STUDENT DISCIPLINE UNDER
CHAPTER 37 OF THE TEXAS
EDUCATION CODE
Presented by:
David B. Hodgins
Thompson & Horton LLP
The Board of Trustees of Each School
District Must Adopt . . .

A Student Code of Conduct
Student Codes of Conduct
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Establishes standards of student conduct
Specifies circumstances for removals
Standards for removals to DAEPs
Outlines conditions for suspensions or expulsions
Specify whether consideration is given to selfdefense
Specify whether consideration is given to intent
or lack of intent at the time the student engaged
in the conduct;
Student Codes of Conduct - Continued
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Specify whether consideration is given to a
student's disciplinary history
Specify whether consideration is given to a
disability that substantially impairs the student's
capacity to appreciate the wrongfulness of the
student's conduct
Provide guidelines for setting the length of a
term of DAEP removal and expulsion
Student Codes of Conduct - Continued

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Prohibit bullying, harassment, and making hit lists
and ensure that district employees enforce those
prohibitions
Provide, as appropriate for students at each
grade level, methods, including options, for:

Managing students in the classroom and on school grounds;
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Disciplining students; and
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Preventing and intervening in student discipline problems, including
bullying, harassment, and making hit lists.
Bullying Prevention Polices and Procedures
TEC 37.0832 (New Definition)

"Bullying" means engaging in written or verbal expression,
expression through electronic means or physical conduct
that occurs on school property, at a school-sponsored or
school-related-activity, or in a vehicle operated by the
district that:
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1) has the effect or will have the effect of physically harming a
student, damaging a student's property, or placing a student in
reasonable fear of harm to the student's person or of damage to
the student's property; or
2) is sufficiently severe, persistent, or pervasive enough that the
action or threat creates an intimidating, threatening, or abusive
educational environment for a student.
Bullying Prevention Polices and Procedures
TEC 37.0832 (New Definition)

Conduct described in the definition of “bullying" is
considered bullying if the conduct:
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1) exploits an imbalance of power between the student
perpetrator and the student victim through written or verbal
expression or physical conduct; and
2) interferes with a student's education or substantially disrupts
the operation of a school.
Board of Trustees must Adopt Policies and
Procedures regarding Bullying
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prohibits the bullying of a student;
prohibits retaliation against any person, including a victim,
a witness, or another person, who in good faith provides
information concerning an incident of
establishes a procedure for providing notice of an
incident of bullying to a parent or guardian of the victim
and a parent or guardian of the bully within a reasonable
amount of time after the incident;
establishes the actions a student should take to obtain
assistance and intervention in response to bullying;
Board of Trustees must Adopt Policies and
Procedures regarding Bullying
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sets out the available counseling options for a student who is a victim
of or a witness to bullying or who engages in bullying;
establishes procedures for reporting an incident of bullying,
investigating a reported incident of bullying, and determining whether
the reported incident of bullying occurred;
prohibits the imposition of a disciplinary measure on a student who,
after an investigation, is found to be a victim of bullying, on the basis
of that student's use of reasonable self-defense in response to the
bullying; and
requires that discipline for bullying of a student with disabilities
comply with applicable requirements under federal law, including the
Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et
seq.).
Victim of Bullying Transfer
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On the request of a parent or other person with authority
to act on behalf of a student who is a victim of bullying,
the board of trustees of a school district or the board's
designee shall transfer the victim to:
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1) Another classroom at the campus to which the victim was
assigned at the time the bullying occurred; or
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2) A campus in the school district other than the campus to which
the victim was assigned at the time the bullying occurred.
Note: A school district is not required to provide
transportation to a student who transfers to another
campus.
Harassment
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"Harassment" means threatening to cause
harm or bodily injury to another student,
engaging in sexually intimidating conduct,
causing physical damage to the property of
another student, subjecting another
student to physical confinement or
restraint, or maliciously taking any action
that substantially harms another student's
physical or emotional health or safety.
Hit List
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"Hit list" means a list of people targeted to
be harmed, using:
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A firearm, as defined by Section 46.01(3),
Penal Code;
A knife, as defined by Section 46.01(7), Penal
Code; or
Any other object to be used with intent to
cause bodily harm.
Discipline of a Student With a
Disability

