Post Addendum Version
Part 1 – Questions and Answers
In accordance with federal law (20 U.S.C. Section 7151), a local educational agency (LEA), 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:
(a) the superintendent or other chief administrative officer of the school district or of the other LEA, as defined by 20 U.S.C. Section 2891, may modify the length of the expulsion in the case of an individual student;
(b) the district or other LEA shall provide educational services to [the] an expelled student in an alternative education program as provided by TEC §37.008 if the student is younger than 10 years of age on the date of expulsion; and
(c) the district or other LEA may provide educational services to an expelled student who is older than 10 years of age in an alternative education program as provided in TEC §37.008.
TEC 37.007(a)(1) requires that a school expel a student whose conduct contains the elements of the offense of “Unlawfully Carrying Weapons” on school property or while attending a school-sponsored or school related activity on or off of school property.
Under the requirements of Senate Bill 107, 84th legislature, TEC 37.0012, each campus must have a staff person designated as the Campus Behavior Coordinator. The person designated may be the principal of the campus or any other campus administrator selected by the principal.
The campus behavior coordinator is primarily responsible for maintaining student discipline and the implementation of this subchapter.
The campus behavior coordinator is required to promptly notify a student's parent or guardian if the student is placed into in-school or out-of-school suspension, placed in a disciplinary alternative education program, expelled, or placed in a juvenile justice alternative education program or is taken into custody by a law enforcement officer. A campus behavior coordinator must comply with this subsection by:
(1) promptly contacting the parent or guardian by telephone or in person; and
(2) making a good faith effort to provide written notice of the disciplinary action to the student, on the day the action is taken, for delivery to the student's parent or guardian.
If a parent or guardian entitled to notice of a student’s disciplinary removal has not been reached by telephone or in person by 5 p.m. of the first business day after the day the disciplinary action is taken, the campus behavior coordinator must mail written notice of the disciplinary action to the parent or guardian at the parent's or guardian's last known address. If a Campus Behavior Coordinator is unable or not available to promptly provide the required notice to a parent or guardian of a student, the principal or other designee shall provide the notice.
Before removing a student to a DAEP under Texas Education Code (TEC) §37.008, the 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. If the student has been alleged to have committed an offense as described in TEC §37.006 then the district official holding the conference meeting must present substantiated documentation of the alleged behavior as provided by a law enforcement agency or as created/obtained by the school district administrator. Refer to PEIMS Data Standards Section 2, 425 Student Disciplinary Action Record for more information on this requirement.
Before a student may be expelled under TEC §37.007, the board or the board's designee must provide the student a hearing at which the student is afforded appropriate due process as required by the federal constitution and which the student's parent or guardian is invited, in writing, to attend. At the hearing, the student is entitled to be represented by the student's parent or guardian or another adult who can provide guidance to the student and who is not an employee of the school district. If the decision to expel a student is made by the board's designee, the decision may be appealed to the board. The decision of the board may be appealed by trial de novo to a district court of the county in which the school district's central administrative office is located. If the student has been alleged to have committed an offense as described in TEC §37.007 then a district official holding the expulsion hearing must present substantiated documentation of the alleged behavior as provided by a law enforcement agency or as created/obtained by the school district administrator. Refer to PEIMS Data Standards Section 2, 425 Student Disciplinary Action Record for more information on this requirement.
In accordance with TEC §37.005, under no circumstance may an out-of-school suspension (OSS) for a particular incident exceed (3) three school days. If a student receives OSS for a partial school day (even if for one class period), that partial day is considered one of the three total allowable out-of-school suspension days.
If the student's placement in a DAEP is to extend beyond the end of the next grading period, a student's parent or guardian is entitled to notice of and an opportunity to participate in a proceeding before the board of trustees of the school district or the board's designee, as provided by policy of the board of trustees of the district. Any decision of the board or the board's designee under this subsection is final and may not be appealed.
Before assigning a student to a disciplinary alternative education setting that extends beyond the end of the school year in which the initial assignment was made, the board or the board’s designee must determine that: (1) the student’s presence in the regular classroom program or at the student’s regular campus presents a danger of physical harm to the student or to another individual, or (2) the student has engaged in serious or persistent misbehavior that violates the district’s student code of conduct.
