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JP1 Failure to attend school

Failure to Attend School

 

 

Persons Required to Attend School

A child who is at least 6 years of age, or who is younger than 6 years of age and has previously been enrolled in first grade, and who has not yet reached the 18th birthday, is required to attend school.
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Those also required to attend school include:

  • A child on enrollment in pre-kindergarten or kindergarten;
  • A person in an extended year program for students identified as likely not to be promoted, or in tutorial classes required under Section 29.084;
  • A person assigned to an accelerated reading instruction program under Section 28.006(g);
  • A child assigned to an accelerated instruction program under Section 28.0211;
  • A child assigned to a basic skills program under Section 29.086;
  • A child in a summer program provided under Section 37.008(l) or Section 37.021.

A person who voluntarily enrolls in school or voluntarily attends school after the person’s 18th birthday shall attend school each school day for the entire period of the program. Enrollment may be revoked after the person has more than 5 unexcused absences in a semester.

The board of trustees may adopt a policy requiring a person who voluntarily enrolls in school or voluntarily attends school after the person’s 18th birthday, but who is under 21 years of age, to attend school until the end of the school year.  A person who violates this policy may be charged with the offense of “failure to attend school.”  However, a parent may not be charged with “parent contributing to nonattendance.”  The school district does not need to notify a parent of the consequences of failing to attend school
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Tex. Educ. Code §25.085.

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Exemptions from Compulsory Attendance

The following students are exempt from the compulsory attendance requirements:

  • A child attending a private or parochial school with a course in good citizenship;
  • A child eligible to participate in a school district's special education program under Section 29.003 who cannot be appropriately served by the resident district;
  • A child who has a physical or mental condition of a temporary and remediable nature that makes attendance infeasible, holding a certificate from a qualified physician;
  • A child who is expelled in a district without a mandatory juvenile justice alternative education program;
  • A child who is at least 17 years old and attending a course in preparation for the high school equivalency examination, and:

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  • A child who is at least 17 years old and has a high school diploma or high school equivalency certificate;
  • A child who is at least 16 years old and is attending a course in preparation for the high school equivalency examination if:

          (i)   A public agency has recommended, or a court has ordered the course; or
         (ii)  The child is enrolled in a Job Corps training program;

  • A child who is at least 16 years of age and is enrolled in a Job Corps diploma program under Chapter 18 of the Texas Education Code;
  • A child who is enrolled in the Texas Academy of Mathematics and Science;
  • A child who is enrolled in the Texas Academy of Leadership in the Humanities;
  • A child who is enrolled in the Texas Academy of International Studies;
  • A child who is enrolled in the Texas Academy of Mathematics and Science at the University of Texas at Brownsville; or
  • A child who is exempted under another law.

Tex. Educ. Code §25.086.

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As a Criminal Offense

An individual commits the offense of “failure to attend school,” if the individual (i) is required to attend school, and (ii) fails to attend school:
(i)   On 10 or more days or parts of days within a 6-month period in the same school year; or
(ii)  On 3 or more days or parts of days within a 4-week period.
Tex. Educ. Code §25.094.
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It is an affirmative defense to prosecution for “failure to attend school” that one or more of the absences required to be proven:
(i)   Were excused by a school official or by the court; or
(ii)  Were involuntary, but only if there is an insufficient number of unexcused or voluntary absences remaining to constitute an offense
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The burden is on the defendant to show by a preponderance of the evidence that the absence has been or should be excused or that the absence was involuntary.
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A decision by the court to excuse an absence for purposes of the prosecution of the offense of “failure to attend school” does not affect the ability of the school district to determine whether to excuse the absence for another purpose.

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Excused Absences

A student may be excused for temporary absence resulting from any cause acceptable to the teacher, principal, or superintendent of the school in which the student is enrolled.
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A student in grades 6 through 12 may be excused for the purpose of sounding “Taps” at a military honors funeral held in this State for a deceased veteran.  If the student satisfactorily completes the school work missed while absent, the day of absence is counted as a day of compulsory attendance. 

