By:  Grusendorf, Oliveira, Escobar, Gattis,                       H.B. No. 316
 
    et al.                                                                   

A BILL TO BE ENTITLED
AN ACT
relating to a child's failure to attend school. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 25.091, Education Code, is amended by amending Subsections (a) and (b) and adding Subsection (a-1) to read as follows: (a) A peace officer serving as an attendance officer has the following powers and duties concerning enforcement of compulsory school attendance requirements: (1) to investigate each case of a violation of compulsory school attendance requirements referred to the peace officer; (2) to enforce compulsory school attendance requirements by: (A) referring a student to a juvenile court or filing a complaint against a student in a district, county, justice, or municipal court if the student has unexcused absences for the amount of time specified under Section 25.094 or under Section 51.03(b)(2), Family Code; and (B) filing a complaint in a county, justice, or municipal court against a parent who violates Section 25.093; (3) to serve court-ordered legal process; (4) to review school attendance records for compliance by each student investigated by the officer; (5) to maintain an investigative record on each compulsory school attendance requirement violation and related court action and, at the request of a court, the board of trustees of a school district, or the commissioner, to provide a record to the individual or entity requesting the record; (6) to make a home visit or otherwise contact the parent of a student who is in violation of compulsory school attendance requirements, except that a peace officer may not enter a residence without the permission of the parent of a student required under this subchapter to attend school or of the tenant or owner of the residence except to lawfully serve court-ordered legal process on the parent; and (7) to take a student into custody with the permission of the student's parent or in obedience to a court-ordered legal process. (a-1) A peace officer who is not serving as an attendance officer has the following powers concerning enforcement of compulsory school attendance requirements: (1) to enforce compulsory school attendance requirements by: (A) referring a student to a juvenile court or filing a complaint against a student in a district, county, justice, or municipal court if the student has unexcused absences for the amount of time specified under Section 25.094 or under Section 51.03(b)(2), Family Code; and (B) filing a complaint in a county, justice, or municipal court against a parent who violates Section 25.093; (2) to serve court-ordered legal process; (3) to make a home visit or otherwise contact the parent of a student who is in violation of compulsory school attendance requirements, except that a peace officer may not enter a residence without the permission of the parent of a student required under this subchapter to attend school or of the tenant or owner of the residence except to lawfully serve court-ordered legal process on the parent; and (4) to take a student into custody with the permission of the student's parent or in obedience to a court-ordered legal process. (b) An attendance officer employed by a school district who is not commissioned as a peace officer has the following powers and duties with respect to enforcement of compulsory school attendance requirements: (1) to investigate each case of a violation of the compulsory school attendance requirements referred to the attendance officer; (2) to enforce compulsory school attendance requirements by: (A) referring a student to a juvenile court or filing a complaint against a student in a district, county, justice, or municipal court if the student has unexcused absences for the amount of time specified under Section 25.094 or under Section 51.03(b)(2), Family Code; and (B) filing a complaint in a county, justice, or municipal court against a parent who violates Section 25.093; (3) to monitor school attendance compliance by each student investigated by the officer; (4) to maintain an investigative record on each compulsory school attendance requirement violation and related court action and, at the request of a court, the board of trustees of a school district, or the commissioner, to provide a record to the individual or entity requesting the record; (5) to make a home visit or otherwise contact the parent of a student who is in violation of compulsory school attendance requirements, except that the attendance officer may not enter a residence without permission of the parent or of the owner or tenant of the residence; (6) at the request of a parent, to escort a student from any location to a school campus to ensure the student's compliance with compulsory school attendance requirements; and (7) if the attendance officer has or is informed of a court-ordered legal process directing that a student be taken into custody and the school district employing the officer does not employ its own police department, to contact the sheriff, constable, or any peace officer to request that the student be taken into custody and processed according to the legal process. SECTION 2. Section 25.093(a), Education Code, is