TRUANCY REFORMPresented by: Jameson C. Baker

jbaker@wabsa.com

1-800-232-9169 / (210) 979-6633

Truant Conduct – Effective 9/1/15

What is Truant Conduct now? “A child engages in truant conduct if the child is required to

attend school under Sec. 25.085, Education Code, and fails to attend on 10 or more days or parts of days within a six-month period in the same school year.” (Family Code Sec. 65.003(a))

Importantly, this DOES NOT include a failure to attend school on 3 or more days or parts of days within a 4 week period

TEC 25.085 amended to require 18-year olds to attend school

© WALSH GALLEGOS 2015 

Expunction of Failure to Attend Records

House Bill 2398 requires the expunction of all records and documents relating to a conviction or complaint of the offense of Failure to Attend School, formerly TEC 25.094.

A school district is not required to expunge or destroy any records until an order from a court has been provided to the school district instructing the district on the process for the expunction of the records.

© WALSH GALLEGOS 2015 

School Responsibilities

Requires a school district to initiate truancy prevention measures if a student fails to attend school without excuse:

3 or more days or parts of days within a 4-week period, but does not fail to attend school for 10 or more days or parts of days within a 6-month period in the same school year

What happens after that? District must send a notice to the parent to inform them:

It is the parent’s duty to monitor the student’s school attendance and require the student attend school; and

The student is subject to the truancy prevention measures under TEC 25.0915

District notice must also request a conference between school officials and the parent to discuss the absences.

The District must employ a truancy prevention facilitator, a juvenile case manager, or designate an existing district employee or juvenile case manager to implement truancy prevention measures.

© WALSH GALLEGOS 2015 

School Responsibilities: Truancy Prevention Measures

“… a school district shall take one or more of the following actions:

1) Impose:A. a behavior improvement plan on the student that must be signed by an employee of the

school, that the school district has made a good faith effort to have signed by the student ant the student’s parent or guardian, and that includes:i. a specific description of the behavior that is required or prohibited for the student;

ii. the period for which the plan will be effective, not to exceed 45 school days after the date the contract becomes effective; or

iii. the penalties for additional absences, including additional disciplinary action or the referral of the student to a truancy court; or

B. school-based community service; or

2) refer the student to counseling, mediation, mentoring, a teen court program, community-based services, or other in-school or out-of-school services aimed at addressing the student’s truancy.”

TEC § 25.0915(a-1)

© WALSH GALLEGOS 2015 

“The General Rule” & the Exceptions

If a student fails to attend school without excuse on 10 or more days or parts of days within a six-month period in the same school year, must refer the child to a truancy court within 10 days.

Exceptions District MAY NOT refer the student to truancy court if it 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 student’s family.

The District may delay the referral of a student to a truancy court if it is applying the truancy prevention measures, it determines they are succeeding, and it is in the best interest of the student that a referral be delayed or not be made.

© WALSH GALLEGOS 2015 

Truancy Courts

Exclusive original jurisdiction over truant conduct cases: Municipal and justice courts Constitutional county courts in counties of 1.75 million or

more population

Truancy court retains jurisdiction over person until completion, without regard to age, if person was referred before their 19th birthday

Juvenile courts no longer have jurisdiction over truant conduct

© WALSH GALLEGOS 2015 

Truancy Court Proceedings

Venue – County where school is located or county where child resides

Jury Trial Child has right to jury trial (6 members) State and child each entitled to three peremptory

challenges

State’s burden of proof – beyond a reasonable doubt

Statute of Limitations – Petition may not be filed more than 45 days after the date of the last absence giving rise to the act of truancy

© WALSH GALLEGOS 2015 

Truancy Court Proceedings Truancy court prosecutors

attorney who prosecutes criminal matters in court serves as truancy court prosecutor

Interpreters foreign language interpreter (may be a qualified telephone interpreter) must be provided

for a child, child’s parent, or a witness if court determines it is necessary If the court is notified that child, child’s parent or a witness is deaf, the court must appoint

a qualified interpreter

Public access to court hearings proceedings presumed open unless court, for good cause, determines public should be

excluded

Recording of hearings proceedings in courts that are not courts of record may not be recorded

