Can a Texas juvenile board run an alternative school for students expelled but not found delinquent?

Plain-English summary

In 1995 the Texas Legislature overhauled school discipline through Senate Bill 1, building a tiered system. School districts run alternative education programs (AEPs) for students who commit less serious offenses; county juvenile boards run juvenile justice alternative education programs (JJAEPs) for students who commit more serious offenses. Education Code section 37.011(b) says that when a student commits an expellable offense and a juvenile court finds the student engaged in delinquent conduct, the court must order the student into the county's JJAEP.

The Harris County Attorney, for the county's juvenile board, asked a gap question: what about students who are expelled but never go through juvenile court and are never adjudicated delinquent? Can the juvenile board serve them at the JJAEP anyway, and can the board and the school districts sign a memorandum of understanding to make that happen? The worry was that section 37.011(b) lists only court-ordered students, which might mean everyone else is excluded.

The Attorney General read the statute the other way. Section 37.011(b), the office said, describes one situation in which a court must order a JJAEP placement; it does not bar juvenile boards from serving other students. The office found a board's authority to take expelled-but-not-adjudicated students implied in section 37.001, the provision that has each school district adopt a student code of conduct jointly with the juvenile board. That section requires the code to "outline the responsibilities of each juvenile board concerning the establishment and operation of a JJAEP" and to "define the conditions on payments from the district to each juvenile board." If boards could serve only court-ordered students, the office reasoned, those two requirements would be largely pointless, and the law presumes the whole statute is meant to be effective (Government Code section 311.021(2)). A narrow reading would also leave expelled students who were never adjudicated delinquent with no access to education or services at all, an unlikely legislative intent (Government Code section 311.021(3)), and it would break the continuum of progressive sanctions the legislature built. On the second question, the office concluded section 37.001 impliedly authorizes a school district and a juvenile board to put their jointly adopted obligations into a formal memorandum of understanding, which may provide for JJAEP placement of expelled-but-not-adjudicated students.

The office was careful to limit its answer. It did not decide whether a juvenile court has power to order a child into a JJAEP in other circumstances, whether a district may place a student in a JJAEP without parental consent, or what due process such a placement would require. Those questions it left open.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion read chapter 37 of the Education Code as Senate Bill 1 first enacted it in 1995. The school-discipline statutes have been amended many times since, the population thresholds and section numbers have changed, and the JJAEP and AEP requirements have been revised. Read this page for the office's 1996 reading of how the pieces fit together, and verify the current Education Code before relying on any specific section number, population figure, or requirement mentioned here.

What the opinion meant at the time

For county juvenile boards: The opinion meant a board's authority was not capped at students a juvenile court ordered into the JJAEP. A board could provide JJAEP educational services to students who had been expelled but not adjudicated delinquent, and could formalize that role through an agreement with school districts.

For school districts: The opinion meant districts could route expelled-but-not-adjudicated students into a JJAEP by agreement with the juvenile board, rather than being limited to their own AEPs for that group. The student-code-of-conduct provisions of section 37.001, jointly adopted with the board, were the legal anchor.

For expelled students and their families: The opinion meant that being expelled without a juvenile court adjudication did not necessarily cut a student off from supervised education. The office read the law to keep an educational setting available, though it expressly did not resolve the parental-consent and due-process questions around such a placement.

For lawyers: The office resolved a statutory-construction question by reading chapter 37 as a whole, relying on section 37.001(a)(2) and (a)(3), the funding provision in section 37.012(a), and the presumptions of statutory construction in Government Code section 311.021(2) and (3). It expressly declined the juvenile-court-authority, parental-consent, and due-process questions.

Common questions

Can a juvenile board serve students who were expelled but never found delinquent?
Under this opinion, yes. The office concluded the legislature authorized juvenile boards to provide JJAEP educational services to students who were not ordered there by a juvenile court, including students expelled but not adjudicated delinquent.

