When can a Texas truancy court send a child to juvenile probation, and can the child be charged with delinquency?

Plain-English summary

In 2015 Texas overhauled how it handles kids who skip school. House Bill 2398 added chapter 65 to the Family Code as part of an effort to decriminalize truancy, moving most cases out of the criminal system and into civil "truancy court" procedures. The new chapter created fresh questions about exactly when a truant kid can be escalated, and the Brazoria County Criminal District Attorney asked the AG to untangle two of them.

The first was about referrals to juvenile probation. Section 65.251(b) is written awkwardly, with "or" and "and" clauses that can be parsed several ways. The AG read it alongside the neighboring subsections. Subsection 65.251(a) lets a truancy court impose a fine or restrict driving privileges on a single instance of either disobeying a truancy order or direct contempt, so subsection (b) must require something more, or there would be no point to having a separate subsection. And subsection 65.251(c)(2) requires the court to document the child's "previous truancy referrals." Putting those together, the AG concluded that before a truancy court may refer a child to the juvenile probation department, there must have been two prior instances of contemptuous conduct, in any combination of disobeying an order and direct contempt. In practice, a child becomes eligible for referral on the third such instance. The AG noted this fits the Legislature's stated goal of "creating simple civil judicial procedures."

The second question was about prosecution. Section 65.252 lays out an adjudication process once a child reaches juvenile court, with admonishments that mention a "possible" delinquent-conduct charge on "subsequent" referrals. But subsection 65.252(d) says the section does not limit a juvenile prosecutor's discretion to prosecute the child for conduct under section 51.03, and House Bill 2398 had amended the definition of "delinquent conduct" to cover violating a truancy court's order in a way that would be contempt. Reading the subsections together, the AG concluded the prosecutor keeps discretion under subsection 65.252(d) to charge delinquent conduct under section 51.03(a)(2)(C) even on a child's very first referral to juvenile court. That preserves the prosecutor's flexibility to match the response to the child.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG 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. Chapter 65 of the Family Code and the definition of delinquent conduct in section 51.03 may have been amended since 2016, so confirm the current statutes before relying on these specifics.

What the opinion meant for those who asked

Truancy courts (as the opinion described it): The opinion described section 65.251(b) as allowing a referral to the juvenile probation department only after two prior instances of contemptuous conduct, in any combination of disobeying a truancy order and direct contempt, so a child became eligible on the third instance.

Juvenile prosecutors (as the opinion described it): The opinion concluded that a prosecutor retained discretion under subsection 65.252(d) to prosecute a child for delinquent conduct under section 51.03(a)(2)(C) even on the child's initial referral to juvenile court, rather than being forced through the section 65.252 adjudication steps first.

Children and their families (as the opinion described it): The opinion described the new chapter 65 framework as a civil, graduated process, with juvenile probation referral reserved for repeat conduct, while noting the prosecutor's separate discretion to pursue a delinquent-conduct charge.

Common questions

How many times can a child defy a truancy order before being sent to juvenile probation?
The AG concluded a truancy court may refer a child to the juvenile probation department only after two prior instances of contemptuous conduct, so a child becomes eligible for referral on the third instance.

Do the two prior instances have to be the same type of violation?
No. The AG explained that one instance of disobeying a truancy order plus one instance of direct contempt together satisfy the "two or more previous occasions" requirement.

Can a child be charged with delinquent conduct on the first trip to juvenile court?
The AG concluded yes, because subsection 65.252(d) preserves the prosecutor's discretion to prosecute the child for delinquent conduct under section 51.03(a)(2)(C) even on an initial referral.

What changed about truancy in 2015?
The AG noted House Bill 2398 added chapter 65 to the Family Code as part of a comprehensive effort to decriminalize truancy and reform the state's truancy procedures.

Who decides whether to pursue an adjudication in juvenile court?
The AG explained that the juvenile court prosecutor determines whether there is probable cause and whether to request an adjudication, giving the prosecutor discretion over how to proceed.

