                                       July 15, 1974


The Honorable   Ralph W.          Kinsey                  Opinion   No.   H- 347
County Attorney
Dawson County                                             Re: Can a habitual truant
P. 0. Box 459                                             be committed   to a State
Lamesa,   Texas   79331                                   Juvenile Training School
                                                          under the provisions   of
                                                          Article 4.25 of the Educa-
                                                          tion Code?

Dear   Mr.    Kinsey:

       You have pointed out a conflict between Section 4.25(b),  Texas
Education Code, V. T. C. S., and Section 54.04(g)   of the new Texas
Family Code, which concern proceedings      against children who have
violated the compulsory  school attendance laws of this state [Sections
21.031 through 21.040,  Texas Education Code, V. T. C. S. 1.

       Your    letter   states:

                      It appears that under Article 4. 25 of the Education
                 Code Secti.on B a child can be committed      to the state
                 juvenile training school for certain truancy cases and
                 it appears that in the cited provision  of 51.03,    Subsection
                 B that he can not.    We  are wondering  if a  child  who has
                 violated Section B, Article 4. 25 . . . can still be sent
                 to the juvenile traini.ng school or did the juvenile code
                 repeal that section of the Education Code?

       Section    4.25(b),    Education    Code,    provides    that:




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The Honorable    Ralph      W.   Kinsey    page 2




                    If any parent.    . . can prove that he is unable
                tq compel his child to attend school . . . his child
                may be proceeded      against as a habitual truant and
                committed    to a state juvenile training school or
                any other suitable school agreed upon between his
                parent.   . . and the judge of the juvenile court.
                                              ,

        Prior to the adoption of Title 3 of the Texas Family        Code by
Acts 1973, 63rd Leg.,      ch. 544, p. 1460, Section 4.25,      supra, was
complemented     by Article    2338-1,   V. T. C. S., which established  juvenile
courts,   and determined     their jurisdiction   and powers.  Article  2338-1,
Section 3(e) defined “delinquent       child” to include any child who “habitually
violates a compulsory      school attendance law of this state . . . ”

      Section   13 (c) of Article     23,38-l   then provided:

                If the judge or jury finds that the child is
                delinquent,  or otherwise  within the provisions
                of this Act, the court may by order duly entered
                proceed as follows:

                (1) place   the child on probation      . . .

                (2) commit the child to a suitable public institution
                or agency or to a suitable private institution or
                agency authorized  to care for children . . .

       With the enactment of Title 3 of the Texas Family Code, effective
Sept. 1, 1973, Article  2338-l was repealed in its entirety, and Sections
51.01 through 56.02 of the Family Code have replaced it. Acts 1973,
63rd Leg.,   ch. 544, p. 1485, Section 3.

       Title 3 of the Famil,y Code did not expressly repeal Secion 4. 25
of t:he Educati,on Code.   However,  major changes i.n the juvenile court!s
power over truant child.ren under the new Family Code make it doubtful
.   -

        The Honorable     Ralph Kinsey        page   3




         that the provision   of Section 4.25 of the Education Code which authorizes
         the commitment     of a habitual truant to a state juvenile training school is
        ‘still viable.

               Under Title 3 the violation of the compulsory           school attendance
        law is not “delinquent”  conduct, as it formerly   was         under Article  2338-1,
        V. T. C. S., but now constitutes  “conduct indicating         a need for supervision.   ”
        See Section 51.03 (b)(2), Texas Family    Code, V. T.         C. S.

               The distinction   is important because the new Family Code, in Section
        54.04,  permits the juvenile court to commit a child to the Texas Youth
        Council for delinquent conduct,     but expressly denies the court the power
        to commit a child to the Texas Youth Council for violations     of the compulsory
        school attendance    law.

                         Section   54.04   (g):

                         In no event may the court commit a child to the
                         Texas Youth Council because the child engaged
                         in conduct defined in Subdivision  (2) [violation
                         of the attendance law], (3), or (4) of Section
                         51.03 (b) of this code.

                 The Texas Youth Council manages          and directs State training school
        facilities  for delinquent children, Article      5143d, Section 6 (d), V. T. C. S.

               Insofar as Secti.on 4. 25 of the Education Code authorizes        a juvenile
        court to commit a child to the Texas Youth Council for truancy,            it conflicts
        irreconcilably     with, and is to that extent impliedly   repealed by, the express
        prohibitions    of the later enacted comprehensive      revision  of juvenile pro-
        ceedings    under Title 3 of the Family    Code.   The prohibi.tion against com-
        mitment of such a child to the Texas Youth Council is expressed             again in
        Sections   51.03 (a)(2),   54.05(g).

               Repeals    by implication      are not favored   by our courts.   St.. Louis




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            The Honorable    Ralph Kinsey      page 4
.



            S. W. Railway Co; v. Kay,      22 S. W. 665 (Tex. 1893); Jefferson      County v.
            Board of County and District Road Indebtedness,         182 S. W. 2d 908 (Tex.
            1944).   However,   the pronounced    antagonism   between   the provision   of
            Section 4.25,   contemplating   commitment     to a state juvenile training
            school and Section 54.03(q)    of the,Family    Code, is enough under even
            the stringent tests applied by these cases to justify a conclusion        of partial
            repeal to the extent of the conflict.

                   You have inquired only concerning     commitment    to a state juvenile
            training school,   but Section 4. 25 of the Education Code alternatively
            contemplates    commitment     to “any other suitable school . . . ” Section
            54.04(d)  of the Family Code permits a juvenile c ourt to place a child
            on probation   “in a suitable public or private institution or agency,
            except the Texas Youth Council ” for a period not to exceed one year
            after a finding that a violation of the compulsory    school law has occurred,
            and after a finding by the court that the child is in need of rehabilitation
            or protection.    We think these portions of the two laws are compatible.

                                                SUMMARY

                                 Section 54.04(g)   of the new Texas Family
                            Code prevents a juvenile court from committing
                            a child to the jurisdiction   of the Texas Youth
                            Council for violations    of the compulsory  school
                            attendance law.

                                                            Ary     truly yours,




                                                            -JOHN     L. HILL
                                                              At:torney General    of Texas
The Honorable    Ralph Kinsey      page    5




DAVID     M KENDALL,    Chairman
Opinion   Committee




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