Untitled Texas Attorney General Opinion

February 15. 1974 The Honorable Wilson E. Speir, Director Opinion No. H- 232 Texan Department of Public Safety 5805 N. Lamar, Box 4087 Re: Whether the recent Austin. Thiar 78773 decision of the Court of Criminal Appeals in Ex parte Johnny Ray h&f&m renders Article 6701 l-4, Vernoda Texas Civilikatutes unconstitutional? Dear Colonel Speir: You have requested our opinion concerning the constitutionality and interpretation of Article 67011-4, Vernon’s Texas Civil Statutes (formerly Article 802e, Vernon’s Texas Penal Code), in view of the decision of the Court of Criminal Appeals in Ex parte Mattbewr, 488 S. W. 2d 434 (Tex. Crim. 1913). Articlk 6701’- 4, V. T. C. S., provides penalties for driving a motor vehicle’while under the influence of intoxicating liquor or otherwise in violation of the ‘Cnffir laws of the State of Texas. By its terms. it is applicable to: YSection 1. Any male minor who has passed hie 14th birthday but ha6 not reached his 17th birthday. and atiy’female minoi who has parsed her 14th birthday but has not reached her 18th birthday. . . ” In Ex parte Matthews, rupra. Matthews claimed that Article 2338-1. 0 3, Vernon’s Texai Civil Statuter. and Article 30, 5 2. of the old Penal Code (now $8:07, Vernon’s Texas Penal Code), the statuteiunder which he had been tried as an adult (he was 17 at the time of trial), were unconstitutional in that the males and females were treated unequally, and that he was therefore denied p. 1080 The Honorable Wilson E. Spcir, page 2 (H-232) equal protection of the law. Article 2338-1, $ 3, defined “child” to be any female over the age of ten and under the age of eighteen yearcr or any male over the-age of tep,ad under the age of seventeen years. Article 30, g 2, as it was applied to Matthew% provided that no male under s‘eventeen yza>S of age and no female under eighteen years of age might be convicted of an offense (except perjury) without waiver of jurisdiction by the juvenile court. Following a growing line of casea. the Court of Criminal Appeals, on January 3, 1973. rendered its decision in Matthew. stating that it was unable to find any rational objective or logical constitutional justification for the disparity in the age/nex classification. In concluded that those portions of the two statutes which treated males.and females differently were unconstitutional. Your first question is: “Does the rationale of the Matthews case render Article 802e, Vernon’cl Penal Code, unconstitutional 7 If it is unconstitutional, are there any parts of the rtatute not affscted by the unconstitutionality? I’ There may be valid bares.for distinguishing between the sexes in defining crimea. an, for example, ia Buchanan v. State, 480 S. W. 2d 207 (Tu. Grim. 1972). However, we ace no justification or rational basis in the distinction made by Article 6701 1 - 4, V. T. C. S. , concerning peraonn in the neventeen- eighteen year old category and in our opinion the courts will hold the statute unconstitutional to the extent of its application to that category of persons. Ex part* Matthews, rupra. In Ex parte Matthews,, supra. the Court of Criminal Appeals said “WC conclude that the portion. . . which provides for the inclusion of females of age aevsnteen within the definition of the word ‘child’, ia violative of the equal protection clause. ” It also aatd. “[alfter excising the seventeen-eighteen year old classification from Article 30, V. A. P. C. and Article 2338-1, V. A. C. S., appellant was amenable to prosecution. . . . I’ The Court seems to have consid- ered those statutes unconstitutional only in their application to persona in the seventeen-eighteen year old classification. The cardinal rule of statutory interpretation is to determine the intent of the Legislature and to give it effect where possible. Texas-Louisiana Power Co. p. 1061 The Honorable Wilnon E. Speir. page 3 (H-232) v. City of Farmerrville, 67 S. W. 2d 235 (Tex. 1933). In Vol. 2. Sutherland, Statutory Coastruction, 6 2412, p. 189 it is said: ---“m... _ . “When exceptions, exemptions or proviros in a statute are found to be invalid, the entire act may be void on the theory that by ntrihing out the invalid exception the act ham been widened in its scope aad .tberefore cannot properly represent the legislative intent. .. , . I!. See alao Texas-Louislana.Power Co. v. City of Farmersvtlle, supra; Anderron v. Wood, 152 S. W. 2d 1084 (Tax. 1941), both citing and quoting from an earlier. adition .af Sutherland. Strik$g ;from Article .6701 L.- 4 that portion which would make it applicable to femalea .Qy+.r seventeen but sot to male8 past their seventeenth birthday, the invalid :exoeption in the Act, would .aot broaden its .acope. To the contrary, the scope would 4e limited to the .extent that it would no longer apply to female0 pant the age of seventeen. Female0 seventeen and under as well aB malee seventeen and under are now subject to it# provision6 and would remain so. It .is our opinion, therefore, that ~the rationale of the Matthew8 came does render,.Article 67011 - 4, V. T.C. S. , , unconstitutional to the extent that it distinguishes between males and femalea over seventeen and under .eighteen years of ages. It is our opinion further that the ‘statute. insofar as it applies to male8 and females seventeen and under. ia not unconstitutional. ‘f;our...nextquestion as& 1% [ 6701 1 .- 4 in constitutional, do its provisiona .allow.the arrest and prosecution of minor6 who have passed their fourteenth birthdays for an action committed before such person is fifteen years of age?” Section 8:07 of the new Penal Code provides. in part: “(a) Except am provided by Subsection (c) of this section. a person may not be prosecuted or convicted for ay offense that he committed when younger than 15 yearcl. p. 1082 The Honorable Wilson E. Speir, page 4 (H-232) ‘1. . . . ‘j(c) Subsection (E) and (b)-of thirclection shall not apply to pro6ecutton6 for: .. .*. . . ‘(2) a violation of a penal statute cognimable under Chapter 302, Act6 of the 55th Legislature, Regular Session, 1957, a6 amended; [Article 67OlL- 4. V. T. C. S. 1. . . . ” Article 6701k 4. V. T. C. S., in it6 0 4, provide6 in part: “The offenses created under thin Act rhall be under the jurisdiction of the courts regularly empowered to try misdemeanors carrying the penalty herein affixed, ad shall not be under the jurisdiction of the Juvenile Courtr; . . . ‘I It is our opinion, therefore, that, under our present rtatutes, minors over fourteen yearsof age may be arrented and prosecuted for violation of Article 6701 L- 4. committed prior to their fifteenth birthdays. SUMMARY Article 6701 L- 4 Vernon’6 Tens Civil Statute6. cannot be con6titutionally enforced against persons in the seventeen to eighteen year old category but i6 enforceable against those seventeen and under. Persons over fourteen but under fifteen years of age may be prosecuted for violation of, Article 67011 - 4. Attorney General of Texas The Honorable Wilson E. Speir. page 5 (H-232) Opinion Committee p. 1084