   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN     CORNYN




                                               May 15,2002



The Honorable Bill Turner                               Opinion No. JC-0504
Brazos County District Attorney
Brazos County Courthouse                               Re: Whether section 37.123 of the Education
300 East 26th Street, Suite 310                        Code, which creates the offense of “disruptive
Bryan, Texas 77803                                     activity,” requires proof of intent (RQ-0474- JC)


Dear Mr. Turner:

         You have requested our opinion regarding the standard of proof required to sustain a
conviction under section 37.123 of the Education Code. Specifically, you ask whether that statute
requires proof of intent to disrupt a school assembly or to obstruct or restrain the passage of a person
in an exit or hallway, or whether it merely requires proof that the actor engaged in conduct that
ultimately had one of those effects.’ For the reasons stated below, we conclude that section 37.123
requires proof of an intent actually to disrupt a school assembly or actually to obstruct or restrain the
passage of a person in an exit or hallway.

        Section 37.123 of the Education Code provides, in relevant part:

                     (a) A person commits an offense if the person, alone or in concert
                 with others, intentionally engages in disruptive activity on the campus
                 or property of any private or public school.

                     (b) For purposes of this section, disruptive activity is:

                          (1) obstructing or restraining the passage of persons in an
                     exit, entrance, or hallway of a building without the
                     authorization of the administration of the school;

                          (2) seizing control of a building or portion of a building
                     to interfere with an administrative, educational, research, or
                     other authorized activity;




        ‘See Letter from Honorable Bill Turner, Brazos County District Attorney, to Office of Attorney General,
Opinion Committee (Dec. 4,200l) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Bill Turner     - Page 2           (JC-0504)




                         (3) preventing or attempting to prevent by force or violence
                or the threat of force or violence a lawful assembly authorized by the
                school administration so that a person attempting to participate in the
                assembly is unable to participate due to the use of force or violence
                or due to a reasonable fear that force or violence is likely to occur;

                        (4) disrupting by force or violence or the threat of force or
                violence a lawful assembly in progress; or

                        (5) obstructing or restraining the passage of a person at an exit
                or entrance to the campus or property or preventing or attempting to
                prevent by force or violence or by threats of force or violence the
                ingress or egress of a person to or from the property or campus
                without the authorization of the administration of the school.

                    (c) An offense under this section is a Class B misdemeanor.

TEX. EDUC. CODE ANN. 8 37.123 (Vernon 1996). You specifically ask about subdivisions (4) and (5):
disrupting a school assembly and “obstructing or restraining the passage of a person at an exit or
entrance to the campus or property or preventing or attempting to prevent by force or violence or by
threats of force or violence the ingress or egress of a person to or from the property or campus
without the authorization of the administration of the school.” You suggest the following scenario:

                By way of illustration, assume that one student pushes another
                student in the hallway or classroom of a school. In response, the
                second student hits the first student and a fight ensues. The fight is
                so loud it disrupts a teacher in the classroom who stops her class and
                tries to stop the fight. A crowd of other students, watching the fight,
                grows large enough to obstruct some students’ ability to pass through
                the hallway. Are the two students who fought guilty of violating
                [section] 37.123 of the Texas Education Code, even though they did
                not intend to disrupt the classroom or obstruct the hallway? Are they
                criminally responsible for “disruptive activity” even though their only
                intent was to engage in a fistfight?

Request Letter, supra note 1, at l-2.

        Initially, we note that while your question refers to subdivisions (4) and (5) of section 37.123,
you also speak in terms of “disrupting the classroom.” “Disruption of classes” is made an offense
by a different statute, section 37.124 of the Education Code. See TEX. EDUC. CODE ANN. 8 37.124
(Vernon 1996). It is a separate offense, and its elements differ from those of section 37.123.
Furthermore, an offense thereunder is a Class C, rather than a Class B misdemeanor.               See id.
4 37.124(b) (“o ff ense under [section 37.1241 is a Class C misdemeanor”); see also id. tj 37.123(c)
The Honorable Bill Turner       - Page 3            (JC-0504)




(“offense under [section 37.1231 is a Class B misdemeanor”). A briefwe have received suggests that
disruption of a class constitutes disruption of a “lawful assembly” under section 37.123 .2 Although
no portion of the Education Code defines “lawful assembly,” we do not believe that the term can be
reasonably applied to classroom activities, particularly when a separate statute is applicable to
disruption of classes.

