84R12784 MK-D

By: Dutton H.B. No. 2632

A BILL TO BE ENTITLED

AN ACT

relating to removing a criminal penalty and authorizing a civil penalty for truancy.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Article 45.0216(g), Code of Criminal Procedure, is amended to read as follows:

(g) This article does not apply to any offense otherwise covered by:

(1) Chapter 106, Alcoholic Beverage Code; or

(2) Chapter 161, Health and Safety Code[; or

[(3) Section 25.094, Education Code].

SECTION 2. Articles 45.054(a) and (i), Code of Criminal Procedure, are amended to read as follows:

(a) On a finding by a county, justice, or municipal court that an individual has engaged in conduct that violates [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.

(i) A county, justice, or municipal court shall dismiss the complaint against an individual alleging that the individual has engaged in conduct that violates [committed an offense under] Section 25.094, Education Code, if:

(1) the court finds that the individual has successfully complied with the conditions imposed on the individual by the court under this article; or

(2) the individual presents to the court proof that the individual has obtained a high school diploma or a high school equivalency certificate.

SECTION 3. Article 102.014(d), Code of Criminal Procedure, is amended to read as follows:

(d) A person convicted of an offense under Section 25.093, Education Code, or found to have engaged in conduct that violates Section 25.094, Education Code, shall pay as taxable court costs $20 in addition to other taxable court costs. The additional court costs under this subsection shall be collected in the same manner that other fines and taxable court costs in the case are collected.

SECTION 4. Section 25.094, Education Code, is amended by amending Subsections (a), (b), (c), (d-1), (f), and (g) and adding Subsections (e-1) and (e-2) to read as follows:

(a) An individual is liable to the state for a civil penalty not to exceed $200 [commits an offense] if the individual:

(1) is 12 years of age or older and younger than 18 years of age;

(2) is required to attend school under Section 25.085; and

(3) fails to attend school on 10 or more days or parts of days within a 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 action [offense] under this section may be brought [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 1.75 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.

(c) On a finding by the 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-1) Pursuant to an order of the county, justice, or municipal court based on an affidavit showing probable cause to believe that an individual has violated [committed an offense under] this section, a peace officer may issue a citation or 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 county, justice, or municipal court as requested by the court; or

(B) bring the individual to a county, justice, or municipal court with venue over the offense.

(e-1) The imposition of a civil penalty under this section is not a conviction and may not be considered a conviction for any purpose.

(e-2) The district or county attorney of the county in which the conduct described by this section is alleged to have occurred shall bring an action in a county, justice, or municipal court to collect the civil penalty of a person who is taken into custody or is issued a citation for a violation under this section.

(f) It is a [an affirmative] defense [to prosecution] under this section that one or more of the absences required to be proven under Subsection (a) were excused by a school official or by the court or that one or more of the absences were involuntary, but only if there is an insufficient number of unexcused or voluntary absences remaining to constitute an offense under this section. The burden is on the respondent [defendant] to show by a preponderance of the evidence that the absence has been excused or that the absence was involuntary. A decision by the court to excuse an absence for purposes of this section does not affect the ability of the school district to determine whether to excuse the absence for another purpose.

(g) It is a [an affirmative] defense [to prosecution] under this section that one or more of the absences required to be proven under Subsection (a) was involuntary. The burden is on the respondent [defendant] to show by a preponderance of the evidence that the absence was involuntary.

SECTION 5. Sections 25.095(a) and (c), Education Code, are amended 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 10 or more days or parts of days within a 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 an action brought [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 indicating a need for supervision [that violates that section].

(c) The fact that a parent did not receive a notice under Subsection (a) or (b) does not create a defense to prosecution under Section 25.093, a defense to an action brought under Section [or] 25.094, or a defense in a disposition hearing on an issue as to whether the child engaged in conduct indicating a need for supervision.

