How long does a Texas school district have to file a truancy complaint?

TX AG Opinion GA-0607: When must a Texas school district file a truancy complaint?

Plain-English summary

Education Code section 25.0951(a) tells a school district how quickly it must act when a student racks up unexcused absences: it must file a complaint (or refer the student to juvenile court) after the student has missed school without excuse for ten or more days within a six-month period in the same school year. In 2007 the Legislature passed two separate bills that each amended that subsection. Senate Bill 1161 changed the filing window from "seven" school days to "10" school days. Two days later, House Bill 2884 changed the trigger from the student's "last" absence to the student's "10th" absence. Neither bill mentioned the other, and they changed different words. A district attorney asked which amendment controls, assuming the two could not both apply.

The Attorney General concluded both amendments are effective because they can be harmonized. Statutory construction presumes the Legislature intends its acts to be effective in their entirety, and when two amendments to the same statute are enacted at the same session without reference to each other, courts harmonize them if possible rather than letting the later one override the earlier one. Here the two amendments changed different words and produced no absurd result. Read together, section 25.0951(a) requires a district to file the complaint or referral within ten school days of the student's tenth unexcused absence. The opinion also confirmed that if a complaint is dismissed as untimely, the district may file a new complaint that lists some of the previously named absences plus a new, previously unlisted tenth absence, so long as all absences fall within the same six-month period, and that new complaint must be filed within ten days of the tenth absence listed in it.

Currency note

This opinion was issued in 2008. 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.

Texas truancy law and Education Code section 25.0951 have been amended since 2008. Do not rely on the ten-day deadline or the complaint procedure described here as current law without checking the present statute.

Who this opinion affected (as of 2008)

School districts and their attorneys: The opinion told them both 2007 amendments applied, so the operative rule was to file a truancy complaint or juvenile-court referral within ten school days of the student's tenth unexcused absence, not within seven days of the last absence.

Prosecutors and the courts handling truancy filings: The opinion gave them a single harmonized reading of section 25.0951(a), avoiding a dispute over which of two same-session amendments survived. Section 25.0951(d) still required dismissal of an untimely complaint.

Parents and students: For families facing a truancy complaint, the opinion clarified the timing rule the district had to meet, and explained that a dismissal for late filing did not necessarily end the matter, because the district could refile within the ten-day window using a new tenth absence.

Common questions

So is the deadline seven days or ten days?
Ten school days, measured from the student's tenth unexcused absence. The seven-day figure was replaced by Senate Bill 1161, and House Bill 2884 changed the starting point to the tenth absence. The opinion read both changes together.

What happens if the district files too late?
Section 25.0951(d) requires the court to dismiss an untimely complaint or referral. The opinion explained that the district can then file a new complaint that includes some earlier absences plus a new, previously unlisted tenth unexcused absence, within ten days of that tenth absence, as long as all absences are within the same six-month period.

Why didn't the later bill simply override the earlier one?
Because the two amendments could be harmonized. The opinion applied the rule that same-session amendments to one statute, enacted without reference to each other, are harmonized when possible, so the later-enacted-controls rule did not apply.

Background and statutory framework

Before the 2007 changes, section 25.0951(a) required a district, within seven school days of a student's last absence, to file a complaint or refer the student to juvenile court once the student accumulated ten unexcused absences within a six-month period (Act of May 27, 2005, 79th Leg., R.S., ch. 949, § 37, 2005 Tex. Gen. Laws 3198). Underlying offenses include a parent's criminal-negligence failure to require attendance (Tex. Educ. Code Ann. § 25.093(a)) and a student's own failure to attend (id. § 25.094(a)); conduct indicating a need for supervision covers the same absence pattern (Tex. Fam. Code Ann. § 51.03(b)(2)).

In 2007 the Legislature amended subsection (a) twice: Senate Bill 1161 changed "seven" to "10" (Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Gen. Laws 3457; effective June 15, 2007), and House Bill 2884 changed "last" to "10th" (Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Gen. Laws 2274; effective September 1, 2007). The opinion applied the presumption that the Legislature intends its acts to be effective in their entirety (Tex. Gov't Code Ann. § 311.021(2); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)) and the rule that same-session amendments enacted without reference to each other are harmonized if possible (Tex. Gov't Code Ann. § 311.025(b); Young v. State, 14 S.W.3d 748, 752 (Tex. Crim. App. 2000); Rhoades v. State, 934 S.W.2d 113, 122 (Tex. Crim. App. 1996)). Because changing both words produced no absurd result (Univ. of Tex. S.W. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004), quoting Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996)), and consistent with Opinion GA-0574 (2007), the opinion held both amendments effective.

