                 THE     A~TORXEY          GENERAL
                             OF   TEXAS



                              September    18,   1990



Honorable   Ernestive   V. Glossbrenner          Opinion   No.   ~~-1225
Chairperson
House Public Education     Committee             Re:     Use of a "paging
P. 0. Box 2910                                   device" on school prop-
Capitol Bldg., Room 302D                         erty   or  at   a school
Austin, Texas     78768-2910                     function    (RQ-1942)

Dear   Representative    Glossbrenner:

      You ask whether   a car telephone           is a "paging    device"
for purposes  of section 21.309 of the           Education  Code,   which
provides  as follows:

              (a) A student in      a public school may       not
          possess a paging device while on school            pro-
          perty or while      attending   a   school-sponsored
          or school-related     activity    on or off     school
          property,   unless   the  student   is  in attendance
          in the    capacity of     an   active member     of    a
          volunteer     firefighting     organization     or     a
          volunteer       emergency       medical      services
          0rganLzation.

              (b) The board of      trustees of each       school
          district   shall    include    the    prohibition     in
          Subsection     (a) of      this     section   in     the
          district's     written     standards      of    student
          conduct.     A     student     who     violates      the
          prohibition     is   subject     to   discipline      as
          provided by     board    policy,     consistent    with
          this subchapter.

              (c) A person    who discovers     a student    in
          possession   of a paging device in violation       of
          this section     shall report    the violation     to
          the   appropriate     school   administrator,
          determined   by school policy, who shall       ordEE
          a peace      officer    or    appropriate     school
          employee to confiscate       the device, which     is
          forfeited   to the school district.




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                (d) In this section, 'naaina device' means
            a telecommunications     device    that   emits an
            audible sianal. vibrates.     disDlavs a messaaec
            or    otherwise    summons     or    delivers     a
            communication   to the oossessor.

      The components    of the definition    of "paging device" are
(1) that it be a telecommunications        device and (2) that      it,
by some    means, summon     or deliver    a communication     to   the
possessor.     A car telephone    is a telecommunications      device.
See Webster's    Ninth   Collegiate   Dictionary   (1984)    (defining
"telecommunication*'    as "communication      at a distance     as  by
telephone    or   television").      The   remaining    question     is
whether a car telephone      summons or delivers a      communication
"to the possessor.11

      We   note    that   the    requirement      is    that   the    device
actually   summon or deliver a communication            to its possessor,
not merely     that it have       the capacity       to   do so.      A   car
telephone   would be able to summon its possessor             only if     its
possessor   were    able   to    hear   or    otherwise      perceive     its
signal.     Consequently,      a   student     who    parked     on   school
property would      be on   school property        and subject       to   the
summons of a car      phone upon arrival         at and departure        from
school or    a school      activity.1        Although     that    would    be
sufficient   to bring the student within the literal                language
of   the   prohibition      set    out    in     section     21.309,      the
legislative    history indicates      that    the legislature       did   not
intend that the prohibition        be applied so broadly.2

      The bill analysis      prepared   in regard to section    21.309
of the   Education  Code      sets    out the   following  background
information:




      1. We assume     that a   student    would "possess"     a   car
telephone   for purposes   of section    21.309 if it were in      his
custody during the school day       or during a school     activity.
See ae nerallv ValCarCel    v. State, 710 S.W.2d 368, 372        (Tex.
APP. - Amarillo     1986, no pet.)     (defining llpossession'* for
purposes   of crime of possession    of contraband).

      2.   If the   definition    of "paging     device"    is  taken
absolutely    literally,    it would    prohibit     students    from
possessing   car radios    on school property     since car    radios
are telecommunications     devices that   emit an audible      signal
and deliver a message to their possessor.




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,-


                  The   presence    of     paging    devices    on    the
                  campuses of    the    large, urban      districts     is
                  increasing.      Teachers      and     administrators
                  report that    this presence       is disruptive     to
                  the educational      process when     these    devices
                  are activated    in an educational      setting.      In
                  addition,   there is concern that these devices
                  are being used to       facilitate   the dealing      of
                  illegal drugs.

      Bill Analysis,    S.B. 424, 71st Leg. (1989).       Unless    students
      attending   classes or    school activities      could perceive     the
      signal emitted by a car telephone,       it seems unlikely     that    a
      car   telephone    would   be   disruptive    to   the    educational
      process.    Also, if    access'to   car  telephones    is limited    to
      time of arrival and time       of departure,   car phones would      do
      no more    to .facilitate     drug transactions     than   any   other
      telephone   in the vicinity    of the school.

            If   a particular    school    district    finds that    car
      telephones   are in fact disruptive,     it has the authority    to
      adopt reasonable   rules regulating    their presence   on  school
      property.    See Texarkana  Inden.   School Dist. v. Lewis,    470
 .-   S.W.2d 727 (Tex. Civ. App. - Texarkana      1971, no writ); Educ.
      Code §§    23.26, 21.301.


                                      SUMMARY

                        Section 21.301    of   the   Education    Code
                  does   not   prohibit    the   presence    of    car
                  telephones   in cars parked on school property.
                  Individual   school districts    have authority   to
                  adopt   disciplinary     rules     regarding     car
                  telephones.

                                                   ruly
                                                  very
                                                  s A
                                                                   Y       ,

                                                           A
                                                   JIM      MATTOX
                                                   Attorney General        of Texas

      WARY KELLER
      First Assistant      Attorney     General

      LOU MCCREARY
      Executive  Assistant      Attorney    General




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JUDGE ZOLLIE STKAKLEY
Special Assistant  Attorney         General

RENEA HICKS
Special Assistant       Attorney    General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Sarah Woelk
Assistant Attorney General




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