                                ATTORNEY            GENERAL           OF    TEXAS
                                             GREG         ABBOTT




                                                 March 27,2006



The Honorable Bill Hill                                    Opinion No. GA-041 7
Dallas County District Attorney
Frank Crowley Courts Building                              Re: Construction of section 25.095 1 of the Texas
133 North Industrial Boulevard, LB 19                      Education Code, under which a school district
Dallas, Texas 75207-4399                                   may or must tile a complaint or referral with a
                                                           court alleging that a student has failed to attend
                                                           school as required by law (RQ-0400-GA)


Dear Mr. Hill:

         You ask three questions about the proper construction of section 25.0951 of the Education
Code, under which a school district may or must rile a complaint or referral with a court allegingthat
a student has failed to attend school as required by law.’ See TEX. EDUC. CODE ANN. 5 25.0951(a)
(Vernon Supp. 2005). Section 25.095 1 was amended during the Seventy-ninth Regular Legislative
Session, and your questions center upon these 2005 amendments. See Request Letter, supra note
1, at 1; see also Act of May 27,2005,79th     Leg., R.S., ch. 949, 5 37,2005 Tex. Gen. Laws 3198,
3211-12.

I.      Statutory Compulsorv Attendance Laws

        Generally, under section 25.085 of the Education Code, a child between the ages of six and
eighteen must attend school “each school day for the entire period the program of instruction
is provided.” TEX. EDUC. CODE ANN. 3 25.085(a) (Vernon Supp. 2005). But see id. $$25.086
(“Exemptions”). An individual who is required to attend school under section 25.085 commits an
offense if he or she “fails to attend school on 10 or more days or parts of days within a six-month
period inthe same school year or on three or more days or parts of days within a four-week period.”
Id. $25.094(a).’ A student accused of committing the offense may raise affirmative defenses under


         ‘SeeLetter from Honorable Bill Hill, Dallas County District Attorney, to Honorable Greg Abbott, Attorney
General &Texas (Sept. 28,2005) (on tile with the Opinion Committee, also availableaf http://www.oag.state.tx.us)
[hereinafterRequest Letter].

          *Aschool district must notify a student’sparent or guardian“in writing at the beginning ofthe school year that
if the student is absent from school on 10or more days or parts of days within a six-monthperiod in the same schoolyear
or on three or more days or parts of days within a four-weekperiod”the student may be prosecuted for failing to attend
school as requiredby law. TEX.ENC. CODE ANN. 9 25.095(a) (Vernon Supp. 2005); see also id.5 25.095(d)(defming
                                                                                                           (continued...)
The Honorable Bill Hill - Page 2                    (GA-0417)




section 25.094(f) or (g) if a school official or a court excused the absence or the absence was
involuntary, and the student bears the burden of proving an affirmative defense by a preponderance
of the evidence. See id. 5 25.094(f)-(g). A school district may excuse a student “for temporary
absence resulting from any cause acceptable to the teacher, principal, or superintendent of the school
in which the person is enrolled.” Id. 5 25.087(a). And a school district must excuse a student for
temporary absences resulting from appointments with health care professionals if the student
commences classes or returns to school on the same day of the appointment and for religious holy
days. Id. 5 25.087(b).

        Section 25.0951, the subject of your inquiry, describes a school district’s duty to tile a
complaint or referral with a court for a student’s failure to attend school. The 2005 additions to the
statute are italicized:

                        (a) 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 oftke
                 student’s last absence:

                                (1) tile a complaint against the student or the student’s
                          parent or both in a county, justice, or municipal court for [the
                          parent’s contributing to nonattendance or the student’s failure
                          to attend school], as appropriate, or refer the student to a
                          juvenile court in a county with a population of less than
                           100,000 for [failure to attend school]; or

                               (2) refer the student to a juvenile court for conduct
                          indicating a need for supervision under Section 51.03(b)(2),
                          Family Code [failure to attend school].

                         (b) If a student fails to attend school without excuse on three
                 or more days or parts of days within a four-week period but does not
                 fail to attend school for the time described by Subsection (a), the
                 school district may:

                               (1) file a complaint against the student or the student’s
                          parent or both     or refer the student to a juvenile court  .;
                          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.



“parent”to include “a person standing in parental relation”). lfthe student is absent “without excuse on three days
or parts of days within a four-week period,” the school district must notify the student’s parent of the absences and
request a conference, among other things. Id. 5 25.095(b).
The Honorable Bill Hill - ~Page 3               (GA-0417)




                       (c) In this section, “parent” includes a person standing in
               parental relation.

                        (d) A court shall dismiss a complaint or referral made by a
               school district under this section that is not made in compliance with
               this section.