SECTION 6. 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 10 or more days or parts of days within a six-month period in the same school year, a school district shall within 10 school days of the student's 10th absence:

(1) file a complaint against the [student or the] student's parent [or both] in a county, justice, or municipal court for an offense under Section 25.093, bring an action in a county, justice, or municipal court for conduct that violates Section [or] 25.094, [as appropriate,] or refer the student to a juvenile court for a determination as to whether the child engaged in conduct indicating a need for supervision [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:

(1) file a complaint against the [student or the] student's parent [or both] in a county, justice, or municipal court for an offense under Section 25.093, bring an action in a county, justice, or municipal court for conduct that violates Section [or] 25.094, [as appropriate,] or refer the student to a juvenile court for a determination as to whether the child engaged in conduct indicating a need for supervision [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 7. Section 51.02(15), Family Code, is amended to read as follows:

(15) "Status offender" means a child who is accused, adjudicated, or convicted for conduct that would not, under state law, be a crime if committed by an adult, including:

(A) truancy under Section 51.03(b)(2);

(B) running away from home under Section 51.03(b)(3);

(C) a fineable only offense under Section 51.03(b)(1) transferred to the juvenile court under Section 51.08(b), but only if the conduct constituting the offense would not have been criminal if engaged in by an adult;

(D) [failure to attend school under Section 25.094, Education Code;

[(E)] a violation of standards of student conduct as described by Section 51.03(b)(5);

(E) [(F)] a violation of a juvenile curfew ordinance or order;

(F) [(G)] a violation of a provision of the Alcoholic Beverage Code applicable to minors only; or

(G) [(H)] a violation of any other fineable only offense under Section 8.07(a)(4) or (5), Penal Code, but only if the conduct constituting the offense would not have been criminal if engaged in by an adult.

SECTION 8. Sections 54.021(b), (c), (d), and (e), Family Code, are amended to read as follows:

(b) A 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 person is 12 years of age or older;

(2) the juvenile court has waived its original jurisdiction under this section; and

(3) an action [a complaint] is filed by the appropriate authority in the county, justice, or municipal court for a violation [charging an offense] under Section 25.094, Education Code.

(c) A proceeding in a county, justice, or municipal court on a complaint charging conduct that violates [an offense under] Section 25.094, Education Code, is governed by Chapter 45, Code of Criminal Procedure.

(d) Notwithstanding any other law, the costs assessed in a case filed in or transferred to a constitutional county court for an offense under Section 25.093, Education Code, or for conduct that violates Section 25.094, Education Code, must be the same as the costs assessed for a case filed in a justice court for an offense under Section 25.093, Education Code, or for conduct that violates Section 25.094, Education Code.

(e) The proceedings before a constitutional county court related to an offense under Section 25.093, Education Code, or conduct that violates Section 25.094, Education Code, may be recorded in any manner provided by Section 30.00010, Government Code, for recording proceedings in a municipal court of record.

SECTION 9. Section 54.1955, Government Code, is amended to read as follows:

Sec. 54.1955. POWERS. (a) Except as limited by an order of the county judge, a magistrate appointed under this subchapter may:

(1) conduct hearings;

(2) hear evidence;

(3) issue summons for the appearance of witnesses;

(4) examine witnesses;

(5) swear witnesses for hearings;

(6) recommend rulings or orders or a judgment in a case;

(7) regulate proceedings in a hearing;

(8) accept a plea of guilty or nolo contendere in a case alleging a violation of Section 25.093 [or 25.094], Education Code, and assess a fine or court costs or order community service in satisfaction of a fine or costs in accordance with Article 45.049, Code of Criminal Procedure;

(9) enter an order suspending a sentence or deferring a final disposition that includes at least one of the requirements listed in Article 45.051, Code of Criminal Procedure;

(10) perform any act and take any measure necessary and proper for the efficient performance of the duties required by the referral order, including the entry of an order that includes at least one of the requirements in Article 45.054, Code of Criminal Procedure; and

(11) if the magistrate finds that a child as defined by Article 45.058, Code of Criminal Procedure, has violated an order under Article 45.054, Code of Criminal Procedure, proceed as authorized by Article 45.050, Code of Criminal Procedure.

(b) With respect to an issue of law or fact the ruling on which could result in the dismissal of a prosecution under Section 25.093, Education Code, or an action brought under Section 25.094, Education Code, a magistrate may not rule on the issue but may make findings, conclusions, and recommendations on the issue.

