Hon. 0. N. Humphreys, Jr., Opinion No. M-327
Administrator
Texas Liquor Control Board Re: May a juvenile be prose-
Sam Houston State Office Bldg. , cuted for violation of
Austin, Texas 78711 Article 666-17(14), Vernon’s
Penal Code, and related
Dear Mr. H&nphreys: questions?
: .
You request an opinion of this office whether a juvenile may
be prosecuted for violation of Article 666-17(14), Vernon’s Penal
Code and if so, whether such juvenile may be incarcerated for failure
to pay his fine upon conviction, in view of amendments to Article
2338-1, Vernon’s Civil Statutes, by H. B. No. 780. Acts 60th Legis-
lature, R.S. 1967, ch. 475, p. 1083.
Article 666-17. Section 14(a) makes certain purchases,
possession or cofisumption of alcoholic beverages by persons pnder
21 years of age a misdemeanor criminal offense and provides pun-
ishment by fine froni $10. to $100.
As stated in your letter, this office has previously held in
Att.orney Genera1 Opinion No. WW-1171 (1961) that the above section
of rhe Texas Liquor Cont:rol Act is an exception to Sections 12 and
13 of Article 2338-1, and that such persons under 21 years of age
are susceptible to fines for violation thereof.
As further stated in your letter, Attorney General Opinion
No. WW-1338 (1962) holds that all persons~convicted under said
Section 14(a) who are unable to pay the fine assessed must be
confined in jail to lay out the fine as required by law or until such
fine has been paid, provided they are segregated from adult
offenders.
Section 3 of Article 233811. as amended, defines a “child”
as any female person over the age of 10 years and under the age
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Hon. 0. N. Humphreys, Jr., Page 2 (M-327)
of 18 years and any male person over the age of 10 years and under
the age of 17 years.
Section 1 of Article 30, Vernon’s Penal Code, prohibits the
conviction of a persons for any offense, except perjury, committed
before he was 15 years of age, therefore such “children” can be
held responsible only through proceedings in the juvenile court, if
at all. Attorney General Opinion’No. M-163 (1967).
Under Section 5(a) of Article 2338-1, the juvenile court has
exclusive original jurisdiction in proceedings governing any “delin-
quent child, I’but the juvenile court may waive jurisdiction to the
appropriate district court or criminal district court as specified
in Section 6 thereof.
If a “child” does not violate a felony penal law or a mis-
demeanor law punishable by confinement in jail, he is not a “delin-
quent child” under the terms of Section 3 of Article 2338-l unless
he habitually violates misdemeanor laws punishable by fine only,
or penal ordinances, or other proscribed deportment, conduct or
activity.
In view of the above, a juvenile court. would not have juris-
diction of .a child for the “one-time” purchase, possession or
consumption of an alcoholic beverage as described in Section
14(a) because such a person is not defined as a “delinquent child. ”
Obviously then, a juvenile court could not waive jurisdiction that
it does.not have, nor could it assume jurisdiction of a case trans-
ferr,ed to it, under such circumstances, as provided in Section 12
of Article 2338-l.
It is our opinion that a female person 15 years of age or
over, but under the age of 18 years, or a male person 15 years
of age or over, but under the age of 17 years, who violates the
provisions of Section 14(a) of Article 666-17, other than habitually,
is not within the jurisdiction of the juvenile court and may be pro-
secuted for such violation in an appropriate criminal court having
jurisdiction of such offense. Upon conviction thereof he, or she,
may be incarcerated until such fine is paid or otherwise satisfied
according to law; however, such person shall be, segregated from
adult offenders under the provisions of Article 2338-l(17).
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.
Hon. 0. N. Humphreys. Jr.. Page 3 (M-327)
Whether such a person is a “one-time” offender or is an
habitual offender such as would place him or her under the juris-
diction of the juvenile court is a question of fact which could be
ascertained by the arresting officer, and/or the court after con-
sultation or conference with the judge ofthe juvenile court.
SUMMARY
A female person 15 years of age or over, but
under 18 years of age, or a male person 15 years
of age or over, but under the age of 17 years. who
violates the provisions of Section 14(a) of Article
666-17, Vernon’s Penal Code, other than habitually.
may be prosecuted for such violation and upon con-
viction thereof he, or she, may be incarcerated until
such fine is paid or otherwise satisfied according to
law; however, such confined person shall be segregated
from adult offenders under the provisions of Article
2338-1, Section 17, Vernon’s Civil Statutes. Whether
such a person is a none-time” offender or is an
habitual offender is a question of fact.
DC. MARTIN
ey General of Texas
Prepared by Monroe Clayton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
Bob Lattimore
Tom Bullington
Lonny Zwiener
John Reeves
STAFF LEGAL ASSISTANT
Hawthorne Phillips
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Untitled Texas Attorney General Opinion
Combined Opinion