Compulsory Attendance, Seat Time, and the 90% Rule

What's Required: Compulsory Attendance

The statutes described in this part apply to open-enrollment charter schools in addition to school districts.

Persons Subject to Compulsory Attendance

Under §25.085[2], 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 19th[3] birthday, unless the student is exempt under §25.086.  

Under §25.085(c), compulsory attendance also applies to students below the age for compulsory attendance during any period that the student is voluntarily enrolled in prekindergarten or kindergarten. 

In addition, 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.

Compulsory attendance is enforced through §25.093 and new Chapter 65, Texas Family Code.[4] 

Compulsory Attendance Exemptions

Section 25.086 lists the exemptions from compulsory attendance.[5] Three of the exemptions are addressed below.

Expelled Students

The exemption from compulsory attendance for students who have been expelled applies only in a school district that does not participate in a mandatory juvenile justice alternative education program (JJAEP).  With certain exceptions, counties with populations greater than 125,000 are required to have JJAEPs.[6][7][8]  In those counties, expelled students are subject to compulsory attendance.  Expelled students must attend the JJAEP, if they are placed there, or another educational program provided by the school district.  If an expelled student from a county that does not have a JJAEP moves to a county that has a mandatory JJAEP, the new school district may honor the expulsion under Chapter 37 but must assign the student to either the JJAEP or another educational program provided by the school district for expelled students.  An open-enrollment charter school may deny admission to a student expelled from a school district if its charter so provides.[9]

Notwithstanding the above-described exemption from compulsory attendance, a school district has a continuing obligation under federal and state special education law to provide a free appropriate public education to a student with a disability who has been removed for disciplinary reasons from his or her current educational placement, regardless of the population of the county in which the school district is located.[10]

17 year-old in Preparation Course for High School Equivalency Examination[11]

The exemption from compulsory attendance for a child attending a course to prepare for a high school equivalency examination who is at least 17 years of age applies if:  1) the child has the permission of the child's parent or guardian to attend the course; 2) the child is required by court order to attend the course; 3) the child has established a residence separate and apart from the child's parent, guardian, or other person having lawful control; or 4) the child is homeless.  (For a discussion of the enrollment in a school district of children with separate residences or who are homeless see Part III, Admission.)

16 year-old in Preparation Course for High School Equivalency Examination

There is a separate exemption for a child attending a course to prepare for a high school equivalency examination who is at least 16 years old.  This exemption applies if the child is enrolled in a Job Corps training program or the child is recommended to take the course by a public agency that has supervision or custody of the child under a court order.  Under §65.103, Texas Family Code,[12] a truancy court[13] that finds that a child who is at least 16 years of age has engaged in truant conduct[14] may order the child to take a high school equivalency examination and to attend a preparatory course.  These are the only conditions under which 16 year-olds are exempt from compulsory attendance due to attending a course to prepare for a high school equivalency examination.  In addition, certain 16 year-olds may attend a high school equivalency program operated by a school district or open-enrollment charter school under §29.087.

Compulsory Attendance Enforcement; Persons under Age 19

Designation of School Attendance Officer

Under §25.088, the governing body of a school district or of an open-enrollment charter school may select an attendance officer to enforce the attendance of students. If an open-enrollment charter school does not select an attendance officer, §25.090 requires the county peace officers to perform the duties of an attendance officer with respect to students in the open-enrollment charter school.

Duties of School Attendance Officer

Section 25.091 lists the duties of a school attendance officer. The section lists separately the duties of attendance officers who are peace officers and the duties of those who are not peace officers.  Please note that the statute authorizes an attendance officer to refer a student to truancy court only for "unexcused absences."  Excused absences are not included in the number of absences required for a referral or complaint.[15]  In addition to enrolled students with unexcused absences, a school attendance officer's duties extend to persons within compulsory attendance age who are not exempt from compulsory attendance and are not enrolled in school.