SECTION 10. Section 71.0352, Government Code, is amended to read as follows:

Sec. 71.0352. JUVENILE DATE: JUSTICE, MUNICIPAL, AND JUVENILE COURTS. As a component of the official monthly report submitted to the Office of Court Administration of the Texas Judicial System:

(1) justice and municipal courts shall report the number of cases filed for the following [offenses]:

(A) failure to attend school under Section 25.094, Education Code;

(B) parent contributing to nonattendance under Section 25.093, Education Code; and

(C) violation of a local daytime curfew ordinance adopted under Section 341.905 or 351.903, Local Government Code; and

(2) in cases in which a child fails to obey an order of a justice or municipal court under circumstances that would constitute contempt of court, the justice or municipal court shall report the number of incidents in which the child is:

(A) referred to the appropriate juvenile court for delinquent conduct as provided by Article 45.050(c)(1), Code of Criminal Procedure, and Section 51.03(a)(2), Family Code; or

(B) held in contempt, fined, or denied driving privileges as provided by Article 45.050(c)(2), Code of Criminal Procedure.

SECTION 11. Section 103.021, Government Code, is amended to read as follows:

Sec. 103.021. ADDITIONAL FEES AND COSTS IN CRIMINAL OR CIVIL CASES: CODE OF CRIMINAL PROCEDURE. An accused or defendant, or a party to a civil suit, as applicable, shall pay the following fees and costs under the Code of Criminal Procedure if ordered by the court or otherwise required:

(1) a personal bond fee (Art. 17.42, Code of Criminal Procedure) . . . the greater of $20 or three percent of the amount of the bail fixed for the accused;

(2) cost of electronic monitoring as a condition of release on personal bond (Art. 17.43, Code of Criminal Procedure) . . . actual cost;

(3) a fee for verification of and monitoring of motor vehicle ignition interlock (Art. 17.441, Code of Criminal Procedure) . . . not to exceed $10;

(3-a) costs associated with operating a global positioning monitoring system as a condition of release on bond (Art. 17.49(b)(2), Code of Criminal Procedure) . . . actual costs, subject to a determination of indigency;

(3-b) costs associated with providing a defendant's victim with an electronic receptor device as a condition of the defendant's release on bond (Art. 17.49(b)(3), Code of Criminal Procedure) . . . actual costs, subject to a determination of indigency;

(4) repayment of reward paid by a crime stoppers organization on conviction of a felony (Art. 37.073, Code of Criminal Procedure) . . . amount ordered;

(5) reimbursement to general revenue fund for payments made to victim of an offense as condition of community supervision (Art. 42.12, Code of Criminal Procedure) . . . not to exceed $50 for a misdemeanor offense or $100 for a felony offense;

(6) payment to a crime stoppers organization as condition of community supervision (Art. 42.12, Code of Criminal Procedure) . . . not to exceed $50;

(7) children's advocacy center fee (Art. 42.12, Code of Criminal Procedure) . . . not to exceed $50;

(8) family violence center fee (Art. 42.12, Code of Criminal Procedure) . . . $100;

(9) community supervision fee (Art. 42.12, Code of Criminal Procedure) . . . not less than $25 or more than $60 per month;

(10) additional community supervision fee for certain offenses (Art. 42.12, Code of Criminal Procedure) . . . $5 per month;

(11) for certain financially able sex offenders as a condition of community supervision, the costs of treatment, specialized supervision, or rehabilitation (Art. 42.12, Code of Criminal Procedure) . . . all or part of the reasonable and necessary costs of the treatment, supervision, or rehabilitation as determined by the judge;

(12) fee for failure to appear for trial in a justice or municipal court if a jury trial is not waived (Art. 45.026, Code of Criminal Procedure) . . . costs incurred for impaneling the jury;

(13) costs of certain testing, assessments, or programs during a deferral period (Art. 45.051, Code of Criminal Procedure) . . . amount ordered;

(14) special expense on dismissal of certain misdemeanor complaints (Art. 45.051, Code of Criminal Procedure) . . . not to exceed amount of fine assessed;

(15) an additional fee:

