                              QBfficeof tip l%tocnep @eneral
                                      &date of QCexae
DAN MORALES
 ATTORNEY
       GENERAI.                               August 28,1996

      The Honorable Mike Driscoll                       Opinion No. DM-412
      Harris County Attorney
      1001 Preston, Suite 634                           Re: Whether a county juvenile board is
      Houston, Texas 77002-1891                         authorized to provide educational services
                                                        tb students who have not been adjudicated
                                                        delinquent by a juvenile court and ordered
                                                        to attend a juvenile justice akemative
                                                        education program pursuan t to Education
                                                        Code, section 37.011@), and related
                                                        question (RQ-892)

      Dear Mr. Driscoll:

                Among the education reforms passed by the legiskure last session in Senate Bii
       I* are sevetal provisions requiring juvenile boards in certain counties to establish juvenile
      justice altetnative education programs (JJAEZPs),see E!duc. Code Q§ 37.011- .013,2 and
      to provide educational services to certain students who have been found by a juvenile
       court to have engaged in delinquent conduct, see id. 8 37.01 lb). On behalf of the Harris
       Camty Juvenile Board, you ask whether a juvenile board is authorized to provide
       educational services to studentss who have not been adjudicated delinquent by a juvenile
       court and ordered to attend a JJAEP pursuant to Education Code, section 37.01 l(b). You
       also ask if a juvenile board is authorized to enter into a memorandum of understanclmg
      with school districts that provides for JJAEP placement of students expelled from school
       but not adjudicated delinquent pursuant to section 37.011(b). We believe that the
       legislature intended to authorize. juvenile boards to provide educational services to
       students who are not required to attend a JJAEP by a juvenile court order and to authorize
       a juvenile board to enter into an agreement with school districts to provide such services.

               During the last session, in revising the Education Code, the legislature made clear
      its intent that school districts must “maintain a safe and disciplined environment conducive
      to student learning.” Id. 3 4.001(b). Chapter 37 of the newly revised Education Code is

              ‘See Ad ofMay 29,1995,74thLeg.. RS., ch. 260.1995Tex. Gee. Laws 2207.

              zSe.sid. 8 1. al 2358-60.

              3Your brief sugg&s that shutemswould be placed in a JJAEPwith parental consent. See note
      21 infa. In additioq you appear to be intersted in the juvenile board’s authorityonly with respectto
      stodeatswho have ban expelledfrom theschooldistrict.
TheHonorableMikeDriscoll       - Page 2        (DM-412)




intended to ensure school and community sat&y by requiring school districts to adopt
 student codes of conduct, imposing certain disciplinary standards in schools, and fostering
a working relationship between school districts and the juvenile justice system, particularly
juvenile courts and county juvenile boards. Jn addition to significantly revising the
Education Code in Senate Bii 1, the legislature passed nmnerous measures atEcting the
juvenile justice system,4 including chapter 59 of the Family Code, which sets forth a
“progressive sanctions” framework for use in sentencing juvenile offendems Chapter 37
of the Education Code mirrors the “progressive sanctions” tbunework of chapter 59 of the
Family Code, providing disciplinary. measures which increase in severity with the
 seriousness of the offense and a parallel continuum of ahernative placement settings -
 alternative education programs (AEIPs) administered by school districts for students who
 have committed less serious offenses and JJAEPs administered by juvenile boards for
 students who have committed more serious offenses.

        Section 37.001 of the Education Code requires each school district, “and jointly,
as appropriate,” with the juvenile board of each county in which the school district is
located, to adopt a student code of conduct thatmust:

                    (1) specify the circumstan ces, in accordance with this
               subchapter, under which a student may be removed from a
               classroom campus or alternative education program;

                    (2) outline the responsiiities   of each juvenile board
               concerning the establishment and operation of a juvenile justice
               alternative education program under Section 37.011;

                   (3) define the conditions on payments from the district to
               each juvenile board;

                    (4) specify cmditions that authorize or require a principal
               or other appropriate admini&ator to transfer a student to an
               alternative education program; and




        ‘See, e.g., AU ofMay 29.1995.74thLeg., KS.. ch. 671, 1995Tcx. GUI. Laws 3643,3643 @LB.
466); Ad ofh4sy 27.1995.74th Leg.. RS., ch. 748.1995 Ta GUL Laws 3884.3884 (I&B. 120); Act of
May 27. 1995,74tb Leg., RS.. eh. 262, 1995Tar Gem Lava 2517.2517 (H.B. 327); Act of May 24
1995.74tbLeg., RS.. ch. 626.1995 Tex. Gen. Laws 3494.3494 @LB. 1687);Act of May 24,1995,74tb
Leg., RS., eh. 617,1995 Tex. GUI. Law 3476.3476, (H.B. 1375);Ad of&lay 24,1995,74th Leg., RS.,
ch. 598, 1995 Tu Gen Laws 3436, 3436 (H.B. 330); Act of May 24, 1995.74th M,      RS., ch 512,
1995Ta Gen. Laws 3253.3253 @LB. 2035); Ad of May 19, 1995,74tbLeg.. RS.. ch 2541995 Tex.
Gen. Laws 2197,2197(SB. 267).

