By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
JP or Municipal Court may compel custodian to
attend court in truancy or failure to attend school case (99-4-06).
On September 9, 1999, the Attorney General stated that section 54.021 of the
Family Code, which authorizes a court presiding over a truancy or failure to
attend school case to compel a parent, guardian or custodian to attend the case
in court controls over section 54.022, which in any other juvenile case before a
JP or Municipal Court authorizes the court to compel only the parent or guardian
to attend court.
99-4-06. Attorney General Opinion No. JC-0110, 1999 WL 714631, 1999 Tex.Ag.Lexis
____ (9-9-99)[Texas Juvenile Law 394 (4th Edition 1996)].
Re: Authority of a court with jurisdiction of truancy cases to compel the
appearance in court of a truant who is living with a custodian, and related
question (RQ-0043)
The Honorable James Warren Smith, Jr.
Frio County Attorney
500 East San Antonio Street, Box 1
Pearsall, Texas 78061-3100
Dear Mr. Smith:
A court with jurisdiction over a juvenile alleged to have engaged in truant
behavior under section 51.03(b)(2) of the Family Code may direct the juvenile's
"custodian" to appear personally in court and to bring the juvenile.
See Tex. Fam. Code Ann. § 54.021(g) (Vernon 1996). A "custodian" is
the "adult with whom the child resides." Id. § 51.02(3). You ask how
a court with such jurisdiction lawfully may compel a juvenile charged with
failure to attend school to appear in court when the juvenile is living with a
custodian rather than a parent, managing conservator, or guardian. Consistently
with section 54.021(g) of the Family Code, we conclude the court may direct the
custodian to appear in court and to bring the juvenile. See id. § 54.021(g).
You also ask whether a county court, sitting as a juvenile court, may waive
jurisdiction of all truancy cases, as a class, or whether the juvenile court
must waive jurisdiction on a case-by-case basis. Section 54.021(a) of the Family
Code authorizes the juvenile court to waive jurisdiction of truancy cases either
as a class or on a case-by-case basis. See id. § 54.021(a).
In general, a child between the ages of six and eighteen years of age must
attend school "each school day for the entire period the program of
instruction is provided." Tex. Educ. Code Ann. § 25.085(a) (Vernon 1996).
But see id. § 25.086 (listing exemptions from compulsory school attendance
requirement) (Vernon 1996 & Supp. 1999). A child with unexcused, voluntary
absences on ten or more days or parts of days within a six-month period or three
or more days or parts of days within a four-week period without the child's
parents' consent commits a Class C misdemeanor (which we will refer to as
"failure to attend school" or "truancy"). See id. §
25.094(a), (f) (Vernon 1996); Tex. Fam. Code Ann. §§ 51.03(b)(2) (Vernon Supp.
1999); 51.03(d) (Vernon 1996) (listing excused absences).
Failure to attend school also constitutes "conduct indicating a need for
supervision," and a juvenile court has exclusive jurisdiction over cases
involving such conduct. Tex. Fam. Code Ann. § 51.04(a) (Vernon 1996). A
juvenile court may, however, waive its exclusive jurisdiction of cases involving
failure to attend school. See id. § 54.021(a). If the juvenile court has
properly waived its jurisdiction of some or all truancy cases, a justice or a
municipal court may exercise jurisdiction over a person who is alleged to have
failed to attend school. See id. § 54.021(b). "A waiver of jurisdiction .
. . may be for an individual case or for all cases in which a child is alleged
to have engaged in conduct described in Section 51.03(b)(2) of this code
[relating to failure
to attend school]." Id. § 54.021(a). If the juvenile court waives
jurisdiction of all truancy cases, the waiver is effective for one year. Id.
The court having jurisdiction of truancy cases has certain tools at its disposal
to compel the appearance in court of the person charged with failure to attend
school:
(g) A court having jurisdiction under this section shall endorse on the summons
issued to the parent, guardian, or custodian of the person who is the subject of
the hearing an order directing the parent, guardian, or custodian to appear
personally at the hearing and directing the person having custody of the person
to bring the person to the hearing.
(h) A person commits an offense if the person is a parent, guardian, or
custodian who fails to attend a hearing under this section after receiving
notice under Subsection (g) of this section that the person's attendance was
required. An offense under this subsection is a Class C misdemeanor.
Id. § 54.021(g), (h). A "custodian" is "the adult with whom the
child resides." Id. § 51.02(3).
You indicate that the juvenile court in your county, a constitutional county
court, has waived its original jurisdiction "over all cases en masse
involving juvenile truants, alleged to" have committed conduct indicating a
need for supervision under section 51.03(b)(2) of the Family Code. See Letter
from Honorable James Warren Smith, Jr., Frio County Attorney, to Attorney
General of Texas (Mar. 17, 1999) (on file with Opinion Committee) [hereinafter
"Request Letter"]. Many of the juveniles, your letter states, do not
reside with a parent, guardian, or managing conservator, i.e., someone with a
legal tie to the juvenile, but rather with a custodian, as that term is defined
in section 51.02(3) of the Family Code, such as an aunt, uncle, cousin, or
grandparents. See Request Letter, supra, at 2.
Section 54.021(g) of the Family Code explicitly authorizes a court with
jurisdiction of truancy cases to compel the custodian to bring the juvenile
before the court. See Tex. Fam. Code Ann. § 54.021(g) (Vernon 1996)
(authorizing court with jurisdiction of truancy cases to order custodian to
appear at hearing and to direct custodian to bring juvenile). Under section
54.021(g), a court with jurisdiction over an alleged failure to attend school
must endorse on the summons issued to the juvenile's parent, guardian, or
custodian an order directing the person personally to appear at the hearing on
the complaint and to bring the juvenile. The custodian's failure to obey
constitutes a Class C misdemeanor. See id. § 54.021(h).
