Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 14,2004
Ms. Shirley Neeley, Ed. D. Opinion No. GA-0202
Commissioner of Education
Texas Education Agency Re: Whether, under section 22.05 12 of the Education
170 1 North Congress Avenue Code, a school district may bring a disciplinary
Austin, Texas 78701-9734 proceeding against a professional employee of the
district for violating the district’s corporal punishment
policy, although the employee’s use of force was
justified under section 9.62 of the Penal Code
(RQ-0150-GA)
Dear Commissioner Neeley:
Your agency, the Texas Education Agency (TEA), asks whether, under section 22.05 12 of
the Education Code, a school district may bring a disciplinary proceeding against a professional
employee of the district for violating the district’s corporal punishment policy, although the
employee’s use of force was justified under section 9.62 of the Penal Code.’ See TEX. EDUC. CODE
ANN. 0 22.0512 (Vernon Supp. 2004); TEX. PEN. CODE ANN. 5 9.62 (Vernon 2003).
Section 22.0512 of the Education Code, adopted in 2003, see Act of May 29,2003, 78th
Leg., R.S., ch. 1197,§ 1,2003 Tex. Gen. Laws 3404,3405, purports to immunize a school district’s
professional employee from disciplinary proceedings for the employee’s use ofphysical force against
a student in certain circumstances:
(a) A professional employee of a school district may not be subject to
disciplinary proceedings for the employee’s use of physical force against a student
to the extent justified under Section 9.62, Penal Code.
(b) In this section, “disciplinary proceeding” means:
(1) an action brought by the school district employing a
professional employee of a school district to discharge or suspend the
employee or terminate or not renew the employee’s term contract; or
‘Letter from Robert Scott, Chief Deputy Commissioner, Texas Education Agent y, to Honorable Greg Abbott,
Texas Attorney General (Nov. 24, 2003) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
Ms. Shirley Neeley, Ed. D. - Page 2 (GA-0202)
(2) an action brought by the State Board for Educator
Certification to enforce the educator’s code of ethics adopted under
Section 21.041(b)(8).
(c) This section does not prohibit a school district from:
(1) enforcing a policy relating to corporal punishment; or
(2) notwithstanding Subsection (a), bringing a disciplinary
proceeding against a professional employee of the district who
violates the district policy relating to corporal punishment.
TEX. EDUC. CODE ANN. 9 22.0512 (Vernon Supp. 2004).
The TEA explains that section 22.0512(a) seems to give a teacher the freedom to exercise
his or her own judgment in the classroom with respect to the use of corporal punishment, “so long
as the corporal punishment does not violate” section 9.62 of the Penal Code. Request Letter, supra
note 1, at 2. On the other hand, subsection (c) “seems to take this freedom back by expressly
permitting” a district to enforce its corporal punishment policy against a teacher “‘notwithstanding’
subsection (a).” Id. (quoting TEX. EDUC. CODEANN. 4 22.05 12(c) (Vernon Supp. 2004)). The TEA
therefore inquires as to the correct interpretation of section 22.05 12. See id. at 1.
Citing a school board’s “exclusive power and duty to govern and oversee the management
of’ the district’s public schools, TEX. EDUC. CODE ANN. 5 11.15 1(b) (Vernon Supp. 2004), a brief
we have received indicates that at least fifty school districts in Texas have adopted policies that
“completelyprohibit[] the use of corporal punishment. “2 See, e.g., Tex. Att’y Gen. Op. No. JC-0491
(2002) at l-2 (quoting the Arlington Independent School District’s policy, which prohibits corporal
punishment and regulates other uses of physical restraint). In addition, according to the brief, at least
293 school districts permit “specified corporal punishment” with parental consent. TASB LAP
Brief, supra note 2, at 2.
A school board generally has “not only the obligation but also a right or privilege to control
and discipline” its students, stemming from the fact that the district acts in Zocoparentis. Friona
Indep. Sch. Dist. v. King, 15 S.W.3d 653,659 (Tex. App.-Amarillo 2000, no pet.); see Tex. Att’y
Gen. Op. No. JC-0491(2002) at 2. In addition, a school board is expressly authorized to adopt rules
to protect its students’ safety and welfare. See TBX. EDUC. CODE ANN. 6 37.102(a) (Vernon 1996).
