True. Texas identifies three types of assault in one statute—Section 22.01 of the Penal Code. Two of the three involve no injury. However, when “assault” comes up in the context of public education, it usually refers only to the type of assault that results in an injury. Let’s review.
It’s an assault if I “intentionally, knowingly, or recklessly” cause “bodily injury” to another person. This is Penal Code 22.01(a)(1). That’s the type of assault that Chapter 37 of the Education Code identifies as a mandatory DAEP offense. This is also the type of assault that a teacher might cite as the basis for assault leave.
The Penal Code defines two other types of assault, neither of which requires proof of an injury. In fact, one of them requires no physical contact at all. It’s an assault if I “intentionally or knowingly” threaten you with “imminent bodily injury.” Thus this section of the law (Penal Code 22.01(a)(2)) makes the threat itself an “assault,” even in the absence of any physical contact.
The third type of assault (Penal Code 22.01(a)(3)) is generally known as “offensive touching.” If I “intentionally or knowingly” cause physical contact with you in a way that I ought to know you will regard as “offensive or provocative” I have committed an assault. Here, there is contact, but no injury.
Educators should be careful about tossing the term “assault” around too loosely. Yes, all three of these are defined as “assaults” under the Penal Code. But when teachers or administrators are talking about assaults, it is usually in the context of student discipline, or a request by a teacher for assault leave. With regard to student discipline, your Code of Conduct might make all three of these offenses punishable. But if you charge a student with the type of assault that requires DAEP as per Chapter 37, there must be some degree of “bodily injury.” The law specifies DAEP for a student who “engages in conduct containing the elements of the offense of assault under Section 22.01(a)(1), Penal Code.”
Likewise, with assault leave. Teachers are entitled to assault leave to “recuperate from all physical injuries sustained as a result of the assault.” T.E.C. 22.003(b). So if there is no injury, there is no assault leave.
DAWG BONE: BE CAREFUL WITH THE TERM “ASSAULT”