Citations

Statutes:

• Tex. Educ. Code Ann. §§ 25.0951(a), 25.0951(d), 25.085 (Vernon Supp. 2007); 25.093(a), 25.094(a) (Vernon 2006)
• Tex. Fam. Code Ann. § 51.03(b)(2) (Vernon Supp. 2007)
• Tex. Gov't Code Ann. §§ 311.021(2), 311.025(b) (Vernon 2005)
• Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Gen. Laws 3457 (Senate Bill 1161)
• Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Gen. Laws 2274 (House Bill 2884)

Cases:

• Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)
• Young v. State, 14 S.W.3d 748, 752 (Tex. Crim. App. 2000)
• Rhoades v. State, 934 S.W.2d 113, 122 (Tex. Crim. App. 1996)
• Univ. of Tex. S.W. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004)
• Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0607
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0607.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

GREG ABBOTT

March 13, 2008

The Honorable Jeri Yenne
Brazoria County Criminal District Attorney
111 East Locust, Suite 408A
Angleton, Texas 77515

Opinion No. GA-0607

Re: Whether Senate Bill 1161 (2007) and House Bill 2884 (2007), both of which amended Education Code section 25.0951, can be harmonized (RQ-0625-GA)

Dear Ms. Yenne:

Education Code section 25.0951(a) requires a school district to file, within a certain time period, a complaint or referral against a student who has accumulated a certain number of unexcused absences from school. See TEX. EDUC. CODE ANN. § 25.0951(a) (Vernon Supp. 2007), as amended by Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Gen. Laws 2274, 2288 and Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Gen. Laws 3457, 3457-58. Section 25.0951(d) requires a court to dismiss a complaint or referral that is untimely filed. See TEX. EDUC. CODE ANN. § 25.0951(d) (Vernon Supp. 2007).

In 2007 the Legislature adopted two bills amending section 25.0951(a). See Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Gen. Laws 2274, 2288 and Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Gen. Laws 3457, 3457-58. Because the amendments changed different words in subsection (a), you ask which of the two amendments is effective.[1]

Prior to amendment by the Eightieth Legislature, Education Code section 25.0951(a) required a school district, within seven school days of the last absence, to file a complaint against or to refer to juvenile court a student who had accumulated ten unexcused absences over a six-month period within the same school year:

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 seven school days of the student's 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[2] or 25.094,[3] 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 under Section 51.03(b)(2), Family Code.[4]

Act of May 27, 2005, 79th Leg., R.S., ch. 949, § 37, 2005 Tex. Gen. Laws 3198, 3211-12 (amended 2007) (current version at TEX. EDUC. CODE ANN. § 25.0951(a) (Vernon Supp. 2007)) (footnotes and emphasis added).

During the Eightieth session, the Legislature amended section 25.0951(a) twice. See Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Gen. Laws 2274, 2288; Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Gen. Laws 3457, 3457-58. On May 23, 2007, when Senate Bill 1161 passed the House and became enrolled, the Legislature changed the word "seven," italicized in the quotation above, to the numeral "10." See Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Gen. Laws 3457, 3457. Two days later, on May 25, by the passage of House Bill 2884, the Legislature changed the word "last," italicized in the quotation above, to "10th." See Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Gen. Laws 2274, 2288. Senate Bill 1161 did not change the word "last," as House Bill 2884 did; nor did House Bill 2884 change the word "seven," as Senate Bill 1161 did. And neither bill referred to the other.

Senate Bill 1161 became effective when the Governor signed it on June 15, 2007. See Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 2, 2007 Tex. Gen. Laws 3457, 3458. House Bill 2884, on the other hand, became effective on September 1, 2007. See Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 47, 2007 Tex. Gen. Laws 2274, 2291. You suggest that on and after September 1, 2007, only the later enacted provision, the amendment made by House Bill 2884, is effective; the earlier enacted provision, Senate Bill 1161, was effective only from the time of the Governor's signature until House Bill 2884 took effect. See Request Letter, supra note 1, at 3. Thus, in your view, a school district must file a "non-attendance complaint" within seven, rather than ten, days of the student's tenth absence. Id. at 3. In making this suggestion, you assume the amendments cannot be harmonized. See id.

