Untitled Texas Attorney General Opinion, KP-0064

Background

2015 amendments (House Bill 2398) added chapter 65 to the Texas Family Code to decriminalize and reform truancy procedures.
Truancy courts may impose fines or driving restrictions for a single failure to obey a truancy order or a single instance of direct contempt (TEX. FAM. CODE § 65.251(a)).
TEX. FAM. CODE § 65.251(b) allows a truancy court to refer a child to the juvenile probation department when the child fails to obey an order or is in direct contempt and “the child has failed to obey an order or has been found in direct contempt of court on two or more previous occasions.”
§ 65.251(c) requires documentation of prior truancy orders, failures to comply, and any direct contempt when making a referral.
TEX. FAM. CODE § 65.252 sets out the juvenile court referral/adjudication process: the juvenile prosecutor must determine probable cause, may request adjudication, and the juvenile court must admonish the child on consequences; § 65.252(d) preserves prosecutorial discretion to pursue delinquent-conduct charges under § 51.03.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Meaning of § 65.251(b): whether the phrase “on two or more previous occasions” applies only to direct contempt or to both failure to obey and direct contempt	The language could be read to limit the “two or more previous occasions” to direct contempt only (narrow reading).	The phrase should apply to either category, so referral requires two prior instances of contemptuous behavior of any combination (broader, cumulative reading).	A court would likely read § 65.251(b) to require two prior instances of contemptuous behavior (failure to obey or direct contempt, in any combination) before referral to juvenile probation is permitted.
How to interpret § 65.251(b) in light of § 65.251(a) penalties for a single occurrence	Single-occurrence penalties in (a) show (b) must require something more than a single occurrence.	Same — legislative structure indicates (b) is triggered by repeated conduct.	The statutory scheme supports treating (b) as requiring more than a single event; referral follows two prior occasions of offending conduct.
Whether juvenile prosecutor must follow § 65.252 adjudication process before prosecuting under § 51.03 delinquent-conduct provision	The adjudication process is mandatory on initial referral; delinquent conduct charges follow only after the § 65.252 process and subsequent referrals.	§ 65.252(d) preserves prosecutor discretion; prosecutor may charge delinquent conduct under § 51.03 even on initial referral.	Held that prosecutors retain discretion under § 65.252(d) to file delinquent-conduct charges under § 51.03(a)(2)(C) even at the child’s initial referral; § 65.252(a)-(c) do not limit that discretion.
Effect of § 65.252(b) admonishments referencing “subsequent” referrals	The use of “subsequent” means delinquent-conduct prosecution cannot occur on first referral.	The term “subsequent” modifies the admonishment but does not strip prosecutor discretion preserved in (d).	The admonishment’s language does not eliminate prosecutorial discretion; admonishment is informational, prosecution discretion remains intact.

Key Cases Cited

Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (statutory-construction principle: give effect to legislative intent)
In re Smith, 333 S.W.3d 582 (Tex. 2011) (if statutory language is ambiguous, courts may look beyond text for legislative intent)
Tex. Student Hous. Auth. v. Brazos Cty. Appraisal Dist., 460 S.W.3d 137 (Tex. 2015) (statute should be read as cohesive whole, not isolated phrases)
City of Dallas v. TCI West End, Inc., 463 S.W.3d 53 (Tex. 2015) (avoid interpretations that render parts of a statute meaningless)