        %e AU of May 27,1995,74thLeg.. RX. ch 2b2, $53.1995 Tex. Gen. Laws 2517.2557.




                                              p.   2275
The Honorable Mike Driscoll - Page 3                (DM-412)




                      (5) outline conditions under which a student may be
                  suspended as provided by Section 37.005 or expelled as
                  provided by Section 37.007.
Id. $37.001(a)(l)       - (5). Section 37.008 requires each school district to provide an AEP
that:

                       (1) is provided in a setting other than a student’s regular
                  classroom;
                        (2)   is located on or off of a regular school campus;

                       (3) provides for the students who are assigned to the alter-
                  native education program to be separated from students who are
                  not assigned to the program;

                       (4) focuses on English language arts, mathematics, science,
                  history, and self-discipline;

                        (5) provides for students’ educational and behavioral needs;
                  and

                        (6) provides supervision and counseling.
Id.5 37.008(a)(l) - (6).     Section 37.011 requires a juvenile board in a county with a
population greater than 125,000 to develop a JJAEP. A JJAEP “must focus on English
hmguage arts, mathematics, science, history, and seWiscipline,” id 5 37.011(d), and
must operate at least seven hours a day, 180 days per year, id 8 37.011(t).6 Section
37.012(a) requires the school district in which a student is enrolled on the date the student
is ordered to attend the JJAEP to transfer to the juvenile board in charge of the JJAEP
“funds equal to the district’s average per student expenditure in [AEPs]” for the portion of
the year the student will attend the JJAEP.

        ~These alternative placement settings dovetail with the progressive sanctions set
forth in chapter 37. School-administered AEPs serve students who have engaged in less
serious misconduct, while juvenile board-administered JJAPPs serve students who have
engaged in more serious misconduct. A student may be placed in an AEP in one of
several ways.’ Fist, a principal may place a student in an AEP if the student has been
removed t%oma classroom by a teacher for repeatedly interfering with the teacher’s abiity


       6Ajuveaile board in a countywith a populationcf 125,000or less may developa JJAEP. Edna.
Code0 37.011(a). Sucha JJAEPis not subjectto the npuirementsdsection 37.011.s&sections(c), (a),
(0. or (g). Id.

         ‘A’AwwhoisplacedinanAEPbya~wldistrictforalengthoftimetoadendkyondthe
next gradingperiodis entitledto certsinpro&mea      Id. 4 37.009(b). (c), (d).




                                                    p.   2276
The Honorable Mike Driscoll - Page 4             (DM-412)




to communicate with the other students in the class or repeatedly interfering with the other
students’ ability to learn. Id.$37.002(b),     (c).Under section 37.006, a school district
must transfer to an AFS a student who (i) engages in conduct punishable as a felonyS or
(ii) commits certain offenses9 on school property or while attending a school-sponsored or
school-related activity.tO In addition, a court may order a student who has been expelled
pursuant to section 37.007, see discussion i&z, to attend an AEP as a condition of
probation if the school district and the juvenile board have entered into a memorandum of
understanding “concerning the juvenile probation department’s role in supervishtg and
proviclmg other support services for students in alternative education programs.” Id.
g 37.010(c).

        A school district must expel a student from school if the student commits certain
weapons offenses or other serious offenses, such as aggravated assault, sexual assault,
arson, murder, indecency with a child, or aggravated kidnapping on school property or
while attending a school-sponsored or school-related activity on or off school property, id.
$37.007(a), or if the student engages in conduct which contains elements of these
offenses against any school district employee in retaliation for or as a result of the
employee’s employment with the school district, id.8 37.007(c).l~    A school district may
expel a student who has been placed in an AEP for disciplinary reasons and continues to