Doesn't section 37.011(b) list only court-ordered students?
It does describe when a juvenile court must order a JJAEP placement, but the office declined to read that list as excluding everyone else. It found the board's broader authority implied in the student-code-of-conduct provisions of section 37.001.

Can a school district and a juvenile board sign an agreement about this?
Yes. The office concluded section 37.001 impliedly authorizes a memorandum of understanding between a district and a juvenile board, consistent with their jointly adopted student code of conduct, and that the agreement may cover JJAEP placement of expelled-but-not-adjudicated students.

Why did the office reject the narrow reading?
Because it would render parts of section 37.001 (the board-responsibility and payment-condition requirements) superfluous, would leave expelled-but-not-adjudicated students with no access to education, and would break the continuum of progressive sanctions. Government Code section 311.021 presumes a statute is wholly effective and aims at a just and reasonable result.

Did the opinion address parental consent or due process for a JJAEP placement?
No. The office expressly did not decide whether a district may place a student in a JJAEP without parental consent, or what due process such a placement requires.

Background and statutory framework

Senate Bill 1 (1995) rebuilt the discipline provisions of the Education Code into chapter 37, mirroring the "progressive sanctions" framework of chapter 59 of the Family Code. Less serious misconduct routes a student to a school-run AEP (section 37.008); more serious misconduct or expellable conduct can route a student to a juvenile-board-run JJAEP (section 37.011). Section 37.001 requires each district to adopt a student code of conduct, jointly with the county juvenile board as appropriate, that outlines the board's responsibilities for establishing and operating a JJAEP and defines the payment conditions between district and board. Section 37.012(a) requires the district to transfer JJAEP funding equal to its average per-student AEP expenditure.

Section 37.011(b) provides that when a student commits expellable conduct and a juvenile court finds the student engaged in delinquent conduct, the court must require the county's JJAEP to serve the student and order the student to attend. The county attorney argued this list of court-ordered students might be exclusive. The office rejected that, applying the statutory-construction presumptions in Government Code section 311.021 that the entire statute is effective (section 311.021(2)) and that a just and reasonable result is intended (section 311.021(3)). It reasoned that limiting boards to court-ordered students would make the section 37.001(a)(2) board-responsibility requirement and the section 37.001(a)(3) payment-condition requirement superfluous, would deny expelled-but-not-adjudicated students any access to education, and would break the progressive-sanctions continuum. From section 37.001 it also drew the implied authority for a district and a board to memorialize their jointly adopted obligations in a memorandum of understanding covering JJAEP placement of expelled-but-not-adjudicated students. The office expressly declined to address whether a juvenile court could order a JJAEP placement in other circumstances, and whether a placement without parental consent raised consent or due-process problems.

Citations

Statutory provisions discussed:

• Education Code § 4.001(b) (safe, disciplined environment)
• Education Code § 37.001 (student code of conduct; subsections (a)(1)-(5), (a)(2), (a)(3))
• Education Code § 37.002, § 37.005, § 37.006, § 37.007 (suspension, removal, mandatory AEP, expulsion)
• Education Code § 37.008 (alternative education program requirements)
• Education Code § 37.009, § 37.010(c) (procedures; memorandum of understanding for probation supervision)
• Education Code § 37.011 (JJAEP; subsection (b) court-ordered placement; (d), (f) program requirements), §§ 37.011-.013
• Education Code § 37.012(a) (funding transfer to the juvenile board)
• Family Code § 51.03(a) (definition of delinquent conduct); ch. 59 (progressive sanctions)
• Government Code § 311.021(2), (3) (presumptions of statutory construction)
• Senate Bill 1, Act of May 29, 1995, 74th Leg., R.S., ch. 260, 1995 Tex. Gen. Laws 2207

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0412
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0412.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative. Several footnotes were heavily degraded in the scan; their statutory citations are reproduced where confirmed, and unrecoverable portions are condensed or left as gaps.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

