Untitled Texas Attorney General Opinion

AUSTIN ia. TEXAB ~RSCE DA?-==- A-- cauc==..L August 30, 1951 Hon. Homer Garrison, Jr., Mrector Tefezzyrtment of Public Safety Austin, Texas Opinion No. V-1266 Re: Construction of House Bill Ho. 581, Acts 52nd Lsg., 1951, codified as Article 802d, V.P.C., regulating punishment of minors for Dear Col. Garrison: , driving while intoxicated. You have requested the opinion of this office on several questionsrelative to House Bill 581, Acts 2:; L&SC 1951, ch. 436, p. 786, codified as Article which creates the offense of driving while lnto&&~d’~y minors between the ages of ‘fourteenand seventeenyears. Your questions are as follows: ‘1. If a minor who has reached his four- teenth birthday but has not reached his seven- teenth birthday is convicted of driving while lnt~xicated,is his lice&e ‘tooperate iimotor vehicle automaticall suspended wer the pro- visions of Section,2X Art. 6687b, Vernon’s Ann. Clv. Statutes of’Texas? n2. Sec. 3 of IL B. 581, 52nd Texas keg- islature,provides that a minor between four- teen and seventeen convicted of .D.W.I.may be placed on probation by the court. When such a person Is convictedand placed on probation, is the convictiona final convictionas required by Sec. 24, Art. 6687b, relating to the auto- matic suspensionof licenses? n3* Assume that a minor fifteen years of age is convicted of D.W.I. and that be is sub- sequently convicted of D.W.I. when sixteen years of age, would the second offense be punished as provided in Section 1, IL B. 581, or would It constitutea felony? Upon the second conviction could his license to operate a motor vehicle be suspended for one year? Hon. Homer Garrison,Jr., page 2 (V-1266) “4. Suppose ziminor was first convicted of D.W.I. just prior to his seventeenthblrth- day and was subsequentlyconvictedof D.W.I. when eighteen years of age, would the second convictionbe punished as in the case.ofadults convicted the second time?” We set out initially the pertinentprovisiom of House Bill 581, which has now been codifiedas Art%. cle 8026, V.P.C., as follows, eliminatingthe formal parts thereof: “Section 1. Any minor who hes reached his or her fourteenth (14th)birthdaybut has not reached his or her seventeenth(17th) birthday and who drives or operatesan auto- mobile or any other motor vehicleupon any public road or highway in this State, or upon any street or alley within the limits of an incorporatedcity, town or village,in a reckless manner,,at an excessiverate of speed, or while’under the influenceof intox- icating liquors, as hereinafterdefinedin this Act, shall be guilty of a misdemeanor and upon convictionshall be punishedby a fine of not less than One Dollar ($1) nor more than Fifty Pollard ($59). “Sec. 2. (a) Any minor who drives any vehicle in wlllf~l or wanton disregard of the rights or safety of others or wlthout due caution or circUmspection,and at a speed or in a manner’s0 as to endanger or be likely to endanger a person or property shall be guilty of reckless driving. “(b) Any minor who operates. a motor vehl- cle at a speed In excess of the maximum speed allowable Under existing law shall be guilty Of speeding. “(c) Any minor who drives or operatesan automobile or any other vehicle while such per- son is Intoxicated or under the influenceof intoxicatingliquors shall be guilty of driving or operating a motor vehicle while under the ln- fluence of intoxicatingliquors. Hon. Homer Garrison, Jr., page.3 (V-1266) rc 1 'Sec. 3. Provided that for g00d cause shown, and when It shall appear,to the SatIS- faction of the court that the ends of justice and the best interest of the public as well as the defendant will be subservedthereby, the courts of the State of Texas having orlg- inal jurisdictionof such criminalactions shall have the power after convictionor plea of guilty to suspend the impositionof such fine and may place the defendant on probation for a period of ninety (90) days. "Any such minor placed on probation shall be under the supervisionof such court. %ec. 4. Hothing contained in this Act shall be construed to repeal or affect any other Statutes regulating the powers and duties of Juvenile Courts: the provlslons of this Act shall be cumulativewith all other Acts on this subject." We turn now to.your questions and will dispose of them In the order asked. 1. If a minor who has reached his fourteenth birthday but has not reached his seventeenthbirthday Is convictedof driving while lntoxicated.~lshis license to operate a motor vehicle automaticallysuspendedunder the rovislons of Section 24. Art. 66o'i'b, Vernon's Ann. (Xv. tat&es of Texas? The.provision in the drivers’ license statute providing for automatic suspension of licenses,being Sec- tion 24 of Article 66873, V.C.S., reads-as follows: "(a) The license of any person shall be automaticallysuspended upon final convlc- tlon of any of the following offenses: * . . . "2. Driving a motor vehicle while un- der the Influence of Intoxicatingliquor . . ." It is pertinent to observe at this point that House Bill 581, which Is now Article 802d, V.P.C., cre- ates an entirely new offense. Prior to Its passage, male Hon. Homer Garrison, Jr., page 4 (V-1266) juveniles under seventeen years of age and female juve- niles under