   OFFICE   OF THE    ATTORNEY     GENERAL   . STATE    OF   TEXAS

   JOHN      CORNYN




                                                       December 27,200l




Mr. Jim Nelson                                                       Opinion No. JC-0446
Commissioner of Education
Texas Education Agency                                               Re: Whether a school district is required to expel
170 1 North Congress Avenue                                          a student who commits certain alcohol-and drug-
Austin, Texas 78701-1494                                             related felonies within 300 feet of school property
                                                                     (RQ-0415-JC)


Dear Commissioner          Nelson:

       You have requested our opinion as to whether a school district is required to expel a student
who con-units certain felonies within 300 feet of school property. For the reasons set forth below,
we conclude that a school district is not required to do so. Section 37.006(a) of the Texas Education
Code provides, in relevant part:

          (a) Except as provided by Section 37.007(a)(3) or (b), a student shall be removed
          from class and placed in an alternative education program as provided by Section
          37.008 if the student:




                   (2) commits the following on or within 300 feet of school property, as
          measured from any point on the school’s real property boundary line, or while
          attending a school-sponsored or school-related activity on or off of school property;

                                 (A) engages in conduct punishable            as a felony;

                             (B) engages in conduct that contains the elements                    of the
                     offense of assault under Section 22.Ol(a)( l), Penal Code;

                             (C) sells, gives, or delivers to another person or possesses or
                     uses or is under the influence of:

                                     (i) marihuana or a controlled substance, as
                             defined by Chapter 48 1, Health and Safety Code, or
                             by 21 U.S.C. Section 801 et seq.; or
Mr. Jim Nelson     - Page 2                             (JC-0446)




                                (ii) a dangerous drug, as defined by Chapter
                         483, Health and Safety Code;

                         (D) sells, gives, or delivers to another person an alcoholic
                 beverage, as defined by Section 1.04, Alcoholic Beverage Code,
                 commits a serious act or offense while under the influence of alcohol,
                 or possesses, uses, or is under the influence of an alcoholic beverage;

                          (E) engages in conduct that contains the elements of an
                 offense relating to abusable glue or aerosol paint under Sections
                 485.031 through 485.035, Health and Safety Code, or relating to
                 volatile chemicals under Chapter 484, Health and Safety Code; or

                         (F) engages in conduct that contains the elements of the
                 offense of public lewdness under Section 21.07, Penal Code, or
                 indecent exposure under Section 2 1.08, Penal Code.

TEX. EDUC. CODE ANN. 8 37.006(a) (Vernon Supp. 2002). Under this provision, a student who,
within 300 feet of the school property boundary line, commits any of the offenses listed in subparts
(A) though (9, must be placed in an alternative education program. The provision is subject to an
exception, which is the basis of your question, i.e., the effect of section 37.007(a)(3).’ Section
37.007(a) of the Education Code provides, in relevant part:

               (a) A student shall be expelled from a school if the student, on school
       property or while attending a school-sponsored or school-related activity on or off
       of school property:




                         (3) engages in conduct specified by Section 37,006(a)(2)(C)
                 or (D), if the conduct is punishable as a felony.

Id. 8 37.007(a) (emphasis added).

         Section 37.007, unlike section 37.006, requires expuZsion from school rather than placement
in an alternative education program. The issue you raise concerns the meaning of subdivision (3)
of subsection 37.007(a). On the one hand, it is part of section 37.007(a), which limits expulsion to
acts committed “on school property or while attending a school-sponsored or school-related activity
on or off of school property.” On the other hand, it references subparts 37.006(a)(2)(C) and (D),
which are part of subdivision (2) of subsection 37.006(a). Subdivision 37.006(a)(2) is of wider
geographical scope than subsection 37.007(a), in that it applies not only to acts committed “on . . .