We must presume in construing statutes that the Legislature intended its acts to be effective in their entirety. See TEX. GOV'T CODE ANN. § 311.021(2) (Vernon 2005); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). In particular, "if amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each." TEX. GOV'T CODE ANN. § 311.025(b) (Vernon 2005). If two amendments can be harmonized, a court will not apply the rule of statutory construction that the later enacted provision prevails. See id.; Young v. State, 14 S.W.3d 748, 752 (Tex. Crim. App. 2000). Two legislative enactments need not be found to conflict if each makes substantive amendments to the statute that the other does not make. See Rhoades v. State, 934 S.W.2d 113, 122 (Tex. Crim. App. 1996) (Mansfield, J. with three justices concurring, one justice joining only in judgment and two justices concurring in result).

The two amendments to section 25.0951(a) do not conflict. Senate Bill 1161 increased the number of days in which a school district must file a complaint from seven to ten, while House Bill 2884 made more specific the starting point for the filing period, from the "last" absence to the "10th" absence. Thus, each amendment changes a different word, and changing both words does not make the statute absurd. See Univ. of Tex. S.W. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004) ("Courts should not read a statute to create such an absurd result." (quoting Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996)).

Consequently, as Opinion GA-0574 suggests, both amendments are effective. See Tex. Att'y Gen. Op. No. GA-0574 (2007) at 3. Section 25.0951(a) reads:

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 school days of the student's 10th absence:

(1) file a complaint . . . for an offense under Section 25.093 or 25.094 . . . or refer the student to a juvenile court . . . for conduct that violates Section 25.094; or

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

TEX. EDUC. CODE ANN. § 25.0951(a) (Vernon Supp. 2007).

You also ask whether a school district that has had a complaint dismissed as untimely may, given the amendments to section 25.0951(a), "file a new complaint with an unexcused absence that occurred subsequent to the absences noted on the original complaint . . . within seven days of the latest unexcused absence." Request Letter, supra note 1, at 2 (quoting Tex. Att'y Gen. Op. No. GA-0417 (2006) at 8). As Opinion GA-0574 indicates, "[n]othing in the statute forbids a school district [to file] a new complaint listing some of the absences [named] 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." Tex. Att'y Gen. Op. No. GA-0574 (2007) at 2-3. As the opinion further notes, however, under the amendments to section 25.0951(a), the new complaint must be filed within ten, not seven, school days of the tenth absence listed in the complaint. See id. at 3. To answer your question, therefore, we conclude that a school district may file a new complaint listing some of the absences named in the dismissed complaint in addition to a subsequent, previously unlisted, unexcused absence. The new complaint must be filed within ten days of the tenth absence listed in the new complaint.

SUMMARY

Because they can be harmonized, both of the enactments adopted by the Eightieth Legislature amending Education Code section 25.0951(a) are effective. Compare Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Gen. Laws 2274, 2288, with Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Gen. Laws 3457, 3457-58. Consequently, section 25.0951(a) requires a school district, within ten school days of the student's tenth absence, to file a complaint against or to refer to juvenile court a student who fails to attend school without excuse for at least ten days or parts of days within a six-month period.

If the school district files an untimely complaint or referral, it may file a new complaint that lists some of the absences named in the dismissed complaint in addition to a subsequent, previously unlisted unexcused absence. The new complaint must be filed within ten days of the tenth absence listed in the new complaint.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Jeri Yenne, Brazoria County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas (Sept. 13, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Under Education Code section 25.093, a parent who, with criminal negligence, fails to require a child to attend school in accordance with mandatory attendance laws commits an offense. See TEX. EDUC. CODE ANN. § 25.093(a) (Vernon 2006); see also id. § 25.085 (Vernon Supp. 2007) ("Compulsory School Attendance").

[3] Under Education Code section 25.094, an individual who is required to attend school but who fails to do so "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" commits an offense. Id. § 25.094(a) (Vernon 2006); see also id. § 25.085 (Vernon Supp. 2007) ("Compulsory School Attendance").

[4] Conduct indicating a need for supervision includes "the absence of a child 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 from school." TEX. FAM. CODE ANN. § 51.03(b)(2) (Vernon Supp. 2007).