                                             GREG       A B B O T T




                                                March 13,2008


The Honorable Jeri Yenne                                       Opinion No. GA-0607
Brazoria County Criminal District Attorney
111 East Locust, Suite 408A                                    Re: Whether Senate Bill 1161 (2007) and
Angleton, Texas 775 15                                         House Bill 2884 (2007), both of which
                                                               amended Education Code section 25.095 1,
                                                               can be harmonized (RQ-0625-GA)

Dear Ms. Yenne:

        Education Code section 25.095 1(a) requires a school district to file, within a certain time
period, a complaint or referral against a student who has accumulated a certain number of unexcused
absences from school. See TEX.EDUC.CODEANN. 25.095 1(a) (Vernon Supp. 2007), as amended
by Act of May 25,2007,80th Leg., R.S., ch. 908,s 3 1,2007 Tex. Gen. Laws 2274,2288 and Act
of May 23, 2007, 80th Leg., R.S., ch. 984, $ 1, 2007 Tex. Gen. Laws 3457, 3457-58. Section
25.095 1(d) requires a court to dismiss a complaint or referral that is untimely filed. See TEX.EDUC.
CODEANN.5 25.0951(d) (Vernon Supp. 2007).

      In 2007 the Legislature adopted two bills amending section 25.095 l(a). See Act of May 25,
2007,80th Leg., R.S., ch. 908, 31,2007 Tex. Gen. Laws 2274,2288 and Act of May 23,2007,
80th Leg., R.S., ch. 984, 1, 2007 Tex. Gen. Laws 3457, 3457-58. Because the amendments
changed different words in subsection (a), you ask which of the two amendments is effective.'

        Prior to amendment by the Eightieth Legislature, Education Code section 25.095 1(a)required
a school district, within seven school days of the last absence, to file a complaint against or to refer
to juvenile court a student who had accumulated ten unexcused absences over a six-month period
within the same school year:

                        If a 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 seven school days of the
                 student's last absence:



         'See Letter from Honorable Jeri Yenne, Brazoria County Criminal District Attorney, to Honorable Greg Abbott,
Attorney General of Texas (Sept. 13, 2007) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Jeri Yenne - Page 2                       (GA-0607)



                                (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 25.0932or 25.094,3as 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 under Section 5 1.03(b)(2), Family
                  Code.4

Act of May 27,2005,79th Leg., R.S., ch. 949, $37,2005 Tex. Gen. Laws 3 198,3211-12 (amended
2007) (current version at TEX.EDUC.CODEANN.$ 25.095 l(a) (Vernon Supp. 2007)) (footnotes and
emphasis added).

         During the Eightieth session, the Legislature amended section 25.095 1(a) twice. See Act of
May 25, 2007, 80th Leg., R.S., ch. 908, $ 31, 2007 Tex. Gen. Laws 2274,2288; Act of May 23,
2007,80th Leg., R.S., ch. 984,s 1,2007 Tex. Gen. Laws, 3457,3457-58. On May 23,2007, when
Senate Bill 1161 passed the House and became enrolled, the Legislature changed the word "seven,"
italicized in the quotation above, to the numeral "10." See Act of May 23,2007,80th Leg., R.S., ch.
984,s 1,2007 Tex. Gen. Laws 3457,3457. Two days later, on May 25, by the passage of House Bill
2884, the Legislature changed the word "last," italicized in the quotation above, to "10th." See Act
of May 25,2007,SOth Leg., R.S., ch. 908, $31,2007 Tex. Gen. Laws 2274,2288. Senate Bill 1161
did not change the word "last," as House Bill 2884 did; nor did House Bill 2884 change the word
"seven," as Senate Bill 1161 did. And neither bill referred to the other.

        Senate Bill 1 161 became effective when the Governor signed it on June 15,2007. See Act
of May 23,2007,SOth Leg., R.S., ch. 984, $2,2007 Tex. Gen. Laws 3457,3458. House Bill 2884,
on the other hand, became effective on September 1, 2007. See Act of May 25, 2007, 80th Leg.,
R.S., ch. 908, $ 47,2007 Tex. Gen. Laws 2274,2291. You suggest that on and after September 1,
2007, only the later enacted provision-the amendment made by House Bill 2884-is effective; the
earlier enacted provision, Senate Bill 1161, was effective only from the time of the Governor's
signature until House Bill 2884 took effect. See Request Letter, supra note 1, at 3. Thus, in your


         'Under Education Code section 25.093, a parent who, with criminal negligence, fails to require a child to attend
school in accordance with mandatory attendance laws commits an offense. See TEX.EDuC. CODEANN. $ 25.093(a)
(Vernon 2006); see also id. $ 25.085 (Vernon Supp. 2007) ("Compulsory School Attendance").

         3Under Education Code section 25.094, an individual who is required to attend school but who fails to do so
"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" commits an offense. Id. $ 25.094(a) (Vernon 2006); see also id. $25.085 (Vernon
Supp. 2007) ("Compulsory School Attendance").