In accordance with 37.001 (b-1), a
student who is enrolled in a special
education program may not be
disciplined for conduct meeting the
definition of bullying, harassment, or
making hit lists until an ARD
committee meeting has been held to
review the conduct.
Types of Disciplinary Options
Minor Offenses
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To be set out in Student Code of Conduct
Include categories of misconduct and related
punishment
TEC 37.0011
Corporal Punishment
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If the board of trustees adopts a policy under
which corporal punishment is permitted as a
method of student discipline, a district educator
may use corporal punishment to discipline a
student unless the student's parent or guardian
or other person having lawful control over the
student has previously provided a written,
signed statement prohibiting the use of corporal
punishment as a method of student discipline.
TEC 37.0011
Corporal Punishment
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Parent or guardian or other person having lawful
control over the student must provide a separate
written, signed statement each school year to
prohibit corporal punishment.
Parent or guardian or other person having lawful
control over the student may revoke the
statement at any time
Texas Penal Code 42.01 (f)
Limits Certain Student Offenses
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Creates an exception to the offense of
disruption of class, and
the disruption or interference with the
transportation of children on school or county
owned vehicles, going to or from school,
if the student was in sixth grade or lower at
the time the conduct occurred.
Types of Disciplinary Options
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Suspension
Principal may suspend a student 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.
Suspension may not exceed three school days
No apparent limitation on the number of
suspensions an individual student may receive
TIP: avoid any “stacking” of suspensions related to the
same events
Time-Out, Restraint, and
Seclusion
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“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:
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That is not locked; and
From which the exit is not physically blocked by
furniture, a closed door held shut from the outside, or
another inanimate object
Time-Out, Restraint, and
Seclusion
“Restraint” means the use of physical
force or a mechanical device to
significantly restrict the free
movement of all or a portion of a
student’s body.
Time-Out, Restraint, and
Seclusion
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“Seclusion” means a behavior
management technique in which a
student is confined in a locked box,
locked closet, or locked room that:
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Is designed solely to seclude a person; and
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Contains less than 50 square feet of space
Time-Out, Restraint, and
Seclusion
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This section and any rules or procedures adopted
under this section do not apply to:
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A peace officer while performing law enforcement
duties;
Juvenile probation, detention, or corrections personnel;
or
An educational services provider with whom a student
is placed by a judicial authority, unless the services are
provided in an educational program of a school district
Time-Out, Restraint, and
Seclusion

