D.A. STOPS BISD FROM FILING TRUANCY CASES; CITY COURT IN TALKS TO STEM FLOW OF CRIMINAL TRUANCY PROSECUTIONS

By Juan Montoya
Following the dismissal of some 400 truancy criminal cases filed against parents and against students attending the Brownsville Independent School District last year, the Cameron County District Attorney's Office has told the district to desist from the action citing deficiencies with cases filed in the past.
And the Brownsville Municipal court chief judge says he is considering issuing  a moratorium on criminal truancy cases that are filed by the BISD citing a lack of prosecutorial manpower and to investigate whether the district has exhausted all early intervention efforts that would prevent it from recurring to the criminal and justice courts and charging students and parents with a Class C misdemeanor.
In the case of truancy cases handled in the JP courts in Brownsville, the DA's office was not included "in the loop" and may have violated the rules set forth in the Texas Code of Criminal Procedure for justice courts which 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.
Up to now, according to court sources, the JP office, notably JP 2-2 which was administered by former JP Erin Garcia Hernandez, was allowing the school district or the bench to prosecute students and parents without the DA given notice of the prosecution.
In fact, new JP 2-3 Mary Ether Garcia has deferred to the DA's Office decision and has been reluctant to hear them in her court.
The backlog of cases filed by the BISD in the courts created a backlog which – according to court sources – resulted in more than 400 case being dismissed.
Likewise, truancy cases in the 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.
The BISD's Pupil Services Administrator, Randy M. Park, is said to have been urging the city to provide the court and personnel to prosecute the cases under the Failure to Attend School (FTAS) Statute of the Texas Criminal Procedure Code Section 45.045 instead of relying on the civil track in juvenile court.
However, the district up to now has failed to deliver the funds to the city to procure a full-time truancy prosecutor or a special court.
The difference between the juvenile court and the municipal and JP courts is immense.
While the student who is cited in juvenile court faces a civil process which emphasized addressing the causes of truancy, a case filed in the municipal and justice of the peace courts is treated as a Class C misdemeanor crime with penalties of $500 per instance and possible incarceration through warrants issued once the student upon the student turning 17.
It is also important to note that a child processed in juvenile court for truancy is afforded counsel at every stage of the process. Conversely, when this same child is accused of FTAS ( a misdemeanor) in a municipal or justice court, he receives no such assurances. He or she must hire their own attorney if they can afford it. In a Class C misdemeanor FTAS case, there is no statutory right to counsel for indigent clients, even though the penalties are more severe than in juvenile court truancy proceedings., i.e., municipal and justice courts can impose significant fines and the consequences flowing from FTAS can be severe.
It is exclusively up to BISD and other school districts to decide under which offense, end essentially which penalties, will apply when filing against a student. It is notably easier and less expensive for schools to issue citations (tickets) under FTAS as compared to filing a formal complaint under truancy in a juvenile court, thus ease of muse creates another school-based
Parents are also subject to prosecution under the FTAS statute with a charge of Parent Contributing to Truancy, a charge with a possible fie of $500 for each unexcused absence.
In fact, the municipal courts or JP courts can only intervene in truancy cases if the juvenile court has waived its jurisdiction or if the district filed under the FTAS.

Now, as the DA's office reexamines the cases processed through the JP courts where the DA was not given notice, it may be possible that the penalties and punishments may be nullified by review.
A study by Elizabeth A. Angelone from St. Mary's Law Review on Minority Issues titled "The Texas Two-Step: The Criminalization of Truancy Under The Texas Failure To Attend Statute" points out that the trend across the nation goes counter to this state's (and BISD's) emphasis on considering truancy a crime.
She states that Chapter 37 of the Education Code passed in 1995 Texas adopted a "get tough" approach to juvenile offenders in which the original intent to rehabilitation became secondary to punishment. The adoption of that chapter created a major change in the state's policy governing student discipline by adopting a criminal model.
"In effect," she said "Chapter 37 caused local control of discipline in our schools to fly out the schoolhouse window and straight to the courthouse."
In the face of the overwhelming number of Class C cases filed by school districts, Texas Chief Justice Wallace Jefferson formed the Juvenile Justice Committee of the Texas Judicial Council in 2012 whose mission was to "assess the impact of school discipline and school-based policing on referrals to the municipal, justice, and juvenile courts and identify judicial policies or initiatives that: work to reduce referrals without having a negative impact on school safety; limit recidivism; and preserve judicial resources for students for students who are in the need of this type of intervention.
They found that:
1. The Legislature should expressly authorize local governments to implement “deferred prosecution” measures in Class C misdemeanors to decrease the number of local filings from schools.
2. The Legislature should amend applicable criminal laws to ensure that local courts are the last and not the first step in school discipline (i.e., Amend Section 8.07 of the Penal Code to create a rebuttable presumption that a child younger than age 15 is presumed to not have criminal intent to commit Class C misdemeanors - with exception for traffic offenses). This could be limited to Chapter 37, Education Code offenses but would make more sense to apply to all children.
3. The Legislature should amend offenses relating to Disruption of Class, Disruption of Transportation, and Disorderly Conduct so that age (not grade level) is a prima facie element of the offense.
4. The Legislature should amend existing criminal law and procedures to increase parity between “criminal juvenile justice in local trial courts” and “civil juvenile justice in juvenile court and juvenile probation.”
In the past BISD wanted JP 2-2 Erin Garcia to take over all truancy cases because of her "success" in prosecuting those cases. However, in light of the fiscal and procedural problems and social consequences associated with the schools handing the paddle to the courts to discipline truant students, that approach may have turned out to have been badly misguided.