DA REVIEWS CRIMINAL TRUANCY CASES FILED BY DISTRICTS

By Juan Montoya
The Cameron County District Attorney's Office has been reportedly meeting with school district representatives across the county as a result of revelations that Justice of the Peace courts have been conducting proceedings without a representative from the prosecutor's office present as required by law.

For at least the past 10 years, since the passage in 1995 of the Failure To Attend School and Parent Contributing to Non-Attendance sections of the Education Code, the Cameron County Justice of the Peace courts in Brownsville – and across the rest of the county – have conducted criminal truancy hearings on students and parents.

But while in the past these cases were heard in a juvenile court in a civil process, the new law allowed the districts to bring a Class C Misdemeanor is a municipal or justice of the peace court.

According to the law, when a student fails to attend school without excuse on 3 or more days or parts of days within a 4-week period, the school district may file a complaint against the student who is 12 years of age or older and younger than 18 years of age, or the student’s parent, or both, or refer the student to the juvenile court for conduct indicating a need for supervision. (Tex. Educ. Code §25.0951).
The offense of “failure to attend school” is punishable by a fine not to exceed $500.00 per violation. In addition to the fine, court costs are charged as authorized by law.

Criminal procedures are found in Chapter 45 of the Texas Code of Criminal procedure. Specific procedures for “failure to attend school” proceedings are found in Article 45.054 of the Texas Code of Criminal Procedure.

The Rules of Evidence governing the trials of criminal actions in the District Courts apply to a criminal proceeding in the Justice Courts.
Harris County (Houston) District Attorney prosecutes “failure to attend school” proceedings filed in the Harris County Justice Courts.

But local schools, particularly the Brownsville JP courts, have not adhered to the law and in many cases did not notify the DA's Office that they needed to represent the state (BISD). Under the law, neither the defendant students nor the parents are afforded access to indigent legal representations, effectively pitting them against the BISD truancy officers and sometimes the judges themselves who act as prosecutors.

In Brownsville Municipal courts, the city has asked the BISD to contribute funds to hire an assistant city attorney to handle the increasing number of Class C cases. But the judges there have indicated that they do not favor the transfer of the truancy cases to the courts where they become a criminal matter.

Documentation provided by the county shows that criminal truancy cases filed by the the BISD have reached a total of 3,474 for the past two years in the courts headed by JP 2-1 Linda Salazar and then-JP 2-2 Erin Garcia. Critics say that this, in effect, has transferred the paddle from the schools to the courts.

They, and other county JPs, had allowed the BISD and other school district administrators (and themselves) to act as the prosecutor and judge and assessed fines and punishments as they saw fit.

The irregularities in the court proceedings have led the Cameron County District Attorneys Office to put a temporary stop to the filings of the cases and prompted the sessions with the school districts.

As can be seen in the graphics above, the BISD is bucking the state and nationwide trend against criminalizing school absence and seeking a civil solution through juvenile courts and school intervention programs instead.

By going through the municipal and justice courts, the BISD and JP courts make the students liable to get arrested after they turn 17 if they haven't finished paying the fines. The issuance of a warrant can lead to an arrest and incarceration to pay time for the fines. It also leads to having a 17-year-old having a criminal record at the very beginning of his or her adult life.

Having a prosecutor isn't just a legal nicety. It is a requirement of the law.

The Texas Code of Criminal Procedure for justice courts states in Subchapter C., Art. 45.101. "JUSTICE COURT PROSECUTIONS. (a) All prosecutions in a justice court shall be conducted by the county or district attorney or a deputy county or district attorney."

Similarly, municipal courts are guided by Art. 45.201. "MUNICIPAL PROSECUTIONS. (a) All prosecutions in a municipal court shall be conducted by the city attorney of the municipality or by a deputy city attorney."

In all of the cases above, the BISD and the JPs acted as both prosecutors and judges. For someone to argue that this can result in an impartial and fair judgement would seem to be ludicrous.

BISD's had promised the municipal court funds to hire a full-time FTAS and PCNA city attorney to act as prosecutor but to date has not come through.

The recent changes in truancy law in response to the shifting of discipline-related charges to the courts have led to responding legislation that now require that the judge consider whether the school district has an effective truancy intervention program in place and confirmation that the student is not a special needs student with disabilities that would contribute to his absence from school.

Judges are also given wide latitude in assessment of fines and in deciding whether the district has exhausted every effort to address factors before taking the criminal track to the courts.