Untitled Texas Attorney General Opinion

Honorable Weldon Holcomb Opinion No, WW-1171 Criminal District Attorney Smith County Re: Whether Article Tyler, Texas 666-17, Vernon's Penal Code, which makes the purchase of alcoholic bev- erages, etc. by persons under 21 years of age, supersedes Sections 12 and 13 of-Ar- Dear Sir: title 2338-1, V.C.S. Your request for an opinion reads in part: "The pertinent problem for which we are askin$ an opinion from your office involves the follow- ing: "Article 2338-1, Revised Civil Statutes of Texas, Section 12, in part reads as follows: "'If during the pendency of a criminal charge or indictment against any person in any court other than a Juvenile Court, it shall be ascer- tained that said person is a female over the age of ten (10) years and unde~rthe age of eighteen (18) years, or is a male person over the age of ten (10) years and under the age of seventeen (17) years at the time of the trial for the al- leged offense, it shall be the duty of such court to transfer such case immediately together with all papers, documents and testimony connected ther;ewithto the Juvenile Court of said county 000 "Section 13, reads in part as follows: Hon. Weldon Ho:lcomb,'Pa,ge 2 (wwn7:1, ) II , No adjudication upon the status of any child'i~ ihe jurisdiction of'the court shall operate to impose any of the civil disabilities ordinarily imposed by conviction, n,orshall any child be deemed a criminal by reason of such ad- judication, nor shall such adjud,icationbe deemed a conviction, nor shall any child be charged with or convicted of a crime In any court e e .,' "The above quoted law is a part of that which was passed by the Legislature in the Acts of 1943, 48th Legislature, Page 313, Chapter 2a. "Article 666-17, Vernon's Annotated Penal Code, Volume lA, Section 14(a), reads as follows: "(It shall be unlawful for any person under the age of twenty-one (21) years to purchase any alco- holic beverage, and upon conviction thereof shall be fined in a sum of not less than Ten Dollars ($10) or more than One Hundred Dollars ($100). It shall further be unlawful for any person under the age of twenty-one (21) years to possess, unless such person under the age of twenty-one (21) years be a bona fide employee, as permitted elsewhere in this Act, on the licensed premises where such alco- holic beverage is possessed, or consume any alco- holic beverage in any public place unless at the time of such possession or consumption such person under the age of twenty-one (21) years is accompanied by his or her parent, guardian, adult husband or adult wife, or othe:r adult person into whose custody he o:rshe has been committed for the time by some C3Llrt,who is actually, visibly and pe~rsonally present at the time such alcoholic beverage is possessed or consumed by such person under the age of twenty-one (21) years, and upon convi.ctionthere- of shall be fined in a sum of not less than Ten Dollars ($10) or Moorethan One Hundred Dollars ($1003*.' "This statute was passed by the Legislature in the Acts of 19551 54th Legislature, Page 1149, Chapter 433, Paragraph 1, . , Hon. Weldon Polcomb, Page 3 (WW-1171) "Our problem is this: There i.san apparent direct conflict between the t,woabove quoted statutes. The Juvenile Statute above quoted, assed in 1943, states that females under eighteen P18) and males under seventeen (17) shall not be charged with or convicted of a cr.ime'inany court. The latter statute, 666-17, Section 14(a), states, in substance, that any person under the age of twenty-one (21) shall be fined upon con- viction not less than Ten nor more than One Hundred ($100) Dollars. "Does the latter statute passed in 1955, supersede the Juvenile Statute (19431, because Section 14 of the Act, passed in 1955, states that all conflicting laws and parts of laws to the extent of such conflict are repealed, au- thorize the corporation or justice courts to assess a fine in accordance with the ~instant statute and en~forcesuch judgment aga~inst females under the age of eighteen (18) and above the age of ten (lo), and males under the age of seventeen (171 and over the age of ten (lO)?ll Prior'to the passage of Article&6-17 in 1955, the sale of alcoholic beverages to a "delinquent child" (fe- males over 10 years of age and under 18 years of age and males over 10 years of age and under 17 years of age) was illegal and imposed certain penalties upon the seller, but no effecti~vesanction was provided against t.hechild. The individu~alsale to or possession of alcoholic beverages by a child apparently d~idnotsonfer jurisdiction upon the juvenile court in and of itself to support juvenile action. However, hab,itualuse o:rpossession by a chi~lddid confer jurisdiction