What are a court’s options with regard to existing failure-to-attend-school cases that have not resulted in convictions and that have not been dismissed? In other words, what are a court’s options in regard to unadjudicated failure-to-attend-school cases?
OCA has issued an official statement on this (in response to a question) which reads as follows:
SECTION 3 of HB 2398 creates Article 45.0541 dealing with the expunction of failure-to-attend-school records. Subsection (b) calls for the expunction of records of a truancy offense (i.e., failure to attend school) under Section 25.094 of the Education Code.
These records are only to be expunged if the student involved has been convicted or if the offense has been dismissed. So the expunction provision does not address cases in which there was no conviction or dismissal.
You ask about all of the records in failure-to-attend-school cases that have not resulted in a conviction and have not been dismissed. You describe these cases as “open, pending, unadjudicated cases.”
These case cannot be expunged under new Article 45.0541. The bill allows for cases in this situation to be handled under the prior law (which actually is still in effect until September 1st). But even after September 1st, the bill permits justice and municipal courts to handle these open cases under the prior law. See SECTION 42 of the bill (“An offense committed or conduct that occurs before the effective date of this Act is governed by the law in effect on the date the offense was committed or the conduct occurred, and the former law is continued in effect for that purpose.”).
As the paragraph above shows, a justice or municipal court could process an open pending case even after September 1st. But while a court may do so, we question whether this is the best practice. In fact, doing this would raise some practical difficulties. As soon as a student would be convicted in such a situation, there would be a conviction and the court would have to expunge it. And the student may have no obligation to pay court costs or fines or do anything else due to the immediate expunction of the conviction. The court would have no power to enforce monetary penalties after the expunction, because the student is “released from all disabilities resulting from the conviction.” See Article 45.0541(c).
We think the better practice may be for courts to visit with prosecutors about dismissing all of their pending failure-to-attend-school cases. Of course, this can only be done upon a motion from the prosecutor in the case. Assuming the court grants such a motion, the case will have been dismissed and will then be required to be expunged come September 1st.
Dismissals of open, pending cases can occur prior to September 1st as well as after September 1. On or after September 1, the cases can be expunged.
In summary:
(1) Courts cannot expunge a case that has not yet been disposed.
(2) Prosecutors are not required to dismiss pending cases.
(3) Judgments are likely to be automatically “written off” when a conviction is expunged. This is because after entry of an expunction order, a defendant necessarily “is released from all disabilities resulting from the conviction.” (And because collecting costs in an expunged case may be impractical). So a defendant in this instance whose conviction has been expunged no would no longer owe any unpaid fines and court costs.
(4) The court cannot sua sponte dismiss unadjudicated cases. But the court can dismiss unadjudicated cases in response to an appropriate motion by a prosecutor.
The court need not enter any order dismissing unsatisfied judgments. This happens automatically by virtue of a court’s order of expunction. See Answer (3) above.
(Ted Wood, Office of Court Administration)