DAN MORALES

ATTORNEY CENERAL 

## QBffice

of tip Elttornep @eneral &ate of Z&exae January 28, 1993
Honorable John B. Holmes, Jr. Harris County District Attorney 201 Fannin, Suite 200 Houston, Texas 77002-1901

Dear Mr. Holmes: Opinion No. DM-200

Re: Whether ajuvenile court is required to hold a hearing prior to waiving its exclusive original jurisdiction in a truancy case and transferring the case to ajustice of the peace pursuant to section 54.021 of the Family Code, and related questions (RQ-424)

You have asked three questions regarding truancy1 cases. Specifically, you ask the following:
1. Is ajuvenile court required to hold a hearing prior to waiving its

exclusive original jurisdiction in a truancy case and transferring the csse to a justice of the peace under Texas Family Code 3 54.0211
2. Is a child entitled to appointed counsel in a truancy case before a justice of the peace?
3. Is a tardiness to class an “unexcused voluntary absence” under Texas Family Code 3 51.03(b)(2) and Texas Education Code 5 4.25?
Title 3 of the Family Code, which contains the sections of the Family Code about which you inquire, pertains to delinquent children and children in need of supervision Section 51.03(a) defines “delinquent conduct” as an act a child2 commits that (1) is other than a tratIIc offense, but that violates a state penal law punishable by imprisonment or by continement injail; or (2) violates, with certain exceptions, a reasonable and lawful order

%orpurposes

oftitle3 of theFamilyCode,a “child” is a personwho is “(A) ten yeamof age or olderandw&r 17 yearsof age:or (El) seventeen yearsofage orolderandunder 18yearsof age who is allegedorfoundto haveengagedin delinquent conduct orwndti indicating

a needfor supervision

as a rmdt ofactscommitted

before becoming17yearsofage.” Fam.Gxie 8 51.02(l).

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that a juvenile court entered pursuant to section 54.04 or 54.05 of the Family Code.’ A child who engages in conduct indicating a need for supetvision, as section 5 1.03(b) detines the team, may engage in one of five types of conduct, including truancy, which section 5 1.03(b)(2) defines as “the unexcused vohmtary absence of a child on 10 or more days or parts of days within a six-month period or three or more days or parts of days within a four-week period t?om school without the consent of [the child’ s]parents.”

F%muant to section 54.021 of the Family Code, juvenile courts, which have excltive original jurisdiction of sll title 3 cases, may waive jurisdiction in truancy cases. Section 54.021 of the Family Code provides as follows:

(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to an appropriate justice court for disposition in the manner provided by Subsection (b) of this section if the child is alleged to have engaged in conduct descrii in Section 5 1.03(b)(2) of this code. @) Ajustice court may exercisejurisdiction over a child alleged to have engaged in conduct indicating a need for supervision by engaging in conduct described in Section 5 1.03@)(Z) in a case where the juvenile court has waived its original jurisdiction under this section. (c) On a Sndmg that a child has engaged in conduct described by Section 51.03(b)(2), the justice court shsll enter an order appropriate to the nature of the conduct. (d) On a tindmg by the justice court that the child has engaged in truant conduct and that the conduct is of a recurrent nature, the court may enter an order that includes one or more of the following provisions requiring that: (1) the child attend a preparatory class for the high school equivalency examMion provided under Section 11.35, Education Code, if the court determines that the child is too old to do well in a formal classroom environment;

‘Section 54.04 of the Family Code omamu the coldua of I disposition hearing, which a jwcnilecourt~tobold~~,,,~~~tothcadjudicationhering. Atan adjudicationharing,ajwcnilccourt,gmrallyoittingwithajury,determineswhcthaachildhas engagedin delhqmt omdoct orwndoet indicating a needfor supenision. Fem. C&e 5 54.03(a), (c). In a sense,the disposition

is padel to the sentencing porlionof aimind pmccedings.At a disposition bearing,thccourtfirstmustdetcrminew6ethcrthchildisin~oi~habilitetion,orwhdher dispositionis ncccmly toprotectthepublicorthechild Id.$S4.04@). Ifthcamtsofind~,thccMlrt mayorde-r

the child to be placedon probation or 10 k oxnrnittal tc the Texas Youth Commission. Id. Q 54.04(d). Section54.05provides forhearings

tomodify disposition.

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(2) the child attend a special program that the court determines to be in the best interests of the child including an alcohol and drug abuse program; (3) the child and the child’ s parents, managing conservator, or guardian attend a class for students at risk of dropping out of school designed for both the child and the child’ s parents, managing conservator, or guardian; (4) the child complete ressonable wmmunity service requirements; or (5) the child’ s driver’ s license be suspended in the manner provided by Section 54.042 of this code. The legislature added section 54.021 to the Family Code in 1991. See Acts 1991, 72d Leg., ch. 741, $ 1.