Background and statutory framework

House Bill 2398 of the 84th Legislature added chapter 65 to the Family Code, creating civil truancy-court procedures (Tex. Fam. Code § 65.001). Section 65.251(a) authorizes a truancy court to impose a fine or restrict driving privileges for a single instance of disobeying a truancy order or direct contempt, while section 65.251(b) permits a referral to the juvenile probation department and section 65.251(c) sets the documentation required for one. Reading these together and construing the statute as a cohesive whole, the AG concluded a referral requires two prior instances of contemptuous conduct (Tex. Fam. Code § 65.251; Lippincott v. Whisenhunt, 462 S.W.3d 507; In re Smith, 333 S.W.3d 582; Tex. Student Hous. Auth. v. Brazos Cty. Appraisal Dist., 460 S.W.3d 137; City of Dallas v. TCI West End, Inc., 463 S.W.3d 53).

Section 65.252 governs the juvenile-court adjudication process, but subsection 65.252(d) preserves the prosecutor's discretion to prosecute the child for conduct under section 51.03, whose definition of delinquent conduct House Bill 2398 amended to include violating a truancy court's order under circumstances that would be contempt (Tex. Fam. Code §§ 65.252, 51.03). The AG read that discretion to apply even on a child's initial referral, consistent with provisions emphasizing the best interest of the child and informal disposition (Tex. Fam. Code §§ 65.001, 65.012, 65.103).

Citations

Statutory provisions:

• Tex. Fam. Code § 65.251 (referral of a child to the juvenile probation department)
• Tex. Fam. Code § 65.252 (juvenile-court adjudication process and prosecutorial discretion)
• Tex. Fam. Code § 65.103 (truancy court orders)
• Tex. Fam. Code § 65.001 (purpose; best interest of the child)
• Tex. Fam. Code § 65.012 (guidelines for informal disposition of truancy cases)
• Tex. Fam. Code § 51.03 (definition of delinquent conduct, including subsection 51.03(a)(2)(C))

Cases:

• Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015)
• In re Smith, 333 S.W.3d 582, 586 (Tex. 2011)
• Tex. Student Hous. Auth. v. Brazos Cty. Appraisal Dist., 460 S.W.3d 137, 141 (Tex. 2015)
• City of Dallas v. TCI West End, Inc., 463 S.W.3d 53, 55-56 (Tex. 2015)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0064
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0064.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 16, 2016

The Honorable Jeri Yenne Opinion No. KP-0064
Brazoria County Criminal District Attorney
111 East Locust Street, Suite 408A Re: Circumstances under which a truancy
Angleton, Texas 77515 court may refer a child to the juvenile
probation department, and circumstances
under which a child may be prosecuted for
delinquent conduct (RQ-0046-KP)

Dear Ms. Yenne:

You ask us to construe two provisions in newly-added chapter 65 of the Family Code, [1] which now governs court jurisdiction and procedures relating to truancy. [2] You first ask about a truancy court's referral of a child to a juvenile probation department. Request Letter at 1-3. Subsection 65.251(b) of the Family Code provides, in relevant part, that

[i]f a child fails to obey an order issued by a truancy court under Section 65.103(a) or a child is in direct contempt of court and the child has failed to obey an order or has been found in direct contempt of court on two or more previous occasions, the truancy court ... may refer the child to the juvenile probation department ....

TEX. FAM. CODE § 65.251(b). You explain that this provision could be interpreted in a number of ways depending on the grammatical construction of the phrases beginning with the words "or" and "and" in the sentence. Request Letter at 2. Thus, you ask this office for assistance in determining the meaning of subsection 65.251(b). Id. at 2-3.