A school district shall report electronically to the
agency, in accordance with standards provided by
commissioner rule, information relating to the use of
restraint by a peace officer performing law
enforcement duties on school property or during a
school-sponsored or school-related activity. A report
submitted under this subsection must be consistent
with the requirements adopted by commissioner
rule for reporting the use of restraint involving
students with disabilities.
Removal to the Disciplinary
Alternative Education Program
Mandatory Removals
Jurisdiction
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While on school property
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Within 300 feet of school property
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While attending a school-sponsored or
school-related activity (on or off property)
Certain off-campus felonies
Removal to the Disciplinary
Alternative Education Program
Reasons for Mandatory Removal
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Conduct punishable as a felony
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Assault
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Sale, delivery, possession, or use of marijuana,
controlled substances, or a dangerous drug (not
punishable as a felony)
Sale, delivery, possession, or use of alcoholic
beverages (not punishable as a felony)
Removal to the Disciplinary
Alternative Education Program
Reasons for Mandatory Removal
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Abusable volatile chemicals
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Public lewdness
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Terroristic threat
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Indecent exposure
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Retaliation against school employee (on or off
campus/not at school events)
False alarm
Tex. Penal Code 43.261
Sexting
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Penal Code violation for “sexting” for a minor to
intentionally or knowingly:
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promote by electronic means to another minor visual
material depicting a minor, including the actor,
engaging in sexual conduct, if the actor produced the
visual material or knew that another minor produced
it; or
possess in electronic format visual material depicting
another minor engaging in sexual conduct, if the actor
produced the visual material or knew that another
minor produced the visual material
Tex. Penal Code 43.261
Sexting
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“Sexual conduct” would mean sexual contact, actual or simulated
sexual intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, sadomasochistic abuse, or lewd exhibition of the
genitals, the anus, or any portion of the female breast below the top
of the areola.
Defense to prosecution for possession or promotion of child
pornography, if the actor was a law enforcement officer or a school
administrator who:
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possessed the visual material in good faith solely as a result of an allegation of
sexting;
allowed other law enforcement or school administrative personnel to access the
material only as appropriate based on the allegation; and
took reasonable steps to destroy the material within an appropriate period
following the allegation of sexting.
Removal to the Disciplinary
Alternative Education Program
Title V Felony Mandatory Removals
Off Campus/Not at School Event
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Deferred prosecution for Title V felonies
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Court or jury finds Title V felony conduct
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Reasonable belief that student has engaged
in Title V felony conduct
Title V Felonies
Some offenses listed are not punishable as a felony in all situations
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Murder, manslaughter, and capital murder
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Kidnapping (criminally negligent & aggravated)
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Indecency with a child
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Assault (sexual & aggravated)
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Injury to a child, elderly, or disabled individual
Title V Felonies
Some offenses listed are not punishable as a felony in all situations
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Abandoning or endangering a child
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Deadly conduct
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Terroristic threat
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Aiding suicide
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Aggravated robbery
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Tampering with a consumer product
In forming the reasonable belief,
superintendent may consider all available
information, including notice from police.
Removal to the Disciplinary
Alternative Education Program
Permissive Removals
A student may be placed in the DAEP if:
1) Reasonable belief of conduct away from
school that would be a non-Title V felony; and
2) Continued presence of student either:
a)
threatens safety; or
b)
will be detrimental to the education
process
Removal to the Disciplinary
Alternative Education Program
Permissive Removals
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The Education Code does not specify any other
permissive reasons for removals
However, a school district may list its own
reasons in its Code of Student Conduct
Not required to remove a student to a DAEP for
off-campus conduct for which removal is required
if the principal or other appropriate
administrator does not have knowledge of the
conduct before the first anniversary of the date
the conduct occurred
Removal to the Disciplinary
Alternative Education Program
No More Football
(or Cheerleading!)
The terms of a DAEP placement must prohibit
the student from attending or participating in
a school-sponsored or school-related activity.
DAEP Requirements
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A school district shall offer a student
removed to a DAEP an opportunity to
complete coursework before the beginning
of the next school year. The school
district may provide the student an
opportunity to complete the coursework
through any method available, including a
correspondence course, distance learning,
or summer school. The district may not
charge for the course
Commissioner DAEP Rules: 19 TAC 103.1201
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Standards for operation of DAEPs
Assigning campus is campus of
accountability for student performance
Student’s four-year graduation plan may
not be altered
School day at least seven hours
Commissioner DAEP Rules: 19 TAC 103.1201
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DAEP summer program can include nonDAEP students
Teacher to student ratio shall be 1-15
Staff training mandated
Transition procedures shall be
established
TEC 37.008
DAEP Requirements
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A school district shall provide the parents of a
student removed to a DAEP with written notice of the
district's obligation to provide the student with an
opportunity to complete coursework required for
graduation. The notice must:
(1) include information regarding all methods
available for completing the coursework; and
(2) state that the methods are available at no cost to
the student.
House Public Education
Committee Interim charge
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Review and make recommendations on the
effectiveness of Disciplinary Alternative Education
Programs (DAEPs) and Juvenile Justice Alternative
Education Programs (JJAEPs) in reducing students'
involvement in further disciplinary infractions.
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Determine the appropriate role of disciplinary
alternative placements in promoting education
achievement and how technology could be used to
supplement education services.
House Public Education
Committee Interim charge
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Consider appropriate placements in DAEPs or
JJAEPs and consistent funding models
Consider options for counties without a JJAEP or
inefficiently few placements in a JJAEP.
Identify positive behavioral models that promote a
learning environment for teachers to appropriately
instruct while addressing any behavioral issues and
enforcing student discipline.
Also note: Breaking Schools’ Rules Report;
http://ppri.tamu.edu/breaking-schools-rules/
Removal to the Disciplinary
Alternative Education Program
Procedural Rights of the Student
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Conference not later than 3rd day
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At conference
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Notice of reasons for removal
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Explanation of basis for removal
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Opportunity to respond
Removal to the Disciplinary
Alternative Education Program
Procedural Rights of the Student
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Removal beyond end of next grading
period or 60 days of assignment,
whichever is earlier
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Notice and opportunity to participate in
proceeding before Board or designee
Decision of Board or designee is FINAL!
Mandatory Expulsion for Serious
Offenses
For students 10 and older . . .
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Uses or possesses a firearm, knife, club, or
prohibited weapon
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Aggravated or sexual assault
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Arson
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Murder (plus attempt to commit . . . )
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Indecency with a child
Mandatory Expulsion for Serious
Offenses - CONTINUED
For students 10 and older . . .
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Aggravated kidnapping
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Aggravated robbery
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Manslaughter
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Criminally negligent homicide
Mandatory Expulsion for Serious
Offenses - CONTINUED
For students 10 and older . . .
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Conduct involving drugs and alcohol, if
conduct punishable as a felony
Retaliation against a District employee
while engaged in expellable conduct on
school property or at a school-related
activity
Expulsion for Serious
Offenses
All students, regardless of age, shall be
expelled for bringing a firearm to school
(Federal Firearm Law)
Permissible Expulsions
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Serious misbehavior while in a DAEP
Sale, possession, or use of marijuana, controlled
substances, or alcohol
Abusable volatile chemicals
Criminal mischief
Terroristic threat
False alarm
Deadly conduct
Mandatory expellable conduct that occurs within
300 feet of school property
TEC 37.007(c)
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Removes expulsion for persistent misbehavior
while in a DAEP
Allows expulsion for misbehavior while in a
DAEP only for “serious misbehavior” defined as:
 (1) deliberate violent behavior that poses a
direct threat to the health or safety of others;
 (2) extortion, meaning the gaining of money
or other property by force or threat;
TEC 37.007(c)
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(3) conduct that constitutes coercion, as
defined by Section 1.07, Penal Code; or
(4) conduct that constitutes the offense of:
(A) public lewdness under Section 21.07, Penal
Code;
(B) indecent exposure under Section 21.08,
Penal Code;
TEC 37.007(c)
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(C) criminal mischief under Section 28.03,
Penal Code;
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(D) personal hazing under Section 37.152; or
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(E) harassment under Section 42.07(a)(1),
Penal Code, of a student or district employee.
Permissible Expulsions
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Assault of a school district employee or
volunteer while on school property or at a
school related activity
Assault of a school district 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 while on school
property or at a school related activity
TEC 37.007(b)(5)
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Student may be expelled 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.
Expulsion and Placement of Certain Students in
Alternative Settings: Section 37.0081

