   OFPlCE   OF THE ATTORNEY   GENERAL   SThTE   OF TEXAS

   JOHN     CORNYN




                                                August 23, 1999



The Honorable Jeff Wentworth                               Opinion No. K-0099
Chair, Nominations Committee
Texas State Senate                                         Re: Whether a student who is excused from a
P.O. Box 12068                                             public school for a temporary absence pursuant to
Austin, Texas 7871 l-2068                                  section 25.087(b) of the Education Code may be
                                                           denied certain benefits (RQ-0039)


Dear Senator Wentworth:

        You ask whether, pursuant to section 25.087(b) of the Education Code, a student who has
been temporarily absent from school and whose absence has been excused may be deprived of
certain benefits granted by teachers or school systems for “perfect attendance.” We conclude that
such deprivation is impermissible.

         With some exemptions governed by section 25.086 of the Education Code, Texas children
from six through seventeen are required to attend school. TEX. EDUC. CODE ANN. $ 25.085(b)
(Vernon Supp. 1999) In order to receive credit for a class, the student must generally be “in
attendance for at least 90 percent of the days the class is offered.” Id. 5 25.092(a) (Vernon 1996).
However, under section 25.087(a), “achild may.       be excused for temporary absence resulting horn
any cause acceptable” to thechild’s teacher, principal, or school superintendent. Moreover, pursuant
to section 25.087(b), there are certain causes of temporary absence for which the child must be
excused:

                  A school district shall excuse a student from attending school for the
                  purpose of observing religious holy days, including traveling for that
                  purpose, if before the absence the parent, guardian, or person having
                  custody or control of the student submits a written request for the
                  excused absence.      A school district shall excuse a student for
                  temporary absence resulting from health care professionals if that
                  student commences classes or returns to school on the same day of
                  the appointment.    A student whose absence is excused under this
                  subsection may not be penalized for that absence and shall be counted
                  as if the student attended school for purposes of calculating the
                  average daily attendance of students in the school district. A student
                  whose absence is excused under this subsection shall be allowed a
                  reasonable time to make up school work missed on those days. If the
The Honorable    Jeff Wentworth      - Page 2        (X-0099)




                student satisfactorily completes the school work, the day of absence
                shall be counted as a day of compulsory attendance.’

        As you explain the matter, “Many teachers and school systems grant students with ‘perfect
attendance’ the benefit of skipping some tests and even final exams. A student who has an excused
absence provided in Section 25.087 is penalized by being excluded from receiving this benefit. This
practice seems to be in conflict with the statute.” Letter from Honorable Jeff Wentworth, Senator,
to Honorable John Comyn, Attorney General (Mar. 3,1999) (on tile with Opinion Committee). We
concur.

         You do not indicate by what authority the benefits you describe are offered. Assuming that
they may be offered, they cannot be denied to students whose absences were excused under section
25.087(b) and who have successfully completed any missed work within the “reasonable time”
permitted them under the statute, for two reasons. First, such students “may not be penalized.” The
denial of a benefit can, as your question suggests, reasonably be characterized as a penalty. Second,
while it might be possible to argue that students with absences excused under section 25.087(b) have
not been penalized but have simply failed to qualify for a benefit, this argument fails in the light of
the statutory provision that, when the student satisfactorily completes the missed work, “the day of
absence shall be counted as a day of compulsory attendance.” On successful completion of the
missed work, then, the student is in effect to be treated as not having been absent. Therefore, the
denial ofsome special benefit accorded solelyon the basis of attendance would in that circumstance
be an impermissible penalty because the whole basis of the denial would be the now-expunged
 absence.




        ‘House Bill 217, enacted by the 76th Legislahm and effective beginning with the 1999-2000 school year,
mnwes   from section 25.087(b) the requirement that the parent provide a written request for the absence. See Act of
May 25, 1999,76th Leg., R.S., H.B. 217, g 1 (to be codified at TEX. EDUCCODE ANN. g 25.087(b)).
The Honorable Jeff Wentworth       - Page 3   (X-0099)




                                        SUMMARY

                      Students whose absences are excused pursuant to section
              25.087(b) of the Education Code and who successfully complete the
              missed work within the reasonable time afforded them by the statute
              may not be deprived of a benefit based on “perfect attendance.”




                                              JOHN     CORNYN
                                              Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
