Guns, Drugs, & Interloping
by Mike Leasor
Although the title sounds like that of a bad heavy metal song, it actually refers to three very recent news topics on the legal front that may affect your school district.
Guns: If your school is a polling location, the Election Judge can carry at your school.
In Opinion No. KP-0212, Attorney General Ken Paxton answers the question on whether sections 46.02 and 46.03 of the Penal Code apply to presiding election judges licensed to carry a handgun under chapter 411 of the Government Code. Section 46.03 is the statute that prevents any licensed handgun carrier, other than law enforcement and certain other exceptions, from entering on to a school premise or attending a school related activity.
Because he can, the Attorney General opined that election judges who are licensed to carry may be on school premises with their handgun while performing their duties under the Election Code. The Attorney General based his opinion on a case that is over 100 years old. He stated that in performing their duties at the polling place, the Election Code gives presiding judges the power of a state district judge to enforce order and preserve the peace. More than 100 years ago, a Texas court addressed whether that statutory authority in a predecessor statute allowed presiding judges to carry arms to a polling location. See Hooks v. State, 158 S.W. 808, 808 (Tex. Crim. App. 1913). That court concluded that because a presiding election judge had the same power as a district judge to enforce order and keep the peace, and because a district judge could carry arms to a polling location, the presiding election judge likewise had authority to do so. Id. Thus, in the event your school is used as a polling place, the official election judge may be armed.
Drugs: Epinephrine auto-injectors and defining “all hours the campus is open.”
The Texas Department of State Health Services has issued a new rule, effective August 1, 2018, that is causing concern and confusion. Texas Education Code §38.208 states that a district that adopts a policy regarding the maintenance, administration, and disposal of epinephrine auto-injectors at each campus in the district or school must ensure the policy requires that each campus have one or more school personnel members or school volunteers authorized and trained to administer an epinephrine auto-injector present during all hours the campus is open. In the past, the District has been allowed to define “all hours the campus is open.” However, the new rule defines all hours the campus is open to mean “at a minimum, during regular on-campus school hours, and when school personnel are physically on site for school-sponsored activities.”
Most districts have received this new language in the form of a new policy. The new proposed FFAC (LOCAL) accurately reflects the regulations found in 25 TAC Sections 37.601 and 37.611, which went into effect on August 1, 2018. Based on this new definition, here are some recommendations that you may want to follow:
- The District could choose to discontinue the practice of unassigned epinephrine auto-injectors.
- Although the District has been provided with a definition of “all hours the campus is open” in policy, it has not been provided with the definition of school-sponsored activity. The District could draft a regulation that defines school-sponsored activity.
- The regulation might also include where to place the injectors, notice to parents, and who has access.
- It is my understanding that TASB will be issuing a model regulation this month that addresses this issue. Additionally, TASB Legal Services is also in the process of creating guidance for districts on epinephrine auto-injectors that will address other requirements and considerations that stem from the finalized rules.
As written, this is a very onerous requirement. However, you might define school-sponsored activity as any meeting or event on school campus that requires a certified staff member to be present during that meeting. This might exclude PTAs and other groups. By placing this in a regulation, you are able to define as you wish and better control the provisions of use.
Finally, it should be noted that a person who in good faith takes, or fails to take, any action related to the administration of epinephrine auto-injectors is immune from civil or criminal liability or disciplinary action resulting from that action or failure to act. See Texas Education Code §§38.215 and 22.052(a), (b). Thus, if mistakes are made, then there is no liability for the District, only any publicity or political fallout.
Interlopers: Ejecting people from district property and their right to appeal.
In a final piece of news, the Texas Education Commissioner has updated the rules regarding the ejection of unauthorized persons on school grounds. Specifically, he has provided guidance on the appeal process, which was mandated by the legislature. The revised rule, 19 TAC §103.1207(h), requires a school district’s board of trustees to adopt a policy that uses the school district’s existing grievance process to permit a person refused entry to or ejected from property controlled by the school district to appeal such refusal of entry or ejection. The policy must permit a person appealing under this section to address the school district’s board of trustees in person within 90 days of the commencement of the appeal, unless the appeal is granted before the school district’s board of trustees considers the appeal. Additionally, subsection (g) requires a school district to post on the district’s Internet website and any campus websites a notice regarding the provisions of this section, including the appeal process set forth in subsection (h) of this section.
It is recommended that the appeal process link include the statement found in (h) and have links to Board Policies FNG (LOCAL) and GF (LOCAL). Although TASB will probably introduce a revision to Board Policy GKA (LEGAL) and (LOCAL) soon regarding the 90 day time limit to hear the appeal, districts should be mindful of the time limit if an appeal is filed in the interim.
It is worth noting that the Commissioner authored 19 TAC §103.1207(h) pursuant to Texas Education Code §37.105. This law has caused confusion and consternation among districts in that its requirements can be onerous and do not necessarily allow for immediate action. However, under a District of Innovation plan, districts may choose to be exempt from this section.
If you have additional questions regarding these three new pieces of law, please do not hesitate to contact the attorneys at Leasor Crass on this or any other school law issue.
