Toolbox Tuesday!! Let’s look at H.B. 114

On Toolbox Tuesday here at Daily Dawg HQ we normally focus on a court case that illustrates one of the “tools” in our firm’s Toolbox. The Toolbox is about the options school administrators have in the discipline of students with disabilities. Today we take a slightly different approach, focusing on a new state law that applies to all students.

H.B. 114 adds the following to Chapter 37 of the Texas Education Code:

Subject to the requirements of Section 37.009(a), a student SHALL be removed from class and PLACED IN A DISCIPLINARY ALTERNATIVE EDUCATION PROGRAM….if the student:

(2) commits the following on or within 300 feet of school property…..or while attending a school-sponsored or school-related activity on or off of school property:

(c-2) POSSESSES, USES, SELLS, GIVES, OR DELIVERS TO ANOTHER PERSON AN E-CIGARETTE, as defined by Section 161.081, Health and Safety Code.

Got that? Possession of a vaping device means mandatory DAEP. Oh boy. By the way, that definition of “e-cigarette” in the Health and Safety Code includes a “component, part, or accessory” for the device, even if sold separately.

This piece of news was not greeted with enthusiasm by the principals and assistant principals who assembled for the annual ED311/TASSP conference last month. I got the impression that we may be seeing a big increase in the DAEP population. In anticipation of that, H.B. 114 provides that if the DAEP is “at capacity” certain students can be sent to ISS instead. Those would be the students whose offense involves marijuana, THC, e-cigs, alcohol, or abusable chemicals.

Presumably it will be up to local districts to decide when the DAEP is full and also up to local administrators to determine the length of placement in DAEP for possession of a vaping device.

One more thing is worth noting, and it’s well known to you Loyal Daily Dawg Readers. “Mandatory” placement in DAEP is a misleading term. For students with disabilities the ARD Committee must meet and make a manifestation determination prior to a removal to DAEP that amounts to a change of placement. I’m dubious about disabilities directly causing a student to vape, but I’m sure you will be confronted with that argument.

Lots of work to do on that Student Code of Conduct! Or you might want to look over your DOI plan and see if this new law is one you’d like to address in the DOI. We can help with that at WG. Let us hear from you.


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Tomorrow: does a violation of state law get you into federal court?