         Vlte offensestnclu&z assault muter Penal CBdemction 22.01(a)(l) or tcrmristic threat under
Penal code kxdon 22.07;CerIaindrug and alcohel-relate6effv    L%&Scsmlfuiagte abnsahlegllle of
aemsolpaint muterHealth and SafetyCedesections485.031thmn& 485.035er v&tile chemicelsu&r
Hcalthandsatetyc4dccbapta484,orpubliclewdnssundapcnalcodeEection21.o7orindscnt
expomrcmbk penal Code suiloa 21.08. Edw. Code 8 37.OOb(a)(l)     - (5). In additlo~ a studentwho
engagsinthcoffenscofrctaliatioqPenalCodeg36.06,againstaschoolanployaemustbeplacedinan
ABP. Edue. cadc 85 37.006@),37.007(c). Jf the wodnu omtalm the elemem cf cemia lwapons
~~orotherseriousoffense$suchasaggrwatedassault,sacualassault,arsoqmurda,~
with a child, or aggmwtcdkklasppiag,the studentmustbe e&led. Id. Q37.007(a).

         Wades se&on 37.001(a)(4).a studentcede of cemlact mast “spscttyccnditicns that antherire
orrequinap~~orotherappropriatcadministrstortotranderastudenttoanaltanativceducation
prcgrare” Wedonotaddnsswhetheraschooldisbidmustincorporatc~~~wnditi~into
the studentcodeof conductor is authorizedto ad6 to or medifythese statutoryamditioas.

        llJf a student engages in the offense of retali&on, see Penal Code g 36.06, against a s&co1
employeeand the conduct contains the elementscf certain weaponsoffcases or ether sexieuso&nscs,
such as aggravated assault, sexual assault, arson. murder, tn&eacy with a child, or aggravated
kidnappiq the student must be qelkd. Educ. Cede 8 37.007(c). In arkltticq federal law reqires a
schooldistrictto expela studentwhobringsa tirearm to school. See id. p 37.007(d).




                                                 p. 2277
TheHonorableMikeDriscoU           - Page 5       (DM-412)




engage in serious or persistent misbehavior that violates the district’s student code of
conduct, id.3 37.007(b), or a student who engages in conduct that contains the elements
of the offense of criminal mischief if the conduct is punishable as a felony, id.
3 37.007(t).r2 Expulsion appears to include expulsion from all school district campuses
and programs, including an AEP.” See id.  3 37.008(l1).~~

       Although chapter 37 provides great detail regarding the circumstances under
which a student must or may be transferred to an AEP or expelled, it says relatively little
about placement in a JJAEP. Section 37.01 l(b) provides that if a student is found to have
engaged in conduct for which a student may be expelled under section 37.007, see srrpra,
and is found by a juvenile court to have engaged in delinquent conduct,ts the juvenile


       ‘%ee Renal code $J28.03.

       13Sec60n37.007(d)(2) pmvidcs,however,that a schooldisuicamay provide.educationalmvtces
toashdemwhois~~fcrbringingafirearmtoschoolpursuanttofederallaw,rwsvpcrllotell,at
anAm.

       14Befomastudentisurpelled,tbeschooldistridboardottrusteesortheboard’sdcsignecmust
pmvidetlmsMeatwithadueprocesskaring.         I?duc.Codc~37.009@.




       tsFamilyCc&, sect&m51.03(a)&tines the team?l&qumt mrulwt”as follows:


                (1)wnduct,ctherthsaatraf6cctT~Urstvt&tesapeaallawcfthis
          stateorofthcUaitedStatespnatsh&lebyimprisommnt orby-ln
          jail;
               (2) wndudtbatviolatesarrawnableaodtawfulorda~ajwenilccowt
          ented under Section54.04or 54.05ofthiscode,exceptan crder pmhiiting the
          folloWh&wacucu




                    (B) themmxwsedvol~abseaccofadildfmms&oo~or

                   (C) the vohmtmy abscixe of a child from his home without the
               consentof his parentor.gaardianfor a substantiallength of time or without
               imcot to return;

              (3) conductthatviolatesa lawtid o&x of a mmdcipalcourtorjusdce wart
          undercircumstancesthatwould constitutecontemptof thatwua; or




                                               p.   2278
The Honorable Mike Driscoll - Page 6           (DM-412)




court shall rewire the JJAEP in the county in which the conduct occurred to provide
educational services to the student, id.           and order the student to attend the
                                       $37.011(b)(l),
JJAEP. id.$37.01   l(b)(2).