A student placed in a DAEP under TEC §37.002 or 37.006 shall be provided a review of the student's status, including a review of the student's academic status, by the board's designee at intervals not to exceed 120 days. In the case of a high school student, the board's designee, with the student's parents or guardian, shall review the student's progress towards meeting high school graduation requirements and shall establish a specific graduation plan for the student.
At the review, the student or the student's parent or guardian must be given the opportunity to present arguments for the student's return to the regular classroom or campus.
The disciplinary placement of all students who are served in special education with an Individualized Education Program (IEP) must be determined by an Admission, Review, and Dismissal (ARD) committee. TEC §37.004(a) Further, any disciplinary action regarding a student with a disability who receives special education services that would constitute a change in placement under federal law may be taken only after the student’s ARD committee conducts a manifestation determination review under 20 U.S.C. Section 1415(k)(4) and its subsequent amendments. Any disciplinary action regarding the student shall be determined in accordance with federal law and regulation, including laws or regulations requiring the provision of:
1. Functional behavioral assessments;
2. Positive behavioral interventions, strategies, and supports; and
3. Behavioral intervention plans. TEC §37.004(b).
For disciplinary removals of a student who is receiving special education and related services from the student's current educational placement, a change of placement occurs if the removal is for more than 10 consecutive days (CFR §300.530 - §300.536). The ARD committee that deals with the change of placement must review the student's IEP to detail the special education and related services to be administered to the student while he is removed for discipline reasons. Be careful not to confuse the 10-day change of placement requirement for special education purposes with the 1-day removal requirement for 425 record reporting purposes. A 425 record is required for all students who are receiving special education and related services and are removed from their regularly scheduled classes for one day or more. A change of placement occurs when the removal is for more than 10 consecutive days, and a change of placement may occur when the removal is for more than 10 cumulative days in a school year based on factors such as the length of each removal, the total amount of the time the child is removed, and the proximity of the removals to one another. An ARD committee must be involved when the removal or series of removals constitute a change in placement.
Under TEC §37.006(a), (b), (c), and (l), all students, who are at least 6 years of age on the date that an offense is committed, must be removed to a DAEP, for a time period that is determined by the local Student Code of Conduct, if one of the following acts are committed: on or within 300 feet of school property, or while the student is attending a school-sponsored, or school related activity, on or off of school property. The school administrator designated must first establish a reasonable belief that the act has been committed and then corroborate and document that belief with appropriate law enforcement officials.
Under TEC §37.007(a), (d), and (h), and §37.007(f) students who are younger than 10 years of age on the date that an offense is committed, and have committed a mandatory expellable offense other than bringing a firearm to school, must be placed in a DAEP for a period of time that is determined by the superintendent or their designee.
Under TEC §37.007(e), (student brings a firearm to school), students who are younger than 10 years of age on the date that an offense is committed, must be expelled and placed in a DAEP for a minimum term of one year, unless the expulsion term is reduced by the superintendent or their designee.
DISCIPLINARY-ACTION-REASON-CODE 23, as authorized by TEC §37.019, allows for either emergency placement or emergency expulsion. The law states that immediate placement (Emergency Placement) of a student in an alternative program is allowed if the principal or principal's designee has a reasonable belief that the student is unruly, disruptive, or has abusive behavior that seriously interferes with a teacher's ability to communicate effectively with the students in a class, with the ability of the student's classmates to learn, or with the operation of a school or school-sponsored activity. The law also states that immediate expulsion (Emergency Expulsion) of a student is allowed if the principal or the principal's designee has a reasonable belief that immediate action is needed to protect persons or property from imminent harm. Thus, emergency action under TEC §37.019 should not be the only/final action taken. Code 23 allows for emergency action prior to the due process required under TEC §37.009. Within a reasonable time after the emergency action, due process must then be accorded the student. These two situations may overlap with other codes on the Disciplinary Action Code Table. However, the central focus of this code is the principal's decision to take immediate action in an emergency situation that cannot wait for due process to occur. This code should not be used on a routine basis, only for emergency situations.
With regards to the documentation related to “TEC §37.017 Destruction of Certain Records” states Information received by a school district under Article 15.27, Code of Criminal Procedure, these records may not be attached to the permanent academic file of the student who is the subject of the report. The school district shall destroy the information at the end of the school year in which the report was filed. Despite the requirement to destroy information received under Article 15.27, Code of Criminal Procedure, the district must retain documentation other than the information received under Article 15.27, Code of Criminal Procedure to support the discipline data submitted on the 425 record for a period of 5 years.