(A) for a copy of the defendant's driving record to be requested from the Department of Public Safety by the judge (Art. 45.0511(c-1), Code of Criminal Procedure) . . . amount equal to the sum of the fee established by Section 521.048, Transportation Code, and the state electronic Internet portal fee;

(B) as an administrative fee for requesting a driving safety course or a course under the motorcycle operator training and safety program for certain traffic offenses to cover the cost of administering the article (Art. 45.0511(f)(1), Code of Criminal Procedure) . . . not to exceed $10; or

(C) for requesting a driving safety course or a course under the motorcycle operator training and safety program before the final disposition of the case (Art. 45.0511(f)(2), Code of Criminal Procedure) . . . not to exceed the maximum amount of the fine for the offense committed by the defendant;

(16) a request fee for teen court program (Art. 45.052, Code of Criminal Procedure) . . . $20, if the court ordering the fee is located in the Texas-Louisiana border region, but otherwise not to exceed $10;

(17) a fee to cover costs of required duties of teen court (Art. 45.052, Code of Criminal Procedure) . . . $20, if the court ordering the fee is located in the Texas-Louisiana border region, but otherwise $10;

(18) a mileage fee for officer performing certain services (Art. 102.001, Code of Criminal Procedure) . . . $0.15 per mile;

(19) certified mailing of notice of hearing date (Art. 102.006, Code of Criminal Procedure) . . . $1, plus postage;

(20) certified mailing of certified copies of an order of expunction (Art. 102.006, Code of Criminal Procedure) . . . $2, plus postage;

(20-a) a fee to defray the cost of notifying state agencies of orders of expungement (Art. 45.0216, Code of Criminal Procedure) . . . $30 per application;

[(20-b) a fee to defray the cost of notifying state agencies of orders of expunction (Art. 45.055, Code of Criminal Procedure) . . . $30 per application;]

(21) sight orders:

(A) if the face amount of the check or sight order does not exceed $10 (Art. 102.007, Code of Criminal Procedure) . . . not to exceed $10;

(B) if the face amount of the check or sight order is greater than $10 but does not exceed $100 (Art. 102.007, Code of Criminal Procedure) . . . not to exceed $15;

(C) if the face amount of the check or sight order is greater than $100 but does not exceed $300 (Art. 102.007, Code of Criminal Procedure) . . . not to exceed $30;

(D) if the face amount of the check or sight order is greater than $300 but does not exceed $500 (Art. 102.007, Code of Criminal Procedure) . . . not to exceed $50; and

(E) if the face amount of the check or sight order is greater than $500 (Art. 102.007, Code of Criminal Procedure) . . . not to exceed $75;

(22) fees for a pretrial intervention program:

(A) a supervision fee (Art. 102.012(a), Code of Criminal Procedure) . . . $60 a month plus expenses; and

(B) a district attorney, criminal district attorney, or county attorney administrative fee (Art. 102.0121, Code of Criminal Procedure) . . . not to exceed $500;

(23) parking fee violations for child safety fund in municipalities with populations:

(A) greater than 850,000 (Art. 102.014, Code of Criminal Procedure) . . . not less than $2 and not to exceed $5; and

(B) less than 850,000 (Art. 102.014, Code of Criminal Procedure) . . . not to exceed $5;

(24) an administrative fee for collection of fines, fees, restitution, or other costs (Art. 102.072, Code of Criminal Procedure) . . . not to exceed $2 for each transaction; and

(25) a collection fee, if authorized by the commissioners court of a county or the governing body of a municipality, for certain debts and accounts receivable, including unpaid fines, fees, court costs, forfeited bonds, and restitution ordered paid (Art. 103.0031, Code of Criminal Procedure) . . . 30 percent of an amount more than 60 days past due.

SECTION 12. Article 45.055, Code of Criminal Procedure, and Section 25.094(e), Education Code, are repealed.

SECTION 13. The changes in law made by this Act apply to a person taken into custody or issued a citation on or after the effective date of this Act, regardless of whether the conduct for which the person was taken into custody or issued a citation occurred before, on, or after that date.

SECTION 14. This Act takes effect September 1, 2015.