under the juvenile la,wsand ft stlli-does. See Art, 2338-1, Sec:3(~fl,V,C,S, In this situation the ~Legis:Lature was ron.frontedwith the problem and decided to i~mposean enforceable sanction upon a child for a one-time use or possession of alcoholic beverages, We have concluded that the Leg:islatureelected to use a cr,iminalsanctl~onIanadd:itionto all of the present Hon. Weldon Holcomb, Page 4 (WW-1171) remedies now existing under the juvenile laws and passed the act as a special exception to the general proposition that children cannot be convicted of a criminal offense. Thus the situation came about that after the passage of this act the juvenile authorities had all of the power and authority they formerly had but that there has been added the power to impose a fine and criminal proceeding upon a child for the possession and use of alcoholic beverages. We arrive at this conclusion because of the following cases: In Ellis v. Holcombe,'69 S.W.2d 449 (Civ. App., 1934, Error Ref. May 2 1934) the court states the general rule covering apparenily conflicting statutes as follows: "In support of their proposition above stated, appellees cite and rely upon the well-settled statutory rule of decision that repeal of an existing statute by implica- tion is never favored, and a repeal should only be implied when the conflict between the latter and former statutes is so positive that the purpose to repeal is manifest. The antagonism must be so pronounced that both statutes cannot stand. 'Though they seem to be repugnant, if it is possible to fairly reconcile them such is the duty of the court. A construction will be sought which harmonizes them and leaves both in concurrent operation rather than destroys one of them. If the later statute reasonably admits of a construction which will allow effect to the older law and still leave an ample field for its own operation, a total re- pugnance cannot be said to exist, and therefore, an implied'repeal does not result, since in such cases both may stand and perform a distinct *** office."' Article 2338-1 is taken from the Juvenile Cow& Act. The purpose of which article was to substitute entirely new . . Hon. Weldon Hoicomb, Page 5 (ww-1171) proceedings in the nature of civil proceedings covering juvenile offenders and as such it would be classed as a "general" law. The Texas Liquor Control Act, Article 666-1, etc.. Vernon's Penal Code. has been classed bv our courts as a-"special" act. Hall&n V* Texas Liouor Control Board, 166 S.W.2d 175 (Civ. App., Error Ref. Dec. 16, 1942). The question therefore is whether the special act, (Texas Liquor Control Act), can be reconciled with the general statute (Juvenile Court Act). Our Supreme Court in the case of Sam Bassett Lumber Co. v. Citv of Houston, 145 Tex. 492, 198 S.W.2d 879 (19471, pronounced the general rule at Page 888 when it said: "The general rule is that when the law makes a general provision, apparently for all cases, and a special provision for a particu- lar class, the general must yield to the special insofar as a particular class is con- cerned. P,e_re,z. ,v,. Pe,r,e&59 Tex. 322. This rule is based upon the principle that all acts and parts thereof must stand if possible, each occupying its proper place, and that the intention of the Legislature is more clearly reflected by a particular statute than by a general one. Accordingly a specific act is properly regarded as an exception to, or qualification of, a general law on the same subject previously enacted. In such a case both statutes are permitted to stand, the general one being applicable to all cases except the narticular one embraced in the s ecial act: Townsend v,.T.sXr.e_ll,, 118 Tex. 4t3, 16 S.w.2dei-F We therefore agree with your conclusion that Section 666-17, insofar as it covers minors and juveniles is an excep- tion to the general statutes covering juvenile offenders, Article 2338-l. Such conclusion follows the intent of the Legislature and allows the fining of such juvenile offenders in order to better effectuate the intents and purposes set out in the State Liquor Control Act. Hon. Weldon Holcomb, Page 6 (WW-1171) SUMMARY Article 666-17, Section 14(a) which makes the purchase of alcoholic beverages, etc. by persons under twenty-one (21) years of age is an exception to Sections 12 and 13 of Article 2338-1, Vernon's Annotated Civil Statutes, and as such makes persons under twenty-one (21) years of age susceptible to fines for violation thereof. Very truly yours, II WIL WILSON Attkrney General of axas Byl+---LM Norman V, Suare' Assistant AttolfieyGeneral NVS:bjh APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Gordon Cass L. P. Lollar REVIEWED FOR THE ATTORNEY GENERAL BY: HOUGHTON BROWNLEE