The Texas law that decriminalizes truancy and changes how public school districts handle unexcused absences goes into effect on September 1. During the 2015 Legislative session, state lawmakers passed House Bill 2398, which redressed the Failure to Attend School (FTAS) from criminal status to a civil offense called “truant conduct” under the family code.
The new truancy law, signed by Gov. Greg Abbott on June 18, requires schools to provide common-sense steps to address students’ non-attendance problems with meaningful help before they refer students to court. This includes looking at the underlying issues behind truant absences — such as homelessness, chronic illness, or unidentified special education needs.
Under new guidelines, students cannot be sent to court before receiving 10 unexcused absences nor can they be sent to a truancy court if those absences are the result of homelessness, being in foster care, or acting as the main income-earner for their families, according to Texas Appleseed, one of the advocacy organizations that has been instrumental in the effort to decriminalize truancy.
Unlawful absenteeism affected 100,000 students, prosecuted for FTAS last year while 115,000 Class C Misdemeanor citations were doled out for truancy to Texas K-12 students and their parents in 2013, often leaving a paper trail that jeopardized students’ futures.
As of Tuesday, students will no longer leave courts with criminal records. The new civil filing is called a “petition for an adjudication of a child for truant conduct.” Justice and municipal courts will continue to hear truancy cases, but cannot fine students, which has carried a $500 fine. Now, courts may order a student to remedial counseling or tutoring.
Attorney Deron Harrington told Breitbart Texas, “HB 2398 is well-intentioned in trying to get to the root cause of truancy,” although he emphasized that the law leaves criminal prosecution in place for parents.
That means, a student’s parents or guardians can still be charged with a criminal offense of Parent Contributing to Nonattendance (PCN) and face fines, although they will be on an escalating scale — $100 for a first offense, $200 for a second, $300 for a third topping off at $500 for a fifth or subsequent offense. Even though students may not be fined for truancy, courts may charge a $50 court fee but only to those families who are financially capable of paying.
This year, Harrington filed a class action lawsuit against the highly punitive Fort Bend County truancy court system on grounds that the courts themselves are illegal, Breitbart Texas reported.
Under HB 2398, all FTAS convictions or complaints that happened before September 1 must be expunged automatically. In future truancy cases, a student can apply to have those records sealed after his or her 18th birthday as long as the individual complied with the court’s orders in the case.
Courts must also order the destruction of records when a student is referred to truancy court by his or her school but a prosecutor does not file a petition for an adjudication of a child for truant conduct. Previously, truancy court referrals ended once a student turned 18; the new law raises that age to 19-years-old.
More of the burden to address the underlying issues behind truancy falls onto the schools with HB 2398. However, some child and civil rights advocates contend that the new law does not help special needs students and school children with disabilities.
In June, a complaint letter filed by three groups including Texas Appleseed argued that 13 public school districts used the truancy courts and court orders to force out special needs students from the system, violating federal law, Breitbart Texas reported.
It alleged that this student population was disproportionately impacted, often funneled into alternative education, high school general equivalency diploma (GED) programs, or mandatory homeschooling despite the fact that the federal Individuals with Disabilities Education Act (IDEA), requires that public schools develop the least restrictive individualized plans to meet their these students’ education goals.
Some of the other things the court will be able to do is order the truant student to attend counseling, training, or rehabilitation programs, perform community service, or complete a tutorial program; and suspend a student’s driver’s license or learner’s permit for truant conduct, according to Texas Appleseed.
Texas truancy laws were chastised as cash cows over the years. The state raked in over $2 million in 2009, and approximately $1.8 million two years later. Meanwhile Dallas banked $3 million in court fines and fees in 2013. This spring, the U.S. Department of Justice opened a probe into the practices of the Dallas County Truancy Court and Juvenile District Courts as a result of a joint advocacy group filing two years ago.
Truancy is part of the school-to-prison pipeline, a system that refers to those zero tolerance school policies that often derail students’ futures by putting them into contact with the criminal justice system.
During the truancy legislative debate that unfolded this year, Texas Supreme Court Nathan Hecht asked the Judicial Council, the policy-making body for the state’s courts, “Playing hooky is bad, but is it criminal?”
As of Tuesday, that answer is no.
Follow Merrill Hope, a member of the original Breitbart Texas team, on Twitter @OutOfTheBoxMom.