This letter is intended to clarify several issues relating to truancy. The letter addresses recent state legislation regarding the enforcement of compulsory attendance and the relationship of compulsory attendance to tardiness. Please share this information with members of your staff who deal with truancy.

Recently, there have been reports that some school districts are referring students for compulsory attendance violations for absences that are excused or that are due to student suspension. It appears that there is confusion regarding the application of compulsory attendance to excused absences or absences during a period of suspension since the passage of Senate Bill 1432 during this year's legislative session. The confusion may be due to changes in the enforcement provisions in Section 51.03 of the Family Code and in Sections 25.093 and 25.094 of the Education Code. In those sections, references to absences that are "unexcused" and "voluntary" were removed and language added placing the burden on the student or parent of proving as an affirmative defense that the district excused the absences or that the court should excuse them.

Notwithstanding those changes, it is very clear that a school district's right and duty to pursue a sanction against a student or a student's parent for excessive absences arises only when a student has unexcused absences. Sections 25.091(a) and (b), as amended by Senate Bill 1432, authorize an attendance officer to refer a student to juvenile court or file a complaint in justice or municipal court for "unexcused absences." Section 25.095(b), as amended, requires the district to notify a parent if a student has a certain number of absences "without excuse." Also, new Section 25.0951 provides that a school district shall file a complaint in justice or municipal court or refer a student to a juvenile court if the student "fails to attend school without excuse" (emphasis added) for either 10 or more days or parts of days within a six-month period or 3 or more days or parts of days within a four-week period. As before Senate Bill 1432, an absence currently may be excused under Section 25.087(a) for "any cause acceptable to the teacher, principal, or superintendent of the school." In addition, school districts are required to excuse certain absences under Section 25.087(b).

Furthermore, absences due to a suspension should clearly be treated as excused absences for the purposes of compulsory attendance enforcement. When a student is suspended, the school district is prohibiting the student from attending school. It is unacceptable for a school to prohibit the student from attending school and also initiate compulsory attendance proceedings against the student for failing to attend school during the period of suspension. The act of suspending the student has the practical effect of excusing the student from attendance during the period of suspension. Absences excused by a school district, including absences due to suspension, are neither "unexcused absences" under Section 25.091 nor absences "without excuse" under Sections 25.095 nor 25.0951 and are not grounds for filing a complaint or making a referral to juvenile court . There is no basis for referring a student for truancy based on absences that have been excused.

There have also been reports regarding districts classifying a student's tardiness to class as an absence for the purpose of compulsory attendance enforcement. In a 1993 opinion, the attorney general concluded that absences generally do not include tardiness to class, especially if the student is present on the campus but late to class. The particular circumstances of a child's tardiness on a certain day may be sufficiently egregious to constitute an absence, but school districts should not routinely classify each instance of tardiness as an absence for purposes of truancy. (Op. Tex. Att'y Gen. No. DM-200 (1993).) A district may of course provide disciplinary consequences for tardiness under its locally adopted Code of Conduct.

In summary, absences that are due to a suspension or that the district has otherwise excused are not bases for the initiation of compulsory attendance enforcement procedures. Also, a district should not routinely classify tardiness to class as an absence for the purpose of compulsory attendance enforcement. If there is a dispute in a judicial compulsory attendance hearing or trial regarding whether an absence was or should be excused, it will be the defendant's (student's or parent's) burden to prove either that the district excused the absence or that the court should excuse the absence even though the district did not.

We hope this letter serves to clarify the law related to the issues discussed above. If you have further questions, please contact one of the undersigned parties. Thank you for your careful attention to this information.

Sincerely,

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