confinement is necessary to prevent the   student from causing bodily harm to the student or another person.          SECTION 5.  Sections 37.006(b), (f), and (l), Education   Code, are amended to read as follows:          (b)  Except as provided by Sections 37.007(a)(2) and (b)(7)   [Section 37.007(d)], a student shall be removed from class and   placed in a disciplinary 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.          (f)  Subject to Section 37.007(d) [37.007(e)], a student who   is younger than 10 years of age shall be removed from class and   placed in a disciplinary alternative education program under   Section 37.008 if the student engages in conduct described by   Section 37.007. An elementary school student may not be placed in a   disciplinary alternative education program with any other student   who is not an elementary school student.          (l)  Notwithstanding any other provision of this code, other   than Section 37.007(d)(2) [37.007(e)(2)], a student who is younger   than six years of age may not be removed from class and placed in a   disciplinary alternative education program.          SECTION 6.  Section 37.010(b), Education Code, is amended to   read as follows:          (b)  If a student is expelled under Section 37.007(b)(6)   [37.007(c)], the board or its designee shall refer the student to   the authorized officer of the juvenile court for appropriate   proceedings under Title 3, Family Code.          SECTION 7.  Sections 37.011(b), (h), (k), (l), and (p),   Education Code, are amended 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   [for conduct for which expulsion is required] under Section   37.007(a) or (d) [37.007(a), (d), or (e)], or for conduct that   contains the elements of the offense of terroristic threat as   described by Section 22.07(c-1), (d), or (e), Penal Code, 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;                (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 timely educational services to the student   in the juvenile justice alternative education program in the county   in which the student resides, regardless of the student's age or   whether the juvenile court has jurisdiction over the student.          (h)  Academically, the mission of juvenile justice   alternative education programs shall be to enable students to   perform at grade level. For purposes of accountability under   Chapters 39 and 39A, a student enrolled in a juvenile justice   alternative education program is reported as if the student were   enrolled at the student's assigned campus in the student's   regularly assigned education program, including a special   education program. Annually the Texas Juvenile Justice Department,   with the agreement of the commissioner, shall develop and implement   a system of accountability consistent with Chapters 39 and 39A,   where appropriate, to assure that students make progress toward   grade level while attending a juvenile justice alternative   education program. The department shall adopt rules for the   distribution of funds appropriated under this section to juvenile   boards in counties required to establish juvenile justice   alternative education programs. Except as determined by the   commissioner, a student served by a juvenile justice alternative   education program on the basis of an expulsion [required] under   Section 37.007(a) or (d) [37.007(a), (d), or (e)] is not eligible   for Foundation School Program funding under Chapter 31 or 48 if the   juvenile justice alternative education program receives funding   from the department under this subchapter.          (k)  Each school district in a county with a population   greater than 125,000 and the county juvenile board shall annually   enter into a joint memorandum of understanding that:                (1)  outlines the responsibilities of the juvenile   board concerning the establishment and operation of a juvenile   justice alternative education program under this section;                (2)  defines the amount and conditions on payments from   the school district to the juvenile board for students of the school   district served in the juvenile justice alternative education   program whose placement was not made on the basis of an expulsion   [required] under Section 37.007(a) or (d) [37.007(a), (d), or (e)];                (3)  establishes that a student may be placed in the   juvenile justice alternative education program if the student   engages in any serious misbehavior described[, as defined] by   Section 37.007(b)(6) [37.007(c)];                (4)  identifies and requires a timely placement and   specifies a term of placement for expelled students for whom the   school district has received a notice under Section 52.041(d),   Family Code;                (5)  establishes services for the transitioning of   expelled students to the school district prior to the completion of   the student's placement in the juvenile justice alternative   education program;                (6)  establishes a plan that provides transportation   services for students placed in the juvenile justice alternative   education program;                (7)  establishes the circumstances and conditions   under which a juvenile may be allowed to remain in the juvenile   justice alternative education program setting once the juvenile is   no longer under juvenile court jurisdiction; and                (8)  establishes a plan to address special education   services required by law.          (l)  The school district shall be responsible for providing   an immediate educational program to students who engage in behavior   resulting in expulsion under Section 37.007(b) [and (f)] but who   are not eligible for admission into the juvenile justice   alternative education program in accordance with the memorandum of   understanding required under this section. The school district may   provide the program or the school district may contract with a   county juvenile board, a private provider, or one or more other   school districts to provide the program. The memorandum of   understanding shall address the circumstances under which such   students who continue to engage in any serious misbehavior   described[, as defined] by Section 37.007(b)(6) [37.007(c),] shall   be admitted into the juvenile justice alternative education   program.          (p)  If a district elects to contract with the juvenile board   for placement in the juvenile justice alternative education program   of students expelled under Section 37.007(b)[, (c), and (f)] and   the juvenile board and district are unable to reach an agreement in   the memorandum of understanding, either party may request that the   issues of dispute be referred to a binding arbitration process that   uses a qualified alternative dispute resolution arbitrator in which   each party will pay its pro rata share of the arbitration costs.   