In Texas, courts turn truancy cases into cash

This is the first story in a three-part series about truancy in Texas. Read the second part, about racial disparity in truancy charges filed in Fort Bend, here. Read the third part, about what other cities can learn from San Antonio's experiment in curbing truancy, here. 

SEAGOVILLE, Texas — On a good day, Raquel Fontenot wakes up around 7:30 or whenever the sun comes through the windows of the trailer home where she lives with her mother, grandfather, three siblings, a niece and four dogs. She skips breakfast, and by 8:30, the 16-year-old high-school freshman is out the door and waiting at the bus stop on Modene Street.

Not every day is a good one. Raquel has been in therapy and on medication for depression, attention deficit hyperactivity disorder and a mood disorder since she was about 12. Sometimes, she wakes up and just doesn’t feel right. “I sit on the couch for, like, 30 minutes. Literally just sit there, then I start, like, slouching around the house,” she says. “Mama’s like, Are you ready for school? And I’m like, no. And I get in an argument with somebody.” Usually her sister Luranetta, who sleeps in the living room with Raquel. “I get angry, and I start crying.”

But days like that are pretty rare now, and that is a relief for Raquel’s mother, Yolanda. She remembers when her daughter’s “troubles” first started, in seventh grade. Raquel became suicidal and at one point was hospitalized for several days, Yolanda says. Her daughter would get into fights at school and on more than one occasion was suspended and escorted home by a police officer. Sometimes, Raquel would tell her in the morning, “Mom, I’m not going to have a good day. I’m going to get sent home.” So Yolanda would let her stay.

The school’s rules are strict: A note has to be submitted within three days of a student’s return to school for an absence to be considered excused. With three other children and an elderly father to care for, keeping up with things like that “becomes overwhelming,” Yolanda says. Occasionally, when her daughter missed school, she would forget to send a note explaining Raquel’s absence. In accordance with Texas state law, 10 unexcused absences in a six-month period will result in a charge of truancy, and in March 2013, when Raquel was in eighth grade, Yolanda received a letter informing her that the state had filed a charge of “failure to attend school” against her daughter. She tried to talk to school administrators about it, Yolanda says, but they told her, “All you can do is go to court and just get it straightened out.”

It was Raquel’s first truancy case, and one of 115,782 in Texas during that fiscal year. Her case was heard at one of Dallas County’s special truancy courts, part of a byzantine system in which children as young as 12 are prosecuted and fined for adult crimes. These defendants don’t have the protections offered to children in juvenile court, and sometimes the charges in truancy court can even lead to jail time. Raquel, for example, had to represent herself in court at the age of 14, was made to sit in open court in handcuffs and at one point was threatened with jail for unpaid fines.

Texas is one of only two states in the United States that prosecutes truancy as an adult criminal offense — Wyoming is the other — and the volume of cases is staggering: In 2013, Texas had more than twice as many truancy cases as the other 49 states combined. Truancy is also the number one reason children in Texas encounter the criminal justice system. In 2013, more than 67,000 juveniles were referred to juvenile court for crimes other than truancy, ranging from homicide and theft to drug offenses and disorderly conduct. That number was 42 percent fewer than the cases of truancy.

Failure to attend school has also become a revenue stream for Texas. In fiscal year 2014, the state assessed fines and court costs of $16.1 million for truancy convictions, even though 79.4 percent of cases that year involved economically disadvantaged students, according to an analysis by the Austin-based social and economic justice advocacy group Texas Appleseed.

Yet all these prosecutions are doing little to improve overall school attendance rates. In Dallas County, which filed 25,495 truancy charges in 2013, the most of any other county in Texas, attendance has been steady over the last few years at about 95 percent. This is slightly higher than the 93 percent attendance reported by New York, which, like most other states, handles truancy as a civil matter in juvenile court.

The volume of cases, along with growing concerns that Texas’ harsh approach to truancy is ineffective and a violation of children’s constitutional rights, has led state lawmakers to push for decriminalization. Introduced over the objections of judges who insist that harsh penalties are the best way to keep children in school, a bill before the Texas Legislature would make truancy a civil offense and eliminate the fines and threat of jail time for unpaid fines. The Department of Justice has also launched an investigation into allegations of due-process violations in the Dallas truancy courts. “Our case numbers are out of control, they’re so absurdly high,” says Deborah Fowler, executive director of Texas Appleseed, which has led the effort to decriminalize truancy. “We really need to be able to take a step back and take a look at whether or not court is really warranted.”