Juvenile case managers May be employed by courts to provide services to children who have been referred or who

are in jeopardy of being referred to the truancy court

© WALSH GALLEGOS 2015 

Truancy Court Proceedings Representation by Attorney

The child may be represented by an attorney, but is not entitled to a court appointed attorney. However, the court may appoint an attorney if it determines it is in the best interest of the child

Guardian ad litem appointment Court may appoint a GAL if child appears without parent or guardian or it appears

parents are incapable or unwilling to make decisions in the best interest of the child Court cannot appoint a law enforcement officer, probation officer, or other employee

of the court to serve in that position.

Child alleged to be mentally ill If court determines probable cause exists to believe child is mentally ill court must

dismiss petition.

No cost to the District to file a Truancy Court Proceeding.

© WALSH GALLEGOS 2015 

Truancy Court Proceedings

Rules of Evidence do not apply except: when judge determines that a particular rule must be followed to ensure

fairness to all parties

Judgment - Remedial Order Court MAY NOT order child to attend juvenile justice alternative

education programs, boot camps or for-profit truancy classes and MAY NOT order more than 16 hours of community service per week

Order is effective until 180th day after the date the order is entered or the last day of the school year in which the order was entered

© WALSH GALLEGOS 2015 

Truancy Court Proceedings - Order Attend School without unexcused absences

Attend GED Preparatory Class, if unlikely to do well in formal classroom environment due to their age

Take the GED (if at least 16), if in the best interest of the child

Attend a special program: Alcohol and drug abuse program Rehabilitation program Counseling program, including self-improvement program Self-esteem and leadership programs Work and job skills training program Parenting training program Manners training program Violence avoidance training program Sensitivity training program Advocacy or Mentoring Program

Up to 50 hours of Community Service

Tutoring

© WALSH GALLEGOS 2015 

Truancy Court Proceedings - Order Orders affecting the parents and others

Court may enter remedial order affecting parents and other who may have contributed to truant conduct (similar to current provisions in Family Code Sec. 54.041)

At-Risk of Dropping Out Class Do any act that the court determines reasonable and necessary if parent/other contributing Enjoin contact between the person and the child (unless related within third degree, in which case judge

can contact CPS) Social or psychological counseling to assist child Pay all or part of the costs of treatment, if able to pay Attend program to assist with identifying problems contributing to absences Up to 50 hours of community service with the child

Entitled to hearing before order is entered

Appeals Anyone affected may appeal. Appeals are de novo. Heard by a juvenile court.

© WALSH GALLEGOS 2015 

Truancy Court Proceedings - Order

Contempt - Child A truancy court MAY NOT order a child confined to jail for contempt of

court

The Court may order:

The child to pay a fine (up to $100); and/or

DPS to suspend child’s driver’s license.

© WALSH GALLEGOS 2015 

Truancy Court Proceedings - Order

Contempt – Parent

Court may also order that parent be held in contempt for failing to obey court’s order or in direct contempt of the court

Fine not to exceed $100;

Confinement in jail for up to 3 days; and/or

Up to 40 hours of community service

Parent Contributing to Nonattendance

misdemeanor

Maximum fine: $100 for the first offense, $200 for the second offense, $300 for the third offense, $400 for the fourth offense, and $500 for a fifth offense and subsequent offenses.

School district required to provide evidence of the parent’s criminal negligence

Court that hears case will not be acting as a truancy court

© WALSH GALLEGOS 2015 

This Chart and other helpful information regarding truancy reform can be found at: http://www.txcourts.gov/publications-training/training-materials/truancy-reform.aspx

The information is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney. The resources found at http://www.txcourts.gov/publications-training/training-materials/truancy-reform.aspx were referenced in creating this material.

Elizabeth G. Neally

Email: eneally@wabsa.com / Cell (956) 371-4249

Jameson C. Baker

Email:  jbaker@wabsa.com / Cell (830) 391-4997

San Antonio Office

P.O. Box 460606

San Antonio, TX  78246-0606

1-800-232-9169 / (210) 979-6633 

Web:  www.WalshGallegos.com