During the junior or senior years of high school, a student may be excused to visit an institution of higher education accredited by a generally recognized accrediting organization.  The district may not excuse more than two days during the junior year and two days during the senior year for this purpose.

A school district must excuse a student


(a) For observance of religious holy days, including travel; or 

(b) For attending a required court appearance, including travel; or

(c) For an appearance at a governmental office to complete paperwork required with an application for citizenship; or

(d) For serving as an election clerk; or

(e) For taking part in a naturalization ceremony.

A school district must excuse a student for a temporary absence resulting from health care professionals if the student commences classes or returns to school on the same day of the appointment.  This excuse includes the temporary absence of a student diagnosed with autism spectrum disorder on the day of the student’s appointment with a health care practitioner to receive a generally recognized service for persons with autism spectrum disorder, including applied behavioral analysis, speech and occupational therapy.

Where excuse is mandatory, and in the instances where the student is visiting institutions of higher education, or sounding “Taps,” the student 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.  If the student satisfactorily completes the school work missed while absent, the day of absence is counted as a day of compulsory attendance.

Tex. Educ. Code §25.087.
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At the beginning of the school year, the school district must notify the parent in writing that if the student is absent from school on 10 or more days or parts of days within a 6-month period in the same school year, or on 3 or more days or parts of days within a 4-week period, the parent is subject to prosecution for “parent contributing to nonattendance,” and the student is subject to prosecution for “failure to attend school.” The school district is also required to notify a parent if the student has been absent without excuse on 3 days or parts of days within a 4-week period. This second notice must inform the parent that it is the parent’s duty to monitor and require the student to attend school, and the parent is subject to prosecution for “parent contributing to nonattendance;” and that the parent must request a conference between school officials and the parent.
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Tex. Educ. Code §25.095.

 

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Criminal Jurisdictions

The offense of “failure to attend school” may be prosecuted in the Justice Court of any Justice of the Peace in which the individual required to attend school resides or in which the school is located. (Tex. Educ. Code §25.094).
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Mandatory action against student by school district
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Under Section 25.0951 of the Texas Education Code, if a student fails to attend school without excuse on 10 or more days or parts of days within a 6-month period in the same school year, the school district must either file a complaint against the student or the student’s parent or both, or refer the student to the juvenile court for conduct indicating a need for supervision.
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If the school district chooses to file the charge of “failure to attend school” against the student, it must do so within ten (10) school days of the student’s last absence. The court must dismiss charges that are not filed within 10 school days of the student’s 10th absence.
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Permissive action against student by school district
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When a student fails to attend school without excuse on 3 or more days or parts of days within a 4-week period, the school district may file a complaint against the student or the student’s parent, or both, or refer the student to the juvenile court for conduct indicating a need for supervision. (Tex. Educ. Code §25.0951).
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The offense of “failure to attend school” is punishable by a fine not to exceed $500.00. In addition to the fine, court costs are charged as authorized by law.
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Criminal procedures are found in Chapter 45 of the Texas Code of Criminal procedure. Specific procedures for “failure to attend school” proceedings are found in Article 45.054 of the Texas Code of Criminal Procedure. 
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The Rules of Evidence governing the trials of criminal actions in the District Courts apply to a criminal proceeding in the Justice Courts.
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The County Attorney for Hale County prosecutes “failure to attend school” proceedings filed in the Hale County Justice Courts.

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Issuance of Citations or Filing of Complaints

A peace officer or an attendance officer who is charging a student with “failure to attend school” may issue a citation that contains written notice of the offense charged and of the time and place the student must appear before a magistrate.
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A peace officer or an attendance officer may file a complaint charging a student with “failure to attend school.”
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The parent of a child who repeatedly fails to attend school may be charged with the offense of “parent contributing to nonattendance.”

