If a Texas school district misses the deadline to file a truancy complaint, can it still file one for a later absence?

TX AG Opinion GA-0574: If a school district misses the truancy complaint deadline, can it refile for a later absence?

Plain-English summary

Texas law (at the time of this opinion) required most children between six and eighteen to attend school, and it treated a pattern of unexcused absences as an offense. When a student racked up ten or more unexcused absences within a six-month period of the same school year, Education Code section 25.0951(a) required the school district to take legal action: file a complaint against the student or parent in county, justice, or municipal court, or refer the student to juvenile court. The district had to do this within a set number of school days after the tenth absence, and section 25.0951(d) said a court must dismiss any complaint not filed in compliance with the section.

Representative Charlie F. Howard asked two questions. First, if a district blew the filing deadline after the tenth absence, did that wreck its ability to file a complaint based on a later absence (assuming the most recent ten absences were within a six-month period)? The Attorney General said no. Nothing in the statute forbids a district from filing a new complaint that lists some of the absences from a dismissed complaint plus a new, subsequent tenth unexcused absence, as long as all the absences fall within a six-month period of the same school year. Each subsequent absence renews the window in which the district can file a timely complaint. This followed a 2006 opinion, GA-0417, which had reached the same reading of the statute.

Second, Representative Howard asked whether a district that filed late suffered any Education Code penalty other than the dismissal in section 25.0951(d). The Attorney General found none.

The opinion also flagged two 2007 amendments to section 25.0951(a). One lengthened the filing window from seven to ten school days. The other replaced "last" absence with "10th" absence, confirming that the tenth unexcused absence triggers the district's duty. To the extent GA-0417 had read the statute to require filing within seven school days, the amendment superseded that part.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Texas compulsory-attendance and truancy statutes have been revised significantly since 2007. The deadlines and procedures described here reflect the law as it stood in 2007. Confirm the current Education Code provisions before relying on any rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2007)

School districts: The opinion told districts that missing the filing window after a student's tenth unexcused absence did not permanently bar enforcement. A district could file a fresh complaint listing some earlier absences plus a new tenth absence, within the filing window measured from that latest absence, so long as all the absences fell within a six-month period of the same school year.

Students and parents facing truancy complaints: The opinion explained that a late-filed complaint had to be dismissed under section 25.0951(d), but that dismissal did not end the matter, because subsequent absences could support a new complaint reusing some of the earlier absences.

Courts handling truancy complaints: The opinion confirmed that a court must dismiss a complaint or referral not filed in compliance with section 25.0951, and that the Education Code imposed no penalty on a late-filing district beyond that dismissal.

Common questions

What triggered a school district's duty to file a truancy complaint?
A student's accumulation of ten or more unexcused absences within a six-month period of the same school year. After the tenth absence, the district had to file a complaint or referral within the statutory filing window (seven school days under the earlier text, ten under the 2007 amendment).

Did missing the deadline let the student off the hook?
Not necessarily. The late complaint had to be dismissed, but the district could file a new complaint that listed some of the earlier absences along with a new, subsequent tenth unexcused absence, as long as all the absences were within a six-month period of the same school year. Each new absence reset the filing window.

Was a district punished for filing late?
Beyond dismissal of the complaint under section 25.0951(d), the Attorney General found no other penalty in the Education Code for a district that filed late.

What did the 2007 amendments change?
One amendment lengthened the filing window from seven to ten school days. The other replaced the word "last" with "10th," confirming that the student's tenth unexcused absence, not some other absence, triggers the district's duty. Together they superseded the part of GA-0417 that had required filing within seven school days.

Background and statutory framework

A child between six and eighteen generally had to attend school each school day for the entire instructional period (Tex. Educ. Code Ann. § 25.085(a)-(b)), and a child required to attend committed an offense by failing, without a legitimate excuse, to attend on ten or more days or parts of days within a six-month period in the same school year, or on three or more days within a four-week period (Tex. Educ. Code Ann. § 25.094(a); see also § 25.087 (excused absences)). Section 25.0951 required a school district to initiate legal action against a noncompliant student or parent by filing a complaint under section 25.093 ("Parent Contributing to Nonattendance") or 25.094 ("Failure to Attend School"), or by referring the student to juvenile court, and section 25.0951(d) required a court to dismiss a complaint or referral not made in compliance with the section (Tex. Educ. Code Ann. § 25.0951).

