WEST virginia legislature

2026 regular session

Committee Substitute

for

Senate Bill 901

By Senators Smith (Mr. President) and Woelfel

(By Request The Executive)

[Reported February 25 2026, from the Committee on the Judiciary]

A BILL to amend and reenact §18-8-2 of the Code of West Virginia, 1931, as amended; and to amend the code by adding two new sections, designated §49-2-202a and §61-11-22b, relating to affording parents, guardians, and custodians of truant children with additional resources and assistance prior to conviction; removing criminal penalties for students who have reached the age of majority; creating a truancy pre-trial diversion program which allows parents, guardians, and custodians of truant children to avoid conviction if they remedy the truancy and the causes that led to the truancy; requiring sentencing of truant parents, guardians, and custodians to be delayed to allow for additional opportunities to address the truancy; and allowing magistrate and circuit court judges to require the Department of Human Services to offer home-based family preservation services for families of truant children when the courts are involved.

Be it enacted by the Legislature of West Virginia:

CHAPTER 18. EDUCATION.

ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.

§18-8-2. Offenses; penalties; cost of prosecution; jurisdiction.

(a) Any parent, guardian, or custodian who fails to cause a child or children under 18 years of age in that person's legal or actual charge to attend school in violation of this article or without just cause, is guilty of a misdemeanor and, shall, upon conviction of a first offense, be fined not less than $50 nor more than $100 together with the costs of prosecution. The magistrate or circuit court judge, upon conviction and pronouncing sentence, may delay the sentence for a period of 60 school days provided the child is in attendance every day during said 60-day period. Following the 60-day period, if the child was present at school for every school day, the delayed sentence may be suspended and dismissed. Upon conviction A parent, guardian, or custodian convicted of a second offense, a fine may be imposed of may be fined not less than $50 nor more than $100 together with the costs of prosecution or confined in jail not less than five nor more than 20 days. Every day a child is out of school contrary to this article constitutes a separate offense. Magistrates shall have concurrent jurisdiction with circuit courts for the trial of offenses arising under this section. Eligibility for the truancy pretrial diversion program and required prerequisites to sentencing shall be governed by §61-11-22b of this code.

(b) Any person 18 years of age or older who is enrolled in school who, after receiving due notice, fails to attend school in violation of this article or without just cause, is guilty of a misdemeanor and, shall, upon conviction of a first offense, be fined not less than $50 nor more than $100 together with the costs of prosecution and required to attend school and remain throughout the school day. The magistrate or circuit court judge, upon conviction and pronouncing sentence, may delay the imposition of a fine for a period of 60 school days provided the person is in attendance every day during said 60-day period. Following the 60-day period, if the student was present at school every day, the delayed sentence may be suspended and dismissed. Upon conviction of a second offense, a fine may be imposed of not less than $50 nor more than $100 together with the costs of prosecution and the person may be required to go to school and remain throughout the school day until such time as the person graduates or withdraws from school or confined in jail not less than five nor more than 20 days. Every day a student is out of school contrary to this article constitutes a separate offense. Magistrates shall have concurrent jurisdiction with circuit courts for the trial of offenses arising under this section.

(c) Upon conviction of a third offense, any person 18 years of age or older who is enrolled in school shall be withdrawn from school during the remainder of that school year. Enrollment of that person in school during the next school year or years thereafter is conditional upon all absences being excused as defined in law, state board policy and county board of education policy. More than one unexcused absence of such a student shall be grounds for the director of attendance to authorize the school to withdraw the person for the remainder of the school year. Magistrates shall have concurrent jurisdiction with circuit courts for the trial of offenses arising under this section.

(d) (b) Jurisdiction to enforce compulsory school attendance laws lies in the county in which a student resides and in the county where the school at which the student is enrolled is located. When the county of residence and enrollment are different, an action to enforce compulsory school attendance may be brought in either county and the magistrates and circuit courts of either county have concurrent jurisdiction for the trial of offenses arising under this section.

CHAPTER 49. CHILD WELFARE.

PART  II.

HOME-BASED FAMILY PRESERVATION ACT.

ARTICLE 2. STATE RESPONSIBILITIES FOR CHILDREN.

§49-2-202a. Family preservation services for truancy.

(a) Truancy or chronic absenteeism from school can be a symptom of deeper problems, including the mental health and substance abuse of the child or his or her parents, undiagnosed learning disorders of the child, deficient parenting skills of the parents, or complex family dynamics.  In order to adequately remedy truancy, it may be necessary to work with the family, as a whole, to identify the underlying cause and to overcome barriers to improvement.  Further it is presumed that when a matter of truancy has resulted in criminal charges, pursuant to §18-8-2 of this code, or any court involvement pursuant to §49-4-702 or §49-4-702a of this code, it is significantly more likely that a child in the home will be removed from the custody of the parent, guardian, or custodian.  Therefore, intervention by the department may be necessary to preserve the family.