        Jn essence, you ask whether a juvenile board is authorized to provide educational
services to students other than pursuant to a juvenile wurt order under section
37.011(b)(l). You suggest that under section 37.011(b) a juvenile board may be iimited
to providing educational services to students pursuant to a juvenile court order,
contending that because “the statute mentions no other class of students who should be
placed in a JJAEP . . . [t]his express listing of those who must attend the JJAEP is the
equivalent,of the express exclusion of all others.” We disagree. We construe section
37.011(b) to delineate the circumstances under which a juvenile wurt must order the
JJAEP in the county in which the conduct occurred to provide educational services to the
student and order the student to attend the JJAEP.16 To construe section 37.011(b) to
exclude the placement of students in a JJAEP in other situations would not be wnsistent
with other provisions of chapter 37, particularly section 37.001, the student code of
conduct provision We believe that a juvenile board’s authority to provide educational
services to students under other cirannstances must be implied from section 37.001. As
we explain below, to conclude otherwise would render two requirements for a student
code of conduct supertluous. We must construe chapter 37 to avoid this result. See
Gov’t Code 5 311.021(2) (m enacting a statute, it is presumed that the entire statute is
intended to be effective).

         Section 37.001 requires each school district to adopt a student code of conduct
jointly, as appropriate, with each juvenile board in the county. The student code of
conduct must “outline the responsiiities        of each juvenile board wnceming the
establishment and operation of a [JJAEP],” Educ. Code 8 37.001(a)(2), and “define the
conditions on payments Corn the district to each juvenile bosrd,” id 3 37.001(a)(3). Jfthe
legislature had intended to limit juvenile boards to providing educational services to
students pursuant to a juvenUe court order under section 37.011(b), a juvenile board’s
responsibiity to establish and operate a JJAEP would be lily elaborated by sections
37.011 through 37.013. The legislature would not have rewired .a school district to
outline with juvenile boards “the responsiiities of each jwenile board wnceming the
establishment and operation of a [JJAEP].” Id.§ 37.001(a)(2). Furthermore, as noted


(foouIoteWminued)
               (4) waduct that violates tke lsws ef this state pmhttittag driving whtle
          intoxicatedor m&r the lafhuncc ef intoxkating liqwr (third or subsequent
          offense)ordrivingwhileunderthcinnuenccofany-tic~gor~anyothcr
          drug to the degme that rendersthe child incapable of safely driving a vehicle
          (third or suhseqnerrtoffense).
          ‘6Wehwcnotb&naskedand&notaddnsswhetherajwcnilccourthasthe~~toorda
a child to attend a JJAEPtraderany ether circumstances.




                                               p.   2279
The Honorable Mike Driscoll - Page 7            (DM-412)




above, section 37.012(a) requires the school district in which a student is enrolled on the
date the student is ordered to attend the JJAEP to tmnstbr tbnds to provide for the
student’s education to the juvenile board in charge of the JJAEP. A school district is
unwnditionally obliged to transfer these t%nds to the juvenile board. Had the legislature
intended to limit juvenile boards to providing educational services to students pursuant to
a juvenile court order under section 37.01 l(b), it would have been u~ecessary    to require
a school district to detine with juvenile boards “the conditions on payments f&m the
district to each juvenile board.” Id.3 37.001(a)(3).r7

        In addition, as you point out in your brief, if one were to conclude that a juvenile
board is limited to providing educational services to students found to have engaged in
conduct justifying expulsion and found by a juvenile court to have engaged in delinquent
conduct, then students who are expelled but who have not been adjudicated delmquent
will have no access to a JJAEP and thus could possibly have no access to education and
other services.r* It is unliiely that the legislature intended to make education and other
services available to expelled students who have been adjudicated delinquent but deny all
access to education and other services to expelled students who have not been adjudicated
delinquent by a juvenile wurt. It is also unlikely that the legislature intended to create
obstacles to placing expelled students who have not been adjudicated delinquent in
supervised, educational settings. Again, we must construe chapter 37 to avoid this result.
See Gov’t Code 5 311.021(3) (m enacting a statute, it is presumed a just and reasonable
mult is intended).

        Furthermore, the wntinuum of sanctions and ahemative placement settings for
behavior management in chapter 37 is designed to protect the safety of schools and
wmmunities, and to prevent students who misbehave gem wmmitting more serious
offenses, by providing problem students with ongoing supervision, education, and other
appropriate services. Construing chapter 37 to preclude juvenile boards gem enrolling
students who have been expelled but not adjudicated delinquent would break this
wntinuum, Construing chapter 37 to permit jwenile boards to enroll these students, on
the other hand, is consistent with the framework of progressiie sanctions and alternative
placement settings established by the legislature.

