Untitled Texas Attorney General Opinion ( 1974 )

July 15, 1974
The Honorable Ralph W. Kinsey Opinion No. H- 347
County Attorney
Dawson County Re: Can a habitual truant
P. 0. Box 459 be committed to a State
Lamesa, Texas 79331 Juvenile Training School
under the provisions of
Article 4.25 of the Educa-
tion Code?
Dear Mr. Kinsey:
You have pointed out a conflict between Section 4.25(b), Texas
Education Code, V. T. C. S., and Section 54.04(g) of the new Texas
Family Code, which concern proceedings against children who have
violated the compulsory school attendance laws of this state [Sections
21.031 through 21.040, Texas Education Code, V. T. C. S. 1.
Your letter states:
It appears that under Article 4. 25 of the Education
Code Secti.on B a child can be committed to the state
juvenile training school for certain truancy cases and
it appears that in the cited provision of 51.03, Subsection
B that he can not. We are wondering if a child who has
violated Section B, Article 4. 25 . . . can still be sent
to the juvenile traini.ng school or did the juvenile code
repeal that section of the Education Code?
Section 4.25(b), Education Code, provides that:
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The Honorable Ralph W. Kinsey page 2
If any parent. . . can prove that he is unable
tq compel his child to attend school . . . his child
may be proceeded against as a habitual truant and
committed to a state juvenile training school or
any other suitable school agreed upon between his
parent. . . and the judge of the juvenile court.
,
Prior to the adoption of Title 3 of the Texas Family Code by
Acts 1973, 63rd Leg., ch. 544, p. 1460, Section 4.25, supra, was
complemented by Article 2338-1, V. T. C. S., which established juvenile
courts, and determined their jurisdiction and powers. Article 2338-1,
Section 3(e) defined “delinquent child” to include any child who “habitually
violates a compulsory school attendance law of this state . . . ”
Section 13 (c) of Article 23,38-l then provided:
If the judge or jury finds that the child is
delinquent, or otherwise within the provisions
of this Act, the court may by order duly entered
proceed as follows:
(1) place the child on probation . . .
(2) commit the child to a suitable public institution
or agency or to a suitable private institution or
agency authorized to care for children . . .
With the enactment of Title 3 of the Texas Family Code, effective
Sept. 1, 1973, Article 2338-l was repealed in its entirety, and Sections
51.01 through 56.02 of the Family Code have replaced it. Acts 1973,
63rd Leg., ch. 544, p. 1485, Section 3.
Title 3 of the Famil,y Code did not expressly repeal Secion 4. 25
of t:he Educati,on Code. However, major changes i.n the juvenile court!s
power over truant child.ren under the new Family Code make it doubtful
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The Honorable Ralph Kinsey page 3
that the provision of Section 4.25 of the Education Code which authorizes
the commitment of a habitual truant to a state juvenile training school is
‘still viable.
Under Title 3 the violation of the compulsory school attendance
law is not “delinquent” conduct, as it formerly was under Article 2338-1,
V. T. C. S., but now constitutes “conduct indicating a need for supervision. ”
See Section 51.03 (b)(2), Texas Family Code, V. T. C. S.
The distinction is important because the new Family Code, in Section
54.04, permits the juvenile court to commit a child to the Texas Youth
Council for delinquent conduct, but expressly denies the court the power
to commit a child to the Texas Youth Council for violations of the compulsory
school attendance law.
Section 54.04 (g):
In no event may the court commit a child to the
Texas Youth Council because the child engaged
in conduct defined in Subdivision (2) [violation
of the attendance law], (3), or (4) of Section
51.03 (b) of this code.
The Texas Youth Council manages and directs State training school
facilities for delinquent children, Article 5143d, Section 6 (d), V. T. C. S.
Insofar as Secti.on 4. 25 of the Education Code authorizes a juvenile
court to commit a child to the Texas Youth Council for truancy, it conflicts
irreconcilably with, and is to that extent impliedly repealed by, the express
prohibitions of the later enacted comprehensive revision of juvenile pro-
ceedings under Title 3 of the Family Code. The prohibi.tion against com-
mitment of such a child to the Texas Youth Council is expressed again in
Sections 51.03 (a)(2), 54.05(g).
Repeals by implication are not favored by our courts. St.. Louis
p* 1.617
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The Honorable Ralph Kinsey page 4
.
S. W. Railway Co; v. Kay, 22 S.W. 665 (Tex. 1893); Jefferson County v.
Board of County and District Road Indebtedness, 182 S.W.2d 908 (Tex.
1944). However, the pronounced antagonism between the provision of
Section 4.25, contemplating commitment to a state juvenile training
school and Section 54.03(q) of the,Family Code, is enough under even
the stringent tests applied by these cases to justify a conclusion of partial
repeal to the extent of the conflict.
You have inquired only concerning commitment to a state juvenile
training school, but Section 4. 25 of the Education Code alternatively
contemplates commitment to “any other suitable school . . . ” Section
54.04(d) of the Family Code permits a juvenile c ourt to place a child
on probation “in a suitable public or private institution or agency,
except the Texas Youth Council ” for a period not to exceed one year
after a finding that a violation of the compulsory school law has occurred,
and after a finding by the court that the child is in need of rehabilitation
or protection. We think these portions of the two laws are compatible.
SUMMARY
Section 54.04(g) of the new Texas Family
Code prevents a juvenile court from committing
a child to the jurisdiction of the Texas Youth
Council for violations of the compulsory school
attendance law.
Ary truly yours,
-JOHN L. HILL
At:torney General of Texas
The Honorable Ralph Kinsey page 5
DAVID M KENDALL, Chairman
Opinion Committee
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