eighteen years of age were not subject to punishmentfor crimes but were subject only to the pro- visions of Article 2338-1, V.C.S., which established juvenile courts and provides the procedurefor trials for juveniledelinquency. Section 12 of that statute specificallyprovides that: "If during the pendency of a criminal charge or Indictmentagainst any person In any other court than a Juvenile Court, it shall be ascertainedthat said person is a female over the age of ten (10) years and under the age of eighteen (1.8) 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 alleged of- fense, it shall be the duty of such court to transfer such case Immediatelytogether with all papers, documents and testimony connected therewithto the Juvenile Court of said~aounty." The offenses created by House Bill 581 are a departurefrom the general policy for handling juvenile offendersand constituteexceptions to the foregoing la g -g e As to the'offensesthus created,Article 2338-1. l V.C.S., will not apply. Turting back to the drivers' license law, we note that the automatic suspension provided for In Sec- tion 24 of Article 6687b is for convictionof "driving a 'motorvehicle while under the influenceof lntoxlcat- lng liquor." That Is almost the precise gravamen of th offense created by House Bill 581 relative speclflcally to driving while intoxicated,except that the gravamen is Inclusiveof factual allegationsof minority. We do not think that the particular offense of driving while intoxicatedby a minor, which Is one of the offenses cr ated by House Bill 581, Is distinguishable,because of the minority of the defendant, from the offense descrlb in Section 24 of Article 6687b as *drivinga motor vep cle while under the Influence of intoxicatingliquor. section of the drivers' license law does not purport to fer specificallyto any particular section of the Penal Code other than to describe very generally the characte of the offenses for which automatic suspensionwill be consequence. Hon. Homer Garrison,Jr., page 5 (V-1266) We thereforehold in answer to your first ques- tion that a minor who holds a license issued wader Artl- cle 6687b, who, being within the age bracket of fourteen to seventeenyears, 1s convicted of driving while lntoxl- cated as provided by House Bill 581, being Article 8026, V.P.C., shall for the first convictionsuffer an automatic suspensionof such license for the period and within the provisionsof Section 24 of Article 6687b. 2. Sec. 3 of PI.B. 581..52nd Texas Legislature, provides that a minor between fourteen and seventeenCon- victed of D.W.I. may be placed on probation by the court. When such person is convicted and DlaCed on Drobation. 1s the convictiona final convictionas reaulred by Sec. 24, Art. 6687b, relating to the automatic suspensionof ll- tenses? Section 3 of House Bill 581, to which you refer in your second question, Is set forth above. This office has previously ruled ln Opinion V-1157 (1951) that the suspension of a sentence In con- nection with a convictiondoes not affect the automatic suspensionof a driver’s license if the offense 1s one of the enumeratedoffenses set out in Section 24 of Article 6687b. Slmllarly,this office has held ln Opinion V-408 (1947) that placing a convicted adult defendant on proba- tlon under the Adult Probation and Parole Law,~belngArtl- .cle 781b, V.C.C.P., does not permit the convictingcourt to include within the comprehensionof the probation a re- mission of the automatic suspension of the driver's license of the defendant,when the offense is one of the enumerated offenses set out in Section 24 of Article 6687b. In so far as the effect of the suspensionof sentence or placing the defendant on probation is con- cerned, we see no reason for distinguishingbetween an adult and a minor with regard to'the consequenceof such action on the automatic suspension of a minor's driver's license. We hold that the action of a convicting court in placing a minor on probation under Section 3 of House Bill 581 does.not alter or affect the suspension of the driver's license as an automatic consequenceof the con- viction for one of the offenses set out ln Section 24 of Article 6687b. 3. Assume that a minor fifteen years of age Is convicted of D.W.I. and that he is subsequentlycon- victed of D.W.I. when sixteen years of age. WOUld the Hon. Homer Garrison,Jr., page 6 (V-1266) Your reference to whether the second offense of driving while Intoxicatedby a minor might be a fel- Ony requires referenae to Article 802b, V.P.C., which prescribesthe penalty for the second or a subsequent offense bf driving while intoxicated. That statute de- fines a separate offense from the offense of driving while intoxicatedby a minor. Under Article 2338-1, V.C.S., and prior to the passaegof House Bill 581, a minor may not be punished for crime, which, of course, includes the felony offense of a second or subsequent convictionfor driving while intoxicated,as set out In Article 802b, V.P.C. House Bill 581 establishesthe mis- demeanor offense of driving while Intoxicatedby a minor as one exception to the provisions of Article 2338-l. The felony offense of a second or subsequentconviction for driving while Lntoxlcated1s not included as an ex- ception to Article 2338-1, and that statute w0ul.dpre- clude punishinga mlnor for the second convictionof poFbmv ;hl$ Intoxicatedas a felony under Article 2 . . . However, a person might be convictedseveral times for repetitionsof the misdemeanoroffense of drlv- lng while lntoxlcqted,as defined by House Bill 581, while still a minor. Upon ,thesecond convictionunder this statute for driving while intoxicated,the driver’s license of the minor so convictedwould be suspendedfor a yeai?,under Section 24 of Article 66873, regardless of the fact that both convictionswere misdemeanors. Tatum v. Texas Department of Public Safety, 241 S-W.26 16m~ Civ. App. 1951, error ref.). 