        ‘You do not ask about subsection   37.007(b),   which relates to permissive   rather than mandatory   expulsion.
Mr. Jim Nelson    - Page 3                       (JC-0446)




school property . . . or while attending a school-sponsored or school-related activity on or off of
school property,” but also encompasses acts committed “within 300 feet of school property, as
measured from any point on the school’s real property boundary line.” Your question is therefore
whether a school district is required to expel a student whose conduct: (1) constitutes a felony; (2)
would require removal under subparts 37.006(a)(2)(C) or (D); (3) does not occur on school property
or while attending a school-sponsored or school-related activity on or off of school property; and
(4) does occur within 300 feet of school property as defined in subdivision 37.006(a)(2).

         In our opinion, the answer is governed by the plain language of the statute. The Code
Construction Act provides that words “shall be given their ordinary meaning.” TEX. GOV’T CODE
ANN. 8 3 12.002 (Vernon 1998). A literal reading of a statute will be used as the standard for
interpretation unless the literal text is unclear or would lead to an absurd result. See State v. Webb,
12 S.W.3d 808,811 (Tex. Crim. App. 2000); City of San Antonio v. Bullock, 34 S.W.3d 650,655
(Tex. App.-San Antonio 2000, pet. denied) (“A fundamental rule of statutory construction is that
a court should first ascertain the Legislature’s intent in enacting the statute as expressed in its plain
language.“).

         Subdivision 37.007(a)(3) requires mandatory expulsion for the conduct specified in subparts
37.006(a)(2)(C) or (D), p rovided the conduct described is a felony. Some of the acts listed in
subparts (C) and (D) are felonies, and some are misdemeanors. The issue, however, is whether, by
referring to section 37.006, subdivision 37.007(a)(3) incorporates activities occurring within 300 feet
of school property. It clearly does not, for two reasons. First, subdivision 37.007(a)(3) refers to
conduct rather than to geographical location. “Conduct,” in the referenced context, refers to a
“manner of conducting oneself or one’s life; behaviour.” III OXFORDENGLISHDICTIONARY690 (2d
ed. 1989). The “conduct” referred to consists of, on the one hand, selling, giving, or delivering to
another person, or possessing or using, marihuana or other such substances; and on the other, selling,
giving, or delivering to another person an alcoholic beverage, committing a serious offense under
the influence of alcohol, or possessing, using, or being under the influence of an alcoholic beverage.
Such conduct does not encompass the location where that conduct occurs.

         Secondly, and most significantly, subdivision 37.007(a)(3) is apart of, and is circumscribed
by, subsection 37.007(a). Subsection 37.007(a) limits mandatory expulsion to acts occurring “on
school property or while attending a school-sponsored or school-related activity on or off of school
property.” It does not comprehend acts that occur merely “within 300 feet of school property.”
Thus, we answer your question in the negative. A school district is not required to expel a student
whose conduct (1) constitutes a felony; (2) would require removal under subparts 37.006(a)(2)(C)
or (D); (3) does not occur on school property or while attending a school-sponsored or school-related
activity on or off of school property; and (4) does occur within 300 feet of school property as defined
in subdivision 37.006(a)(2).

        We note that section 37.019 of the Education Code may provide a means of expulsion in
emergency situations not contemplated by section 37.007. That provision permits a school district
to expel a student immediately “if the principal or the principal’s designee reasonably believes that
Mr. Jim Nelson   - Page 4                       (JC-0446)




action is necessary to protect persons or property from imminent harm.” TEX. EDUC.CODEANN. 5
37.019(B) (Vernon Supp. 2002). Section 37.019 specifies neither the type of conduct necessary to
initiate an immediate expulsion, nor does it limit its geographical scope. Rather, all that is required
is a reasonable belief that expulsion is “necessary to protect persons or property from imminent
harm.”
Mr. Jim Nelson    - Page 5                     (JC-0446)




                                        SUMMARY

                         A school district is not required to expel a student whose
                 conduct: (1) constitutes a felony; (2) would require removal under
                 section 37.006(a)(2)(C) or (D) of the Education Code; (3) does not
                 occur on school property or while attending a school-sponsored   or
                 school-related activity on or off of school property; and (4) does
                 occur within 300 feet of school property as defined in section
                 37.006(a)(2).

                                              Ve    trul   yours



                                             4ei--
                                              JOHN     CORNYN
                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
