OFFICE OF THE ATTORNEY GENERAL
. STATE OF TEXAS JOHN CORNYN

December 27,200l

Mr. Jim Nelson Commissioner ofEducation Texas Education Agency 1701North Congress Avenue Austin, Texas 78701-1494 Opinion No. JC-0446 Re: Whether aschool district isrequired to expel astudent who commits certain alcohol-and drugrelated felonies within 300 feet ofschool property (RQ-0415-JC)
Dear Commissioner Nelson: You have requested our opinion asto whether aschool district isrequired to expel astudent who con-units certain felonies within 300 feet of school property. For the reasons set forth below, we conclude that aschool district isnot required to do so. Section 37.006(a) ofthe Texas Education Code provides, in relevant part: (a) Except asprovided 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 ifthe 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 aschool-sponsored or school-related activity on or off ofschool property;

(A) engages in conduct punishable as afelony; (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 orpossesses or uses or is under the influence of:

(i) marihuana or a controlled substance, as defined by Chapter 481,Health and Safety Code, or by 21 U.S.C. Section 801 et seq.; orMr. 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 aserious actoroffense while under the influence ofalcohol, orpossesses, uses, orisunder the influence ofan 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 21.08, Penal Code. TEX.EDUC.CODEANN. 8 37.006(a) (Vernon Supp. 2002). Under this provision, a student who, within 300 feet ofthe school property boundary line, commits any ofthe 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) ofthe 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), ifthe conduct ispunishable as afelony. Id. 837.007(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, itispart of section 37.007(a), which limits expulsion to acts committed “on school property orwhile attending aschool-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 aschool district isrequired to expel astudent whose conduct: (1) constitutes afelony; (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’TCODE ANN. 8 312.002 (Vernon 1998). A literal reading of a statute will be used as the standard for interpretation unless the literal text isunclear orwould lead to an absurd result. See State v. Webb, 12 S.W.3d 808,811 (Tex. Crim. App. 2000); City ofSan Antonio v.Bullock, 34 S.W.3d 650,655 (Tex. App.-San Antonio 2000, pet. denied) (“A fundamental rule of statutory construction is that acourt should first ascertain the Legislature’s intent in enacting the statute asexpressed in its plain language.“). Subdivision 37.007(a)(3) requires mandatory expulsion forthe conduct specified in subparts 37.006(a)(2)(C) or (D), provided the conduct described is a felony. Some of the acts listed in subparts (C) and (D) are felonies, and some aremisdemeanors. The issue, however, iswhether, 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 ofconducting oneself orone’s life; behaviour.” III OXFORD ENGLISH

DICTIONARY

690 (2d ed. 1989). The “conduct” referred to consists of, on the one hand, selling, giving, or delivering to another person, orpossessing orusing, marihuana orother such substances; and onthe other, selling, giving, or delivering to another person an alcoholic beverage, committing a serious offense under the influence ofalcohol, orpossessing, using, orbeing under the influence ofan alcoholic beverage. Such conduct does not encompass the location where that conduct occurs. Secondly, and most significantly, subdivision 37.007(a)(3) isapart of, and iscircumscribed by, subsection 37.007(a). Subsection 37.007(a) limits mandatory expulsion to acts occurring “on school property orwhile attending aschool-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 astudent whose conduct (1) constitutes afelony; (2) would require removal under subparts 37.006(a)(2)(C) or(D); (3)does not occur on school property orwhile attending aschool-sponsored or school-related activity on or offofschool property; and (4)does occur within 300 feet ofschool property asdefined 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 aschool district to expel astudent immediately “ifthe principal orthe principal’s designee reasonably believes thatMr. Jim Nelson - Page 4 (JC-0446)

action is necessary to protect persons orproperty from imminent harm.” TEX.EDUC.CODE ANN. 5 37.019(B) (Vernon Supp. 2002). Section 37.019 specifies neither the type of conduct necessary to initiate an immediate expulsion, nor does itlimit its geographical scope. Rather, allthat isrequired is areasonable 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 ofTexas

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