Texas Child Protection Law Bench Book
2023 version: As effective November 1, 2023
E. Attendance and School Experience
1. School Year
A child who is required to attend school under Tex. Educ. Code § 25.085 shall attend school each school day for the entire period the program of instruction is provided. Tex. Educ. Code § 25.085(a). Unless specifically exempted by Tex. Educ. Code § 25.086, a child who is at least six years of age, or who is younger than six years of age and has previously been enrolled in first grade and who has not yet reached the child's 19th birthday, shall attend school. Tex. Educ. Code § 25.085(b). Upon enrollment in prekindergarten or kindergarten, attendance is also compulsory. Tex. Educ. Code § 25.085(c).
Special Issue: When considering the timing of a school move, courts, DFPS, and school staff should be aware of both the sending and receiving local school district calendars, including the administration schedule for the State of Texas Assessment of Academic Readiness (STAAR), which can be found on the TEA Website and on local school district websites. It is most helpful to children and youth in care, and least disruptive to schools, to avoid making a school change during a testing period.
2. Minimum Attendance for a Class Credit or a Final Grade
A student in any grade level from kindergarten through grade 12 may not be given credit or a final grade for a class unless the student is in attendance for at least 90% of the days the class is offered. Tex. Educ. Code § 25.092(a). A student who is in attendance for at least 75% but less than 90% of the days a class is offered may be given credit or a final grade for the class if the student completes a plan approved by the school's principal that provides for the student to meet the instructional requirements of the class. Tex. Educ. Code § 25.092(a-1). Tex. Educ. Code § 25.092(a) does not apply to a student who receives credit by examination for a class as provided by Tex. Educ. Code § 28.023. Tex. Educ. Code § 25.092(a-2).
3. Excused Absences for Court-Ordered Activities
A school district shall excuse a student in DFPS conservatorship from attending school, including travel, if the student is participating, as determined and documented by DFPS, in an activity which is:
• Ordered by a court under Tex. Fam. Code Chapter 262 or Chapter 263, provided that it is not practicable to schedule the participation outside of school hours; or
• Required under a service plan under Tex. Fam. Code Chapter 263, Subchapter B. Tex. Educ. Code § 25.087(b)(1)(F).
A student whose absence is excused under Tex. Educ. Code § 25.087(b) may not be penalized for that absence, shall be counted as if the student attended school for purposes of calculating the average daily attendance of students in the school district, and must be allowed a reasonable time to make up schoolwork missed on those days. Tex. Educ. Code § 25.087(d).
Special Issue: If feasible, judges may consider scheduling court hearings for school-aged children outside of school hours or allowing for the child's participation via video conferencing such as Zoom. Additionally, to ensure a child does not incur unnecessary unexcused absences, it is helpful to clarify in the court order which appointments and activities require the child's presence or involvement.
4. Truancy
With certain exceptions, if a student fails to attend school without excuse on 10 or more days or parts of days within a six-month period in the same school year, a school district shall within 10 school days of the student's 10th absence refer the student to a truancy court for truant conduct under Tex. Fam. Code § 65.003(a). Tex. Educ. Code § 25.0951(a). Truant conduct may be prosecuted only as a civil case in a truancy court. Tex. Fam. Code § 65.003(b). However, if a student fails to attend school without excuse as specified by Tex. Educ. Code § 25.0951(a), a school district may file a complaint against the student's parent in a county, justice, or municipal court for an offense under Tex. Educ. Code § 25.093, if the school district provides evidence of the parent's criminal negligence. Tex. Educ. Code § 25.0951(b). It is an affirmative defense to truant conduct if the absence was due to abuse as defined by Tex. Fam. Code § 261.001. Tex. Fam. Code § 65.003(c)(3).
A school district shall adopt truancy prevention measures designed to address student conduct related to truancy in the school setting before the student engages in conduct described by Tex. Fam. Code § 65.003(a) and minimize the need for referrals to truancy court for conduct described by Tex. Fam. Code § 65.003(a). Tex. Educ. Code § 25.0915(a). A school district shall offer additional counseling to a student and may not refer the student to truancy court if the school determines that the student's truancy is the result of being in the state foster program. Tex. Educ. Code § 25.0915(a-3).
