CAVEAT: This page was originally created in 2015. Minor updating has occurred; however, some of the content is outdated. The views expressed in the answers to the following FAQs are solely those of the authors (cited with the answer) and are not necessarily those of the TMCEC Board of Directors or of TMCEC staff members. The following responses are published with the intention that TMCEC is not engaged in rendering legal or other professional advice. All users must be responsible for their own legal research and drafting, which should be accompanied by legal advice and direction from the city attorney. TMCEC and its employees do not warrant, either expressly or implicitly, that the information on its website, including this page, has not been subject to change, amendment, reversal, or revision.
Can a school district: (1) refer a student to truancy court for truant conduct; and (2) file a complaint against the student’s parent for the criminal offense of parent contributing to nonattendance?
Yes. (Ted Wood, Office of Court Administration, 2015)
What is the meaning of “last absence” for purposes of when a petition may be filed under Section 65.055 of the Family Code?
Section 65.055 of the Family Code is entitled “Limitations Period.” The statute reads as follows: “A petition may not be filed after the 45th day after the date of the last absence giving rise to the act of truant conduct.”
Generally, a school district must refer a student to a truancy court for truant conduct “within 10 school days of the student’s 10th absence.” Education Code, Section 25.0951(a). But Section 25.0951(d) provides an exception. The school district may delay the referral of a student (or choose not to refer the student at all) in some circumstances. Those circumstances are twofold. First, the district must be applying truancy prevention measures. Second, the district must find the measures are succeeding and that it is in the best interest of the student to make no referral.
So suppose a student misses school on September 1, 2, 4, 11, 14, 15, 25, and 30. Then the student misses school on October 2 and 5. This is a total of 10 absences. But suppose the school chooses not to make a referral at that time. The student does well for a while, but then misses school on November 12, 13, 16, 17, 19, 20, and 30. The school district decides the truancy prevention measures are not working and goes ahead and refers the student to truancy court on December 1.
The question is whether Section 65.055 of the Family Code prevents the prosecutor from filing a petition on December 1.
One common school of thought says the answer is yes – i.e.., no petition can be filed. This is because on December 1, a total of 57 days have passed since the student’s 10th absence on October 5. A petition has to be filed within 45 days of “the last day after the date of the last absence giving rise to the act of truant conduct.”
An opposing school of thought says the answer is no – i.e., the petition can be filed. This school of thought says that November 30 was the last absence for purposes of the 45-day statute of limitations. Thus, a petition filed by January 14 would meet the statute of limitations. This school of thought maintains that the district tried to work with the student and keep from referring him or her to the court. This, it is argued, is consistent with the idea that school districts should do more before referring students to truancy court. If school districts know they can’t refer a child to truancy court if truancy prevention measures ultimately prove unsuccessful, court referrals will be almost automatic.
The second school of thought is correct. A petition could still be filed on December 1 (and for 44 days after that until January 14th).
In the example, the student first engaged in delinquent conduct on October 5 – the 10th day of school the student missed. But the student also committed delinquent conduct on each day he or she missed after October 5 (November 12, 13, 16, 17, 19, 20 and 30). The absence on November 30 gave rise to the act of truant conduct every bit as much as the October 5 absence. I think the “last act” giving rise to the offense of truant conduct occurred on November 30. The prosecutor has until January 14 to file a petition.
The law can be interpreted to mean that a petition cannot be filed after the 45th day after the 10th overall absence on October 5. This would mean the petition would have to be filed by November 19. This is not an unreasonable interpretation of the statute. But such an interpretation would foreclose any referral of the student to truancy court after November 19. Such a situation seems to be inconsistent with the intent of the law – to encourage school districts to employ truancy prevention measures and reduce referrals to the court system. (Ted Wood, Office of Court Administration, 2015)
Must a prosecutor decline to file a petition if the student is receiving special education services under Subchapter A of Section 29 of the Transportation Code?
