The 2015 Truancy Reform Bill – House Bill 2398

 By: Ted Wood

Former Assistant General Counsel

Office of Court Administration

Background

Children in Texas are legally obligated to attend school.[1] While a smattering of people may disagree with the idea of compulsory school attendance, the concept is not particularly controversial. Requiring children to attend school is an accepted public policy.

Another well-established idea is that dropping out of school is not a good thing. Accordingly, most people would probably agree that society should take actions to try to keep kids in school. And most people would likely say that children should face some sort of consequences for habitually missing school.

But the question of what these consequences should be has been an area of considerable discussion. In recent years, the most common consequence in Texas for missing too much school has been a criminal conviction. Some people objected to the idea of criminal convictions for missing school and these voices found receptive audiences in high places. Earlier this year, Chief Justice Nathan Hecht of the Supreme Court of Texas addressed this issue in his state-of-the-judiciary address: 

Consistent with Chief Justice Hecht’s entreaty, eight  separate bills were filed in the Texas Legislature during the 84^th Session that sought to decriminalize truancy.[3]  The leading decriminalization bill turned out to be Senate Bill 106 filed by Senator John Whitmire.  Senate Bill 106 passed the Senate, but failed to survive a vote in the House Juvenile Justice and Family Issues Committee.  However, near the end of the session, the text of Senate Bill 106 was added to House Bill 2398 filed by Representative James White.  Identical versions of House Bill 2398 were eventually passed by the House and the Senate.  Governor Greg Abbott signed the bill into law on June 18, 2015. The provisions of HB 2398 will go into effect on September 1, 2015.

Treatment of Truancy Matters Under Current Law

Under current law,[4] truancy matters can be handled in two entirely separate ways. 

First, the cases can be handled as criminal cases.[5] With a couple of exceptions,[6] these criminal cases are handled by justice courts and municipal courts.[7]  In these proceedings, children may actually be convicted of the Class C misdemeanor offense of “failure to attend school” created under Education Code, Section 25.094. The offense is not technically known as “truancy,” although this term is sometimes incorrectly used. The convictions in these cases are the criminal convictions that HB 2398 seeks to eliminate.

Second, the cases can be handled as civil cases in the juvenile courts.[8] In these proceedings, children may be found to have engaged in “truancy” which constitutes conduct indicating a need for supervision (CINS).[9]  Such findings are not criminal convictions.

Regardless of which way the truancy matter is handled, the conduct giving rise to the case is exactly the same. The conduct in question is (1) failing to attend school on 10 or more days or parts of days within a six-month period in the same school year; or (2) failing to attend school on three or more days or parts of days within a four-week period.[10] 

Although there are two different ways in which truancy matters can be handled, as a practical matter only the first way is used. In Fiscal Year 2014, 69,052 failure-to-attend-school cases were filed in justice and municipal courts in Texas.[11] (This number does not include the failure-to-attend school cases filed in the constitutional county court in Dallas County.) By contrast, only 596 CINS petitions were filed in our state’s juvenile courts during the same fiscal year.[12] And there is no indication as to how many of the CINS cases were for truancy. Even if all 596 CINS petitions were filed for the offense of truancy,[13] failure-to-attend-school cases outnumber truancy cases 115 to 1.[14]   

There is no published research as to why truancy matters are handled primarily as criminal cases instead of as juvenile matters. School districts refer truancy matters to the court system. The case statistics above show that the referral of truancy matters to the justice and municipal courts is standard operating procedure in most school districts. Thus, the handling of truancy matters by justice and municipal courts may have more to do with custom and tradition than with anything else. Some believe that juvenile courts are so focused on more serious forms of juvenile delinquency[15] that truancy cases tend to fall through the cracks. This may or may not be accurate. Whatever the reason, justice and municipal courts have been the courts handling most of the truancy matters in Texas for a number of years.      

