   OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

   JOHN     CORNYN




                                               February 8,2002



The Honorable Bruce Isaacks                              Opinion No. JC-0459
Denton County Criminal District Attorney
1450 East McKinney, Suite 3 100                          Re: County’s and school district’s obligations
P.O. Box 2850                                            vis-a-vis a juvenile justice alternative education
Denton, Texas 76202                                      program, and related questions     (RQ-0420-JC)


Dear Mr. Isaacks:

         You ask several questions about a juvenile justice alternative education program (“JJAEP”)
established in your county under section 37.011 of the Education Code.’ See TEX. EDUC. CODE ANN.
5 37.011 (Vernon Supp. 2002); see also id. 5 37.01 l(f). You specifically ask seven questions:

                  1) What are Denton County’s obligations concerning the JJAEP?

                  1) What authority do the County and the Independent School
                     Districts (ISDs) have regarding discretionary expulsion referrals
                     to the JJAEP?

                 2) May the Denton County Juvenile Board (Board) contractually                set criteria
                    with the ISDs for discretionary expulsion referrals?

                 3) What are the ISDs’ obligations             in funding     the building    of
                    facilities?

                 4) Do the current contracts with the ISDs conform to current law?

                 5) What is the County’s obligation or exposure if the discretionary
                    referrals exceed the capacity of the County’s facility?

                 6) May the Juvenile Board purchase real estate or accept donations
                    of real estate to be used as a JJAEP?

Request Letter, supra note 1, at 2. We begin by summarizing              relevant statutes.



          ‘Letter fromHonorable Bruce Isaacks, Denton County Criminal District Attorney, and Carmen Rivera-Worley,
Assistant District Attorney, to Honorable John Comyn, Texas Attorney General (Aug. 20,200l) (on file with Opinion
Committee) [hereinafter Request Letter].
The Honorable Bruce Isaacks     - Page 2         (JC-0459)




         The Denton County Juvenile Board has been established in accordance with section 152.0671
of the Human Resources Code, a special statute pertaining only to Denton County (the County). See
TEX. HUM. REs. CODEANN. 8 152.0671 (Vernon 2001). The Board is comprised of the county judge,
the district judges in Denton County, and any statutory county court judge in the County. Id.
9 152.0671 (a). The County commissioners court pays Board members an annual salary, set by the
commissioners court, of at least $1,500. See id. 5 152.0671(c).

         Although a juvenile board has ties to the county commissioners court, it is subject to only
limited supervision by the cornmissioners court. A juvenile board is largely independent of the
county comrnissioners court. See Tex. Att’y Gen. Op. No. JC-0085 (1999) at 1. A juvenile board
receives both state and county funds. Id. at 1; see TEX. HUM. RES. CODEANN. 90 141.081, .082,
152.0012, .0671(c) (Vernon 2001); Tex. Att’y Gen. Op. No. JC-0209 (2000) at 2. A county
commissioners court in preparing the county budget must determine the amount of county funds that
it will allot to the juvenile probation department in the upcoming fiscal year and may review, to a
limited extent, the board’s budget. See TEX. LOC. GOV’T CODEANN. $5 111.094,140.004 (Vernon
1999); Tex. Att’y Gen. Op. No. JC-0209 (2000) at 3. “The commissioners court may decide the
dollar amount it will give the buvenile] board” and may review that portion of the juvenile board’s
budget that is paid out of county funds using an abuse-of-discretion standard, but it may not review
any portion of the budget that is paid with state funds. Tex. Att’y Gen. Op. No. JC-0085 (1999) at
2; see TEX. HUM. RES. CODE ANN. 9 152.0012 (Vernon 2001); TEX. Lot. GOV’T CODE ANN.
§ 111.094 (Vernon 1999). A county commissioners court has no general supervisory authority over
the juvenile board. See Tex. Att’y Gen. Op. No. JC-0085 (1999) at 3. A juvenile board may enter
a contract without the commissioners court’s approval. See Tex. Att’y Gen. Op. Nos. JC-0209
(2000) at 2, DM-460 (1997) at 6.

