School District Employee Commits No Crime When He Has Sex with a Student

We’re guessing that the legislature might want to take a fresh look at our laws pertaining to school employees having sex with a student.

An employee of the Conroe ISD was convicted by a jury of violating the Penal Code provision regarding “Improper Relationship Between Educator and Student.”  “Improper Relationship” is a nice, polite euphemism. I think we all know what it refers to.  The jury found the man guilty, but  the Court of Criminal Appeals unanimously reversed that conviction.  Why?  Because the man worked in central office rather than at the high school the student attended, and the man was not a certified educator.  What’s this about?

The statute makes it a crime to have to have sexual contact with a student if you are “an employee of a public or private primary or secondary school.”  This guy was an employee of the Conroe ISD, but not an employee of Clear Creek High School, the “secondary school” where the student attended.  He worked in Conroe ISD police department. Thus he was an employee of the district—but not of the “school.”

Does that sound like a hair-splitting distinction?  The Court did not think so:

The State argues that, although Section 21.12(a)(1) does not state that it applies to a school district employee—which appellant was—it is clear that was the intent of the Legislature. While it is true that employees of a school are generally also considered to be employees of the school district overseeing that school, the inverse may or may not be true, depending on the facts of the case.  We are not persuaded that the Legislature intended section 21.12(a)(1) to apply to appellant under this set of facts. Had he been assigned to Clear Creek High School or to its feeder system, his status as an employee of the school would have been a closer call.  But as an employee of the CISD Police Department, assigned to a feeder system that did not encompass CCHS, we conclude that the evidence was legally insufficient to support the jury’s verdict that appellant was an employee of CCHS.   

 By that logic, employees in the central office—like the superintendent—could have a sexual relationship with a student and not be convicted of a crime because they are not working at or employed by “the school.”   It’s not quite that simple, however. There is another section of this law which would definitely apply to the superintendent.  Section 21.12(a)(2) makes it a crime for a certified educator to have a sexual relationship with a student who attends any school in the district where the employee works. So our hypothetical superintendent would be committing a crime by having a sexual encounter with any student in the district.

But what about the business manager? What about the transportation director?  If they are not certified educators and are not required to hold a license issued by the state, as with a nurse, school psychologist, OT, PT, etc., these criminal statutes do not apply.

So what we have in the Conroe case is a person employed by the district’s police department who had sex with a student in the district, but has not committed a crime by doing so. He was not a certified educator, did not have to have one of the state licenses covered by the statute, and he was not an employee of the high school where the student attended.

Someone could probably make a few bucks developing a laminated chart explaining exactly what employees can have sex with which students, and whether the consequences would involve termination of employment, revocation of certificate, criminal conviction, or extended time in purgatory. The Dawg is not going to do that, but we’re just pointing out that this is becoming as complicated as our nepotism laws.

The case is State of Texas v. Sutton, decided by the Texas Court of Criminal Appeals on September 14, 2016. We found it at 2016 WL 4793141.


 File this one under: CRIMINAL LAW