August 28, 1996

The Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002-1891

Opinion No. DM-412

Re: Whether a county juvenile board is authorized to provide educational services to students who have not been adjudicated delinquent by a juvenile court and ordered to attend a juvenile justice alternative education program pursuant to Education Code, section 37.011(b), and related question (RQ-892)

Dear Mr. Driscoll:

Among the education reforms passed by the legislature last session in Senate Bill 1[1] are several provisions requiring juvenile boards in certain counties to establish juvenile justice alternative education programs (JJAEPs), see Educ. Code §§ 37.011-.013,[2] and to provide educational services to certain students who have been found by a juvenile court to have engaged in delinquent conduct, see id. § 37.011(b). On behalf of the Harris County Juvenile Board, you ask whether a juvenile board is authorized to provide educational services to students[3] who have not been adjudicated delinquent by a juvenile court and ordered to attend a JJAEP pursuant to Education Code, section 37.011(b). You also ask if a juvenile board is authorized to enter into a memorandum of understanding with school districts that provides for JJAEP placement of students expelled from school but not adjudicated delinquent pursuant to section 37.011(b). We believe that the legislature intended to authorize juvenile boards to provide educational services to students who are not required to attend a JJAEP by a juvenile court order and to authorize a juvenile board to enter into an agreement with school districts to provide such services.

During the last session, in revising the Education Code, the legislature made clear its intent that school districts must "maintain a safe and disciplined environment conducive to student learning." Id. § 4.001(b). Chapter 37 of the newly revised Education Code is intended to ensure school and community safety by requiring school districts to adopt student codes of conduct, imposing certain disciplinary standards in schools, and fostering a working relationship between school districts and the juvenile justice system, particularly juvenile courts and county juvenile boards. In addition to significantly revising the Education Code in Senate Bill 1, the legislature passed numerous measures affecting the juvenile justice system,[4] including chapter 59 of the Family Code, which sets forth a "progressive sanctions" framework for use in sentencing juvenile offenders.[5] Chapter 37 of the Education Code mirrors the "progressive sanctions" framework of chapter 59 of the Family Code, providing disciplinary measures which increase in severity with the seriousness of the offense and a parallel continuum of alternative placement settings -- alternative education programs (AEPs) administered by school districts for students who have committed less serious offenses and JJAEPs administered by juvenile boards for students who have committed more serious offenses.

Section 37.001 of the Education Code requires each school district, "and jointly, as appropriate," with the juvenile board of each county in which the school district is located, to adopt a student code of conduct that must:

(1) specify the circumstances, in accordance with this subchapter, under which a student may be removed from a classroom, campus, or alternative education program;

(2) outline the responsibilities of each juvenile board concerning the establishment and operation of a juvenile justice alternative education program under Section 37.011;

(3) define the conditions on payments from the district to each juvenile board;

(4) specify conditions that authorize or require a principal or other appropriate administrator to transfer a student to an alternative education program; and

(5) outline conditions under which a student may be suspended as provided by Section 37.005 or expelled as provided by Section 37.007.

Id. § 37.001(a)(1)-(5). Section 37.008 requires each school district to provide an AEP that:

(1) is provided in a setting other than a student's regular classroom;

(2) is located on or off of a regular school campus;

(3) provides for the students who are assigned to the alternative education program to be separated from students who are not assigned to the program;

(4) focuses on English language arts, mathematics, science, history, and self-discipline;

(5) provides for students' educational and behavioral needs; and

(6) provides supervision and counseling.

Id. § 37.008(a)(1)-(6). Section 37.011 requires a juvenile board in a county with a population greater than 125,000 to develop a JJAEP. A JJAEP "must focus on English language arts, mathematics, science, history, and self-discipline," id. § 37.011(d), and must operate at least seven hours a day, 180 days per year, id. § 37.011(f).[6] Section 37.012(a) requires the school district in which a student is enrolled on the date the student is ordered to attend the JJAEP to transfer to the juvenile board in charge of the JJAEP "funds equal to the district's average per student expenditure in [AEPs]" for the portion of the year the student will attend the JJAEP.