         The juvenile board of a county with a population greater than 125,000, such as yours, must
develop a JJAEP “subject to the approval of the Texas Juvenile Probation Commission.”             TEX.
EDUC. CODEANN. 0 37.01 l(a) (Vernon Supp. 2002); 1 BUREAUOF THECENSUS,U.S. DEP’T OF
COMMERCE,1990 CENSUSOF POPULATION,             General Population Characteristics: Texas 2 (1992)
(Denton County population is 273,525) (432,976 according to 2000 census, available at http://
www.census.gov/).     A student who has committed a serious offense that requires expulsion under
section 37.007(a), (d), or (e) of the Education Code, such as possessing a weapon or committing
aggravated assault, will be ordered to attend a JJAEP. See TEX. EDUC.CODEANN. TV      37.007(a), (d),
(e) (Vernon Supp. 2002). Other offenses, such as violating the school district’s code of conduct or
possessing illegal drugs, do not require expulsion, although section 37.007(b), (c), (d), or (f) of the
Education Code authorizes it. See id. 55 37.001, .006, .007(b), (c), (d), (f) (Vernon Supp. 2002).
These are the “discretionary expulsions” to which your questions refer. See Request Letter, supra
note 1, at 2.

         Section 37.011 envisions that a JJAEP will require a juvenile board and the school district
or districts within the county to interact:

                   (e) A juvenile justice alternative education program may be
               provided in a facility owned by a school district. A school district
The Honorable Bruce Isaacks   - Page 3          (JC-0459)




              may provide personnel and services for a juvenile justice alternative
              education program under a contract with the juvenile board.




                  (j) In relation to the development and operation of a juvenile
             justice alternative education program, a juvenile board and a county
              and a commissioners court are immune from liability to the same
              extent as a school district, and the juvenile board’s or county’s
             professional employees and volunteers are immune from liability to
             the same extent as a school district’s professional employees and
             volunteers.

                 (k) Each school district in a county with a population greater than
              125,000 and the county juvenile board shall annually enter into a joint
              memorandum of understanding that:

                       (1) outlines the responsibilities of the juvenile board
                  concerning the establishment and operation of a juvenile
                 justice alternative education program under this section;

                      (2) defines the amount and conditions on payments from
                 the school district to the juvenile board for students of the
                 school district served in the juvenile justice alternative
                 education program whose placement was not made on the
                 basis of an expulsion under Section 37.007(a), (d), or (e);

                      (3) identifies those categories of conduct that the school
                 district has defined in its student code of conduct as
                 constituting serious or persistent misbehavior for which a
                 student may be placed in the juvenile justice alternative
                 education program;

                     (4) identifies and requires a timely placement and
                 specifies a term of placement for expelled students for whom
                 the school district has received a notice under Section
                 52.041(d), Family Code;

                      (5) establishes services for the transitioning of expelled
                  students to the school district prior to the completion of the
                  student’s placement     in the juvenile justice alternative
                  education program;
The Honorable Bruce Isaacks     - Page 4          (JC-0459)




                        (6) establishes a plan that provides transportation services
                   for students placed in the juvenile justice alternative education
                   program;

                         (7) establishes the circumstances and conditions under
                   which a juvenile may be allowed to remain in the juvenile
                   justice alternative education program setting once the juvenile
                   is no longer under juvenile court jurisdiction; and

                       (8) establishes a plan to address special education services
                   required by law.

                    (Z) The school district shall be responsible for providing an
                immediate educational program to students who engage in behavior
                resulting in expulsion under Section 37.007(b), (c), and (f) but who
              . are not eligible for admission into the juvenile justice alternative
                education program in accordance with the memorandum                 of
                understanding required under this section. . . . The memorandum of
                understanding   shall address the circumstances under which such
                students who continue to engage in serious or persistent misbehavior
                shall be admitted into the juvenile justice alternative education
                program.

                   (m) Each school district in a county with a population greater than
               125,000 and the county juvenile board shall adopt a joint
               memorandum of understanding as required by this section not later
               than September 1 of each school year.




                    (0) In relation to the development and operation of a juvenile
               justice alternative education program, a juvenile board and a county
                and a commissioners court are immune from liability to the same
                extent as a school district, and the juvenile board’s or county’s
                employees and volunteers are immune from liability to the same
                extent as a school district’s employees and volunteers.

