Sarah Orman and Cristina Blanton 2015-11-25 17:31:31
How House Bill 2398 decriminalized failure to attend school. Prior to the 84th legislative session, Texas was one of two states in which truancy was a crime. According to statistics compiled by the Texas Office of Court Administration, 57,829 cases of “failure to attend school” under Education Code Section 25.094 were filed in Texas courts and 12,073 cases were filed in municipal courts during the 2014 reporting period.1 In addition, data gathered by the OCA’s Judicial Information Section indicated that 24,224 truancy cases were filed in Dallas and Fort Bend constitutional county courts during 2014. This number represents a significant decrease from previous years, which is indicative of the Texas Legislature’s desire to chip away at criminal prosecution of truancy. SEEDS OF REFORM Philosophically, the movement to decriminalize truancy is related to recent calls to reduce criminal consequences for school-related misconduct. Both are united by the belief that, rather than acting as a deterrent, school-related criminal prosecution further alienates the young people most in need of support from public schools. Advocacy groups such as Texas Appleseed also alleged that existing truancy policies disproportionately affected low-income, minority, and disabled students.2 Texas lawmakers listened to these calls for reform. In 2011, Senate Bill 1489 required schools to adopt truancy prevention measures designed to reduce prosecution under Section 25.094.3 In order to refer a student to juvenile court, a district had to provide a statement that it had implemented the measures and that these failed to eliminate the problem.4 The district’s statement also had to specify whether the student qualified for special education.5 In 2013, SB 393 and SB 1114 required courts to dismiss complaints under Section 25.094 without the required statement.6 (The 2013 bills also significantly reduced ticketing for Class C misdemeanors related to misconduct at school.) In the interim period between the 2013 and 2015 legislative sessions, former Lt. Gov. David Dewhurst charged the Senate Committee on Jurisprudence to look at removing the offense of failure to attend school.7 The committee convened to discuss truancy reform during the months leading up to the 2015 session. Testimony before the committees yielded a clear message: decriminalize truancy, but maintain accountability for students and parents. At the start of the 84th legislative session in January 2015, lawmakers filed numerous bills to address these concerns. HOUSE BILL 2398 By the end of the 2015 session, one bill incorporated a majority of the issues that reformers wanted to address. House Bill 2398, effective September 1, 2015, made the following changes. Civil enforcement procedure for truant conduct. HB 2398 repealed Section 25.094, replacing the offense of failure to attend school with a new process of civil enforcement for truant conduct.8 A district may refer an eligible student to truancy court within 10 school days of the student’s 10th unexcused absence. Alternatively, a district may decide not to refer a student, based on the efficacy of district interventions and the best interest of the student.9 HB 2398 retained the requirement that a school provide a statement to accompany a court referral certifying that truancy prevention measures were applied and specifying whether the student is eligible for special education.10 Moreover, it increased prosecutors’ discretion in determining whether to file a petition with the truancy court and required dismissal of substantively defective complaints against students.11 Definition of truancy. HB 2398 changed the number of absences that constitute truant conduct. If a student who is subject to compulsory attendance fails to attend school without excuse 10 or more times within a six-month period in the same school year, the student becomes truant.12 A student who is absent from school without excuse three times within a four-week period is no longer considered truant for purposes of court referral; however, at this point districts are required to issue a warning notice and start implementing certain remedial actions.13 Truancy prevention measures. Perhaps the best indicator of Texas’s steady trend toward nonpunitive responses to truancy is the Legislature’s focus on prevention. Districts have been required to deter truancy and minimize the need for court involvement since 2011. However, before HB 2398, the definition and implementation of such efforts were largely left to local discretion. A school district must now impose one or more of the following measures when a student accumulates the eligible number of unexcused absences: behavior improvement plan; school-based community service; or referral to counseling, mediation, teen court, or other in-school or out-of-school services aimed at addressing the truant behavior.14 The bill also tasked the Texas Education Agency with establishing minimum standards and best practices for truancy prevention measures and addressing sanctions for failure to implement and apply these.15 Truancy prevention facilitator. HB 2398 required districts to appoint a truancy prevention facilitator or juvenile case manager to implement and evaluate truancy prevention measures.16 Ideally, the truancy prevention facilitator will be a clearinghouse of information regarding community and internal programs and services to address attendance issues as well as a point of contact with courts and law enforcement officials. Older students. In 2011, the offense of failure to attend school was limited to students at least 12 years old but under 18, leaving schools