No. The law does not say this. There is a provision that requires a prosecutor to not file a petition if the school district’s referral does not specify whether the student is eligible for (or receives) special education services. See Family Code, Section 65.053(c) and Education Code, Section 25.0915. But that is as close as the new law gets to saying that a prosecutor may not file a petition in a case if the student receives special education services. There are many special education students who can still attend school and be held accountable for being absent. (Ted Wood, Office of Court Administration, 2015)
What options does a court have if the student fails to show up at the hearing in a truant conduct case? Can a writ of attachment be issued to have the student picked up and taken before the truancy court?
Students are informed that they must attend a hearing in truancy court by means of a summons. See Section 65.057. The summons will have also been delivered to a parent. The summons can (but is not required to) direct the parent to bring the child to the hearing. See Section 65.057(c). A truancy court would likely want to have this type of direction in every summons going to a parent. Hopefully this provision results in most students showing up for the hearing.
But what if the child doesn’t show up for the hearing? The main thing that can be done does not involve the child directly. Rather, the main thing that can be done involves the child’s parent. Specifically, the truancy court may issue a writ of attachment against the parent (assuming the parent has been ordered to bring the child to the hearing). See Section 65.254. So the onus is really being put on the parent to make sure that the child shows up for the hearing.
The case would have to be reset and another summons would have to be issued to the child (and to the parent). The new provisions allow a constable to serve the summons on the child and others. But the new law does not envision a constable being able to arrest a child and physically bring him or her to the hearing. The law does not envision the court ever issuing a warrant to have a no-show student picked up and taken to the hearing. It’s not clear whether any conscious thought was given to this kind of an “I-refuse-to-show-up” scenario. This may be an issue that should be addressed in the next legislative session or in Supreme Court rules. (Ted Wood, Office of Court Administration, 2015)
Can the truancy court remedial order contain a condition that the child submit to drug testing?
No. This is not one of the remedial provisions envisioned by the Legislature. (Ted Wood, Office of Court Administration, 2015)
Can the truancy court remedial order contain a condition that the child wear a GPS monitor?
No. This is not one of the remedial provisions envisioned by the Legislature. (Ted Wood, Office of Court Administration, 2015)
What options does a truancy court have to collect the $50 court cost and any fine (of up to $100) that can be assessed for contempt of court?
There actually is, in some circumstances, an explicit process to enforce a failure to pay the $50 court cost. Section 65.107 calls for the new $50 court cost in truancy cases. Subsection (b) allows (but does not require) the truancy court judge to make the order to pay the $50 court cost a part of the remedial order under Section 65.103. If the order to pay the court cost is made part of the remedial order, then the child can be held in contempt for a failure to pay. So contempt is available in truancy cases for a failure to pay the $50 court cost. Under the contempt provisions, a child’s driver’s license can be suspended or denied. But the only other option is to order the child to pay a fine of up to $100.
There is no good way to really enforce that order to pay the fine of up to $100 for contempt. The capias pro fine provisions seem to be limited to criminal cases and therefore do not apply in truancy cases. Use of a writ of execution as allowed in civil cases by Texas Rule of Civil Procedure 622 could possibly be used against a parent or against a child who is 17 or older. But the writ-of-execution procedure doesn’t fit well in truancy cases involving such small amounts of money. So as a practical matter there is no real enforcement mechanism. There is no option (as there is in juvenile cases) to send the child to a juvenile detention facility or order the child to perform community service. This may be something that needs to be addressed by Supreme Court rule or by the Legislature in the next session. (Ted Wood, Office of Court Administration, 2015)
Is Section 3 of HB 2398 (2015)l regarding expunction rendered ineffective by the effective date language in Section 42?
SECTION 3 of HB 2398 calls for the expunction of all failure-to-attend-school case records in cases in which: (1) the student was convicted; or (2) the case was dismissed. This expunction is for cases under the old law.
SECTION 42 of HB 2398 states that “[t]he changes in law made by this Act apply only to an offense committed or conduct that occurs on or after the effective date of this Act.” The act was effective September 1, 2015.
Because the expunction provision in SECTION 3 deals with cases that were in existence prior to September 1, 2015, there is a question as to whether SECTION 3 is effective.