TEX. EDUC. CODEANN. 5 37.0 11 (Vernon         Supp. 2002). Generally, the school district in which a
student is enrolled on the date the student is expelled for reasons other than a mandatory expulsion
must, if the student attends the JJAEP, “provide funding to the juvenile board for the portion of the
school year for which the juvenile justice alternative education program provides educational
services in an amount determined by the memorandum                 of understanding    under Section
37.01 l(k)(2).” Id. tj 37.012(a).
The Honorable   Bruce Isaacks   - Page 5         (JC-0459)




        You state that the Denton Independent School District, Denton County, and the Board
entered an interlocal cooperation agreement on February 10,1998, which has automatically renewed
itself annually.    See Request Letter, supra note 1, at 2. The Board and all Denton County
independent school districts executed a memorandum of understanding for the 2000-2001 school
year on July 26,200O. See id.

         We do not answer your fifth question regarding whether the Board’s current contracts with
the school districts “conform to current law” for two reasons. See Request Letter, supra note 1, at
2. First, you did not include copies of any of the agreements in your letter to us. Second, in any
event, reviewing contracts is not an appropriate function for the opinion process. See Tex. Att’y
Gen. Op. No. JM-697 (1987) at 6; see also Tex. Att’y Gen. Op. No. DM-192 (1992) at 10. With
this exception, we address your remaining questions.

         Your first and sixth questions, which we answer together, concern Denton County’s legal
obligations vis-a-vis the Denton County JJAEP generally and, in particular, if the “discretionary
referrals exceed the” JJAEP facility’s capacity. See Request Letter, supra note 1, at 2. As you state,
subsections (j) and (0) of section 37.011, by immunizing a county and a commissioners court from
liability with respect to the development and operation of a JJAEP, may suggest that a county in fact
has some legal obligations and liabilities. See TEX. EDUC. CODEANN. 8 37.01 l(j), (0) (Vernon Supp.
2002).

         Outside of its responsibility to provide some funding to the juvenile board and to review that
portion of the juvenile board’s budget funded with county monies, however, neither a county nor a
commissioners court is statutorily responsible for any aspect of the development or operation of a
JJAEP. A county commissioners court may exercise only those powers that the state constitution
and statutes confer upon it, either explicitly or implicitly. See Tex. Att’y Gen. Op. Nos. JC-0239
(2000) at 2, JC-0 17 1 (2000) at 1. As we have stated previously, “the juvenile probation board is an
independent entity whose acts are subject to very limited scrutiny by the commissioners court of the
county in which it is located.” Tex. Att’y Gen. Op. No. JC-0085 (1999) at 1; see also Tex. Att’y
Gen. Op. No. JC-0209 (2000) at 2 (stating that, generally, juvenile board is entity “separate and
apart” from its county and commissioners court). Moreover, the commissioners              court has no
authority to determine how the juvenile board is to expend its funds. See Tex. Att’y Gen. Op. No.
JC-0085 (1999) at 2.

        In our opinion, the county’s only liability may correspond with its limited responsibility to
provide funds to the juvenile board and to supervise the juvenile board’s budget. See also TEX. CIV.
PRAC. & REM. CODEANN. 5 102.002(a) (Vernon Supp. 2002) (authorizing county to pay actual
damages awarded in negligence action against county employee who, in the course and scope of
employment, injured another). The extent of a county’s obligations or liabilities in any particular
case depends upon the facts of the situation and must be decided by a court on a case-by-case basis.
See, e.g., Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond
purview of this office), JC-0027 (1999) at 3 (stating that questions of fact cannot be addressed in
attorney general opinion), JC-0020 (1999) at 2 (stating that investigation and resolution of fact
questions cannot be done in opinion process).
The Honorable Bruce Isaacks - Page 6               (JC-0459)




        Your second and third questions concern the allocation of authority to determine which of
the discretionary expulsions under section 37.007(b), (c), (d), or (f) will result in placement in a
JJAEP. First, you wish to know what authority the county and independent school districts have
regarding discretionary expulsion referrals to the JJAEP. See Request Letter, supra note 1, at 2.