in a quandary over how to handle 18-year-old students.17 HB 2398 extended the requirement of compulsory attendance to include 18-year-old students and provided that a student between the ages of 12 to 18 is eligible to be referred to truancy court for civil processing.18 Once a student turns 19, he or she is no longer subject to compulsory attendance.19 A district may nonetheless send a warning letter and revoke the student’s voluntary enrollment after five unexcused absences in a semester, except that enrollment may not be revoked on a day when the student is physically present at school.20 Alternatively, older students may be subject to a behavior improvement plan.21 Students with special circumstances. Many people who testified before the Legislature expressed concern that students were penalized for absences related to external factors beyond their control, such as homelessness or poverty. One often-repeated story involved a pregnant student who became truant because she did not have adequate maternity clothing. In response, HB 2398 provided that schools may not refer a student to truancy court and must offer a student counseling if the school determines that the student’s truancy is the result of pregnancy, being in the state foster program, homelessness, or being the principal income earner for the family.22 Expunction of failure to attend school records. Finally, HB 2398 addressed the vestiges of failure to attend school convictions by requiring expunction of all pertinent documents. The bill requires a court, on its own motion, to order the expunction of any documents in the possession of a school district or law enforcement agency relating to the offense of failure to attend school.23 Given the volume of convictions under prior law, the process of identifying the records subject to expunction will be challenging. What the new law did not do. Notably, HB 2398 did not eliminate a judge’s ability under existing law to order truant minors to attend school, tutoring, counseling, or other special programs.24 A truancy court may also order suspension of a minor student’s driver’s license.25 The new law also left largely unaffected the potential for a parent to be convicted of contributing to nonattendance, although courts now have greater discretion to dismiss these charges.26 LOOKING AHEAD The evolution of Texas’s truancy laws demonstrates the importance of a comprehensive, positive approach to attendance enforcement. School procedures should emphasize the responsibilities that educators share with parents and law enforcement to surround wayward students with support, always making court referrals a last resort. NOTES 1). State of Tex. Judicial Branch, Annual Statistical Report for the Texas Judiciary (2014), available at http://www.txcourts.gov/media/883372/Annual-Statistical-Report-FY-2014.pdf. 2). See Tex. Appleseed, Class, Not Court: Reconsidering Texas’ Criminalization of Truancy (2015), available at https://www.texasappleseed.org/sites/default/files/TruancyReport_All_FINAL_SinglePages.pdf. 3). Tex. Educ. Code § 25.0915. 4). Tex. Educ. Code § 25.0915(b)(1). 5). Tex. Educ. Code § 25.0915(b)(2). 6). Tex. Educ. Code § 25.0915(c). 7). Tex. S. Jurisprudence Comm. Committee Overview, 83rd Leg., R.S. (2013). Legislative Reference Library of Texas, available at http://www.lrl.state.tx.us/committees/cmtesDisplay.cfm?cmteID=11454&session=83-0&from=session&passsearchparams =session=83**from=session. 8). Tex. Fam. Code § 65.003(a) defines truant conduct; subsection (b) specifies that such conduct may be prosecuted as a civil case in a truancy court. 9). Tex. Educ. Code § 25.0951(d). 10). Tex. Educ. Code § 25.0915(b)(1-2). 11). Tex. Educ. Code § 25.0951; see also Tex. Fam. Code § 65.053. 12). Tex. Fam. Code § 65.003(a). 13). Tex. Educ. Code § 25.0915(a-4), 25.095(b); see also TASB Policy FED (LEGAL). 14). Tex. Educ. Code § 25.0915(a-1). 15). For the 2015-2016 school year, TEA has indicated that it will not establish minimum standards beyond those in the statute. See Tex. Educ. Agency, Legislation passed by the 84th Texas Legislature relating to truancy and on-campus discipline (Aug. 25, 2015), available at http://tea.texas.gov/About_TEA/News_and_Multimedia/Correspondence/TAA_Letters/Legislation_passed_by_the_84th_Texas_Legislature_relating_to_truancy_and_on-campus_discipline/. 16). Tex. Educ. Code § 25.0915(d). 17). Act of May 28, 2011, 82nd Leg., R.S., ch. 1098, § 2, 2011 Tex. Gen. Laws 2837 (amended 2015) (current version at Tex. Fam. Code § 65.002(1)). 18). Tex. Fam. Code § 65.002(1), 65.003(b). 19). Tex. Educ. Code § 25.085(b). 20). Tex. Educ. Code § 25.085(e), (g). 21). Tex. Educ. Code § 25.085(h); see also TASB Policy FED (LEGAL). 22). Tex. Educ. Code § 25.0915(a-3). 23). Tex. Crim. Proc. Code art. 45.0541. 24). See Tex. Fam. Code § 65.103(a). 25). Tex. Fam. Code § 65.103(c). 26). See Tex. Educ. Code § 25.093; Tex. Crim. Proc. Code art. 45.0531. SARAH ORMAN joined Texas Association of School Boards Legal Services as a staff attorney in 2013. She advises school districts on a variety of legal issues and is a frequent presenter on school law topics, including facilities, business, student issues, and governance. CRISTINA BLANTON, special risks program consultant for Texas Association of School Boards Risk Management Services, provides training and consultations to school districts regarding school safety and emergency practices, data breach and cybersecurity, and other emerging risks for districts. Blanton is a former senior attorney for TASB Legal Services, where she primarily focused on juvenile justice and student discipline issues, including truancy.
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