Can a Texas justice of the peace order a truant student to wear an ankle monitor as a condition of probation?

TX AG Opinion GA-0713: Can a JP order an ankle monitor in a truancy case?

Plain-English summary

The Brazos County Attorney asked whether a justice of the peace, on a guilty or no-contest plea or a finding of guilt for failure to attend school under Education Code section 25.094, may defer further proceedings, place the person on probation, and order the person to wear an electronic monitoring device as a reasonable condition of deferral under article 45.051(b)(10) of the Code of Criminal Procedure.

The Attorney General first dealt with a threshold question: does a justice court even have article 45.051's powers in a truancy case? Section 25.0952 says that in a proceeding based on a section 25.094 complaint, the court uses the procedures and powers of chapter 45 of the Code of Criminal Procedure "except as otherwise provided by this chapter." Section 25.094(c) lets the court enter an order with the requirements listed in article 45.054, but the opinion found that reference did not clearly and exclusively limit the court to article 45.054's options. So the broad grant in section 25.0952 lets the court use article 45.051 in a truancy case.

Turning to the merits, article 45.051 lets a justice court defer proceedings, place a defendant on probation, and impose listed conditions. It does not list electronic monitoring, but article 45.051(b)(10) allows "any other reasonable condition." Probation conditions are reasonable when they bear a reasonable relationship to treating the accused and protecting the public, and a condition is invalid only if it has no relationship to the crime, relates to noncriminal conduct, and is not reasonably related to future criminality or the ends of probation. Whether monitoring is reasonable in a given case is a case-by-case determination the justice court makes in the first instance, not something the Attorney General opinion process decides. So a justice court may use electronic monitoring as a deferral or probation condition under section 25.094 if it finds the use reasonable.

Currency note

This opinion was issued in 2009. 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 overhauled its truancy laws after this opinion, including changes to how failure to attend school is handled. The statutes described here may no longer operate as they did. Confirm the current truancy and justice court provisions before relying on this opinion.

Who this opinion affected (as of 2009)

Justices of the peace: The opinion concluded they could impose electronic monitoring as a deferral or probation condition in a section 25.094 truancy case, so long as they found it reasonable in the particular case.

Students charged with truancy and their families: The opinion explained that monitoring was a permissible condition only if reasonably related to treating the accused and protecting the public, a determination the court had to make case by case.

School districts: The opinion noted that subchapter C required districts to file truancy complaints, often in justice court, which then exercised chapter 45 powers in handling them.

Common questions

Could a JP really put an ankle monitor on a truant student?
Yes, the opinion said, if the court found it reasonable. Article 45.051(b)(10) lets a justice court impose "any other reasonable condition" of deferral or probation, which can include electronic monitoring.

Isn't the court limited to the conditions the truancy statute lists?
No. The opinion held that section 25.094(c)'s reference to article 45.054 did not exclusively limit the court, so section 25.0952's broad grant let the court use article 45.051.

What makes a monitoring condition reasonable?
The opinion applied the test that a condition must bear a reasonable relationship to treating the accused and protecting the public, and not be unrelated to the crime or to future criminality.

Did the AG decide whether monitoring was reasonable here?
No. The opinion said reasonableness is a case-by-case determination for the justice court in the first instance, not a question for the attorney general opinion process.