You first ask us to determine whether section 54.021 requires a juvenile court to hold a hearing before the court waives its exclusive original jurisdiction in a truancy case and transfers the case to a justice court. You base your question on a comparison of sections 54.02 and 54.021 of the Family Code. Section 54.02 authorizes a court to waive its exclusive originsJ jurisdiction and transfer a child to the appropriate district or crhnmal district court for criminal proceedings in certain instances. Prior to transferring a case to a district or criminal district court, however, the court must conduct a hearing to consider such a transfer. Fam. Code § 54.02(c). Section 54.02(j), (k). (0 also authorize ajuvenile court to waive its exclusive original jurisdiction and transfer a person over the age of 18 to the appropriate district or criminal district wurt for criminal proceedings if certain conditions are met and following a hearing to consider waiver of jurisdiction. Jn contrast to the explicit instructions section 54.02 provides ajuvenile court for conducting a hearing to consider waiver of jurisdiction, section 54.021 contains no mention of such a hearing. On its face, therefore, section 54.021 does not require ajuvenile court to hold a hearing.4

%e hearing Won 54.02 raptim is eeasislentwith the decisiond theUnited StatesSupreme Court in Kent v. Unifed Slales, 383 U.S. 541 (1966). In Kent.a 16 yearold was armsted in wnnection withchargesofhoosebreaking,robbory,andmpe. Id.atS44. Becaoseofhisage,the16yearoldwas subjectto the exchtsivoorigioal jmisdiction of the Diskt of CMtmbii JuvenileComt, id. at 543; the Juveoile Cmxt, however,without holding a hearing tmnsfermd the case to the United StatesDistrict Coortfor the Districtof Columbia. Id. at 546. The Supreme Court found sewtal “specialrightsand immmities”thataccompany theexclusive

jurisdiction

ofthe juvenilecourt, [Thechild] is, as speciEed by the stab& shieldedfrompublicity. He may be confined,butwith rare exceptionshe maynotbejailed along with adolts. He maybe&tained,butonlyuntilheis2lyearsofagc. Theawtisadmonishedby the statute

to give preference

to retaining

the child in the costodyof his pamtts
“‘~esshiswclfanaadthesafctyendpmtstion~thc~~ccannotk adequatelysafeguarded

without.
. mmoval.” l%e child is pmtectedagainst consequencesof adult conviction soch as the loss of civil rights, the ose of

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Next, you ask us to determine whether a child has a right to an appointed wunsel in a truancy case that is before the justice of the peace. You wntend that a child has no such right. We disagree.

The United States Supreme Court, in In re Guulf, 387 U.S. 1 (1967). concluded that the due process clause of the fourteenth smendment requires ajuvenile court to notify
a child and the child’ s parents that the child has a right to be represented by wunsel in all prowedmgs to determine delinquency which may result in the child’ s wmmitment to an institution in which the juvenile’ s geedom is curtailed. 387 U.S. at 41. Jfthe child or the child’ s parents are unable to afford counsel, the court is to **appoint** an attorney to represent the child. Id. In title3 of the Family Code, the Texas Legislature has gone beyond the requirements of the federal wnstitution. R. DAWSON, TEXAS JWENUE LAW: hl ANALYSIS OF JwMILE STATUTORY AND CASE LAW FOR TExls JUVENILEJusncE OFFICJALS

43 (2d ed. 1988). Significantly, section 51.10(a) extends the wnstitutional requirements by providing a child with a right to representation by wunsel at every stage of all possible proceedings under title 3.J See id.; Dawson, Tide 3. Delinquent Chi&en

(footnote contimled) adjudicationagainst him in subscqucntm, and disqualificationfor plblic employment Id. at 556-57. Became thejuvenile court’s waiver ofjurisdiction meaus @atthe child loses these spell rights and immunities, the SupmmoCourttameluded that the wsiwr of jurisdiction is a krkally important”

actionthatdetermines

vitally important

rightsof ajuvenile. Id. at 556, ocmrd ~44.~ St&, 520 S.W.Zd878, 880 (Tex. Cii. App.-San Antonio 1975, no writ). Accordingly,the child : mtitledtoahtaring,whichmus(JatisfytherequinmcntJotdueproccssandfair mammt **Kent,**383 U.S. at 557.56042.
We foundno legislativehistory indicating

why thelegislature

did not require

ajuverdleanul to hold a hearingpriorto transferring its exclusive

jurisdiction

to ajustice anut in a tnmncypruxeding. Fceibly, the legislature

determined

thatthe tramfor

0fjmisdiUion to the

justicecourtdoe3not implicate thelossofthc”~righuandimmunitisnthattbcSuprrmcCourtf~inK~nr,aadthatabearingis tmnecssary. You have not askedand therefore we havenot mnsidex4l. whethersection 54.021 of the FamilyCodeis amstitutional.