Section 25.091(b-1) authorizes a peace officer who has probable cause to believe that a child is in violation of the compulsory school attendance law under §25.085 to take the child into custody for the purpose of returning the child to the child's school campus.[16]

An attendance officer is required to apply truancy prevention measures adopted by the district under §25.0915 and may make a referral to truancy court under §25.091 only if the truancy prevention measures fail to meaningfully address the student's conduct.  Each referral must specify whether the student is eligible for or receives special education services and must be accompanied by a statement from the student's school certifying that the school applied the truancy prevention measures and the measures failed to meaningfully address the student's school attendance.

Truancy Prevention Measures[17]

A school district is required to adopt truancy prevention measures under §25.0915.[18]  If a student has three or more unexcused absences for three or more days or parts of days within a four-week period but less than 10 or more days or parts of days within a six-month period, the district shall initiate truancy prevention measures.  If the school determines that the student's absences are the result of pregnancy, being in the state foster program, homelessness, or being the principal income earner for the student's family, the district shall offer additional counseling to the student and may not refer the student to a truancy court.  A district shall employ a truancy prevention facilitator or juvenile case manager to implement the truancy prevention measures.  At least annually, the truancy prevention facilitator shall meet to discuss effective truancy prevention measures with a case manager or other individual designated by a truancy court to provide services to students of the district. 

Section 25.095 requires school districts and open-enrollment charter schools to notify parents of attendance requirements at the beginning of the school year. An additional notice is required after a student has a certain number of unexcused absences.  Tardies are generally not considered absences for purposes of compulsory attendance enforcement.[19]

Judicial Enforcement
Section 25.0951(a) and (b) provide two options for compulsory attendance enforcement.

The judicial process for truant conduct is governed by new Chapter 65, Texas Family Code.[20]  Under §65.003, Texas Family Code, truant conduct is conduct committed by a student who is 12 years of age or older and younger than 19 years of age.[21]  A district may refer a student alleged to have engaged in truant conduct to a court designated as a truancy court under §65.004, Texas Family Code.   A truancy court is required to dismiss a petition filed by a truant conduct prosecutor if the court determines that the district's referral does not meet certain conditions, including an accompanying statement regarding the district's application of truancy prevention measures and a statement regarding whether the student is eligible for special education services.[22]

Under §25.0951(a), a referral for 10 or more unexcused absences within six months must be made within 10 school days from the date of the student's 10th absence.  If a referral on which a petition for truant conduct is based is untimely, the court shall dismiss the petition unless the district has delayed the referral because the district determines that truancy prevention measures are succeeding and the delay is in the student's best interest.[23]

Section 25.093 is an offense for contributing to nonattendance, which is committed by a parent.[24]    A district may file an action under that section in any justice precinct in the county in which the school is located or in which the person filed against resides.[25]  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.

It is an affirmative defense for both the parent and the student that an absence has been excused by a school official or the court.[26]  For the student, there is also an affirmative defense for absences that are involuntary.[27]  The affirmative defenses apply only if there are an insufficient number of absences remaining to constitute the offense or the truant conduct.

Attendance Enforcement; Persons Age 19 or Older

Under §25.085(e), a person who voluntarily enrolls in or attends school after the person's 19th 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 requirement is not enforceable through §25.093 or Chapter 65, Texas Family Code. 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 subject to certain conditions. 

After the third unexcused absence, the district must issue the person a warning letter stating that the person's enrollment may be revoked for the remainder of the school year if the person has more than five unexcused absences in a semester.[28] The revocation may not occur on a day that the person is physically present at school.[29] The authority to revoke enrollment does not override the district's responsibility to provide a free appropriate public education to a person who is eligible for special education services. Also, please note that a person whose enrollment is revoked under this provision is considered a dropout for accountability purposes.  As an alternative to revocation, a school district may impose a behavior improvement plan under §25.0915(a-1)(1).[30]

Section 25.085(f) authorizes 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.   However, §65.003(a), Texas Family Code, does not apply to a person subject to the policy.[31]

