Must a Texas school expel a student who commits a drug or alcohol felony within 300 feet of school but not on school grounds?

Plain-English summary

The Commissioner of Education asked whether a school district is required to expel a student who commits certain alcohol- and drug-related felonies within 300 feet of school property. The Attorney General concluded the district is not required to do so.

The answer turned on how two parts of the Education Code's student discipline statutes fit together. Section 37.006(a) deals with removing a student to an alternative education program. Its subdivision (2) lists offenses, including felony drug and alcohol conduct, and reaches conduct committed not only on school property but also "within 300 feet of school property" and at school-sponsored activities. Section 37.007(a), by contrast, deals with the harsher consequence of expulsion. It makes expulsion mandatory for a student who, "on school property or while attending a school-sponsored or school-related activity on or off of school property," engages in the felony drug or alcohol conduct described in subparts 37.006(a)(2)(C) or (D).

The question was whether the expulsion statute, by cross-referencing the alternative-education statute, pulled in that statute's wider "within 300 feet" geographic reach. The opinion concluded it did not, for two reasons. First, the cross-reference in 37.007(a)(3) points to the kind of conduct (selling, giving, possessing, or using drugs or alcohol), not to where the conduct occurs. Second, and more importantly, subdivision (3) sits inside section 37.007(a), and that subsection limits mandatory expulsion to acts committed on school property or while attending a school activity. It does not reach acts that occur merely within 300 feet of school property. So a student whose felony drug or alcohol conduct happened within 300 feet of campus, but not on school grounds or at a school activity, was subject to mandatory alternative-education placement, not mandatory expulsion.

The opinion read the statute according to its plain language under the Code Construction Act, applying a literal reading unless that would be unclear or absurd. It also pointed out that section 37.019 still allows a school district to expel a student immediately when the principal reasonably believes that action is necessary to protect persons or property from imminent harm, a provision that has no geographic limit.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General 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. The Education Code's student discipline provisions (sections 37.006, 37.007, and 37.019) have been amended repeatedly since 2001, so the specific subdivisions and the "300 feet" language described here may read differently in current law.

What the opinion meant for those who asked

The Texas Education Agency and the Commissioner (what the opinion held): The opinion concluded that mandatory expulsion under section 37.007(a) was limited to felony drug or alcohol conduct committed on school property or at a school-sponsored or school-related activity. It did not extend to conduct committed only within 300 feet of school property; that wider zone belonged to the alternative-education-placement statute, section 37.006(a)(2).

School districts (what the opinion held for them): The opinion told districts that the 300-foot trigger applied to alternative-education placement, not to expulsion. For a felony committed within 300 feet of campus but off school property and not at a school activity, the district was not required to expel the student. The opinion noted that section 37.019 separately permitted immediate expulsion when a principal reasonably believed it was necessary to protect persons or property from imminent harm.

Common questions

Does a drug or alcohol felony near a school automatically mean expulsion in Texas?
The opinion concluded no, not automatically. Mandatory expulsion under section 37.007(a) applied only when the conduct happened on school property or at a school-sponsored or school-related activity. Conduct merely within 300 feet of school property did not trigger mandatory expulsion.

Then what does the "300 feet" rule do?
The opinion explained the 300-foot language is in section 37.006(a)(2), which governs mandatory removal to an alternative education program, a different and less severe consequence than expulsion. The expulsion statute borrowed that section's list of offenses but not its geographic reach.

Why didn't the cross-reference to section 37.006 pull in the 300-foot zone?
The opinion gave two reasons. The cross-reference pointed to the type of conduct, not to its location, and the subdivision doing the cross-referencing sat inside section 37.007(a), which by its own terms limits mandatory expulsion to acts on school property or at a school activity.

Can a school still expel a student for something that happens near campus?
The opinion noted that section 37.019 lets a school district expel a student immediately if the principal or the principal's designee reasonably believes the action is necessary to protect persons or property from imminent harm. That provision is not limited by the type of conduct or by geography.

Background and statutory framework

Section 37.006(a) of the Education Code requires that a student be removed from class and placed in an alternative education program for certain conduct. Tex. Educ. Code Ann. § 37.006(a) (Vernon Supp. 2002). Its subdivision (2) covers conduct committed "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," including, in subparts (C) and (D), drug conduct involving marihuana or a controlled substance and alcohol conduct involving an alcoholic beverage. The list incorporates definitions from other codes, including Chapter 481 of the Health and Safety Code and 21 U.S.C. Section 801 et seq. for controlled substances and Section 1.04 of the Alcoholic Beverage Code for alcoholic beverages, and references the assault offense under Section 22.01(a)(1) of the Penal Code.

Section 37.007(a), by contrast, requires expulsion, a more serious consequence than alternative-education placement. It applies to a student who, "on school property or while attending a school-sponsored or school-related activity on or off of school property," engages in specified conduct, and its subdivision (3) reaches "conduct specified by Section 37.006(a)(2)(C) or (D), if the conduct is punishable as a felony." Tex. Educ. Code Ann. § 37.007(a) (Vernon Supp. 2002). The opinion read the statute under the Code Construction Act, which directs that words be given their ordinary meaning, Tex. Gov't Code Ann. § 312.002 (Vernon 1998), and applied a literal reading unless the text is unclear or would lead to an absurd result. 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). Because subdivision 37.007(a)(3) referred to conduct rather than location, and because it was circumscribed by subsection 37.007(a)'s on-property limitation, the opinion concluded the 300-foot zone did not carry over to mandatory expulsion. The opinion also noted section 37.019, which permits immediate expulsion to protect persons or property from imminent harm. Tex. Educ. Code Ann. § 37.019(b) (Vernon Supp. 2002).

Citations

Statutory provisions:

• Tex. Educ. Code Ann. § 37.006(a) (Vernon Supp. 2002)
• Tex. Educ. Code Ann. § 37.007(a) (Vernon Supp. 2002)
• Tex. Educ. Code Ann. § 37.019(b) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 312.002 (Vernon 1998)
• Tex. Penal Code § 22.01(a)(1)
• Tex. Health & Safety Code Chapter 481
• 21 U.S.C. Section 801 et seq.
• Tex. Alco. Bev. Code § 1.04

Cases:

• State v. Webb, 12 S.W.3d 808 (Tex. Crim. App. 2000)
• City of San Antonio v. Bullock, 34 S.W.3d 650 (Tex. App.-San Antonio 2000, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0446
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0446.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

December 27, 2001

Mr. Jim Nelson
Commissioner of Education
Texas Education Agency
1701 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 drug-related 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 commits 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 22.01(a)(1), 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 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq.; or

                        (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 21.08, Penal Code.

Tex. Educ. Code Ann. § 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) through (F), 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).[1] 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. § 37.007(a) (emphasis added).

Section 37.007, unlike section 37.006, requires expulsion 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 . . . 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. § 312.002 (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), provided 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 a part 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 action is necessary to protect persons or property from imminent harm." Tex. Educ. Code Ann. § 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."

[1] You do not ask about subsection 37.007(b), which relates to permissive rather than mandatory expulsion.

                                   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).

                                          Very truly yours,

                                          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