Can a Texas school take away perfect-attendance rewards from a student with an excused absence?

Texas AG Opinion JC-0099: Excused Absences and "Perfect Attendance" Benefits

Plain-English summary

State Senator Jeff Wentworth asked whether a student whose temporary absence had been excused under Education Code section 25.087(b) could be denied benefits that teachers and schools grant for "perfect attendance," such as skipping certain tests or final exams. The Attorney General concluded that denying the benefit in those circumstances was impermissible.

Texas children from six through seventeen were required to attend school, subject to the exemptions in section 25.086, and a student generally had to be in attendance for at least 90 percent of the days a class was offered to receive credit. Section 25.087(a) let a teacher, principal, or superintendent excuse a temporary absence for any acceptable cause, and section 25.087(b) required a district to excuse certain absences, including absences to observe religious holy days (with travel time) and absences for health-care appointments when the student returned to school the same day.

Two features of section 25.087(b) drove the answer. First, a student whose absence was excused under that subsection "may not be penalized." The opinion agreed with the senator that denying a benefit can fairly be characterized as a penalty. Second, the statute provided that when the student satisfactorily completed the missed work within the reasonable time allowed, "the day of absence shall be counted as a day of compulsory attendance." So once the work was made up, the student was to be treated as if not absent at all. Even if one argued the student had merely failed to qualify for a benefit rather than being penalized, that argument failed because the basis for the denial, the absence, had been expunged. Withholding a benefit awarded solely on attendance therefore amounted to an impermissible penalty.

Currency note

This opinion was issued in 1999. 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 opinion itself noted that House Bill 217, effective beginning with the 1999-2000 school year, removed from section 25.087(b) the requirement that a parent provide a written request for the absence.

Common questions

Could a school deny a perfect-attendance reward to a student with an excused absence?
No, not if the absence was excused under section 25.087(b) and the student completed the missed work within the reasonable time the statute allowed. The opinion treated denial of the benefit as an impermissible penalty.

Why did making up the work matter?
Because the statute said that when the student satisfactorily completed the missed work, the day of absence counted as a day of compulsory attendance. Once that happened, the student was treated as if not absent, so the absence could not be the basis for withholding a benefit.

What kinds of absences did section 25.087(b) require schools to excuse?
Absences to observe religious holy days, including travel for that purpose, and absences for health-care appointments when the student returned to school the same day.

Did this require schools to offer perfect-attendance benefits in the first place?
No. The opinion did not address the authority to offer such benefits. It assumed the benefits could be offered and held only that they could not be denied to students with qualifying excused absences who made up the work.

Background and statutory framework

The question turned entirely on the Education Code's attendance provisions. Under section 25.085(b), children were required to attend school, section 25.086 governed exemptions, and section 25.092(a) tied class credit to attendance for at least 90 percent of the days a class was offered. Section 25.087(a) authorized discretionary excusal of temporary absences, while section 25.087(b) made certain absences mandatorily excused and added protections: the student "may not be penalized," is counted as present for average-daily-attendance purposes, must be allowed a reasonable time to make up missed work, and, on satisfactory completion, has the day of absence counted as a day of compulsory attendance.

The opinion read the "may not be penalized" language together with the make-up-and-count provision to conclude that, once the work was completed, the absence was effectively erased and could not justify withholding an attendance-based benefit. The opinion did not decide the separate question of what authority allowed schools to grant such benefits in the first place.

Citations

Statutes:

• Tex. Educ. Code Ann. § 25.085(b)
• Tex. Educ. Code Ann. § 25.086
• Tex. Educ. Code Ann. § 25.087(a), (b)
• Tex. Educ. Code Ann. § 25.092(a)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0099
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0099.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

August 23, 1999

The Honorable Jeff Wentworth
Chair, Nominations Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. JC-0099

Re: Whether a student who is excused from a public school for a temporary absence pursuant to section 25.087(b) of the Education Code may be denied certain benefits (RQ-0039)

Dear Senator Wentworth:

You ask whether, pursuant to section 25.087(b) of the Education Code, a student who has been temporarily absent from school and whose absence has been excused may be deprived of certain benefits granted by teachers or school systems for "perfect attendance." We conclude that such deprivation is impermissible.

With some exemptions governed by section 25.086 of the Education Code, Texas children from six through seventeen are required to attend school. TEX. EDUC. CODE ANN. § 25.085(b) (Vernon Supp. 1999). In order to receive credit for a class, the student must generally be "in attendance for at least 90 percent of the days the class is offered." Id. § 25.092(a) (Vernon 1996). However, under section 25.087(a), "a child may . . . be excused for temporary absence resulting from any cause acceptable" to the child's teacher, principal, or school superintendent. Moreover, pursuant to section 25.087(b), there are certain causes of temporary absence for which the child must be excused:

A school district shall excuse a student from attending school for the purpose of observing religious holy days, including traveling for that purpose, if before the absence the parent, guardian, or person having custody or control of the student submits a written request for the excused absence. A school district shall excuse a student for temporary absence resulting from health care professionals if that student commences classes or returns to school on the same day of the appointment. A student whose absence is excused under this subsection may not be penalized for that absence and shall be counted as if the student attended school for purposes of calculating the average daily attendance of students in the school district. A student whose absence is excused under this subsection shall be allowed a reasonable time to make up school work missed on those days. If the student satisfactorily completes the school work, the day of absence shall be counted as a day of compulsory attendance.¹

As you explain the matter, "Many teachers and school systems grant students with 'perfect attendance' the benefit of skipping some tests and even final exams. A student who has an excused absence provided in Section 25.087 is penalized by being excluded from receiving this benefit. This practice seems to be in conflict with the statute." Letter from Honorable Jeff Wentworth, Senator, to Honorable John Cornyn, Attorney General (Mar. 3, 1999) (on file with Opinion Committee). We concur.

You do not indicate by what authority the benefits you describe are offered. Assuming that they may be offered, they cannot be denied to students whose absences were excused under section 25.087(b) and who have successfully completed any missed work within the "reasonable time" permitted them under the statute, for two reasons. First, such students "may not be penalized." The denial of a benefit can, as your question suggests, reasonably be characterized as a penalty. Second, while it might be possible to argue that students with absences excused under section 25.087(b) have not been penalized but have simply failed to qualify for a benefit, this argument fails in the light of the statutory provision that, when the student satisfactorily completes the missed work, "the day of absence shall be counted as a day of compulsory attendance." On successful completion of the missed work, then, the student is in effect to be treated as not having been absent. Therefore, the denial of some special benefit accorded solely on the basis of attendance would in that circumstance be an impermissible penalty because the whole basis of the denial would be the now-expunged absence.

SUMMARY

Students whose absences are excused pursuant to section 25.087(b) of the Education Code and who successfully complete the missed work within the reasonable time afforded them by the statute may not be deprived of a benefit based on "perfect attendance."

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee

¹ House Bill 217, enacted by the 76th Legislature and effective beginning with the 1999-2000 school year, removes from section 25.087(b) the requirement that the parent provide a written request for the absence. See Act of May 25, 1999, 76th Leg., R.S., H.B. 217, § 1 (to be codified at TEX. EDUC. CODE ANN. § 25.087(b)).