Can a Texas school board ban tobacco use by staff and visitors on school property?

Texas AG Opinion DM-0056: A School District's "No Tobacco" Policy

Plain-English summary

The chairman of the Texas Senate's Committee on Natural Resources asked whether the Kermit Independent School District's board of trustees could enact and enforce a comprehensive "No Tobacco" policy. The policy, adopted by the board in July 1991, prohibited tobacco use by district staff and the general public in all enclosed school facilities, on open-air property like parking lots and athletic fields, and in all school vehicles, with reprimand or suspension for employees who violated it. (Tobacco use by students was already banned by statute.) The Attorney General concluded the board had the authority both to enact and to enforce this policy.

On the power to enact, the opinion pointed to the trustees' "exclusive power to manage and govern the public free schools of the district" and their authority to adopt rules they deem proper, plus a separate Education Code provision letting a board make rules for the safety and welfare of students, employees, and property. Courts had long given school boards wide discretion over rules so long as they were not arbitrary, unreasonable, or unlawful, and whether a particular rule crosses that line is for a court to decide, not the Attorney General. On its face, the tobacco policy fell within the board's authority.

On enforcement, the opinion concluded the board could enforce the policy against its own staff through discipline (failure to follow board policy is a statutory ground for discharging a teacher) and against the general public on school property. The Education Code made it a misdemeanor, punishable by a fine of up to $200, to violate a board rule about school grounds, let the board eject anyone who refused to leave peaceably, and let the board empower its officers to enforce its rules. The opinion was careful to add that it was only confirming the board's general enforcement power; it took no position on whatever specific enforcement methods the district might use against the public.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Education Code was recodified in 1995, so the section numbers cited here no longer correspond to current law, and Texas tobacco and school-grounds statutes have changed since then. Verify current statutes before relying on anything here.

Common questions

Could a Texas school board ban tobacco use by employees and visitors, not just students?
Under this 1991 opinion, yes. The opinion treated the policy as within the board's broad statutory power to manage the schools and to make rules for the safety and welfare of students, employees, and property. Student tobacco use on school property was already prohibited by a separate statute.

How could the board enforce the policy against its own employees?
Through discipline. The opinion noted that the board's authority to manage the schools includes the authority to enforce its policies against employees, and that repeated failure to comply with board policy was a statutory ground for discharging a teacher.

How could the board enforce the policy against members of the public on school grounds?
The opinion pointed to Education Code provisions making it a misdemeanor (a fine up to $200) to violate a board rule about school grounds, authorizing the board to eject a person who refuses to leave peaceably, and authorizing the board to empower its officers to enforce its rules.

Did the opinion approve the specific way the district planned to enforce the rule?
No. The opinion said the requester had not described any proposed enforcement method against the public, and it confirmed only that board policies may be enforced against the public within the district's jurisdiction. It did not reach any question about the district's particular enforcement methods.

Background and statutory framework

The opinion rested on the Education Code as it stood in 1991. Section 23.26(b) and (d) gave trustees the exclusive power to manage and govern the district's schools and to adopt rules, regulations, and by-laws. Subchapter M ("Protection of School Grounds and Buildings"), in section 21.482(a), let a board adopt rules for the safety and welfare of students, employees, and property. Courts treated these grants as conferring wide discretion, reviewable only for abuse, arbitrariness, or illegality (Fisher v. Burkburnett Indep. School Dist.; Ferrell v. Dallas Indep. School Dist.; Wilson v. Abilene Indep. School Dist.; Nacogdoches Indep. School Dist. v. Adams; Anderson v. Canyon Indep. School Dist.). For enforcement, the opinion relied on section 13.109 (failure to comply with board policy as a ground for teacher discharge), section 21.482(b) (misdemeanor for violating a subchapter M rule), section 21.489 (ejecting an undesirable person who will not leave), and section 21.490 (board may empower its officers to enforce its rules). The student-tobacco prohibition was set out in section 21.927.