Multiple violations are sometimes committed in the course of one disciplinary event. When completing a 425 record, the district should report only the violations DISCIPLINARY-ACTION-REASON-CODE(s) for which disciplinary action(s) DISCIPLINARY-ACTION-CODE(s) are taken. If actions are only taken for the most serious violation, then only one DISCIPLINARY-INCIDENT-NUMBER should be entered on a 425 record when reporting the DISCIPLINARY-ACTION-REASON-CODEs and DISCIPLINARY-ACTION-CODEs.
If the district takes disciplinary action on each violation that occurred during one disciplinary event, the district should enter a new DISCIPLINARY-INCIDENT-NUMBER for each separate DISCIPLINARY-ACTION-REASON-CODE (violation) being reported.
If a student is involved in a reportable disciplinary incident, and the student attempts to withdraw from school before the disciplinary assignment is made, the district/school should complete the due-process proceedings that result in a disciplinary assignment before the student is allowed to withdraw and then the district is required to report the 425 record reflecting that assignment in order to remain in compliance with TEC §37.009.
While Open Enrollment Charter Schools are not required to participate in the Chapter 37 Discipline Management Program detailed in the TEC, they are required to submit 425 records on any students that they have suspended or expelled. The reason for the suspension or expulsion does not alter the reporting requirement. This issue relates to the federal data reporting requirements for IDEA 2004. Also, federal rules are specific as to the expulsion of students caught with a firearm at school. They must be expelled whether they are enrolled at a public school or an Open Enrollment Charter School. The suspension codes and expulsion codes from Code Table C164 should be sufficient to handle any categorization of those disciplinary actions taken. And, the DISCIPLINARY-ACTION-REASON-CODEs in Code Table C165 should be sufficient to handle any categorization of those disciplinary action reasons identified. For DISCIPLINARY-ACTION-REASON-CODEs that are not specifically identified in Code Table C165, code 21, Violated Student Code of Conduct, should be used to report the suspensions and expulsions.
In-school-suspension (ISS) includes any disciplinary setting other than DAEP, JJAEP, or OSS. For Special Education student’s behavior management or behavior adjustment classes are not considered ISS programs as established by the ARD committee and are not considered ISS removals.
DISCIPLINARY-ACTION-CODE 13 may only be used when a Court order requires a student to attend the JJAEP independent of any action required to be taken by the school district and described in TEC Chapter 37. Do not use DISCIPLINARY-ACTION-CODE 13 for students that are incarcerated in either a jail or juvenile detention center. A term of incarceration does not constitute a removal by a school district. The DISCIPLINARY-ACTION-REASON-CODE for DISCIPLINARY-ACTION-CODE 13 should always be 21 because the district is reporting a court ordered placement for a behavior which the district either could not or would not have acted.
DISCIPLINARY-ACTION-CODE 14 may only be used when a Court order requires a student to attend a DAEP independent of any action required to be taken by the school district and described in TEC Chapter 37. Do not use DISCIPLINARY-ACTION-CODE 14 for students that are incarcerated in either a jail or juvenile detention center. A term of incarceration does not constitute a removal by a school district. The DISCIPLINARY-ACTION-REASON-CODE for DISCIPLINARY-ACTION-CODE 14 should always be 21 because the district is reporting a court ordered placement for a behavior which the district either could not or would not have acted.
When reporting DISCIPLINARY-ACTION-CODEs 13 (Placement in a JJAEP by Court order) and 14 (Placement in a DAEP by Court order), please refer to the ADMINISTRATOR ADDRESSED letter dated May 29, 2002. This letter is available on the TEA website under the Correspondence link. In order to place a student in a JJAEP or DAEP by a Court order, there must be a MOU between the court ordering the placement and the school district that will effect and make the placement. In all circumstances of court ordered placements to a JJAEP or DAEP, the DISCIPLINARY-ACTION-REASON-CODE must be a 21 (Violation of student code of conduct not included under TEC §§37.002(b), 37.006, or 37.007). The use of DISCIPLINARY-ACTION-REASON-CODEs 09 (Off-Campus Title 5 Felony) and 10 (Off-Campus Non-Title 5 Felony) for Court ordered placements to a JJAEP or DAEP is not acceptable because the school district has original jurisdiction and a due-process responsibility to hold a conference meeting to enforce a DAEP removal/action as required or permitted in TEC 37.006 (c) and (d). The provisions for these court ordered placements must also be outlined in the Local Student Code of Conduct. Any behavior that a student engages in at school or a school related activity for which they will receive disciplinary attention as provided for under either the minimum requirements of TEC 37.006/TEC 37.007, or the minimum standards of the Local Student Code of Conduct, must be initiated and actuated by the local school district.
