Instead of being labeled a criminal for life, Texas kids who show up late to school or skip classes entirely might end up performing some sort of community service if John Whitmire has his way.
The Democratic state senator from Houston is the author of SB106. Passed in the Senate last week by a margin of 26-5, the bill would make truancy a civil offense, rather than a criminal one. If it passes in the House next week and Gov. Greg Abbott signs it –– he has not indicated a stance –– the bill could become law before schools reopen in the fall.
Whitmire was inspired by the existing law’s negative impact on working families. “You ticket a kid whose family car broke down, and he can’t get to school, then drag him or her to court and slap a $500 fine on him and give him a permanent criminal record,” he said. “Well, what good did that do? Now that parent, who couldn’t afford to fix the car, is saddled with that fine they can’t afford either.”
Whitmire is confident the bill will pass the House: “The more legislators learn how broken the system is, how much harm we do by criminalizing truancy, well, the better the chance of this making it to the governor’s desk to be signed into law.”
Decriminalizing truancy would have several long-range implications. The new law would affect the more than 100,000 students between the ages of 12 and 17 who are convicted of a Class C misdemeanor for truancy in Texas annually, dating back to 2001. The bill would eliminate all criminal fines –– judges can currently levy up to $500 per conviction –– while also lowering court costs per appearance from $89 to $50 and automatically expunging truancy misdemeanors from existing records. A truancy conviction can follow students for the rest of their lives, preventing them from being accepted into the military, obtaining numerous civil service jobs, and even applying for certain college scholarships. Once convicted students turn 18, they can file to have their records expunged but only if they have no more than one truancy conviction. Judges often do not make students aware of this right during proceedings.
The damaging and long-lasting effects of current truancy laws were analyzed in a report last month by Texas Appleseed, a nonprofit whose mission is to promote social and economic justice for all Texans. Class, Not Court: Reconsidering Texas’ Criminalization of Truancy found that four out of five students hit with truancy charges come from economically disadvantaged homes and that African-Americans, Hispanics, and children with disabilities are disproportionately affected by current truancy laws.
“Court intervention, particularly for children who have no previous experience with the criminal justice system, increases the likelihood that they will drop out and enter the school-to-prison pipeline,” said Deborah Fowler, executive director of Texas Appleseed.
But not everyone agrees with her assessment. Jeff Monk, a justice of the peace in Burleson, said that while the intent of the Whitmire bill is admirable, decriminalizing truancy may inspire truants to flout the law.
“Right now, with the criminal aspect, parents and their children think very seriously about their schooling,” he said. “If you take that power out of the hands of judges, you will have kids who totally disregard the law, because they’ll see that there really are no consequences for cutting school. And this bill, if it becomes law, will do just that.”
Monk said he works hard to get students who wind up in his court to recognize the value of school. “I’m not here to levy big fines on people,” he said. “And I’m not here to slap people with a criminal record. I’m here to find out whether a kid has a problem at home or a problem with drugs or alcohol that is causing him or her to miss school. I want their first visit to my courtroom to be the last visit to a courtroom they ever make. You have some kids who are taking care of their younger brothers and sisters, and that’s causing them to be late. OK, we’ll try to figure out something to change that so that the older child can make it on time. You need to find out what the problem is and deal with it on an individual basis.”
Monk recognizes that not all justices of the peace or municipal county judges who handle truancy cases feel that way. “There are some judges who simply give out the maximum fine and the misdemeanor as a rule, and to me, that’s judicial abuse,” Monk said. “You don’t do that the first time a kid ends up in truancy court. Just because your title is ‘Judge’ doesn’t give you the right to put hardship on a family or destroy a family. Giving a fine to an indigent family doesn’t do anyone any good.”
At the same time, Monk believes the consensus in the justice community is that while Whitmire’s bill looks good on paper, it is impractical. “Without the threat of criminalization, we won’t have much to hold kids’ feet to the fire with,” he said. “Or their parents’ feet. And that’s so often where this sort of behavior begins, with a family that doesn’t know how to discipline their kids or raise their kids with an understanding of just how important being in school really is in terms of their futures.”
Monk feels truancy should remain criminalized but that the law should be amended to let parents and their kids know, in clear language, that if a judge’s orders are disregarded –– to attend counseling, perhaps, or participate in community service –– a criminal penalty can be invoked.
Whitmire disagrees with Monk. “I think this bill will do a lot of good for a lot of kids who have been unfairly criminalized,” Whitmire said, “as well as save a lot of money in fines that many of the students and their parents could not afford.”
One of the issues related to truancy that has bothered Fowler is that students are not provided with an attorney at court hearings: “The kids show up with their parents. The judge talks to them and then asks how they plead. That’s it.”
Texas Appleseed filed a complaint in 2013 with the Justice Department regarding due process in truancy cases. The department recently opened an investigation into the Dallas County truancy court system on the matter. Dallas County prosecutes more than 25,000 truancy cases annually, the highest number in the state by more than double. None of those students has a lawyer appointed for them, though they are permitted to have a lawyer present if they can afford one.
“What the Justice Department is most interested in are the kids with disabilities going to the truancy courts without representation,” Fowler said. “Not having appointed counsel in those cases puts those kids at a real disadvantage. Imagine a kid who might not understand the proceedings having to make a snap decision on how they want to plead. For regular kids, that’s very difficult, but for the kids with disabilities, it’s very, very difficult.”
Fowler believes there are due process problems in courts all over the state, not just in Dallas County, though Dallas is the center of the investigation because of the sheer number of truancy cases filed there. “I think it’s possible that whatever the department finds will have implications statewide,” she said.
One surprising backer of Whitmire’s bill is Dallas County Judge Clay Jenkins, who presides over the truancy court system, which produces more than $2 million in fines annually. Whitmire attributes that to “Judge Jenkins’ having seen the merits of the bill.”
Fowler thinks Jenkins’ rationale for backing the bill is more pragmatic: “If the Department of Justice finds that the county should have been appointing counsel for all those kids, that could cost the county a lot more than the lost revenue from fines.”
Jenkins did not respond to requests for comment from Fort Worth Weekly.
While no time frame has been set to bring the bill to the House floor, Whitmire is optimistic it will find bipartisan backing there: “We’ve got work to do, but I think we will get this done this session.”
In an e-mail to the Weekly, Cait Meisenheimer, deputy press secretary for the governor, would say only, “Governor Abbott will carefully consider any legislation that reaches his desk with the goal of making Texas better.”
She did not respond to a follow-up question for specifics.
Whitmire said that while he has not discussed the bill with the governor, he thinks Abbott “is a reasonable man and will do the right thing.”