Background and statutory framework

Education Code subchapter C governs school attendance, and section 25.094 defines the Class C misdemeanor of failure to attend school (Tex. Educ. Code Ann. §§ 25.081-.0952, 25.094(a), (e) (Vernon 2006 & Supp. 2008)). A district must file a complaint, which may go to justice court (id. § 25.0951(a)(1) (Vernon Supp. 2008)), and section 25.094(c) lets the court enter an order with the requirements in article 45.054 (id. § 25.094(c) (Vernon 2006); Tex. Code Crim. Proc. Ann. art. 45.054 (Vernon Supp. 2008)). Section 25.0952 directs the court to use chapter 45's procedures and powers except as otherwise provided (id. § 25.0952; Tex. Code Crim. Proc. Ann. art. 45.002 (Vernon 2006)), and the opinion read section 25.094(c)'s reference as non-exclusive (see United States v. Providence Journal Co., 485 U.S. 693, 705 n.9 (1988)). Article 45.051 lets a justice court defer proceedings and impose conditions, including "any other reasonable condition" under subsection (b)(10), though it does not list electronic monitoring as article 42.12 does for community supervision (Tex. Code Crim. Proc. Ann. arts. 45.051(a)-(b), (b)(10) (Vernon Supp. 2008), 42.12 § 11(a)(17)). Reasonableness follows the relationship test of Tamez v. State, 534 S.W.2d 686, 691 (Tex. Crim. App. 1976), and the invalidity factors of Lacy v. State, 875 S.W.2d 3, 5 (Tex. App.-Tyler 1994, writ ref'd); see Grodis v. State, 921 S.W.2d 502, 504-05 (Tex. App.-Fort Worth, 1996, pet. ref'd), and is a case-by-case call (Tex. Att'y Gen. Op. Nos. DM-437 (1997), JM-898 (1988)).

Citations

Statutes:

• Tex. Educ. Code Ann. §§ 25.081-.0952, 25.094(a), (c), (e), 25.0951(a)(1), 25.0952 (Vernon 2006 & Supp. 2008)
• Tex. Code Crim. Proc. Ann. arts. 45.002, 45.051(a)-(b), (b)(10), 45.054 (Vernon 2006 & Supp. 2008), 42.12 § 11(a)(17)

Cases:

• United States v. Providence Journal Co., 485 U.S. 693, 705 n.9 (1988)
• Tamez v. State, 534 S.W.2d 686, 691 (Tex. Crim. App. 1976)
• Lacy v. State, 875 S.W.2d 3, 5 (Tex. App.-Tyler 1994, writ ref'd)
• Grodis v. State, 921 S.W.2d 502, 504-05 (Tex. App.-Fort Worth, 1996, pet. ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0713
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0713.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

May 6, 2009

The Honorable Rodney W. Anderson
Brazos County Attorney
300 East 26th Street, Suite 325
Bryan, Texas 77803

Opinion No. GA-0713

Re: Authority of a justice of the peace in a proceeding under section 25.094, Education Code (RQ-0762-GA)

Dear Mr. Anderson:

You ask whether a justice of the peace may

[o]n a plea of guilty or nolo contendere or on a finding of guilt on the charge of failure to attend school under [section 25.094, Education Code,] . . . defer further proceedings, place the individual on probation, and enter an order requiring the individual to wear an electronic monitoring device as a reasonable condition of deferral under [article 45.051(b)(10), Code of Criminal Procedure].[1]

Section 25.094, one of the provisions at issue in your request, is contained in subchapter C, chapter 25, Education Code, which in part governs school attendance. See TEX. EDUC. CODE ANN. §§ 25.081-.0952 (Vernon 2006 & Supp. 2008). Section 25.094 defines the offense of "failure to attend school." Id. § 25.094(a), (e) (Vernon 2006) (classifying the offense as a Class C misdemeanor). Subchapter C requires a school district to file a complaint against an individual who fails to attend school and authorizes the district to file the complaint in a justice court. See id. § 25.0951(a)(1) (Vernon Supp. 2008). Upon specified findings, the justice court is authorized by section 25.094 to "enter an order that includes one or more of the requirements listed in Article 45.054, Code of Criminal Procedure." Id. § 25.094(c) (Vernon 2006). However, subchapter C further provides that "[i]n a proceeding based on a complaint under Section . . . 25.094, the [justice] court shall, except as otherwise provided by this chapter, use the procedures and exercise the powers authorized by Chapter 45, Code of Criminal Procedure." Id. § 25.0952 (emphasis added). Chapter 45, Code of Criminal Procedure, governs proceedings in justice courts. TEX. CODE CRIM. PROC. ANN. art. 45.002 (Vernon 2006).