amended to read as follows: (a) If a warning is issued as required by Section 25.095(b) [25.095(a)], the parent with criminal negligence fails to require the child to attend school as required by law, and the child has absences for the amount of time specified under Section 25.094, the parent commits an offense. SECTION 3. Section 25.094, Education Code, is amended by amending Subsections (a), (b), (c), (d), and (d-1) and adding Subsection (e-1) to read as follows: (a) An individual commits an offense if the individual: (1) is required to attend school under Section 25.085; and (2) fails to attend school on seven [10] or more days or parts of days within a three-month [six-month] period in the same school year or on three or more days or parts of days within a four-week period. (b) An offense under this section may be prosecuted in: (1) the constitutional county court of the county in which the individual resides or in which the school is located, if the county has a population of two million or more; (2) a justice court of any precinct in the county in which the individual resides or in which the school is located; [or] (3) a municipal court in the municipality in which the individual resides or in which the school is located; or (4) a district court for the county in which the student resides or in which the school is located. (c) On a finding by the district, county, justice, or municipal court that the individual has committed an offense under Subsection (a) or on a finding by a juvenile court in a county with a population of less than 100,000 that the individual has engaged in conduct that violates Subsection (a), the court may enter an order that includes one or more of the requirements listed in Article 45.054, Code of Criminal Procedure[, as added by Chapter 1514, Acts of the 77th Legislature, Regular Session, 2001]. (d) If the district, county, justice, or municipal court believes that a child has violated an order issued under Subsection (c), the court may proceed as authorized by Article 45.050, Code of Criminal Procedure. (d-1) Pursuant to an order of the district, county, justice, or municipal court based on an affidavit showing probable cause to believe that an individual has committed an offense under this section, a peace officer may take the individual into custody. A peace officer taking an individual into custody under this subsection shall: (1) promptly notify the individual's parent, guardian, or custodian of the officer's action and the reason for that action; and (2) without unnecessary delay: (A) release the individual to the individual's parent, guardian, or custodian or to another responsible adult, if the person promises to bring the individual to the district, county, justice, or municipal court as requested by the court; or (B) bring the individual to a district, county, justice, or municipal court with venue over the offense. (e-1) Each day of a violation under this section may constitute a separate offense. SECTION 4. Section 25.095, Education Code, is amended by amending Subsections (a) and (b) and adding Subsection (b-1) to read as follows: (a) A school district or open-enrollment charter school shall notify a student's parent in writing at the beginning of the school year that if the student is absent from school on seven [10] or more days or parts of days within a three-month [six-month] period in the same school year or on three or more days or parts of days within a four-week period: (1) the student's parent is subject to prosecution under Section 25.093; and (2) the student is subject to prosecution under Section 25.094 or to referral to a juvenile court in a county with a population of less than 100,000 for conduct that violates that section. (b) A school district shall notify a student's parent by telephone and in writing if the student has been absent from school, without excuse under Section 25.087, on three days or parts of days within a four-week period. The notice must: (1) inform the parent that: (A) it is the parent's duty to monitor the student's school attendance and require the student to attend school; and (B) the parent is subject to prosecution under Section 25.093; and (2) require the parent to attend in person or by telephone [request] a conference between school officials and the parent to: (A) discuss the absences; (B) develop a plan specifically for the student for improving the student's school attendance; and (C) review the legal consequences of a student's continuing unexcused absences. (b-1) In addition to providing notice to a student's parent under Subsection (b), the school district shall notify a counselor at the student's school, or in the student's school district if the student's school does not have a counselor, if a student has been absent from school, without excuse under Section 25.087, on three or more days or parts of days within a four-week period. To the extent practicable, on receiving the notification, the counselor shall perform an assessment of the student, including the student's academic progress, to use in developing the plan required under Subsection (b)(2)(B). SECTION 5. Sections 25.0951(a) and (b), Education Code, are amended to read as follows: (a) If a student fails to attend school without excuse on seven [10] or more days or