        You also ask if a juvenile board is authorized to enter into a memorandum of
understanding with school districts that provides for JJAEP placement of students expelled




         ‘*ASnoted above,a wmt may order a studentwho has been expelledpnrsnant to section37.007
to attend8 regularclsssmem,a regularcamw or aa AEPas a conditionof pmbation only if the s&eel
distridandthejwenileboardhaveenteredintoamemorandumofunderstanding=~the
jovcde probationdepartment’smle in supervistt aad provtdiagother support servicesfor studentsin
altemativeeducationprograms.”Educ.Cede5 37.010(c).



                                               p.   2280
TheHonorableMikeDriscoll        - Page 8        (DM-4   12)




gem school but not adjudicated delinquent pursuant to section 37.011@).*9 Although
section 37.001 not does expressly authorize a school district and a juvenile board to enter
into a memorandum of understandiig, we believe it impliedly authorizes a school district
and a juvenile board to enter into a memorandum of understanding wnsistent with a
jointly adopted student code of conduct in order to reduce obligations undertaken by the
school district and juvenile board in the student code of conduct to a formal agreement
and to separate those obligations Uom other matters which must be included in a student
code of wnduct20 For the reasons stated above, we believe that such a memorandum of
understanding may provide for JJAFP placement of students expelled from school but not
adjudicated delinquent pursuant to section 37.01 l(b).21




                (1) S’udcatswhose scricmsor pcr&cct misbehaviorwarmats cxpclsicn
           pm-smutto s&ion 37.007@).whc have not 01 could act be adj”dJcatcdas
           delinquent
                (2) SW         who arc sobjeot to nmdtmy eqndsion for wmmtt’mS
           offenseslisted in se&on 37.007(a),(c). (a). er 0. who haw oat ye.tbeen fcuad
           tohawcqagedladebpeotumdwtbyajnvenUecourt;
                (3) Studcotsexpelledfor committingcffcnscs Uskd in s&ion 37.007(a),
           (c),(d),or(~~whowenfoundbythejwenilew~tohavewmmittcda
           kscr offense”;
                 (4) Studentsexpclledforwmmitliag&ensesUsted       in 6eetieo37.007(a),
           (c), (a). or Q “for whom 00 petitiondlegiog dchqwwy    Is illed by the dimld
           anomcy or for whomthe petitionhas b&n withdrawn.”


        ~Section37.010(c)providcsthatacautmayorQrashdentwbohssbem~~plrsoantto
~on37.007toattadaregulardassoom,angularcampyoranAEPasaw~tionofprobation
oalyifthcschccldi&c4audthcjmcailehcardbaveeatcredtatcammorandumof~
“wwcroiog the jwenile pmbaticn-6          role in supavising andpmvidhgothrmppoltseNias
for stadcnu in al’cmati~ cdw&m prcSm”‘s.” seotion 37.010(c)appwrs tc ‘cfcr tc memorandaof
amderstandiogrcSardi”SAUl’sasopposed’cJJAEF’s.

        21YoarbriefsuggeststbatstudentswouldbcplaadinaJJAEpwithparcntalwnsent The&cm,
wc&notaddresrwhethaascbooldistridiFauthoriadtoplacea~inaJJAEPwithoutpanntal
omscnt. Forthisrrason,wealso&notsddrrsswhe(haaschooldistridmustaffordastudtntduc
p-kfonplacingthcstudentinaJJAEPwithoutparentalw~orwhcthaastudentcode~
w~~tbatdoeswtprovidcducp-insuchciraunstarrceswouldviolatetheUnitedStates
Constitntioe C/:Nevare.r,.wpm. S&ion 37.009(f)prcvi& that a school district must providea shuica’
a due processhearingLxforcthe studentmayhc cxpcllcdunder section37.007. Nchhcr section37.009(t)
wr any c&r provision of which we arc aware d&Us the prcccdnrcswhich might bc applicabletc a
schooldisuict’s decisionto place a shrdectwhohas been cxpcllcdin a JJAEF’.




                                                 p.   2281
The Honorable Mike DriscoU - Page 9        (DM-412)




                                 SUMMARY

              A county jwenile board is authorized to provide educational
         services at a juvenile justice alternative education program to
         students other than pursuant to a juvenile court order under section
         37.011@)(l). A county juvenile board is authorized to enter into a
         memorandum of understanding with school districts that provides for
         JJAEP placement of students expelled from school but not
         adjudicated delinquent pursuant to section 37.01 l(b).




                                                  DAN, MORALES
                                                  Attorney General of Texas

JORGE VEGA
Fht Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by Mary R Crouter
Assistant Attorney General




                                           p.   2282
