EXCLUSIVE: Fort Bend County Truancy Court Illegal, Alleges Class Action Lawsuit

texastruancy-AP Photo-Christian Rodriguez
AP Photo/Christian Rodriguez

Is the Fort Bend County Truancy Court legal? No, says a class action lawsuit filed on Wednesday, May 6 in the 268th District Court.

Roach v. Ingram, et al., alleges that school offense citations are prohibited under Texas law and only the legislature can establish a Court. The Dallas County Truancy Court system is authorized under statute to operate a stand-alone criminal Truancy Court, Fort Bend County is not.

Unlike Dallas County, Fort Bend “can establish magistrate activities only but has no lawful authority to create a court,” lead attorney in the suit Deron Harrington (Law Office of Deron R. Harrington) told Breitbart Texas.

The petition called this situation an “abominable fraud” also because Texas Government Code 26.045 “renders the Fort Bend County Commissioners devoid of any lawful power to create a criminal court of law” which, in turn, has no jurisdiction to hear these Failure to Attend School (FTAS) complaints, widely recognized as “truancy” charges.

The legal filing also cites “mischievous intermingling of two governmental entities,” alleging Fort Bend’s school district of operating an automated program to mass-produce citations that summon students to appear before the county truancy court.

Student and parent due process was impinged because they were never detained but instead “arrested without warrant” by a school district which only served them by regular US mail in a computer-generated citation that contained the “mass produced, electronic signature” of the district’s officer, Rafael Rincon and then fraudulently notarized by a school district truancy specialist, according to the legal documents.

The complaint also purports that the district makes little effort to investigate chronic absences because “in part, the attendance departments at many of the district’s schools are greatly understaffed.”

The pleadings further state “Even when the district has investigated and discovered unique situations that explain a student’s frequent absences, the district has sometimes chosen to send the student to court anyway.”

The complaint also notes, “Many times, even with knowledge of these unique situations, Fort Bend ISD has simply thrown many of these students into the adult criminal justice system without the benefit of legal counsel under the guise of the stated ‘we must follow the law’ mantra and even with a complete recognition that a student’s involuntary absence situation just ‘breaks their hearts.”

In a press release Harrington stated, “The Constitution applies to every American and this I will vigorously defend with everything in me. I will step forward and take a stand to protect and defend against governmental overreach that tramples on the fundamental rights all Texans and Americans hold, especially when such actions are directed against our most vulnerable. In spite of some potential good intentions, we hurt a lot of kids in our community and we must fully recognize that. As a community, my hope is that we can fully recognize the harm we have undertaken, learn from it, and get on with healing.”

The Fort Bend Star cited the district filed 3,898 truancy complaints against 1,867 students during the 2013-14 school year against 2.7 percent of the entire student enrollment. Texas Appleseed lists some earlier data. At its height, the complaint discloses that Fort Bend ISD produced a “mind-boggling” 8,500 truancy filings in the 2008-09 school year. The district claims that truancy cases dropped 58 percent from 2008 to 2013.

Overall, it is still approximately 45,000 truancy citations that Fort Bend ISD campus police issued by US mail to families since the 2007-08 school year. That is based on Texas Education Agency (TEA) data Harrington told Breitbart Texas.

The majority of the Houston area Fort Bend ISD students are classified as economically disadvantaged. Breitbart Texas reported that 50 percent of Fort Bend’s high school students slapped with truancy charges last year were African American, and 30 percent were Hispanic, even though they comprised only 32 and 23 percent of the high school student body, respectively. The district’s Special Education students have been disproportionately impacted also, according to the legal filing.

Fort Bend ISD superintendent Charles Dupre recently called for a suspension of the truancy program while the district undergoes an investigation into its policies. However, 600 district students are still expected to appear in truancy court.

The freeze may not be quite the magnanimous gesture as it appears but rather an intentional action to stave off a class action suit, according to evidence submitted with the legal filing that shows the assistant district attorney assigned to the truancy court was attempting to force dismissals of similar legal actions against them by dismissing them to silence such complaints.

Breitbart Texas has reported extensively on truancy, which the state defines as up to 10 unexcused public school absences in a six-month period. Texas law allows Fort Bend ISD broad discretion in what it considers an excused or unexcused absence, which it tracks with an automated system, the complaint states.

Under Texas law, students 12-17 years old can be charged with FTAS juvenile Class C misdemeanors. They are not provided access to a lawyer, nor is it required for defendants to have an attorney. This leaves them ill-equipped to protect themselves against the harsh sentences doled out by presiding judges who are only low-level magistrates – Justices of the Peace (JP), elected officials whose job description does not require law school or a law degree.

This case asserts that, as a result, the vast majority of students charged with the truancy either plead guilty or no contest in court. Once convicted, the fine for truancy is $500, plus additional court costs. There are often fines for parents and guardians. Failure to pay can result in arrest. Truancy, itself, can result in a criminal record if the paper trail is not sealed or restricted, which requires legal assistance and costs additional dollars. If visible, the conviction can impact a minor’s future opportunities when filling out a college or job application.

Considered second to Dallas County in doling out harsh punishments for truancy, Fort Bend is also the only other county which sets aside a dedicated court and immediately treated the court as an independent criminal court even though it is only allowed magistrate activities, according to Harrington, and which is why the complaint asserts the court system is illegal.

The US Department of Justice (DOJ) recently launched an investigation into the practices of the Dallas County Truancy Court and Juvenile District Courts based on concerns that constitutionally-required due process may not have been provided to all children charged with FTAS.

Truancy has proved a cash cow for Dallas County, raking in more than $3 million collected in fines. How much money flowed into Fort Bend through FTAS cases is not known.

Harrington previously contacted now former Attorney General Holder in March to inform him of Fort Bend’s truancy issues, although he does not know if the DOJ will step into the situation as it has in Dallas. Harrington and the three other attorneys assisting in the petition intend to request that Texas Gov. Greg Abbott and Texas Attorney General Ken Paxton appoint a special prosecutor to investigate possible criminal actions involved with the Fort Bend Truancy Court.

Twelve defendants were named in the pro-bono lawsuit including Fort Bend ISD superintendent Charles Dupre, Fort Bend County Judge Robert Hebert, Fort Bend Truancy Court Judy Nina Schaefer, Ford Bend Precinct 3 JP Kenneth Cannata, the school district’s school board (as a governing body), and several district employees.

Previously, Cannata told KHOU 11 that only 10 percent of the 700 cases he hears a year involved children skipping school for “no good reason” and there were usually other family issues involved. He didn’t believe minors should be saddled with criminal records.

Senate Bill 106, authored by John Whitmire (D-Houston), is proposed legislation intended to decriminalize truancy statewide. It passed through the Senate chamber on a bipartisan 26-5 vote. Currently, it is pending in the State House Juvenile Justice and Family Issues Committee.

Follow Merrill Hope on Twitter @OutOfTheBoxMom.


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