OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

December 27,200l 

Mr. Jim Nelson 

Commissioner of Education 

Texas Education Agency 

170 1 North Congress Avenue 

Austin, Texas 78701-1494 

Opinion No. JC-0446 

Re: Whether a school district is required to expel 

a student who commits certain alcohol-and drugrelated 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 OXFORD ENGLISH DICTIONARY 690 (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. 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 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