If the bill passes, it will represent a huge victory in the nationwide fight to break the cycle of criminalization and incarceration that traps a disproportionate number of minority youth. In Texas, 83.6 percent of truancy cases involved African-American or Latino students in the 2013-2014 school year, although they represent only 64.5 percent of student enrollment. A substantial body of research has found that court involvement in childhood increases the likelihood of being involved in crime in early adulthood. Juvenile-justice advocates across the U.S. are watching what happens in Texas closely. “It will be very significant because as things stand now, there’s like 100,000 cases filed a year,” says Michael Harris, senior attorney at the National Center for Youth Law in Oakland, California. “That’s 100,000 kids who have an adult criminal record that they’ll have to deal with for the rest of their life.”

Yolanda Fontenot grew up in Eunice, Louisiana, a town of about 10,000 people best known for its devotion to Acadian dialect and culture. It is home to the Cajun French Music Hall of Fame and hosts a weekly music radio show in Cajun French, “with enough English spoken so that everyone can enjoy.” As a child, she roamed freely with her five brothers and sisters and grew up eating her mother’s boudin, crawfish and gumbo. “I miss the food badly,” she says.

But with the closest real city, Lafayette, nearly an hour away, finding work was a struggle. Though Yolanda dropped out of high school, she was able to train as a nurse’s aide. Two of her brothers moved to the Dallas area, and in 1995, when her oldest child, Ondene, was about a year old, she joined them. Despite one big setback — Texas didn’t recognize her Louisiana nursing-aide’s license, and she couldn’t afford another student loan to repeat her training, so she found work as a warehouse clerk — Yolanda was dazzled by the city. “It was totally different,” she says. “I didn’t go back.”

Yolanda arrived in Texas when the nationwide movement to get tough on crime was taking off. The Federal Crime Bill of 1994 supported more police and more prisons, along with tougher sentences for a variety of offenses committed by adults and juveniles. The following year, Texas passed a law that made failure to attend school a criminal offense for children age 12 to 18, classifying it as a class C misdemeanor, meaning that offenders would be tried in adult court or, in small counties, juvenile court. The law, in keeping with the “tough on crime” ethos of the time, gave law-enforcement officers the power to arrest children suspected of truancy and put the burden on the defendant — the child — to show “by a preponderance of the evidence” that his absences were excused or couldn’t be avoided.

In 2001, Texas tightened the laws, mandating that school districts file a truancy complaint within 10 days of a student’s 10th unexcused absence in a six-month period. To handle the ballooning volume of cases, in 2003 the state authorized Dallas County to operate a truancy-court system to handle the cases. 

Raquel was 14 when she had her first hearing in truancy court. She says she knew what “truancy” meant but was confused when the judge asked her to enter a plea of guilty, not guilty or no contest. “I was looking at my mom for all the answers, and she couldn’t talk,” Raquel remembers. Children charged with truancy, unlike those facing more serious crimes, have no right to court-appointed counsel if they can’t afford it, and many judges will not allow parents to speak for their children. A frustrated but helpless Yolanda says: “You’re standing there in silence. You want to say something, but you’re not allowed.”

Over the next several months, Raquel had three more court dates for this case, changed her plea from not guilty to no contest, was convicted and ordered to pay $180 in fines and court costs. “I knew I had to get to school so Mama wouldn’t have to pay no money that we didn’t have,” she says. The judge warned her that either she or her mother would have to pay the fine. “It’ll follow me until I turn 17, and then I would have to sit it out — in jail. Until I got the whole balance paid.”

In September, with $107 still unpaid and two more unexcused absences, she was summoned to court again. This time, the judge ordered her to do community service in lieu of paying the fine and threatened to hold her in contempt of court if she missed any more days of school. On Feb. 19, 2014, he followed through on that threat, and sent Raquel to Dallas County’s Truancy Enforcement Center.

The TEC, run by a local nonprofit group called Dallas Challenge, describes its mission as helping young people stay in school and out of the criminal-justice system. It promises “instantaneous intervention” for children who are charged with contempt and serves about 2,000 children every year, with $587,135 a year in grants from Dallas County, as per 2012 figures.

Raquel and Yolanda remember the TEC workshop and lecture they attended only vaguely. “Everything they said was mentioned in the courtroom, and then I felt that we were in church,” Yolanda says. But they recall the hours prior in vivid detail. When the judge found Raquel in contempt, he ordered a bailiff to handcuff her. She sat in the courtroom with her hands bound behind her back for more than two hours as the rest of the day’s cases were heard. “You’re watching your child actually be put in handcuffs,” Yolanda says. “That’s the hardest thing.”

