THE ATTORNEY GENERAL
0F TEXAS
April 19, 1990
Honorable Bob McFarland Opinion No. JM-1159
Chairman
Criminal Justice Committee Re: Enforcement of prohibi-
Texas State Senate tions against absenteeism in
P. 0. Box 12068 public schools (RQ-1906)
Austin, Texas 78711
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 Atten-
dance 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 volun-
tarily 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 exclu-
sive 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 super-
vision. 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 juris-
diction 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 adjudica-
tion in the juvenile court. Section 4.25(a) of the Educa-
tion 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 prosecu-
tion of parent and child. Nor do we find any bar to simul-
taneous 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 dis-
trict may refer a child, who has been volun-
tarily 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.
J ii
Very truly you ,
A
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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