parts of days within a three-month [six-month] period in the same school year, a school district shall, not later than the 15th school day after the date of the student's last absence: (1) file a complaint against the student or the student's parent or both in a district, county, justice, or municipal court for an offense under Section 25.093 or 25.094, 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. (b) If a student fails to attend school without excuse on three or more days or parts of days within a four-week period but does not fail to attend school for the time described by Subsection (a), the school district may, not later than the 15th school day after the date of the student's last absence: (1) file a complaint against the student or the student's parent or both in a district, county, justice, or municipal court for an offense under Section 25.093 or 25.094, 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. SECTION 6. Section 51.03(b), Family Code, is amended to read as follows: (b) Conduct indicating a need for supervision is: (1) subject to Subsection (f), conduct, other than a traffic offense, that violates: (A) the penal laws of this state of the grade of misdemeanor that are punishable by fine only; or (B) the penal ordinances of any political subdivision of this state; (2) the absence of a child on seven [10] or more days or parts of days within a three-month [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; (3) the voluntary absence of a child from the child's home without the consent of the child's parent or guardian for a substantial length of time or without intent to return; (4) conduct prohibited by city ordinance or by state law involving the inhalation of the fumes or vapors of paint and other protective coatings or glue and other adhesives and the volatile chemicals itemized in Section 484.002, Health and Safety Code; (5) an act that violates a school district's previously communicated written standards of student conduct for which the child has been expelled under Section 37.007(c), Education Code; or (6) conduct that violates a reasonable and lawful order of a court entered under Section 264.305. SECTION 7. Section 51.08, Family Code, is amended by adding Subsection (e) to read as follows: (e) A juvenile court may not refuse to accept the transfer of a case brought under Section 25.094, Education Code, for a child described by Subsection (b)(1) if a prosecuting attorney for the court determines under Section 53.012 that the case is legally sufficient under Section 53.01 for adjudication in juvenile court. SECTION 8. The heading to Section 54.021, Family Code, is amended to read as follows: Sec. 54.021. DISTRICT, COUNTY, JUSTICE, OR MUNICIPAL COURT: TRUANCY. SECTION 9. Sections 54.021(a), (b), and (c), Family Code, are amended to read as follows: (a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the constitutional county court, if the county has a population of two million or more, or to an appropriate district, justice, or municipal court, with the permission of the district, county, justice, or municipal court, for disposition in the manner provided by Subsection (b) if the child is alleged to have engaged in conduct described in Section 51.03(b)(2). A waiver of jurisdiction under this subsection 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). The waiver of a juvenile court's exclusive original jurisdiction for all cases in which a child is alleged to have engaged in conduct described in Section 51.03(b)(2) is effective for a period of one year. (b) A district, county, justice, or municipal court may exercise jurisdiction over a person alleged to have engaged in conduct indicating a need for supervision by engaging in conduct described in Section 51.03(b)(2) in a case where: (1) the juvenile court has waived its original jurisdiction under this section; and (2) a complaint is filed by the appropriate authority in the district, county, justice, or municipal court charging an offense under Section 25.094, Education Code. (c) A proceeding in a district, county, justice, or municipal court on a complaint charging an offense under Section 25.094, Education Code, is governed by Chapter 45, Code of Criminal Procedure. SECTION 10. Sections 54.04(o) and (u), Family Code, are amended to read as follows: (o) In a disposition under this title: (1) a status offender may not, under any circumstances, be committed to the Texas Youth Commission for engaging in conduct that would not, under state or local law, be a crime if committed by an adult; (2) a status offender may not, under any circumstances other than as provided under Subsection (n), be placed in a post-adjudication secure correctional facility; and (3) a child adjudicated for contempt of a district, county, justice, or municipal court order may not, under any circumstances, be placed in a post-adjudication secure correctional facility or committed to the Texas Youth Commission for that conduct. (u) For the purposes of disposition under Subsection (d)(2), delinquent conduct that violates a penal law of this state of the grade of felony or misdemeanor does not include conduct that violates a lawful order of a district, county, municipal, justice, or juvenile court under circumstances that would constitute contempt of