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 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)); 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 forthe entireperiodtheprogramofinstructionisprovided." TEX. EDUC. CODEANN. 

### §25.085(a)-(b) (Vernon 2006). A child who is requiredto attend school commits an offense if, withoutalegitimate excuse, he or she "fails to attend school on 10 or more days or parts ofdays within a six-month period inthe same school year or onthree ormore days orparts 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 districtmust initiate legal action against a child orthe parent ofa 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 studentfails to attend school withoutexcuse on 10 or more days or parts ofdays 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 withthe Opinion Committee, also available athttp://www.oag.state.tx.us) [hereinafter Request Letter].The Honorable Charlie F. Howard'

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(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 studentto ajuvenile 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 districtunderthis sectionthatis notmade in compliance with this section. Id. 

### § 25.0951(a), (d), amendedby Act ofMay 25,2007, 80th Leg., R.S., ch. 908, 

### § 31,2007 Tex. Sess. Law Servo 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. Sess. Law Servo 3463, 3463 (Vernon) (to be codified at TEX. EDUC. CODEANN. 

### § 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 districtto file a complaint orreferral2 within seven days ofthe student's tenthunexcused absence. See 

### id at 5. Failureto do so, the opinionconcluded, "inevitably leads to the complaint's or referral's dismissal." Id. Moreover, if a complaint is dismissed as untimely, subsection(a) prohibits a schooldistrictfromrefilingtheexactsamecomplaintbasedupon 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 yearrenews the seven-dayperiod 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 thatthe mostrecentten absences are within a sixth-monthperiod." RequestLetter, supra note 1, at 1. Nothing inthe statute forbids a school districtfrom filing anew complaintlisting some ofthe absences listed in the dismissed complaint in addition to a new, subsequenttenth 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 tojuvenile court made under section 25.095 1(a)(2).The Honorable Charlie F. Howard

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absence, so long as allthe absences have occurredwithina six-monthperiodofthe same schoolyear. See Tex. Att'y Gen. Ope No. GA-0417 (2006) at 6; see also TEX. EDUC. CODE ANN. 

### § 25.0951(a) (Vernon 2006), amendedby Act ofMay 25,2007, 80th Leg., R.S., ch. 908, 

### § 31,2007 Tex. Sessa LawServ. 2277,2291 (Vernon) (to be codified atTEX. EDUC. CODEANN. 

### § 25.0951(a)); ActofMay 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 ofGA-0417's conclusion. Under the amendment, a school district must file the complaint within ten, not seven, school days.3 See Act ofMay 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 districtmustfile a complaint afterthe student's tenth absence. See Act ofMay 25, 2007, 80thLeg., 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, 80thLeg., R.S., 

### § 24 (2007). As the second amendmentmakes clear, a student's tenth unexcused absence triggers the school district's responsibility to file a complaint. See Act ofMay 25,2007, 80th Leg., R.S., ch. 908, 

### § 31,2007 Tex. Sessa Law Serve 2277,2291 (Vernon) (to be codified atTEX. EDUC. CODEANN. 

### § 25 .0951 (a)). See generally TEX. GOV'TCODE ANN. 

### § 311.025(b) (Vernon 2005) (directing that multiple amendments to the same statute enacted at the same legislative session should be harmonized ifpossible 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 underthe Education Code otherthan 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), amendedby 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, 80thLeg., R.S., ch. 984, 

### § 1,2007 Tex. Sessa Law Serve 2271, 2291 (Vernon) (to be codified at TEX. EDUC. CODEANN. 

### § 25.0951(a)). We find no otherpenalties 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

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### SUMMARY Under section 25.0951(a) ofthe 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 periodinthe same schoolyearwithinten school days ofthe student's tenth absence. Failure to file within the requisite time will lead to dismissal ofthe complaintorreferral, butthe school districtmay file a new complaint, listing some ofthe same absences as well as a subsequent tenth unexcused absence, within ten school days ofthe 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 orreferral 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 orreferral 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