In GA-0417 (2006), the Attorney General had read section 25.0951(a) to require filing within seven school days of the tenth unexcused absence, with failure to do so leading to dismissal, but had also concluded that a district could file a new complaint listing the latest absence plus some or all of the earlier ones if the student kept missing school, so that each subsequent absence renewed the filing period (Tex. Att'y Gen. Op. No. GA-0417 (2006) at 5-6). This opinion reaffirmed that reading: nothing in the statute forbids a new complaint combining earlier absences with a new tenth absence, provided all fall within a six-month period of the same school year.

Two 2007 amendments adjusted the statute. One increased the filing window from seven to ten school days, effective immediately (Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Sess. Law Serv. 3463, 3463). The other changed "last" absence to "10th" absence, codifying the part of GA-0417 that tied the duty to the tenth absence (Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Sess. Law Serv. 2277, 2291; House Comm. on Juvenile Justice & Family Issues, Bill Analysis, Tex. Comm. Substitute H.B. 2884, 80th Leg., R.S., § 24 (2007)). Because both amendments came from the same legislative session, they were to be harmonized to give effect to each (Tex. Gov't Code Ann. § 311.025(b)). Otherwise, GA-0417's construction of section 25.0951(a) was unaffected. The Attorney General found no Education Code penalty on a late-filing district beyond the dismissal required by section 25.0951(d).

Citations

Statutes and legislative materials:

• Tex. Educ. Code Ann. § 25.0951 (Vernon 2006)
• Tex. Educ. Code Ann. § 25.085(a)-(b) (Vernon 2006)
• Tex. Educ. Code Ann. § 25.087 (Vernon 2006)
• Tex. Educ. Code Ann. § 25.093 (Vernon 2006)
• Tex. Educ. Code Ann. § 25.094(a) (Vernon 2006)
• Tex. Gov't Code Ann. § 311.025(b) (Vernon 2005)
• Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Sess. Law Serv. 2277, 2291
• Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Sess. Law Serv. 3463, 3463
• House Comm. on Juvenile Justice & Family Issues, Bill Analysis, Tex. Comm. Substitute H.B. 2884, 80th Leg., R.S., § 24 (2007)
• Tex. Att'y Gen. Op. No. GA-0417 (2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0574
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0574.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

October 2, 2007

The Honorable Charlie F. Howard
Chair, Committee on Local and Consent Calendars
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0574

Re: School district responsibilities under section 25.0951(a) of the Texas Education Code (RQ-0584-GA)

Dear Representative Howard:

You ask two questions about a school district's responsibility to file a complaint for failure to attend school under section 25.0951(a) of the Texas Education Code.[1] See TEX. EDUC. CODE ANN. § 25.0951(a) (Vernon 2006), amended by Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Sess. Law Serv. 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Sess. Law Serv. 3463, 3463 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)).

A child between the ages of six and eighteen generally must attend school "each school day for the entire period the program of instruction is provided." TEX. EDUC. CODE ANN. § 25.085(a)-(b) (Vernon 2006). A child who is required to attend school commits an offense if, without a legitimate excuse, he or she "fails to attend school on 10 or more days or parts of days within a six-month period in the same school year or on three or more days or parts of days within a four-week period." Id. § 25.094(a); see also id. § 25.087 (establishing guidelines for excused absences). Under section 25.0951, a school district must initiate legal action against a child or the parent of a child who fails to comply with the statutory school-attendance requirements. See id. § 25.0951. In the following excerpt from section 25.0951, relevant legislative amendments to section 25.0951 adopted during the 2007 legislative session are indicated:

(a) 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, a school district shall within 10 [seven] school days of the student's 10th [last] absence:

(1) file a complaint against the student or the student's parent or both in a county, justice, or municipal court for an offense under Section 25.093 ["Parent Contributing to Nonattendance"], or 25.094 ["Failure to Attend School"], as appropriate, or refer the student to a juvenile court in a county with a population of less than 100,000 for conduct that violates Section 25.094; or

(2) refer the student to a juvenile court for conduct indicating a need for supervision . . . .

(d) A court shall dismiss a complaint or referral made by a school district under this section that is not made in compliance with this section.

Id. § 25.0951(a), (d), amended by Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Sess. Law Serv. 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Sess. Law Serv. 3463, 3463 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); see also id. § 25.0951(c) (defining "parent").