As with any statute, our goal in construing subsection 65.251(b) is to give effect to the Legislature's intent. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). "[W]hen statutory language is susceptible to more than one reasonable interpretation, [a court] look[s] beyond its language for clues to the Legislature's intended meaning." In re Smith, 333 S.W.3d 582, 586 (Tex. 2011). One such clue comes from another subsection of section 65.251. See Tex. Student Hous. Auth. v. Brazos Cty. Appraisal Dist., 460 S.W.3d 137, 141 (Tex. 2015) (stating that when construing a statute, a court will focus "not on isolated words or phrases but on the statute as a cohesive, contextual whole"). Subsection 65.251(a) provides that "[i]f a child fails to obey an order issued by a truancy court ... or a child is in direct contempt," a truancy court may impose a fine, restrict driving privileges, or both. See TEX. FAM. CODE § 65.251(a). Subsection 65.251(a)'s imposition of these penalties upon a single occurrence of either truancy order defiance or direct contempt suggests that subsection 65.251(b) requires something more than a single occurrence of either behavior to trigger its provisions. Otherwise, there would be no reason to express the penalty for a single occurrence in a separate subsection. See City of Dallas v. TCI West End, Inc., 463 S.W.3d 53, 55-56 (Tex. 2015) (stating that "an interpretation that renders any part of the statute meaningless" should be avoided).

The grammatical structure of subsection 65.251(b) can thus be read to pivot on the conjunctive word "and," requiring the occurrence of some additional condition expressed after the conjunction. The question then is whether either of the additional conditions (i.e., the child failing to obey an order or engaging in direct contempt) must have occurred "on two or more previous occasions" or whether that phrase refers only to direct contempt. Again, we seek clarity from the surrounding text by examining subsection 65.251(c), which sets forth the documentation required when a referral to a juvenile probation department is made. That subsection, in relevant part, requires a truancy court to provide

documentation of all truancy orders for each of the child's previous truancy referrals, including: (A) court remedies and documentation of the child's failure to comply with the truancy court's orders, if applicable, demonstrating all interventions that were exhausted by the truancy court; and (B) documentation describing the child's direct contempt of court, if applicable[.]

TEX. FAM. CODE § 65.251(c)(2) (emphasis added). Thus, subsection (c) suggests that, regardless of the category, there must have been two or more previous occurrences of an offending behavior before the truancy court may refer the child to a juvenile probation department. [3] This construction also simplifies the execution of the statute because it results in a child's eligibility for juvenile probation department referral upon the third commission of any combination of the offending behaviors, thus making it consistent with the Legislature's express purpose in "creating simple civil judicial procedures" for holding a child accountable for excessive school absences. Id. § 65.001(b). In sum, a court would likely conclude that under subsection 65.251(b) of the Family Code, a truancy court may refer a child to the juvenile probation department for either failure to obey a truancy order or direct contempt; however, such a referral requires two prior instances of contemptuous behavior regardless of form-either failure to obey a truancy order or direct contempt.

Your second question concerns prosecutorial discretion under section 65.252 of the Family Code. See Request Letter at 3-4. Under section 65.252, after a child is referred to a juvenile court, "the juvenile court prosecutor shall determine" whether there is probable cause to believe the child engaged in direct contempt or failed to obey a truancy order under circumstances that would constitute contempt of court. TEX. FAM. CODE § 65.252(a). If there is no probable cause, the juvenile court must order the child to continue his or her compliance with the truancy order and must notify the truancy court. [4] Id. § 65.252(c). On a finding of probable cause, "the prosecutor shall determine whether to request an adjudication" from the juvenile court. Id. § 65.252(a). Subsections 65.252(a) and (b) describe this particular adjudication process, which would involve "a hearing to determine if the child engaged in conduct that constitutes contempt of the order issued by the truancy court or engaged in direct contempt of court." Id. § 65.252(a)-(b). During this hearing, if the juvenile court makes a finding of either such behavior, the court, among other things, "shall ... admonish the child ... of the consequences of subsequent referrals to the juvenile court, including ... a possible charge of delinquent conduct for contempt of the truancy court's order or direct contempt of court." Id. § 65.252(b). Subsection 65.252(d), however, expressly states that section 65.252 "does not limit the discretion of a juvenile prosecutor or juvenile court to prosecute a child for conduct under Section 51.03." Id. § 65.252(d).