Current law permits judges handling failure-to-attend-school cases to do much more than simply convict a child for failing to attend school. Judges are authorized to enter remedial orders in connection with failure-to-attend-school convictions that aim to keep kids in school. These remedial orders are detailed in Article 45.054 of the Code of Criminal Procedure.[16]

Judges may order children to attend school, attend preparatory classes for the high school equivalency exam, or take the high school equivalency exam.[17] Judges may also order children to attend special programs aimed at remedying school non-attendance issues. Such programs include alcohol and drug abuse programs, self-improvement counseling programs, and programs in self-esteem and leadership.[18] Other such programs include training in manners, violence avoidance, sensitivity training, and advocacy.[19]   

Judges may also direct children to perform community service.[20] Another alternative is to require children to participate in tutorial programs covering relevant academic subjects. And judges are also authorized to order the child and the child’s parents to attend a class for students who are at risk of dropping out of school.[21]

Separate and apart from the offense of failure to attend school, a criminal offense exists which is known as “parent contributing to nonattendance [of school].” This offense is called for by Section 25.093 of the Education Code and is an offense committed by the parent of a truant child.[22] These parent-contributing-to-nonattendance cases are Class C misdemeanors and are commonly handled by justice and municipal courts. In Fiscal Year 2014, there were 68,061 of these cases filed in the justice and municipal courts.[23] This is very close to the number of failure-to-attend school cases filed in the justice and municipal courts.[24] When a failure-to-attend-school case is filed against a child, a parent-contributing-to-nonattendance case is often filed against the child’s parent.

As mentioned earlier, the current system of handling truancy cases has come under criticism. The primary concern has been the criminal convictions of children. The criminal convictions of adults (for parent contributing to nonattendance) have not been a concern. 

The Aims of the Truancy Reforms

The chief objective of the truancy reforms was to do away with the criminal offense of failure to attend school. In other words, the main goal was to decriminalize truancy. But this was not the only objective. The legislators behind the reforms did not want to give students a pass for missing school. Quite to the contrary, the reformers sought to replace the current system of criminal prosecution with a new legal framework.  This new framework would continue to hold students accountable for missing school. And the new framework would keep justices of the peace and municipal court judges in charge of truancy cases. 

Significantly, the reformers aimed to give judges the same remedial options to deal with truant children as exist under current law.[25] Also, they wanted to keep the crime of parent contributing to nonattendance in place. Thus, parents would be just as susceptible to prosecution for contributing to their child’s nonattendance under the new law as under the current law.

At bottom, the reformers aimed to keep the good parts of the current truancy system while eliminating the taint associated with criminal convictions.

Repealing Section 25.094 is not a Complete Solution

House Bill 2398 repeals Section 25.094 of the Education Code – the statute making failure to attend school a crime.[26] Repealing Section 25.094 – and thereby decriminalizing truancy – was easy. The challenge was to establish a new legal framework for handling truancy cases.

Please note that the repeal of Section 25.094 by itself ends only the first way of dealing with truancy matters under current law.[27] The repeal of Section 25.094 does nothing to affect the second way of handling truancy matters under current law.[28] Thus, if lawmakers had repealed Section 25.094 but had done nothing else, existing law would still have provided a way to process truancy cases. Juvenile courts could hear truancy matters as juvenile cases involving conduct indicating a need for supervision [CINS].

But this second way of dealing with truancy issues was not thought to be an acceptable alternative going forward. Our state’s juvenile courts would not be able to keep up with nearly 70,000 new truancy cases.[29] Justice and municipal courts – the courts currently handling the truancy caseload – would be unable to assist with the juvenile cases. This is because under current law, justice and municipal courts are not juvenile courts and are therefore without jurisdiction to hear juvenile cases. 

Even if juvenile courts could accept this huge influx of new cases, handling truancy matters as juvenile cases is largely unworkable. In juvenile cases, attorneys must be appointed to represent all children who cannot afford their own attorney.[30] By contrast, in failure-to-attend school cases in the justice and municipal courts, there is no such requirement. Attorneys are generally not appointed. The cost of requiring the government to pay for the appointment of attorneys in truancy cases would be prohibitive.

Additionally, the detailed procedures called for in juvenile cases[31] are not an especially good fit for the majority of truancy cases. The system of separate detention hearings,[32] adjudication hearings,[33] and disposition hearings[34] seems ill-suited for relatively simple and straightforward truancy matters. Forcing truancy cases to fit into the procedural structure of juvenile cases would be undesirable. Both the time and expense of processing truancy cases would increase without much likelihood of a concomitant improvement in school attendance.

