Tag Archives: Assault Leave

It’s Toolbox Tuesday! Can a person get “assault leave” for just one day?

We like to highlight the Toolbox on Tuesdays. The Toolbox is a full day training program that focuses on the legalities and proprieties of serving students with disabilities who may be disruptive or even dangerous.  Today, we take on a tangential issue—employee assault leave.

Let’s assume that you have a student with a disability who physically attacks a teacher or aide.  There are various tools in the Toolbox that might be appropriate in that situation.  You may need to contact law enforcement (Tool #10).  Depending on the severity of the injury, you may be able to declare “special circumstances” (Tool #5). A short term removal might be proper (Tool #7 or #8).  You might seek a change of placement as a punitive measure (Tool #6).  You probably should consider a BIP, or revising the existing one (Tool #1).

But what about the employee?  Let’s assume that the employee suffers physical injuries that require a few days off of work.  Sick leave?  Personal leave?

I think you will find that most employees would prefer to get “assault leave” for this.  That way they are paid for the time they miss, but they do not have to use sick leave or personal days.   Assault leave is authorized by Texas Education Code 22.003(b):

In addition to all other days of leave provided by this section or by the school district, an employee of a school district who is physically assaulted during the performance of the employee’s regular duties is entitled to the number of days of leave necessary to recuperate from all physical injuries sustained as a result of the assault.

Notice that there is nothing in the statute that limits assault leave to situations where an employee misses a large chunk of time at work.  It could be one day, if that’s all it takes to recover from the physical injuries.


File this one under: ASSAULT LEAVE

Tomorrow: Some thoughts about school choice and fair competition.


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.