        We do not believe a county has any authority to determine which discretionary expulsions
will be subject to placement in the JJAEP. Nothing in the statute gives a county any such authority,
and we find no reason to imply the authority.

         On the other hand, a school district’s authority stems from its duty to negotiate the required
annual memorandum        of understanding with the juvenile board. See TEX. EDUC. CODE ANN.
9 37-011(k),   (0 (V emon Supp. 2002). In a county with a population greater than 125,000, like
Denton County, each school district and the juvenile board annually must enter a “joint
memorandum of understanding that . . . identifies those categories of conduct that the school district
has defined in its student code of conduct as constituting serious or persistent misbehavior for which
a student may be placed in the” JJAEP. Id. § 37.01 l(k)(3). The memorandum of understanding also
must “address the circumstances under which . . . students [placed in the school’s alternative
education program] who continue to engage in serious or persistent misbehavior shall be admitted
into the” JJAEP. Id. 8 37.011 (Z). And the memorandum of understanding must specify the amount
and conditions under which the school district will pay the juvenile board for each student placed
in the JJAEP following a discretionary expulsion. See id. tj 37.01 l(k)(2).

         Conversely, to answer your third question regarding the juvenile board’s authority to set
criteria for discretionary expulsion referrals, the juvenile board must negotiate with the school
district to determine the discretionary expulsions for which a student may be placed in the JJAEP.
See id. 8 37.011 (k)(3). In this way, both the school district and the juvenile board have authority to
determine discretionary expulsions that will be subject to placement in a JJAEP, but the authority
of each is subject to what the other will accept in the memorandum of understanding.       If the board
and the district cannot agree on the offenses that qualify for placement in the JJAEP, the parties may
arbitrate the dispute in accordance with section 37.01 l(p). See id. 4 37.01 l(p).

         Under the statute, the eligibility criteria set in the memorandum of understanding may be
based upon classifications of misbehavior only. In your letter to this office, you state that “[alge,
mental status, special needs or requirements might be included in . . . eligibility standards” under a
memorandum of understanding. Request Letter, supra note 1, at 7. You believe that “the statute is
totally silent in this regard.” Id. We disagree. Section 37.01 l(k)(3) requires a memorandum of
understanding to identify the “categories of conduct” for which a student may be placed in a JJAEP.
TEX. EDUC. CODE ANN. tj 37.01 l(k)(3) (V emon Supp. 2002). None of the factors you list are
“conduct.” See III OXFORDENGLISH         DICTIONARY    690 sense 8.a (2d ed. 1989). Nor does the statute
articulate any category of characteristics, other than conduct, for which a student may be placed in
a JJAEP. Coincidentally, a brief we have received suggests that federal law and other state law
prohibit discrimination on the basis of disability or qualification for services.* See 20 U.S.C. ch. 33


        2See Letter fr om Mr. David A. Anderson,   General   Counsel,   Texas Education   Agency,   to Honorable John
                                                                                                         (continued...)
The Honorable Bruce Isaacks           - Page 7           (JC-0459)




(1994); TEX. EDUC.CODEANN. ch. 29, subch. A (Vernon 1996 & Supp. 2002). Moreover, a student
with a disability may be placed in an alternative education program only in accordance with section
37.004 ofthe Education Code. See TEX. EDUC.CODEANN. 8 37.004 (Vernon Supp. 2002) (amended
by Act of May 27,2001,77th     Leg., R.S., ch. 1225,s 1,200l Tex. Sess. Law Serv. 2654,2654, and
Act of May 17,2001,77th      Leg., R.S., ch. 767, 5 6,200l Tex. Sess. Law Serv. 1418, 1419).

          You ask fourth whether a school district is obligated to fund the building of JJAEP facilities.
It is not. Nothing in the statute requires a school district to fund construction of JJAEP facilities.
The statute permits a school district to provide a facility it owns for the JJAEP, but the statute does
not require it to do so. See TEX. EDUC.CODEANN. 0 37.011 (e) (Vernon Supp. 2002). Additionally,
the school district must pay the juvenile board a certain sum for students who are placed in the
JJAEP following a discretionary expulsion. See id. 8 37.01 l(k)(2). The statute does not indicate
whether a school district may agree to make additional payments for the costs of constructing a new
facility.

