This commentary originally appeared in Dallas News on October 23, 2014.

Most youths across the state will have an enjoyable, productive school year as they progress toward a well-deserved summer vacation. Others, however, will end up on the wrong side of the law.

Their offense? Playing hooky.

Texas is one of only two states (the other is Wyoming) that employ the criminal justice system to punish truancy. The Texas Education Code — the body of law that regulates the activity of all educational institutions in the state — empowers school districts to file a criminal complaint against a child as young as 10 who has missed three days of school. After 10 missed days within a six-month period, however, the district’s discretion is removed and it is required to file against the child.

This is known as “Failure to Attend School,” or FTAS, a Class C misdemeanor that can carry up to $500 in fines and leave an indelible mark on the child’s criminal record. These fines are levied all too often on low-income families who don’t have the savings to pay them. If a child or parent is unable to pay the $500, or if the child misses one more day after adjudication, he or she can face jail time for the violation of a valid court order. In addition to the burden this places on families, the criminalization of truancy is a drain on limited court resources.

Adding to the frustration and confusion, the Texas Family Code already has a provision dealing with truancy. This is the Conduct Indicating a Need of Supervision section, which directly mirrors the language in the Education Code. However, this statute prosecutes students only through the juvenile court, eliminating the concern that this will lead to an adult record.

Further, FTAS misdemeanors saddle children with a criminal record that can keep them from future civil or military service. The sealing or expunction of these minor offenses stand to cost hundreds of dollars more in court costs and legal fees for individuals who, usually, are among those least able to afford it.

The Texas Legislature should move quickly to remove the criminalization of skipping school from the Education Code and allow school districts to find a truancy reduction method that works best for them.

Dallas and Fort Bend counties each have established a “truancy court,” a specialized docket that processes only kids who skip school. While the numbers seem to show the courts’ efficacy in reducing dropouts, credit belongs more to the specialized retention programs that judges are ordering truants to attend. The current process that forces children into these programs serves only to saddle these youngsters with a criminal record for minor misbehavior.

Motivations are called further into question when one considers that judges have the authority to assess fines and court costs which, in turn, help support the courts’ operating costs. In 2012 alone, the Dallas County Truancy Court collected almost $3 million in fines from truants and their parents.

Lawmakers should strongly consider removing the failure-to-attend provision from the Education Code. Not only is it redundant to the CINS truancy offense, it is a far too easy way for a child to begin adulthood with a criminal record.

Education is extremely important, both for individual and group success. Skipping school can cause a juvenile to miss important learning and development milestones. However, using the coercive mechanism of the state to enforce school attendance is, at best, overkill.

Better options exist that can address the complex problem outside of the criminal justice system. School boards and administrators should be allowed to innovate and find what works best. A mandatory referral to the criminal courts represents the worst specter of government intrusion.

Texas children deserve better.

Derek Cohen is a policy analyst for the Center for Effective Justice at the Texas Public Policy Foundation. Reach him at dcohen@texaspolicy.com. Deborah Fowler is deputy director for Texas Appleseed. Reach her at dfowler@texasappleseed.net. Dianna Muldrow, a law student and intern at the TPPF, also contributed to this piece.

Background

— Advocacy groups, including Texas Appleseed, filed a federal complaint in June 2013 alleging that the criminalization of truancy and Dallas County court fines amount to cruel and unusual punishment. The filing said 4,806 warrants had been issued and 1,737 served in fiscal 2012.

— Three days later, Dallas County Judge Clay Jenkins, who oversees the courts, said constables would stop making truancy-related arrests at school while changes were made in response to the complaint. Among the changes considered: asking districts to file no more than one case per student.

— The GOP-led Legislature passed a bill last year to put more responsibility on school districts to improve truant students’ attendance through detailed improvement plans and other measures before pursuing criminal charges. The bill was vetoed by Gov. Rick Perry, who cited conflicts with other laws and other problems.

— In January, the Justice Department issued new, nonbinding guidelines that essentially urge schools to deal with disciplinary issues, such as truancy, without resorting to the court system.