These alternative placement settings dovetail with the progressive sanctions set forth in chapter 37. School-administered AEPs serve students who have engaged in less serious misconduct, while juvenile board-administered JJAEPs serve students who have engaged in more serious misconduct. A student may be placed in an AEP in one of several ways.[7] First, a principal may place a student in an AEP if the student has been removed from a classroom by a teacher for repeatedly interfering with the teacher's ability to communicate with the other students in the class or repeatedly interfering with the other students' ability to learn. Id. § 37.002(b), (c). Under section 37.006, a school district must transfer to an AEP a student who (i) engages in conduct punishable as a felony[8] or (ii) commits certain offenses[9] on school property or while attending a school-sponsored or school-related activity.[10] In addition, a court may order a student who has been expelled pursuant to section 37.007, see discussion infra, to attend an AEP as a condition of probation if the school district and the juvenile board have entered into a memorandum of understanding "concerning the juvenile probation department's role in supervising and providing other support services for students in alternative education programs." Id. § 37.010(c).

A school district must expel a student from school if the student commits certain weapons offenses or other serious offenses, such as aggravated assault, sexual assault, arson, murder, indecency with a child, or aggravated kidnapping on school property or while attending a school-sponsored or school-related activity on or off school property, id. § 37.007(a), or if the student engages in conduct which contains elements of these offenses against any school district employee in retaliation for or as a result of the employee's employment with the school district, id. § 37.007(c).[11] A school district may expel a student who has been placed in an AEP for disciplinary reasons and continues to engage in serious or persistent misbehavior that violates the district's student code of conduct, id. § 37.007(b), or a student who engages in conduct that contains the elements of the offense of criminal mischief if the conduct is punishable as a felony, id. § 37.007(f).[12] Expulsion appears to include expulsion from all school district campuses and programs, including an AEP.[13] See id. § 37.008(l).[14]

Although chapter 37 provides great detail regarding the circumstances under which a student must or may be transferred to an AEP or expelled, it says relatively little about placement in a JJAEP. Section 37.011(b) provides that if a student is found to have engaged in conduct for which a student may be expelled under section 37.007, see supra, and is found by a juvenile court to have engaged in delinquent conduct,[15] the juvenile court shall require the JJAEP in the county in which the conduct occurred to provide educational services to the student, id. § 37.011(b)(1), and order the student to attend the JJAEP, id. § 37.011(b)(2).

In essence, you ask whether a juvenile board is authorized to provide educational services to students other than pursuant to a juvenile court order under section 37.011(b)(1). You suggest that under section 37.011(b) a juvenile board may be limited to providing educational services to students pursuant to a juvenile court order, contending that because "the statute mentions no other class of students who should be placed in a JJAEP . . . [t]his express listing of those who must attend the JJAEP is the equivalent of the express exclusion of all others." We disagree. We construe section 37.011(b) to delineate the circumstances under which a juvenile court must order the JJAEP in the county in which the conduct occurred to provide educational services to the student and order the student to attend the JJAEP.[16] To construe section 37.011(b) to exclude the placement of students in a JJAEP in other situations would not be consistent with other provisions of chapter 37, particularly section 37.001, the student code of conduct provision. We believe that a juvenile board's authority to provide educational services to students under other circumstances must be implied from section 37.001. As we explain below, to conclude otherwise would render two requirements for a student code of conduct superfluous. We must construe chapter 37 to avoid this result. See Gov't Code § 311.021(2) (in enacting a statute, it is presumed that the entire statute is intended to be effective).