Citations

Statutory provisions:

• Education Code § 23.26(b), (d) (trustees' exclusive power to manage the schools and adopt rules)
• Education Code § 21.482(a) (rules for safety and welfare of students, employees, and property)
• Education Code § 21.482(b) (misdemeanor for violating a subchapter M rule; fine up to $200)
• Education Code § 13.109 (failure to comply with board policy as ground for teacher discharge)
• Education Code § 21.489 (ejecting a person who refuses to leave school property)
• Education Code § 21.490 (board may empower officers to enforce its rules)
• Education Code § 21.927 (statutory prohibition on student tobacco use on school property)
• 19 Tex. Admin. Code §§ 61.91-61.144 (schools' responsibility to adopt policies protecting health, safety, and well-being)

Cases:

• Fisher v. Burkburnett Indep. School Dist., 419 F. Supp. 1200 (N.D. Tex. 1976)
• Ferrell v. Dallas Indep. School Dist., 392 F.2d 697 (5th Cir.), cert. denied, 393 U.S. 856 (1968)
• Wilson v. Abilene Indep. School Dist., 190 S.W.2d 406 (Tex. Civ. App.-Eastland 1945, writ ref'd)
• Nacogdoches Indep. School Dist. v. Adams, 36 S.W.2d 567 (Tex. Civ. App. 1931, writ ref'd n.r.e.)
• Anderson v. Canyon Indep. School Dist., 412 S.W.2d 387 (Tex. Civ. App.-Amarillo 1967, no writ)

Prior Attorney General opinion referenced: JM-773 (1987).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0056
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0056.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

November 8, 1991

Honorable Bill Sims
Chairman
Committee on Natural Resources
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. DM-56

Re: Authority of board of trustees of an independent school district to enact and enforce a policy banning the use of tobacco products by district personnel and the general public on all school district property (RQ-165)

Dear Senator Sims:

You have submitted questions to this office regarding the authority of the Kermit Independent School District to enact and enforce a comprehensive "No Tobacco" policy.[1] The policy in question, adopted by the board of trustees on July 18, 1991, reads as follows:

Use of tobacco products by District staff and the general public shall be prohibited in all enclosed school facilities; open air property, including parking lots, outdoor athletic fields, outdoor seating areas, practice fields, and all school vehicles, including buses. Violation by employees shall result in reprimand or possible suspension.[2]

The policy appears to be responsive to a resolution issued by the State Board of Education on January 12, 1990, encouraging "local boards of trustees of Texas school districts to exercise their authority voluntarily to establish policies that prohibit tobacco use on school property or at school functions not only by students but also by school personnel, parents, and all others who serve as adult role models for Texas youth." You ask whether the Kermit Independent School District board of trustees has the authority to enact and enforce its "No Tobacco" policy. We conclude that it does.

Under the Education Code, the trustees of an independent school district "have the exclusive power to manage and govern the public free schools of the district" and "may adopt such rules, regulations and by-laws as they may deem proper." Educ. Code § 23.26(b), (d); see Fisher v. Burkburnett Indep. School Dist., 419 F. Supp. 1200, 1202 (N.D. Tex. 1976); Attorney General Opinion JM-773 (1987). Furthermore, subchapter M of the Education Code, "Protection of School Grounds and Buildings," in section 21.482(a) provides the following:

The board of trustees of any school district may promulgate rules and regulations for the safety and welfare of students, employees, and property, and other rules and regulations it may deem necessary to carry out the provisions of this subchapter and the governance of the school.