(a) A child may be repmsentedby an attorney at every stage of proaxdhgs uodcr

thistitle,including: &ii ofeightkindsofpmceedings] @) Thcchild’srighttoicpresctntationbyanatt~sballnotkwaivcd in: @A offivekindsofprooxdings]

. . . . (d) The courtshall ordera child’sparent or otherpexsonresponsiile for support ofthechildtoemployan attomey to represent

hechild,il: (1)thechildisootrepresentedbymattorney,

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und Chi&en in Need of Supervision, 21 TEX. TECH L. REV. 1747, 1772 (1990). Because a truancy proceeding is a proceeding under title 3, section 5 1.10 provides a child who is accused of engaging in truant conduct with a right to representation by an attorney.
If the child’ s parents are financially unable to eznploy an attorney, section 5 1.10(f) require4 the court to appoint wunsel. See id You argue that neither section 51.10 nor section 54.021 of the Family Code expressly authorize ajustice of the peace to appoint an attorney for a child who is entitled to counsel under section 51.10(f). However, we understand that generally, injuvenile proceedings, the juvenile court appoints an attorney for a juvenile upon learning that the child is entitled to counsel. lhe appointed attorney then m-presents the child at alI proceedings in the case. Thus, the justice of the peace rarely will need to appoint an attorney. This is wnsistent with the scheme the legislature hss devised for waiving a child’ s right to wunsel: a child may waive the right to wunsel, but only in accordance with section 5 1.09, which requires the child’ s attorney to join in the waiver of an attorney. Fam. Code 8 5 1.10(b); Dawson, supra at 1772. Consequently, an indigent child may not waive the right to representation by an attorney in justice court unless the child already has an attorney, appointed earlier in the pmceedings.6

(footnote continued) support ofthe child is finahaiiy ableto employ an attorney

to repment thCChOd;iUId (3) thechild’s

rightto representation

bysn attoq, (A) hssnotbeenwaivedundexSection51.09ofthisanie[.]

. . . . (C) The anul may enforce older6 under substaion (c) of this scction...hy appointing aunsel and ordering the patent or other pemn respoasibleforQlpport~thcchildtopayarrasonable~sfcc~dby emui. (0 ThecourtshaUappointauattorneytoqmsenttbcintemtofachild ontitled to tqmseatation bya0 attorney, if: (1)thechildisnotrepmsentedbysnattorney; (2)tbemurtdetembmthattkcMd’sparentorotherperson responsiilefor support

ofthechildis tinan&@ unable to employan attomey to repmsellt

thechild;and (3) thechild’s

rightto qmsentation byanattomy: (A) hssnotknwsivedmder Section 51.09oftbiswde[.]
%I theeventthata child who is entitledtosn attorney undetsection51.10(f) has notwaivedthe righttoamselandisbeforethejusti~cmrtwithoutap+ted connscl,webclicvcthattbejustieeofihe peace has impliedauthority

to appoint

an attomey

to represent

hechild. See gemmlly AttomeyGeneral OpinionJM-977(1988).

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Your third question asks whether “tardiness to class” is an unexcused voluntary absence under section 51,03(b)(2) of the Family Code. The Family Code does not define the term “unexcused voluntary absence,” nor did we find any legislative history indicating the specifk mesning of the term. Jn our opinion, however, section 51.03(b)(2) contemplates that a child is not present in the school building for a certsin period of time. On the other hand, “tardiness to class,” as you put it, suggests that the child is present in the school building but, for one reason or another, is late getting to a scheduled class. Generally, therefore, tardiness to class is not an “unexcused voluntary absence” for purposes of section 5 1.03(b)(2) of the Family Code. Of course, circumstances may arise in which a child’ s tardiness is so egregious as to wnstitute an unexcused voluntary absence; we have no facts before us here, however.
Section 4.25 of the Education Code authorizes a school attendance officer, see Educ. Code 3s 21.036,21.037, to tile a lawsuit against the parent or person standing in Iocopurentis who fails to require the child “to attend school for such periods as required by law.” Like section51.03(b)(2) of the Family Code, section 4.25 of the Education Code appears to contemplate that the child is absent from the school building for a specified period of time. Accordingly, tardiness to class generslly is not within the ambit of section 4.25. In general, then, tardiness to class does not invoke proceed@ under either section 5 1.03(b)(2) of the Family Code or section 4.25 of the Education Code.
SUMMARY
Section 54.021 of the Family Code does not require a juvenile wurt to hold a hearing prior to waiving its exclusive original jurisdiction in a case under section 51.03(b)(2) of the Family Code and transfening the case to a justice .of the peace. A child brought into wurt under section 5 1,03(b)(2) of the Family Code is entitled to representation by an attorney at all stages of the proceedings. Jf the child or the child’ s parents are unable to afford wunsel, the court must appoint an attorney to represent the child. In general, tardiness to class does not invoke proceedings under either section 5 1.03@)(Z) of the Family Code or section 4.25 of the Education Code.

DAN MORALES Attorney General of Texss

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WILL. PRYOR Fii Assistant Attorney General

MARYKELLER Deputy Assistant Attorney General
RENEAHICKS special AkssktMt Attorney oetleral

MADELBDE B. JOHNSON Chair, Opiion Committee Prepared by Kytnberly

K.Oltrogge Assistant Attorney General

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