Section 37.001 requires each school district to adopt a student code of conduct jointly, as appropriate, with each juvenile board in the county. The student code of conduct must "outline the responsibilities of each juvenile board concerning the establishment and operation of a [JJAEP]," Educ. Code § 37.001(a)(2), and "define the conditions on payments from the district to each juvenile board," id. § 37.001(a)(3). If the legislature had intended to limit juvenile boards to providing educational services to students pursuant to a juvenile court order under section 37.011(b), a juvenile board's responsibility to establish and operate a JJAEP would be fully elaborated by sections 37.011 through 37.013. The legislature would not have required a school district to outline with juvenile boards "the responsibilities of each juvenile board concerning the establishment and operation of a [JJAEP]." Id. § 37.001(a)(2). Furthermore, as noted above, section 37.012(a) requires the school district in which a student is enrolled on the date the student is ordered to attend the JJAEP to transfer funds to provide for the student's education to the juvenile board in charge of the JJAEP. A school district is unconditionally obliged to transfer these funds to the juvenile board. Had the legislature intended to limit juvenile boards to providing educational services to students pursuant to a juvenile court order under section 37.011(b), it would have been unnecessary to require a school district to define with juvenile boards "the conditions on payments from the district to each juvenile board." Id. § 37.001(a)(3).[17]

In addition, as you point out in your brief, if one were to conclude that a juvenile board is limited to providing educational services to students found to have engaged in conduct justifying expulsion and found by a juvenile court to have engaged in delinquent conduct, then students who are expelled but who have not been adjudicated delinquent will have no access to a JJAEP and thus could possibly have no access to education and other services.[18] It is unlikely that the legislature intended to make education and other services available to expelled students who have been adjudicated delinquent but deny all access to education and other services to expelled students who have not been adjudicated delinquent by a juvenile court. It is also unlikely that the legislature intended to create obstacles to placing expelled students who have not been adjudicated delinquent in supervised, educational settings. Again, we must construe chapter 37 to avoid this result. See Gov't Code § 311.021(3) (in enacting a statute, it is presumed a just and reasonable result is intended).

Furthermore, the continuum of sanctions and alternative placement settings for behavior management in chapter 37 is designed to protect the safety of schools and communities, and to prevent students who misbehave from committing more serious offenses, by providing problem students with ongoing supervision, education, and other appropriate services. Construing chapter 37 to preclude juvenile boards from enrolling students who have been expelled but not adjudicated delinquent would break this continuum. Construing chapter 37 to permit juvenile boards to enroll these students, on the other hand, is consistent with the framework of progressive sanctions and alternative placement settings established by the legislature.

You also ask if a juvenile board is authorized to enter into a memorandum of understanding with school districts that provides for JJAEP placement of students expelled from school but not adjudicated delinquent pursuant to section 37.011(b).[19] Although section 37.001 does not expressly authorize a school district and a juvenile board to enter into a memorandum of understanding, we believe it impliedly authorizes a school district and a juvenile board to enter into a memorandum of understanding consistent with a jointly adopted student code of conduct in order to reduce obligations undertaken by the school district and juvenile board in the student code of conduct to a formal agreement and to separate those obligations from other matters which must be included in a student code of conduct.[20] For the reasons stated above, we believe that such a memorandum of understanding may provide for JJAEP placement of students expelled from school but not adjudicated delinquent pursuant to section 37.011(b).[21]

                             SUMMARY

A county juvenile board is authorized to provide educational services at a juvenile justice alternative education program to students other than pursuant to a juvenile court order under section 37.011(b)(1). A county juvenile board is authorized to enter into a memorandum of understanding with school districts that provides for JJAEP placement of students expelled from school but not adjudicated delinquent pursuant to section 37.011(b).

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnotes:

[1] See Act of May 29, 1995, 74th Leg., R.S., ch. 260, 1995 Tex. Gen. Laws 2207.

[2] See id. § 1, at 2358-60.

[3] Your brief suggests that students would be placed in a JJAEP with parental consent. See note 21 infra. In addition, you appear to be interested in the juvenile board's authority only with respect to students who have been expelled from the school district.