that court. SECTION 11. Section 264.304(c), Family Code, is amended to read as follows: (c) The court shall determine that the child is an at-risk child if the court finds that the child has engaged in the following conduct: (1) conduct, other than a traffic offense and except as provided by Subsection (d), that violates: (A) the penal laws of this state; or (B) the penal ordinances of any political subdivision of this state; (2) the unexcused voluntary absence of the child on seven [10] or more days or parts of days within a three-month [six-month] period or three or more days or parts of days within a four-week period from school without the consent of the child's parent, managing conservator, or guardian; (3) the voluntary absence of the child from the child's home without the consent of the child's parent, managing conservator, or guardian for a substantial length of time or without intent to return; (4) conduct that violates the laws of this state prohibiting driving while intoxicated or under the influence of intoxicating liquor (first or second offense) or driving while under the influence of any narcotic drug or of any other drug to a degree that renders the child incapable of safely driving a vehicle (first or second offense); or (5) conduct that evidences a clear and substantial intent to engage in any behavior described by Subdivisions (1)-(4). SECTION 12. Article 45.054(a), Code of Criminal Procedure, is amended to read as follows: (a) On a finding by a district, county, justice, or municipal court that an individual has committed an offense under Section 25.094, Education Code, the court has jurisdiction to enter an order that includes one or more of the following provisions requiring that: (1) the individual: (A) attend school without unexcused absences; (B) attend a preparatory class for the high school equivalency examination administered under Section 7.111, Education Code, if the court determines that the individual is too old to do well in a formal classroom environment; or (C) if the individual is at least 16 years of age, take the high school equivalency examination administered under Section 7.111, Education Code; (2) the individual attend a special program that the court determines to be in the best interest of the individual, including: (A) an alcohol and drug abuse program; (B) a rehabilitation program; (C) a counseling program, including self-improvement counseling; (D) a program that provides training in self-esteem and leadership; (E) a work and job skills training program; (F) a program that provides training in parenting, including parental responsibility; (G) a program that provides training in manners; (H) a program that provides training in violence avoidance; (I) a program that provides sensitivity training; and (J) a program that provides training in advocacy and mentoring; (3) the individual and the individual's parent attend a class for students at risk of dropping out of school designed for both the individual and the individual's parent; (4) the individual complete reasonable community service requirements; or (5) for the total number of hours ordered by the court, the individual participate in a tutorial program covering the academic subjects in which the student is enrolled provided by the school the individual attends. SECTION 13. Article 45.057(c), Code of Criminal Procedure, is amended to read as follows: (c) The justice or municipal court may order the parent, managing conservator, or guardian of a child required to attend a program under Subsection (b) to pay an amount not greater than $350 [$100] to pay for the costs of the program. SECTION 14. Section 103.022, Government Code, is amended to read as follows: Sec. 103.022. MISCELLANEOUS FEES AND COSTS. The following fees and costs shall be paid or collected as follows: (1) fee for use of an interpreter in civil cases (Sec. 21.051, Civil Practice and Remedies Code) . . . $3; (2) fee for custodian of a record compelled by a court to produce or certify the record (Sec. 22.004, Civil Practice and Remedies Code) . . . $1; (3) cost for use of certified copy of the record of names of all trustees appointed by any state organization of a religious congregation in this state (Sec. 126.012, Civil Practice and Remedies Code) . . . $1.50; (4) filing of a restitution lien (Art. 42.22, Code of Criminal Procedure) . . . $5; (5) issuance and service of a warrant of arrest for certain offenses if prescribed by the municipality (Art. 45.203, Code of Criminal Procedure) . . . not to exceed $25; (6) filing a certified copy of a judicial finding of fact and conclusion of law if charged by the secretary of state (Sec. 51.905, Government Code) . . . $15; (7) costs of determining and sending information concerning the identity of the court with continuing, exclusive jurisdiction if charged by the bureau of vital statistics (Sec. 108.006, Family Code) . . . reasonable fee; (8) initial operations fee paid to domestic relations office on filing of a suit affecting the parent-child relationship, if authorized by the administering entity (Sec. 203.005, Family Code) . . . not to exceed $15; (9) initial child support service fee paid to domestic relations office in certain counties on filing of a suit affecting the parent-child relationship, if