                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                October 2, 2007



The Honorable Charlie F. Howard                          Opinion No. GA-0574
Chair, Committee on Local and
  Consent Calendars                                      Re: School district responsibilities under section
Texas House of Representatives                           25.0951(a) of the Texas Education Code
Post Office Box 2910                                     (RQ-0584-GA)
Austin, Texas 78768-2910

Dear Representative Howard:

        You ask two questions about a school district's responsibility to file a complaint for failure
to attend school under section 25.0951(a) of the Texas Education Code. 1 See TEX. EDUC. CODE
ANN. § 25.0951(a) (Vernon 2006), amended by Act of May 25,2007, 80th Leg., R.S., ch. 908,
§ 31, 2007 Tex. Sessa Law Serve 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN.
§ 25.0951(a)); Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1,2007 Tex. Sessa Law Serve 3463,
3463 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)).

         A child between the ages of six and eighteen generally must attend school "each school day
for the entire period the program ofinstruction is provided." TEX. EDUC. CODE ANN. § 25.085(a)-(b)
(Vernon 2006). A child who is required to attend school commits an offense if, without a legitimate
excuse, he or she "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); see also id. § 25.087 (establishing guidelines for excused absences). Under section
25.0951, a school district must initiate legal action against a child or the parent of a child who fails
to comply with the statutory school-attendance requirements. See ida § 25.0951. In the following
excerpt from section 25.0951, relevant legislative amendments to section 25.0951 adopted during
the 2007 legislative session are indicated:

                         (a) Ifa student fails to attend school without excuse on 10 or
                 more days or parts of days within a six-month period in the same
                 school year, a school district shall within 10 [seven] school days of
                 the student's 10th [last] absence:


        ISee Letter from Honorable Charlie F. Howard, Chair, Committee on Local and Consent Calendars, Texas
House of Representatives, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Apr. 19,2007) (on file with the
Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Charlie F. Howard' - Page 2                    (GA-0574)



                              (1) file a complaint against the student or the student's
                 parent or both in a county, justice, or municipal court for an offense
                 under Section 25.093 ["Parent Contributing to Nonattendance"] ,or
                 25.094 ["Failure to Attend School"], as appropriate, or refer the
                 student to a juvenile court in a county with a population of less than
                 100,000 for conduct that violates Section 25.094; or

                              (2) refer the student to a juvenile court for conduct
                 indicating a need for supervision . . . .



                         (d) A court shall dismiss a complaint or referral made by a
                 school district under this section that is not made in compliance with
                 this section.

Id. § 25.0951(a), (d), amended by Act of May 25,2007, 80th Leg., R.S., ch. 908, § 31,2007 Tex.
Sess. Law Servo 2277,2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); Act
of May 23, 2007, 80th Leg., R.S., ch. 984, § 1,2007 Tex. Sess. Law Servo 3463, 3463 (Vernon) (to
be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); see also id. § 25.0951(c) (defining "parent").

        In 2006 this office interpreted section 25.0951 as it was written at that time. See generally
Tex. Att'y Gen. Ope No. GA-0417 (2006). In that opinion, GA-0417, this office determined that
section 25.0951(a) requires a school district to file a complaint or referral2 within seven days of the
student's tenth unexcused absence. See id at 5. Failure to do so, the opinion concluded, "inevitably
leads to the complaint's or referral's dismissal." Id. Moreover, if a complaint is dismissed as
untimely, subsection (a) prohibits a school district from refiling the exact same complaint based upon
the same ten unexcused absences-but "[i]fthe student has failed to attend school without excuse
since the original complaint was filed," the school district must file a new complaint "that lists the
latest absence as well as some or all of the absences listed in the original complaint" within seven
school days of the latest absence. Id. at 6. Thus, each subsequent absence that occurs within a six-
month period of the same school year renews the seven-day period within which the school district
may file a timely complaint. See id.

