I.  Attendance

The statutes described in this Part apply to open-enrollment charter schools in addition to school districts, except for §25.092[2] (Minimum Attendance for Class Credit).

§25.085 (Compulsory Attendance)

Compulsory attendance applies to students who are at least six years old as of September 1 of the applicable school year.  The law requires a student to attend public school until the student’s 18th birthday, unless the student is exempt under §25.086. This requirement is enforced through §§25.093 and 25.094 (see page 6).  

Under §25.085(d), compulsory attendance applies to certain extended-year programs, tutorial classes, accelerated reading instruction programs, accelerated instruction programs, basic skills programs, and summer programs for students subject to certain disciplinary removals.  Under §25.085(c), it also applies to students below the age for compulsory attendance during any period that the student is voluntarily enrolled in pre-kindergarten or kindergarten.

Under §25.085(e), a person who voluntarily enrolls in or attends school after the person’s 18^th birthday is required to attend each school day for the entire period the program of instruction for which the student is enrolled is offered.  This state requirement is not enforceable through §§25.093 and 25.094. However, if the person has more than five unexcused absences in a semester, the school district may revoke the person’s enrollment for the remainder of the school year under this subsection.  The authority to revoke enrollment, however, does not override the district’s responsibility to provide a free appropriate public education to a student who is eligible for special education services.  Also, please note that a student whose enrollment is revoked under this provision is considered a dropout for accountability purposes.

Section 25.085(f) purports to authorize the board of trustees of a school district to adopt a policy requiring a person described by Subsection (e) who is under the age of 21 to attend school until the end of the school year and to subject the person to §25.094.   However, §25.085(f) is no longer effective due to the amendment of §25.094, limiting the application of that section to persons “younger than 18 years of age.”[3]

§§25.092 and 11.158 (Ninety Percent Rule; Fees)

Section 25.092 contains the provision of law commonly referred to as “the 90 percent rule.” Section 25.092 does not apply directly to open-enrollment charter schools.  However, some open-enrollment charter schools have included “the 90 percent rule” in their charters.

Section 25.092 conditions credit for a class on a student’s attendance for at least 90 percent of the days a class is offered.  A student who is in attendance for at least 75 percent, but less than 90 percent, of the days a class is offered may be given credit if the student completes a plan approved by the principal that provides for the student to meet the instructional requirement of the class.  If the student is under the jurisdiction of a court in a criminal or juvenile justice proceeding, the student may not receive credit by completing such a plan without the consent of the presiding judge.

 The board of trustees is required to appoint one or more attendance committees to hear petitions from students who do not regain credit through a plan approved by the principal.  An attendance committee may grant credit due to extenuating circumstances.  The board is also required to adopt policies establishing alternative ways for such students to make up work or regain credit lost because of absences. 

Under §25.092, a district may establish ways to make up work or regain credit that are workable in consideration of the circumstances.  The section does not require that students spend a certain amount of time in a “Saturday school” or other educational setting equal to time missed during regular school hours. The district should be prepared with other options that give the student a reasonable opportunity to make up work or regain credit even under challenging circumstances, including excessive absences that occur late in the school year.  Additionally, this law is not intended to penalize students for not attending a class before the student was enrolled in the class.  Students, including migrant students or transfer students, who could not have attended a class before enrollment should not have the days of class that occurred before their enrollment counted against them for purposes of “the 90 percent rule”.  As with any other student, to receive credit a student who enrolls after instruction for the year or semester has begun is required to demonstrate academic achievement and proficiency of the subject matter as required under §28.021 and 19 T.A.C. §74.26.

If a district offers an educational program outside of regular school hours as a means for students to make up work or regain credit, under §11.158(a)(15) and (h), a district may charge a fee for such an education program under restricted circumstances.  The school district may assess the fee only if the student returns a form signed by the student’s parent or other legal guardian stating that the fee would not create a financial hardship or discourage the student from attending the program.  The fee may not exceed $50.  Also, under §25.092(b) and (f), the board must provide at least one alternative for making up work or regaining credit that does not require a student to pay a fee under §11.158(a)(15).  The availability of that alternative must be substantially the same as the availability of an educational program for which a fee is charged.

§§25.093, 25.094, and 25.0951 (Compulsory Attendance Enforcement)

There are three options for compulsory attendance enforcement, which are outlined in §25.0951.  Section 25.093 is an offense for contributing to nonattendance, which is committed by a parent.[18]  Section 25.094 is an offense for failing to attend school, which is committed by a student who is 12 years of age or older and younger than 18 years of age.[19]  A district may file an action to enforce compulsory attendance in any justice precinct in the county in which the school is located or in which the person filed against resides.[20]  Alternatively, an action may be filed in municipal court or, in a county with a population of 1.75 million or more, in a constitutional county court.  Section 25.093 provides for the deposit of one-half of a fine collected under that section to the credit of the open-enrollment charter, JJAEP, or school district that the child attends.  The third option for enforcement is to proceed against the child in juvenile court as a “child in need of supervision” under §51.03 of the Texas Family Code.  This option applies if the child is 10 years of age or older for conduct committed before becoming 18 years of age.[21]  It is an affirmative defense under both the Texas Education Code and the Texas Family Code that an absence has been excused by a school official or the court.[22]  For the student, there is also an affirmative defense for absences that are involuntary.[23]  The affirmative defenses apply only if there are an insufficient number of absences remaining to constitute an offense.