Before we consider your question about the scope of a justice court's authority under Code of Criminal Procedure article 45.051, an article contained within chapter 45, we must first examine the threshold question of whether a justice court may exercise the authority granted under that article in a proceeding under Education Code section 25.094. By its plain language, section 25.0952 expressly authorizes a justice court to exercise all powers granted to a justice court in chapter 45 unless otherwise provided in chapter 25. See TEX. EDUC. CODE ANN. § 25.0952 (Vernon 2006). It could be argued that because subsection 25.094(c) provides that a court "may enter an order that includes one or more of the requirements listed in Article 45.054" it should operate as a constraint on the justice court's powers as contemplated under section 25.0952, thus limiting the requirements that the court may include in its order to those listed in article 45.054. Id. § 25.094(c); see TEX. CODE CRIM. PROC. ANN. art. 45.054 (Vernon Supp. 2008) (providing that a justice court in a failure to attend school proceeding under section 25.094 has jurisdiction to enter an order that includes one or more punitive requirements). That argument, however, is unpersuasive because section 25.094's reference to article 45.054 does not clearly and exclusively limit the powers of a justice court to those found in article 45.054. As we see no clear legal basis to conclude that the Legislature intended section 25.094's mere reference to article 45.054 to provide otherwise, we conclude that subsection 25.094(c) does not limit a justice court solely to entering an order including one or more requirements listed in article 45.054. See, cf., United States v. Providence Journal Co., 485 U.S. 693, 705 n.9 (1988) ("A statute that begins with '[e]xcept as otherwise provided by law' creates a general rule that applies, unless contradicted in some other provision."). Thus, absent further restrictions in chapter 25, the Legislature's broad language in section 25.0952 would permit a justice court to exercise the power in article 45.051 in a proceeding under section 25.094. Accordingly, we turn to your question.

Article 45.051 is a general provision that authorizes a justice court to defer proceedings against a defendant, place the defendant on probation, and require the defendant to comply with one or more of the specified conditions of probation. See TEX. CODE CRIM. PROC. ANN. art. 45.051(a)-(b) (Vernon Supp. 2008). Article 45.051 does not list an electronic monitoring device as a possible condition or requirement of deferred disposition and probation. See id. art. 45.051(b); cf. id. art. 42.12 § 11(a)(17) (authorizing submission to electronic monitoring as a condition of community supervision). However, article 45.051(b)(10) authorizes a justice court to require that a defendant comply with "any other reasonable condition" in connection with the deferment of proceedings and placement of defendants on probation in misdemeanor cases punishable by fine only. Id. art. 45.051(a), (b)(10). Your question, then, is resolved by a determination of whether, in a proceeding under section 25.094, a requirement that a defendant wear an electronic monitoring device could be considered a reasonable condition of deferment or probation. See Request Letter at 3-6.

Probation conditions are reasonable if the conditions have a "reasonable relationship to the treatment of the accused and the protection of the public." Tamez v. State, 534 S.W.2d 686, 691 (Tex. Crim. App. 1976). A probation condition is invalid if: "(1) it has no relationship to the crime; (2) it relates to conduct that is not in itself criminal; and (3) it forbids or requires conduct that is not reasonably related to the future criminality of the defendant or does not serve the statutory ends of probation." Lacy v. State, 875 S.W.2d 3, 5 (Tex. App.-Tyler 1994, writ ref'd); see cf., Grodis v. State, 921 S.W.2d 502, 504-05 (Tex. App.-Fort Worth, 1996, pet. ref'd) (considering reasonableness of probation conditions imposed in deferred adjudication under article 42.12 using the test from Tamez). A determination of whether a condition of probation is reasonable must be made on a case-by-case basis and is inappropriate to the attorney general opinion process. See Tex. Att'y Gen. Op. Nos. DM-437 (1997) at 1, 3; JM-898 (1988) at 5. We therefore conclude that a justice court may use an electronic monitoring device as a condition of deferment and probation for an individual found to have committed an offense under section 25.094, Education Code, if the use of the device in a given proceeding is reasonable, a determination made by the justice court in the first instance.

SUMMARY

A justice court may use an electronic monitoring device as a condition of deferment of final disposition or probation for an individual found to have committed an offense under section 25.094, Education Code, if the justice court determines that the use of the device in a given proceeding is reasonable.

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]