July 15, 1974 The Honorable Ralph W. Kinsey County Attorney Dawson County P. 0. Box 459 Lamesa, Texas 79331 Opinion No. H- 347 Re: Can a habitual truant be committed to aState Juvenile Training School under the provisions of Article 4.25 ofthe Education Code? Dear Mr. Kinsey: You have pointed out a conflict between Section 4.25(b), Texas Education Code, V. T. C.S., and Section 54.04(g) ofthe new Texas Family Code, which concern proceedings against children who have violated the compulsory school attendance laws of this state [Sections 21.031 through 21.040, Texas Education Code, V. T. C.S. 1. Your letter states:

Itappears that under Article 4. 25 of the Education Code Secti.on B a child can be committed to the state juvenile training school for certain truancy cases and it appears that in the cited provision of 51.03, Subsection Bthat he can not. We are wondering ifa child who has violated Section B, Article 4. 25 . . . can still be sent to thejuvenile traini.ng school or did thejuvenile code repeal that section ofthe Education Code? Section 4.25(b), Education Code, provides that:

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Ifany parent. . . can prove that he is unable tq compel his child toattend school
. . . his child may be proceeded against as ahabitual truant and committed to a state juvenile training school or any other suitable school agreed upon between his parent. . . and thejudge ofthejuvenile court.
, Prior to the adoption of Title 3ofthe Texas Family Code by Acts 1973, 63rd Leg., ch. 544, p. 1460, Section 4.25, supra, was complemented byArticle 2338-1, V. T. C.S., which established juvenile courts, and determined their jurisdiction and powers. Article 2338-1, Section 3(e) defined “delinquent child” to include any child who “habitually violates a compulsory school attendance law of this state . . . ” Section 13 (c) ofArticle 23,38-l then provided:

Ifthejudge orjury finds that the child is delinquent, or otherwise within the provisions ofthis Act, the court may by order duly entered proceed as follows: (1)place the child onprobation
. . . (2) commit the child toa suitable public institution or agency or toa suitable private institution or agency authorized to care for children
. . . With the enactment of Title 3of the Texas Family Code, effective Sept. 1, 1973, Article 2338-l was repealed in its entirety, and Sections 51.01 through 56.02 ofthe Family Code have replaced it. Acts 1973, 63rd Leg., ch. 544, p. 1485, Section 3. Title 3ofthe Famil,y Code did not expressly repeal Secion 4. 25 oft:heEducati,on Code. However, major changes i.nthejuvenile court!s power over truant child.ren under the new Family Code make it doubtful. - The Honorable Ralph Kinsey page 3

that the provision of Section 4.25 of the Education Code which authorizes the commitment ofahabitual truant toa state juvenile training school is
‘still viable.

Under Title 3the violation ofthe compulsory school attendance law is not “delinquent” conduct, as it formerly was under Article 2338-1, V. T. C.S., but now constitutes “conduct indicating a need for supervision. ” See Section 51.03 (b)(2), Texas Family Code, V.T. C.S. The distinction is important because the new Family Code, inSection 54.04, permits thejuvenile court to commit a child to the Texas Youth Council for delinquent conduct, but expressly denies the court the power to commit a child to the Texas Youth Council for violations ofthe compulsory school attendance law.

Section 54.04 (g): Inno event may the court commit a child to the Texas Youth Council because the child engaged in conduct defined inSubdivision (2) [violation ofthe attendance law], (3), or (4) ofSection 51.03 (b)ofthis code. The Texas Youth Council manages and directs State training school facilities for delinquent children, Article 5143d, Section 6 (d), V. T. C.S. Insofar as Secti.on 4. 25 ofthe Education Code authorizes ajuvenile court to commit a child to the Texas Youth Council for truancy, it conflicts irreconcilably with, and is to that extent impliedly repealed by, the express prohibitions ofthe later enacted comprehensive revision ofjuvenile proceedings under Title 3ofthe Family Code. The prohibi.tion against commitment of such a child to the Texas Youth Council is expressed again in Sections 51.03 (a)(2), 54.05(g). Repeals by implication are not favored by our courts. St.. Louis

p* 1.617. - The Honorable Ralph Kinsey page 4

. S.W. Railway Co; v. Kay, 22 S.W. 665 (Tex. 1893); Jefferson County v.

Board of County and District Road Indebtedness, 182S.W. 2d 908 (Tex. 1944). However, the pronounced antagonism between the provision of Section 4.25, contemplating commitment to a state juvenile training school and Section 54.03(q) of the,Family Code, is enough under even the stringent tests applied by these cases tojustify a conclusion ofpartial repeal to the extent ofthe conflict. You have inquired only concerning commitment toa state juvenile training school, but Section 4. 25 ofthe Education Code alternatively contemplates commitment to “any other suitable school
. . . ” Section 54.04(d) ofthe Family Code permits ajuvenile court to place a child onprobation “in a suitable public or private institution or agency, except the Texas Youth Council ” for a period not to exceed one year after afinding that aviolation ofthe compulsory school law has occurred, and after afinding by the court that the child is in need of rehabilitation or protection. We think these portions ofthe two laws are compatible. SUMMARY Section 54.04(g) ofthe new Texas Family Code prevents ajuvenile court from committing a child to thejurisdiction ofthe Texas Youth Council for violations of the compulsory school attendance law. Ary truly yours,

-JOHN L. HILL At:torney General ofTexasThe Honorable Ralph Kinsey page 5

DAVID M KENDALL, Chairman Opinion Committee

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