                             QBfficeof tip Elttornep @eneral
                                           &ate of Z&exae
DAN MORALES
 ATTORNEY
       CENERAL                                January 28, 1993

      Honorable John B. Holmes, Jr.                    Opinion No. DM-200
      Harris County District Attorney
      201 Fannin, Suite 200                            Re: Whether a juvenile court is required to
      Houston, Texas 77002-1901                        hold a hearing prior to waiving its exclusive
                                                       original jurisdiction in a truancy case and
                                                       transferring the case to a justice of the peace
                                                       pursuant to section 54.021 of the Family
                                                       Code, and related questions (RQ-424)

      Dear Mr. Holmes:

              You have asked three questions regarding truancy1 cases. Specifically, you ask the
      following:

                 1.   Is a juvenile court required to hold a hearing prior to waiving its
                      exclusive original jurisdiction in a truancy case and transferring
                      the csse to a justice of the peace under Texas Family Code
                      3 54.0211

                2.    Is a child entitled to appointed counsel in a truancy case before a
                      justice of the peace?

                3.    Is a tardiness to class an “unexcused voluntary absence” under
                      Texas Family Code 3 51.03(b)(2) and Texas Education Code
                      5 4.25?

             Title 3 of the Family Code, which contains the sections of the Family Code about
     which you inquire, pertains to delinquent children and children in need of supervision
     Section 51.03(a) defines “delinquent conduct” as an act a child2 commits that (1) is other
     than a tratIIc offense, but that violates a state penal law punishable by imprisonment or by
     continement in jail; or (2) violates, with certain exceptions, a reasonable and lawful order




              %or purposesof title 3 of the Family Code,a “child”is a personwho is “(A) ten yeam of age or
     olderand w&r 17 yearsof age: or (El) seventeenyears of age or olderand under 18 years of age who is
     alleged or found to have engaged in delinquentconductor wndti indicatinga need for supervisionas a
     rmdt of acts committedbeforebecoming 17 yearsof age.” Fam. Gxie 8 51.02(l).


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Honorable JohnB. Holmes, Jr. - Page 2           (DM-200)




that a juvenile court entered pursuant to section 54.04 or 54.05 of the Family Code.’ A
child who engages in conduct indicating a need for supetvision, as section 5 1.03(b) detines
the team, may engage in one of five types of conduct, including truancy, which section
5 1.03(b)(2) defines as “the unexcused vohmtary absence of a child on 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 t?om school without the consent of [the child’s] parents.”

        F%muant to section 54.021 of the Family Code, juvenile courts, which have
excltive original jurisdiction of sll title 3 cases, may waive jurisdiction in truancy cases.
Section 54.021 of the Family Code provides as follows:

                 (a) The juvenile court may waive its exclusive original
           jurisdiction and transfer a child to an appropriate justice court for
           disposition in the manner provided by Subsection (b) of this section if
           the child is alleged to have engaged in conduct descrii     in Section
            5 1.03(b)(2) of this code.

                @) A justice court may exercise jurisdiction over a child alleged
           to have engaged in conduct indicating a need for supervision by
           engaging in conduct described in Section 5 1.03@)(Z) in a case where
           the juvenile court has waived its original jurisdiction under this
           section.

               (c) On a Sndmg that a child has engaged in conduct described
           by Section 51.03(b)(2), the justice court shsll enter an order
           appropriate to the nature of the conduct.

                (d) On a tindmg by the justice court that the child has engaged
           in truant conduct and that the conduct is of a recurrent nature, the
           court may enter an order that includes one or more of the following
           provisions requiring that:

                     (1) the child attend a preparatory class for the high school
                equivalency examMion          provided under Section 11.35,
                Education Code, if the court determines that the child is too old
                to do well in a formal classroom environment;