As noted above, there are multiple reasons why truancy matters are not well-suited for the juvenile courts. These reasons may well be partly why most truancy matters are processed in our justice and municipal courts today instead of in our juvenile courts.[35]

One thing was abundantly clear to the legislators behind the efforts to decriminalize truancy – simply repealing Section 25.094 would not be enough. The existing statutes allowing juvenile courts to handle truancy cases were not a panacea. Further changes would have to be made to truly reform truancy in Texas.

Making Justice and Municipal Courts into Juvenile Courts – A Good Idea with a few Drawbacks 

As noted above, more needed to be done than to simply repeal Section 25.094. One idea involved designating justice and municipal courts as juvenile courts for the limited purpose of hearing truancy matters. The idea was to expand the definition of juvenile courts in Family Code Section 51.04 to include justice and municipal courts. The new juvenile courts would serve as juvenile courts only in truancy cases. 

This concept had a distinct advantage over simply repealing Section 25.094. The advantage would be that the justice and municipal courts would still be handling truancy matters. There would be no need to move a mountain of truancy cases to juvenile courts with little capacity for tens of thousands of new cases. And the judges most adept at handling truancy matters and interfacing with truant teens (justices of the peace and municipal judges) would continue to do so.

But the concept also had drawbacks. Some of the same problems that would have plagued juvenile courts if they were tasked with hearing truancy cases would necessarily raise their ugly heads. Attorneys would have to be appointed. Overly-complex procedures would need to be employed. Thus, the costs of processing truancy cases would increase as would the time for courts to process the cases.

So the idea of designating justice and municipal courts as juvenile courts and having these courts utilize existing juvenile procedures was not ideal. A better idea would be to designate these courts as juvenile courts for limited purposes and to limit the juvenile procedures that applied to them. 

For example, Section 51.10 of the Family Code calls for the appointment of attorneys. That statute could have been rewritten to make an exception to an attorney-appointment requirement in truancy cases. This approach would have tailored the Juvenile Justice Code provisions to read one way for regular juvenile cases and another way for truancy cases.   

The idea certainly had promise. But the theory would have involved taking as many as 100 different statutes and dividing each of them into two parts. One part would have been applicable to regular juvenile cases while the other part would have been applicable to juvenile cases involving truancy. The implementation of the theory would likely have made a mishmash of the Juvenile Justice Code. One wishing to read the provisions applicable to truancy cases would have to wade through a multitude of material applicable only in regular juvenile cases. And users of the Juvenile Justice Code would suddenly have exceptions of all sorts (for the truancy cases) interjected into familiar Family Code provisions.

Because of the aforementioned drawbacks, the idea of designating justice and municipal courts as juvenile courts never made its way into Senate Bill 106. Instead, Senate Bill 106 (which was later incorporated into House Bill 2398) took a slightly different, outside-the-box approach.

Title 3A – Truancy Courts and Truant Conduct

Senator John Whitmire is the author of Senate Bill 106 (which was adopted into House Bill 2398 by Representative James White). House Bill 2398 is the vehicle that carried the 2015 truancy reforms into reality. We will refer to the new truancy reform legislation as House Bill 2398 from this point forward.

As mentioned earlier, because of perceived drawbacks, House Bill 2398 did not propose truancy case revisions via changes to Title 3 of the Family Code.[36] Rather, the bill proposed a brand new Family Code title denominated as Title 3A that would deal with truancy. 

House Bill 2398 consists of 44 separate sections. Section 27 of the bill contains the entirety of the new Title 3A which comprises over 30 of the bill’s 79 pages. While the other sections are important (for example, Section 41 repeals Section 25.094 of the Education Code), clearly Section 27 is the key section. 

Title 3A consists of just one chapter – Chapter 65 of the Family Code. This one chapter creates an entirely new type of court, an entirely new classification of conduct, and a freestanding set of procedures. The new procedures are to be used by the new courts in proceedings involving the new classification of conduct.