Relating to the expulsion and placement in
alternative settings of public school
students who engage in conduct
constituting certain felonies and to
assessment of public school students
placed in disciplinary alternative education
programs.
Under 37.0081: May Expel if Student Has

a)
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b)
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c)
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d)

e)
been charged with engaging in conduct
defined as a felony under Title 5;
been referred to a juvenile court for allegedly
engaging in delinquent conduct under Section
54.03, Family Code, for conduct defined as a
felony offense under Title 5;
received probation or deferred adjudication
for a Title 5 felony offense;
been convicted of a felony offense under Title
5; or
been arrested for or charged with a felony
offense under Title 5;
Under 37.0081

must still determine that the student's
presence in the regular classroom:

a)
threatens the safety of other students or
teachers;

b)
will be detrimental to the educational
process; or

c)
is not in the best interests of the district's
students.
Expulsion Procedures

Must provide federal due process

Student may be represented

Student may appeal decision of Board to
the court system
Due Process for Expulsions
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Prior notice of charges and proposed sanctions
Full and fair hearing
Right to an adult representative
Opportunity to testify and to present
evidence and witnesses
Opportunity to examine the evidence and
question the administration’s witnesses

Provide a list of witnesses and the nature of their
testimony
Placement in the Juvenile
Justice Alternative Education
Program (JJAEP)
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, the juvenile
court, the juvenile board, or the juvenile board’s designee,
as appropriate, shall . . . provide timely educational services
to the student in the JJAEP in the county in which the
student resides, regardless of the student’s age or
whether the juvenile court has jurisdiction over the
student.
THANK YOU
For allowing me to make this
presentation
David B. Hodgins
of
Thompson & Horton LLP
Phoenix Tower, Suite 2000
3200 Southwest Freeway
Houston, Texas 77027
© Thompson & Horton LLP