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 a juvenile court is required to 

hold a hearing prior to waiving its exclusive 

original jurisdiction in a truancy case and 

transferring the case to a justice 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 a juvenile 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 in jail; or (2) violates, with certain exceptions, a reasonable and lawful order 

%or purposes of title 3 of the Family Code, a “child” is a person who is “(A) ten yeam of age or 

older and w&r 17 years of age: or (El) seventeen years of age or older and under 18 years of age who is 

alleged or found to have engaged in delinquent conduct or wndti indicating a need for supervision as a 

rmdt of acts committed before becoming 17 years of age.” Fam. Gxie 8 51.02(l). 

p. 1057 
Honorable JohnB. Holmes, Jr. - Page 2 (DM-200) 

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. 

@) A justice court may exercise jurisdiction 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 

engaged in delhqmt omdoct or wndoet indicating a need for supenision. Fem. C&e 5 54.03(a), (c). 

In a sense, the disposition is padel to the sentencing porlion of aimind pmccedings. At a disposition 

bearing,thccourtfirstmustdetcrminew6ethcrthchildisin~oi~habilitetion,orwhdher 

disposition is ncccmly toprotectthepublicorthechild Id.$S4.04@). Ifthcamtsofind~,thccMlrt 

may orde-r the child to be placed on probation or 10 k oxnrnittal tc the Texas Youth Commission. Id. 

Q 54.04(d). Section 54.05 provides for hearings to modify disposition. 

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Honorable John B. Holmes, Jr. - Page 3 (~2-200) 

(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 a juvenile 

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 a juvenile 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 a juvenile court to hold a hearing.4 

%e hearing Won 54.02 raptim is eeasislent with the decision d the United States Supreme 

Court in Kent v. Unifed Slales, 383 U.S. 541 (1966). In Kent. a 16 year old was armsted in wnnection 

withchargesofhoosebreaking,robbory,andmpe. Id.atS44. Becaoseofhisage,the16yearoldwas 

subject to the exchtsivo origioal jmisdiction of the Diskt of CMtmbii Juvenile Comt, id. at 543; the 

Juveoile Cmxt, however, without holding a hearing tmnsfermd the case to the United States District 

Coort for the District of Columbia. Id. at 546. The Supreme Court found sewtal “special rights and 

immmities” that accompany the exclusive jurisdiction of the juvenile court, 

[The child] is, as speciEed by the stab& shielded from publicity. He may 

be confined, but with rare exceptions he may not be jailed along with adolts. He 

maybe&tained,butonlyuntilheis2lyearsofagc. Theawtisadmonishedby 

the statute to give preference to retaining the child in the costody of his pamtts 

“‘~esshiswclfanaadthesafctyendpmtstion~thc~~ccannotk 

adequately safeguarded without. . mmoval.” l%e child is pmtected against 

consequences of adult conviction soch as the loss of civil rights, the ose of 

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Honorable John B. Holmes, Jr. - Page 4 (DM-200) 

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 a juvenile 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 title 3 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 JUVENILE JusncE 

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) 

adjudication against him in subscqucnt m, and disqualification for 

plblic employment 

Id. at 556-57. Became the juvenile court’s waiver ofjurisdiction meaus @at the child loses these spell 

rights and immunities, the Supmmo Court tameluded that the wsiwr of jurisdiction is a krkally 

important” action that determines vitally important rights of a juvenile. Id. at 556, ocmrd ~44.~ 

St&, 520 S.W.Zd 878, 880 (Tex. Cii. App.-San Antonio 1975, no writ). Accordingly, the child : 

mtitledtoahtaring,whichmus(JatisfytherequinmcntJotdueproccssandfair mammt Kent, 383 

U.S. at 557.56042. 

We found no legislative history indicating why the legislature did not require a juverdle anul to 

hold a hearing prior to transferring its exclusive jurisdiction to a justice anut in a tnmncy pruxeding. 

Fceibly, the legislature determined that the tramfor 0fjmisdiUion to the justice court doe3 not implicate 

thelossofthc”~righuandimmunitisnthattbcSuprrmcCourtf~inK~nr,aadthatabearingis 

tmnecssary. You have not asked and therefore we have not mnsidex4l. whether section 54.021 of the 

Family Code is amstitutional. 

(a) A child may be repmsented by an attorney at every stage of 

proaxdhgs uodcr this title, including: 

&ii of eight kinds of pmceedings] 

@) Thcchild’srighttoicpresctntationbyanatt~sballnotkwaivcd 

in: 

@A of five kinds ofprooxdings] 

. . . . 

(d) The court shall order a child’s parent or other pexson responsiile for 

support of the child to employ an attomey to representhe child, il: 

(1)thechildisootrepresentedbymattorney, 

p. 1060 
Honorable JohnB. Holmes, Jr. - Page 5 (~~-200) 

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 a justice 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, in juvenile 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 able to employ an attorney to repment 

thCChOd;iUId 

(3) the child’s right to representation by sn 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 by a0 attorney, if: 

(1)thechildisnotrepmsentedbysnattorney; 

(2)tbemurtdetembmthattkcMd’sparentorotherperson 

responsiile for support of the child is tinan&@ unable to employ an 

attomey to repmsellt the child; and 

(3) the child’s right to qmsentation by an attomy: 

(A) hssnotknwsivedmder Section 51.09oftbiswde[.] 

%I the event that a child who is entitled to sn attorney undet section 51.10(f) has not waived the 

righttoamselandisbeforethejusti~cmrtwithoutap+ted connscl,webclicvcthattbejustieeofihe 

peace has implied authority to appoint an attomey to representhe child. See gemmlly Attomey General 

OpinionJM-977(1988). 

p. 1061 
Honorable John B. Holmes, Jr. - Page 6 (DM-200) 

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 section 51.03(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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Honorable JohnB. Holmes, Jr. - Page 7 (DM-200) 

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 

p. 1063