JPS HANDLED BISD TRUANCY CASES CONTRARY TO LAW

By Juan Montoya
For at least the past 10 years the Cameron County Justice of the Peace courts in Brownsville have conducted criminal truancy hearings on students and parents in violation of the law that states that a prosecuting attorney should represent the state in the hearings.
And documentation provided by the county shows that criminal truancy cases filed by the the Brownsville Independent School District have climbed steeply and total 3,474 for the past two years in the courts headed by JP 2-1 Linda Salazar and then-JP 2-3 Erin Garcia.
They, and other county JPs, had allowed the Brownsville Independent 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 stop to the filings of the cases – under the Failure To Attend School and Parent Contributing to Non-Attendance sections of the Education Code – until there is a solution to the problem.
The BISD has sought to file an increasing number of cases in criminal court, bucking the trend state and nationwide against criminalizing school absence and seek a civil solution through juvenile courts instead.
By going through the municipal and justice courts, the BISD charges students and parents with a Class C misdemeanor which can result in fines of up to $500 per day missed and makes the students liable to get arrested after they turn 17 if they haven't paid the fines. The issuance of a warrant can lead to an arrest and incarceration to pay time for the fines.
The Texas Legislature has amended the original law passed in 1995 to stop the schools from swamping the courts with disciplinary problems that are correctly in the purview of educators and juvenile authorities.
However, the BISD is far behind the progressive curve as can plainly be seen by the increasing numbers in the graphics above covering the last two years.
The odds are stacked against the student and the parent since FTAS cases aren't afforded court-appointed attorneys (as are other indigent defendants in a criminal case) to state any mitigating circumstances that might have led to the student's absenteeism. Additionally, the conducting of the criminal case requiries the presence of a prosecutor to try it since there are fines and penalties including incarceration.
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 now require that the judge consider whether the schools have 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.
In Salazar's case, one could say she and other JPs who are not lawyers don't know any better, but Garcia ran for office using the slogan "You deserve legal experience." We understand she has let people know that she will be a candidate for another JP office should one open next year. Will she have "legal experience" by then?