         ‘Section 54.04 of the Family Code omamu the coldua of I disposition hearing, which a
jwcnilecourt~tobold~~,,,~~~tothcadjudicationhering.                                        Atan
adjudicationharing,ajwcnilccourt,gmrallyoittingwithajury,determineswhcthaachildhas
engaged in delhqmt omdoct or wndoet indicatinga need for supenision. Fem. C&e 5 54.03(a), (c).
In a sense,the dispositionis padel to the sentencingporlion of aimind pmccedings. At a disposition
bearing,thccourtfirstmustdetcrminew6ethcrthchildisin~oi~habilitetion,orwhdher
dispositionis ncccmly toprotectthepublicorthechild Id.$S4.04@). Ifthcamtsofind~,thccMlrt
may orde-rthe child to be placedon probationor 10k oxnrnittal tc the Texas Youth Commission. Id.
 Q54.04(d). Section 54.05 providesfor hearingsto modifydisposition.


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Honorable John B. Holmes, Jr. - Page 3           (~2-200)




                     (2) the child attend a special program that the court
                determines to be in the best interests of the child including an
                alcohol and drug abuse program;

                    (3) the child and the child’s parents, managing conservator,
                or guardian attend a class for students at risk of dropping out of
                school designed for both the child and the child’s parents,
                managing conservator, or guardian;

                     (4) the child complete           ressonable   wmmunity     service
                requirements; or

                     (5) the child’s driver’s license be suspended in the manner
                provided by Section 54.042 of this code.
The legislature added section 54.021 to the Family Code in 1991. See Acts 1991, 72d
Leg., ch. 741, $ 1.

         You first ask us to determine whether section 54.021 requires a juvenile court to
hold a hearing before the court waives its exclusive original jurisdiction in a truancy case
and transfers the case to a justice court. You base your question on a comparison of
sections 54.02 and 54.021 of the Family Code. Section 54.02 authorizes a court to waive
its exclusive originsJ jurisdiction and transfer a child to the appropriate district or crhnmal
district court for criminal proceedings in certain instances. Prior to transferring a case to a
district or criminal district court, however, the court must conduct a hearing to consider
such a transfer. Fam. Code § 54.02(c). Section 54.02(j), (k). (0 also authorize a juvenile
court to waive its exclusive original jurisdiction and transfer a person over the age of 18 to
the appropriate district or criminal district wurt for criminal proceedings if certain
conditions are met and following a hearing to consider waiver of jurisdiction. Jn contrast
to the explicit instructions section 54.02 provides a juvenile court for conducting a hearing
to consider waiver of jurisdiction, section 54.021 contains no mention of such a hearing.
On its face, therefore, section 54.021 does not require a juvenile court to hold a hearing.4

        %e hearing Won 54.02 raptim is eeasislent with the decision d the United States Supreme
Court in Kent v. Unifed Slales, 383 U.S. 541 (1966). In Kent.a 16 year old was armstedin wnnection
withchargesofhoosebreaking,robbory,andmpe. Id.atS44. Becaoseofhisage,the16yearoldwas
subjectto the exchtsivo origioaljmisdiction of the Diskt of CMtmbii Juvenile Comt, id. at 543; the
Juveoile Cmxt, however, without holding a hearing tmnsfermdthe case to the United States District
Coort for the District of Columbia. Id. at 546. The Supreme Court found sewtal “special rights and
immmities” that accompanythe exclusivejurisdictionof thejuvenile court,

                 [The child] is, as speciEedby the stab& shieldedfrom publicity. He may
           be confined, but with rareexceptionshe may not be jailed along with adolts. He
           maybe&tained,butonlyuntilheis2lyearsofagc.          Theawtisadmonishedby
           the statuteto give preferenceto retainingthe child in the costodyof his pamtts
           “‘~esshiswclfanaadthesafctyendpmtstion~thc~~ccannotk
           adequatelysafeguardedwithout. . mmoval.” l%e child is pmtected against
           consequences of adult conviction soch as the loss of civil rights, the ose of

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Honorable John B. Holmes, Jr. - Page 4                 (DM-200)




        Next, you ask us to determine whether a child has a right to an appointed wunsel
in a truancy case that is before the justice of the peace. You wntend that a child has no
such right. We disagree.