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Responding to Citations or Criminal Complaints

Summons for Parent or Person Standing in Parental Relation (“Parent”)


The court having jurisdiction of the “failure to attend school” charge will issue a summons to the parent of the student charged or to the person standing in parental relation to the student charged. The summons will contain an order directing the parent to appear personally at the hearing and to bring the student to the hearing.
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A parent who fails to attend a hearing after receiving a summons commits an offense punishable as a Class C misdemeanor.

Rights of Defendants
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Defendants accused of an offense within the jurisdiction of the justice courts have certain rights.

  • The right to see the complaint or citation that has been filed with the court.
  • The right to a trial by jury, but that right may be waived and trial will be by the court.
  • The right to be represented by an attorney of choice. A defendant is not required to be represented by an attorney.
  • The right to remain silent. A defendant may waive this right and discuss the case with a prosecutor in an effort to dispose of the case without trial.


First Appearance in Court 
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At the time of the first appearance for the offense of “failure to attend school,” the student will be identified, and asked to plead to the offense charged. 
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Pleas are "not guilty," "guilty," or "no contest."
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The plea of a defendant younger than 17 years old must be made in open court, with the defendant’s parent present.
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If the defendant enters a plea “not guilty,” the case will be set for trial. The defendant may waive the right to a trial by jury and have the case heard by the court. At the request of the defendant, the court will subpoena a witness on the defendant’s behalf, but the name, address, and telephone number of each witness must be furnished to the court prior to trial. The defendant may be required to attend a pre-trial conference.
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Refusal to enter a plea will result in the entry of a “not guilty” plea by the court and the case will be set for a jury trial unless that right is waived.
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A defendant charged with “failure to attend school” will have the opportunity to review their case with a prosecutor.
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On a plea of “guilty” or “no contest” the court will make a finding of guilt and assess a fine as punishment. 
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On a plea of “guilty” or “no contest,” evidence or documents may be presented to the court and mitigating circumstances that may affect punishment may be explained. 
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Defendants have a responsibility to notify the court of any change of address.

Right to Expunction
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A defendant convicted only one time of the offense of “failure to attend school” has the right to have the records of that conviction expunged. On commencement of proceedings for “failure to attend school,” the judge must inform the student and the student’s parent, in open court, of the right to expunction under certain circumstances. The judge must also provide a copy of Tex. Crim. Proc. Code §45.055. If the record is expunged, the defendant is released from all disabilities resulting from the conviction and the conviction may not be shown or made known for any purpose.
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A person seeking to have the record expunged must submit a written request under oath, to the court in which the person was convicted. The request may be submitted on or after the person’s 18th birthday and must include the following statement:
 “I have not been convicted of more than one violation of Failure to Attend School, §25.094 of the Texas Education.”
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A fee of $30 must be paid when the application for expunction is filed.

Specific Procedures for Failure to Attend School Proceedings
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Suspension of Sentence and Deferral of Final Disposition
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On a plea of guilty or no contest, or on a finding of guilt, and the payment of all court costs, the court may defer further proceedings for up to 180 days placing the defendant on probation. The judge may impose any reasonable conditions of probation. Conditions of probation for “failure to attend school” proceedings may include the following activities:

  • Submit to professional counseling;
  • Submit to diagno stic testing for alcohol or a controlled substance or drug;
  • Submit to a psychosocial assessment;
  • Participate in an alcohol or drug abuse treatment or education program;
  • Pay the costs of any diagnostic testing, psychosocial assessment, or participation in a treatment or education program;
  • Attend school without unexcused absences;
  • Attend a preparatory class for the high school equivalency examination;
  • Take the high school equivalency examination if the individual is at least 16 years old;
  • Attend special programs that the court determines to be in best interest of the defendant;
  • Complete reasonable community service requirements;
  • Require the individual to participate in a tutorial program.

The court may enter an order requiring the defendant and the defendant’s parent to attend a class for students at risk of dropping out of school.
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You may be required to pay a special expense in an amount not to exceed the amount of the fine assessed.