Thus, a board of trustees may adopt regulations concerning students, district staff, and use of school property. These provisions confer wide discretion on a school board to adopt regulations it believes will promote its policies, as long as those regulations are not arbitrary, unreasonable, or in violation of law. See, e.g., Ferrell v. Dallas Indep. School Dist., 392 F.2d 697, 702 (5th Cir.), cert. denied, 393 U.S. 856 (1968) (upholding school regulation concerning hair length); Wilson v. Abilene Indep. School Dist., 190 S.W.2d 406, 412 (Tex. Civ. App.-Eastland 1945, writ ref'd) (upholding school board order requiring students to sign card pledging that they were not and would not become members of any fraternity, sorority, or secret organization not approved by the principal as a prerequisite to participation in extra-curricular activities); Nacogdoches Indep. School Dist. v. Adams, 36 S.W.2d 567 (Tex. Civ. App.-1931, writ ref'd n.r.e.) (trustees of public school are vested with discretion not reviewable in absence of abuse, in management, control, and protection of school property); cf. Anderson v. Canyon Indep. School Dist., 412 S.W.2d 387 (Tex. Civ. App.-Amarillo 1967, no writ) (school board was without authority to adopt rule that students who marry during school term must withdraw from school for remainder of school term). See generally 65 Tex. Jur. 3d Schools §§ 97, 103.[3] A court, and not this office in the opinion process, is the appropriate forum for a determination as to whether a particular rule is arbitrary or unreasonable. On its face, the enactment of the "No Tobacco" policy appears to be within the school board's authority.

Likewise, we believe that the board of trustees has the statutory authority to enforce the policy in question. The "No Tobacco" policy provides that "[v]iolation by employees shall result in reprimand or possible suspension." The trustees' authority to manage the schools necessarily includes the authority to enforce its policies through disciplinary action against its employees. Indeed, we note that one of the statutory grounds for discharge of teachers is "repeated failure to comply with official directives and established school board policy." Educ. Code § 13.109. Accordingly, the "No Tobacco" policy is enforceable against school district personnel.

The school board also has the authority to enforce this policy on school property against the general public. As cited above, section 21.482 in Subchapter M of the Education Code authorizes a school board to enact rules and regulations concerning the management of school buildings and grounds. Other provisions in that subchapter concern the enforcement of such rules. Section 21.482(b) provides that

[a] person who violates any provision of this subchapter or any rule or regulation promulgated under the authority of this subchapter is guilty of a misdemeanor and on conviction is punishable by a fine of not more than $200. (Emphasis added.)

Section 21.489 provides that

[t]he board of trustees of a school district or its authorized representatives may . . . eject any undesirable person from the property [under the board's control] on his refusal to leave peaceably on request.

Finally, section 21.490 provides that

all officers commissioned by the board of trustees of a school district may be empowered by the board to enforce rules and regulations promulgated by the board. Nothing in this subchapter is intended to limit or restrict the authority of each district to promulgate and enforce appropriate rules and regulations for the orderly conduct of the institution in carrying out its purposes and objectives or the right of separate jurisdiction relating to the conduct of its students and personnel.

These provisions make clear that a school board has the power to insure that its regulations are respected by the general public as well as students and district personnel. You have not informed us of any proposed method of enforcement of the policy against the general public. Our citation of relevant provisions of the Education Code merely demonstrates that school board policies may be enforced against members of the general public within the school district's jurisdiction; it does not reach any questions about the Kermit Independent School District's methods of enforcing the "No Tobacco" policy.

SUMMARY

The Texas Education Code authorizes the board of trustees of an independent school district to enact and enforce a policy prohibiting students, district personnel, and the general public from using tobacco products on any school district property.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Faith Steinberg
Assistant Attorney General

[1] Your original request suggested that the policy had been issued by the superintendent of the district and questioned his authority to enact and enforce such a rule. As you later informed us that the policy had been adopted by the board of trustees, we address the question of the board's authority in this matter.

[2] Tobacco use by students on school property or at school-sponsored activities, also prohibited by the school district's policies, is statutorily prohibited by Education Code section 21.927.

[3] See also 19 T.A.C. §§ 61.91-61.144 (schools have the responsibility "to adopt and implement policies designed to protect and promote the health, safety, and well-being" of their students and personnel, respectively).