We attempt to construe section 22.0512 so that the entire section has meaning, presuming
that the legislature intended the entire statute to be effective. See TEX. GOV’T CODE ANN.
$3 11.02 l(2) (Vernon 1998). We “never favor[]” a construction that would allow “one section of
the same bill to cancel another.” Exparte Holmes, 754 S.W.2d 676,682 (Tex. Crim. App. 1988).
2Letter from Cheryl T. Mehl, Schwartz & Eichelbanm, P.C., on behalf of the Texas Association of School
Board’s Legal Assistance Fund, to Honorable Greg Abbott, Texas Attorney General, at 2 (Jan. 27,2004) (on file with
the Opinion Committee) [hereinafter TASB LAF BriefJ.
Ms. Shirley Neeley, Ed. D. - Page 3 (GA-0202)
In our view, the fact that subsection (a) refers to a professional employee’s “use of physical
force” while subsection (c) refers to a school district’s “policy relating to corporal punishment” is
significant. See TEX. EDUC. CODE ANN. 9 22.05 12(a), (c) (Vernon Supp. 2004). We presume that
every word or phrase in a statute has been chosen for a particular purpose. See Cameron v. TerreZZ
& Garrett, Inc., 618 S.W.2d 535,540 (Tex. 1981). SeegenerallyLumpkin v. State, 129 S.W.3d 659,
663 (Tex. App.-Houston [ 1st Dist.] 2004, no pet.) (construing the terms “pending” and “in progress”
in section 37.09(a)(l) of the Penal Code, which provides that a person tampers with evidence if,
“knowing that an investigation . . . is pending or in progress, ” the person alters or destroys evidence;
determining that the terms “pending” and “in progress” have different meanings).
Section 9.62 of the Penal Code, to which subsection (a) refers, provides that the use of
nondeadly physical force against a person by an actor who “is entrusted with” the person’s “care,
supervision, or administration for a special purpose ” is justified, but only “when and to the degree
the actor reasonably believes the force is necessary to further the special purpose or to maintain
discipline in a group. ” TEX. PEN. CODE ANN. 9 9.62 (Vernon 2003). In the case of a public school
teacher, the special purpose “is that of controlling, training, and educating” students. Hogenson v.
Williams, 542 S.W.2d 456,459-60 (Tex. Civ. App.-Texarkana.1976, no writ). Thus, section 9.62
permits a teacher to use reasonable force in two circumstances: “( 1) to enforce compliance with a
proper command issued for the purpose of controlling, training or educating the child, or (2) to
punish the child for prohibited conduct. ” Id. at 460. Only the second permissible use of reasonable
force relates to punishment; the first permissible use relates instead to enforcing a proper directive
made to the child. See id.
Physical force used to control, train, or educate a child is distinct from physical force used
to punish a child, which is essentially corporal punishment. A brief we have received describes the
use of physical force to control, train, or educate a child-not to punish-as responding to a “‘heat-
of-the-moment’ need” to stop a behavior or incident that is in the process of happening, as an
immediate safety or control measure. 3 For example, a teacher “who places a hand on” a student’s
shoulder “to keep the student in line ” may use physical force that is not intended to punish.4
Similarly, a teacher may use physical force that is not punishment “to break up a student fight” or
as an “act of self-defense.” TSTA Brief, supra note 4, at 3. By contrast, the phrase “corporal
punishment” in section 22.0512(c) refers only to the use of physical force for the purpose of
punishing the student, as a consequence of inappropriate behavior. Although the phrase is not
defined in the Education Code, nor in Texas judicial decisions, it is commonly understood to mean
“the infliction of bodily pain as a penalty for disapproved behavior.” Daily v. Bd. of Educ., 588
N.W.2d 813, 821 (Neb. 1999); see 40 TEX. ADMIN. CODE $8 746.105(21), 747.105(21) (2004)
(Dep’t of Protective & Regulatory Servs., What do certain words and terms mean when used in this
chapter?) (defining the phrase “corporal punishment” as “[tlhe infliction of physical pain on a child
as a means of controlling behavior”); Daniels v. Gordon, 503 S.E.2d 72, 75 (Ga. Ct. App. 1998)
‘Letter frompamela Parker, Attorney, Association ofTexas Professional EducatorQo Honorable Greg Abbott,
Texas Attorney General, at 2 (Jan. 27,2004) (on file with the Opinion Committee).
