                                               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 77 515                                       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 jurisdictic;m and procedures relating to truancy. 2 You first ask about a
truancy court's referral of a child to ajuvenile 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} Ii 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

         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).

         2See 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.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable Jeri Yenne - Page 2                     (KP-0064)



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§ 65.25l(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. TC! 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.
§ 65.00l(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


         3No   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 ).
The Honorable Jeri Yenne - Page 3                (KP-0064)



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 Secti<?n 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) m1:JSt 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


        4The  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).
The Honorable Jeri Yenne - Page 4              (KP-0064)



juvenile prosecutor. Thus, the prosecutor maintains discretion under subsection 65.252(d) to
prosecute a child for,delinquent conduct as set forth in subsection 5 l .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 § 65.00l(c) (stating that in adjudicating a
child's truant conduct, "[t]he best interest of the child is the primary consideration").
The Honorable Jeri Yenne - Page 5            (KP-0064)



                                     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