         The United States Supreme Court, in In re Guulf, 387 U.S. 1 (1967). concluded
that the due process clause of the fourteenth smendment requires a juvenile court to notify
a child and the child’s parents that the child has a right to be represented by wunsel in all
prowedmgs to determine delinquency which may result in the child’s wmmitment to an
institution in which the juvenile’s geedom is curtailed. 387 U.S. at 41. Jfthe child or the
child’s parents are unable to afford counsel, the court is to appoint an attorney to represent
the child. Id. In title 3 of the Family Code, the Texas Legislature has gone beyond the
requirements of the federal wnstitution.       R. DAWSON, TEXAS JWENUE LAW: hl
ANALYSIS OF JwMILE STATUTORYAND CASE LAW FOR TExls JUVENILEJusncE
OFFICJALS43 (2d ed. 1988). Significantly, section 51.10(a) extends the wnstitutional
requirements by providing a child with a right to representation by wunsel at every stage
of all possible proceedings under title 3. J See id.; Dawson, Tide 3. Delinquent Chi&en


(footnotecontimled)
             adjudicationagainst him in subscqucntm,              and disqualification for
             plblic employment
Id. at 556-57. Became the juvenile court’s waiver ofjurisdictionmeaus @atthe child loses these spell
rights and immunities, the Supmmo Court tameludedthat the wsiwr of jurisdiction is a krkally
important”action that determinesvitally importantrights of a juvenile. Id. at 556, ocmrd ~44.~
St&, 520 S.W.Zd 878, 880 (Tex. Cii. App.-San Antonio 1975, no writ). Accordingly,the child :
mtitledtoahtaring,whichmus(JatisfytherequinmcntJotdueproccssandfair              mammt     Kent, 383
U.S. at 557.56042.

        We found no legislativehistoryindicatingwhy the legislaturedid not requirea juverdleanul to
hold a hearing prior to transferringits exclusivejurisdictionto a justice anut in a tnmncy pruxeding.
Fceibly, the legislaturedeterminedthat the tramfor0fjmisdiUion to the justice courtdoe3 not implicate
thelossofthc”~righuandimmunitisnthattbcSuprrmcCourtf~inK~nr,aadthatabearingis
tmnecssary. You have not askedand thereforewe have not mnsidex4l. whether section 54.021 of the
Family Code is amstitutional.



                (a) A child may be repmsentedby an attorney at every stage of
            proaxdhgs uodcrthis title, including:
                            &ii of eight kinds of pmceedings]
                  @) Thcchild’srighttoicpresctntationbyanatt~sballnotkwaivcd
            in:
                            @A of five kinds ofprooxdings]
                     ....
                (d) The court shall ordera child’s parentor other pexson responsiile for
            supportof the child to employan attomeyto representthe child, il:
                            (1)thechildisootrepresentedbymattorney,


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Honorable JohnB. Holmes, Jr. - Page 5               (~~-200)




und Chi&en in Need of Supervision, 21 TEX. TECH L. REV. 1747, 1772 (1990).
Because a truancy proceeding is a proceeding under title 3, section 5 1.10 provides a child
who is accused of engaging in truant conduct with a right to representation by an attorney.

        If the child’s parents are financially unable to eznploy an attorney, section 5 1.10(f)
require4 the court to appoint wunsel. See id You argue that neither section 51.10 nor
section 54.021 of the Family Code expressly authorize a justice of the peace to appoint an
attorney for a child who is entitled to counsel under section 51.10(f). However, we
understand that generally, in juvenile proceedings, the juvenile court appoints an attorney
for a juvenile upon learning that the child is entitled to counsel. lhe appointed attorney
then m-presents the child at alI proceedings in the case. Thus, the justice of the peace
rarely will need to appoint an attorney. This is wnsistent with the scheme the legislature
hss devised for waiving a child’s right to wunsel: a child may waive the right to wunsel,
but only in accordance with section 5 1.09, which requires the child’s attorney to join in the
waiver of an attorney. Fam. Code 8 5 1.10(b); Dawson, supra at 1772. Consequently, an
indigent child may not waive the right to representation by an attorney in justice court
unless the child already has an attorney, appointed earlier in the pmceedings.6