Excused Absences

Section 25.087 relates to excused absences.  Subsection (a) provides that a person required to attend school under §25.085 "may be excused for temporary absence resulting from any cause acceptable to the teacher, principal, or superintendent of the school in which the person is enrolled." As discussed under "Duties of School Attendance Officer", excused absences are  not counted when determining the number of absences that trigger a referral or complaint for failure to comply with the compulsory attendance requirement.[32]

Under §25.087(b)(1), a school district is required to excuse a student's absence for observance of a religious holy day, for attending a required court appearance, to appear at a governmental office to complete paperwork required in connection with the student's application for United States citizenship, to take part in a United States naturalization oath ceremony, for service as an election clerk, or for an activity that is either required by a service plan under Subchapter B, Chapter 263, Texas Family Code,[33] or ordered by a court under Chapter 262 or 263, Texas Family Code, if the child is in the conservatorship of the Department of Family and Protective Services (DFPS).  The absence for the child in the conservatorship of DFPS for a court-ordered activity must be excused if it is not practicable to schedule the activity outside of school hours.  The period of an excused absence under §25.087(b)(1) includes travel time.[34]

Under §25.087(b)(2), a school district must excuse a temporary absence for the purpose of an appointment with a health care professional for the student or the student's child if the student comes to school the day of the appointment, either before or after the appointment.  According to §25.087(b-3), an absence subject to this provision includes the temporary absence of a student diagnosed with autism spectrum disorder for an appointment with a health care practitioner[35] to receive a generally recognized service[36] for persons with autism spectrum disorder.[37]

Under §25.087(b-1), a school district may adopt a policy excusing a student's absence for service as a student early voting clerk.  Section 25.087(e) limits the total number of absences excused to serve as a student early voting clerk or as an election clerk under §25.087(b)(1) to two days in a school year.

Under §25.087(b-2), a district may excuse the absence of a student who is a junior or senior for the purpose of visiting an accredited institution of higher education if the district adopts a policy to determine when an absence will be excused for that purpose and a procedure to verify the visit. 

Under §25.087(b-4), a school district must excuse a student to visit with a parent, stepparent, or legal guardian who is an active duty member of the uniformed services[38] and has been called to duty for, is on leave from, or immediately returned from continuous deployment of at least four months outside the locality where the parent, stepparent, or guardian regularly resides.  The absence must be taken not earlier than the 60th day before the date of deployment or not later than the 30th day after the date of return from deployment.  The total number of absences excused for this purpose may not exceed five days in a school year.[39] 

Under §25.087(c), a school district may excuse a student in grades 6 through 12 for the purpose of sounding "Taps" at a military honors funeral held in this state for a deceased veteran.

A student whose absence is excused under Subsections (b)-(c) described above may not be penalized for the absence.  Also, the district must allow the student a reasonable time to make up missed school work  If an absence is excused under §25.087(b)-(c) and the student successfully completes the missed school work, the student is included in average daily attendance for that day.  A student may not be included in average daily attendance for an absence that is excused for a reason that is not included under §25.087 (b)–(c) except as provided by 19 T.A.C. §129.21(j) or (k).[40]

What's Required: Attendance for Course Credit, 90% Rule, and Seat Time

Section 25.092[41] contains the provision of law commonly referred to as "the 90 percent rule," which applies to a student in any grade level from kindergarten through grade 12.  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 or a final grade 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 or a final grade if the student completes a plan approved by the principal that provides for the student to meet the instructional requirements 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 or a final grade 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 earn class credit or a final grade through a plan approved by the principal.  An attendance committee may give class credit or a final grade 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 or a final grade lost because of absences. 

Under §25.092, a district may establish ways to make up work or regain credit or a final grade 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 or a final grade 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.[42]  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 and meet the level of attendance required under §25.092, a district may charge a fee for such an education program under §11.158(a)(15) and (h) with restrictions.  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 or a final grade 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.