### THE ATTORNEY GENERAL 0F TEXAS

April 19, 1990

Honorable BobMcFarland Chairman Criminal Justice Committee Texas State Senate P. 0. Box 12068 Austin, Texas 78711 Opinion No. JM-1159

Re: Enforcement ofprohibitions against absenteeism in public schools (RQ-1906)

Dear Senator McFarland:

You ask three questions about the interpretation of Senate Bill 1668, passed by the 71st Legislature. Acts 1989, 71st Leg., ch. 658, at 2165. The caption of that bill describes it as "An Act relating to students at risk of dropping out of school and to theparental duty to require school attendance." &

Your first question reads as follows:
[Clana school district, through its Attendance Officer, file a complaint with the County Juvenile Probation Department or with the District Attorney, requesting that a child (whohas beenvoluntarily absent from school forten ormore days orparts of days within a six-month period, or three or more days or parts ofdays within a four-week period, without the consent of the parents) be adjudicated as a 'child in need of supervision' under Section 51.03(b) of the Texas Family Code?

Your question traces the language of a portion of section 4.25(a) of the Education Code thatwas added by the adoption of Senate Bill 1668. Subsection (a)of section 4.25 of the Education Code reads inpart as follows:

Inaddition, ifthe child has been voluntarily absent from school for 10ormore days orparts ofdays within a six-month period or three ormore days orparts ofdays within a four-week period without the consent of his parents, the attendance officer shall refer the child to the county juvenile probation

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department foraction asconduct indicating a need for supervision under Section 51.03(b), Family Code.

As you can see, theprovision does not allow the attendance officer to "filea complaint" against the child, rather it requires him torefer the child to the county juvenile probation department.1 The sameperiod of absence from school without parental consent is identified in subsection **(b)(2)** of section 51.03 of the Family Code as V1conductindicating a need for supervision." Fam. Code §51.03(b)(2).

You next askwhether a state district court has exclusive jurisdiction to adjudicate the complaint or referral described in your first question. Section 51.04 of the Family Code governs jurisdiction over cases involving delinquent conduct or conduct indicating need of supervision. Section 51.04(b) requires the juvenile board, in counties that have one, to designate acourt inthe county as the juvenile court, and section 51.04(c) requires apanel of judges in a county that has no juvenile board to designate one or more courts as juvenile courts. Section 23.001 of the Government Code provides that a district court, county court, or statutory county court exercising any of the constitutional jurisdiction of either a county court or adistrict courtmay be designated asa juvenile court. Thus, there isno state-wide rule covering jurisdiction in cases involving conduct indicating need of supervision.
Finally, you askwhether a justice of the peace court can exercise jurisdiction over the parent of a child exhibiting the absentee behavior described in your first question at the same time the child issubject to adjudication inthe juvenile court. Section 4.25(a) of the Education Code provides for sanctions against the parent of an absentee student inaddition to the referral of the child to the county juvenile probation department. The section first provides forthe attendance officer to warn the parent or

1. Because your questions are phrased in a general manner, we donot qualify ourgeneral answers with regard to compulsory attendance exceptions, such as the age of the child, the child's enrollment in private school, or the child's handicapped status. m Educ. Code §§ 21.032, 21.033.

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person standing in parental relation that attendance is required. The section further provides:

Ifafter this warning the parent or person standing inparental relation intentionally, knowingly, recklessly, or with criminal negligence fails to require the child to attend school as required by law, the parent or person standing in parental relation commits anoffense. The attendance officer shall file a complaint against him in the county court, inthe justice court of his resident precinct, or in the municipal court of the municipality in which he resides
. . . . Educ. Code §4.25(a).

The sanctions found inthis section against the parent ofanhabitual truant have been inTexas law since 1915, see Acts 1915, 34th Leg., ch. 49, at 92,while the referral r the child to the county juvenile probation department was added in 1989. Acts 1989, 71st Leg., ch. 658, §1,at 2165. It isclear that the legislature intended both parent and child tobe subject to sanctions. See Educ. Code 54.25(a) (fineslevied against parent): Fam. Code 951.03 et. sec. (adjudication ofconduct indicating need for supervision). The legislature, insection 4.25 of the Education Code, prefaced the requirement that the attendance officer refer the child to the county juvenile probation department with the term "inaddition." We findnothing in section 4.25 of the Education Code thatwould disallow simultaneous prosecution ofparent and child. Nor dowe find anybar to simultaneous prosecution elsewhere inthe law. See also Educ. Code §21.039(a)(3) (describing thepowers and duties of the attendance officer, including the power to enforce the provisions of the compulsory attendance law).

SUMMARY

The attendance officer of a school districtmay refer achild, who hasbeen voluntarily absent from school for ten or more days or parts of days within a six-month period or three ormore days orparts ofdays within a four-week period without the consent ofhis parents, to the county's juvenile probation department. The attendance officer shall file acomplaint against theparent or person standing inparental relation to such achild inthe county court, inthe justice

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court of his resident precinct, or in the municipal court. Simultaneous prosecution of the parent in justice court and the child in juvenile court isnotprohibited.

Very truly you , 

# J ii

A JIM MATTOX Attorney General of Texas

MARY KELLER FirstAssistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Karen C.Gladney Assistant Attorney General

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