                       January 9, 1969.

Honorable J. W. Edgar            M-332
Commissioner of Education
Texas Education Agency           Re: Questions concerning
201 East 11th Street                When   a   Student   may   be
Austin, Texas 78711                 legally suspended or
                                    expelled from school
                                    for drug abuse charges
                                    upon which a local
                                    school board finds the
                                    student guilty without
                                    awaiting disposition
                                    of criminal charges
                                    in court, and related
Dear Mr. Edgar:                     questions.
     you have requested the opinion of this office concerning
certain disciplinary powers on the part of the board of
trustees of an independent school district. Restated, your
questions are as follows:
    1.   May the board of trustees suspend or expel
    a student from school on the basis of an indict-
    ment for a narcotics offense (i.e..,illegal pos-
    session, use, or sale of prohibited drugs).
     2.   May the board of trustees suspend or expel
     a student accused of a narcotic offense following
     a hearing before the school board without awaiting
     the disposition of criminal trial in the courts.
    3.   Would the members of the school board be liable
    in damages for expelling a student for narcotic
    violation if such student were subsequently found
    innocent in the state court.
     In preparing this opinion, this office has examined the
disciplinary policies enacted by the school district in
question. It is noted that prior to November 12, 1968,
there was no policy concerning dangerous drugs and narcotics.



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It is our opinion that the board of trustees would have
no authority to expel a student for narcotic-connected
offenses occurring prior to that date.
     Since November 12, 1968, the following policy has been
in effect:
          "Any student known to have a dangerous drug
     or narcotic drug in his possession, or known to
     be under the influence thereof, while in school
     or while participating in a ,school-sponsored
     function, after due notice to the violator and
     after hearing before the Board of Trustees and
     if found guilty, the student shall be expelled
     for the balance of the semester and no credits
     be given to the student for the semester.
          "Any student who shall have been convicted
     of a misdemeanor or felony for the possession,
     use, or sale of a dangerous drug or narcotic
     drug while outside the school, will be expelled
     by the Board of Trustees for the current semester,
     and no credit be given to the student for the
     semester."
     Pursuant to the above policy, the board of trustees is
now enabled to exercise such powers as are delineated in
the recent case of Cornette v. Aldridge~,408 S.W.Zd 935
(Tex.Civ.App. 1966, err.ref.1, wherein the following
statements appear:
          "The courts will not interfere with the
     exercise of discretion by school directors in
     matters confided bye law to their judgment, unless
     there is a clear abuse of the discretion, or a
     violation of law. So the courts l ** will not
     consider whether the regulations are wise or ex-
     pedient, but merely whether they are a reasonable
     exerolse of the power and discretion of the board.
     Acting reasonably within the powers conferred, it
     is the province of the board of education to deter-
     mine what things are detrimental to the successful
     tntagement, good order, and discipline of the schools
         . The presumption is always in favor of the
     reasonableness and propriety of a rule or regulation



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Hon. J. W. Edgar, Page 3 .(M-332)


    duly made. The reasonableness.of regulations
    is a question of law for the courts.
         II
          ...the right to attend public schools is
    conditioned on compliance by pupils with established
    reasonable rules, regulations and requirements of
    the school authorities, breaches of which may be
    punished by suspension or expulsion and that the
    school authorities have the right to define the
    offenses for which the punishment of exclusions
    may be imposed, to determine whether the offense
    has been committed and that such discretion
    vested in school authorities is very broad.
         II
          ...its acts will not be interfered with nor
    set aside by the courts, unless there is a clear
    abuse of the power and discretion conferred. Acting
    reasonably within the powers conferred, it is the
    province of the board of education to determine
    what things are detrimental to the successful
    management, good order, and discipline of the
    schools and the rules required to produce these
    conditions.
          ...We agree with the Supreme Court of Tennessee
    in State ex rel. Sherman v. Hyman, supra, to the
    effect that a fair hearing before school officials
    does not contemplate a trial as in a chancery
    court or court of law. The student should be
    given every fair opportunity of showing his inno-
    cence, which Aldridge had. When they have done
    -and     the disciplinary committee has reached
    a conclusion, they have done all the law requires
    them to do." (Emphasis added.)
     It is, therefore, the opinion of this office that a
school board may expel a student for a narcotic violation
while in school or participating in a school sponsored
function as set forth in Section 1 of its disciplinary
poligies governing Dangerous Drugs and Narcotics following
a hearing before the board without regard to the disposition
of any criminal proceedings in the state court.
     It is our opinion that a student may be expelled fol-
lowing a hearing before the board if it be shown that such



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Hon. J. W. Edgar, Page 4   (M-332)


student had been finally convicted as set forth in Section
2 of the policy on Dangerous Drugs and Narcotics.
     It is further our opinion that liability on the part
of the members of the school board is governed by the
general rule in such matters and that no such liability
would arise in the absence of malice or gross misconduct
on the part of the board.

     However, there could be no right to expel or suspend
from school on the sole basis of an indictment. Such a
policy would be unreasonable. It is a basic tenet of
criminal law that an indictment is merely a written state-
ment of a grand jury accusing a person of some act or
omission which, by law, is declared to be an offense: it
constitutes no evidence of guilt and may not be considered
for any purpose other than as a legal pleading whereby
a case is brought into court for a hearing. See Articles
21.01, et seq., Vernon's Texas Code of Criminal Procedure,
and cases annotated thereunder.

     You are, therefore, advised that the school board
would not be authorized to act solely on the basis of an
indictment or complaint, but that it would be necessary
to have a hearing of its own wherein the student is given
every fair opportunity of showing his innocence of the
offense charged. Dixon v. Alabama, 294 F.2d 150 (5th
Cir. 1961), holding that the rudiments of an adversary
proceeding must be preserved to the end that the require-
ments of due process of law will have been fulfilled.

                    SUMMARY
               When a school board has published a
          discipline policy concerning Dangerous
          Drugs and Narcotics, a student may be
          expelled for violation of such policy.
               The school board must conduct its        .
          own hearing, and disposition of state
          court charges will have no effect on the
          action of the board (except as evidence).




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              Hon. J. M. Edgar, Page 5    (~-332)



                               The board incurs no liability if
                          its actions are reasonable, but it may
                          not legally suspend or expel a student
                          from school solely on the basis of an
                          indictment for a narcotics offense.
                          The student is entitled to a hearing
                          in which he is given every fair oppor-
                          tunity of showing his innocence of
                          the offense charged and the requirements
                          of due process of law must be fulfilled
                          before a school board may expel a student.
                                                         very truly,



                                                A orney General of Texas
                                                 I+
                                                 I/
              ?repared by Howard M. Fender
              Assistant Attorney General
              APPROVED:
              OPINION COMMITTEE
              Kerns Taylor, Chairman
              George Kelton, Vice-Chairman
              John Banks
              Mark White
              Tom Bullington
              Bob Darden
              Hawthorne Phillips
              EXECUTIVE ASSISTANT




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