Each party must submit its final proposal to the arbitrator. If the   parties cannot agree on an arbitrator, the juvenile board shall   select an arbitrator, the school districts shall select an   arbitrator, and those two arbitrators shall select an arbitrator   who will decide the issues in dispute. An arbitration decision   issued under this subsection is enforceable in a court in the county   in which the juvenile justice alternative education program is   located. Any decision by an arbitrator concerning the amount of the   funding for a student who is expelled and attending a juvenile   justice alternative education program must provide an amount   sufficient based on operation of the juvenile justice alternative   education program in accordance with this chapter. In determining   the amount to be paid by a school district for an expelled student   enrolled in a juvenile justice alternative education program, the   arbitrator shall consider the relevant factors, including evidence   of:                (1)  the actual average total per student expenditure   in the district's alternative education setting;                (2)  the expected per student cost in the juvenile   justice alternative education program as described and agreed on in   the memorandum of understanding and in compliance with this   chapter; and                (3)  the costs necessary to achieve the accountability   goals under this chapter.          SECTION 8.  Section 37.012(a), Education Code, is amended to   read as follows:          (a)  Subject to Section 37.011(n), the school district in   which a student is enrolled on the date the student is expelled [for   conduct for which expulsion is permitted but not required] under   Section 37.007(b) [37.007] shall, if the student is served by the   juvenile justice alternative education program, provide funding to   the juvenile board for the portion of the school year for which the   juvenile justice alternative education program provides   educational services in an amount determined by the memorandum of   understanding under Section 37.011(k)(2).          SECTION 9.  Section 37.015(a), Education Code, is amended to   read as follows:          (a)  The principal of a public or private primary or   secondary school, or a person designated by the principal under   Subsection (d), shall notify any school district police department   and the police department of the municipality in which the school is   located or, if the school is not in a municipality, the sheriff of   the county in which the school is located if the principal has   reasonable grounds to believe that any of the following activities   occur in school, on school property, or at a school-sponsored or   school-related activity on or off school property, whether or not   the activity is investigated by school security officers:                (1)  conduct that may constitute an offense listed   under Section 508.149, Government Code;                (2)  deadly conduct under Section 22.05, Penal Code;                (3)  a terroristic threat under Section 22.07, Penal   Code;                (4)  the use, sale, or possession of a controlled   substance, drug paraphernalia, or marihuana under Chapter 481,   Health and Safety Code;                (5)  the possession of any of the weapons or devices   listed under Sections 46.01(1)-(14) or Section 46.01(16), Penal   Code;                (6)  conduct that may constitute a criminal offense   under Section 71.02, Penal Code; or                (7)  conduct that may constitute a criminal offense for   which a student may be expelled under Section 37.007(a) or (d)   [37.007(a), (d), or (e)].          SECTION 10.  Section 37.020(c), Education Code, is amended   to read as follows:          (c)  For each expulsion under Section 37.007, the district   shall report:                (1)  information identifying the student, including   the student's race, sex, and date of birth, that will enable the   agency to compare placement data with information collected through   other reports;                (2)  information indicating whether the expulsion was   based on:                      (A)  conduct described by [for which expulsion is   required under] Section 37.007(a) [37.007, including information   specifically indicating whether a student was expelled on the basis   of Section 37.007(e)]; [or]                      (B)  conduct described by [for which expulsion is   permitted under] Section 37.007(b) [37.007]; or                      (C)  conduct described by Section 37.007(d);                (3)  the number of full or partial days the student was   expelled;                (4)  information indicating whether:                      (A)  the student was placed in a juvenile justice   alternative education program under Section 37.011;                      (B)  the student was placed in a disciplinary   alternative education program; or                      (C)  the student was not placed in a juvenile   justice or other disciplinary alternative education program; and                (5)  the number of expulsions that were inconsistent   with the guidelines included in the student code of conduct under   Section 37.001(a)(5).          SECTION 11.  Section 37.022(c), Education Code, is amended   to read as follows:          (c)  Subject to Section 37.007(d) [37.007(e)], the district   or school in which the student enrolls may continue the   disciplinary action under the terms of the order or may allow the   student to attend regular classes without completing the period of   disciplinary action.          SECTION 12.  Section 37.310, Education Code, is amended to   read as follows:          Sec. 37.310.  FUNDING FOR REGISTERED SEX OFFENDER PLACED IN   JUVENILE JUSTICE ALTERNATIVE EDUCATION PROGRAM. A juvenile justice   alternative education program is entitled to funding for a student   who is placed in the program under this subchapter in the same   manner as a juvenile justice alternative education program is   entitled to funding under Section 37.012 for a student who is   expelled and placed in a juvenile justice alternative education   program for conduct described by [for which expulsion is permitted   but not required under] Section 37.007(b) [37.007].          SECTION 13.  Section 51.03(b), Family Code, is amended to   read as follows:          (b)  Conduct indicating a need for supervision is:                (1)  subject to Subsection (f), conduct, other than a   traffic offense, that violates:                      (A)  the penal laws of this state of the grade of   misdemeanor that are punishable by fine only; or                      (B)  the penal ordinances of any political   subdivision of this state;                (2)  the voluntary absence of a child from the child's   home without the consent of the child's parent or guardian for a   substantial length of time or without intent to return;                (3)  conduct prohibited by city ordinance or by state   law involving the inhalation of the fumes or vapors of paint and   other protective coatings or glue and other adhesives and the   volatile chemicals itemized in Section 485.001, Health and Safety   Code;                (4)  an act that violates a school district's   previously communicated written standards of student conduct for   which the child has been expelled under Section 37.007(b)(6)   [37.007(c)], Education Code;                (5)  notwithstanding Subsection (a)(1), conduct   described by Section 43.02(a) or (b), Penal Code; or                (6)  notwithstanding Subsection (a)(1), conduct that   violates Section 43.261, Penal Code.          SECTION 14.  This Act applies beginning with the 2021-2022   school year.          SECTION 15.  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, 2021.