The argument that SECTION 3 is ineffective in light of SECTION 42 is not a spurious one. However, the intent of the Legislature was that the expunction provision be effective. There is a rule of statutory construction that assumes the Legislature will not engage in a useless act. The expunction provision in SECTION 3 would be useless if SECTION 42 were found to trump SECTION 3. It is best to go forward with the idea that SECTION 3 is valid. (Ted Wood, Office of Court Administration, 2015)
Can constables charge a service fee for serving a summons in a truancy case?
Certainly the intent of the bill is that no service fee be charged. BUT, one could legally argue that a fee should be charged under a county’s civil service fees established pursuant to Local Government Code, Section 118.131. According to the intent of the bill, the answer is no, but the legal answer may be yes. A best practice would be not to charge the fee. (Ted Wood, Office of Court Administration, 2015)
Do truancy documents need to be e-filed in Dallas County?
Documents in civil cases in the district and county-level courts must be e-filed. Generally, this fact does not affect truancy cases because such cases are handled in the justice and municipal courts acting as truancy courts. The one exception is Dallas County because the constitutional county court exercises jurisdiction over truancy cases (through special magistrate courts). Under a strict reading of the e-filing rules, documents would appear to have to be e-filed. But, this was not the intent of the legislation at all. (Ted Wood, Office of Court Administration, 2015)
Are unpaid fines and court costs still owed in failure-to-attend-school cases that have been expunged?
No. Article 45.0541(c) [now 45A.464(d)] says, in pertinent part, that “[a]fter entry of the order, the individual is released from all disabilities resulting from the conviction or complaint, and the conviction or complaint may not be shown or made known for any purpose.” The obligation to pay a fine and court costs is a disability resulting from the conviction. The defendant is to be released from all such disabilities. So the defendant will no longer owe anything. (Ted Wood, Office of Court Administration, 2015) (Statute number updated 2025)
Who makes the determination as to whether a school district’s truancy prevention measures are working?
A district needs to make such a determination in order to not refer a student to truancy court after the student’s 10th absence. This determination is made solely by the school district and is pretty much a subjective determination. There are no objective factors that must be met to demonstrate that truancy prevention measures are working. Nobody will be looking at such determinations to evaluate whether such a determination is accurate. (Ted Wood, Office of Court Administration, 2015)
Upon receiving a referral for truant conduct from a school district, is a truancy court supposed to pass every single referral on the prosecutor? Or is the court allowed to “weed out” defective referrals and never even pass them on to the prosecutor?
The Court sends every referral from a school district on to the prosecutor. This is very much intentional and is not a mistake.
Section 65.051 requires the court to forward the referral if the court is not required to dismiss the referral under Education Code, Section 25.0915. In Section 25.0915, however, the only thing in there about the court dismissing anything is in subsection (c). Subsection (c) talks about a court dismissing a prosecutor’s petition. There is nothing in there about the court dismissing a referral from a school district.
So, even though Section 65.051 alludes to a dismissal by the court before sending the referral on to the prosecutor, there is no such dismissal allowed under Section 25.0915. The bottom line is that all cases referred to a truancy court by a school district are to be forwarded to the prosecutor.
The onus is really on the prosecutors. Not on the courts. So all referrals that go to the courts are to be forwarded to the prosecutors. This is the only duty the court has upon receiving a referral — forward it on to the prosecutor. The court should not “weed out” referrals before sending them to the prosecutor. (Ted Wood, Office of Court Administration, 2015)
May the truancy court prepare a petition for the prosecutor to sign? This would be done in the interest of lightening the load of the prosecutor.
This is not what the statute envisions. The statute envisions that prosecutors prepare the petitions. Judges who do this are certainly well-intentioned and their efforts may serve to get the cases processed more quickly. But preparing the petition goes beyond the role of the court and gets into prosecutor territory. It seems that preparing the petition is akin to preparing a charging instrument which is the prosecutor’s job. While not outright prohibited, it is not encouraged. (Ted Wood, Office of Court Administration, 2015)
Should a truancy court open a file on every referral the court receives from a school district? Or should the court wait to open a file until the prosecutor files a petition?
There may not be an absolute right or wrong on this. If no “case” really exists until the prosecutor files a petition, resist creating a file until a petition is filed by the prosecutor.
It would be okay to keep a list of the referrals that are made by the school districts. But this is different from creating a new case file.
