Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

July 11,200l

The Honorable Royce West Opinion No. JC-0398
Chair, Jurisprudence Committee
Texas State Senate Re: Whether section 25.092 of the Education
P.O. Box 12068 Code, which relates to minimum attendance for
Austin, Texas 787 1 l-2068 class credit, is applicable to a student who is
exempt from compulsory attendance under section
25.086 (RQ-0360-JC)

Dear Senator West:

You have requested our opinion regarding the relationship between section 25.086 of the
Education Code, which relates to excused absences from compulsory school attendance for medical
reasons, and section 25.092, which provides that a student may not be given credit for a class unless
he is in attendance for at least ninety percent of the days the class is offered. See TEX. EDUC. CODE
ANN. $5 25.086, .092 (Vernon Supp. 2001). You ask how excused absences for medical reasons
under section 25.086 are to be counted in computing the ninety percent attendance-for-class-credit
requirement under section 25.092. For the reasons set forth below, we conclude that a student, in
order to receive credit under section 25.092, is required actually to attend class for the requisite
period regardless of whether his absences are excused or unexcused.

Subsection 25.085(a) of the Education Code states that “[a] child who is required to attend
school under this section shall attend school each school day for the entire period the program of
instruction is provided.” Id. 5 25.085(a). Subsection (b) declares that, “[ulnless specifically
exempted by Section 25.086, a child who is at least six years of age, or who is younger than six years
of age and has previously been enrolled in first grade, and who has not yet reached the child’s 18th
birthday shall attend school.” Id. 5 25.085(b). Section 25.086 exempts a child “from the
requirements of compulsory school attendance,” whenever the child:

has a physical or mental condition of a temporary and remediable
nature that makes the child’s attendance infeasible and holds a
certificate from a qualified physician specifying the temporary
condition, indicating the treatment prescribed to remedy the
temporary condition, and covering the anticipated period of the
child’s absence from school for the purpose of receiving and
recuperating fi-om that remedial treatment;

Id. 5 25.086(a)(3). Section 25.087 deals with excused absences. A person who is “required to attend
school,” and thus not exempt from attendance under section 25.086, “may be excused for temporary
absence resulting from any cause acceptable to the teacher, principal, or superintendent of the school
The Honorable Royce West - Page 2 (JC-0398)

in which the person is enrolled.” Id. 5 25.087(a). Subsection (b) requires a school district to excuse
a student from attending school “for the purpose of observing religious holy days, including
traveling for that purpose.” Id. 8 25.087(b). It also directs a district to:

excuse a student for temporary absence resulting from health care
professionals if that student commences classes or returns to school
on the same day of the appointment. A student whose absence is
excused under this subsection may not be penalized for that absence
and shall be counted as if the student attended school for purposes of
calculating the average daily attendance of students in the school
district. A student whose absence is excused under this subsection
shall be allowed a reasonable time to make up school work missed on
those days. If the student satisfactorily completes the school work,
the day of absence shall be counted as a day of compulsory
attendance.

Id.

These statutes set forth the compulsory school attendance requirements, note exemptions
from those requirements in specific instances, and provide for two kinds of excused absences-
permissive and mandatory. The statutes describe the minimum standards with which a person must
comply if he is to avoid committing an offense under section 25.094 for “failure to attend school,”
a class C misdemeanor, and with which parents must comply to avoid violating section 25.093,
which makes it an offense for a parent to thwart the compulsory attendance law, also a class C
misdemeanor. See id. $9 25.093, .094.

Subsection 25.092(a), on the other hand, has an entirely different purpose from that of section
25.086. It provides that, “[elxcept as provided by this section, a student may not be given credit for
a class unless the student is in attendance for at least 90 percent of the days the class is offered.” Id.
8 25.092(a). This statute furnishes a clear contrast with the compulsory attendance laws. Unlike
those statutes, it does not contain exemptions or make allowance for excused absences. Rather, it
states unequivocally that, as a prerequisite for receiving class credit, a student must attend class “for
at least 90 percent of the days the class is offered.” See id. On the other hand, section 25.092 makes
allowance for extenuating circumstances:

(b) The board of trustees of each school district shall appoint
one or more attendance committees to hear petitions for class credit
by students who are in attendance fewer than the number of days
required under Subsection (a). Classroom teachers shall comprise a
majority of the membership of the committee. A committee may give
class credit to a student because of extenuating circumstances. Each
board of trustees shall establish guidelines to determine what
constitutes extenuating circumstances and shall adopt policies
establishing alternative ways for students to make up work or regain
The Honorable Royce West - Page 3 (JC-0398)

credit lost because of absences. The alternative ways must include at
least one option that does not require a student to pay a fee authorized
under Section ll.l58(a)( 15).

Id. 9 25.092(b). Furthermore, subsection (d) declares:

(d) If a student is denied credit for a class by an attendance
committee, the student may appeal the decision to the board of
trustees. The decision of the board may be appealed by trial de novo
to the district court of the county in which the school district’s central
administrative office is located.

Id. 8 25.092(d).