Id. 9 25.0951; Act of May 27,2005,79thLeg.,      R.S., ch. 949, 5 37, sec. 25.0951,2005 Tex. Gen.
Laws 3 198,3211-12.    In a proceeding for failure to attend school, a court is directed, “except as
otherwise provided by this chapter,” to “use the procedures and exercise the powers authorized by
Chapter 45, Code of Criminal Procedure.” TEx. EDUC. CODEANN. 5 25.0952 (Vernon Supp. 2005).

II.     Analvsis

       A.       Seven-Day Filing Deadline

                   You suggest that Dallas County (the “County”) and the Dallas Independent School
D&r& (the “DISD”) disagree as to the interpretation of section 25.0951(a), requiring a school
district to tile a complaint “within seven school days of the student’s last absence.” Id. 5 25,0951(a);
see Request Letter, supa note 1, at 7-8. “The County,” you inform us, “believes [that the 2005
amendments] made the statute ambiguous               because it is unclear about how to compute the
deadline.” Request Letter, supra note 1, at 7. “The County believes that the correct interpretation
     requires a school district to file a case within 7 days after the occurrence of a 10th unexcused
absence within 6 months. If DISD does not tile the case within 7 days after the 10th unexcused
absence, then”~the court must dismiss the case. Id. You further state that, under the County’s
interpretation, the statutory phrase “or more” (“If a student fails to attend school without excuse on
10 or more days        .“) “is surplusage and merely means that after the 10th unexcused absence, more
absences may accrue after the school district files a case within 7 days of the 10th unexcused
absence.” Id. at 8; see TEX. EDUC. CODEANN. § 25.095 l(a) Vernon Supp. 2005). You summarize
DISD’s position, which you suggest is contrary to the County’s:

                DISD contends that the bill does not require them to file the case
                within 7 days after the 10th absence. DISD reads the new language
                of [section] 25.095 1(a) as meaning that they can file a case 7 days
                after the 10th or even. the 50th unexcused absence because it states
                that a case can be filed if “a student fails to attend school without
                excuse on 10 or more days.[“]

Request Letter, supra note 1, at 8. DISD, however, states its position as follows:

                DISD’s position is that the accumulation of 10 absences upon the
                determination that the absences are unexcused for purposes of the
                compulsory attendance law triggers the deadline. The fact is that the
                legislation,  was intended to provide for a reasonable time in which
                the full scope of the legislative actions throughout Chapter 25 of
The Honorable Bill Hill - Page 4                    (GA-0417)




                the Education Code be considered. Otherwise all the precautions
                included in Chapter 25 to insure a fair assessment of the student’s
                circumstances and reasons for absences and to avoid groundless
                complaints    and prosecutions    are without meaning or effect.
                Investigations into the causes of the absences must take place?

In DISD’s view, the statute “provide[s] a starting point for a school district to consider tiling
charges” for failure to attend school, i.e., “when a student fails to attend school without excuse.”
DISD Brief, supra note 3, at 5.

         Section 25.095 1(a) expressly requires a school district to file a complaint against a student
or to refer the child to a juvenile court “within seven school days ofthe student’s last absence.” TEX.
EDUC. CODE ANN. $25.095 l(a) (Vernon Supp. 2005). The phrase “student’s last absence” refers
back to subsection (a)‘s opening clause, “[i]f a student fails to attend school without excuse on 10
or more days          within a six-month period in the same school year.” Id. On its face, section
25,0951(a) specifies that the absences must be unexcused. As DISD argues, a school district may
need to conduct fact-finding investigations into whether the absences were unexcused.             In our
opinion, however, a school district has only seven school days to investigate and file a complaint or
referral if one is warranted. If a student disputes that one or more absences were unexcused, the
student has the burden of raising an affirmative defense under section 25.094(f) or (g) in the
proceeding that has been initiated. A school district’s failure to tile a complaint or referral within
seven school days of the student’s “last absence” leads to dismissal under subsection (d).

         Additionally, despite the phrase “or more,” ten unexcused absences by a student triggers the
school district’s obligation to file a complaint or referral within seven school days.. The phrase “or
more” was originally adopted in 1975, when the legislature inserted it into that section ofthe Family
Code that describes conduct indicating a need for supervision to include “the absence of a child on
 10 or more days        within a six-month period in the same school year or on three or more days
      withm a four-week period from school.” TEX. FAM. CODE ANN. 3 51.03(b) (Vernon Supp.
i&5); see Act of May 19, 1975,64th Leg., R.S., ch. 693, 3 3, 1975 Tex. Gen. Laws 2152,2153.
Nothing in the 1975 amendment’s legislative history elucidates the legislature’s intent in describing
a student’s unexcused voluntary absence on “10 ormore days or parts of days within a six-month
period,” We presume that the legislature has carried this language into Education Code provisions
related to the failure to attend school, including section 25 .Cl95l(a), although the legislature inserted
the requirement that the ten days occur within the same school year in 2001. See Act of May 27,
2001,77thLeg.,R.S.,      ch. 1514,§$4-6,11,2001      Tex. Gen. Laws 5396,5399-5401,5407          (inserting
the phrase “in the same school year” in Education Code sections 25.094(2), .095(a), and Family
Code section 51.03(b)(2) and adopting Education Code section 25.0951). In his treatise on Texas
juvenile law, the late Dr. Robert 0. Dawson, explicating the failure-to-attend-school     statutes in 2004,
 indicated that the 2001 amendments did not affect the number of absences required for the offense:



        ‘Letterfrom Chris G. Elizalde,Walsh,Anderson,Brown,Schulz & Aldridge,P.C., to HonorableGregAbbott,
Attorney General of Texas, at 4 (Nov. 16,2005) (footnote deleted) (on file with the Opinion Committee) [hereinafter
DISD Brie&
The Honorable Bill Hill - Page 5                     (GA-0417)




~“Thenumber of absences required for the offense remains the same: 3 within a 4 week period or 10
within a 6 month period.“4

         In our opinion, the phrase “or more” is not surplusage but reflects the fact that unexcused
absences may occur while the school district investigates the initial ten absences and files a
complaint or referral. Under the statute, the fact that more than ten unexcused absences have
occurred does not nullify the school district’s complaint or referral. But a school district’s failure
to file a complaint or referral within seven days of the tenth unexcused absence inevitably leads to
the complaint’s or referral’s dismissal.

        This conclusion comports with the legislative intent. We understand that members of the
Seventy-ninth Legislature wanted to impose a filing deadline on school districts so that a student
would have time to make up missed work:

                 [The bill] would give school districts a deadline for filing          .
                 complaints [for failure to attend school] to ensure that courts were
                 notified about a truant in a timely manner. Sometimes a school
                 district may wait so long to file one of these complaints that
                 appropriate action cannot be taken before a school year ends, by
                 which time the child would have no hope of making up a semester’s
                 worth of work. Filing these complaints within [seven] days should
                 not be burdensome on school districts, and the issue of [failure to
                 attend school] is sufficiently important to warrtit this requirement.

HOUSERES. ORG., HOUSE Corn. ON JWENILE JUSTICEANDFAMILYISSUES,BILL ANALYSIS,Tex.
C.S.H.B. ,1575, 79th Leg., R.S. 10 (2005).5 Our reading of the statute effectuates the articulated
desire that a school district file complaints or referrals for a student’s failure to attend school in a
timely manner, allowing a student time to complete his or her school work. Our reading also is
consistent with the legislature’s determination that failure to attend school is important enough to
require school districts to file complaints and referrals within seven school days ofthe tenth absence.

        B.       Dismissal With or Without Prejudice

                 You ask second whether a dismissal under section 25.0951(d) is with or without
prejudice,   “and if it is dismissed without prejudice, can the school district immediately re-file the


        ‘DR. ROBERT 0. DAWSON, Terns JUVENILELAW486 (Texas Juvenile Probation Commission, 6th ed. 2004)
[hereinafter TEXAS JUVENILELAW].

         ‘Cf also DR. ROBERT0. DAWSON, LEGISLATIVEUPDATE, JUVENILELAWINSTITUTE, 18th Annual Juvenile Law
Conference, Proposed LegislativeChanges, 79th Texas Legislature33 (Feb. 2005) (commentaryregarding Education
Code section 25.0951) (“It is    clear there are enough districts deliberatelyignoringthe prompt filingrequirementto
necessitate imposing a criminal punishment for noncompliance.“), availnble at http:l/juvenilelaw.org/Articles/2005/
Juvenile%20Law%20Conference/DawsonLegislativeUpdate.pdf            (last visited Mar. 21, 2006); TEXAS JUVENILELAW,
supra note 4, at 486 (“In2001,the legislatureaddressedthe problem that wme schoolshave unreasonablydelayedfiling
Failure to Attend School cases. Some districts do not file cases until the end of the semester when they dump a large
number on the court system at a time when very little constructivework with the students is possible.“).
The Honorable Bill Hill - Page 6                (GA-0417)




case and simply add additional absences to its petition.” Request Letter, sugra note 1, at 1. Dallas
County believes that because “the Legislature did not include the words ‘with prejudice’ [in section
25.0951(d)], a case~dismissed under this statute should be without prejudice” and the school district
should be able to refile the case. Id. at 9. DISD agrees “that if a case is dismissed for non-
compliance with the statute, it should be without prejudice.” See DISD Brief, supra note 3, at 6.
The Texas Municipal Courts Education Center, which submitted a brief, disagrees, citing the
dictionary definition of the term “dismiss” and criminal provisions in chapter 45 of the Code of
Criminal Procedure, which expressly apply in a proceeding for failure to attend school6 See TEX.
EDUC. CODE ANN. 5 25.0952 (Vernon Supp. 2005).