In the event that a school district finds it necessary to continue a Court ordered placement to a JJAEP or a DAEP from a prior school year or a prior school district, a new 425 record must be reported with a DISCIPLINARY-ACTION-REASON-CODE of 21 and a DISCIPLINARY-ACTION-CODE of 13 or 14 depending on the action taken. Remember that DAEP assignments that continue into a new school year are subject to the requirements of TEC 37.009(c) referenced on the first page of Appendix E.
Permanent removal by a teacher from class (DISCIPLINARY-ACTION-REASON-CODE 01) under TEC §37.002(b) is limited for use in those situations where the teacher has refused re-admittance of the student to that teacher’s class. Otherwise, if the teacher allows re-admittance of the student to the class, then Code 21 (other Student Code of Conduct violation) should be used.
Under TEC 37.008(m-1), failure to report all disciplinary removals and truancy actions as required by state and federal law may result in a review by the commissioner of education and notice to the local school board of any problems noted in the district’s data, or a violation of a law or other rule. This review may also result in a notification to the county attorney, district attorney, criminal district attorney, as appropriate, and the attorney general. This provision can apply to missing, inaccurate, and/or falsified information/data.
In counties where the population is over 125,000, state law requires that expelled students be placed in an alternative education setting of some type. Districts located in these counties may place discretionary expelled students in a DAEP operated by the district and Mandatory expelled students in a JJAEP operated by the juvenile board for the county.
If a student has been expelled in a county that does not have a Juvenile Justice Alternative Education Program, the LEA may either expel the student without academic placement, or the student may be expelled with placement to the LEA Disciplinary Alternative Education Program.
House Bill 1862, 83rd legislative session, revised the definition of prohibited weapons in Texas Penal Code 46.05 to exclude switchblade knives. As a result, Disciplinary Action Reason Code ‘14’: Prohibited Weapon (Conduct Containing the Elements of an Offense Relating to Prohibited Weapons Under Penal Code 46.05 – TEC 37.007(a)(1)) can no longer be used to describe a disciplinary incident involving a switchblade knife.
As a result of this change, there are two options for reporting incidents involving switchblade knives:
An off-campus DAEP:
1. has its own campus identification number;
2. has its own building (is not a program on a regular campus or an at-risk alternative education campus);
3. has its own budget;
4. has its own administrator;
5. serves only students removed under the TEC, Chapter 37 (no other non-discipline program may be operated on the campus);
6. must use the services of certified teachers;
7. must provide for a 75,600 minute school year170F170; and
8. must provide for a minimum 7-hour (420 minute) school day.172
Note: If your school district or charter school has chosen to operate or participate in, through a shared services arrangement (SSA), an off-campus DAEP, your district or school must register the campus with the TEA as a DAEP instructional campus.
An on-campus DAEP is one that may have its own campus identification number.173F173F If an on-campus DAEP has its own campus identification number, then the campus must:
1. have an administrator (administrator can serve more than one campus);
2. have its own budget;
3. use the services of certified teachers for delivering educational and behavioral instruction to the students assigned to the on-campus DAEP
4. provide for students who are assigned to the DAEP to be separated from students who are not assigned to the DAEP ("sight and sound barrier" should exist to provide adequate separation);
5. provide for a 75,600 minute school year174F174F
6. provide for a minimum 7-hour (420 minute) school day175F175F and
7. share a facility with a non-disciplinary program.
Note: If your school district or charter school has chosen to operate or participate in, through an SSA, an on-campus DAEP your district or school must register the campus with the TEA as a DAEP instructional campus.
If an on-campus DAEP does not have its own campus number, then a student should remain enrolled at the campus at which the student was enrolled when he or she was removed while placed in the on-campus DAEP.
Truancy
House Bill 2398, 84th legislative session decriminalized truancy moving the statutes from the Criminal Code of Procedures to the Texas Family Code. However, the Parent Contributing to Truancy law under TEC 25.093 remains a potential criminal (Class C Misdemeanor).
What are the factors to be used when determining truancy?