Q: I received a phone call earlier this week from our local police department that one of our high school students was involved in a gang-related shooting over Spring Break. The investigation is still ongoing, but the student was arrested and charged with “deadly conduct.” Can we place him in our DAEP based solely on notification from law enforcement for this off-campus behavior?
A: Yes. Notification from law enforcement that a student has been arrested for commission of a Title 5 felony is sufficient to form a “reasonable belief” that the student engaged in the prohibited conduct sufficient to mandate a DAEP placement.
Texas Education Code Chapter 37.006 provides that a student shall be removed from class and placed in a DAEP based on “conduct occurring off campus and while the student is not in attendance at a school-sponsored or school-related activity” if the superintendent (or designee) has a “reasonable belief” that the student has engaged in a Title 5 felony or aggravated robbery. In determining whether there is a “reasonable belief,” section 37.006(e) allows a superintendent to consider “all available information,” including the notification by law enforcement required by the Texas Code of Criminal Procedure Article 15.27. The law states that a law enforcement agency that arrests a person believed to be enrolled in a public school shall ascertain if/where the student is enrolled and shall “orally notify” the superintendent of the arrest or referral within 24 hours or before the next school day of the arrest. Written notification is required within seven (7) days. The law allows a superintendent to rely on the information given by law enforcement when forming the Superintendent’s reasonable belief that the student engaged in the prohibited conduct. In this instance, because the offense of “deadly conduct” is a Title 5 felony under the Penal Code (check your policy FOC (EXHIBIT) for a list of all Title 5 felonies) and 37.006(e) notice has been provided, DAEP placement is mandatory.