In 2006 this office interpreted section 25.0951 as it was written at that time. See generally Tex. Att'y Gen. Op. No. GA-0417 (2006). In that opinion, GA-0417, this office determined that section 25.0951(a) requires a school district to file a complaint or referral[2] within seven days of the student's tenth unexcused absence. See id. at 5. Failure to do so, the opinion concluded, "inevitably leads to the complaint's or referral's dismissal." Id. Moreover, if a complaint is dismissed as untimely, subsection (a) prohibits a school district from refiling the exact same complaint based upon the same ten unexcused absences-but "[i]f the student has failed to attend school without excuse since the original complaint was filed," the school district must file a new complaint "that lists the latest absence as well as some or all of the absences listed in the original complaint" within seven school days of the latest absence. Id. at 6. Thus, each subsequent absence that occurs within a six-month period of the same school year renews the seven-day period within which the school district may file a timely complaint. See id.

You now ask whether "a school district's failure to file a truancy complaint . . . under § 25.0951 . . . within the seven[-]day period after the tenth unexcused absence affect[s] in any way its ability to file a complaint . . . against the same student based on a subsequent absence, assuming that the most recent ten absences are within a six-month period." Request Letter, supra note 1, at 1. Nothing in the statute forbids a school district from filing a new complaint listing some of the absences listed in the dismissed complaint in addition to a new, subsequent tenth unexcused absence, so long as all the absences have occurred within a six-month period of the same school year. See Tex. Att'y Gen. Op. No. GA-0417 (2006) at 6; see also TEX. EDUC. CODE ANN. § 25.0951(a) (Vernon 2006), amended by Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Sess. Law Serv. 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Sess. Law Serv. 3463, 3463 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)).

A recent legislative amendment to section 25.0951(a) supersedes a portion of GA-0417's conclusion. Under the amendment, a school district must file the complaint within ten, not seven, school days.[3] See Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Sess. Law Serv. 3463, 3463 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)). A second amendment, changing the word "last" to "10th," codifies that portion of GA-0417 concluding that a school district must file a complaint after the student's tenth absence. See Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Sess. Law Serv. 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); House Comm. on Juvenile Justice & Family Issues, Bill Analysis, Tex. Comm. Substitute H.B. 2884, 80th Leg., R.S., § 24 (2007). As the second amendment makes clear, a student's tenth unexcused absence triggers the school district's responsibility to file a complaint. See Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Sess. Law Serv. 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)). See generally TEX. GOV'T CODE ANN. § 311.025(b) (Vernon 2005) (directing that multiple amendments to the same statute enacted at the same legislative session should be harmonized if possible to effectuate each). Otherwise, GA-0417's construction of section 25.0951(a) is unaffected.

You also ask whether a school district that fails to file a timely complaint under section 25.0951(a) suffers any penalty under the Education Code other than the dismissal of the complaint under section 25.0951(d). See Request Letter, supra note 1, at 1; see TEX. EDUC. CODE ANN. § 25.0951(a), (d) (Vernon 2006), amended by Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Sess. Law Serv. 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Sess. Law Serv. 2271, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)). We find no other penalties in the Education Code.

SUMMARY

Under section 25.0951(a) of the Education Code, a school district must file a complaint or referral against a student who has accumulated ten or more unexcused absences within a six-month period in the same school year within ten school days of the student's tenth absence. Failure to file within the requisite time will lead to dismissal of the complaint or referral, but the school district may file a new complaint, listing some of the same absences as well as a subsequent tenth unexcused absence, within ten school days of the tenth absence listed in the complaint or referral. To the extent Attorney General Opinion GA-0417 construes section 25.0951(a) to require filing a complaint or referral within seven school days, it has been superseded by amendments to the statute.

Other than requiring a court to dismiss the complaint or referral, the Education Code imposes no penalties on a school district that fails to file a complaint or referral within ten school days of the student's tenth unexcused absence.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Charlie F. Howard, Chair, Committee on Local and Consent Calendars, Texas House of Representatives, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Apr. 19, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Throughout the remainder of this opinion, we will use the term "complaint" to encompass both a complaint filed in a county, justice, or municipal court under section 25.0951(a)(1) and a referral to juvenile court made under section 25.0951(a)(2).

[3] The bill amending section 25.0951(a) to increase the filing period from seven to ten school days became effective immediately. See Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 2 [Tex. S.B. 1161]; see also H.J. of Tex., 80th Leg., R.S. 5268-69 (2007) (recording a vote of 144-0 in favor of passage on the bill's third reading); S.J. of Tex., 80th Leg., R.S. 986-87 (2007) (recording a vote of 30-0 in favor of passage on the bill's third reading).