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 a State 

Juvenile Training School 

under the provisions of 

Article 4.25 of the 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) of the 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: 

It appears 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 

B that he can not. We are wondering if a child who has 

violated Section B, Article 4. 25 . . . can still be sent 

to the juvenile traini.ng school or did the juvenile code 

repeal that section of the Education Code? 

Section 4.25(b), Education Code, provides that: 

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The Honorable Ralph W. Kinsey page 2 

If any parent. . . can prove that he is unable 

tq compel his child to attend school . . . his child 

may be proceeded against as a habitual truant and 

committed to a state juvenile training school or 

any other suitable school agreed upon between his 

parent. . . and the judge of the juvenile court. 

, 

Prior to the adoption of Title 3 of the Texas Family Code by 

Acts 1973, 63rd Leg., ch. 544, p. 1460, Section 4.25, supra, was 

complemented by Article 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) of Article 23,38-l then provided: 

If the judge or jury finds that the child is 

delinquent, or otherwise within the provisions 

of this Act, the court may by order duly entered 

proceed as follows: 

(1) place the child on probation . . . 

(2) commit the child to a suitable public institution 

or agency or to a suitable private institution or 

agency authorized to care for children . . . 

With the enactment of Title 3 of the Texas Family Code, effective 

Sept. 1, 1973, Article 2338-l was repealed in its entirety, and Sections 

51.01 through 56.02 of the Family Code have replaced it. Acts 1973, 

63rd Leg., ch. 544, p. 1485, Section 3. 

Title 3 of the Famil,y Code did not expressly repeal Secion 4. 25 

of t:he Educati,on Code. However, major changes i.n the juvenile court!s 

power over truant child.ren under the new Family Code make it doubtful 
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The Honorable Ralph Kinsey page 3 

that the provision of Section 4.25 of the Education Code which authorizes 

the commitment of a habitual truant to a state juvenile training school is 

‘still viable. 

Under Title 3 the violation of the 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, in Section 

54.04, permits the juvenile 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 of the compulsory 

school attendance law. 

Section 54.04 (g): 

In no event may the court commit a child to the 

Texas Youth Council because the child engaged 

in conduct defined in Subdivision (2) [violation 

of the attendance law], (3), or (4) of Section 

51.03 (b) of this 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 of the Education Code authorizes a juvenile 

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 of the later enacted comprehensive revision of juvenile proceedings under Title 3 of the 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 
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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, 182 S. 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 to justify a conclusion of partial 

repeal to the extent of the conflict. 

You have inquired only concerning commitment to a state juvenile 

training school, but Section 4. 25 of the Education Code alternatively 

contemplates commitment to “any other suitable school . . . ” Section 

54.04(d) of the Family Code permits a juvenile c ourt to place a child 

on probation “in a suitable public or private institution or agency, 

except the Texas Youth Council ” for a period not to exceed one year 

after a finding that a violation of the compulsory school law has occurred, 

and after a finding by the court that the child is in need of rehabilitation 

or protection. We think these portions of the two laws are compatible. 

SUMMARY 

Section 54.04(g) of the new Texas Family 

Code prevents a juvenile court from committing 

a child to the jurisdiction of the Texas Youth 

Council for violations of the compulsory school 

attendance law. 

Ary truly yours, 

-JOHN L. HILL 

At:torney General of Texas 
The Honorable Ralph Kinsey page 5 

DAVID M KENDALL, Chairman 

Opinion Committee 

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