Tag Archives: CRIMINAL LAW

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

I didn’t want to hit the teacher. I wanted to hit the other student and the teacher got in my way. How can this be “retaliation”?

Tena Hill and Rhonda Johnson were public school teachers who tried to break up a fight between two girls at school.  One of the students hit both teachers and was convicted of the criminal offense of “retaliation” against a public servant.  On appeal, the student’s lawyer focused on the word “retaliation.” The argument was that the teacher was not the target here. The student was not angry with the teacher and was not seeking to “retaliate” for something the teacher did as a teacher.

The court rejected that argument and upheld the girl’s conviction.  The statute says that it is a criminal offense if a person “intentionally or knowingly harms or threatens to harm another by an unlawful act: (1) in retaliation for OR ON ACCOUNT OF the service or status of another as: (A) public servant, prospective witness, or informant.”  Texas Penal Code 36.06(a)(1), emphasis added.

The appellate court emphasized “or on account of.”  To hit a teacher “in retaliation” would require some proof of a deliberate desire to hurt the teacher in response to something the teacher did as a teacher.  For example, the teacher gives the student a failing grade and the student “retaliates.”  The court described this as a “retributory element” necessary to prove “retaliation.”  There was no evidence of a “retributory element” here.

But the statute also makes it crime to harm a teacher “on account of” the teacher’s service. This does not require a specific retributory element, or any proof that the teacher was the person the student sought to harm. Instead, it only requires proof that the teacher was harmed “because of” being a teacher. Thus the court concluded:

In this case, a rational trier of fact could have found that [the student] struck the teachers on account of their service as public servants, i.e., because they were attempting to discharge their duties as public schoolteachers by keeping [the student] from harming another student.

The student’s conviction was thus upheld.  And we hope the teacher has fully recovered.  The case is In the Matter of M.W., decided by the Court of Appeals for Tyler on September 23, 2015. We found it at 2015 WL 5577993.