If a school reports a truant child to juvenile probation, can the parent still be separately charged for the child's absences?

Texas AG Opinion JM-1159: Truancy Referrals and Parent Prosecution Under Senate Bill 1668

Plain-English summary

State Senator Bob McFarland, chairman of the Senate Criminal Justice Committee, asked three questions about how a new 1989 law, Senate Bill 1668, aimed at students at risk of dropping out, was supposed to work alongside the state's existing truancy and juvenile-justice statutes.

First, he asked whether a school attendance officer could "file a complaint" against a child who had been voluntarily absent for ten or more days in six months (or three or more days in four weeks) without parental consent, to have the child adjudicated a "child in need of supervision." The Attorney General answered that the statute does not authorize the officer to file a complaint against the child at all; instead, it requires the officer to refer the child to the county juvenile probation department, which then handles the matter as conduct indicating a need for supervision under the Family Code. Second, he asked whether a state district court had exclusive jurisdiction over that referral. The Attorney General found no statewide rule: jurisdiction depends on how each county's juvenile board (or, where there is none, a panel of judges) has designated its juvenile court, which could be a district court, county court, or statutory county court. Third, he asked whether a justice of the peace could prosecute the parent of an absent child at the same time the child was going through the juvenile-court process. The Attorney General said yes, simultaneous prosecution is not prohibited; the Education Code's separate parent-liability provision, which lets an attendance officer file a complaint against a parent who fails to require attendance after a warning, has existed since 1915, and the 1989 amendment adding the child-referral requirement did so "in addition to" that parent-liability provision, not instead of it.

Currency note

This opinion was issued in 1990, shortly after Senate Bill 1668 took effect. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis, and Texas has substantially recodified its education and family law since 1990. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 1990)

School attendance officers: The opinion clarified that their obligation under the new law was to refer a chronically absent child to the county juvenile probation department, not to file a complaint against the child directly, while separately retaining their existing authority to file a complaint against the parent after a warning.

Parents of chronically absent students: The opinion confirmed a parent could face prosecution in justice, county, or municipal court for failing to require the child's attendance, even while the child was simultaneously going through a juvenile-court referral for the same absences.

County juvenile boards and courts: The opinion confirmed there was no single statewide rule assigning these referrals to district courts; each county's own juvenile-court designation, made under Family Code section 51.04 and Government Code section 23.001, controlled which court had jurisdiction.

Common questions

Can a school report a chronically truant child straight to juvenile probation?
Yes, and according to this opinion, that referral is the required step, not a discretionary option. The attendance officer refers the child to the county juvenile probation department rather than filing a complaint against the child.

Does the truant child go to a special truancy court?
Not necessarily. The opinion found no statewide rule; the specific court handling the case depends on how the county's juvenile board (or, absent a juvenile board, a panel of judges) has designated a district court, county court, or statutory county court as the county's juvenile court.

Can both the parent and the child face legal consequences for the same missed school days?
Yes, under this opinion. The parent can be prosecuted in justice, county, or municipal court for failing to require attendance after a warning, while the child is separately referred to juvenile probation, and the opinion found nothing in the law barring both from happening at once.

How long has a parent been able to be prosecuted for a child's truancy in Texas?
According to the opinion, the Education Code sanction against a parent of an habitual truant dates back to 1915; the requirement to also refer the child to juvenile probation was newly added in 1989.

Background and statutory framework

Senate Bill 1668 (Acts 1989, 71st Leg., ch. 658), captioned "An Act relating to students at risk of dropping out of school and to the parental duty to require school attendance," amended Education Code section 4.25(a) to add a requirement that, when a child has been voluntarily absent from school for ten or more days (or parts of days) within six months, or three or more days (or parts of days) within four weeks, without parental consent, the attendance officer "shall refer the child to the county juvenile probation department for action as conduct indicating a need for supervision under Section 51.03(b), Family Code." The opinion read that language as a mandatory referral, not a complaint filed against the child, distinguishing it from the separate sentence in the same section that has authorized attendance officers, since 1915, to file a complaint against a parent (after a warning) who intentionally, knowingly, recklessly, or with criminal negligence fails to require the child's attendance.

On jurisdiction, the opinion explained that Family Code section 51.04 governs jurisdiction over cases involving delinquent conduct or conduct indicating a need for supervision: subsection (b) requires a county's juvenile board, where one exists, to designate a court in the county as the juvenile court, while subsection (c) requires a panel of judges to do so in counties without a juvenile board. Government Code section 23.001 allows a district court, county court, or statutory county court exercising either county-court or district-court constitutional jurisdiction to be designated as a juvenile court. Because the designation is made county by county, the opinion concluded there was no single, uniform, statewide rule about which type of court handles these referrals.

On simultaneous prosecution, the opinion noted the Education Code's parent-sanction provision was prefaced with the words "in addition to," which it read as showing the legislature intended both the child's referral and the parent's prosecution to proceed, not as alternatives. It found nothing in Education Code section 4.25, the Family Code, or elsewhere in Texas law that would bar a justice of the peace from prosecuting the parent in justice, county, or municipal court while the child's case proceeded separately in juvenile court, and it noted, without resolving the details, that its general answers did not account for compulsory-attendance exceptions such as a child's age, private-school enrollment, or handicapped status (Educ. Code §§ 21.032, 21.033).

Citations

Statutes:

• Tex. Educ. Code § 4.25(a) (parent liability and child referral for truancy)
• Tex. Educ. Code §§ 21.032, 21.033 (compulsory attendance exceptions)
• Tex. Educ. Code § 21.039(a)(3) (attendance officer powers and duties)
• Tex. Fam. Code § 51.03(b)(2) (conduct indicating a need for supervision)
• Tex. Fam. Code § 51.04 (juvenile court jurisdiction and designation)
• Tex. Gov't Code § 23.001 (courts eligible for juvenile-court designation)
• Senate Bill 1668, Acts 1989, 71st Leg., ch. 658

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1159
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1159.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

April 19, 1990

Honorable Bob McFarland
Chairman
Criminal Justice Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-1159

Re: Enforcement of prohibitions against absenteeism in public schools (RQ-1906)

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:

[C]an a school district, through its Attendance 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 voluntarily 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 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 "conduct indicating a need for supervision." Fam. Code § 51.03(b)(2).

You next ask whether a state district court has exclusive 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 supervision. 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 jurisdiction 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 adjudication in the juvenile court. Section 4.25(a) of the Education 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 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 of 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 § 4.25(a) (fines levied against parent); Fam. Code § 51.03 et seq. (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 prosecution of parent and child. Nor do we find any bar to simultaneous 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 district may refer 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 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 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.

Very truly yours,

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

Footnotes

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. See Educ. Code §§ 21.032, 21.033.