Untitled Texas Attorney General Opinion ( 1991 )

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DAN MORALES November 8,199l
.ATTORSEI’
GESERAL
Honorable Bill Sims Opinion No. DM-56
ChC&lllM
Committee on Natural Re: Authority of board of trustees of
Resources an independent school district to enact
Texas State Senate and enforce a policy banning the use of
P.O. Box 12068 tobacco products by district personnel
Austin Texas 78711 and the general public on all school
district property (RQ-165)
Dear Senator Sims:
You have submitted questions to this office regarding the authority of the
Kermit Independent School District to enact and enforce a comprehensive “No
Tobacco” policy.’ The policy in question, adopted by the board of trustees on July
18,1991, reads as follows:
Use of tobacco products by District staff and the
general public shall be prohibited in all enclosed school
facilities; open air property, including parking lots,
outdoor athletic fields, outdoor seating areas, practice
fields, and all school vehicles, including buses.
Violation by employees shall result in reprimand or
possible suspension.*
The policy appears to be responsive to a resolution issued by the State Board of
Education on January 12, 1990, encouraging “local boards of trustees of Texas
school districts to exercise their authority voluntarily to establish policies that
lYour original rquest suggested that the policy had been i&h&d by the superintendent of
the district and questioned his authority to enact and enforce such a rule. As you later informed us that
the policy had been adopted by the board of trustees, we address the question of the board’s authority
in this matter.
%obacca use by students on school property or at school-sponsored activities, also prohibited
by the school district’s policies, is statutorily prohibited by Education Code section 21.927.
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Honorable Bill Sims - Page 2 (DM-56)
prohibit tobacco use on school property or at school functions not only by students
but also by school personnel, parents, and all others who serve as adult role models
for Texas youth.” You ask whether the Kermit Independent School District board
of trustees has the authority to enact and enforce its “No Tobacco” policy. We
conclude that it does.
Under the Education Code, the trustees of an independent school district
“have the exclusive power to manage and govern the public free schools of the
district” and “may adopt such rules, regulations and by-laws as they may deem
proper.” Educ. Code 8 23.26(b), (d); see Fisher v. Bwkbumett Indep. School Dist.,
419 F. Supp. 1200, 1202 (N.D. Tex. 1976); Attorney General Opinion JM-773
(1987). Furthermore, subchapter M of the Education Code “Protection of School
Grounds and Buildings,” in section 21.482(a) provides the following:
The board of trustees of any school district may promulgate
rules and regulations for the safety and welfare of students,
employees, and property, and other rules and regulations it may
deem necessary to carry out the provisions of this subchapter
and the governance of the school.
Thus, a board of trustees may adopt regulations concerning students, district staff,
and use of school property. These provisions confer wide discretion on a school
board to adopt regulations it believes will promote its policies, as long as those
regulations are not arbitrary, unreasonable, or. in violation of law. See, e.g., FereZZv.
Dallas Indep. School Disk, 392 F.2d 697, 702 (5th Cir.), cert. denied, 393 U.S. 856
(1968) (upholding school regulation concerning hair length); B%!ron v. Abilene
Indep. School Dirt., 190 S.W.2d 406, 412 (Tex. Civ. App.-Eastland 1945, writ refd)
(upholding school board order requiring students to sign card pledging that they
were not and would not become members of any fraternity, sorority, or secret
organization not approved by the principal as a prerequisite to participation in
extra-curricular activities); Nacogdmhes lndep. School Dirt. v. Adams, 36 S.W.2d
567 (Tex. Civ. App.-1931. writ refd n.r.e.) (trustees of public school are vested with
discretion not reviewable in absence of abuse, in management, control, and
protection of school property); cjI Anderson v. Canyon Zndep. School Dirt., 412
S.W.2d 387 (Tex. Civ. App.-Amarillo 1967, no writ) (school board was without
authority to adopt rule that students who marry during school term must withdraw
from school for remainder of school term). See generally 65 TEx. JUR. 3d Schools $(5
p. 285
Honorable Bill Sims - Page 3 (DM-56)
97, 103.3 A court, and not this office in the opinion process, is the appropriate
forum for a determination as to whether a particular rule is arbitrary or
unreasonable. On its face, the enactment of the “No Tobacco” policy appears to be
within the school board’s authority.
Likewise, we believe that the board of trustees has the statutory authority to
enforce the policy in question. The “No Tobacco” policy provides that “[v]iolation by
employees shall result in reprimand or possible suspension.” The trustees’ authority
to manage the schools necessarily includes the authority to enforce its policies
through disciplinary action against its employees. Indeed, we note that one of the
statutory grounds for discharge of teachers is “repeated failure to comply with
official directives and established school board policy.” Educ. Code 9 13.109.
Accordingly, the “No Tobacco” policy is enforceable against school district
personnel.
The school board also has the authority to enforce this policy on school
property against the general public. As cited above, section 21.482 in Subchapter M
of the Education Code authorizes a school board to enact rules and regulations
concerning the management of school buildings and grounds. Other provisions in
that subchapter concern the enforcement of such rules. Section 21.482(b) provides
that
[a] person who violates any provision of this subchapter or wry
rule or regzdation promulgated under the authority of thk
subchapter is guilty of a misdemeanor and on conviction is
punishable by a fine of not more than $200. (Emphasis added.)
Section 21.489 provides that
[t]he board of trustees of a school district or its authorized
representatives may . .. . eject ,any undesirable person from the
property [under the board’s control] on his refusal to leave
peaceably on request.
Finally, section 21.490 provides that
%ee uiso 19 TALC. $0 61.91.61.144 (schools have the respon.&iity “to adopt and implement
policies designed to protect and promote the health, safety, and w&being” of their students and
persome~ respectively).
p. 286
Honorable Bill Sims - Page 4 (DC56)
all officers commissioned by the board of trustees of a school
district may be empowered by the board to enforce rules and
regulations promulgated by the board. Nothing in this
subchapter is intended to limit or restrict the authority of each
district to promulgate and enforce appropriate rules and
regulations for the orderly conduct of the institution in carrying
out its purposes and objectives or the right of separate
jurisdiction relating to the conduct of its students and personnel.
These provisions make clear that a school board has the power to insure that its
regulations are respected by the general public as well as students and district
personnel. You have not informed us of any proposed method of enforcement of
the policy against the general public. Our citation of relevant provisions of the
Education Code merely demonstrates that school board policies may be enforced
against members of the general public within the school district’s jurisdiction; it does
not reach any questions about the Kermit Independent School District’s methods of
enforcing the “No Tobacco” policy.
SUMMARY
The Texas Education Code authorizes the board of trustees
of an independent school district to enact and enforce a policy
prohibiting students, district personnel, and the general public
from using tobacco products on any school district property.
Very truly yours,
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
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JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Faith Steinberg
Assistant Attorney General
p. 288