ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

October 2, 2007

The Honorable Charlie F. Howard

Chair, Committee on Local and

Consent Calendars

Texas House ofRepresentatives

Post Office Box 2910

Austin, Texas 78768-2910

Dear Representative Howard:

Opinion No. GA-0574

Re: School district responsibilities under section

25.0951(a) ofthe Texas Education Code

(RQ-0584-GA)

You ask two questions about a school district's responsibility to file a complaint for failure

to attend school under section 25.0951(a) ofthe Texas Education Code. 1 See TEX. EDUC. CODE

ANN. § 25.0951(a) (Vernon 2006), amended by Act of May 25,2007, 80th Leg., R.S., ch. 908,

§ 31, 2007 Tex. Sessa Law Serve 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN.

§ 25.0951(a)); Act ofMay 23, 2007, 80th Leg., R.S., ch. 984, § 1,2007 Tex. Sessa Law Serve 3463,

3463 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)).

A child between the ages ofsix and eighteen generally must attend school "each school day

for the entire period the program ofinstruction is provided." TEX. EDUC. CODEANN. §25.085(a)-(b)

(Vernon 2006). A child who is required to attend school commits an offense if, without a legitimate

excuse, he or she "fails to attend school on 10 or more days or parts of days within a six-month

period in the same school year or on three or more days or parts ofdays within a four-week period."

Id. § 25.094(a); see also id. § 25.087 (establishing guidelines for excused absences). Under section

25.0951, a school district must initiate legal action against a child or the parent of a child who fails

to comply with the statutory school-attendance requirements. See ida § 25.0951. In the following

excerpt from section 25.0951, relevant legislative amendments to section 25.0951 adopted during

the 2007 legislative session are indicated:

(a) Ifa student fails to attend school without excuse on 10 or

more days or parts of days within a six-month period in the same

school year, a school district shall within 10 [seven] school days of

the student's 10th [last] absence:

ISee Letter from Honorable Charlie F. Howard, Chair, Committee on Local and Consent Calendars, Texas

House ofRepresentatives, to Honorable Greg Abbott, Attorney General ofTexas, at 1 (Apr. 19,2007) (on file with the

Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Charlie F. Howard' - Page 2 (GA-0574)

(1) file a complaint against the student or the student's

parent or both in a county, justice, or municipal court for an offense

under Section 25.093 ["Parent Contributing to Nonattendance"] ,or

25.094 ["Failure to Attend School"], as appropriate, or refer the

student to a juvenile court in a county with a population ofless than

100,000 for conduct that violates Section 25.094; or

(2) refer the student to a juvenile court for conduct

indicating a need for supervision . . . .

(d) A court shall dismiss a complaint or referral made by a

school district under this section that is not made in compliance with

this section.

Id. § 25.0951(a), (d), amended by Act of May 25,2007, 80th Leg., R.S., ch. 908, § 31,2007 Tex.

Sess. Law Servo 2277,2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); Act

ofMay 23, 2007, 80th Leg., R.S., ch. 984, § 1,2007 Tex. Sess. Law Servo 3463, 3463 (Vernon) (to

be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); see also id. § 25.0951(c) (defining "parent").

In 2006 this office interpreted section 25.0951 as it was written at that time. See generally

Tex. Att'y Gen. Ope No. GA-0417 (2006). In that opinion, GA-0417, this office determined that

section 25.0951(a) requires a school district to file a complaint or referral2 within seven days ofthe

student'stenth unexcused absence. See id at 5. Failure to do so, the opinion concluded, "inevitably

leads to the complaint's or referral's dismissal." Id. Moreover, if a complaint is dismissed as

untimely, subsection (a) prohibits a school districtfrom refiling the exactsame complaint based upon

the same ten unexcused absences-but "[i]fthe student has failed to attend school without excuse

since the original complaint was filed," the school district must file a new complaint "that lists the

latest absence as well as some or all ofthe absences listed in the original complaint" within seven

school days ofthe latest absence. Id. at 6. Thus, each subsequent absence that occurs within a sixmonth period ofthe same school year renews the seven-day period within which the school district

may file a timely complaint. See id.

You now ask whether "a school district's failure to file a truancy complaint ... under

§ 25.095[I](a) ... within the seven[-]day period after the tenth unexcused absence affect[s] in any

way its ability to file a complaint . . . against the same student based on a subsequent absence,

assuming that the most recent ten absences are within a sixth-month period." Request Letter, supra

note 1, at 1. Nothing in the statute forbids a school district from filing a new complaint listing some

ofthe absences listed in the dismissed complaint in addition to a new, subsequent tenth unexcused

2Throughout the remainder ofthis opinion, we will use the term "complaint" to encompass both a complaint

filed in a county, justice, or municipal court under section 25.0951(a)(1) and a referral to juvenile court made under

section 25.095 1(a)(2).
The Honorable Charlie F. Howard - Page 3 (GA-0574)

absence, so long as all the absences have occurred within a six-month period ofthe same school year.

