What is the meaning of “last absence” for purposes of when a petition may be filed under Section 65.055 of the Family Code?
Section 65.055 of the Family Code is entitled “Limitations Period.” The statute reads as follows: “A petition may not be filed after the 45th day after the date of the last absence giving rise to the act of truant conduct.”
Generally, a school district must refer a student to a truancy court for truant conduct “within 10 school days of the student’s 10th absence.” Education Code, Section 25.0951(a). But Section 25.0951(d) provides an exception. The school district may delay the referral of a student (or choose not to refer the student at all) in some circumstances. Those circumstances are twofold. First, the district must be applying truancy prevention measures. Second, the district must find the measures are succeeding and that it is in the best interest of the student to make no referral.
So suppose a student misses school on September 1, 2, 4, 11, 14, 15, 25, and 30. Then the student misses school on October 2 and 5. This is a total of 10 absences. But suppose the school chooses not to make a referral at that time. The student does well for a while, but then misses school on November 12, 13, 16, 17, 19, 20, and 30. The school district decides the truancy prevention measures are not working and goes ahead and refers the student to truancy court on December 1.
The question is whether Section 65.055 of the Family Code prevents the prosecutor from filing a petition on December 1.
One common school of thought says the answer is yes – i.e.., no petition can be filed. This is because on December 1, a total of 57 days have passed since the student’s 10th absence on October 5. A petition has to be filed within 45 days of “the last day after the date of the last absence giving rise to the act of truant conduct.”
An opposing school of thought says the answer is no – i.e., the petition can be filed. This school of thought says that November 30 was the last absence for purposes of the 45-day statute of limitations. Thus, a petition filed by January 14 would meet the statute of limitations. This school of thought maintains that the district tried to work with the student and keep from referring him or her to the court. This, it is argued, is consistent with the idea that school districts should do more before referring students to truancy court. If school districts know they can’t refer a child to truancy court if truancy prevention measures ultimately prove unsuccessful, court referrals will be almost automatic.
The second school of thought is correct. A petition could still be filed on December 1st (and for 44 days after that until January 14th).
In the example, the student first engaged in delinquent conduct on October 5th – the 10th day of school the student missed. But the student also committed delinquent conduct on each day he or she missed after October 5th (November 12, 13, 16, 17, 19, 20 and 30). The absence on November 30th gave rise to the act of truant conduct every bit as much as the October 5th absence. I think the “last act” giving rise to the offense of truant conduct occurred on November 30th. The prosecutor has until January 14th to file a petition.
The law can be interpreted to mean that a petition cannot be filed after the 45th day after the 10th overall absence on October 5th. This would mean the petition would have to be filed by November 19th. This is not an unreasonable interpretation of the statute. But such an interpretation would foreclose any referral of the student to truancy court after November 19th. Such a situation seems to be inconsistent with the intent of the law – to encourage school districts to employ truancy prevention measures and reduce referrals to the court system. (Ted Wood, Office of Court Administration)