But your letter suggests that a custodian, as opposed to a parent, guardian, or
managing conservator, cannot be compelled by summons to appear in the
appropriate court. See Request Letter, supra, at 2; see also Tex. Fam. Code Ann.
§ 51.02(4), (9) (Vernon 1996) (defining "guardian" and
"parent"). You premise this proposition on section 54.022(e) of the
Family Code. See Request Letter, supra, at 2; see also Tex. Fam. Code Ann. §
54.022(e), renumbered by Act of Apr. 29, 1999, 76th Leg., R.S., ch. 76, § 3,
1999 Tex. Sess. Law Serv. 436, 439.
Section 54.022 is inapplicable in the circumstances you describe. Section 54.022
of the Family Code applies to proceedings in a justice or a municipal court to
determine whether a "child committed an offense that the court has
jurisdiction of under" article 4.11 or 4.14 of the Code of Criminal
Procedure "other than a traffic offense or public intoxication." Tex.
Fam. Code Ann. § 54.022(a) (Vernon 1996), amended by Act of Apr. 29, 1999, 76th
Leg., R.S., ch. 76, sec. 3, § 54.022, Tex. Sess. Law Serv. 436, 438. In
particular, subsection (d), which has been renumbered from subsection (e),
authorizes a court to compel attendance in such a case by endorsing "on the
summons issued to a parent, managing conservator, or a guardian an order to
appear personally at the hearing with the child." Id. § 54.022(d), amended
by Act of Apr. 29, 1999, 76th Leg., R.S., ch. 76, sec. 3, § 54.022, Tex. Sess.
Law Serv. 436, 439. A parent's, managing conservator's, or guardian's failure to
comply may be punishable as a Class C misdemeanor. Id. By its terms, section
54.022 does not authorize a court to compel a custodian to appear at a hearing
and to bring the juvenile.
In our opinion, section 54.021, which applies specifically to truancy
proceedings, prevails over section 54.022, which applies to misdemeanors
generally. Where general and specific statutes conflict irreconcilably, the
specific provision typically prevails as an exception to the general provision
unless the general provision was enacted later and there is "clear evidence
that the legislature intended the general provision to prevail. See Tex. Gov't
Code Ann. § 311.026(b) (Vernon 1998); City of Lake Dallas v. Lake Cities Mun.
Util. Auth., 555 S.W.2d 163, 168 (Tex. Civ. App.-Fort Worth 1977, writ ref'd
n.r.e.).
While section 54.022 was adopted after section 54.021, see Act of May 27, 1995,
74th Leg., R.S., ch. 262, § 36, sec. 54.022, 1995 Tex. Gen. Laws 2517, 2535-36,
there is no evidence that the legislature intended that section to prevail over
the more specific section 54.021 with respect to truancy proceedings. Nothing in
the language of section 54.022 itself, for example, suggests such a legislative
intent. By contrast, Attorney General Opinion JM- 1132 found a manifest
legislative intent that the general law, section 6.27(b) of the Tax Code, would
prevail over a specific law, such as a particular hospital district's enabling
act, based upon the plain language of the general law. See Tex. Att'y Gen. Op.
No. JM-1132 (1990) at 2-3. The bill adopting section 6.27 of the Tax Code
directed the repeal of all other general, local, and special laws that conflict
with the bill. See id. at 2; Act of May 26, 1979, 66th Leg., R.S., ch. 841, §
6(b), 1979 Tex. Gen. Laws 2217, 2330. Additionally, section 1.02 of the Tax Code
states that title I of the Tax Code, of which section 6.27 is a part, applies to
a taxing unit created by a special or local law unless the special or local law
is enacted after the adoption of title I and the special or local law
"expressly provides that this title does not apply." Tex. Tax Code
Ann. § 1.02 (Vernon 1992); see also Tex. Att'y Gen. Op. No. JM-1132 (1990) at
3. We find no similar express language in section 54.022 of the Family Code. Nor
does anything in the legislative history indicate that the legislature intended
section 54.022 to prevail over inconsistent statutes. Without clear evidence to
the contrary, we must conclude that section 54.021 prevails with respect to a
case involving failure to attend school. Conversely, section 54.022 does not
apply to truancy proceedings that are covered by section 54.021.
You also ask whether the county court designated as the juvenile court may waive
its exclusive jurisdiction over truancy cases "en masse" or whether
the juvenile court must waive its jurisdiction on a case-by-case basis. See
Request Letter, supra, at 3. Under section 54.021(a) of the Family Code, a
juvenile court may waive its exclusive jurisdiction of cases involving conduct
indicating a need for supervision, where the alleged conduct is failure to
attend school, either on a case-by-case basis or for all such cases. If the
court waives its jurisdiction of all truancy cases as a class, the waiver is
effective for one year. See Tex. Fam. Code Ann. § 54.021(a) (Vernon 1996).
Summary
With respect to a juvenile who is charged with failure to attend school and who
is living with a custodian, section 54.021(g) of the Family Code authorizes a
court with jurisdiction of truancy cases to compel the juvenile's court
appearance by summoning the custodian to appear and to bring the juvenile.
Under section 54.021(a) of the same code, a juvenile court may waive its
exclusive jurisdiction of cases involving conduct indicating a need for
supervision, where the alleged conduct is failure to attend school, either on a
case-by-case basis or for all such cases. If the court waives its jurisdiction
of all truancy cases as a class, the waiver is effective for one year.
Yours very truly,
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
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee