Legislative Update Archives - Education Lawyers

August 12, 2019 By LeasorCrass

Public Information Overload

The 86^th Legislature was hard at work this year drafting and pushing bills affecting school districts across Texas. One such bill you should be aware of may affect the way school districts handle the all too familiar Public Information Act request. Senate Bill 944 is effective September 1, 2019 and makes several changes to the Public Information Act. Most notably, the bill adds a definition for temporary custodians and sets forth the duties and penalties for any violations.

What is a temporary custodian and why should you care?

A temporary custodian can be any current or former employee or trustee who created or received public information in the transaction of official business or in their official capacity and who has not provided the information to the school district. In other words, if you have ever sent or received a text message on your personal cell phone regarding district business, you may be a temporary custodian.

Any information held by a temporary custodian is subject to records preservation, retention, and disposition laws under the Texas Government Code and Texas Local Government Code. This means any public information, even if located on a personal device, must be retained and preserved in accordance with the mandatory retention laws of the State.

Additionally, the bill makes clear temporary custodians have no personal or property rights in public information. Therefore, all current or former employees or trustees who maintain public information on their personal devices are required to (1) forward the information to the school district or the school district’s server; or (2) preserve and retain the information, in its original form, on the personal device for the legally mandated retention period.

School districts’ public information officers have a duty to use reasonable efforts to obtain requested information from temporary custodians if a public information officer is aware of facts amounting to a reasonable belief that a temporary custodian has possession, custody, or control of requested information. A temporary custodian is required to surrender and return any requested information in their possession, within ten (10) days of a request from a public information officer.

A violation under this law may result in disciplinary actions by the school district against the temporary custodian, if employed, and any penalties under the Public Information Act or other law. Penalties under the Public Information Act include criminal remedies, such as official misconduct and criminal negligence, and civil remedies.

What else should you know about Senate Bill 944?

Assuming a school district receives a public information request and is seeking an Attorney General decision, an original request from a requestor for information in the possession of a temporary custodian is not considered received by the school district until the date the information is surrendered or returned by the temporary custodian. Because temporary custodians are required to return or surrender such information within ten (10) days of a request from the public information officer, this results in the tolling of certain Public Information Act timelines.

Lastly, the bill allows school districts to designate one mailing address and one email address for receiving public information requests. Such addresses must be provided upon request. However, a school district that designates and posts the designated mailing and email address on its website or its Public Information Act sign is not required to respond to a request until it is properly submitted at one of the designated addresses, by hand delivery, or by another method properly approved by the school district. Please note a method is only considered approved by a school district if the district includes a statement indicating that a request for public information may be made by that method on its required Public Information Act sign or the district’s website. For example, a district may require all public information requests be submitted via email at a designated email address, by hand delivery at a physical address, or mailed to the department that handles all public information requests.

If you have any questions or concerns about how Senate Bill 944 may affect your district or need any policy recommendations for the future, please do not hesitate to contact the attorneys at Leasor Crass.

September 28, 2017 By LeasorCrass

House Bill 674: Keeping Students on Campus

House Bill 674 (“HB 674”) has two parts:

it adds Texas Education Code (“TEC”) § 37.005(c), which prohibits out-of-school suspension (“OSS”) for students below 3rd grade, with some exceptions; and
it adds TEC § 37.0013, POSITIVE BEHAVIOR PROGRAM, which authorizes districts to create new disciplinary alternatives for students below 3rd grade who engage in conduct eligible for OSS under the district’s Student Code of Conduct (“SCOC”).

No OSS for students below 3rd grade, unless…

HB 674 applies beginning with the 2017-2018 school year. It prohibits districts from placing students below 3rd grade in OSS, unless the student, while on school property or attending a school-sponsored or school-related activity, engages in conduct that contains the elements of:

a weapons offense under Texas Penal Code § 46.02 (Unlawful Carrying Weapons) or 46.05 (Prohibited Weapons)
assault
sexual assault
aggravated assault
aggravated sexual assault
selling, giving, or delivering to another person or possessing, using, or being under the influence of marijuana, a controlled substance, a dangerous drug, or an alcoholic beverage

Positive Behavior Programs

HB 674 also provides districts with the authority to create Positive Behavior Programs and train staff regarding disciplinary alternatives for students below 3rd grade. In consultation with a district’s campus behavior coordinators and Regional Education Service Center representatives, a district may now create disciplinary alternatives for students below 3rd grade who violate the SCOC and, in accordance with the new TEC § 37.005(c) discussed above, cannot be placed in OSS. Such programs must:

be age-appropriate and research-based;
provide models for positive behavior;
promote a positive school environment;
provide alternative disciplinary courses of action that do not rely on the use of in-school suspension, OSS, or placement in a DAEP to manage student behavior; and
provide behavior management strategies, including:

positive behavioral intervention and support;
trauma-informed practices;
social and emotional learning;
a referral for services, as necessary; and
restorative practices.

If you or your staff have questions about this new law, or would like training related to any of these issues, the attorneys at Leasor Crass stand ready to assist.

June 19, 2017 By LeasorCrass

Unfortunately, There is More Than One Bad Apple

The Texas Legislature passed, and the Governor recently signed, Senate Bill 7 in an attempt to address what many have come to view as an epidemic of inappropriate relationships between educators and students. This piece of legislation, which becomes effective on September 1, 2017, is one of the most talked about coming out of this legislative session. It is imperative that administrators pay close attention to this law and the topic it covers. Your certificate may depend on it.

Following is a bullet point list of the significant additions to the law in this area:

The principal must notify the superintendent not later than the seventh business day after the date of an educator’s termination of employment or resignation following an alleged incident of misconduct or the principal knew about an educator’s criminal record.
The superintendent must now notify the State Board for Educator Certification (“SBEC”) by filing a report with the board not later than the seventh business day after the date the superintendent receives a report from a principal.
Immunity is still provided for reports made in good faith.
An educator is now prohibited from inappropriate behavior with any student known to be enrolled in any public or private primary or secondary school.
Mandatory reporting by a superintendent to SBEC under 21.006(b)(2) is now triggered by termination and evidence of wrongdoing rather than termination based on evidence of wrongdoing.
The superintendent must complete an investigation of any allegation involving abuse, unlawful acts, romantic relationships, or sexual contact with a student or minor and report it to SBEC even if the educator is terminated or leaves the district.
Requires notice to parents of a student with whom an educator is alleged to have engaged in misconduct involving abuse, an unlawful act, romantic relationship, or sexual contact.
Although districts currently have policies in place regarding staff/student electronic communications, the policy must now have a provision that staff personal phone numbers and email addresses are not required to be disclosed.
SBEC is now authorized to impose administrative penalties of up to $10,000 against principals and/or superintendents who fail to comply with the reporting requirements.
Failure to comply with the reporting requirements with the intent to conceal an educator’s criminal record or alleged incident of misconduct is punishable as a state jail felony.
Applicants must now disclose if they have even been charged with having an inappropriate relationship with a student.
If a certified employee assists an educator who has had an inappropriate relationship with a student in gaining employment in another district, that employee’s certificate may be revoked.
If an educator is convicted of a felony involving an inappropriate relationship, it prohibits TRS payments.

If you would like more information on this topic or seek a review of your district’s policies or procedures regarding this new law, please do not hesitate to contact one of the attorneys at Leasor Crass, P.C.

No OSS for students below 3rd grade, unless…

Positive Behavior Programs

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