Elements of the Offense

By Sterling T. Burleson II – Associate
Eichelbaum Wardell Hansen Powell & Mehl, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

Texas school districts have been conducting expulsion hearings for
years using the procedures that have been established under the Education Code
and local policies. Education Code Section 37.007
contains a list of “serious offenses” for which a student either “shall” or
“may” be expelled. Throughout Section 37.007, it is repeatedly stated that a
student either “shall” or “may” be expelled when the student “engages in
conduct that contains the elements” of the specifically listed offenses.[1]
But what exactly does it mean to engage in conduct that contains “elements” of
an offense? How does the phrase “elements of the offense” come into play during
the expulsion hearing?

The phrase comes
from the Texas Penal Code, which contains a specific definition for the element
of the offense:

“Element of
offense” means:

            (A) the forbidden conduct;

            (B) the required culpability;

            (C) any required result; and

            (D) the negation of any exception to
the offense.[2]


In other
words, all four of these elements may be required for a student’s conduct to
meet the criteria of a specific offense depending on the definition of the offense
contained in the Penal Code. Therefore, when conducting an expulsion for a
serious offense under Education Code 37.007, a district should be able to show
that a student committed all of the required above “elements” of the specific
serious offense. Whether using documentation or oral testimony, some evidence
presented by the district at the expulsion hearing should support each required
element, based on the definitions of the specific offense contained in the
Education Code, Penal Code, and your district’s code of conduct.

Say, for
example, a student attacked another student, punching him repeatedly in the
face, and the alleged expulsion offense is aggravated assault. Aggravated
assault under the Penal Code definitions requires either assault when using or
exhibiting a deadly weapon, or assault that causes serious bodily injury of
With no evidence of a deadly weapon in our example, a district would need to
show that the student assaulted the other student and caused serious bodily
injury. For the first element of the offense, the district must present
evidence that the assault (punching the other student in the face) occurred.

the second element, “culpability” means the state
of mind.
Evidence that the student intentionally
struck the other student is evidence of the required culpability. Remember
to check the Penal Code’s definition of a specific offense to determine the
required culpability. Usually, expulsion offenses, including aggravated
assault, require a student to commit the offense either intentionally,
knowingly, or recklessly. Remember that culpability does not concern the
“result” of a student’s actions, but whether the student intended to perform
the act itself. For example, the student’s conduct would meet the required
culpability by intentionally throwing
a punch at the other student, even if the punch was thrown without the
intention of inflicting harm.

The third
element of the offense however, does concern the “result” of the student’s
actions. In our example, to prove aggravated assault, a district would need to
show that the student caused serious bodily injury. Therefore, evidence of the
actual injuries suffered by the victim student would be needed.

The final
element, the negation of any exception to the offense, most commonly comes into
play when determining whether a student acted in “self-defense.” Whether or not
self-defense is relevant depends on the specific facts of each case and the specific
offense committed. As always, be sure to check the Penal Code definitions of
the specific offense and “self-defense.” If a self-defense claim is made and
would be an exception to the offense, then the district would need to present
evidence showing that the student did not commit the act in “self-defense.”
This element can be especially complicated with dealing with sexual offenses,
when it may be a defense that the students involved had an age difference of
less than three years. Be sure to check with your district’s attorney if this element
becomes a factor in your case.

As discussed
above, the “elements of the offense” phrase impacts the expulsion hearing
because it means that the school district needs to provide evidence of all required
“elements of the offense.” The evidence provided at the hearing, whether it is documentation
or oral testimony, should support all required elements based on the specific
facts of the case. Remember that the purpose of the expulsion hearing is to
provide “appropriate due process as required by the federal constitution.”[4]
The expulsion process can sometimes be complicated. Be sure to consult with
your school district’s attorney if you have any questions regarding the
“elements of the offense” or expulsions in general.

[1] Tex. Education Code § 37.007.

[2] Tex. Penal Code § 1.07(a)(22).

[3] Tex. Penal Code § 22.01,02.

[4] Tex. Educ. Code § 37.009.

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