| May 29, 2002
Re: Expulsions Related to Firearms This letter addresses expulsions under Chapter 37 for conduct related to firearms. There are multiple provisions related to firearm possession which have generated some confusion. We issued a letter related to this same topic on November 26, 2001. However, that letter is no longer completely accurate in its analysis due to changes to the federal Gun-Free School Act that were made in the recent No Child Left Behind legislation. In the future, please refer to this letter rather the November 26, 2001 letter. The federal Gun-Free Schools Act, as originally enacted in 1994, required states to enact laws requiring the expulsion of a student who brought a firearm, as defined by federal law, to school. In response, the Texas legislature enacted Section 37.007(e) of the Texas Education Code. In the No Child Left Behind Act, Congress amended the Gun-Free Schools Act to apply not only to a student who brings a gun to school but also a student who "possesses" a gun at school. For the purposes of the federal law, "school" is defined as "any setting that is under the control and supervision of the local educational agency for the purpose of student activities approved and authorized by the local educational agency." However, there is an express exclusion in the Gun-Free Schools Act if the firearm is lawfully stored in a vehicle. Even though possessing or bringing to school a firearm lawfully stored in a vehicle is no longer a basis for expulsion under the federal law and the corresponding state statutory provision in Section 37.007(e), it nonetheless requires expulsion under Section 37.007(a)(1)(A) depending on the type of weapon. Section 37.007(a)(10)(A) provides that a student shall be expelled if the student uses, exhibits, or possesses a firearm, as defined by Section 46.01(3) of the Texas Penal Code, on school property or while attending a school-sponsored or school-related activity on or off property. For the purposes of this provision, there is no exclusion for a firearm stored in a vehicle. A student is in possession of a firearm on school property if the firearm is brought to school in the student's vehicle and parked on school property. The Penal Code definition of firearm overlaps with, but is not the same as, the federal law definition of firearm. As we discussed in the letter dated November 26, 2001, there has also been confusion regarding weapons brought onto school property, but not into a building, because the criminal offense under Section 46.03 of the Penal Code (Places Weapons Prohibited) applies to school "premises" defined as a "building or part of a building." However, that definition applies only to that particular criminal offense and not to conduct requiring expulsion under either Sec. 37.007(a)(1)(A) or 37.007(e) of the Education Code. A student using, possessing, or exhibiting a firearm on school property or while attending a school-sponsored or school-related activity on or off of school property must be expelled under one of those statutes even if the criminal offense defined in Section 46.03 of the Penal Code has not been committed. If a firearm is found on school property, determine if the implementing provision of the federal Gun-Free Schools Act found in Section 37.007(e) of the Texas Education Code applies. Does the weapon fall under the federal law definition of firearm? If so, was the location a setting "under the control and supervision of the local education agency for the purpose of student activities approved and authorized by the local educational agency"? If so, expulsion is required under Section 37.007(e) unless the firearm was lawfully stored in a vehicle. If expulsion is required under Section 37.007(e), the period of expulsion must be for at least one year unless reduced as permitted by that subsection. The expulsion may be served in a DAEP as provided by Section 37.007(e). If expulsion is not required under Section 37.007(e) because the firearm was lawfully stored in a vehicle, determine if the weapon is a firearm as defined by Section 46.01(3) of the Texas Penal Code. If so, expulsion is required under Section 37.007(a)(1)(A) if the student used, exhibited, or possessed the firearm on school property, including in a vehicle located in a school parking lot, or while attending a school-related activity on or off of school property. The period of the expulsion is determined in accordance with the local student code of conduct. We hope this letter serves to clarify the firearm expulsion requirements. While the requirements of Section 37.007(e) and 37.007(a)(1)(A) are similar, they do have differences and must be analyzed and applied independently of each other. For your convenience, we are enclosing copies of the federal and state law definitions of firearm. Please share this information with members of your staff who are responsible for student discipline matters. If you have questions regarding this letter, please contact my office at (512) 463-9720. Thank you for your careful attention to this matter. Sincerely, David A. Anderson SHS/lmw |