        You ask finally whether a juvenile board may purchase real estate or accept donations of real
estate to be used as a facility for the JJAEP. The board has only those powers that it has been
expressly given by law, as well as those that may be implied from the express delegation. See Tex.
Att’y Gen. LO-93-007, at 1.

        We conclude that a juvenile board may purchase real estate for JJAEP purposes. A juve-
nile board may enter a contract without commissioners court approval. See Tex. Att’y Gen. Op. No.
JC-0209 (2000) at 2. Additionally, a juvenile board may determine how to expend its funds, with
limited commissioners court review. See id. at 3. But see id. at 4 (stating that juvenile board must
expend funds according to its budget unless budget is amended). A juvenile board in a county with
a population greater than 125,000 must operate a JJAEP, presumably in a facility. No one is
required by statute to provide the facility, although a school district may provide a facility. See TEX.
EDUC. CODEANN. fj 37.01 l(a), (e) (V emon Supp. 2002). We deduce that the juvenile board thus
has implied authority to purchase and own real estate for the purpose of providing a JJAEP facility.

          But we also conclude that the Denton County Juvenile Board may not accept contributed real
estate for JJAEP purposes. An agency may not accept a donation unless it is authorized bylaw to
do so. See Tex. Att’y Gen. Op. Nos. JM-1019 (1989) at 4, JM-684 (1987) at 2; see also Tex. Att’y
Gen. LO-97-032, at 1. Nothing authorizes the Denton County Juvenile Board to accept donations.
See TEX. HUM. RES. CODEANN. ch. 152, subch. A (Vernon 2001 & Supp. 2002); id. 8 152.0671
 (Vernon 2001). By contrast, section 152.0037 ofthe Human Resources Code, which applies to some
juvenile boards other than the Denton County Juvenile Board, see id. 5 152.0031 (Vernon 2001),
 expressly authorizes a board to accept “grants or gifts from other political subdivisions of the state
or associations for the sole purpose of financing adequate and effective probation programs.” Id.
 8 152.0037(a). Thus, the legislature has authorized certain juvenile boards to accept a contribution
 for certain purposes, but it has not authorized the Denton County Juvenile Board to do so for JJAEP
purposes.


       2(. ..continued)
Comyn, Texas Attorney     General (Oct. 4,200l)   (on file with Opinion Committee).
The Honorable Bruce Isaacks   - Page 8         (JC-0459)




                                      SUMMARY

                      Outside of its responsibility to provide some funding to the
             juvenile board and to review that portion of the juvenile board’s
             budget funded with county monies, a county or a commissioners
             court is not statutorily responsible for any aspect of the development
              or operation of a juvenile justice alternative education program
              (JJAEP). Because the juvenile board receives some county funds, the
             county may have corresponding obligations or liabilities.

                        A county has no authority to determine which expulsions that
              are discretionary under section 37.007 of the Education Code will be
              subject to placement in the JJAEP. See TEX. EDUC. CODE ANN.
              § 37.007(b), (4, (e), (f) (V emon Supp. 2002). A school district’s
              authority to determine which discretionary expulsions will be subject
             to placement in a JJAEP stems from its duty to negotiate with the
             juvenile board an annual memorandum of understanding.            See id.
              9 37.011(k), (Z). C onversely, the juvenile board’s authority to
              determine which categories of conduct will be subject to placement
              in the JJAEP is subject to negotiation with the school district. The
              eligibility criteria set in the memorandum of understanding may be
             based upon classifications of conduct only.

                    A school district is not obligated to fund the construction   of
              JJAEP facilities.

                     A juvenile board may purchase real estate for JJAEP
             purposes, but a juvenile board may not accept contributed real estate
             for JJAEP purposes unless the legislature has expressly authorized it
             to do so.




                                             Attorney General of Texas
The Honorable   Bruce Isaacks   - Page 9        (JC-0459)




HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DEN-MON GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