         4Conductindicating a need for supervision includes "the absence of a child 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
from school." TEX.FAEVI.  CODEANN.$ 5 1.03(b)(2) (Vernon Supp. 2007).
The Honorable Jeri Yenne - Page 3               (GA-0607)



view, a school district must file a "non-attendance complaint" within seven, rather than ten, days of
the student's tenth absence. Id. at 3. In making this suggestion, you assume the amendments cannot
be harmonized. See id

        We must presume in construing statutes that the Legislature intended its acts to be effective
in their entirety. See TEX.GOV'TCODEANN.tj 3 11.021(2) (Vernon 2005); Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). In particular, "if amendments to the same statute are
enacted at the same session of the legislature, one amendment without reference to another, the
amendments shall be harmonized, if possible, so that effect may be given to each." TEX.GOV'T
CODEANN. fj 3 11.025(b) (Vernon 2005). If two amendments can be harmonized, a court will not
apply the rule of statutory construction that the later enacted provision prevails. See id. ; Young v.
State, 14 S.W.3d 748,752 (Tex. Crim. App. 2000). Two legislative enactments need not be found
to conflict if each makes substantive amendments to the statute that the other does not make. See
Rhoades v. State, 934 S.W.2d 113, 122 (Tex. Crim. App. 1996) (Mansfield, J. with three justices
concurring, one justice joining only in judgment and two justices concurring in result).

        The two amendments to section 25.0951(a) do not conflict. Senate Bill 1161 increased the
number of days in which a school district must file a complaint from seven to ten, while House Bill
2884 made more specific the starting point for the filing period, from the "last" absence to the "1 0th"
absence. Thus, each amendment changes a different word, and changing both words does not make
the statute absurd. See Univ. of Tex. S.J T Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex.
2004) ("Courts should not read a statute to create such an absurd result." (quoting Barshop v. Medina
County Underground Water Conservation Dist., 925 S.W.2d 6 18,629 (Tex. 1996)).

      Consequently, as Opinion GA-0574 suggests, both amendments are effective. See Tex. Att'y
Gen. Op. No. GA-0574 (2007) at 3. Section 25.095 1(a) reads:

                       If a 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 school days of the
                student's 10th absence:

                            (1) file a complaint . . . for an offense under Section
                25.093 or 25.094 . . . or refer the student to a juvenile court . . . for
                conduct that violates Section 25.094; or

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

TEX.EDUC.CODEANN.fj 25.0951(a) (Vernon Supp. 2007).

        You also ask whether a school district that has had a complaint dismissed as untimely may,
given the amendments to section 25.095 1(a), "file a new complaint with an unexcused absence that
occurred subsequent to the absences noted on the original complaint . . . within seven days of
The Honorable Jeri Yenne - Page 4            (GA-0607)



the latest unexcused absence." Request Letter, supra note 1, at 2 (quoting Tex. Att'y Gen. Op.
No. GA-04 17 (2006) at 8). As Opinion GA-0574 indicates, "[nlothing in the statute forbids a school
district [to file] a new complaint listing some of the absences [named] in the dismissed complaint
in addition to a new, subsequent tenth unexcused absence, so long as all the absences have occurred
within a six-month period of the same school year." Tex. Att'y Gen. Op. No. GA-0574 (2007) at
2-3. As the opinion further notes, however, under the amendments to section 25.095 1(a), the new
complaint must be filed within ten, not seven, school days of the tenth absence listed in the
complaint. See id. at 3. To answer your question, therefore, we conclude that a school district may
file a new complaint listing some of the absences named in the dismissed complaint in addition to
a subsequent, previously unlisted, unexcused absence. The new complaint must be filed within ten
days of the tenth absence listed in the new complaint.
The Honorable Jeri Yenne - Page 5             (GA-0607)



                                       S U M M A R Y

                       Because they can be harmonized, both of the enactments
              adopted by the Eightieth Legislature amending Education Code
              section 25.095 1(a) are effective. Compare Act of May 25,2007,80th
              Leg., R.S., ch. 908, 5 3 1,2007 Tex. Gen. Laws 2274,2288, with Act
              of May 23,2007,80th Leg., R.S., ch. 984, 5 1,2007 Tex. Gen. Laws
              3457,3457-58. Consequently, section 25.0951(a) requires a school
              district, within ten school days of the student's tenth absence, to file
              a complaint against or to refer to juvenile court a student who fails to
              attend school without excuse for at least ten days or parts of days
              within a six-month period.

                      If the school district files an untimely complaint or referral, it
              may file a new complaint that lists some of the absences named in the
              dismissed complaint in addition to a subsequent, previously unlisted
              unexcused absence. The new complaint must be filed within ten days
              of the tenth absence listed in the new complaint.

                                              Very truly yours,



                                              G R E ~ A B B O T T
                                              Attorney General of Texas


KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