House Bill 2398 amended the definition of "delinquent conduct" in subsection 51.03(a) to include "conduct that violates a lawful order of a court under circumstances that would constitute contempt of that court in ... a truancy court." Act of May 30, 2015, 84th Leg., R.S., ch. 935, § 18, Tex. Gen. Laws 3224, 3233 (codified at TEX. FAM. CODE § 51.03(a)(2)(C)) (emphasis added). Thus, you ask "whether a prosecutor and juvenile court must comply with Section 65.252(a)-(c) of the Texas Family Code in the first instance of a child's referral ... to juvenile court, or whether a prosecutor and juvenile court maintain discretion under Section 65.252(d) to prosecute the child for delinquent conduct at any time." Request Letter at 4.

Although the mandatory admonishments to be given by the juvenile court in subsection 65.252(b) do refer to a possible delinquent conduct charge in future terms upon "subsequent" referrals, suggesting that such a prosecution would not be the consequence of a child's initial referral to juvenile court, subsection (b) must be read in conjunction with subsection (a). Subsection 65.252(a) gives a juvenile prosecutor the discretion to "determine whether to request" the adjudication process described by subsections (a) and (b) in the first instance. TEX. FAM. CODE § 65.252(a) (emphasis added). Only if the prosecutor requests an adjudication under subsection 65.252(a) does a juvenile court proceed to "adjudicate" on the question of contempt, and only upon an affirmative finding does the juvenile court admonish the child regarding a "possible" future charge of delinquent conduct. By expressly stating that section 65.252 does not limit the prosecutor's discretion to prosecute the child on a formal delinquent conduct charge under other law, the Legislature has indicated that the adjudication process of 65.252 is at the discretion of the juvenile prosecutor. Thus, the prosecutor maintains discretion under subsection 65.252(d) to prosecute a child for delinquent conduct as set forth in subsection 51.03(a)(2)(C) even on a child's initial referral to juvenile court. This construction affords a juvenile prosecutor the flexibility to handle a child's defiance of a truancy order with the level of severity most appropriate for that child. See id. § 65.012 (authorizing the Texas Supreme Court to promulgate "guidelines [for] the informal disposition of truancy cases"); see also id. § 65.001(c) (stating that in adjudicating a child's truant conduct, "[t]he best interest of the child is the primary consideration").

SUMMARY

A court would likely conclude that under subsection 65.251(b) of the Family Code, a truancy court may refer a child to the juvenile probation department for either failure to obey a truancy order or direct contempt; however, such a referral requires two prior instances of contemptuous conduct regardless of form-either failure to obey a truancy order or direct contempt.

A court would likely conclude that a juvenile prosecutor maintains discretion under subsection 65.252(d) of the Family Code to prosecute a child for delinquent conduct as set forth in subsection 51.03(a)(2)(C) of the Family Code even on a child's initial referral to juvenile court.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] House Bill 2398, passed during the 84th legislative session, added chapter 65 to the Family Code as part of a comprehensive effort to decriminalize truancy and reform the state's truancy procedures. See Act of May 30, 2015, 84th Leg., R.S., ch. 935, § 27, Tex. Gen. Laws 3224, 3236-49 (codified at TEX. FAM. CODE §§ 65.001-.259); see also generally Sen. Crim. Justice Comm., Bill Analysis, Tex. Comm. Sub. H.B. 2398, 84th Leg., R.S. (2015).

[2] See Letter from Honorable Jeri Yenne, Brazoria Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-4 (Aug. 17, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[3] No language in chapter 65 appears to limit the prior contemptuous behavior requirement to the same category. Thus, one instance of truancy order defiance together with one instance of direct contempt would constitute the requisite "two or more previous occasions" of offending behavior for purposes of subsection 65.251(b).

[4] The juvenile court must do the same "if the juvenile probation department finds that extenuating circumstances caused the original truancy referral." TEX. FAM. CODE § 65.252(c).