The new courts in question are known as truancy courts.[37] These courts are not actually new in the sense that there are no new courtrooms and no new judges. Rather, truancy courts are simply certain existing courts authorized to exercise a special area of jurisdiction. Thus, truancy courts are very much like juvenile courts which are actually selected district and county-level courts designated locally to exercise juvenile jurisdiction.[38]  

Unlike juvenile courts, however, no local designations are necessary for certain courts to become truancy courts.[39] Rather, the Legislature has declared that certain courts are automatically truancy courts – no designation by a local governing board is necessary.[40] 

The courts designated as truancy courts are: (1) constitutional county courts in counties with a population of 1.75 million or more;[41] (2) all justice courts; and (3) all municipal courts.[42] Even if a particular justice court, municipal court, or constitutional county court does not actually hear truancy cases, the court is a truancy court. Truancy court judges receive no extra compensation for their service. They simply exercise a special kind of jurisdiction when (figuratively) wearing their truancy court hats. 

Having discussed the new type of court (truancy court), we turn now to the new type of conduct created under Title 3A. The new type of conduct is known as “truant conduct.” Section 65.003(a)[43] defines truant conduct in the following way:

This is the type of conduct over which truancy courts will exercise exclusive original jurisdiction when House Bill 2398 becomes effective on September 1, 2015.[45] Juvenile courts will no longer have jurisdiction of this conduct. House Bill 2398 amends Section 51.03(b) of the Family Code to eliminate this conduct from the list of acts constituting conduct indicating a need for supervision (CINS).[46] In essence, HB 2398 has created a new form of conduct that is similar to delinquent conduct and conduct indicating a need for supervision. The juvenile courts will continue to handle delinquent conduct cases and CINS cases. But the juvenile courts will no longer hear cases involving allegations of truant conduct. Truant conduct cases will be handled (exclusively) by the new truancy courts.

We have now discussed the new type of court (truancy court) and the new type of conduct (truant conduct). Thus, we are ready to move on to a discussion of the new set of freestanding court procedures. These procedures will apply to cases involving allegations of truant conduct that will be handled by our new truancy courts.

Truancy Court Procedures

One of the consequences of decriminalizing truancy is that the Code of Criminal Procedure no longer applies to truancy cases. Similarly, a consequence of eliminating truancy from the universe of conduct indicating a need for supervision is that the Juvenile Justice Code no longer applies. Thus, an entirely new set of procedures is needed to govern truancy cases.

To accentuate this point, consider the following simple question: Is there such a thing as a jury trial in a truancy case? Well, the answer is not going to be found in the provisions of the Code of Criminal Procedure dealing with juries.[47] The Code of Criminal Procedure does not apply. Nor is the answer going to be found in the Family Code provisions making up the Juvenile Justice Code.[48] The Juvenile Justice Code no longer applies either. In fact, the answer is not going to be found in any law existing prior to the passage of HB 2398.  

In order to answer this simple question about jury trials, one must look to an entirely new set of laws. This new set of laws is contained in the new Title 3A (Chapter 65) of the Family Code. Title 3A is the 30 pages of new procedures in truancy cases set out in Section 27 of House Bill 2398. No wonder Title 3A is 30 pages long. And no wonder House Bill 2398 consists of 79 pages. The bill does more than just decriminalize truancy and remove truancy from the realm of conduct indicating a need for supervision. The bill actually creates entirely new procedures (Title 3A) for handling entirely new conduct (truant conduct) in entirely new courts (truancy courts).

Returning to the question about juries in truancy cases, the answer is found in Section 65.007. “A child alleged to have engaged in truant conduct is entitled to a jury trial.”[49] Section 65.007 goes on to say that the number of jurors in a truant conduct case is six.[50] The statute further details that both the State and the child are entitled to three peremptory challenges.[51] No fee is to be paid for a jury trial.[52]   

The point in discussing jury trials in truancy cases at this juncture is not to delve in to these particular details. Rather, the purpose is to illustrate that House Bill 2398 creates an entirely new set of court procedures. 

Many of the new procedures are borrowed from the Juvenile Justice Code. For example, the new Chapter 65 contains a provision authorizing truancy courts to appoint a guardian ad litem for a child in certain situations.[53] The provision is clearly based on Family Code Section 51.11.[54]  Some of the phraseology is exactly the same.   