(b) Accordingly, when a magistrate or circuit court judge refers a matter to the department due to court involvement pursuant to §18-8-2a, §49-4-702, or §49-4-702a of this code, the department shall initiate home-based family preservation services.  Except as otherwise allowed, the home-based family preservation services required by this section shall be provided consistent with the home-based family preservation services required by §49-2-202 of this code.

(c) Home-based family preservation services may continue after resolution of the underlying matter pursuant to §18-8-2a, §49-4-702, or §49-4-702 of this code.   

(d) Nothing contained in this section should be interpreted as precluding or limiting other actions the department, or the courts, may take to provide children and their families with better tools to address the root causes of truancy, and to improve school attendance.

(e) When the department initiates short-term home-based family preservation intervention pursuant to this section, then a contractor employee of the department may provide services to more than three families during any period of time, as long as the department can determine that the caseload will not impact the efficacy of the services.  Except as explicitly set forth, this subsection does not otherwise alter the requirements of §49-2-203 of this code.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.

§61-11-22b. Pretrial Diversion for Truancy Offenses; Delayed Sentencing for Truancy.

(a) Entitlement to Truancy Pretrial Diversion. –  Any person charged with committing a first offense in violation of §18-8-2 of this code, who has no other pending criminal charges, may enter into pretrial diversion agreement, pursuant to the terms and procedure set forth in this subsection.

(1) The prosecuting attorney and the person charged may enter into a written pretrial diversion agreement.  The written agreement shall be executed in the presence of the person’s attorney, or, if the person does not have counsel, in the presence of the presiding magistrate or circuit court judge.

(A) The pretrial diversion agreement shall set forth the duration of the agreement, which must be at least six months, but may not exceed 18 months.

(B) The pretrial diversion agreement shall include the condition that the person must improve the school attendance of any child named in the criminal complaint.  The pretrial diversion agreement may include other children under the care, custody, and control of the person charged, even if the other children are not alleged in the criminal complaint.  The agreement should include a goal or metric for determining whether sufficient improvement has been made.

(C) The pretrial diversion agreement may include terms and conditions similar to those set forth in §62-12-9 of this code relating to conditions of probation, including supervision by a probation officer.

(D) The pretrial diversion agreement may include drug and alcohol treatment, counseling, and participation in programs offered under §62-11A-1 et seq., §62-11C-1 et seq., §62-15-1 et seq., §62-15A-1 et seq., §62-15B-1 et seq., and §62-16-1 et seq.

(E) The pretrial diversion agreement shall include a waiver of confidentiality, which allows the county truancy officer to provide the magistrate or circuit court judge, the prosecuting attorney, and the probation officer, if any, with the school attendance records of the child or children of the person charged.  The county truancy officer shall submit school attendance records to the parties prior to the final hearing on the pretrial diversion, but the magistrate or circuit court judge may require the county truancy officer to submit records more frequently.

(F) Unless explicitly prohibited by any other provision of law, the pretrial diversion agreement may include any other terms and conditions upon which the person charged and the prosecuting attorney agree.

(2) The magistrate or circuit court judge may impose additional terms and conditions, which do not have to be set forth in the agreement.  The magistrate or circuit court judge shall advise a person entering a pretrial diversion agreement that these terms and conditions may be ordered as a part of the pretrial diversion.

(A) The magistrate or circuit court judge may require status hearings, at which time the county truancy officer shall provide the court with an update as to the progress of the person charged.  The magistrate or circuit court judge may order the county truancy officer, or his or her designee, to appear in court to provide the school attendance of the child or the children of the person charged.

(B) The magistrate or circuit court judge may refer the person to the Department of Human Services to receive home-based family preservation services, pursuant to §49-2-202a of this code.  The magistrate or circuit court judge may order the department to provide monthly or quarterly status reports on the home-based family preservation services.  It is presumed that if a parent, guardian, or custodian is charged pursuant to §18-8-2 of this code, then it is significantly more likely that a child in the home will be removed from the custody of the parent, guardian, or custodian, and, as such, home-based family preservation services may be appropriate.  If a magistrate or circuit court judge refers a person to the department for home-based family preservation services, then the department shall offer those services.

(3) A person entitled to a pretrial diversion is entitled to the offer of a pretrial diversion agreement, but the terms and conditions of the agreement must be mutually agreeable to both the person and the prosecuting attorney.  A charged person is not obligated to enter into a pretrial diversion agreement.  A magistrate or circuit court judge may deny a pretrial diversion, in accordance with Rule 11 of the West Virginia Rules of Criminal Procedure.

(4) A person who has entered into a pretrial diversion agreement with a prosecuting attorney and who has successfully complied with the terms of the pretrial diversion is not subject to prosecution for the offense or offenses described in the agreement, or for the underlying conduct or transaction constituting the offense or offenses described in the agreement, unless the agreement includes a provision that upon compliance the person agrees to plead guilty or nolo contendere to a specific related offense, with or without a specific sentencing recommendation by the prosecuting attorney.