The substance of the section 25.092 requirement has been apart of the Education Code since
1984. In its first incarnation as House Bill 72, it provided that “[a] student may not be given credit
for a class if the student has more than five days of unexcused absence during a semester.” Act of
June 30, 1984,68th Leg., 2d C.S., ch. 28, § IV-El, Part D, sec. 1, 1984 Tex. Gen. Laws 117, 167
(amending chapter 2 1, Education Code). In 1989, the legislature amended the statute in Senate Bill
1112 to exclude any reference to “unexcused absence.” The provision adopted that year states:
“Except as provided by this section, a . . . student may not be given credit for a class unless the
student is in attendancefor at least 80 days . . . during a semester.” Act of May 22, 1989,71 st Leg.,
R.S., ch. 353, 5 1, 1989 Tex. Gen. Laws 1430 (emphasis added). The bill analysis to Senate Bill
1112, which enacted this version, declares in relevant part:

H.B. 72 established strict guidelines for student attendance,
disallowing credit for a class if the student has more than five days of
unexcused absences in a semester. The Joint Interim Committee on
High School Dropouts, the Senate Select Committee on the Juvenile
Justice System, and the State Board of Education have found this
requirement to be punitive, and should be modified to encourage
students to remain in school.

Many districts have reported an increased number of excused
absences since H.B. 72. While the absences do not count against the
student for the purposes of eligibility, the student is still out of the
classroom, misses the instruction and must make up any assignments
missed. The effects are the same on the student regardless of the type
of absence, yet only those with unexcused absences are subject to the
five day limit.

Unexcused absences over the five day limit may also have the
effect of causing at risk students to become actual dropouts. Students
that have the academic potential for success and are satisfactorily
The Honorable Royce West - Page 4 (JC-0398)

passing classes may not receive credit for the courses if they have
more than five unexcused absences. With no incentive to stay in
school, they become prime candidates to be dropouts.

This legislation would require that a student attend class for
80 days in a semester in order to receive credit, and makes no
distinction between excused and unexcused absences. Since the
calendars for schools call for between 86 and 89 school days, this
would allow a student to miss between six and nine total days and
still receive credit. Additionally, districts would be required to set up
attendance committees that could grant credit to a student who
attends school less than 80 days due to extenuating circumstances.
The districts would decide how extenuating circumstances are
defined. This wouIdprovide for a system that would teach students
to be responsible for their absences regardless of the reason.

HOUSECOMM. ON PUBLICEDUCATION,BILL ANALYSIS,Tex. S.B. 1112, 71st Leg., R.S. (1989)
(emphasis added). The eighty-day requirement was amended in 1993 to reflect the present version
of the statute, which now states that “a student may not be given credit for a class unless the student
is in attendance for at least 90percent of the m days the class is offered.” Act of May 28, 1993,
73d Leg., R.S., ch. 347,§ 8.27, sec. 21.041,1993 Tex. Gen. Laws 1479,1552 (emphasis in original).

Legislative history thus makes clear that at one time excused absences had to be factored in
when computing the minimum attendance for class credit. Since 1989, however, the legislature has
specifically removed excused absences from consideration in making this determination. On the
other hand, any possible hardship resulting from this change has been mitigated by the “extenuating
circumstances” provision of section 25.092. See TEX. EDUC.CODEANN. 5 25.092(b) (Vernon Supp.
2001).

Finally, the Texas Education Agency is in accord with this construction of section 25.092.
A letter from the Agency’s General Counsel, David A. Anderson, dated March 8,2001, states:

It is the position of the Agency that the 90 percent attendance
requirement in 5 25.092 applies regardless of whether the student is
exempt from compulsory attendance under 4 25.086 for the period of
the absence or whether the absence is otherwise excused by the
school district. Therefore, the attendance committee procedure and
the district policies under 9 25.092 apply to class credit for any
student whose attendance since enrollment is less than 90 percent
minimum requirement. Although the section applies regardless of the
purpose of the absence, a district is not prevented from considering
the reasons for absence in establishing and applying local policies
The Honorable Royce West - Page 5 (JC-0398)

regarding extenuating circumstances and alternative methods of
regaining credit. ’

It is well established that the “construction of a statute by an agency charged with its execution is
entitled to serious consideration so long as the construction is reasonable and does not contradict the
plain language of the statute.” Simplex Elec. Corp. v. Holcomb, 949 S.W.2d 446, 447 (Tex.
App.-Austin 1997, pet. denied). Thus, both legislative history and administrative construction point
irrevocably to the conclusion that the requirement of section 25.092 - that a student must attend
class for ninety percent of the days on which the class is offered in order to receive credit for the
class - is applicable without regard to whether the student is exempt from compulsory attendance
under section 25.086.

‘Letter from David A. Anderson, General Counsel, Texas Education Agency, to Merri Schneider-Vogel,
Bracewell & Patterson, L.L.P. (Mar. 8,200l) (on file with Opinion Committee).
The Honorable Royce West - Page 6 (JC-0398)

SUMMARY

The requirement of section 25.092 of the Education Code -
that a student must attend class for ninety percent of the days on
which the class is offered in order to receive credit for the class - is
applicable without regard to whether the student is exempt from
compulsory attendance under section 25.086.

Section 25.092 does, however, make allowance for
extenuating circumstances. Students who are in attendance fewer
than the number of days required may petition for class credit before
an attendance committee appointed by the board of trustees of a
school district. See TEX. EDUC. CODE ANN. 8 25.092(b) (Vernon
Supp. 2001). A student may appeal an adverse ruling of the atten-
dance committee to the board of trustees and ultimately to a district
court. See id. 5 25.092(d).

Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee