   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN CORNYN




                                             July 11,200l



The Honorable Royce West                             Opinion No. JC-0398
Chair, Jurisprudence Committee
Texas State Senate                                   Re: Whether section 25.092 of the Education
P.O. Box 12068                                       Code, which relates to minimum attendance for
Austin, Texas 787 1 l-2068                           class credit, is applicable to a student who is
                                                     exempt from compulsory attendance under section
                                                     25.086 (RQ-0360-JC)


Dear Senator West:

         You have requested our opinion regarding the relationship between section 25.086 of the
Education Code, which relates to excused absences from compulsory school attendance for medical
reasons, and section 25.092, which provides that a student may not be given credit for a class unless
he is in attendance for at least ninety percent of the days the class is offered. See TEX. EDUC. CODE
ANN. $5 25.086, .092 (Vernon Supp. 2001). You ask how excused absences for medical reasons
under section 25.086 are to be counted in computing the ninety percent attendance-for-class-credit
requirement under section 25.092. For the reasons set forth below, we conclude that a student, in
order to receive credit under section 25.092, is required actually to attend class for the requisite
period regardless of whether his absences are excused or unexcused.

          Subsection 25.085(a) of the Education Code states that “[a] child who is required to attend
school under this section shall attend school each school day for the entire period the program of
instruction is provided.”    Id. 5 25.085(a).   Subsection (b) declares that, “[ulnless specifically
exempted by Section 25.086, a child who is at least six years of age, or who is younger than six years
of age and has previously been enrolled in first grade, and who has not yet reached the child’s 18th
birthday shall attend school.” Id. 5 25.085(b).         Section 25.086 exempts a child “from the
requirements of compulsory school attendance,” whenever the child:

               has a physical or mental condition of a temporary and remediable
               nature that makes the child’s attendance infeasible and holds a
               certificate from a qualified physician specifying the temporary
               condition,   indicating the treatment prescribed to remedy the
               temporary condition, and covering the anticipated period of the
               child’s absence from school for the purpose of receiving and
               recuperating fi-om that remedial treatment;

Id. 5 25.086(a)(3). Section 25.087 deals with excused absences. A person who is “required to attend
school,” and thus not exempt from attendance under section 25.086, “may be excused for temporary
absence resulting from any cause acceptable to the teacher, principal, or superintendent of the school
The Honorable Royce West - Page 2                   (JC-0398)




in which the person is enrolled.” Id. 5 25.087(a). Subsection (b) requires a school district to excuse
a student from attending school “for the purpose of observing religious holy days, including
traveling for that purpose.” Id. 8 25.087(b). It also directs a district to:

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

Id.

        These statutes set forth the compulsory school attendance requirements, note exemptions
from those requirements in specific instances, and provide for two kinds of excused absences-
permissive and mandatory. The statutes describe the minimum standards with which a person must
comply if he is to avoid committing an offense under section 25.094 for “failure to attend school,”
a class C misdemeanor, and with which parents must comply to avoid violating section 25.093,
which makes it an offense for a parent to thwart the compulsory attendance law, also a class C
misdemeanor.    See id. $9 25.093, .094.

         Subsection 25.092(a), on the other hand, has an entirely different purpose from that of section
25.086. It provides that, “[elxcept as provided by this section, a student may not be given credit for
a class unless the student is in attendance for at least 90 percent of the days the class is offered.” Id.
8 25.092(a). This statute furnishes a clear contrast with the compulsory attendance laws. Unlike
those statutes, it does not contain exemptions or make allowance for excused absences. Rather, it
states unequivocally that, as a prerequisite for receiving class credit, a student must attend class “for
at least 90 percent of the days the class is offered.” See id. On the other hand, section 25.092 makes
allowance for extenuating circumstances:

                         (b) The board of trustees of each school district shall appoint
                one or more attendance committees to hear petitions for class credit
                by students who are in attendance fewer than the number of days
                required under Subsection (a). Classroom teachers shall comprise a
                majority of the membership of the committee. A committee may give
                class credit to a student because of extenuating circumstances. Each
                board of trustees shall establish guidelines to determine what
                constitutes extenuating     circumstances   and shall adopt policies
                establishing alternative ways for students to make up work or regain
The Honorable Royce West - Page 3                     (JC-0398)




                   credit lost because of absences. The alternative ways must include at
                   least one option that does not require a student to pay a fee authorized
                   under Section ll.l58(a)( 15).

Id. 9 25.092(b).     Furthermore,   subsection (d) declares:

                            (d) If a student is denied credit for a class by an attendance
                   committee, the student may appeal the decision to the board of
                   trustees. The decision of the board may be appealed by trial de novo
                   to the district court of the county in which the school district’s central
                   administrative office is located.

Id. 8 25.092(d).