But not all Juvenile Justice Code provisions have been brought over to Title 3A. In fact, only selected provisions show up in the new truancy law.  A considerable number of Juvenile Justice Code provisions do not appear in Title 3A. Basically, the truancy court provisions may be considered a sort of “juvenile light.”

While the new truancy provisions borrow many Juvenile Justice Code provisions, certain concepts from the Code of Criminal Procedure also make an appearance. A good example is  Section 65.059, which allows a court to appoint an attorney for a child in certain situations. This provision is quite similar to Article 1.051 of the Code of Criminal Procedure which permits appointments of attorneys in the interest of justice. Justices of the peace and municipal judges have power to appoint attorneys to represent defendants under Article 1.051, although the power is rarely utilized.[55] Had Section 65.059 not been put in the new truancy provisions, then interest–of-justice appointments would not be authorized in truancy cases. This is because Article 1.051 applies only to criminal cases, and under House Bill 2398, the truancy cases will no longer be criminal cases.

As indicated above, many of the truancy court procedures are borrowed from existing statutes. But some of the procedures are entirely new. For example, prosecutors must file petitions alleging truant conduct within 45 days of a child’s last absence giving rise to the act of truant conduct.[56] This is an extremely short limitations period that has no precedent in Texas law. But given the goal to get children back in school as soon as possible, a very quick timeline for court intervention seems desirable. 

The new truancy procedures set out in the new Chapter 65 of the Family Code are a mix of existing laws and new ideas. This article does not attempt to detail all of the new procedures. But a flowchart has been prepared that provides an in-depth guide to the new court procedures. A commentary accompanying the flowchart is also available. 

The Rest of House Bill 2398

Section 27 of House Bill 2398 comprises 30 pages and sets out the court procedures in truancy cases. But the entire bill is 79 pages long and consists of 44 sections. The other 49 pages and 43 sections of the bill do not detail court procedures. Of course, this does not mean these other sections are unimportant. In fact, they are critical to the overall objective of keeping kids in school.

Many of the other sections detail different directives to school districts and school personnel. For example, Section 9 of the bill makes significant amendments to Education Code Section 25.0915 dealing with truancy prevention measures.[57] Section 12 amends Education Code Section 25.095 dealing with certain school district notifications by school districts to parents of children who have missed school.[58] And Section 13 requires school districts to refer students to truancy courts when a student has failed to attend 10 days of school in the same school year.[59]

These provisions will not be detailed in this document either. The article is not meant to be an exhaustive analysis of House Bill 2398. Rather, this article focuses on the reasons that House Bill 2398 came to be and the reasons an entirely new procedure was created. But a second flowchart has been prepared that systematically outlines procedures and requirements aimed at keeping kids in school. These procedures and requirements deal with children before they have been (if they ever will be) referred to truancy court. There is a flowchart and accompanying commentary for these procedures.

Other sections of the bill deal with neither truancy court procedures nor school district requirements. But these sections most definitely have a connection to truancy issues. One such section is Section 31 of the bill, which establishes judicial donation trust funds.[60] These funds come from gifts and donations. The money realized can be used to assist needy children or families who appear before county, justice, or municipal courts. The assistance comes in the form of “resources and services that eliminate barriers to school attendance or that seek to prevent criminal behavior.”[61]  

Another such section is Section 36, which concerns reporting requirements to the Office of Court Administration. In light of a new type of court and a new type of conduct, changes needed to be made to the statute mandating the reporting of court activity.[62]

The various sections of the bill outside of Section 27 (which creates Title 3A) will not be detailed in this paper. But the content of all such sections is detailed in a section-by-section commentary available at here.

Summary

While much has changed in the world of truancy, a great many things have remained the same. Justices of the peace and municipal judges still oversee cases involving children who habitually miss school. The remedies available to these judges to deal with truant children under current law will be available under the new law. The concept of making children responsible for attending school is still key. The overarching aim of keeping kids in school and facilitating their graduation from high school remains the goal.

But while much remains the same, the decriminalization of truancy has been achieved. New procedures have been put in place for the courts to handle the cases in this new decriminalized world. There is great promise that courts can utilize these procedures to keep children in school without saddling them with a criminal record.