4. Suppose a n&r was first convicted of D.W.I. just prior to his seventeenthbirthday and was subsequentlyconvictedof D.W.I. when elateen years of aRe. would the second convictionbe punished as In the case of adults convicted the second tFme? This question requires a constructionof Arti- cle 802b, V.P.C., which reads: "Any person who has been convicted of the misdemeanoroffense of drlv3.n~or oper- atiw an automobile or other motor vehicle Hon. Homer Garrison,Jr., Page 7 (V-1266) upon any Dublic road or hinhway ln this State or upon any street or alley within an lncor; porated city. town or villane, while lntoxi- cated or und the lnfluence of intoxicating cr, and %o shall thereafterdrive or operate an automobileor other motor vehlcle~ upon any public road or highway In this State or upon any street or alley within the limits of an incorporatedcity, town or village, while such person la intaxi- cated or under the Influence of lntoxicat- lng liquor, shall be guilty of a felony and upon convictionbe punished by confinement Tbls penal law creates a separate offense; it is not a matter of enhancement of the penalty. Haynes v. State, 200 S.W-28 824 (Tex. Crlm. 1947). There is, of course, a fundamentalrule of statutory consttictlonthat penal laws are strictly con- strued. This being true, we must construeArticle 802b, V.P.C., strictly in determiningwhether its reference to any person who has been previously convicted of "the:mls- demeanor offense of driving . . . while Intoxicated .'. .M may be construedto include a convictionfor the newly cre- ated offense of driving while intoxicatedby a minor as created by House Bill 581. CAn examinationof the history of the statutes relating to drlvlng while IntoxicatedIs enlightening and we think Is @-value in determiningthe answer to this question..,/I As first passed in 1923, Article 802 of the Penal Code provided that the offense of driving while Intoxicatedwas a felony, and thus it remained through subsequentlegislativeamendments until 1941, when the 47th Legislaturepassed an Act changing the first offense to a misdemeanorand adding Article 802b and Article 802~ of the Penal Code, creating two new offenses. That 1941 Act, which was Acts 47th Leg.,.1941; ch. 507, p. 819, was comprehensiveof the drunken driving offenses at that time. By turning to that Act and observLngIt In the light of the history of the offense of CtrlvFngwhile in- toxicated,It will bs seen that when Section 2 of that Act -- which originallyenacted Artiale 802b of the Penal Eon. Homer Garrison, Jr., page 8 (V-1266) Code -A referred to ‘the mi_ademeanoroffense of . . . drZvlng while Intoxicated,”It olearly referred to the misdemeanoroffense which was simultaneouslycreated by Section 1 of the same Act, because before the pas- sage of that Act the first or a subsequentoffense of driving while intoxicatedhad consistentlybeen a fel- any. We conclude that the reference remains unchanged. We thereforehold that the convictionof a minor for the offense of drlvlng while intoxicatedln violation of House Bill 581, codifiedas Article 802d, V.P.C., may not be used as a prior convlatlonto form the basis of a convlctlonfor violatingArticle 802b, V.P.C., for a second or subsequentconvictionfor driv- ing while intoxicated. We are, of course not passing on the constl- tutionalltyof house Bill 561, that questionnot having been asked. SUMMARY Convlctlon of a minor for driving while IntoxicatedIn violation of Article 802d, V.P.C., automaticallysuspends any license to operate a motor vehicle’which such minor may have, under Section 24 of Article 6687b, V.C.S. When a minor Is convicted of driving while IntoxicatedIn violation of Article 8026, V.P.C., and placed on probation,the probation does not affect the automatic sus- pension of the license to operate a motor vehicle of such minor. A minor convicteda second or subse- quent time for driving while intoxicated in violation of Article 802d, V.P.C., may only be convicted of a misdemeanor,but upon the second convictionthe minor’s license to operate a motor vehicle Is automaticallysus- pended for a year, under Section 24 of Artl- cle 6687b, V.C.S. Conviction of a minor for driving while intoxicatedin violation of Article 8026, V.P.C., may not be used as the basis for con- victing such person of the fel.onyOffense of Hon. Homer Garrison, Jr., page 9 (V-1266) drlvlng while intoxicatedupon a Second or subsequentconviction,in violation of Arti- cle 802b, V.P.C. APPROVED: Yours very truly, Hea WcDanlel PRICE DANIEL State Affairs Division Attorney General Everett Hutchlnson ExecutiveAssistant Price Daniel Attorney General DJC:jmc