         Section 25.095 1 does not specify whether a complaint or referral dismissed under subsection
(d) is dismissed with or without prejudice. See id. 5 25.095 l(d). Nor does section 45.054 of the
Code of Criminal Procedure, which provides procedures specific to proceedings for failure to attend
school. See TEx. CODE Cm. PROC. ANN. art. 45.054 (Vernon Supp. 2005).

         We construe subsection (a) to prohibit a school district from refiling the same complaint.
A school district must file a complaint or referral “within seven school days” of determining that the
student has failed to attend school on “10 or more days or parts of days” without excuse. TEX. EDUC.
CODE ANN. 5 25,0951(a) (Vernon Supp. 2005). Failure to file a complaint or referral within seven
days leads to an automatic dismissal. See id. 3 25,0951(d). If a complaint or referral is dismissed
for the school district’s failure to timely file, any subsequent refiling of the complaint based upon
the same ten unexcused absences also must be dismissed for untimeliness. If the student has failed
to attend school without excuse since the original complaint was tiled, however, the statute can be
read to require the school district to file a new complaint or referral within seven school days of the
latest absence that lists the latest absence as well as some or all of the absences listed in the original
complaint.

        C.      Complaint or Referral Filed Under Education Code Section 25.0951(b)

                 You ask finally whether a school district may file a case under section 25,0951(b),
which authorizes (but does not require) a school district to file a complaint or referral against a
student who has failed “to attend school without excuse on three or more days.       within a four-week
period,” id. 5 25.095 1(b), “even if the student has accumulated 10 or more unexcused absences by
the time the school district is ready to,lile the case.” Request Letter, supra note 1, at 1. You suggest
that in such a circumstance the school district may not file a complaint or referral under subsection
(b) but must instead file a complaint or referral under subsection (a). See id. DISD suggests, on the
other hand, that subsection (b)‘s “permissive language” authorizes a district to file “whenever the
student fails to attend school without excuse for three or more days or parts of days within a four
week period, even when tiling~occurs later.” DISD Brief, supra note 3, at 7.




       ‘SeeLetterfrom RyanKellusTurner,GeneralCounsel,Texas MunicipalCourtsEducationCenter,to Honorable
Greg Abbott, Attorney General ofTexas, at 6 (Nov. IO,2005) (on file with the Opinion Committee).
The Honorable Bill Hill - Page 7                (GA-0417)




         Again, we resolve this issue by consulting the statute’s plain language. Subsection (b)
authorizes a school district to tile a complaint or referral against a student who has failed “to attend
school without excuse on three or more days or parts of days within a four-week period but [has]
notfail[ed] to attend school for the time described by Subsection (a).” T&x. EDUC.CODE ANN.
5 25.095 I@) (Vernon Supp. 2005) (emphasis added). The requirement that a complaint or referral
be filed within seven school days of the last absence does not apply to a tiling under subsection (b),
and a school district might, therefore, delay the tiling for some time. But, in our opinion, the
italicized language requires that when the number of days a student has failed to attend school has
increased from three days within a four-week period, for which a school district may tile a complaint
or referral under subsection (b), to ten days within a six-month period, for which a school district
must tile a complaint or referral under subsection (a), the,school district must tile the complaint or
referral under subsection (a). At this point, the student has allegedly failed to attend school “for the
time described by Subsection (a): and subsection (b) is not available to the school district. Id.
The Honorable Bill Hill - Page 8            (GA-0417)




                                      SUMMARY

                      A school district must tile a complaint or referral against
              a student for failure to attend school under section 250951(a) of
              the Education Code within seven school days of the student’s
              tenth unexcused absence. See TEX. EDUC. CODE ANN. 5 25.0951(a)
              (Vernon Supp. 2005). Failure to tile within seven school days ofthe
              tenth unexcused absence leads to the mandatory dismissal of the
              complaint or referral by a court. A student who disputes that one or
              more of the absences were unexcused bears the burden of raising the
              issue as an affirmative defense under Education Code section
              25.094(f) or(g).

                      A complaint or referral dismissed for the school district’s
              failure to tile within seven days of determining that a student has
              failed to attend school on ten unexcused occasions may not be filed
              again. A school district may, however, tile a new complaint with an
              unexcused absence that occurred subsequent to the absences noted on
              the original complaint, but it must do so within seven days of the
              latest unexcused absence.

                       A school district may not file a complaint or referral under
               section 25.0951(b) if the student has accumulated ten unexcused
               absences by the time the school district is ready to tile the case.




BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
