             THE    ATTORNEY         GENERAL
                       0F TEXAS


                          April 19, 1990



Honorable Bob McFarland            Opinion No. JM-1159
Chairman
Criminal Justice Committee         Re: Enforcement of prohibi-
Texas State Senate                 tions against absenteeism in
P. 0. Box 12068                    public schools    (RQ-1906)
Austin, Texas 78711

Dear Senator McFarland:

     You ask three questions   about the interpretation   of
Senate Bill 1668, passed by the 71st Legislature.       Acts
1989, 71st Leg., ch. 658, at 2165. The caption of that bill
describes it as "An Act relating to students    at risk of
dropping out of school and to the parental duty to require
school attendance."  &

     Your first question reads as follows:

        [Clan a school district, through its Atten-
        dance Officer,  file a complaint with the
        County Juvenile Probation Department or with
        the District Attorney,    requesting  that a
        child (who has been voluntarily absent   from
        school for ten or more days or parts of days
        within a six-month period, or three or more
        days or parts of days within a four-week
        period, without the consent of the parents)
        be adjudicated   as a 'child in need       of
        supervision' under Section 51.03(b) of the
        Texas Family Code?

     Your question traces the       language of a portion   of
section 4.25(a) of the Education    Code that was added by the
adoption of Senate Bill 1668.       Subsection  (a) of section
4.25 of the Education Code reads    in part as follows:

        In addition,  if the child has been volun-
        tarily absent from school for 10 or more days
        or parts of days within a six-month period or
        three or more days or parts of days within  a
        four-week period without the consent of his
        parents, the attendance  officer shall refer
        the child to the county juvenile probation



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Honorable Bob McFarland - Page 2   (JM-1159)




        department for action as conduct indicating a
        need for supervision under Section  51.03(b),
        Family Code.

     As you can see, the provision     does not allow the
attendance officer to "file a complaint" against the child,
rather it requires him to refer the child to the county
juvenile probation department.1  The same period of absence
from school without parental     consent  is identified  in
subsection (b)(2)  of section 51.03 of the Family Code as
V1conduct indicating a need for supervision."     Fam. Code
§ 51.03(b)(2).

     You next ask whether a state district court has exclu-
sive jurisdiction to adjudicate the complaint or referral
described in your first question.      Section 51.04 of the
Family Code governs     jurisdiction  over cases     involving
delinquent conduct or conduct indicating     need of super-
vision.   Section 51.04(b) requires the juvenile board,     in
counties that have one, to designate a court in the county
as the juvenile court, and section 51.04(c) requires a panel
of judges   in a county that has no juvenile board to
designate one or more courts as juvenile courts.       Section
23.001 of the Government     Code provides  that a district
court, county court, or statutory    county court exercising
any of the constitutional jurisdiction of either a county
court or a district   court may be designated as a juvenile
court. Thus, there is no state-wide     rule covering   juris-
diction   in cases involving conduct     indicating   need of
supervision.

     Finally, you ask whether a justice of the peace court
can exercise   jurisdiction  over the parent of a child
exhibiting the absentee behavior   described in your   first
question at the same time the child is subject to adjudica-
tion in the juvenile court.   Section 4.25(a) of the Educa-
tion Code provides  for sanctions against the parent of an
absentee student in addition to the referral of the child to
the county juvenile probation department.  The section first
provides for the attendance officer to warn the parent    or




     1. Because your questions are phrased in a general
manner, we do not qualify our general answers with regard to
compulsory attendance  exceptions, such as the age of the
child, the child's enrollment    in private school,  or the
child's handicapped   status.   m    Educ. Code §§ 21.032,
21.033.




                             p. 6116
Honorable Bob McFarland - Rage 3   (JM-1159)




person standing in parental relation    that   attendance   is
required. The section further provides:

        If after this warning the parent or person
        standing in parental relation   intentionally,
        knowingly,  recklessly,    or with    criminal
        negligence fails to require the child to
        attend school as required by law, the parent
        or person standing     in parental    relation
        commits an offense.   The attendance   officer
        shall file a complaint    against him in the
        county court, in the justice court of his
        resident precinct,   or    in the    municipal
        court of the    municipality   in   which    he
        resides . . . .

Educ. Code § 4.25(a).

     The sanctions found in this section against the parent
of an habitual truant have been in Texas law since 1915, see
Acts 1915, 34th Leg., ch. 49, at 92, while the referral r
the child to the county juvenile probation department      was
added in 1989. Acts 1989, 71st Leg., ch. 658, § 1, at 2165.
It is clear that the legislature    intended both parent   and
child to be subject to sanctions. See Educ. Code 5 4.25(a)
(fines levied against parent): Fam. Code 9 51.03 et. sec.
(adjudication of conduct   indicating need for supervision).
The legislature,   in section 4.25 of the Education      Code,
prefaced the requirement that the attendance officer refer
the child to the county juvenile probation department     with
the term "in addition." We find nothing in section 4.25 of
the Education Code that would disallow simultaneous prosecu-
tion of parent and child. Nor do we find any bar to simul-
taneous prosecution elsewhere   in the law. See also Educ.
Code § 21.039(a)(3) (describing the powers and duties of the
attendance officer,   including the power to enforce the
provisions of the compulsory attendance law).

                        SUMMARY

            The attendance officer of a school dis-
        trict may refer a child, who has been volun-
        tarily absent from school for ten or more
        days or parts of days within a six-month
        period or three or more days or parts of days
        within a four-week period without the consent
        of his parents, to the county's      juvenile
        probation department.  The attendance officer
        shall file a complaint against the parent   or
        person standing in parental relation to such
        a child in the county court, in the justice



                              p. 6117
Honorable Bob McFarland - Page 4     (JM-1159)




        court of his resident precinct, or in the
        municipal court. Simultaneous prosecution of
        the parent in justice court and the child in
        juvenile court is not prohibited.




                                 J               ii
                                   Very truly you     ,


                                        A
                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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