Raquel’s lowest point came afterward, when she was taken to the TEC in handcuffs. In a document prepared by Dallas County in response to a request by Texas Appleseed, Dallas County Judge Clay Jenkins addresses the concerns raised by advocates about this practice: “The handcuffs are a safety factor for the officers who are transporting and also prevent any assault crime that might occur when more than two students are being transported together.” Raquel, who has wanted to become a police officer since the age of 10, feels differently. Riding in the back of a car with another kid and a police constable, she believed she was being taken to jail. “I was just thinking, My career’s over. I can’t be what I want to be anymore.”

Because truants in Texas are prosecuted as adults, all of the proceedings — hearings in which children and their families must answer personal questions about ordinary adolescent conflict and their sometimes-painful struggles with poverty — are held in open court. This makes it possible to report that in truancy proceedings during the first week of May in six different courts in three Texas cities, the burdensome fines, inadequate representation and threats of jail time that Raquel experienced are not at all unusual.

“If you go and watch court then you’ll quickly realize that this system is not set up to do what they say it’s doing, which is to help students attend school,” says Harris, of the National Center for Youth Law. “This is just a very cynical system where it’s all about its own self-preservation: One, generating revenue through fees that are imposed on parents and students. And, two, exercising power over kids. … The number one mechanism to enforce social control is to fine them.”

Dallas County assessed fines and court costs on children and families totaling $2.8 million last year, money that goes toward the courts’ expenses, including salaries for clerks, constables and five full-time magistrates. 

As part of their work, the judges issue court orders to collect the fines that help pay their salaries. This system preys on poor students and families who are already struggling, says Harris. “It incentivized sending kids to court as opposed to having the school educators deal with the problem at the school.”

In the Garland, Texas, courtroom of Judge John Sholden, a 17-year-old high school senior — just a month away from getting his diploma — came in with a fistful of cash, $142 in small bills, hoping to pay off some of the fine he owed. Sholden said he would recall the warrant for the boy’s arrest if the balance was paid off within four weeks. He berated another 17-year-old who appeared in court with neither his truancy fine nor the book report he had been assigned to write as punishment. Sholden held him in contempt of court and suspended his ability to get a driver’s license until he paid the fine. He also told the boy, whose father did not appear with him, “Your dad wants me to put you behind bars. That’s part of why he’s not here today.”

In Judge Larry Rayford’s court, the same one where Raquel was handcuffed, there were other examples of lack of due process, which critics say is prevalent in the system. These included children and families pressured to plead guilty, or no contest — a legal gray area in which the defendant does not admit guilt but can nevertheless receive a conviction.

José Sanchez, a baby-faced sixth-grader two days shy of his 13th birthday, represented himself in Rayford’s courtroom on May 5 while his mother, Maria, followed the proceedings through an interpreter. “Your son has had a huge number of absences,” Rayford told her, warning that unless she goes to school to check that he is in class, a case will be filed against her as well. “I have been going,” she says. In the end, José pleaded no contest and accepted a fine and court costs of $180.

After his case was heard, José tells Al Jazeera America that he doesn’t skip class, but is often late in the mornings because he walks to school — he is ineligible to be picked up by the school bus since he lives within two miles of the building. (In some school districts, students who arrive late can be counted as absent.) Asked whether he understood what “no contest” meant, José says, “It’s yes and no. ’Cause sometimes I miss class.” His mother, who works as a housecleaner, says she isn’t sure how she will pay the fine and keep tabs on her son. “They expect the parents to be after the kids 24/7, but we have to make a living.”

José was not the youngest person in the courtroom that day. That was the 5-month-old daughter of Mychela Redden, 17, who came to court with both her infant and her mother, Iris. Mychela was facing a truancy charge for several days when she was counted absent during the last month of her pregnancy. “Toward the end it was getting tough,” Iris Redden says, and her daughter was sometimes late to school. But rather than pull her daughter out of school for more court dates to fight the charges, she agreed to pay a $200 fine and plead guilty. “If you don’t, then you have to come back,” she says. “It ain’t even worth it.” Redden recently lost her job in customer service and her daughter works part-time at Original Pancake House. Asked how she will pay the fine, she says, “Slowly but surely.”

Rayford says that he does everything he can to make sure that the process in his court is fair. “I go out of my way to make sure that they understand,” he says. “I realize that some people believe that there should be [court-appointed] representation. Right now the process doesn’t provide for that.” He also says that he no longer puts students in handcuffs, instead allowing parents to take their children to the TEC, and he downplays the financial incentives for prosecution. “Personally, I don’t let money factor into my decisions.” But he acknowledges that the fines do serve a purpose. “My understanding is that when the program first started, there were not fines, and some of the judges felt that without the fines the parents were not taking it seriously.”

Sholden and Chavez did not respond to requests for comment.