Also, for statistical purposes, a new case does not come into existence until a petition is filed. (Ted Wood, Office of Court Administration, 2015)
If truancy courts simply pass on school district referrals to prosecutors, then why don’t school districts just file their referrals directly with the prosecutors?
This is a fair question and unclear. But the law is what it is so we should endeavor to follow it. (Ted Wood, Office of Court Administration, 2015)
May multiple county courts in one county designate one county court to hear truancy cases, alleviating the requirement to adopt “uniform truancy policies?”
SECTION 10 of HB 2398 requires certain counties to adopt “uniform truancy policies.” The requirement applies only to counties “with two or more courts hearing truancy cases and two or more school districts.” Some counties would like to avoid going through the process of establishing uniform truancy policies. Can these counties avoid this process by deciding that only one court in the county will “hear” truancy cases even though the county may have multiple courts that are statutorily designated as truancy courts (e.g., a county with four justices of the peace)?
No. This would likely be an attempted end run around the statute. This would certainly be inconsistent with the legislative intent so it is not a suggested practice. (Ted Wood, Office of Court Administration, 2015)
Must all open, pending, unadjudicated failure-to-attend-school cases be expunged by the court on September 1, 2015?
No. The expunction requirement only applies to cases that have resulted in convictions and cases that have been dismissed. (Ted Wood, Office of Court Administration, 2015)
When must the cases be expunged by?
There is no explicit deadline. The best practice is to do so as quickly as possible, and also to treat all cases as expunged effective September 1, 2015. For example, if Johnny Smith hasn’t complied with the court order in his case, it is not recommended to set a show cause for September 15, with the justification that the clerk hasn’t gotten to the ‘S’ for Smith files yet, so Johnny Smith’s case isn’t expunged. (Texas Justice Court Training Center, 2015)
Does a person convicted of failure-to-attend-school need to present a motion to the court in order to get the case expunged?
No. Courts are supposed to issue these expunction orders sua sponte. (Ted Wood, Office of Court Administration, 2015)
What about FTAS cases that have not been dismissed and where no conviction has been entered?
Those cases are still pending, and the bill allows the court to proceed on them. However, there will be no benefit to proceeding on these open cases because if the case is dismissed, it must automatically be expunged. Or, if the defendant is convicted, it must automatically be expunged. Therefore, in many counties, the plan is that the prosecutor will file a motion to dismiss any pending FTAS cases. (Texas Justice Court Training Center, 2015)
What if the defendant in a case eligible for automatic expunction still owes a fine/costs or hasn’t complied with a condition of the court order?
The case will still be expunged, and the statute says they are released from all penalties and disabilities resulting from the complaint or conviction, so they would no longer owe fines/costs or be required to comply with the court order. If the court has ordered the Department of Public Safety to suspend the defendant’s driver’s license for failure to pay a fine, the court should order DPS to remove the suspension prior to expunction. (Texas Justice Court Training Center, 2015)
Can an expunction order cover more than one case? Or does each case need to have its own expunction order?
Yes, a single expunction order can cover more than one case. My recommendation would be to list the number (and perhaps the style) of every affected case at the top of the expunction order. One order could cover all of the cases for a certain month or even for a certain year (or maybe even longer that). (Ted Wood, Office of Court Administration, 2015)
What are a court’s options with regard to existing failure-to-attend-school cases that have not resulted in convictions and that have not been dismissed? In other words, what are a court’s options in regard to unadjudicated failure-to-attend-school cases?
OCA has issued an official statement on this (in response to a question) which reads as follows:
SECTION 3 of HB 2398 create[d] Article 45.0541 [45A.464] dealing with the expunction of failure-to-attend-school records. Subsection (b) calls for the expunction of records of a truancy offense (i.e., failure to attend school) under Section 25.094 of the Education Code.
These records are only to be expunged if the student involved has been convicted or if the offense has been dismissed. So the expunction provision does not address cases in which there was no conviction or dismissal.
You ask about all of the records in failure-to-attend-school cases that have not resulted in a conviction and have not been dismissed. You describe these cases as “open, pending, unadjudicated cases.”