[4] See, e.g., Act of May 29, 1995, 74th Leg., R.S., ch. 671, 1995 Tex. Gen. Laws 3643, 3643 (H.B. 466); Act of May 27, 1995, 74th Leg., R.S., ch. 748, 1995 Tex. Gen. Laws 3884, 3884 (H.B. 120); Act of May 27, 1995, 74th Leg., R.S., ch. 262, 1995 Tex. Gen. Laws 2517, 2517 (H.B. 327); Act of May 24, 1995, 74th Leg., R.S., ch. 626, 1995 Tex. Gen. Laws 3494, 3494 (H.B. 1687); Act of May 24, 1995, 74th Leg., R.S., ch. 617, 1995 Tex. Gen. Laws 3476, 3476 (H.B. 1375); Act of May 24, 1995, 74th Leg., R.S., ch. 598, 1995 Tex. Gen. Laws 3436, 3436 (H.B. 330); Act of May 24, 1995, 74th Leg., R.S., ch. 512, 1995 Tex. Gen. Laws 3253, 3253 (H.B. 2035); Act of May 19, 1995, 74th Leg., R.S., ch. 254, 1995 Tex. Gen. Laws 2197, 2197 (S.B. 267).

[5] See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 53, 1995 Tex. Gen. Laws 2517, 2557.

[6] A juvenile board in a county with a population of 125,000 or less may develop a JJAEP. Educ. Code § 37.011(a). Such a JJAEP is not subject to the requirements of section 37.011, subsections (c), (d), (f), or (g). Id.

[7] A student who is placed in an AEP by a school district for a length of time to extend beyond the next grading period is entitled to certain procedures. Id. § 37.009(b), (c), (d).

[15] Family Code section 51.03(a) defines "delinquent conduct" as follows: "(1) conduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail; (2) conduct that violates a reasonable and lawful order of a juvenile court entered under Section 54.04 or 54.05 of this code, except an order prohibiting [certain conduct, including] . . . (B) the unexcused voluntary absence of a child from school; or (C) the voluntary absence of a child from his home without the consent of his parent or guardian for a substantial length of time or without intent to return; (3) conduct that violates a law or order of a municipal court or justice court under circumstances that would constitute contempt of that court; or (4) conduct that violates the laws of this state prohibiting driving while intoxicated or under the influence of intoxicating liquor (third or subsequent offense) or driving while under the influence of any narcotic drug or of any other drug to the degree that renders the child incapable of safely driving a vehicle (third or subsequent offense)."

[16] We have not been asked and do not address whether a juvenile court has the authority to order a child to attend a JJAEP under any other circumstances.

[21] (Best-effort) Your brief suggests that students would be placed in a JJAEP with parental consent. Therefore, we do not address whether a school district is authorized to place a student in a JJAEP without parental consent. For this reason, we also do not address whether a school district must afford a student due process before placing the student in a JJAEP without parental consent, or whether a student code of conduct that does not provide due process in such circumstances would violate the United States Constitution. Section 37.009(f) provides that a school district must provide a student a due process hearing before the student may be expelled under section 37.007. Neither section 37.009(f) nor any other provision of which we are aware details the procedures which might be applicable to a school district's decision to place a student who has been expelled in a JJAEP.

(Footnotes 8 through 14 and 17 through 20 were heavily degraded in the scan. Their substance, condensed: footnote 8 lists the section 37.006(a) offenses that require AEP placement, including assault (Penal Code section 22.01(a)(1)), terroristic threat (section 22.07), certain drug, alcohol, glue, aerosol-paint, and volatile-chemical offenses (Health and Safety Code sections 485.031-485.035 and chapter 484), public lewdness (Penal Code section 21.07), indecent exposure (section 21.08), and retaliation (section 36.06) against a school employee, while certain weapons or serious offenses require expulsion under section 37.007(a); footnote 9 notes the office did not address whether a district must incorporate the section 37.001(a)(4) transfer conditions into its code of conduct; footnotes 11 through 13 elaborate the retaliation, firearm (federal-law expulsion), and criminal-mischief provisions of section 37.007 and section 37.008(l); footnote 14 cites the due-process hearing requirement of section 37.009(f); and footnotes 17 through 20 cross-reference the payment, no-access-to-education, and memorandum-of-understanding points made in the body. The linked PDF is authoritative.)