authorized by the administering entity (Sec. 203.005, Family Code) . . . not to exceed $36; (10) service fee for services of a domestic relations office, if authorized by the administering entity (Sec. 203.005, Family Code) . . . not to exceed $3 per month; (11) fee from a Title IV-D agency for each item of process to each individual on whom service is required, including service by certified or registered mail (Sec. 231.202, Family Code) . . . the amount that a sheriff or constable may charge for serving process under Section 118.131, Local Government Code; (12) a copy of records of spousal or child support and fees administered in Dallas County if authorized by the local administrative judge (Sec. 152.0634, Human Resources Code) . . . not to exceed $2 per page; (13) collecting, disbursing, or monitoring spousal or child support payments in Dallas County (Sec. 152.0635, Human Resources Code) . . . not to exceed $3 per month; (14) fee for adoption, family, and home study investigations in an adoption in Dallas County (Sec. 152.0635, Human Resources Code) . . . not to exceed $250; (15) certain transactions with respect to a suit for spousal support or a suit affecting the parent-child relationship in Harris County, if authorized by the county commissioners court (Sec. 152.1074, Human Resources Code) . . . not to exceed $2 per transaction; (16) child support service fee in Nueces County, if authorized by the county commissioners court (Sec. 152.1844, Human Resources Code) . . . not to exceed $5 per month; (17) services by the offices of the sheriff and constables (Sec. 118.131, Local Government Code) . . . amount set by county commissioners court; (18) cost paid by each surety posting the bail bond for an offense other than a misdemeanor punishable by fine only under Chapter 17, Code of Criminal Procedure, for the felony prosecutor supplement fund and the fair defense account (Sec. 41.258, Government Code) . . . $15, provided the cost does not exceed $30 for all bail bonds posted at that time for an individual and the cost is not required on the posting of a personal or cash bond; (19) appraiser's fee as court costs for determining the fair value of ownership interests of owners who have perfected their rights (Sec. 10.365, Business Organizations Code) . . . a reasonable fee; [and] (20) to participate in a court proceeding in this state, a nonresident attorney fee for civil legal services to the indigent (Sec. 82.0361, Government Code) . . . $250 except as waived or reduced under supreme court rules for representing an indigent person; and (21) costs of participating in a program on order of a justice or municipal court (Art. 45.057, Code of Criminal Procedure) . . . not to exceed $350. SECTION 15. Sections 29.0821(b) and (c), Education Code, are amended to read as follows: (b) To enable a school district to provide additional instructional days for a program under this section, with the approval of the commissioner, a school district may[: [(1) provide a number of days of instruction during the regular school year that is not more than 10 days fewer than the number required under Section 25.081(a); and [(2)] use for instructional purposes not more than five days that would otherwise be used for staff development or teacher preparation. (c) Notwithstanding any reduction [in the number of instructional days in the regular school year or] in the number of staff development days, each educator employed under a 10-month contract must provide the minimum days of service required under Section 21.401. SECTION 16. Section 25.081(a), Education Code, is amended to read as follows: (a) Except as authorized under Subsection (b) of this section or[,] Section 25.084, [or Section 29.0821,] for each school year each school district must operate so that the district provides for at least 180 days of instruction for students. SECTION 17. Section 42.005(a), Education Code, is amended to read as follows: (a) In this chapter, average daily attendance is[: [(1)] the quotient of the sum of attendance for each day of the minimum number of days of instruction as described under Section 25.081(a) divided by the minimum number of days of instruction[; or [(2) for a district that operates under a flexible year program under Section 29.0821, the quotient of the sum of attendance for each actual day of instruction as permitted by Section 29.0821(b)(1) divided by the number of actual days of instruction as permitted by Section 29.0821(b)(1)]. SECTION 18. (a) Except as provided by Subsection (b) of this section, the change in law made by this Act applies only to an offense committed on or after September 1, 2005. An offense committed before September 1, 2005, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For the purposes of this subsection, an offense was committed before September 1, 2005, if any element of the offense occurred before that date. (b) Section 51.08, Family Code, as amended by this Act, applies only to the transfer of a case to juvenile court that occurs on or after the effective date of this Act. A transfer that occurs before the effective date of this Act is governed by the law in effect when the transfer occurred, and the former law is continued in effect for that purpose. SECTION 19. This Act takes effect September 1, 2005.