Untitled Texas Attorney General Opinion ( 1969 )

January 9, 1969.
Honorable J. W. Edgar M-332
Commissioner of Education
Texas Education Agency Re: Questions concerning
201 East 11th Street When a Student may be
Austin, Texas 78711 legally suspended or
expelled from school
for drug abuse charges
upon which a local
school board finds the
student guilty without
awaiting disposition
of criminal charges
in court, and related
Dear Mr. Edgar: questions.
you have requested the opinion of this office concerning
certain disciplinary powers on the part of the board of
trustees of an independent school district. Restated, your
questions are as follows:
1. May the board of trustees suspend or expel
a student from school on the basis of an indict-
ment for a narcotics offense (i.e..,illegal pos-
session, use, or sale of prohibited drugs).
2. May the board of trustees suspend or expel
a student accused of a narcotic offense following
a hearing before the school board without awaiting
the disposition of criminal trial in the courts.
3. Would the members of the school board be liable
in damages for expelling a student for narcotic
violation if such student were subsequently found
innocent in the state court.
In preparing this opinion, this office has examined the
disciplinary policies enacted by the school district in
question. It is noted that prior to November 12, 1968,
there was no policy concerning dangerous drugs and narcotics.
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Hon. J. W. Edgar, Page 2 (M-332)
It is our opinion that the board of trustees would have
no authority to expel a student for narcotic-connected
offenses occurring prior to that date.
Since November 12, 1968, the following policy has been
in effect:
"Any student known to have a dangerous drug
or narcotic drug in his possession, or known to
be under the influence thereof, while in school
or while participating in a ,school-sponsored
function, after due notice to the violator and
after hearing before the Board of Trustees and
if found guilty, the student shall be expelled
for the balance of the semester and no credits
be given to the student for the semester.
"Any student who shall have been convicted
of a misdemeanor or felony for the possession,
use, or sale of a dangerous drug or narcotic
drug while outside the school, will be expelled
by the Board of Trustees for the current semester,
and no credit be given to the student for the
semester."
Pursuant to the above policy, the board of trustees is
now enabled to exercise such powers as are delineated in
the recent case of Cornette v. Aldridge~,408 S.W.Zd 935
(Tex.Civ.App. 1966, err.ref.1, wherein the following
statements appear:
"The courts will not interfere with the
exercise of discretion by school directors in
matters confided bye law to their judgment, unless
there is a clear abuse of the discretion, or a
violation of law. So the courts l ** will not
consider whether the regulations are wise or ex-
pedient, but merely whether they are a reasonable
exerolse of the power and discretion of the board.
Acting reasonably within the powers conferred, it
is the province of the board of education to deter-
mine what things are detrimental to the successful
tntagement, good order, and discipline of the schools
. The presumption is always in favor of the
reasonableness and propriety of a rule or regulation
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Hon. J. W. Edgar, Page 3 .(M-332)
duly made. The reasonableness.of regulations
is a question of law for the courts.
II
...the right to attend public schools is
conditioned on compliance by pupils with established
reasonable rules, regulations and requirements of
the school authorities, breaches of which may be
punished by suspension or expulsion and that the
school authorities have the right to define the
offenses for which the punishment of exclusions
may be imposed, to determine whether the offense
has been committed and that such discretion
vested in school authorities is very broad.
II
...its acts will not be interfered with nor
set aside by the courts, unless there is a clear
abuse of the power and discretion conferred. Acting
reasonably within the powers conferred, it is the
province of the board of education to determine
what things are detrimental to the successful
management, good order, and discipline of the
schools and the rules required to produce these
conditions.
...We agree with the Supreme Court of Tennessee
in State ex rel. Sherman v. Hyman, supra, to the
effect that a fair hearing before school officials
does not contemplate a trial as in a chancery
court or court of law. The student should be
given every fair opportunity of showing his inno-
cence, which Aldridge had. When they have done
-and the disciplinary committee has reached
a conclusion, they have done all the law requires
them to do." (Emphasis added.)
It is, therefore, the opinion of this office that a
school board may expel a student for a narcotic violation
while in school or participating in a school sponsored
function as set forth in Section 1 of its disciplinary
poligies governing Dangerous Drugs and Narcotics following
a hearing before the board without regard to the disposition
of any criminal proceedings in the state court.
It is our opinion that a student may be expelled fol-
lowing a hearing before the board if it be shown that such
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Hon. J. W. Edgar, Page 4 (M-332)
student had been finally convicted as set forth in Section
2 of the policy on Dangerous Drugs and Narcotics.
It is further our opinion that liability on the part
of the members of the school board is governed by the
general rule in such matters and that no such liability
would arise in the absence of malice or gross misconduct
on the part of the board.
However, there could be no right to expel or suspend
from school on the sole basis of an indictment. Such a
policy would be unreasonable. It is a basic tenet of
criminal law that an indictment is merely a written state-
ment of a grand jury accusing a person of some act or
omission which, by law, is declared to be an offense: it
constitutes no evidence of guilt and may not be considered
for any purpose other than as a legal pleading whereby
a case is brought into court for a hearing. See Articles
21.01, et seq., Vernon's Texas Code of Criminal Procedure,
and cases annotated thereunder.
You are, therefore, advised that the school board
would not be authorized to act solely on the basis of an
indictment or complaint, but that it would be necessary
to have a hearing of its own wherein the student is given
every fair opportunity of showing his innocence of the
offense charged. Dixon v. Alabama, 294 F.2d 150 (5th
Cir. 1961), holding that the rudiments of an adversary
proceeding must be preserved to the end that the require-
ments of due process of law will have been fulfilled.
SUMMARY
When a school board has published a
discipline policy concerning Dangerous
Drugs and Narcotics, a student may be
expelled for violation of such policy.
The school board must conduct its .
own hearing, and disposition of state
court charges will have no effect on the
action of the board (except as evidence).
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I
?.. -
Hon. J. M. Edgar, Page 5 (~-332)
The board incurs no liability if
its actions are reasonable, but it may
not legally suspend or expel a student
from school solely on the basis of an
indictment for a narcotics offense.
The student is entitled to a hearing
in which he is given every fair oppor-
tunity of showing his innocence of
the offense charged and the requirements
of due process of law must be fulfilled
before a school board may expel a student.
very truly,
A orney General of Texas
I+
I/
?repared by Howard M. Fender
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
John Banks
Mark White
Tom Bullington
Bob Darden
Hawthorne Phillips
EXECUTIVE ASSISTANT
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