For more information, please visit the Texas Judicial Branch website Truancy Reform Training Materials webpage.[189]
5. Extracurricular Activities
A child in foster care may attend a school free of charge in the district where the foster parent or relative caregiver resides, and a durational residence requirement may not be used to prohibit that child from fully participating in any activity sponsored by the school district. Tex. Educ. Code § 25.001(f). The Office of the Attorney General of Texas interpreted this language to mean that the University Interscholastic League (UIL) cannot apply any durational residency requirement to children placed in foster care, regardless of whether the placement is the child's first placement or a move from one placement to another.[190]
6. Discipline
If a school district permits the use of corporal punishment as a method of student discipline, the person having lawful control of a student must provide a signed, written statement each school year to prohibit corporal punishment for that student. Tex. Educ. Code § 37.0011(c). It is DFPS' policy to prohibit the use of corporal punishment for all children in foster care and caregivers are directed to “opt out” of school policy on corporal punishment in writing on an annual basis.[191]
Schools are required to designate a campus administrator to serve as a campus behavior coordinator. Tex. Educ. Code § 37.0012. In addition to other duties, the campus behavior coordinator must promptly notify the student's parent or guardian if the student is placed into in-school or out-of-school suspension, placed in a disciplinary alternative education program, expelled, or placed in a juvenile justice alternative education program or is taken into custody by a law enforcement officer. Tex. Educ. Code § 37.0012(d). A campus behavior coordinator must:
• Promptly contact the parent or guardian by telephone or in person; and
• Make a good faith effort to provide written notice of the disciplinary action to the student, on the day the action is taken, for delivery to the student's parent or guardian. Tex. Educ. Code § 37.0012(d).
Tex. Educ. Code § 37.0012 also allows for the principal or other designee to provide notice if the campus behavior coordinator is unable or unavailable to promptly provide notice. Tex. Educ. Code § 37.0012(f). Written notice may be mailed if the child's parent or guardian is not reached by the end of the first business day after the disciplinary action is taken. Tex. Educ. Code § 37.0012(e).
Each school district must adopt a student code of conduct that specifies consideration will be given as a factor in each decision concerning suspension, removal to a disciplinary alternative education program, expulsion, or placement in a juvenile justice alternative education program, regardless of whether the decision concerns a mandatory or discretionary action, to:
• Self-defense;
• Intent or lack of intent at the time the student engaged in the conduct;
• A student's disciplinary history;
• A disability that substantially impairs the student's capacity to appreciate the wrongfulness of the student's conduct;
• A student's status in the conservatorship of DFPS; or
• A student's status as a student who is homeless. Tex. Educ. Code § 37.001(a)(4).
With limited exceptions for serious offenses, a student who is enrolled in a grade level below grade three may not be placed in out-of-school suspension. Tex. Educ. Code § 37.005(c). The school district must provide a student placed in in-school or out-of-school suspension an alternative means of receiving all coursework, including at least one option that does not require the internet. Tex. Educ. Code § 37.005(e).
5. High School Graduation
Graduation planning now includes review of a Personal Graduation Plan (PGP) for some junior high or middle school students and all high school students. Tex. Educ. Code § 28.0212 and Tex. Educ. Code § 28.02121. For further information on the graduation programs, see the TEA Graduation Toolkit.[192]
Special Issue: A PGP provides each student with a roadmap for academic progress, graduation, and college and career readiness. A PGP is a helpful tool to keep students in foster care on track for graduation, especially when their progress is disrupted by school changes.
If a student in the 11th or 12th grade fails to comply with the end-of-course assessment instrument performance requirements under Tex. Educ. Code § 39.025 for not more than two courses, the school district that the student attends shall establish an individual graduation committee at the end of or after the student's 11th grade year to determine whether the student may qualify to graduate. Tex. Educ. Code § 28.0258.[193]
If an 11th or 12th grade student in the conservatorship of DFPS transfers to a different school district and is ineligible to graduate from the district to which the student transfers, the district from which the student transferred shall award a diploma at the student's request, if the student meets the graduation requirements of the district from which the student transferred. Tex. Educ. Code § 28.025(i).