See Tex. Att'y Gen. Ope No. GA-0417 (2006) at 6; see also TEX. EDUC. CODE ANN. § 25.0951(a)

(Vernon 2006), amended by Act of May 25,2007, 80th Leg., R.S., ch. 908, § 31,2007 Tex. Sessa

LawServ. 2277,2291 (Vernon) (to be codified at TEX. EDUC. CODEANN. §25.0951(a)); Act ofMay

23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Sessa Law Serve 3463, 3463 (Vernon) (to be

codified at TEX. EDUC. CODE ANN. § 25.0951(a)).

A recent legislative amendment to section 25.0951(a) supersedes a portion of GA-0417's

conclusion. Under the amendment, a school district must file the complaint within ten, not seven,

school days.3 See Act of May 23,2007, 80th Leg., R.S., ch. 984, § 1,2007 Tex. Sessa Law Serve

3463,3463 (Vernon) (to becodifiedatTEx.EDUC.CODEANN. §25.0951(a)). A second amendment,

changing the word "last" to "10th," codifies that portion of GA-0417 concluding that a school

district must file a complaint after the student's tenth absence. See Act ofMay 25, 2007, 80th Leg.,

R.S., ch. 908, § 31, 2007 Tex. Sessa Law Serve 2277, 2291 (Vernon) (to be codified at TEX. EDUC.

CODE ANN. § 25.0951(a)); House Comma on Juvenile Justice & Family Issues, Bill Analysis, Tex.

Comma Substitute H.B. 2884, 80th Leg., R.S., § 24 (2007). As the second amendment makes clear,

a student's tenth unexcused absence triggers the school district's responsibility to file a complaint.

See Act of May 25,2007, 80th Leg., R.S., ch. 908, § 31,2007 Tex. Sessa Law Serve 2277,2291

(Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)). See generally TEX. GOV'T CODE

ANN. § 311.025(b) (Vernon 2005) (directing that multiple amendments to the same statute enacted

at the same legislative session should be harmonized if possible to effectuate each). Otherwise,

GA-0417's construction ofsection 25.0951(a) is unaffected.

You also ask whether a school district that fails to file a timely complaint under section

25.0951(a) suffers any penalty under the Education Code other than the dismissal ofthe complaint

under section 25.0951(d). See Request Letter, supra note 1, at 1; see TEX. EDUC. CODE ANN.

§ 25.0951(a), (d) (Vernon 2006), amended by Act ofMay 25,2007, 80th Leg., R.S., ch. 908, § 31,

2007 Tex. Sessa Law Servo 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN.

§ 25.0951(a)); Act ofMay 23,2007, 80th Leg., R.S., ch. 984, § 1,2007 Tex. Sessa Law Serve 2271,

2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)). We find no other penalties

in the Education Code.

3The bill amending section 25.0951(a) to increase the filing period from seven to ten school days became

effective immediately. See Act ofMay 23, 2007, 80th Leg., R.S., ch. 984, § 2 [Tex. S.B.1161]; see also H.J. ofTex.,

80th Leg., R.~. 5268-69 (2007) (recording a vote of 144-0 in favor ofpassage on the bill's third reading); S.J. ofTex.,

80th Leg., R.S. 986-87 (2007) (recording a vote of30-0 in favor ofpassage on the bill's third reading).
The Honorable Charlie F. Howard - Page 4 (GA-0574)

SUMMARY

Under section 25.0951(a) of the Education Code, a school

district must file a complaint or referral against a student who has

accumulated ten or more unexcused absences within a six-month

period in the same school year within ten school days ofthe student's

tenth absence. Failure to file within the requisite time will lead to

dismissal ofthe complaint or referral, but the school district may file

a new complaint, listing some of the same absences as well as a

subsequent tenth unexcused absence, within ten school days of the

tenth absence listed in the complaint or referral. To the extent

Attorney General Opinion GA-0417 construes section 25.0951(a) to

require filing a complaint or referral within seven school days, it has

been superseded by amendments to the statute.

Other than requiring a court to dismiss the complaint or

referral, the Education Code imposes no penalties on a school district

that fails to file a complaint or referral within ten school days ofthe

student's tenth unexcused absence.

KENT C. SULLIVAN

First Assistant Attorney General

NANCY S. FULLER

Chair, Opinion Committee

Kymberly K. Oltrogge

Assistant Attorney General, Opinion Committee