4Letter fromKevinF. Lungwitz, General Counsel, Texas State Teachers Association, to Honorable Greg Abbott,
Texas Attorney General, at 3 (Feb. 10,2004) (on file with the Opinion Committee) [hereinafter TSTA Brief].
Ms. Shirley Neeley, Ed. D. - Page 4 (GA-0202)
(“‘Corporal punishment plainly means physical, as opposed to pecuniary, punishment.“‘) (quoting
Simmons v. Vancouver Sch. Dist. No. 37,704 P.2d 648,653 (Wash. Ct. App. 1985)); Ark. Att’y Gen.
Op. No. 93-295, 1993 WL 482267, *l (stating that corporal punishment means physical
punishment); BLACK’S LAW DICTIONARY 1247 (7th ed. 1999) (defining the phrase to mean
“[plhysical punishment; punishment that is inflicted upon the body”); THENEW OXFORDAMEFUCAN
DICTIONARY 384 (defining the phrase to mean “physical punishment”). We construe words and
phrases not defined by statute “according to the rules of grammar and common usage.” TEX. GOV’T
CODE ANN. $3 11 .Ol 1 (Vernon 1998). Whether a particular use of physical force is intended to be
punitive is a question of fact. See Daily, 588 N.W.2d at 822.
Further, the legislative history of section 22.05 12 suggests that the legislature did not intend
to adopt a statute that conflicts with school districts’ corporal punishment policies. Subsection (c)(2)
was added in a Senate committee hearing. See Hearings on Tex. S.B. 930 Before the Senate Educ.
Comm., 78th Leg., R.S. (Apr. 1, 2003) (tape available at http://www.senate.state.tx.us/75r/senate
NidArchives/03.htm). Senator Shapiro, the bill’s author, explained that the amendment “makes it
clear that if a school district in the State of Texas already has a corporal punishment policy, [the]
school district would not be prohibited from initiating a disciplinary proceeding for a violation of
that . . . policy.” Id. (statement of Sen. Shapiro).
We construe section 22.0512 to prohibit a school district from bringing a disciplinary
proceeding against a professional employee for the use of physical force when, consistently with the
first circumstance allowable under section 9.62 of the Penal Code, the employee “reasonably
believes the force is necessary’ “to enforce compliance with a proper command issued” to control,
train, or educate the child. TEX. PEN. CODE ANN. 5 9.62 (Vernon 2003); Hogenson, 542 S.W.2d at
460); see TEX. EDUC. CODE ANN. 3 22.0512(a) (Vernon Supp. 2004). Moreover, section 22.0512
prohibits a school district from bringing a disciplinary proceeding against a professional employee
for the use of physical force for punishment purposes if the school district has no corporal
punishment policy or has a policy that is substantially similar to section 22.05 12(a) and Penal Code
section 9.62. See TEX. EDUC. CODE ANN. 5 22.0512 (Vernon Supp. 2004). Concomitantly, we
construe section 22.05 12 to allow a school district to bring a disciplinary proceeding against a
professional employee if the employee uses physical force to punish the child (corporal punishment)
contrary to the school district’s policy. See id. 9 22.0512(c).
Ms. Shirley Neeley, Ed. D. - Page 5 (GA-0202)
SUMMARY
Section 22.0512 of the Education Code prohibits a school
district from bringing a disciplinary proceeding against a professional
employee for using physical force that the employee reasonably
believes is necessary “to enforce compliance with a proper command
issued to control, train, or educate the child.” Section 22.05 12 further
prohibits a school district from bringing a disciplinary proceeding
against a professional employee for using physical force for
punishment purposes ifthe school district has no corporal pumshment
policy or its policy is substantially similar to section 22.05 12(a) and
section 9.62, Penal Code. Section 22.05 12 concomitantly allows a
school district to bring a disciplinary proceeding against a
professional employee if the employee uses physical force to punish
the child (corporal punishment) contrary to the school district’s
policy.
Very trujy yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee