Can an 18-year-old be charged with truancy for skipping school in Texas?

Plain-English summary

Texas has long made school attendance compulsory for children roughly between ages six and eighteen, and it lets a school district adopt a policy requiring a student who voluntarily stays enrolled after turning eighteen to keep attending until age 21. A county district attorney spotted a problem and asked the Attorney General about it: if a district has such a policy, can a student who is eighteen or older but under twenty-one actually be prosecuted for failing to attend school?

The tension was between two sections of the Education Code. Section 25.085(f) says a district may require an over-eighteen student to keep attending, and that section 25.094 (the criminal offense for failing to attend) "applies" to a student covered by that policy. But in 2011 the Legislature passed Senate Bill 1489, which rewrote the offense in section 25.094(a). After the amendment, one of the required elements of the offense is that the person be at least twelve years old and younger than eighteen. On its face, then, section 25.094 cannot reach anyone who is eighteen or older, which directly contradicts section 25.085(f)'s statement that the offense applies to certain over-eighteen students.

The opinion resolved the conflict with a standard rule of statutory construction. Courts try to harmonize statutes, and they presume the Legislature legislates with knowledge of existing law. But when two statutes irreconcilably conflict, meaning only one can apply to a given situation, the one enacted or amended most recently prevails. Here the two provisions could not both apply, and section 25.094(a) was the most recently amended, so it controls over section 25.085(f). Because being younger than eighteen is now a necessary element of the offense, and every element must be proven to convict, the opinion concluded that a person eighteen or older simply cannot commit the section 25.094 offense. It noted that this reading is reinforced by the rule that criminal statutes outside the Penal Code are construed strictly, with doubts resolved in favor of the accused.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting district attorney and prosecutors (as the opinion described it): The opinion concluded that the failure-to-attend-school offense in section 25.094 could not be charged against a defendant who was eighteen or older, because the 2011 amendment made being under eighteen an element of the offense.

School districts (as the opinion described it): The opinion did not disturb a district's ability to adopt an over-eighteen attendance policy under section 25.085, but it held that the criminal enforcement mechanism in section 25.094 no longer reached students eighteen or older.

Students and parents (as the opinion described it): The opinion's reading meant a student who was eighteen or older could not be criminally prosecuted under section 25.094 for failing to attend, even within a district that required attendance past eighteen.

Common questions

Can a student 18 or older be charged with failure to attend school in Texas?
According to the opinion, no. After the 2011 amendment, the offense in section 25.094 requires that the person be younger than eighteen, so a person eighteen or older cannot commit it.

What about a district policy requiring attendance until 21?
The opinion recognized that section 25.085(f) lets a district require attendance past eighteen, but held that the conflicting, more recently amended criminal statute (section 25.094) prevails, so the criminal offense does not apply to those eighteen or older.

Why does the newer statute win?
The opinion applied the rule in Government Code section 311.025(a): when two statutes irreconcilably conflict, the one latest in date of enactment prevails. Section 25.094(a) was amended in 2011, after section 25.085(f).

Does this mean over-eighteen students face no attendance consequences at all?
The opinion addressed only the criminal offense in section 25.094. It noted separately that a district may revoke enrollment for the rest of the year if a student who enrolled after turning eighteen has five or more unexcused absences.

Background and statutory framework

Section 25.085 of the Education Code sets compulsory attendance for children at least six and under eighteen (Tex. Educ. Code Ann. § 25.085(b)), extends the duty to a person who voluntarily enrolls after turning eighteen (§ 25.085(e)), and lets a district adopt a policy requiring such a person under 21 to attend, stating that section 25.094 applies to them (§ 25.085(f)). Section 25.094 makes failure to attend a Class C misdemeanor and, after the 2011 amendment, requires that the offender be at least twelve and younger than eighteen (§ 25.094(a), (e)).

To resolve the conflict, the opinion relied on the presumption that the Legislature legislates with knowledge of existing law (Acker v. Tex. Water Comm'n), the duty to harmonize statutes where possible (La Sara Grain Co. v. First Nat'l Bank), and the rule that the later-enacted statute prevails when two irreconcilably conflict (Tex. Gov't Code Ann. § 311.025(a); Lomax v. State). It cited Calton v. State for the requirement that every element of an offense be proven, and State v. Johnson for strict construction of criminal statutes outside the Penal Code.

Citations

Cases:

• Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990)
• La Sara Grain Co. v. First Nat'l Bank, 673 S.W.2d 558, 565 (Tex. 1984)
• Lomax v. State, 233 S.W.3d 302, 312 (Tex. Crim. App. 2007)
• Calton v. State, 176 S.W.3d 231, 234 (Tex. Crim. App. 2005)
• State v. Johnson, 219 S.W.3d 386, 388 (Tex. Crim. App. 2007)

Statutes:

• Tex. Educ. Code Ann. § 25.085(b) (West Supp. 2011)
• Tex. Educ. Code Ann. § 25.085(e) (West Supp. 2011)
• Tex. Educ. Code Ann. § 25.085(f)
• Tex. Educ. Code Ann. § 25.094(a), (e)
• Tex. Gov't Code Ann. § 311.025(a) (West 2005)

Legislation referenced:

• Senate Bill 1489 (Act of May 28, 2011, 82d Leg., R.S., ch. 1098, § 1, 2011 Tex. Gen. Laws 2837)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0946
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0946.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

June 4, 2012

The Honorable Jeri Yenne Opinion No. GA-0946
Brazoria County Criminal District Attorney
111 East Locust, Suite 408A Re: Whether a public school student who is at least
Angleton, Texas 77515 eighteen years of age or older and younger than
twenty-one, and who is enrolled in a district that has
adopted a compulsory attendance policy under
section 25.085 of the Education Code, is subject to
prosecution under section 25.094 of the Education
Code for a failure to attend school (RQ-1022-GA)

Dear Ms. Yenne:

You ask whether a public school student who is at least eighteen years of age and younger than twenty-one, and who is enrolled in a school district that has adopted a compulsory attendance policy under section 25.085 of the Education Code, is subject to prosecution under section 25.094 of the Education Code for a failure to attend school.[1]

Section 25.085 of the Education Code generally provides for compulsory school attendance by children at least age six but less than eighteen years of age. TEX. EDUC. CODE ANN. § 25.085(b) (West Supp. 2011). Under subsection (e), a person who voluntarily registers or attends school after turning eighteen is also required to attend school for the duration of the period of instruction. Id. § 25.085(e).[2] Further, subsection (f) provides:

The board of trustees of a school district may adopt a policy requiring a person described by Subsection (e) who is under 21 years of age to attend school until the end of the school year. Section 25.094 applies to a person subject to a policy adopted under this subsection ....

Id. § 25.085(f) (emphasis added).

Section 25.094 makes the failure to attend school under prescribed circumstances a Class C misdemeanor. Id. § 25.094(a), (e). Subsection (a) defines the offense as follows:

(a) An individual commits an offense if the individual:

(1) is 12 years of age or older and younger than 18 years of age;

(2) is required to attend school under Section 25.085; and

(3) fails to attend school on 10 or more days or parts of days within a six-month period in the same school year or on three or more days or parts of days within a four-week period.

Id. § 25.094(a) (emphasis added). Thus, under subsection (a)(1), a necessary element to the commission of the offense in section 25.094 is that the person be twelve years of age or older and younger than eighteen. Id.

The language in subsection (a)(1) was added by the Legislature in 2011 with the passage of Senate Bill 1489. Act of May 28, 2011, 82d Leg., R.S., ch. 1098, § 1, 2011 Tex. Gen. Laws 2837, 2837. You note the apparent conflict between section 25.085(f), which provides that section 25.094 "applies" to certain individuals who are eighteen years of age or older, and section 25.094(a) which provides that an element of the offense is that the offender is younger than eighteen. Request Letter at 2.

Courts presume that the Legislature enacts a statute "with complete knowledge of the existing law and with reference to it." Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990). Further, "courts are to construe statutes so as to harmonize with other relevant laws, if possible." See La Sara Grain Co. v. First Nat'l Bank, 673 S.W.2d 558, 565 (Tex. 1984). However, "if statutes enacted at the same or different sessions of the legislature are irreconcilable," a court may apply the rule of construction that "the statute latest in date of enactment prevails." TEX. GOV'T CODE ANN. § 311.025(a) (West 2005). "Two statutes irreconcilably conflict when only one of them can apply to a particular situation." Lomax v. State, 233 S.W.3d 302, 312 (Tex. Crim. App. 2007).

The 2011 amendment to section 25.094(a) adds a necessary element of the offense, which under the amendment can now only be committed by a person twelve years of age or older and younger than eighteen. Id. § 25.094(a). Under the amendment, the statutes unavoidably conflict: section 25.085(f) states that section 25.094 applies to a person eighteen years of age or older and less than twenty-one, but section 25.094 by its plain terms cannot apply to a person eighteen years of age or older. Id. §§ 25.085(f), .094(a). The statutes are irreconcilable, but because section 25.094(a) is the most recently amended, it prevails over section 25.085(f). Id.; TEX. GOV'T CODE ANN. § 311.025(a) (West 2005).

In sum, under the amendment enacted by the Legislature, it is a necessary element of the criminal offense that the offender is twelve or older and younger than eighteen. See Calton v. State, 176 S.W.3d 231, 234 (Tex. Crim. App. 2005) (stating that "[t]o sustain a conviction, all the elements of the offense must be proved at guilt"). Consequently, applying the new language added by the Legislature in 2011, we conclude that a person eighteen years of age or older cannot commit an offense under section 25.094 of the Education Code.[3]

SUMMARY

Senate Bill 1489 amended section 25.094 of the Education Code by adding a necessary element to the offense described by that section. Under that amendment, a person eighteen years of age or older cannot commit an offense under section 25.094.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Jeri Yenne, Brazoria Cnty. Criminal Dist. Att'y, to the Honorable Greg Abbott, Tex. Att'y Gen. at 2 (Nov. 21, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] If a person attending school after turning eighteen has five or more unexcused absences, a school district may revoke the person's enrollment for the remainder of the school year. TEX. EDUC. CODE ANN. § 25.085(e) (West Supp. 2011).

[3] Our conclusion is further supported by the longstanding judicial rule "that criminal statutes outside the penal code must be construed strictly, with any doubt resolved in favor of the accused." State v. Johnson, 219 S.W.3d 386, 388 (Tex. Crim. App. 2007).