         The substance of the section 25.092 requirement has been apart of the Education Code since
1984. In its first incarnation as House Bill 72, it provided that “[a] student may not be given credit
for a class if the student has more than five days of unexcused absence during a semester.” Act of
June 30, 1984,68th Leg., 2d C.S., ch. 28, § IV-El, Part D, sec. 1, 1984 Tex. Gen. Laws 117, 167
(amending chapter 2 1, Education Code). In 1989, the legislature amended the statute in Senate Bill
1112 to exclude any reference to “unexcused absence.” The provision adopted that year states:
“Except as provided by this section, a . . . student may not be given credit for a class unless the
student is in attendancefor at least 80 days . . . during a semester.” Act of May 22, 1989,71 st Leg.,
R.S., ch. 353, 5 1, 1989 Tex. Gen. Laws 1430 (emphasis added). The bill analysis to Senate Bill
1112, which enacted this version, declares in relevant part:

                           H.B. 72 established strict guidelines for student attendance,
                   disallowing credit for a class if the student has more than five days of
                   unexcused absences in a semester. The Joint Interim Committee on
                   High School Dropouts, the Senate Select Committee on the Juvenile
                   Justice System, and the State Board of Education have found this
                   requirement to be punitive, and should be modified to encourage
                   students to remain in school.

                           Many districts have reported an increased number of excused
                   absences since H.B. 72. While the absences do not count against the
                   student for the purposes of eligibility, the student is still out of the
                   classroom, misses the instruction and must make up any assignments
                   missed. The effects are the same on the student regardless of the type
                   of absence, yet only those with unexcused absences are subject to the
                   five day limit.

                           Unexcused absences over the five day limit may also have the
                   effect of causing at risk students to become actual dropouts. Students
                   that have the academic potential for success and are satisfactorily
The Honorable   Royce West - Page 4                (JC-0398)




                passing classes may not receive credit for the courses if they have
                more than five unexcused absences. With no incentive to stay in
                school, they become prime candidates to be dropouts.

                          This legislation would require that a student attend class for
                80 days in a semester in order to receive credit, and makes no
                distinction between excused and unexcused absences. Since the
                calendars for schools call for between 86 and 89 school days, this
                would allow a student to miss between six and nine total days and
                still receive credit. Additionally, districts would be required to set up
                attendance committees that could grant credit to a student who
                attends school less than 80 days due to extenuating circumstances.
                The districts would decide how extenuating circumstances are
                defined. This wouIdprovide for a system that would teach students
                to be responsible for their absences regardless of the reason.

HOUSECOMM. ON PUBLICEDUCATION,BILL ANALYSIS,Tex. S.B. 1112, 71st Leg., R.S. (1989)
(emphasis added). The eighty-day requirement was amended in 1993 to reflect the present version
of the statute, which now states that “a student may not be given credit for a class unless the student
is in attendance for at least 90percent of the m days the class is offered.” Act of May 28, 1993,
73d Leg., R.S., ch. 347,§ 8.27, sec. 21.041,1993 Tex. Gen. Laws 1479,1552 (emphasis in original).

         Legislative history thus makes clear that at one time excused absences had to be factored in
when computing the minimum attendance for class credit. Since 1989, however, the legislature has
specifically removed excused absences from consideration in making this determination.         On the
other hand, any possible hardship resulting from this change has been mitigated by the “extenuating
circumstances” provision of section 25.092. See TEX. EDUC.CODEANN. 5 25.092(b) (Vernon Supp.
2001).

        Finally, the Texas Education Agency is in accord with this construction of section 25.092.
A letter from the Agency’s General Counsel, David A. Anderson, dated March 8,2001, states:

                        It is the position of the Agency that the 90 percent attendance
                requirement in 5 25.092 applies regardless of whether the student is
                exempt from compulsory attendance under 4 25.086 for the period of
                the absence or whether the absence is otherwise excused by the
                school district. Therefore, the attendance committee procedure and
                the district policies under 9 25.092 apply to class credit for any
                student whose attendance since enrollment is less than 90 percent
                minimum requirement. Although the section applies regardless of the
                purpose of the absence, a district is not prevented from considering
                the reasons for absence in establishing and applying local policies
The Honorable       Royce West - Page 5                 (JC-0398)




                    regarding extenuating     circumstances    and alternative   methods     of
                    regaining credit. ’

It is well established that the “construction of a statute by an agency charged with its execution is
entitled to serious consideration so long as the construction is reasonable and does not contradict the
plain language of the statute.” Simplex Elec. Corp. v. Holcomb, 949 S.W.2d 446, 447 (Tex.
App.-Austin 1997, pet. denied). Thus, both legislative history and administrative construction point
irrevocably to the conclusion that the requirement of section 25.092 - that a student must attend
class for ninety percent of the days on which the class is offered in order to receive credit for the
class - is applicable without regard to whether the student is exempt from compulsory attendance
under section 25.086.




            ‘Letter from David A. Anderson, General Counsel, Texas Education Agency,   to Merri Schneider-Vogel,
Bracewell     & Patterson, L.L.P. (Mar. 8,200l) (on file with Opinion Committee).
The Honorable Royce West - Page 6                 (JC-0398)




                                        SUMMARY

                       The requirement of section 25.092 of the Education Code -
               that a student must attend class for ninety percent of the days on
               which the class is offered in order to receive credit for the class - is
               applicable without regard to whether the student is exempt from
               compulsory attendance under section 25.086.

                        Section  25.092 does, however,      make allowance        for
               extenuating circumstances.    Students who are in attendance fewer
               than the number of days required may petition for class credit before
               an attendance committee appointed by the board of trustees of a
               school district. See TEX. EDUC. CODE ANN. 8 25.092(b) (Vernon
               Supp. 2001). A student may appeal an adverse ruling of the atten-
               dance committee to the board of trustees and ultimately to a district
               court. See id. 5 25.092(d).




                                               Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
