THE ATTORNEY GENERAL 

0F TEXAS 

April 19, 1990 

Honorable Bob McFarland 

Chairman 

Criminal Justice Committee 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. JM-1159 

Re: Enforcement of prohibitions 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 the parental duty to require 

school attendance." & 

Your first question reads as follows: 

[Clan a school district, through its Attendance Officer, file a complaint with the 

County Juvenile Probation Department or with 

the District Attorney, requesting that a 

child (who has been voluntarily absent from 

school for ten 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, 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 that was added by the 

adoption of Senate Bill 1668. Subsection (a) of section 

4.25 of the Education Code reads in part as follows: 

In addition, if the child has been voluntarily absent from school for 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 without the consent of his 

parents, the attendance officer shall refer 

the child to the county juvenile probation 

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Honorable Bob McFarland - Page 2 (JM-1159) 

department for action as conduct indicating a 

need for supervision under Section 51.03(b), 

Family Code. 

As you can see, the provision does not allow the 

attendance officer to "file a complaint" against the child, 

rather it requires him to refer the child to the county 

juvenile probation department.1 The same period of absence 

from school without parental consent is identified in 

subsection (b)(2) of section 51.03 of the Family Code as 

V1conduct indicating a need for supervision." Fam. Code 

§ 51.03(b)(2). 

You next ask whether 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 a court in the county 

as the juvenile court, and section 51.04(c) requires a panel 

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 a district court may be designated as a juvenile 

court. Thus, there is no state-wide rule covering jurisdiction in cases involving conduct indicating need of 

supervision. 

Finally, you ask whether 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 is subject to adjudication in the juvenile court. Section 4.25(a) of the Education Code provides for sanctions against the parent of an 

absentee student in addition to the referral of the child to 

the county juvenile probation department. The section first 

provides for the attendance officer to warn the parent or 

1. Because your questions are phrased in a general 

manner, we do not qualify our general 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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Honorable Bob McFarland - Rage 3 (JM-1159) 

person standing in parental relation that attendance is 

required. The section further provides: 

If after this warning the parent or person 

standing in parental 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 an offense. The attendance officer 

shall file a complaint against him in the 

county court, in the 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 in this section against the parent 

of an habitual truant have been in Texas 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 is clear that the legislature intended both parent and 

child to be subject to sanctions. See Educ. Code 5 4.25(a) 

(fines levied against parent): Fam. Code 9 51.03 et. sec. 

(adjudication of conduct indicating need for supervision). 

The legislature, in section 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 "in addition." We find nothing in section 4.25 of 

the Education Code that would disallow simultaneous prosecution of parent and child. Nor do we find any bar to simultaneous prosecution elsewhere in the law. See also Educ. 

Code § 21.039(a)(3) (describing the powers 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 district may refer a child, who has been voluntarily absent from school for ten 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 without the consent 

of his parents, to the county's juvenile 

probation department. The attendance officer 

shall file a complaint against the parent or 

person standing in parental relation to such 

a child in the county court, in the justice 

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Honorable Bob McFarland - Page 4 (JM-1159) 

court of his resident precinct, or in the 

municipal court. Simultaneous prosecution of 

the parent in justice court and the child in 

juvenile court is not prohibited. 

Very truly you , J A ii 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant 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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