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Click here for the full text of this decision FACTS:The Tarkington Independent School District appeals from the trial court’s temporary injunction order of March 20, 2006. In its order, the trial court prohibited the district from continuing to enforce an order that expelled J.M. for possession of a prohibited weapon. The district’s expulsion order states that J.M., “on February 14, 2006, was found to be in possession of an illegal weapon (knuckles) while on the Tarkington High School campus.” The District expelled J.M. for one day, Feb. 24, 2006, and placed him in an alternative school through the end of the school’s 2005-2006 term. On March 2, 2006, J.M. filed suit in Liberty County and requested that the court vacate the expulsion order and direct the district to fully readmit him. On March 10, 2006, the trial court entered a temporary restraining order requiring the district to desist from enforcing its expulsion order and to enroll J.M. as a student in the district “without any limitation and with the full rights of any student in good standing.” The trial court converted the temporary restraining order to a temporary injunction on March 20, 2006. HOLDING:Affirmed. The principal issue in dispute is whether a school must expel a student even when the student’s possession is involuntary. Neither the Texas Education Code, the source of the district’s policy, nor the district’s policy expressly define “possession,” which can be voluntary or involuntary. The sole case cited by the district regarding its contention that it is not required to prove that a student voluntarily possessed a weapon is Bundick v. Bay City Independent School District, 140 F. Supp. 2d 735 (S.D. Tex. 2001). Because Bundick was decided prior to the 2005 amendments of Texas Education Code �37.001, which is the version applicable to J.M.’s case, the court does not believe it is helpful regarding whether the Education Code, as amended, remains a zero-tolerance mandate requiring that students be expelled for cases of voluntary and involuntary possession of prohibited weapons. The district’s position at each stage of this proceeding has been that Texas law, and the district’s code of conduct, mandate that all students found in possession, including those that are not in voluntary possession, be expelled. Based on the legislative history of the 2005 amendments, the court concludes that the district’s interpretation of the Education Code and of the district’s policy is in error. The trial court could reasonably have concluded the hearing officer accepted the district’s erroneous argument that expulsion is mandated regardless of the student’s knowledge of the presence of a prohibited weapon. A court may set aside a decision in an expulsion case when the district applies an improper legal standard. United Indep. Sch. Dist. v. Gonzalez, 911 S.W.2d 118 (Tex. App. San Antonio 1995, writ denied) (citing Mercer v. Ross, 701 S.W.2d 830 (Tex. 1986). As a result, the trial court did not err in granting a temporary restraining order pending the outcome of a trial de novo. Although the parties invite the court to address the proper standard for the trial court to use in its review of the hearing officer’s decision, the court states that it has no authorization to render advisory opinions on issues not necessary to a disposition of whether the trial court improperly entered a temporary injunction, the order from which the district appeals in this proceeding. Since the trial court has not conducted the trial de novo, it has not yet applied a standard of review that the court can properly consider on appeal. An applicant for injunctive relief is not required to prove that he will ultimately prevail. The court finds no clear abuse in the trial court’s implicit finding that a hearing officer, applying the proper standard under the Texas Education Code, could conclude that J.M’s expulsion is not required. The district makes several public interest arguments, but the court concludes that the public’s interest is not served when a district erroneously believes that expulsion is mandatory under circumstances when it is not. OPINION:Hollis Horton, J.; Gaultney, Kreger and Horton, J.J.

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