(footnotecontinued)
                 support ofthe child is finahaiiy   ableto employan attorneyto repment
                 thCChOd;iUId

                      (3)the child’sright to representation
                                                          by sn attoq,
                      (A) hssnotbeenwaivedundexSection51.09ofthisanie[.]
                          ....
                 (C) The anul may enforce older6 under substaion (c) of this
            scction...hy appointing aunsel and ordering the patent or other pemn
            respoasibleforQlpport~thcchildtopayarrasonable~sfcc~dby
            emui.
                (0 ThecourtshaUappointauattorneytoqmsenttbcintemtofachild
           ontitledto tqmseatation by a0 attorney,if:
                      (1)thechildisnotrepmsentedbysnattorney;
                     (2)tbemurtdetembmthattkcMd’sparentorotherperson
                 responsiile for supportof the child is tinan&@ unableto employ an
                 attomeyto repmselltthe child; and
                      (3)the child’sright to qmsentation by an attomy:
                          (A) hssnotknwsivedmder          Section51.09oftbiswde[.]
        %I the event that a child who is entitledto sn attorneyundet section 51.10(f) has not waived the
righttoamselandisbeforethejusti~cmrtwithoutap+ted              connscl,webclicvcthattbejustieeofihe
peacehas implied authorityto appointan attomeyto representthe child. See gemmlly AttomeyGeneral
OpinionJM-977(1988).


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Honorable John B. Holmes, Jr. - Page 6        (DM-200)




        Your third question asks whether “tardiness to class” is an unexcused voluntary
absence under section 51,03(b)(2) of the Family Code. The Family Code does not define
the term “unexcused voluntary absence,” nor did we find any legislative history indicating
the specifk mesning of the term.          Jn our opinion, however, section 51.03(b)(2)
contemplates that a child is not present in the school building for a certsin period of time.
On the other hand, “tardiness to class,” as you put it, suggests that the child is present in
the school building but, for one reason or another, is late getting to a scheduled class.
Generally, therefore, tardiness to class is not an “unexcused voluntary absence” for
purposes of section 5 1.03(b)(2) of the Family Code. Of course, circumstances may arise
in which a child’s tardiness is so egregious as to wnstitute an unexcused voluntary
absence; we have no facts before us here, however.

        Section 4.25 of the Education Code authorizes a school attendance officer, see
Educ. Code 3s 21.036,21.037, to tile a lawsuit against the parent or person standing in
Iocopurentis who fails to require the child “to attend school for such periods as required
by law.” Like section 51.03(b)(2) of the Family Code, section 4.25 of the Education Code
appears to contemplate that the child is absent from the school building for a specified
period of time. Accordingly, tardiness to class generslly is not within the ambit of section
4.25. In general, then, tardiness to class does not invoke proceed@ under either section
5 1.03(b)(2) of the Family Code or section 4.25 of the Education Code.

                                   SUMMARY

                Section 54.021 of the Family Code does not require a juvenile
          wurt to hold a hearing prior to waiving its exclusive original
          jurisdiction in a case under section 51.03(b)(2) of the Family Code
          and transfening the case to a justice .of the peace. A child brought
          into wurt under section 5 1,03(b)(2) of the Family Code is entitled to
          representation by an attorney at all stages of the proceedings. Jf the
          child or the child’s parents are unable to afford wunsel, the court
          must appoint an attorney to represent the child. In general, tardiness
          to class does not invoke proceedings under either section 5 1.03@)(Z)
          of the Family Code or section 4.25 of the Education Code.




                                              DAN      MORALES
                                              Attorney General of Texss




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Honorable JohnB. Holmes, Jr. - Page 7    (DM-200)




WILL. PRYOR
Fii Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEAHICKS
special AkssktMt Attorney oetleral

MADELBDE B. JOHNSON
Chair, Opiion Committee

Prepared by KytnberlyK.Oltrogge
Assistant Attorney General




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