          Subsection (a) of section 37.123 makes it an offense to intentionaZZy engage in “disruptive
activity.” Id. 8 37.123(a). Section 37.101 of the Education Code states that “[tlhe criminal laws of
the state apply in the areas under the control and jurisdiction of the board of trustees of any school
district in this state.” Id. 8 37.101. Section 6.03 of the Penal Code provides that “[a] person acts
intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct
when it is his conscious objective or desire to engage in the conduct or cause the result.” TEX. PEN.
CODE ANN. 5 6.03 (Vernon 1994); see Cole v. State, 46 S.W.3d 427, 433 (Tex. App.-Fort Worth
2001, pet. ref d). A person need not intend both his conduct and the result thereof in order to have
a culpable mental state. See Burnett v. State, 865 S.W.2d 223,230 (Tex. App.-San Antonio 1993,
pet. ref d). Intent may be inferred from the acts and circumstances surrounding a crime. Ly v. State,
943 S.W.2d 218,220 (Tex. App.-Houston         [ 1st Dist.] 1997, pet. ref d).

         Subsection 37.123(b) of the Education Code defines five kinds of conduct that constitute
“disruptive activity.” All five kinds of disruptive activity must be intentional to constitute an
offense. See TEX. EDUC. CODE ANN. 8 37.123(a) (Vernon 1996). To sustain a conviction, the actor
must be shown under subdivision (4) to intend to disrupt “a lawful assembly in progress.” Id.
8 37.123(a), (b)(4). T o sustain a conviction under subdivision (5), the actor need not disrupt, or
intend to disrupt, a lawful assembly; rather, the actor must either intend to obstruct or restrain “the
passage of a person at an exit or entrance to the campus or property,” or he must intend to prevent
or attempt to prevent by force or violence or by threat of such “the ingress or egress of a person to
or from the property or campus.” Id. 8 37.123(a), (b)(5). Furthermore, it must be shown that he
actually obstructed or restrained “the passage of a person at an exit or entrance to the campus or
property” or that he actually prevented or attempted to prevent “the ingress or egress of a person to
or from the property or campus.” Id. In both situations under subdivision (5), he must be shown to
have done so “without the authorization of the administration of the school.” Id.

         Under neither subdivision (4) or (5) would a student violate the statute merely by pushing
or fighting another student, unless his intent in doing so was to obtain one of the results proscribed
by those provisions. See id. 5 37.123(a). Of course, as we have noted, his intent might be implied
from the relevant acts and circumstances. See Ly, 943 S. W.2d at 220. Nevertheless, section 37.123
requires in order to sustain a conviction that the student intend by his actions to bring about the
results prohibited thereby.     See TEX. EDUC. CODE ANN. 5 37.123(a) (Vernon 1996) (offense
committed if person “intentionally engages in disruptive activity”).




         2See Letter from Kenneth Burton, Chief of Police, Bryan Police Department, to Opinion Committee, Office
of Attorney General (Dec. 13,200l) (on file with Opinion Committee).
The Honorable Bill Turner     - Page 4          (JC-0504)




         Although you do not specifically cite subdivisions (l)-(3), we note that the same standard
of proof would apply to those prohibitions.         See id. In order to sustain a conviction under
subdivision (l), it must be shown that the actor intended to obstruct or restrain “the passage of
persons in an exit, entrance, or hallway of a building”; that he actually obstructed or restrained the
passage of such persons; and that he did so “without the authorization of the administration of the
school.” Id. fj 37.123(a), (b)(l). T o sustain a conviction under subdivision (2), an actor must be
shown to have intended to seize control of a building or a portion thereof and to have actually seized
“control of a building or portion of a building” for the purpose of interfering “with an administrative,
educational, research, or other authorized activity.” Id. 5 37.123(a), (b)(2). Finally, under
subdivision (3), it must be shown that the actor intended to prevent or intended to attempt to prevent
by force or violence or the threat of force or violence “a lawful assembly authorized by the school
administration” in such a manner that “a person attempting to participate in the assembly is unable
to participate” because of “the use of force or violence or due to a reasonable fear that force or
violence is likely to occur.” Id. 6 37.123(a), (b)(3). In addition to such intent, it must be shown that
the actor actually brought about the result described in subdivision (3). See id.
The Honorable Bill Turner   - Page 5          (JC-0504)




                                       SUMMARY

                        Section 37.123 of the Education Code, which prohibits
               disruptive activities on a school campus, requires in order to sustain
               a conviction that the actor intentionally engaged in one of the five
               species of conduct described in that statute, rather than merely
               engaged in conduct that ultimately resulted in one of the effects
               described therein.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