        You now ask whether "a school district's failure to file a truancy complaint ... under
§ 25.095[I](a) ... within the seven[-]day period after the tenth unexcused absence affect[s] in any
way its ability to file a complaint . . . against the same student based on a subsequent absence,
assuming that the most recent ten absences are within a sixth-month period." Request Letter, supra
note 1, at 1. Nothing in the statute forbids a school district from filing a new complaint listing some
of the absences listed in the dismissed complaint in addition to a new, subsequent tenth unexcused



          2Throughout the remainder of this opinion, we will use the term "complaint" to encompass both a complaint
filed in a county, justice, or municipal court under section 25.0951(a)(1) and a referral to juvenile court made under
section 25.095 1(a)(2).
The Honorable Charlie F. Howard - Page 3                      (GA-0574)




absence, so long as all the absences have occurred within a six-month period ofthe same school year.
See Tex. Att'y Gen. Ope No. GA-0417 (2006) at 6; see also TEX. EDUC. CODE ANN. § 25.0951(a)
(Vernon 2006), amended by Act of May 25,2007, 80th Leg., R.S., ch. 908, § 31,2007 Tex. Sessa
LawServ. 2277,2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); Act ofMay
23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Sessa Law Serve 3463, 3463 (Vernon) (to be
codified at TEX. EDUC. CODE ANN. § 25.0951(a)).

         A recent legislative amendment to section 25.0951(a) supersedes a portion of GA-0417's
conclusion. Under the amendment, a school district must file the complaint within ten, not seven,
school days.3 See Act of May 23,2007, 80th Leg., R.S., ch. 984, § 1,2007 Tex. Sessa Law Serve
3463,3463 (Vernon) (to becodifiedatTEx.EDUC.CODEANN. § 25.0951(a)). A second amendment,
changing the word "last" to "10th," codifies that portion of GA-0417 concluding that a school
district must file a complaint after the student's tenth absence. See Act of May 25, 2007, 80th Leg.,
R.S., ch. 908, § 31, 2007 Tex. Sessa Law Serve 2277, 2291 (Vernon) (to be codified at TEX. EDUC.
CODE ANN. § 25.0951(a)); House Comma on Juvenile Justice & Family Issues, Bill Analysis, Tex.
Comma Substitute H.B. 2884, 80th Leg., R.S., § 24 (2007). As the second amendment makes clear,
a student's tenth unexcused absence triggers the school district's responsibility to file a complaint.
See Act of May 25,2007, 80th Leg., R.S., ch. 908, § 31,2007 Tex. Sessa Law Serve 2277,2291
(Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25 .0951 (a)). See generally TEX. GOV'T CODE
ANN. § 311.025(b) (Vernon 2005) (directing that multiple amendments to the same statute enacted
at the same legislative session should be harmonized if possible to effectuate each). Otherwise,
GA-0417's construction of section 25.0951(a) is unaffected.

        You also ask whether a school district that fails to file a timely complaint under section
25.0951(a) suffers any penalty under the Education Code other than the dismissal of the complaint
under section 25.0951(d). See Request Letter, supra note 1, at 1; see TEX. EDUC. CODE ANN.
§ 25.0951(a), (d) (Vernon 2006), amended by Act of May 25,2007, 80th Leg., R.S., ch. 908, § 31,
2007 Tex. Sessa Law Servo 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN.
§ 25.0951(a)); Act of May 23,2007, 80th Leg., R.S., ch. 984, § 1,2007 Tex. Sessa Law Serve 2271,
2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)). We find no other penalties
in the Education Code.




          3The bill amending section 25.0951(a) to increase the filing period from seven to ten school days became
effective immediately. See Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 2 [Tex. S.B.1161]; see also H.J. of Tex.,
80th Leg., R.~. 5268-69 (2007) (recording a vote of 144-0 in favor of passage on the bill's third reading); S.J. of Tex.,
80th Leg., R.S. 986-87 (2007) (recording a vote of30-0 in favor of passage on the bill's third reading).
The Honorable Charlie F. Howard - Page 4           (GA-0574)



                                      SUMMARY

                       Under section 25.0951(a) of the Education Code, a school
              district must file a complaint or referral against a student who has
              accumulated ten or more unexcused absences within a six-month
              period in the same school year within ten school days ofthe student's
              tenth absence. Failure to file within the requisite time will lead to
              dismissal ofthe complaint or referral, but the school district may file
              a new complaint, listing some of the same absences as well as a
              subsequent tenth unexcused absence, within ten school days of the
              tenth absence listed in the complaint or referral. To the extent
              Attorney General Opinion GA-0417 construes section 25.0951(a) to
              require filing a complaint or referral within seven school days, it has
              been superseded by amendments to the statute.

                       Other than requiring a court to dismiss the complaint or
              referral, the Education Code imposes no penalties on a school district
              that fails to file a complaint or referral within ten school days of the
              student's tenth unexcused absence.




KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