(5) Upon the determination of the magistrate or circuit court judge that the person who has entered into an agreement for a pretrial diversion has not successfully complied with the terms of the pretrial diversion, the prosecuting attorney may proceed to prosecute the person for the charged offenses, as if the pretrial diversion agreement was never entered.  

(6) A person who enters into a pretrial diversion agreement pursuant to this section may also be entitled to a pretrial diversion for other charges pursuant to §61-11-22 of this code.  Nothing contained in this section shall prevent the prosecuting attorney from filing new charges which arise after the entry of the pretrial diversion agreement.

(b) Eligibility for Truancy Pretrial Diversion. – The prosecuting attorney may offer a pretrial diversion to any person charged with committing a first offense in violation of §18-8-2 even if the person has other pending criminal charges, or if the person it charged with a second offense in violation of §18-8-2 of this code.  The agreement shall have the same requirements and shall have the same procedure as set forth in subsection (a) of this section, except that the duration of the agreement must be for a minimum of 12 months but may not exceed 24 months.

(c) Delayed Sentencing for Truancy Guilty Plea or Conviction. – Upon the entry of a guilty plea to any offense or offenses set forth in §18-8-2 of this code, the magistrate or circuit court judge shall schedule sentencing for at least 90 days after the plea hearing.  If the conviction is obtained in June, July, or in August prior to the beginning of the school year, the sentencing hearing shall be extended so that there is a continuous 90-day period which begins with the start of the next school year.  

(1) The magistrate or circuit court judge shall set terms which the defendant is required to meet during the 90-day period.

(A) The magistrate or circuit court judge shall require the defendant to ensure that any child or children within the care, custody, or control of the defendant maintains good school attendance for the 90 days, regardless of whether the child was named in the criminal complaint which resulted in the conviction.  The magistrate or circuit court judge shall identify what would be considered good or adequate attendance for the purposes of this subsection.

(B) When the defendant’s substance use is a contributing factor to the truancy, the magistrate or circuit court judge may order the defendant to participate in family treatment court, enroll in the day report center, or enroll in another out-patient treatment program.  The magistrate or circuit court judge may order the defendant to participate in an assessment through the day report center to determine whether substance use is a contributing factor.

(C) The magistrate or circuit court judge may order additional requirements which may allow the magistrate or circuit court judge to determine whether the defendant is seriously and effectively addressing the matter of truancy.

(2) The magistrate or circuit court judge will determine if the defendant substantially complied with the terms of the 90-day delay.

(A) Upon a finding of substantial compliance, then the statutory fine for a first offense or second offense shall become not less than $5 nor more than $50 together with the costs of prosecution.

(B) Upon a finding of substantial compliance, the magistrate or circuit court judge may not impose a jail term for a conviction for a second offense, unless the execution of confinement is suspended for unsupervised probation.

(C) If the magistrate or circuit court judge determines that all children under the care, custody, or control of the defendant maintained school attendance during the 90-day period, and that the defendant substantially complied with any term or condition of the 90-day period, then the magistrate or circuit court judge shall order the defendant to pay court costs, but may not impose a fine, jail term, or probation.  Upon agreement by the parties, the magistrate or circuit court judge may allow the defendant to withdraw his or her guilty plea, and shall entertain a motion of the prosecuting attorney to dismiss the charge, with prejudice.  The magistrate or circuit court judge may consider the child or children to have maintained the required attendance if the magistrate or circuit court judge determines that the child or children only had excused absences.  The magistrate or circuit court judge may also determine that the child or children did not have the required attendance if the child or children were habitually tardy.

(3) If the magistrate or circuit court judge determines that the defendant did not substantially comply with the 90-day delay, then the matter shall proceed to sentencing.

(4) The magistrate or circuit court judge may allow for a 90-day delay in sentencing, pursuant to the requirements of this subsection, if the defendant is convicted at trial and if the parties agree to the delay.  A person convicted by trial who receives a 90-day delay in sentencing is not eligible for the dismissal of charges.

(d) Definitions. – For purposes of this section,

(1) "County truancy officer" shall include any county truancy officer, specialist, probation officer, or other person designated by the school, board of education, or the court as the most appropriate person capable of providing the court with school attendance records.

(2)  "Excused absences" has the same definition as set forth in §18-8-4 of this code.  However, a magistrate or circuit court judge may requests a doctor’s excuse, even if not required by §18-8-4 of this code, and, further, a magistrate or circuit court judge may find that an absence excused by the school is not excused for purposes of this section if the excuse provided cannot be confirmed as authentic, or if the magistrate or circuit court judge determines that the excused absences did not justify the child from missing school.  A magistrate or circuit court judge may disregard any absence excused by the defendant.