For all the discussion of fines and punishment, there are very few interactions between the judges and the children about the underlying issues that caused students to miss school, whether that’s difficulty with transportation, medical issues or learning disabilities, or bullying at school. Some judges say that they do refer children to social service organizations. Rayford, for example, says that he refers every repeat offender in his court to a truancy case manager.

In Raquel’s case, she and her mother say they desperately needed help. Fowler introduced Raquel to a pro bono attorney, who successfully argued that her truancy charges were due to the school’s failure to provide her with special-education services that she was entitled to because of her mental illness. After several months of hearings, she was found not guilty at a trial last fall.

But the very next day, the state of Texas filed another truancy case against Raquel for absences during her freshman year at Seagoville High School. The school’s automated attendance system reported her absences to Dallas Independent School District, which triggered the automatic filing of a case with Dallas County Truancy Court. It was processed by the Student Attendance Monitoring System, or SAMS, a software system developed by the school district to file cases within 10 days of the 10th absence, regardless of a child’s specific circumstances.

In theory, this allows the school district to meet its statutory obligations with maximum efficiency. But in practice, advocates for reform say, it perpetuates a system in which a software program, rather than a human being, decides whether a child’s absences merit legal action by taking discretion over filing truancy cases out of the school’s hands. Though he declined to comment on any specific truancy case, Michael Jones, principal of the high school, says that the school has “multiple safeguards and interventions” in place to help any child who is habitually absent, from home visits to weekly attendance roundtables at which teachers and administrators discuss individual cases. Once a student hits that 10-day threshold, however, the software takes over. “It’s essentially a probable-cause determination made by a computer,” says Rynders, of Disability Rights Texas.

A spokesman for the Dallas Independent School District did not respond to requests for comment.

Yolanda says she tried to explain Raquel’s situation to the school’s attendance clerk, but to no avail. “I know you’ve got the machine calculating it, but you’ve got the lady sitting at the desk,” Yolanda says. “How are you going to let a machine make a decision over a child’s health?”

These automatic filings are just one of the alleged due-process violations raised in a 2013 complaint filed with the Justice Department on behalf of several students by Harris’, Rynders’ and Fowler’s organizations against Dallas County and the school districts that utilize the county’s truancy courts. In the complaint, they also criticized the lack of representation for children in court, especially those with disabilities, and alleged Title IX violations against students who were considered truant because of absences related to pregnancy. On March 31, the Justice Department announced that it had opened an investigation into the Dallas Truancy Courts, with then-Attorney General Eric Holder promising to make sure “the children of Dallas County can receive the meaningful access to justice that all Americans deserve.”

The federal investigation may be overtaken by the state’s own efforts at reform. In November 2014, Texas state Sen. John Whitmire, a Democrat, introduced a bill that would decriminalize truancy, turning it into a civil offense, and eliminate the fines and possibility of jail time for unpaid fines. Former Gov. Rick Perry vetoed a previous legislative effort at overhauling truancy. But the recent conservative movement that supports criminal-justice reform as a way of limiting government has given truancy reform new momentum. Perry also has joined the conservative Right on Crime campaign. Whitmire’s bill has broad bipartisan support and could pass by June 1, the end of the current legislative session.

While the truancy-reform bill has been making its way through the Legislature, Raquel and her new attorney, Meredith Parekh, from Disability Rights Texas, have been trying to get her enrolled in Seagoville High School’s special-education program. On April 2, she was placed in special education as a child with an emotional disturbance; while that status doesn’t prevent the state from filing truancy charges against her, it will strengthen her argument that the school’s failure to provide these services sooner led to her truancy. But on April 3, SAMS caught up to her again — this time for absences before April 2, and she may soon have to appear before Rayford to defend herself against yet another truancy charge. “It’s a self-perpetuating system,” says an exasperated Parekh.

For her part, Raquel is doing her best to use the new tools she has learned in counseling to manage her anxiety. She goes straight to class in the morning, avoiding the cacophony of more than 1,000 teenagers milling in the hallways. She can’t handle the crowds in the cafeteria and can’t afford to buy snacks from the vending machines, so she skips this meal, too, and spends her 30-minute lunch period talking to a couple of friends. Whenever her anxiety seems too much to handle, her teachers allow her to step outside the classroom to take a breather for a few minutes or write in her journal. She’s passing all her classes and getting B’s in her favorites, dance and English, in which she is reading “Romeo and Juliet.” Raquel has acquired some new ambitions, too — she wants to become a choreographer, perhaps, or a helicopter rescue medic. “I like being in the sky,” she says. “It just feels like I’m free.”

For more on how low-income families and kids with disabilities are being disproportionately sent to adult court, watch the America Tonight investigation on the truancy trap.