Usually the court will require the defendant to appear prior to the conclusion of the deferral period to present satisfactory evidence of compliance.
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When the court determines that you have complied with the requirements imposed, your case will be dismissed. 
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If you fail to present satisfactory evidence that you have complied with the requirements, the court will impose the fine assessed and you will be required to pay that fine. If you paid a special expense, that amount will be credited toward the payment of the amount of the fine imposed. The imposition of the fine constitutes a final conviction.
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The judge has the option of including additional orders allowed under Article 45.054 of the Texas Code of Criminal Procedure.
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The court has the option to enter an order directing the Department of Public Safety to suspend the defendant’s driver’s license or permit, or to deny the issuance of a license or permit for a specified period, not to exceed 365 days.

 

Judgment
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On a plea of “guilty” or “no contest,” or on a finding of guilt, the judge will convict the defendant, assessing a fine and directing the satisfaction of the judgment. 
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In addition, the court may order one or more of the following required activities:

  • Attend school without unexcused absences;
  • Attend a preparatory class for the high school equivalency examination;
  • Take the high school equivalency examination if the individual is at least 16 years old;
  • Attend special programs in the best interest of the individual;
  • Complete reasonable community service;
  • Participate in a tutorial program.

The court may enter an order requiring the defendant and the defendant’s parent to attend a class for students at risk of dropping out of school.
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Usually the court will require the defendant to appear at a future date to present satisfactory evidence of compliance with the requirements of the judgment or to show cause why the individual should not be held in contempt for violating the court’s orders.
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The court may also enter an order directing the Department of Public Safety to suspend the driver’s license or permit, or deny the issuance of a license or permit, to the individual for a period specified by the court, not to exceed 365 days.

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New Trial and Appeal

New Trial 
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A motion for new trial must be made within one (1) day after the rendition of the judgment. A motion for new trial cannot be made afterward.
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The judge has ten (10) days after the date the judgment was entered within which to grant a new trial. If a motion for new trial is not granted before the eleventh (11th) day after the date the judgment was entered, the motion for new trial is considered denied.
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Appeal
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An appeal from a judgment of a Hale County Justice Court is heard by a Hale County Court.
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An appeal is perfected by filing an Appeal Bond in the amount of two (2) times the amount of the fine and costs. The bond is filed with the justice court in which the case was filed, and must be filed not later than the tenth (10th) day after the date the judgment was entered.
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When the appeal bond has been timely filed, all proceedings in the Justice Court will cease.

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Failure to Appear in Court as Required

If a juvenile charged with an offense filed in the Justice Court fails to appear in court as required, the court will issue a warning to the juvenile when the juvenile reaches seventeen (17) years of age. The notice will warn the individual of a continuing obligation to appear to conclude the case.
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The notice will further warn that the failure to appear as required by the notice is a criminal offense punishable by a fine not to exceed $500.00, and will result in the issuance of an arrest warrant.

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Failure to Pay the Fine or to Comply with the Additional Orders Imposed in the Judgment

A defendant who fails to satisfy the fine and court costs as directed by the court may be held in contempt or if the defendant is under 17 years of age, may be referred to the Hale County Juvenile Courts for violating the court's Orders. A defendant held in contempt may be punished by either or both of the following:
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1) A fine not to exceed $500.00;
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2) The suspension of the defendant's driver's license until the defendant fully complies with the Orders of the court, or the denial of the issuance of a driver's license to the defendant until the defendant fully complies with the Orders of the court.
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If a defendant fails to satisfy the judgment for fine and costs as required by the court, the court may issue a capias pro fine ordering the arrest of the defendant to be brought before the court. A capias pro fine may issue at the time the defendant is 17 years of age or older.

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DISCLAIMER

The information provided on this web site is intended for informational purposes only. Nothing herein should be taken as legal advice. No warranty is made as to the accuracy or correctness of any information contained on this web page. Every legal problem has a unique set of facts and circumstances behind it. Persons seeking legal advice should contact their own attorney for that advice and should not rely on anything presented herein.