These case cannot be expunged under Article 45.0541 [45A.464]. The bill allows for cases in this situation to be handled under the prior law (which actually [was] still in effect until September 1). But even after September 1, the bill permits justice and municipal courts to handle these open cases under the prior law. See SECTION 42 of the bill (“An offense committed or conduct that occurs before the effective date of this Act is governed by the law in effect on the date the offense was committed or the conduct occurred, and the former law is continued in effect for that purpose.”).
As the paragraph above shows, a justice or municipal court could process an open pending case even after September 1, 2015. But while a court may do so, we question whether this is the best practice. In fact, doing this would raise some practical difficulties. As soon as a student would be convicted in such a situation, there would be a conviction and the court would have to expunge it. And the student may have no obligation to pay court costs or fines or do anything else due to the immediate expunction of the conviction. The court would have no power to enforce monetary penalties after the expunction, because the student is “released from all disabilities resulting from the conviction.” See Article 45.0541(c) [45A.464(d)].
We think the better practice may be for courts to visit with prosecutors about dismissing all of their pending failure-to-attend-school cases. Of course, this can only be done upon a motion from the prosecutor in the case. Assuming the court grants such a motion, the case will have been dismissed and will then be required to be expunged.
Dismissals of open, pending cases can occur prior to September 1, 2015 as well as after September 1. On or after September 1, the cases can be expunged.
In summary:
(1) Courts cannot expunge a case that has not yet been disposed.
(2) Prosecutors are not required to dismiss pending cases.
(3) Judgments are likely to be automatically “written off” when a conviction is expunged. This is because after entry of an expunction order, a defendant necessarily “is released from all disabilities resulting from the conviction.” (And because collecting costs in an expunged case may be impractical). So a defendant in this instance whose conviction has been expunged no would no longer owe any unpaid fines and court costs.
(4) The court cannot sua sponte dismiss unadjudicated cases. But the court can dismiss unadjudicated cases in response to an appropriate motion by a prosecutor.
The court need not enter any order dismissing unsatisfied judgments. This happens automatically by virtue of a court’s order of expunction. See Answer (3) above.
(Ted Wood, Office of Court Administration, 2015) (Statutes updated 2025)
What if the child was served with the summons, but the parent was not timely served. Can the hearing go forward? In other words, is service of the summons on the parent required before the hearing can proceed?
The statute appears to allow the hearing to go forward even in the absence of the parent being timely served. However, Section 65.101 instructs the judge to give certain warnings at the beginning of the adjudication hearing. One of those warnings is the child has the right to a jury trial. Section 65.008 tells us that a child may waive his or her rights – including the right to a jury trial. But such a waiver may be made only if the child’s parent (or guardian) signs the waiver. So if a parent is not in attendance at the hearing, the parent cannot sign the waiver document. And without a signed waiver document, there is no valid waiver. And if there is no valid waiver, a non-jury hearing cannot go forward. So as the practical matter, the court could not proceed with the hearing and the hearing would have to be reset. (Ted Wood, Office of Court Administration, 2015)
Why does Family Code, Section 65.202 not allow parents access to the child’s records, unless under (7) with leave of the truancy court?
For better or for worse, Section 65.202 tracks Section 58.005 of the Family Code which does not have a specific provision giving parents access to the records. This issue was not discussed. Had the issue been discussed, parents would likely have been given express access to these records. This is likely just one of those carryover provisions from the Juvenile Justice Code that wasn’t reconsidered. (Ted Wood, Office of Court Administration, 2015)
On what date can the $50 court cost first be assessed?
January 1, 2016. The cost can be assessed on any adjudication of truant conduct that occurs on or after January 1. The fact that some (or all) of the ten absences occurred before January 1, 2016 does not matter.
If a student is adjudicated as having engaged in truant conduct prior to January 1, 2016, the $50 court cost may not be charged. The $50 fee may not be assessed once January 1 comes around on cases that were adjudicated earlier. (Ted Wood, Office of Court Administration, 2015)
Do we expunge Parent Contributing to Nonattendance cases?
No, those cases are still criminal, and may not be automatically expunged pursuant to Article 45.0541 [45A.464]. (Texas Justice Court Training Center, 2015) (Statute number updated 2025)